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
Findings Of Fact Petitioner is licensed to practice chiropractic in the State of Florida, and is seeking certification in physiotherapy. She took the practical examination in physiotherapy administered by the Respondent on November 11, 1989, receiving a grade of 71.8%. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if she should be granted additional credit on this practical exam, and based thereon, whether she should receive certification in physiotherapy. It was established that the practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam and was qualified to serve as an examiner. At hearing, the Petitioner solely disputed the score she received in the content areas of ultrasound and cryotherapy. In each of these areas, she received a score of 3 out of a possible 4 credits. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 1 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 4 content areas in the November, 1989 physiotherapy practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, each examiner graded Petitioner's practical examination the same in all four content areas. Instead of the score of 3 on both the ultrasound and cryotherapy portions of the physiotherapy exam, if Petitioner received a 4 on either portion from one of the two examiners, a 3.5 on either portion from both examiners, or a 3.5 on both portions from only one examiner, she would receive an overall grade of 75%, which is the minimum passing score. Thus, if she received one additional raw point in these two content areas which are under challenge, she would receive a passing score. Regarding the practical exam content area of ultrasound, the Petitioner used a device known as a "coupling cushion" in applying ultrasound over bony prominences in the shoulder area in order to protect her patient from burning. This cushion is basically a water-filled container placed between the ultrasound device and the patient's skin. In addition, when the patient complained of no improvement in his condition after five days, the Petitioner raised the intensity of the ultrasound. Both Drs. Jeffrey Gordon and Ronald Scott, who were accepted as experts in physiotherapy, testified that the Petitioner's use of a coupling cushion and increasing the intensity of ultrasound after five days in response to patient complaints were acceptable methods of treatment. Support for the use of a coupling cushion over bony prominences while administering ultrasound is also found in authoritative treatises, Applied Physiotherapy and Physical Agents for Physical Therapists, excerpts of which were introduced at hearing. Dr. Scott was one of the two examiners who graded Petitioner's practical exam. He testified he gave her a score of 3 in ultrasound because, while Petitioner did demonstrate an adequate knowledge and understanding of the use of ultrasound, she did not demonstrate a depth of understanding regarding the use of ultrasound over bony prominences without a coupling cushion. He testified that there are other acceptable, and perhaps more efficient, ways of applying ultrasound to a shoulder than through a water coupling. However, he conceded that the Petitioner was never questioned about different theories or techniques of application for ultrasound. On the "comments" portion of the examination grade sheet, Dr. Scott included the following note next to Petitioner's grade in ultrasound: "limited and instructed poorly". He explained that this meant Petitioner had demonstrated limited knowledge of the content area. However, this conflicts with his assessment at hearing, and with the excerpts from treatises in the record which confirm the method of treatment demonstrated by the Petitioner. While Dr. Scott testified that there are other acceptable methods of applying ultrasound over bony prominences, none were specifically described. Indeed, Dr. Gordon pointed out that the failure to use a coupling cushion over a bony prominence would be neglectful since it would likely subject the patient to burning. There is no basis in the record to support Dr. Scott's comment that Petitioner was instructed poorly, and to the contrary, the only treatises in the record support the treatment methods used by the Petitioner. The other examiner, who was not present to testify, made the comment on his grade sheet for the Petitioner that she "needs work" in ultrasound. No evidence was presented to support this rather imprecise assessment. It is conceded by Respondent's expert witness, Dr. Scott, that Respondent's answer was acceptable. Based on the evidence in the record, it is found that Petitioner was incorrectly graded on the ultrasound portion of her practical examination. Rather than a grade of 3, meaning she gave an adequate answer, the evidence establishes that the technique she used was consistent with the only authoritative treatises in the record, as well as with the expert testimony of Dr. Gordon. The use of a coupling cushion over bony prominences is recommended to avoid burning the patient while administering ultrasound. Increasing the intensity of ultrasound after five days when the patient complains of no improvement, is reasonable and acceptable practice. However, since