Findings Of Fact On April 27, 1987, Petitioner filed an application for licensure by endorsement with the Board of Chiropractic (the Board.) On September 13, 1988, an Order stating the Board's intention to deny Petitioner's application for licensure by endorsement was filed by the Board. Petitioner timely filed a request for formal proceedings resulting in the above-styled matter being placed before the Division of Administrative Hearings. As a result of attempts to negotiate a settlement between Petitioner and Respondent, Petitioner filed a second application for licensure on or about June 19, 1989. At the July 27, 1989, meeting of the Board, Petitioner's second application for licensure by endorsement was denied. At the time of the final hearing, an Order had not yet been filed, but was to be forthcoming. The grounds for the Board's denial of Petitioner's April, 1987, application were that: Pennsylvania did not require applicants for licensure to receive a score of at least 75% on each portion of the state licensure exam; Pennsylvania did not require completion of continuing education as required of licensees in Florida; and Pennsylvania permitted licenses to be inactive for five years before said licenses became null and void. The Board of Chiropractic determined that the requirements for licensure in Pennsylvania are not substantially similar to, equivalent to, or more stringent than the current requirements of Chapter 460, Florida Statutes. At the hearing, counsel for Respondent waived the grounds regarding inactive licenses and completion of continuing education. The grounds for the Board's denial of Petitioner's June, 1989, application for licensure by endorsement are that the Pennsylvania requirements for licensure are not substantially similar to, equivalent to, or more stringent than the current requirements of Chapter 460, Florida Statutes. Specifically, the licensure examination administered by the Pennsylvania State Board of Chiropractic does not cover physical diagnosis and x-ray interpretation of chiropractic and pathology films, both of which are covered in the practical examination given by the Florida Board of Chiropractic as a requirement for licensure. Petitioner has taken and successfully completed parts I and II of the National Beard written examination. Petitioner has not taken or passed the National Board Written Clinical Competency Examination (which has been administered only since September, 1987). Petitioner has taken and successfully completed the Pennsylvania state licensure examination in chiropractic. Petitioner has been licensed as a chiropractor in Pennsylvania for 6 years. The pertinent Pennsylvania law in effect at the time that the Board considered Petitioner's applications for licensure by endorsement is set out in the following portions of Section 625.501 and Section 625.502, 63 Pennsylvania Statutes: s. 625.501 Applications for license Requirement for licensure.-- An applicant for a license under this act shall submit satisfactory proof to the board that the applicant meets all of the following: (1) Is 21 years of age or older. Is of good moral character. Has a high school diploma or its equivalent. Has completed two years of college or 60 credit hours. Has graduated from an approved college of chiropractic, with successful completion of not less than the minimum number of hours of classroom and laboratory instruction required by regulation of the board, which minimum shall be at least 4,000 hours. Has passed the examination required under this act. Has not been convicted of a felonious act prohibited by the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or of an offense under the laws of another juris- diction which if committed in this Commonwealth would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act, unless the applicant satisfies all of the following criteria: At least ten years have elapsed from the date of conviction. Satisfactorily demonstrates to the board that he has made sig- nificant progress in personal rehabilitation since the conviction such that licensure of the appli- cant should not be expected to create a substantial risk of harm to the health and safety of his patients or the public or a substantial risk of further criminal violations. Satisfies the qualifica- tions contained in this act. An applicant's statement on the application declaring the absence of a conviction shall be deemed satisfactory evidence of the absence of a conviction, unless the board has some evidence to the contrary. As used in this section the term "convicted" shall include a judgment, an admission of guilt or a plea of nolo contendere. * * * s. 625.502. Examination * * * Nature and content of examination.-- The examination shall be oral, practical and written, upon the principles and technique of chiropractic and shall include the following subjects: anatomy, physiology, histology, chemistry, pathology, physics, bacteriology, diagnosis, hygiene and sanitation, symptomatology, chiropractic analysis, x-ray, chiropractic principles and a practical demonstration of chiropractic technique. * * * Testing organization.-- All written, oral and practical examinations required under this section shall be prepared and administered by a qualified and approved professional testing organization in accordance with section 812.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as The Administrative Code of 1929, except that the oral and practical examinations shall not be subject to section 812.1 until such examinations are available from a testing organization. Score.