The Issue Whether the Petitioner is entitled to an award of additional points sufficient to achieve a passing score on the July 1997 optometry exam.
Findings Of Fact Susan J. Summerton-Madison (Petitioner) took the July 1997 examination for licensure as an optometrist in the State of Florida. A portion of the examination tests the clinical skills of the applicant for licensure. Each applicant performs a number of tasks while two examiners observe. Prior to administration of the test, all examiners receive standardization training providing a baseline for grading the individual performance of each applicant. Examiners grade each applicant independently of each other. During the clinical part of the test, a viewing system known as a "teaching tube" is attached to the optometrist's equipment used by the applicant. The applicant performs each task twice because only one examiner at a time can observe the performance through the tube. Prior to beginning the clinical portion of the exam, the applicant and the examiners set the tube focusing mechanism so that both the applicant and the examiner have a clear view of the procedures being demonstrated. By grade report dated August 27, 1997, the Petitioner was advised that she had scored 68.80 on the clinical portion of the examination. A score of at least 75 points is required to pass the clinical portion of the examination for licensure as an optometrist. The Petitioner challenges the grading of the following questions: Section 1, questions 4a and 4b. Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b, 21a, 21b, 24a, 25a, and 26a. The Petitioner asserts that her pregnancy during the examination resulted in ocular changes which caused focusing anomalies. The anomalies allegedly caused the viewing equipment through which the examiners observed her performance to be out of focus. The Petitioner received score deductions related to lack of focus on numerous questions; specifically section 2, questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a, 25a, and 26a. There are multiple causes of temporary ocular changes, including nervousness. Although there is evidence that pregnancy can result in ocular changes, the evidence fails to establish that any focusing problems which occurred during the Petitioner's performance on the July 1997 examination were related to pregnancy. Refocusing the viewing mechanism takes approximately five seconds. There is no evidence that an applicant is prevented from refocusing the equipment during the clinical examination. Although examiners are under no obligation to advise applicants during the test, one of the examiners observing the Petitioner suggested that she refocus the equipment. The Petitioner asserts that the request caused her to run out of time on section 2, questions 11a, 11b, 12a, and 12b. The evidence fails to establish that any problems related to insufficient time for the examination were related to the examiner's suggestion. The Petitioner asserts that points were deducted for poor focus on tasks which did not include focus as grading criteria. The evidence establishes that because the clinical portion of the test involves examination of ocular systems in a patient, almost all procedures require correct focus. The Petitioner asserts that on section 2, question 21b, ("foveal reflex") she received no points, but that another optometrist's examination of the test patient indicated that the foveal reflex was acceptable. Review of the examination indicates that the Petitioner's score was lowered because of focusing problems. The fact that a qualified optometrist determined the patient to be normal does not entitle the Petitioner to additional points or indicate that the scoring of her performance was unfair. Because examiners view separate procedures, it is not unlikely that examiners may award different scores. It is possible to evaluate the performance of examiners through use of "agreement ratings." Agreement ratings indicate the frequency of which each examiner agrees with the other examiner in testing the same applicant. The Petitioner notes that the examiners grading her performance differed in grading section 1, questions 4a and section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a, 21b, and 25a, and asserts that such indicates she was graded unfairly. Although the agreement ratings of the examiners who observed the Petitioner were slightly lower than average, the examiner agreement ratings fail to establish that she was graded arbitrarily or unfairly. The sample size is so small as to be subject to influence by borderline candidates, where one examiner believes an applicant's performance to be more acceptable than does the other examiner. The Petitioner asserts that on section 2, question 18b, the lack of agreement between the examiners reflects arbitrary grading because both supposedly view the same procedure through the viewing tube. The evidence fails to establish that the Petitioner is entitled to additional points or that the scoring of her performance was unfair. The Petitioner asserts that she informed the examiners that she was pregnant prior to administration of the clinical portion of the exam and that she should have received special accommodation of some type based on her condition. Procedures set forth in Rule 61-11.008, Florida Administrative Code, address special assistance to certain persons submitting to examination by the Department of Business and Professional Regulation, Office of Examination Services, which administered the examination in the instant case. Such assistance is available to persons with learning disabilities or physical handicap as defined in the rule. There is no evidence that the Petitioner sought to utilize such procedures. There is no evidence that the Petitioner's condition would have been regarded as a learning disability or physical handicap by the agency. The Petitioner asserts that an examiner exited the room while she was addressing section 1, questions 4a and 4b, and that the confusion of the departure caused the examiners to err. The evidence establishes that the scores reflect the inappropriate performance of the task involved, which involved measurement of the patient's pupil.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health enter a Final Order dismissing the Petitioner's challenge to the grading of the July 1997 examination for licensure as an optometrist. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998. COPIES FURNISHED: Susan J. Summerton-Madison 559 99th Avenue North Naples, Florida 34108 Anne Marie Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Optometry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 70.5%, with 254 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. The Petitioner testified that as many as thirty questions in the examination booklet which she received at the exam site had misspellings. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination was administered in an arbitrary or capricious manner. The Petitioner totally failed to introduce any evidence which would establish that there were material misspellings in the examination booklets which would impair the validity of the grading results.