Dr. Scott testified that there are other unspecified methods which could also have been used in this situation, it cannot be found that Petitioner's answer was "exceptional", and therefore deserving of a grade of 4. Rather, she demonstrated a degree of knowledge and understanding between the grades of 3 and 4, or 3.5, which she should have received from both examiners on the ultrasound portion of this exam. Regarding the exam content area of cryotherapy, the Petitioner treated the patient, diagnosed as having a mild to moderate lumbar sprain/strain injury, by applying a cold pack wrapped in a warm, moist towel for ten to twenty minutes. Drs. Scott and Gordon acknowledged that this was an acceptable form of treatment for this condition. Authoritative treatises introduced in evidence confirm that this treatment is recommended, although other forms of treatment were also noted, including placing a cooled pack directly on the skin, or wrapping it with a dry towel. There is a conflict among the authorities regarding the placement of a cold pack directly on the skin. In her response on this content area, the Petitioner did not demontrate that she understood this conflict in authorities, but rather expressed the view, adopted by one authority, that cold packs should never be placed directly on the skin. Based upon the evidence in the record, it is found that Petitioner received the correct grade of 3 from both examiners on the cryotherapy portion of the practical examination. In contrast to the ultrasound portion of the exam, for cryotherapy there is clear evidence of conflicting methodologies for the treatment of a lumbar sprain/strain with cold packs. Petitioner did not demonstrate her knowledge of these conflicting methodologies, but simply demonstrated the one method which she prefers, which while acceptable, is not exclusively appropriate. Since the Petitioner's score should have been increased by .5 point on both examiners' grading sheets in the content area of ultrasound, she should have received one additional raw point, which results in her achieving an overall average of 75% on the practical examination, the minimum passing score.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to her grade in cryotherapy, but granting her challenge to the ultrasound portion of the November, 1989, chiropractic physiotherapy certification examination and awarding Petitioner a grade of 3.5 in ultrasound instead of 3, thereby increasing her overall grade from 71.8% to 75%, the minimum passing score, and as a result, approving Petitioner's certification in physiotherapy. RECOMMENDED this 18th day of October, 1990 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 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. CASE NO. 90-3402 Rulings on Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. Adopted in Finding 6, but otherwise Rejected as unnecessary. Adopted in Findings 7-10. Adopted and Rejected, in part, in Findings 11, 12. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. Adopted in Finding 2. Adopted in Findings 7, 8, but otherwise Rejected as unnecessary. Adopted in Findings 3, 6, 8. Adopted in Finding 12, but Rejected in Finding 10. Adopted in Finding 8, but Rejected in Findings 9, 10. Adopted in Findings 11, 12. Adopted in Finding 12, but Rejected in Findings 10, 13. COPIES FURNISHED: Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792 Brian S. Fischer, Esquire 3695 W. Boynton Beach Blvd. Suite 8 Boynton Beach, FL 33436 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Has Petitioner's challenge to the failing grade he received on the November 1988, chiropractic licensure examination been rendered moot by virtue of his having retaken and passed the examination? If not, should his challenge be sustained?
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: The licensure examination administered by the Board of Chiropractic Examiners in November 1988, consisted of a written examination on Florida laws and rules and a practical examination. There were three parts to the practical examination: x-ray interpretation; technique; and physical diagnosis. To pass the practical examination, a candidate needed to receive a passing grade on each of the three separate parts of the examination. Mathesie passed the written examination on Florida laws and rules, as well as the x-ray interpretation and technique portions of the practical examination. He received a failing grade, however, on the physical diagnosis portion of the practical examination. The physical diagnosis portion of the practical examination is conducted orally. To facilitate review of this portion of the examination, it is videotaped. The videotape of the physical diagnosis portion of the practical examination in controversy in the instant case was played during the course of the hearing. Each candidate taking the physical diagnosis portion of the practical examination is asked a series of questions by two examiners who also independently grade the candidate's answers. The examiners are experienced chiropractors who have been licensed to practice chiropractic in the State of Florida for at least five years. First-time examiners receive three hours of training in testing and grading procedures and