-- A license shall be granted to an applicant who meets the requirements of this act and who achieves: An overall score of at least 75% on the entire examination; or An average score of at least 75% on the oral and practical examina- tion and a passing score on the written examination administered by the National Board of Chiro- practic Examiners as such passing score is determined by the national board. (Emphasis added.) The Pennsylvania Board of Chiropractic does not have any published rules regarding licensure of applicants in the State of Pennsylvania. The Petitioner did not prove that the Pennsylvania Board of Chiropractic examines applicants in the area of x-ray interpretation and physical diagnosis. The Petitioner did not prove that the Pennsylvania State Board of Chiropractic required applicants to re-take Pennsylvania's entire examination if any portion was failed. The Petitioner did not prove that the requirement of the Florida Board of Chiropractic that applicants for licensure be tested on ability to make physical diagnoses and to interpret chiropractic and pathology x-ray films is unreasonably restrictive or an extraordinary standard that deters qualified persons from entering chiropractic medicine in Florida or that it creates or maintains an economic condition that unreasonably restricts competition. The Petitioner did not prove that the requirement of the Florida Board of Chiropractic that applicants for licensure must re-take the entire licensure examination if any portion of the examination is failed is unreasonably restrictive or an extraordinary standard that deters qualified persons from entering chiropractic medicine in Florida or that it creates or maintains an economic condition that unreasonably restricts competition. The Petitioner did not prove either that it would be unreasonably restrictive or an extraordinary standard that deters qualified persons from entering chiropractic medicine in Florida or that it would create or maintain an economic condition that unreasonably restricts competition for the Florida Board of Chiropractic to decide that "the requirements for licensure in Pennsylvania are [not] substantially similar to, equivalent to, or more stringent than the current requirements of this chapter [460, Florida Statutes.]" Cf. Section 460.4065, Florida Statutes (1987 and Supp. 1988).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Chiropractic enter a final order denying the applications of the Petitioner, Norman R. Wiedow, D. C., for licensure by endorsement. DONE and RECOMMENDED this 11th day of October, 1989, in Tallahassee, Leon County, 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 11th day of October, 1989.
The Issue The issue in the case is whether Florida Administrative Code Rules 64B2-15.001(2)(e) and 64B2-15.001(2)(e)3. are invalid exercises of delegated legislative authority.
Findings Of Fact The Petitioner, a Florida-licensed chiropractor, is the subject of an Administrative Complaint filed against him by the Department of Health, Board of Chiropractic. The Administrative Complaint alleges that the Petitioner's letterhead identifies him as a "CICE (Certified Independent Chiropractic Examiner)" and that such designation requires a disclaimer as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e)3. The Administrative Complaint further alleges that the use of the designation constitutes a deceptive and misleading advertisement pursuant to Florida Administrative Code Rule 64B2- 15.001(2)(e). The Administrative Complaint was filed as the result of a complaint against the Petitioner filed by another chiropractor. The American Board of Independent Medical Examiners (ABIME) bestows the designation "CICE" on chiropractors. Some chiropractors such as the Petitioner obtain the designation by completing a 20-hour course over a weekend and then passing a test. A witness for the Respondent, Dr. Ronald Lee Harris, obtained the designation by working with the ABIME on reviewing examination questions used by the ABIME and has not completed any course of training related to the CICE designation. Another witness for the Respondent, Dr. Stanley Kaplan, testified that he was listed on the ABIME website with the CICE designation, but that he was unaware of the designation until the day prior to the hearing and has not completed any course of training related to the CICE designation. Florida Administrative Code Rule 64B2-15.001(2)(e) provides as follows: 64B2-15.001 Deceptive and Misleading Advertising Prohibited; Policy; Definition. (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it: * * * (e) Conveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, possess qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialities recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each speciality requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any specific chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that “The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine.” The Petitioner asserts that the phrase "other than a simple listing of earned professional post-doctoral or other professional achievements" as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e) is vague and fails to properly apprise a reasonable person as to what is prohibited. The Respondent presented the expert testimony of three witnesses during the hearing. Two of the three witnesses offered differing opinions