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades she received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2802 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. Adopted in Finding 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue in this case is whether the Petitioner is entitled to a passing grade on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact The Petitioner took the optometry licensure examination in August of 2000. He received passing scores on three of the four parts of the licensure examination. He received a failing score on the clinical portion of the examination. The Petitioner's score on the clinical portion of the subject examination was 70.50. The minimum passing score is 75.00. The Petitioner contested the scores awarded to him for his performance of procedures itemized on the examination as 2A, 7B, 10A, 22A, 33C, 9A, 18B, and 14B.3 During the course of the hearing, two of the challenged items were resolved without the need for evidence. The Petitioner withdrew his challenge to item 10A. The Respondent stipulated that the Petitioner's performance on item 2A had been incorrectly graded, and agreed that 1.5 points should be added to the Petitioner's grade on the subject examination. On five of the items challenged by the Petitioner, one of the examiners gave the Petitioner credit for successful completion of the procedure and the other examiner did not.4 With regard to these five items, the Petitioner's primary contention is that, if one examiner gave him credit, he should also have received credit from the other examiner. However, given the nature of the manner in which the clinical examination is conducted, different scores by examiners evaluating a candidate's performance are not unusual, and, standing alone, different scores are not indicative of any irregularity in the manner in which the examination was conducted. On the clinical portion of the optometry licensure examination, each candidate is evaluated by two examiners, each of whom grades the candidate's performance of a procedure independently of the other examiner. Further, the examiners are not permitted to confer with each other regarding a candidate's scores. Specific written grading standards have been prepared for each of the procedures candidates are required to perform as part of the clinical portion of the subject examination. These written grading standards are provided to all examiners prior to each examination so that the examiners can review the standards and be prepared to apply them in a fair and even-handed manner. Before serving as an examiner, each proposed examiner goes through a training session. During the training session, each proposed examiner practices scoring the performance of various optometry procedures. Following the practice sessions, the work of each examiner is evaluated to determine whether the examiner is correctly applying the grading standards. If a potential examiner is unable to demonstrate the ability to apply the grading standards, then that examiner is assigned to other duties and is not assigned to grade candidates on the licensure exam. The examiners assigned to grade the Petitioner on the clinical portion of the subject examination all successfully completed the training process and were determined to be acceptable by the Department. The examiners assigned to grade the Petitioner on the clinical portion of the subject examination were all experienced examiners and a statistical analysis of their scoring of all candidates on the subject examination demonstrates that they reliably applied the grading standards. With regard to the procedure required by item 14B, the Petitioner asserts that his ability to demonstrate the required procedure was impaired by the fact that the patient was photophobic. The greater weight of the evidence is otherwise. While the subject examination was in progress, two optometrists examined the patient and determined that the patient was not photophobic. There is no competent substantial evidence of any misconduct by any of the examiners who graded the Petitioner's performance during the subject examination. Similarly, there is no competent substantial evidence that the Department acted arbitrarily or capriciously, or that it abused its discretion. There is no competent substantial evidence that the scoring of the Petitioner's examination performance was flawed, other than the additional 1.5 points that the Department agreed should be given for item 2A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner is not entitled to a passing grade on the clinical section of the optometry licensure examination and dismissing the petition in this case. DONE AND ENTERED this 13th day of September, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2001.
Findings Of Fact The Petitioner took the optometry examination administered to candidates for certification for licensure to practice optometry in the State of Florida in July of 1980. The written portion of the optometry examination consisted of four sections or sub-parts; ocular pathology, theory and practice, pharmacology and laws and rules. The ocular pathology section consisted of 100 written and 20 slide questions. One and one-half hours were allotted for completion of the ocular pathology section. Thirty minutes was permitted for the completion of the slide portions of the ocular pathology sub-part. The written and slide portions of the ocular pathology section were separated by the administration of the theory and practice sub-part of the optometry exam, which consisted of one hundred items with one and one-half hours permitted for completion. The Petitioner completed the ocular pathology section of the exam and received a final grade of 69. A minimum passing grade of 70 was required by the Respondent on that portion of the optometry exam. Ocular pathology was the only portion of the exam which the Petitioner failed. An item analysis of the items on the ocular pathology portion of the examination was undertaken by the Department of Professional Regulation staff subsequent to administration of the examination. The item analysis undertaken was in conformity with standard post-test procedures for determining the validity of test items. Following the item analysis review, members of the Board of Optometry who formulated the exam received the item analysis results and recommended to the Board that credit be given to all candidates, including Petitioner, for each item on the ocular pathology portion of the examination which was determined to be invalid. As a result of the Board's authorization, credit was given to all candidates for 22 percent of the examination. The ocular pathology portion of the examination had a higher error or adjustment rate than the other subparts of the examination which ranged from 2 percent to 15 percent. The points awarded by the Board on the ocular pathology portion of the exam to compensate for invalid test questions were awarded in a manner commensurate with accepted testing techniques for evaluating test questions. Petitioner's score on the ocular pathology portion of the exam was adjusted from 46 to 58 points following the Board's first authorized analysis. Following a second regrading that the Board authorized to compensate for questions eliminated as a result of examinee review, the Petitioner's score on the ocular pathology portion was again adjusted upward from 58 to 69 points. The method utilized by the Department in reviewing examinations authorizes credit for questionable exam items. Such an approach to testing results in scores which are adjusted upward as test items are eliminated. This is a liberal approach to testing philosophy which effectively resolves doubts regarding a correct answer in favor of the examinee. Petitioner completed the ocular pathology portion of the examination but did not have sufficient time to review all his responses before turning in the test. Petitioner did not, however, participate in a review of his examination when given an opportunity to do so by the Department within thirty (30) days after the announcement of test scores.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying the Petitioner's request that his score pathology portion of the July, 1980 optometry examination be adjusted to reflect a passing grade. DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981. COPIES FURNISHED: Robert D. Newell, Esquire OERTEL AND LARAMORE, P.A. 646 Lewis State Bank Building Tallahassee, Florida 32302 Robert E. McGuire, O.D. 2530 Stern Drive Atlantic Beach, Florida 32233