requirements. Examiners who have previously participated in the examination process are given a one or two hour refresher course. In questioning a candidate on the physical diagnosis portion of the practical examination, the examiners must cover at least four and no more than six of the following subject areas: case history; chiropractic examination; general physical examination; orthopedic examination; neurological examination; x-ray technique and diagnosis; laboratory diagnosis; nutrition; differential diagnosis; and clinical judgment. In addition, they are directed to ask practical questions designed to test the candidate's ability to function competently as a beginning chiropractor. Within these parameters, the examiners are expected to use their professional judgment in selecting the particular questions to ask the candidate. Examiners are not provided with any specific questions that they are required to pose. The examiners are also expected to exercise their professional judgment in evaluating the candidate's answers to their questions. The grading of these answers therefore is a "subjective" process reflecting the examiners' opinions as to the quality of the candidate's answers. For each of the subject areas covered during the physical diagnosis portion of the practical examination, the candidate receives a separate grade from each of the two examiners conducting this portion of the examination. A 4 is the highest grade the candidate can receive from an examiner for a covered subject area. This grade is reserved for answers which reflect exceptional expertise in the subject area. A grade of 3 out of a possible 4 (or 75%) is to be given where no more than adequate expertise is demonstrated. Where the candidate's answers demonstrate expertise that is more than adequate but less than exceptional, a grade of 3.5 (or 87.5%) is to be given. Where the candidate, through his answers, displays inadequate expertise, depending on the extent of the inadequacy, either a grade of 2.5 (or 62.5%), 2.0 (or 50%), or 1.5 (or 37.5%), is to be awarded. The lowest possible score a candidate can receive from an examiner is a 1 (or 25%). This grade is warranted where the candidate's knowledge of the subject matter is so lacking as to present a danger to the public. The candidate's overall average score on the physical diagnosis portion of the practical examination is obtained by dividing the candidate's total number of grade points by two (representing the number of examiners) times the number of subject areas covered by the examiners. To pass this portion of the examination, the candidate's overall average score must be at least a 3 (or 75%). If the candidate fails to attain such a score and contends that the examiners unfairly or erroneously evaluated his performance, the videotape of this portion of the examination is reviewed by other chiropractic experts. Based on the recommendation of these experts, adjustments may be made to the candidate's score. Mathesie was tested on six subject areas on the physical diagnosis portion of the November 1988, examination: case history; general physical examination; orthopedic examination; neurological examination; x-ray technique and diagnosis; and laboratory diagnosis. He received a failing overall average grade from the two examiners of a 2.75 (or 68.75%). Following expert review, adjustments were made which raised Mathesie's overall average grade to a 2.875 (or 71.875%). This was still less, however, than the 3 (or 75%) he needed to pass. Mathesie was awarded a 3 by both examiners for his answers pertaining to case history. Both examiners' grades were subsequently increased to a 3.5 after expert review. Mathesie was asked by the examiners "the basic headings and things that [he] would be interested in having in the case history." In responding to the question, Mathesie mentioned that he would do a "general survey of their whole body," but he failed to specify that he would inquire about urinary incontinence or genital problems, specific inquiries that are routinely made by chiropractors. In view of Mathesie's failure to specifically mention these matters, it cannot be said that it was arbitrary or unreasonable to score his answer on case history no higher than a 3.5. Both examiners gave Mathesie a 2.5 for his performance on the general physical examination segment of the test. Neither of their grades was raised following expert review. On this part of the examination, Mathesie was asked to list "the vital signs." He responded, "blood pressure, pulse, respiration rate, and temperature and some sources add height and weight." Mathesie was then asked to take the blood pressure of one of the examiners, a man approaching 40 years of age. He did so and discovered that the examiner's blood pressure was 165 over 70, which Mathesie remarked "is very high blood pressure." When asked what he would tell a patient whose blood pressure remained at this level for three consecutive days, Mathesie replied that he would advise the patient that he "had an elevated blood pressure and that he should be seen by a medical doctor for further evaluation." Blood pressure of 165 over 70 is only slightly higher than normal for a man approaching 40 years of age. Contrary to what