as to what constitutes "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Stanley Kaplan testified that the phrase would permit a chiropractor to list only his chiropractic degree, but also indicated that a "simple listing" could include any items a chiropractor would include on a curriculum vita. Dr. Ronald Lee Harris testified that the phrase includes only the chiropractic degree and that listing "achievements" other than a degree and Diplomate status would require inclusion of the language related to the awarding entity's lack of affiliation with or recognition by the Florida Board of Chiropractic Medicine (the "disclaimer language"). Dr. Harris testified that the information set forth on a curriculum vita would not be properly included in "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Steven Willis testified that the phrase "simple listing of earned professional post-doctoral or other professional achievements" could be viewed as vague if considered outside the context of the remainder of the rule section, but asserted that the language set forth in subsection 3 of Florida Administrative Code Rule 64B2- 15.001(2)(e) clarified the phrase. Dr. Willis' testimony was credible and is accepted. Based on the testimony of Dr. Steven Willis and a contextual reading of the Rule, Florida Administrative Code Rule 64B2-15.001(2)(e) is not vague. The evidence establishes that the reference to "a simple listing of earned professional post-doctoral or other professional achievements" achievements in Florida Administrative Code Rule 64B2-15.001(2)(e) is limited by subsection 3 to require inclusion of a disclaimer in certain specific circumstances. Clearly a chiropractor can advertise the fact that he has received a doctorate in chiropractic medicine. A chiropractor may also advertise "earned professional post- doctoral or other professional achievements," whether or not the Board of Chiropractic Medicine has recognized the conferring entity. In the event the Board has not recognized the conferring entity, the advertising chiropractor must include the disclaimer language when the designation connotes "recognition as a specialist in any specific chiropractic or adjunctive procedure." The Petitioner further asserts that Florida Administrative Code Rule 64B2-15.001(2)(e)3. is vague because the phrase "specialist in any specific chiropractic or adjunctive procedure" is capable of multiple interpretations. The evidence establishes that, within the context of the Rule, "specialist in any specific chiropractic or adjunctive procedure" has sufficient meaning to convey who is being identified and is therefore not vague. The Rule requires only that where an advertising chiropractor represents himself to be a specialist in any chiropractic or adjunctive procedure by virtue of a "certification" from an unrecognized entity, the advertising must include the disclaimer language that the certification was received from a "private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine."
Findings Of Fact Petitioner, Sherman College of Straight Chiropractic, is a chiropractic college located in Spartanburg, South Carolina. It is accredited by the Southern Association of Colleges and Schools (SACS), a regional accreditation agency that is recognized by the U.S. Department of Education (USDOE) and the Council on Postsecondary Accreditation (COPA). Sherman College is also accredited by the Southern Conference of Straight Chiropractic Associations (SCASA), a professional accreditation agency which formerly was recognized by USDOE, but has never been recognized by COPA. Sheryll Indiaan is a graduate of Sherman College who applied for examination and licensure as a chiropractic physician under rule 21D- 11.001(2)(c), F.A.C. On April 7, 1992 the Board of Chiropractic (Respondent, or Board) issued an order of intent to deny the application. After denying Dr. Indiaan's request for formal administrative hearing and conducting an informal hearing on December 10, 1992, the Board issued its final order of denial on March 3, 1993. That order is on appeal to the First District Court of Appeal. The basis for the Board's denial of Dr. Indiaan's application as stated in its final order is: ...as a matter of law, Sherman did not meet the requirements of section 460.406(1)(c), F.S., because it had only regional or institutional accreditation by USDOE and COPA and it did not have professional or specialized accreditation by an agency recognized by USDOE and COPA. (Final Order entered March 3, 1993) Section 460.406(1)(c), F.S. was amended in 1990, as follows: 460.406 Licensure by examination.-- (1) Any person desiring to be licensed as a chiropractic physician shall apply to the department to take the licensure examination. * * * The department shall examine each applicant who the board certifies has: * * * (c) Submitted proof satisfactory to the department that he is a graduate of a chiropractic college accredited by, or has status with an agency or its successor which is recognized and approved by, the U.S. Office of education or and the Council on Postsecondary Accreditation or by the department, provided that the department applies the same standards used by the U.S. Office of Education which are applicable to this state when approving an agency. In evaluating any application for approval as an accrediting agency, the department shall give full recognition to the different philosophies of chiropractic prevailing in the profession and shall not reject any