The Issue The issue for consideration herein was whether Petitioner was properly graded for her performance of the Procedure in the Binocular Indirect Ophthalmoscopic testing on the Florida Optometry Examination conducted in Miami, Florida, on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Board of Optometry, (Board), was the state agency in Florida responsible for the licensing of optometrists in this state. Petitioner, Rhonda L. Wicks, graduated from the Southern California College of Optometry in 1985. She was licensed as a registered optometrist in California in 1985 and was thereafter commissioned in the United States Air Force in the grade of Captain. She was assigned as an optometrist at the MacDill Air Force Base Hospital in Tampa immediately thereafter, and in 1987, was made the Chief of the optometry service at that hospital, a position she still holds. In that capacity, she supervises several other optometrists and, in addition, sees approximately 20 patients per day for a total of over 14,000 patients since assuming that position. Approximately 10% of these involve the administration of the binocular indirect ophthalmoscopic, (BIO), procedure. In addition to passing the licensure examination in California, while still in school she passed the IAB, an internationally recognized certification examination, and, in addition, passed her national boards. Dr. Wicks took the 1988 Florida optometry examination given on September 16 - 18, 1988 at the Baskin-Palmer Eye Institute in Miami, Florida. When graded, she was found to have passed all portions of the examination except the clinical portion for which, on protest, she received an additional 2.5 points which raised her score to 73.5 out of a possible 100. The passing grade in this portion of the exam is 80. Primarily, her difficulties were in the area of the BIO procedure, worth 15 points, for which she was awarded only 2.5 points. She also experienced difficulty on the retinoscopy section for which she received 0 out of 8 possible points, but does not contest her score on that portion. She contests only the evaluation and grading of the BIO procedure. Dr. Wicks was graded by two examiners on the BIO procedure, each of whom gave her a "yes" or "no" grade on each of three sections. One examiner gave her three "no's" for a 0 score. The other examiner gave her two "no's" and a "yes". As a result, she was awarded one half credit or 2.5 points for the "yes" score given her by one examiner on one third of the procedure. In preparing for the written portions of the examination, she studied the materials furnished by the Department. She also considers her taking of the IAB as preparation for this examination. As for the clinical section, she felt comfortable using the practice she has carried on for three years as appropriate preparation except for 2 procedures for which she sought and received help from two ophthalmologists on staff at the MacDill Hospital. Prior to taking the examination, she read that portion of the study guide dealing with patient criteria, and was also familiar with that portion dealing with requirements of the BIO process. To her recollection, the study guide did not mention the required position of the patient during the accomplishment of the procedures but merely outlined what the candidate would be required to demonstrate. Examination of the study guide confirms Petitioner's understanding. The Department relies on that portion of the guide found on page 7 thereof which refers to the criteria for the patient supplied by the candidate and indicates that the patient must be willing to undergo a dilation procedure in the reclined position. The Board contends this indicates "advance notice" of the requirement that the BIO procedure be accomplished in the reclined position. This does not necessarily follow, however. The morning of the examination, one of the examiners briefed the candidates on the layout of the room in which the procedures would be done and the conditions under which they would be accomplished. It was at this time that Petitioner got her first notification that the BIO procedure would be done with the patient in the reclined position. It was also at this time, during the briefing, that the candidates were advised that they were not to be permitted to move the chair in which the patient was placed. At this point another candidate, who is, as is Petitioner, short of stature, asked if the candidate could sit the patient up in the chair and this candidate was advised that she could not. Under these conditions Petitioner attempted to perform the BIO procedure. When she found she could not do it because she was not tall enough, she notified her examiners of the problem and was told by one to "do the best you can." Her complaint of inability to accomplish the procedure because of the physical problem of her height was reiterated 3 times, and on each occasion, she received the same response. In the BIO procedure, the doctor examines the patient's eye through a lens in an attempt to get a view of the patient's retina. Petitioner contends that in order to properly and accurately accomplish the procedure, the doctor has to be 23 inches away from the patient's eye. This 23 inches is made up of the following segments: the distance between the instrument lens and the patient's eye must be approximately 2 inches; the lens in the instrument has a thickness of 1 inch; and the examiner should be approximately 20 inches away from the lens. Petitioner demonstrated through a diagram that the chair in which her patient was reclined placed the back of his head 30 inches from the floor. Added to that is the average 7 inch thickness of a human head from the back to the front of the eyeball. When that 37 inches is added to the 23 inches described, (patient's eye to examiner's eye), a total of 60 inches, (5 feet), is shown. To accomplish the procedure, the candidate must bend over so that the plane of his or her face is parallel to the floor in order to allow the candidate to look, with the instrument used, down through the lens into the patient's eye. According to Petitioner, when she places her head in the appropriate position to look down through the instrument, into her patient's eye, her eye is 53 inches from the floor. This is 7 inches below where it should be in order to properly accomplish the procedure with the patient reclined on the chair as it existed the day of this examination. Petitioner is 62 inches tall when standing straight, and 53 inches is insufficient to allow her to properly accomplish the procedure. She was not allowed either to move the