Mathesie indicated to the examiners, it is not "very high blood pressure" and, without more, is no cause for alarm. Accordingly, Mathesie's failure to receive a grade higher than a 2.5 on the general physical examination segment of the test was not without reason or logic. On the orthopedic examination segment of the test, Mathesie was awarded a 3.0 by both examiners. Expert review did not result in a change of either of these grades. On this segment of the test, Mathesie was asked to evaluate the right knee of one of the examiners. In conducting his evaluation, Mathesie failed to examine both knees, although during the next segment of the test he did indicate, with some prompting by the examiners, that he "would compare bilaterally all the orthopedic tests." Bilateral examination is a standard, routine chiropractic practice which assists the chiropractor in determining whether the patient has a developmental or pathological problem. Inasmuch as Mathesie did not conduct such a bilateral examination when asked to assess the condition of the examiner's knee, he did not deserve to receive a grade higher than a 3.0 on the orthopedic examination segment of the test. On the neurological examination segment of the test, Mathesie received a 2.5 from one examiner and a 3.0 from the other examiner. After expert review, the 2.5 grade was raised to a 3.0. No change was made to the other examiner's grade. During this segment of the test, Mathesie initially failed to perform the patella reflex test bilaterally as he should have. It was only after one of the examiners suggested that it was necessary to determine a patient's normal reflexive action that Mathesie indicated he would "compare bilaterally all the orthopedic tests, all the neurological tests and reflexes." Mathesie further stated on this segment of the test that, in attempting to neurologically assess the patient, he would administer a cardinal gaze examination during which he would have the patient cover one eye and follow his finger with the other eye. Although a cardinal gaze examination may be administered in this fashion, the better method is to have the patient follow the moving object with both eyes. In view of the foregoing, a 3.0 was not an unreasonably low grade to give Mathesie on the neurological examination segment of the test. Mathesie received a 3.0 from both examiners on the x-ray technique and diagnosis segment of the test. Neither grade was changed following expert review. Mathesie was asked on this segment of the test to "set up a right [anterior] oblique." In describing how he would do so, Mathesie failed to give information concerning the film size and central ray. Given these omissions, Mathesie's failure to receive a grade higher than a 3.0 on this segment of the test was not without justification. Mathesie received a 2.0 from one examiner and a 2.5 from the other examiner on the laboratory diagnosis segment of the test. No adjustments were made to either of these grades. On this segment of the examination, Mathesie was asked what conclusions he would reach concerning the condition of a patient based on the results of blood tests revealing a hemoglobin of 8, a hematocrit of 25, and a RBC of 3.5. As Mathesie should have been aware, such test results reflect that the patient has suffered a severe loss of blood and therefore requires immediate medical attention. Mathesie, however, did not immediately recognize the seriousness and urgency of the matter. Having failed to do so, he cannot persuasively argue that the grades he received on this segment of the examination were unreasonably low. After receiving notification that he had failed the physical diagnosis portion of the November 1988, licensure examination, Mathesie retook and passed the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Chiropractic Examiners enter a final order dismissing Mathesie's challenge to the failing overall average grade he received on the physical diagnosis portion of the November 1988, licensure examination on the ground that such challenge is now moot. Should the Board decline to dismiss Mathesie's challenge on the ground of mootness, it is RECOMMENDED that the Board enter a final order rejecting such challenge as without merit and denying Mathesie the relief he has requested. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September 1989. STUART M. LERNER 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 Administrative Hearings this 19th day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3255 The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Mathesie's Proposed Findings of Fact Accepted and incorporated in substance, but not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. First sentence: Accepted and incorporated by reference; Second sentence: Rejected because it is more in the nature of legal argument than a finding of fact. Moreover, in order to be qualified as an expert witness in the field of chiropractic, Dr. Ordet did not have to meet the "continuous practice" requirement of Florida Administrative Code Rule 21D-11.007. To the extent that this proposed finding suggests that the Department failed to substantially comply with any prehearing discovery order issued by the Hearing Officer or