application solely because the accrediting agency is an adherent of one such philosophy as distinguished from another. No application for a license to practice chiropractic shall be denied solely because the applicant is a graduate of a chiropractic college that subscribes to one philosophy of chiropractic as distinguished from another. Any application for approval filed by any accrediting agency shall be acted upon by the department within 180 days of the filing of the application. The policy of the Board, as reflected in the Indiaan denial order, was first formulated and applied in 1991, after the Board was informed of the amendment to section 460.406, F.S. Six Sherman College graduates were told, the day before the March examination, that they would not be permitted to sit for the examination. After a follow-up emergency meeting, the Board voted to allow the students to take the examination, but that licensure would be withheld pending verification of Sherman College's accreditation. Prior to this action, Sherman College's graduates had been allowed to take the examination. On August 8, 1991, the Board considered argument and testimony and voted to adopt its policy of requiring both regional and professional accreditation. That policy is the basis for the rule amendments which are the subject of this proceeding. Rule 21D-11.001(2), F.A.C. provides requirements for application for licensure examination. The amendment, published on August 21, 1992, provides: 21D-11.001 Application for Licensure Examination. No change. No change. No change. No change. Are graduates of a chiropractic college accredited by, or has (sic) status with an agency, or its successor, which is recognized and approved by the United States Department of Education, and the Council on Postsecondary Accreditation or by the Department of Professional Regulation, provided that the Department of Professional Regulation applies the same standards used by the United States Department of Education which are applicable to the State of Florida when approving an agency. For the purpose of determining whether a chiropractic college is recognized and approved by the United States Department of Education and Council on Postsecondary Accreditation, the Board will require the applicant to show not only regional accreditation but also professional accreditation of the chiropractic college from which the applicant graduated. When no hearing was requested, the rule became effective. Notice of amendment to rule 21D-17.0045(1), F.A.C. was published on February 17, 1993. That rule addresses requirements for an individual to enter a chiropractic physician training program. The proposed amendment provides as follows: 21D-17.0045 Chiropractic Physician Candidate Training Program. (1) For the purpose of this rule, a "chiropractic physician candidate" is defined as an individual who has received his/her degree in chiropractic from a chiropractic college accredited by, or has status with which an agency or its successor which is recognized and approved by the U.S. Office of Education and the Council on Postsecondary Accreditation or by the department, provided that the department applies the same standards used by the U.S. Office of Accreditation which are applicable to this state when approving an agency. To demonstrate recognition and approval by the U.S. Office of Education and the Council on Postsecondary accreditation, a candidate must show that the chiropractic college from which the candidate received his/her degree, maintained both regional and professional accreditation. Sherman College has regional, but not professional accreditation, recognized by both USDOE and COPA. USDOE and COPA each recognize regional and professional accrediting agencies. Accreditation, both regional and professional, is a quality assurance process for educational institutions. While the focus of regional versus professional accreditation might be different, for a single purpose institution such as a Bible college, business school or chiropractic school, the difference is negligible. This testimony by Ralph G. Miller, executive vice president of the Council on Chiropractic Education (CCE), Respondent's expert on accreditation, is revealing: Q [by Ms. Daire] Is there a difference between regional or institutional accreditation from specialized or programmatic specialized accreditation? A [by Dr. Miller] You know, let me state a paradox in accreditation. The paradox is they are the same, but they are different. Q Will you please explain? A The form is the same, the process, and this is foisted by agreement of the associations upon the organizations and also by societal need as well as in these cases, U.S. DE and COPA. The differences come in the substantive aspects of what is required of the professional or programmatic areas versus the institutional or the regional. The institutional and regional are almost synonymous. In fact, they are. In some cases you'll have single-purpose institutions, such as Bible colleges, theology schools, some business, the association of private schools, business schools. These are single-purpose institutions not recognized by the regionals so they sort of dangle out there, and COPA has recognized them as a special unit, but U.S. DE does it a little differently. Q Okay. I don't know if you have answered my question, but is regional accreditation different from that of professional accreditation not with regard to process and procedure but with regard to the