chair or do the procedure with the patient sitting up. The day of the examination, Petitioner tried to accomplish the procedure by standing on her toes, by leaning back, and by taking other measures in an attempt to give her an appropriate view of the patient's eye. Nothing seemed to work. It was at this time she advised the two examiners observing her that she was physically unable to accomplish the procedure due to the height situation and was told, "do the best you can." Candidates are advised, prior to the examination, that if they experience difficulty of any nature during the examination, they are to bring it to the immediate attention of the examiner, and if that does not result in correction of the problem, to fill out and submit a comment card at the end of the examination whereon the candidate outlines the nature of the problem experienced. In this case, Petitioner did not fill in the comment card because she did not think it applied to her situation. She was of the opinion the card was to be filled out only when equipment did not work or the examination, for some other reason that could be corrected, was not appropriate. Here, the equipment worked as it should and the test was appropriate. In addition, the examiners also did what they were supposed to do. Gregory M. Smith served as a patient for Dr. DeFrank at the same examination taken by the Petitioner. During the course of Dr. DeFrank's testing, she performed the BIO examination on him just as Petitioner attempted to do with her patient. However, Dr. DeFrank, also a short woman, was allowed to have Mr. Smith sit up for her performance of the procedure and as a result, was able to accomplish it properly. Mr. Smith had been examined by the examiners prior to Dr. DeFrank's performance of the procedure, and one of the examiners performed the BIO procedure on him while he was in a reclined positions. However, before Dr. DeFrank entered the examination room with the other examiner, Smith was returned to the upright position and Dr. DeFrank did her procedure with him in that position. Dr. James J. Murtagh, an ophthalmologist and Chief of the Ophthalmology service at the MacDill hospital, and Petitioner's supervisor, has observed her in the performance of her duties for a period of two years. He is satisfied she is fully competent to do the procedure in question and, in fact, does it on a daily basis. In his expert opinion, there is no requirement that the BIO be accomplished with the patient in a reclined position. In fact, he feels it is best that the procedure be accomplished with the patient in a position most comfortable and convenient to both the patient and the doctor. The position of the patient, reclined or erect, has no bearing on the doctor's ability to do the procedure properly from an optometric or ophthalmological standpoint. The purpose of the BIO procedure is to examine the back side of the retina. It is necessary to extend the view out to the sides and, admittedly, this can best be done with the patient reclined. He is satisfied, however, that the major portion of the back of the eye, that portion to be observed through this procedure, can be seen easily in either the reclined or the upright position. Dr. Den Beste, Respondent's expert, is of the opinion that because of the nature of the area sought to be examined, it is best that the patient be reclined so that the doctor can, without discomfort, easily move to examine all portions of the retina from the top to the bottom and from side to side. Which procedure is better, however, is of little consequence here since the issue is not which procedure is better but whether the procedure legitimately can be accomplished in an upright position. In this regard, Dr. Murtagh's opinion that it can be is not necessarily inconsistent with Dr. Den Beste's opinion that it is better done in a reclining position. In its answers to Petitioner's Request For Admissions, the Respondent admitted that the BIO procedure can be accomplished on a patient seated in an upright position. The statute does not require that the supine position be utilized for an examination but the Board requires it in its examination because: (1) it is felt the supine position is better for examination purposes, and (2) it is easier for the examiners to observe the candidate's performance of the procedure. On the other hand, a representative of the manufacturer of the instrument utilized by the optometrist in performing the BIO procedure indicated that the instrument is best used in an upright position. Nonetheless, Dr. Den Beste disagrees with this when the instrument is to be used in a qualification examination situation. Under the physical conditions confronted by the Petitioner at the examination site, however, Dr. Murtagh is convinced it would be impossible for her to have accomplished the procedure with the patient reclined. Both Dr. Den Beste and Dr. Loewe, the Department's examination specialist, indicate that when Petitioner experienced her difficulty, she should have immediately pointed out her problem and called for help. They contend that Petitioner failed to do this. The evidence clearly shows, however, that after attempting the procedure, Petitioner, on at least three occasions, advised her examiners she was unable to accomplish the procedure because of the height and distance constraints, and was advised to do the best she could. The purpose of the comment card is to afford the examiners the opportunity to look into a problem situation, take corrective action on the spot if appropriate and possible, and to take future corrective action to prevent a recurrence of the problem at some later time. If the problem complained of is merely related to candidate technique, the examiners can do nothing about it. In the instant case, however, both Den Beste and Loewe feel the Petitioner should have filled out the form when she experienced the difficulty now reported and had she done so, something might have been done at that time. Both Den Beste and Loewe, however, indicate that to the best of their knowledge, the issue of the distance, as experienced by Petitioner here, has never been raised by any examinee in the past. At the hearing, Dr. Den Beste, while denying any prior knowledge of Petitioner's inability to perform the procedure because of her short stature, indicated that if someone did claim the procedure could not be accomplished because he or she was too short, there were some options open which included (1) lowering the chair, (2) adjusting the headset, or (3) pulling the patient's head into a different position so that the procedure could be accomplished. To now state that adjustments to the chair would have been acceptable provides no benefit to Petitioner here who, the evidence does not controvert, was told at the examination she was not allowed to adjust the chair at any time. According to Dr. Loewe, the test as it is configured is not designed to trick candidates. Tests are designed with the hope of fairly testing the skills of all candidates. If it appears there is a problem area, then test officials try to correct it or warn of it in the study guide. Dr. Loewe's inquiry into the examination conditions subsequent to Petitioner's examination revealed that there were several candidates who asked if it were necessary to do the BIO procedure with the patient in a supine position. She also admitted that filling out a comment card is not a prerequisite to filing a