that the Department otherwise engaged in improper conduct prejudical to Mathesie, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it is more in the nature of commentary on the quality of Ordet's testimony than a finding of fact. Furthermore, while it is true that Ordet's opinion regarding Mathesie's performance was necessarily subjective in nature, based on Ordet's credentials and qualifications, it appears that the opinion he gave was an informed and educated one, notwithstanding his failure to cite any specific authoritative writing supporting his opinion. First sentence: Accepted and incorporated by reference (It should be noted, however, that although Ordet "has been out of school [as a student] for many years," he is currently on the faculty of two chiropractic colleges); Second sentence: Rejected because it is more in the nature of commentary on the quality of Ordet's testimony than a finding of fact. Moreover, the Hearing Officer finds no persuasive support for the statement that Ordet "undoubtedly has not kept up with the advances in the chiropractic education." Accepted and incorporated in substance, except for the last two sentences, which have been rejected because they are not supported by persuasive competent substantial evidence. Accepted and incorporated in substance, except for the last sentence, which has been rejected because it is not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. Accepted and incorporated in substance, except for the last two sentences, which have been rejected because they are not supported by persuasive competent substantial evidence. Rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding suggests that Mathesie should not have had points taken off for indicating that he would tell a patient with a blood pressure reading of 165 over 70 to see a medical doctor, it has been rejected because it is not supported by persuasive competent substantial evidence. First sentence: Rejected because it constitutes a statement of the law rather than a finding of fact; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence. Accepted and incorporated by reference. Rejected because it is not supported by persuasive competent substantial evidence. Accepted and incorporated in substance. (It should be noted, however, that although Mathesie did state "on the video that all tests would be done bilaterally," he made this statement following the orthopedic examination after one of the examiners suggested, through his questioning, that it was important to determine what was "normal" for the patient.) To the extent that this proposed finding suggests that Mathesie should have been awarded a grade higher than a 3.0 on the neurological examination segment of the test, it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it is not supported by persuasive competent substantial evidence. To the extent that this proposed finding suggests that Mathesie should have been awarded a higher overall average grade on the physical diagnosis portion of the November, 1988, licensure examination than a 2.875 (or 71.875%), it has been rejected because it is not supported by persuasive competent substantial evidence. Rejected because it is more in the nature of a request for relief than a finding of fact. Rejected because it is more in the nature of a request for relief than a finding of fact. The Department's Proposed Findings of Fact Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance, except to the extent that it indicates that "[c]ase history was raised to a 2.5 by both examiners." The uncontradicted evidence reveals that Mathesie originally received a 3.0 from both examiners on case history and that both of these grades were subsequently raised, following expert review, to a 3.5. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated by reference. COPIES FURNISHED: Michael W. Mathesie 8933 Northwest 51st Place Coral Springs, Florida 33067 E. Harper Field, Esquire Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pat Guilford Executive Director Board of Chiropractic Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 Petitioner, Jens Emilio Valle, is entitled to licensure by virtue of a passing grade on the May 1988 Chiropractic examination, specifically on the technique portion of the examination.
Findings Of Fact Dr. Valle was an unsuccessful candidate for the May 1988 Chiropractic examination. As part of the practical examination, Dr. Valle took the technique portion and received a score of 73.9. A score of 75 is required for certification for licensure. The technique portion is part of an oral practical examination and is subjectively graded by two independent graders. All graders have been licensed to practice chiropractic medicine in Florida for at least five years and have received several hours of standardization training prior to serving as graders on the practical examination. The grade range on each section is one to four. A score of three is assigned when a candidate demonstrates minimal competency and a score of four is given when a candidate demonstrates superior or expert knowledge. These scores are then added with other factors and scores to produce a total. Dr. Valle claims that he was underscored on the technique portion of the