substance? A Yes, substance. Q The substance is different? A The substance is different? Q How is it different? A I think there is a societal aspect when one must consider when we review professional accreditation and that is, assurance of quality in the professional areas. The professional associations usually speak to this in a variety of ways, some call them functions; other call them standards; other call it essentials. The regionals have broadly stated standards which look at the institution as a whole to ascertain quality of academic ability, to assure that the institutions are doing what they are saying but not with the specificity as the professional association may, and I'm not saying that they are any less effective. Q Is there a need for both types of accreditation? A Yes, there is. Q What is the need that is met by institutional or regional accreditation? A It's assurance of the quality of education of our young people that go through the various disciplinary programs of history and sociology and possibly -- I can't think some of the sciences, chemistry, these various disciplines that need, society needs insurance. We don't have a governmental agency, if you would, such as the Ministry of Education that reviews these. So this has been a voluntary and very effective part of the post secondary accreditation over 100 to 125 years. * * * Q Is there a difference in site team visits professional and institutional, or are they the same? A In form they are the same, but in substance they can be very similar. Q Tell me about how they are the same in form. A They are the same in terms of the process, the kinds of -- the team effort, possibly the composite review of the standards and the process they have in ascertaining whether or not the institution is doing what it says it's doing. But the focus with the professional organizations comes in the area of the clinical component or that component dealing with the specific professional, profession need ahead. (transcript, pp 220-223) Louis W. Bender was qualified as an expert in accreditation matters on behalf of Petitioner. He is an accreditation consultant who has served on regional accreditation review teams and on a review team for SCASA, a professional accreditation agency. In his experience, the regional and professional agencies alike determine whether the programs being taught are preparing students for employment in their field. This includes review of all aspects of the educational program, from the course work to the clinical. A regional review team for a single purpose institution such as Sherman College would include individuals with knowledge of the curriculum in the chiropractic and the general education area. Members on the team would include individuals in the field being reviewed, like chiropractors. The SACS accreditation team that evaluated Sherman College included chiropractors and academicians from chiropractic colleges with professional accreditation. They evaluated the clinical program and curriculum leading up to the clinical program and commented on it in their review. The debate over relative merits of professional versus regional accreditation is mirrored in the debate over "straight" versus "mixer" philosophy of chiropractic. Simply described, the straight chiropractic professional concentrates on remedying subluxations (misalignments) of the spine as a means to good health. The "mixer" professional is involved in a wider range of health care services. Sherman College is a "straight" chiropractic institution, as reflected in its name, but it still recognizes that state licensing requirements throughout the country mandate the teaching of courses beyond straight practice; the college offers those courses to enable its students to pass state examinations and comply with state laws. Section 460.406(1)(c), F.S. expressly forbids the denial of an application for licensure or examination based on the preference of one philosophy over another. Petitioners contend that the rule amendments at issue violate that prohibition. The Council on Chiropractic Education (CCE) is the only chiropractic professional accrediting agency that is recognized by both USDOE and COPA. Thus, CCE accreditation is required for compliance with the rule amendments. Sherman College is not accredited by CCE but has applied for that accreditation. CCE does accredit programs that ascribe to the straight philosophy and has rejected accreditation to mixer institutions. Petitioners' claim of discrimination is not substantiated. Sherman College's claim that it is substantially affected by the rule amendments is supported by the weight of evidence. Before the Board voted to discontinue allowing Sherman college graduates to take the licensure examination the college had approximately 20 students from Florida enrolled. That enrollment has dropped now to a single student out of a total of approximately 132 students. There are approximately 83 alumni of Sherman College practicing in Florida who could otherwise refer students to the college. An institution whose students are barred from practice in a state loses reputation and suffers economic loss, not just in lost tuition and fees but also through loss of donations from alumni. Sherman College receives an average of $400 per year per graduate donations. Dr. Thomas Gelardi, the president and founder of Sherman College reasonably estimates that it loses several thousand dollars a month, primarily because of the rules' impact on its enrollment.