formal challenge to the grading or scoring. Dr. Loewe further indicated that if a legitimate reason existed to allow a candidate to perform the BIO procedure on a patient seated in an upright position because of some physical handicap, such as the candidate being confined to a wheel chair, they would make arrangements to accommodate the candidate. There appears to be little difference to be shown, from a practical standpoint, between someone who cannot examine a patient in a supine position because of their confinement to a wheel chair and one who cannot perform the examination appropriately because of his or her physical shortness and the resultant inability to get in a proper position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner be retested on the BIO procedure only, without payment of additional fee, either at a special examination held for that purpose or at the next regularly schedule optometry examination administered by Respondent Board of Optometry. RECOMMENDED this 23rd day of October, 1989 in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1912 The following constitutes my specific rulings pursuant to S 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. 8. - 12. Accepted and incorporated herein. 13. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. - 29. Accepted and incorporated herein. 30. & 31. Accepted and incorporated herein. 32. & 33. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 40. Accepted and incorporated herein. 41. - 46. Accepted and incorporated herein. Accepted. - 51. Accepted and incorporated herein. Accepted and incorporated herein. & 54. Accepted. Accepted and incorporated herein. Accepted. - 59. Accepted and incorporated herein. 60. - 62. Accepted. 63. & 64. Accepted and incorporated herein. 65. - 67. Accepted. 68. - 70. Accepted and incorporated herein. For the Respondent: 1. & 2. Accepted and incorporated herein. Not a Finding of Fact but a statement of the Petitioner's position. & 5. Accepted and incorporated herein. 6. & 7. Not Findings of Fact but a restatement of Petitioner's testimony. Accurate. Accepted and incorporated herein. Accepted as an accurate summary of the evidence on that point. Accepted that the problem could have been corrected. Accepted. COPIES FURNISHED: Richard M. Hanchett, Esquire Trenham, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. 2700 Barnett Plaza Post Office Box 1102 Tampa, Florida 33601 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Guilford Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether Respondent's license as an optometrist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Optometry, was responsible for the licensing of optometrists and the regulation of the practice of optometry in this state. Respondent was licensed as an optometrist in Florida, practicing under license number OP0001451, originally issued on September 21, 1978. Some time prior to or during 1987, Respondent, Dr. Brian L. Weber, dissatisfied with what he found to be the practice of large optical dispensers with regard to pressuring optometrists to prescribe lenses, decided to open a facility where patients needing glasses could receive an eye examination from a licensed optometrist and also, if the patient so desired, obtain the eye wear prescribed. Consistent with what he perceived to be the rules of the Board of Optometry at that time, Dr. Weber entered into a business venture with Mr. Record, a licensed optician, through which a patient could do just that. In 1990, Dr. Weber and Mr. Record changed the name of the business to 29/49 Optical, Inc., and as of March 2, 1990, operated five separate stores under that name. Dr. Weber and Mr. Record incorporated the company within which each ultimately owned 50 percent of the stock of the corporation. Dr. Weber provided the funds to start the business, and Mr. Record, the "sweat equity." Mr. Record was made president of the company because he had the experience in opticianry and was responsible for operations. Weber was the "money man," and provided the overall business goals and strategy. Once the corporation was established and the initial filing was completed, Mr. Record was responsible for recurring filings as a matter of course. The firm, 29/49 Optical, Inc., was in the business of providing optician services. The leases for the stores were taken out in the name of the company which, in essence, provided a "turn-key" office to a licensed optometrist who was one of those individuals associated with Respondent in the optometry practice known as Brian L. Weber and Associates. Each of the optometrists in the association was an independent contractor, associated in practice with Respondent. None of them were employees of 29/49 Optical, Inc. In each of the offices of 29/49 Optical, Inc., was a display area where glass frames were displayed and fitted, a waiting room used both by customers of the optical shop and patients of the resident optometrist, a storage room, and, for the exclusive use of an optometrist, an examining room equipped with those items and supplies necessary for the accomplishment of eye examinations. As was the custom in the profession at the time, this office, owned or leased by 29/49 Optical, Inc., was furnished to the optometrist at little or no cost. Though it was hoped that the optometry patients would choose to have their prescriptions for glasses or contact lenses filled at 29/49 Optical, Inc., they were under no obligation to do so, and many did not. Patients seen by an optometrist in the 29/49 Optical, Inc. offices were billed by the optometrist for the optometry services and by the optical company for the cost of any glasses or contact lenses purchased. The two charges were paid separately, the payments placed in separate accounts. Payments for eye examinations by an optometrist were deposited to the account of Brian L. Weber, optometrist. Payments for glasses or lenses were deposited to the accounts of 29/49 Optical, Inc. The funds were neither mixed nor co-mingled, and funds placed in the account of Brian L. Weber were not used to pay the expenses of the 29/49 Optical, Inc. stores. Each optometrist maintained his or her own patient records which were stored in a filing cabinet maintained for that purpose separate and apart from the files relating to the operation of the 29/49 Optical, Inc. stores. Only the optometrists made entries to those records. Since the optometrists who manned the offices in the 29/49 Optical, Inc., stores were independent contractors, within basic guidelines as to routine procedures and office hours, they were free to work such hours as they chose and to charge what they believed to be appropriate fees for other than routine procedures. They were paid with funds drawn from the account of Brian L. Weber, into which the patient fees for optometry services were deposited. In addition to the associates who practiced at the individual shops, Dr. Weber also practiced at each and all of the shops periodically. Mr. Record was paid from the checking account maintained by 29/49 Optical, Inc., on which account either Record or the Respondent could write checks. Dr. Weber is quick to admit that the advertisement for 29/49 Optical, Inc., which appeared in the March 1, 1990, edition of the St. Petersburg Times is a poorly worded advertisement. So much of the advertisement which implies a total price to be paid to 29/49 which includes examination and glasses is admittedly inappropriate, and when