examination. His scores were as follows: Grader 27--Cervical (3), thoracic (3), occipital (3), pelvic (2), rib (3), and soft tissue (3.5). Grader 37--Cervical (3), thoracic (3), occipital (3), pelvic (3), rib (3), and soft tissue (3). Dr. Valle presented the expert testimony of Jim Terrell, D.C., who has been licensed in Florida for less than five years. Dr. Terrell has received no training in grading practical examinations. He has never participated in the administration and grading of a chiropractic examination for licensure. Dr. Terrell based his testimony solely on his observation of the videotape. His opinion was that Dr. Valle's performance in the pelvic technique was "essentially" correct. Dr. Terrell's opinion related solely to the mechanical performance. Steven M. Ordet, D.C., is a chiropractic physician licensed in Florida since 1974. He is the past Chairman of the Peer Review Committee of the Florida Chiropractic Association, a Director of the Florida Chiropractic Association, and has been an examiner for the chiropractic examination for the last seven years. He was not an examiner on the May 1988 examination. Dr. Ordet also reviewed the videotape. In his opinion as a trained grader, he would have awarded the following scores based on Dr. Valle's performance: Cervical (3), thoracic (2.5), occipital (3), pelvic (2), rib (3), and soft tissue (2.5). Dr. Ordet would have given these scores in part because Dr. Valle failed to describe the technique he was demonstrating. The preliminary instructions given for the examination and shown on the videotape require, in part, that the candidate describe the technique as it is demonstrated. The opinion of Dr. Ordet is persuasive based on his experience as a grader and on his explanation for the grades he would give.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Chiropractic Examiners, enter a Final Order denying the request for relief filed by Jens Emilio Valle and dismissing the petition for relief. DONE and ENTERED this 17th of August 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 17th day of August, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0886 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Examiners 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4 (1-7). COPIES FURNISHED: E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jens Emilio Valle, D.C. 901 Cedar Canyon Square Marietta, GA 33067 Patricia Guilford Executive Director Board of Chiropractic Examiners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On March 16, 1989, Petitioner Womer filed with the Board of Chiropractic an application for licensure by endorsement from the Commonwealth of Pennsylvania. On March 31, 1989, Petitioner Krakow filed with the Board of Chiropractic an application for licensure by endorsement from the Commonwealth of Pennsylvania. On April 11, 1989, Womer was advised that his application was incomplete because the Board had not received the signed Licensure Verification Form from the Pennsylvania Board of Chiropractic. Because it was incomplete, Womer withdrew his application from consideration at the April 13, 1989, Board meeting. The Licensure Verification Form for Womer was received by the Board on April 24, 1989. With the Form, Womer also sent a letter to the Board which stated: It is my understanding, upon receipt of the enclosed form by the Florida Board of Chiropractic, that Dr. Womer's application for licensure by endorsement is now complete. If you agree, please reagenda Dr. Womer's Application for Licensure by Endorsement for the next chiropractic board meeting, and advise regarding the time and place of same. No further timely request from the Board for additional information was received by Womer. The Board first verbally notified Womer of its intent to deny his application for licensure by endorsement at its public meeting in Orlando, Florida, on July 27, 1989, ninety-four days after receipt by the Board of the Licensure Verification Form which made his application complete. Womer is licensed since 1946 by the Pennsylvania State Board of Medical Examiners as a Drugless Therapist with the right to treat the sick by chiropractic. This was the only form of licensure available to chiropractors at that time. Womer has practiced as a chiropractor since his licensure in 1946. The Pennsylvania Board of Chiropractic, which came into existence in the early 1950's, refused to complete and sign the Licensure Verification Form for Womer because Womer is not licensed by it. Womer continues to be licensed to practice chiropractic by the medical board. The Board denied Womer's application on the following grounds: The licensing requirements of Pennsylvania are not substantially similar to, equivalent to, or more stringent than Florida's licensure requirements. Specifically, the Pennsylvania practical examination does not test on physical diagnosis or x-ray interpretation and Pennsylvania does not require passage of Part I and II and the written Clinical Competency Examination of the National Board within the past ten years. Pennsylvania does not have the ten-year requirement regarding passage of the National Boards. In fact, the Clinical Competency Examination only came into existence in 1987 and