The Issue The issue is whether Carolynn Hendricks deserves additional credit for one or more content areas within the physical diagnosis practical section of the chiropractic examination administered in November 1989.
Findings Of Fact The Candidate made a timely challenge to the grade she received on the physical diagnosis/practical chiropractic licensure examination administered in November 1989. She received a score of 73.7%. The minimum passing score was 75%. The Candidate needs a .5 additional raw score points in order to obtain a minimal passing grade. If she receives any additional credit whatsoever from either examiner on any content area, she will obtain a minimal passing grade. The Candidate testified on her on behalf and also called Dr Loretta Bobo, D.C., as her witness. Dr. Albert Welberry, D.C., and David Paulson testified on behalf of the Respondent. The Candidate's petition challenged clinical judgment and neurology. Loretta Bobo, D.C., testified that she is currently licensed to practice chiropractic medicine in four separate states, including Florida. Dr. Bobo also holds a registered nurse's degree and teaches entrance clinical competency and exist clinical competency at Life Chiropractic College. Dr. Albert Welberry, D.C., was first licensed to practice chiropractic medicine in the State of Florida in 1961. He is currently a licensed Florida chiropractor. Dr. Welberry has been an examiner for the Florida Chiropractic Licensure Examination regularly since 1985. Both Drs. Bobo and Welberry are experts in chiropractic. The Department of Professional Regulation's expert, Dr. Albert Welberry, agreed with Petitioner's witness, Dr. Bobo, regarding the clinical judgment and neurologic content areas of the physical diagnosis exam. Regarding clinical judgment, Dr. Welberry testified that the question posed was out of place, was not correctly presented, and therefore candidate should have received a grade of 4. Dr. Welberry stated regarding the neurologic content area of the examination that the comment "disc lesion cervical cannot be upper motor neuron lesion" was a correct response since disc lesion cervical is a lower motor neuron lesion. Dr. Welberry opined that the Candidate should have had a grade 4 for this question. The Candidate proved by a preponderance of the evidence that she was deserving of significantly more than the .5 extra raw score points she needed for a minimally competent overall grade.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Petitioner receive a passing grade on the physical diagnosis practical section of the chiropractic examination. ENTERED this 26th day of February, 1991, in Tallahassee, Florida. STEPHEN F. DEAN 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 26th of February, 1991. COPIES FURNISHED: Carolynn Hendricks 206 Sope Creek Lane No. 102 Marietta, GA 30068 Vytas J. Urba, Esquire Department of Professional Regulation, Suite 60 Northwood Centre 1940 N. Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Chiropractic Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issue presented is whether or not Petitioner passed the 1987 chiropractic examination.