he saw the proof prior to publication, he claims to have made appropriate changes which would have corrected the deficiencies. However, the corrections dictated by Respondent were not made, and the inappropriate advertisement was published. His immediate complaint to the newspaper after the first publication date resulted in an immediate correction. Respondent claims that when the disciplinary action was initiated against him in 1992, he immediately contacted the newspaper and requested a letter which would clarify the situation. He did not tell the paper what to say, and the subsequent letter from the paper relates to a failure to have his name appear in the March 1, 1990, advertisement. This is not the defect in the advertisement of which the Board complains. Dr. Liane, a Board certified optometric physician, a former Chairman of the Board of Optometry and now an expert for and consultant to the Board, reviewed the case file in this matter for the Board, along with the transcripts of other cases relating to Dr. Weber. None of the other matters was based on disciplinary action. To his recollection, the Board's rule on corporate practice was promulgated in 1986, at the time he was a member of the Board. At that time, the Board conducted numerous workshops around the state to advice practitioners of the standard of practice in that regard. Dr. Liane was also on the Board's legislative committee when Chapter 463, Florida Statutes, was enacted. The Board of Optometry was concerned with the protection of the public from the danger of allowing opticians or unlicensed entities to have input into whether lenses were needed. The Board, and the legislature, wanted to allow optometrists to practice with other licensed health care practitioners, but not with unlicensed opticians. After the legislation was passed, the Board promulgated its Rule 21O-3.008, which outlines factors which must be shown in order to prove corporate practice. One of the prohibitions in the rule relates to any practice or pronouncement which "implies" that the corporate or unlicensed entity is providing professional services. In the instant case, Dr. Liane is of the opinion that the original advertisement in question implies that 29/49 Optical, Inc., is offering a complete eye examination. As was noted previously, Respondent agrees, and it is so found. Having considered all the evidence available to him, including the advertisement of March 2, 1990, and the assumption of the lease arrangements existing prior and up to 1990, Dr. Liane concluded that Respondent was involved in an unauthorized corporate practice. While a side-by side practice between optometrists and opticians is common and approved, it may not be within a corporate practice by the same individuals who are in business together.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Optometry enter a Final Order dismissing Counts I and II of the Administrative Complaint; finding him guilty of Count III thereof and imposing an administrative fine of $250.00. DONE AND ENTERED this 3rd day of November, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1997. COPIES FURNISHED: Alexandria E. Walters, Esquire William C. Childers, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Angela T. Hall Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Grover Freeman, Esquire 201 East Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Eric G. Walker Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pete Peterson General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is entitled to credit for her response to Question 36 or for her response to Question 41 of the X-ray interpretation portion of the Chiropractic Licensure Examination administered in November 2000.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a Final Order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the X-ray portion. The X-ray portion consists of 60 multiple-choice questions, with each question having four possible answers. A chiropractic or pathology film is displayed for each question. The candidates are instructed to select from four possible answers the best answer to the written question pertaining to the accompanying film. The candidates are given 90 seconds to answer each question. The X-ray portion of the examination tests minimal competency and does not provide the candidates a certification or specialty in the field of radiology. Petitioner received a failing score on the X-ray portion of the examination. A candidate must correctly answer 45 of the 60 scores to pass. Petitioner received credit for correctly answering 44 questions. If Petitioner is awarded credit for correctly answering Question 36 or Question 41, she will be entitled to a passing score on the X-ray portion of the examination as well as the over-all examination. The written portion of Question 36 described certain symptoms being experienced by a 60-year-old female. The X-ray depicted a patient whose trachea was deviated to the left of its usual position. Candidates were asked to select the answer that best responded to the question "what is your impression of the radiograph." The parties agree that two of the four answers were incorrect. The other two answers will be referred to as Answer A and Answer B. Answer A, the answer Respondent considered the correct answer, was that the radiograph showed the trachea was deviated to the left of its usual position. Answer B, the answer selected by Petitioner, is a possible reason the trachea was deviated to the left. Petitioner agrees that the radiograph showed that the trachea was deviated to the left, but argues that because the question asks for the candidate's impression, she should attempt to answer why the body part was deviated. 2/ The written portion of the question and the radiograph do not provide sufficient information for a candidate to determine that Answer B was the reason the trachea was deviated to the left. Additional testing would be required before a practitioner could reach a correct diagnosis for the cause of the deviation. Answer A was the best answer to Question 36. Petitioner should not be awarded credit for her answer to Question 36 because her answer was not the best answer to the question. The written portion of Question 41 advised that the candidate's examination of a patient did not find a reason for the patient's mild back pain. The candidate was required to select the best answer to the question "[w]hat does the X-ray disclose." The greater weight of the credible evidence established that the only correct answer was the answer selected by Respondent as being the correct answer. Petitioner concedes that the X-ray disclosed what Respondent asserted was the correct answer, but chose another answer because Respondent's answer would not account for the patient's pain. Petitioner chose the answer that the X-ray disclosed a bilateral fracture. There was a dispute among the experts as to whether the X-ray contained jagged lines, which would indicate a fracture. Respondent's expert testified that there were no significant jagged areas. Dr. Stern testified that there may be some jagged areas, but that further testing would be necessary to reveal a fracture. Dr. Richard Santo testified that there were jagged areas that disclosed a severe fracture. The conflicting evidence is resolved by finding that the X-ray did not clearly disclose an area that had been fractured and did not disclose a bilateral fracture. Petitioner should not be awarded credit for her answer to Question 41 because her answer was not the best answer to the question. Respondent's psychometrician evaluated the responses to Question 36 and Question 41, and found that both questions performed at an acceptable level. For Question 36, 77% of the candidates who took the examination with Petitioner chose Respondent's correct answer, while 17% of the candidates choose Petitioner's answer. For Question 41, 74% of the candidates chose Respondent's answer, and 24% chose Petitioner's answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for her responses to Questions 36 and 41 of the X-ray portion of the Chiropractic Licensure Examination administered in November 2000. DONE AND ENTERED this 11th day of October, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2001.
The Issue The issues in this case are: (1) whether the Petitioner should be given a passing grade on the podriatry examination he is challenging; and (2), in light of his failure to appear at the final hearing, whether the Department should assess attorney fees, costs and court costs under Section 455.229(3), Fla. Stat. (1993).
Findings Of Fact The Petitioner took the podiatry licensure examination administered by the Department on August 20, 1993, and received a failing grade. The Petitioner had due notice of the final hearing scheduled in this matter on June 14, 1994, by virtue of the Notice of Hearing issued on March 7, 1994. It also is clear that the Petitioner had actual notice of the scheduled final hearing. Counsel for the Department was in telephone communication with the Petitioner in the weeks before the scheduled final hearing and discussed the scheduled final hearing with the Petitioner. The Petitioner requested an opportunity to review the examination (for the second time) at 11:00 a.m. on the day of the final hearing (which was scheduled to begin at 1:00 p.m.) Counsel for the Department acceded to the Petitioner's request and, together with the Department's psychometrician, appeared at the final hearing site at 11:00 a.m. The Petitioner did not appear either at 11:00 a.m. or at 1:00 p.m. and had not appeared by the time the final hearing was concluded at approximately 1:33 p.m. The Petitioner gave no notice that he would not appear and has given no explanation why he did not appear. The Petitioner also has not responded to the Department's Motion for Recommended Order that Petitioner Pay Respondent's Reasonable Attorney's Fees, Costs, and Court Costs which was served on June 21, and filed on June 23, 1994. The Department expended $651.04 for fees and costs related to its attorney's preparation for, travel to and from, and participation in the final hearing. The Department expended $826.14 for fees and costs related to its psychometrician's preparation for, travel to and from, and participation in the final hearing. The Department expended $239.20 for fees and costs related to its podiatry expert's preparation for, travel to and from, and participation in the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a final order denying the Petitioner's examination challenge and assessing against the Petitioner attorney fees, costs, and court costs in the amount of $1,716.38. RECOMMENDED this 15th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1994. COPIES FURNISHED: Gerald J. Gambale 9713 Morehead Lane Port Richey, Florida 34668 Vytas J. Urba, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Diane Orcutt, Executive Director Board of Podiatric Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At issue in this proceeding is whether Petitioner is entitled to a passing score on the Physical Diagnosis portion of the May 2001 chiropractic licensure examination.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a final order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the physical diagnosis portion. In May 2001, Petitioner sat only for the physical diagnosis portion, having passed all other portions in a prior examination. The physical diagnosis section is a practical examination that tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical case history. The examination generally presents a case history, including the patient's complaint and vital signs, then asks a series of questions designed to lead to a diagnosis. The examination also asks some separate, stand-alone questions designed to elicit knowledge of specific techniques, such as how to obtain particular diagnostic imaging views. The physical diagnosis section of the May 2001 examination consisted of 26 tasks, for which varying numbers of points were awarded for correct answers. Two examiners evaluated the candidate's performance and independently awarded scores for each task. Petitioner's overall score was the average of the two examiners' scores. The examiners who scored Petitioner's performance on the physical diagnosis section met the criteria for selection as examiners. An examiner must have been licensed in Florida as a chiropractor for at least five years, must not have had a chiropractic or other health care license suspended, revoked, or otherwise acted against, and must not be currently under investigation by the Department or any other state or federal agency. Rule 64B2-11.007(1), Florida Administrative Code. The Department requires each examiner to attend a training session prior to administration of the examination. The training is designed to ensure that scoring standards are uniform and objective among the various examiners. The examiners who scored Petitioner's performance on the physical diagnosis section had successfully completed the training session. The first series of questions on the physical diagnosis section dealt with a female patient in her early thirties whose main complaint was constant, severe pain in her left calf. The patient's temperature was slightly elevated at 99.8ºF, and she had swelling in her left ankle. Ultimately, the candidate was expected to arrive at a diagnosis of thrombophlebitis, inflammation of a vein in the left calf. Tasks 1 and 2, for which Petitioner received full credit, required the candidate to obtain a case history from the patient and to discuss the physical examination the candidate would perform on the patient. Task 3 asked the candidate to identify what laboratory tests or diagnostic procedures, if any, should be used to assist in arriving at a diagnosis. Task 4 asked the candidate to state his reasoning for choosing these tests. The correct answer to Task 3 was that the candidate should order either an erythrocyte sedimentation rate (ESR) test or a C-reactive protein (CRP) test. The correct answer to Task 4 was that the ESR and CRP assess the inflammatory processes that the candidate should suspect in the patient's left calf. On Task 3, Petitioner responded that he would order a complete blood count (CBC) and a urinalysis. On Task 4, Petitioner responded that he chose these tests because the patient's increased temperature indicated that there might be an infection present, and that a CBC and urinalysis are useful tests for infection. Task 3 was worth a maximum of four points. Task 4 was worth a maximum of three points. Each examiner independently awarded Petitioner zero points for Task 3 and for Task 4. The results of the physical examination, particularly "Homan's sign," or pain in the calf with dorsiflexion of the foot, caused Petitioner to suspect thrombophlebitis. Petitioner knew of no laboratory test that returns