Findings Of Fact Petitioner, Mary Campilii, was a candidate for the May 14-17, 1987 chiropractic examination. Petitioner achieved an overall score of 72, as reflected by an upward revision to her original score of 66, on the practical section of the examination. Petitioner achieved a score of 76 on the Florida laws and rules section of the examination. A minimum score of 75 is required to pass both the practical and laws and rules sections of the examination. Petitioner has challenged the method of grading utilized by the Respondent contending that it is subjective as it elates to her, and did not properly reflect her level of achievement and knowledge to the questions that she answered on the May 1987 examination. Petitioner failed to demonstrate that she demonstrated expert or superior knowledge in her answers to any of the questions on the May 1987 exam that she now challenges. The oral practice examination for chiropractic certification is an independent, subjective grading of a candidate's responses to questions asked by two graders. The graders have all been licensed to practice chiropractic for more than five (5) years in Florida and have undergone several hours of standardization training prior to examining the candidates for license certification. One of the techniques required of graders is that they must write their comments if they give a candidate any score less than a 3, which is a passing grade. The grade range is from 1-4. A score of 3 is assigned when a candidate demonstrates minimum competency and a score of 4 is given when a candidate demonstrates superior or expert knowledge in the subject area tested. Petitioner presented Thomas P. Toja, an expert in grading chiropractic examinations for the Board, who offered his opinion that had the grading system utilized by Respondent been different, i.e. a system whereby a candidate could be accorded a score somewhere between a 3 and 4, when such candidate has demonstrated more than minimum competency but less than superior or expert knowledge in the subject area tested, a candidate, such as Petitioner, could have achieved an additional 3 points to her score of 72, and thereby received a passing score of 75. Petitioner has not, however challenged validity of the existing rule which permits Respondent to utilize the grading procedures applied in this case. Stephen Ordet, a licensed chiropractor in Florida for more than 7 years was received as an expert in the grading of chiropractic examinations in Florida, and was one of the graders during the May 1987 examination. Ordet's opinion, which is credited, was that Petitioner did not earn a score of 4 on any of the questions that she now challenges, and was correctly assigned a score of 3 for each of the responses she gave to questions she challenged. Thomas P. Hide, a chiropractor who specializes in the area of sports related injuries, was tendered and received as an expert in the area of reviewing x-rays and the grading of the chiropractic examination. Hide credibly testified and it is found that Petitioner was properly assigned a score of 3 on questions 8, 12, 20, 22, 28, 29, 30 and 33.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner failed to demonstrate that she met the minimum criteria to pass the challenged chiropractic examination and deny her request for licensure. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 8th day of November, 1988. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dr. Mary Camiplii 2921 Buckridge Trail Loxahatchee, Florida 33470 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether Florida Administrative Code Rule Subsections 64B2-15.001(2)(e), (i), and (l) constitute an invalid exercise of delegated legislative authority in that they exceed Respondent's rulemaking authority or enlarge, modify, or contravene the law the Rule implements.
Findings Of Fact Petitioner Michael John Badanek, D.C., is a duly licensed chiropractic physician in the State of Florida. Dr. Badanek actively practices in Ocala, Florida. Dr. Badanek has engaged in and is engaging in, the advertising of professional services to the public. Dr. Badanek is subject to the provisions of Chapter 460, Florida Statutes, and the rules promulgated by Respondent. Dr. Badanek's failure to adhere to the provisions of Chapter 460, Florida Statutes, and the rules promulgated thereunder, including the Challenged Rule Subsections, may result in the discipline of his professional license. Dr. Badanek has standing to challenge the Challenged Rule Subsections. The affected state agency is the Board of Chiropractic Medicine (hereinafter referred to as the "Board"), located at 4052 Bald Cypress Way, Tallahassee, Florida. The Board is charged by Chapter 460, Florida Statutes, with the duty of regulating the chiropractic profession in Florida. In carrying out that duty, the Board has adopted Florida Administrative Code Rule Chapter 64B2. At issue in this matter is the Challenged Rule Subsections of Florida Administrative Code Rule 64B2-15.001. The Challenged Rule Subsections provide the following: 64B2-15.001 Deceptive and MisleadingAdvertising Prohibited; Policy; Definition. . . . . (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading, if it: . . . . (e) Coveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, posses qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialties recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each specialty requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that "The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine." A chiropractor may use on letterhead or in advertising a reference to any honorary title or degree only if the letterhead or advertising also contains in the same print size or volume the statement "Honorary" or (Hon.) next to the title. . . . . (i) Contains any representation regarding a preferred area of practice or an area of practice in which the practitioner in fact specializes, which represents or implies that such specialized or preferred area of practice requires, or that the practitioner has received any license or recognition by the State of Florida or its authorized agents, which is superior to the license and recognition granted to any chiropractor who successfully meets the licensing requirements of Chapter 460, F.S. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a specialty area recognized by the Board, or . . . . (l) Contains a reference to any other degree or uses the initials "M.D." or "D.O." or any other initials unless the chiropractic physician has actually received such a degree and is a licensed holder of such degree in the State of Florida. If the chiropractic physician licensee is not licensed to practice in any other health care profession in Florida, the chiropractic physician must disclose this fact, and the letterhead, business card, or other advertisement shall also include next to the reference or initials a statement such as "Not licensed as a medical doctor in the State of Florida" or "Licensed to practice chiropractic medicine only" in the same print size or volume. . . . . The authority cited by the Board as its "grant of rulemaking authority" for the Challenged Rule Subsections is Section 460.405, Florida Statutes, which provides: Authority to make rules.--The Board of Chiropractic Medicine has authority to adopt rules pursuant to ss 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. The Board has cited Sections 456.062 and 460.413(1)(d), Florida Statutes, as the "law implemented" by the Challenged Rule Subsections. Section 456.062, Florida Statutes, provides: Advertisement by a health care practitioner of free or discounted services; required statement.--In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, chapter 484, chapter 486, chapter 490, or chapter 491, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place. Section 460.413(1)(d), Florida Statutes, provides the following ground for disciplinary action: "False, deceptive, or misleading advertising." While neither this provision nor any other specific provision of Chapter 460, Florida Statutes, imposes a specific duty upon the Board to define what constitutes "false, deceptive, or misleading advertising," the Board is necessarily charged with the duty to apply such a definition in order to carry out its responsibility to discipline licensed chiropractors for employing "false, deceptive, or misleading advertising."
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
Findings Of Fact The parties have stipulated to the facts in this case as follows: The Respondent, Clifford Fruithandler, D.C. is and has been at all times material hereto [sic] the Administrative Complaint filed in DOAH Case No. 89-7036, (DPR Case Number 0094598) a chiropractor licensed in the State of Florida having been issued license number CH 0004149. The Respondent's address is 5417 West Atlantic Boulevard, Margate, Florida 33063. The Respondent, in his capacity as a licensed chiropractor caused to be published an advertisement in the North West Medical Guide in Broward County. The advertisement was published on September 16, 1987. The advertisement identified the Respondent's chiropractic practice as "Advanced Chiropractic and Pain Control Center". The Respondent has been subject to discipline by the Board of Chiropractic in DPR Case Number 44292, 40777, and 28914. On or about March, 4, 1988, the Department of Professional Regulation wrote a letter to Respondent which stated "Please be advised that the Department has received a complaint based on the enclosed advertisement. The allegations are: (1) Advance Chiropractic implies that you possess skills and or other attributes which are superior to other chiropractors..." Within one week following the receipt of such letter by Respondent, the Respondent changed the name of the clinic and stopped using the name "Advanced Chiropractic and Pain Control". Prior to the receipt of DPR's letter of March 4, 1988, Respondent had received no complaints from DPR, the Board of Chiropractic, or from any patient regarding the use of such name.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Examiners enter a Final Order finding Respondent guilty of the allegations set forth in the Administrative Complaint, issuing a reprimand to the Respondent and assessing a fine against Respondent in the amount $750.00. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991. J. STEPHEN MENTON 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 29th day of April, 1991. COPIES FURNISHED: Michael A. Mone, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Roger W. Calton, Esquire Qualified Legal Representative 30131 Town Center Drive Suite 177 Laguna Niguel, CA. 92677-2040 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