a specific positive result for thrombophlebitis. He introduced textbook references to establish that the ESR and CRP tests are not specific to diagnosing thrombophlebitis. Petitioner did not believe that Tasks 3 and 4 gave him the option of ordering no laboratory tests at all, so he chose the most common tests that would at least confirm that no infection was present. Dr. Densmore, Respondent's expert, agreed with Petitioner that a positive Homan's sign is specific for diagnosing thrombophlebitis. However, he disagreed with Petitioner's choice of ordering a CBC and urinalysis. Dr. Densmore admitted that many doctors order these tests as a general standard for all patients, but stated that in this case they would do nothing to narrow the diagnosis. The CBC and urinalysis are useful for identifying infections; thrombophlebitis is an inflammatory disease, not an infectious disease. Dr. Densmore conceded that ESR and CRP are not specific to thrombophlebitis. However, Dr. Densmore believed that Petitioner should have chosen ESR or CRP because inflammation is present in 90 percent of thrombophlebitis cases and therefore those tests would assist the practitioner in arriving at a diagnosis. Petitioner should not be awarded credit for his answer to Tasks 3 and 4 because his answers were not the best answers to those questions. The correct answers set forth by the Department were supported by the textbook authorities and expert testimony introduced at the hearing. Task 5 dealt with the same patient discussed above, and asked the candidate to indicate which, if any, diagnostic imaging procedures should be performed. The correct answer, worth four points, was "none" or "A-P & lateral leg." "A-P" stands for anteroposterior, or from the front to the back. On the videotape of the examination, Petitioner appeared confused by the question. He said that he would x-ray the "lower leg." One of the examiners asked him to be more specific as to which views he would take. Petitioner stated that he would x-ray the ankle because of the swelling there. Petitioner then mentioned the swelling in the calf, and stated that he would x-ray the "femur." The femur is the thigh bone, extending from the pelvis to the knee. An x-ray of the femur obviously would reveal nothing about the condition of the patient's calf. The examiner, likely sensing Petitioner's confusion, advised Petitioner to read the question again. Petitioner read the question aloud, then reiterated that he would take x-rays of the patient's ankle and femur. Task 5 was worth a maximum of four points. Each examiner independently awarded Petitioner zero points for Task 5. Petitioner contended that he should have received partial credit for his initial response that he would x-ray the lower leg. However, Task 5 required the candidate to identify the specific views of the x-rays he would take. When the examiner asked him to name the specific views, Petitioner identified the femur. The context of the discussion makes it evident that Petitioner must have been thinking of the fibula or the tibia, i.e., the bones of the lower leg, when he repeatedly named the femur in connection with the patient's calf pain. However, the examiners had no choice but to grade Petitioner on the answer he actually gave. Petitioner should not be awarded any points for his answer to Task 5. Task 18 was a stand-alone question dealing with x- rays. The challenged portion of Task 18, worth two points, asked the candidate what he would do to obtain a quality lumbar spine x-ray of a severely obese patient if his office was equipped with a 300/125 x-ray machine. One of the examiners specified that this patient weighs around 500 pounds. The correct answer was that the candidate would use a higher capacity x-ray machine or refer the patient to a facility that has one. Petitioner's answer was that he would collimate close to the area of injury, decrease milliampere seconds (mAs), increase kilovolt peak (kVp) to increase penetration, and use a rare earth screen. Again, Petitioner appeared to be confused by the question. At the hearing, he testified that Task 18 did not ask what specific view he would take of the obese patient, whether of the arm, the chest, or the skull. Petitioner misread the question. Task 18 clearly states that the required view is of the patient's lumbar spine. Petitioner's misreading of the question led him to treat Task 18 as an x-ray physics question, hence his response, intended to demonstrate how he would maximize the clarity of an x-ray using the equipment at hand. Dr. Densmore stated that an x-ray of a patient this size taken on this equipment would simply be a white picture because of the amount of fatty tissue involved. With a patient of this size, the kVp would have to be increased so much that the practitioner would over-radiate the patient. The practitioner would have no choice but to send the patient out for an x-ray on a higher capacity machine. The examiners independently awarded Petitioner zero points for his response to this portion of Task 18. Their scoring was correct, supported by the textbook authorities and expert testimony introduced at the hearing. Petitioner alleged that the Candidate Information Booklet (CIB) provided him by the Department did not adequately prepare him for format changes that occurred since his first sitting for the examination. Petitioner compared the CIB for the May 2001 examination to that for the November 2001 examination. He found that the detailed sample questions in the November 2001 CIB more closely reflected the examination he took in May 2001, and contended that the May 2001 CIB was outdated at the time it was distributed. All candidates for the May 2001 examination received the same Candidate Information Booklet that Petitioner received. Respondent's psychometrician, Dr. Linda Dean, testified that the passing rate for the May 2001 examination was in the range of 70 percent, consistent with other administrations of the examination. Petitioner's allegation concerning the adequacy of the CIB is not supported by the evidence. Petitioner also alleged that he was placed at a disadvantage by the fact that the examiners appeared to know that he was not taking the examination for the first time. Both Dr. Dean, the psychometrician assigned to the chiropractic licensure examination, and Dr. Densmore, who has served as an examiner many times, testified that examiners are not told the names or the status of the candidates. Dr. Dean testified that nothing is done to segregate first-time candidates from those who are retaking the examination, though an examiner may suspect that a candidate who is sitting for only one section of the examination is retaking that section. Even if Petitioner's allegation were credited, it would not change the result. Petitioner's responses to Tasks 3, 4, 5, and 18 were incorrect. The examiners properly awarded him zero points for those tasks. Their knowledge that he was retaking the physical diagnosis section had no bearing on Petitioner's incorrect responses to the challenged tasks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for his responses to Tasks 3, 4, 5, and 18 of the physical diagnosis portion of the chiropractic licensure examination administered in May 2001. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2002. COPIES FURNISHED: Ken Allan Niebrugge 4785 Barkley Circle No. 22 Fort Myers, Florida 33907 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