could not have been taken by anyone prior to that year. On April 14, 1989, the Board acknowledged receipt of Krakow's application for licensure by endorsement and stated that the only document not received was a "valid State Endorsement Questionnaire Form from the State of Pennsylvania." The letter further stated that the Questionnaire had to be received on or before July 1, 1989, in order for Krakow's application to be considered at the next board meeting. The Board received the Questionnaire regarding Krakow on April 17, 1989, and his application was complete on that date. No further timely request from the Board for additional information was received by Krakow. By letter dated June 1, 1989, Krakow requested that his application be considered at the next scheduled board meeting. The Board of Chiropractic first verbally notified Krakow of its intent to deny his application for licensure by endorsement at its meeting in Orlando, Florida, on July 27, 1989, one hundred and one days after receipt by the Board of his complete application. The Board denied Krakow's application on the following grounds: The licensing requirements of Pennsylvania are not substantially similar to, equivalent to, or more stringent that Florida's licensure requirements. Specifically, the Pennsylvania practical examination does not test on physical diagnosis or x-ray interpretation. Subsequent to the denial of licensure to both Womer and Krakow, the Board attempted to raise additional grounds for the denials. Specifically, the Board alleges that licensure should be denied because Pennsylvania does not require a score of 75% on each portion of the state licensure examination, because neither of the Petitioners has passed the National Chiropractic Board Examination, Parts I and II, and the Written Clinical Competency Examination, and because Womer is not a licensed chiropractor in the State of Pennsylvania. However, the Board has not provided adequate notice of these additional alleged grounds for denial and they will not be considered. Except for the licensure requirements discussed herein, Womer and Krakow have satisfied all other requirements for licensure by endorsement. Petitioners offered the testimony of Joseph R. McQuaite, D.C., to show that the licensure requirements in Florida and Pennsylvania are substantially similar. However, Dr. McQuaite was not offered, tendered, or accepted as an expert in comparisons of states' licensure requirements. Accordingly, his opinions are not given weight as expert opinions, but are instead treated only as laymen's opinions. The Board offered David L. Bolton as a witness to show that the examination requirements between Florida and Pennsylvania are not substantially similar. While Bolton's testimony at hearing was not expert, his deposition testimony was stipulated between the parties to be expert testimony on the Florida practical examination. The Florida practical examination tests extensively on x-ray interpretation and physical diagnosis. These portions of the practical examination constitute two of the four sections of the practical examination. Florida considers these two aspects of the examination to be so important that a passing grade of 75% must be made on each section instead of a mere 75% average for the entire practical examination. The Pennsylvania practical examination is solely on chiropractic technique and jurisprudence and does not cover physical diagnosis and x-ray interpretation. Physical diagnosis and x-ray interpretation are covered in Pennsylvania only to the extent that the subjects are covered in the National Board examinations. The Florida practical examination is more thorough and covers more areas than does the Pennsylvania examination. The additional areas covered in Florida, x-ray interpretation and physical diagnosis, are significant and are important. In these respects, the Florida licensure requirements are not substantially similar to those of Pennsylvania. The differences are sufficient to support denial of licensure by endorsement. Petitioners maintain that the Board's denial of licensure by endorsement is impermissibly based on an anti-competitive bias on the part of the entire Board against applicants for licensure by endorsement. The greater weight of the credible, competent and substantial evidence does not support these assertions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Professional Regulation, Board of Chiropractic enter a Final Order and therein issue licenses by endorsement to William O. Womer and Elliott S. Krakow based on Section 120.60(2), Florida Statutes. RECOMMENDED this 9th day of August, 1990, in Tallahassee, Florida. DIANE K. KIESLING, 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 9th day of August, 1990. APPENDIX TO THE RECOMMENDED ORDER, CASE NOS. 90-0580 and 90-0581 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, William O. Womer and Elliott S. Krakow Each of the following proposed finding of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 37 & 38(10). Proposed findings of fact 1-8, 10, 19, 20, 29, 35, and 36 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 9, 11-18, 21-25, 28, and 40 are rejected as being mere summaries of testimony and not properly stated as proposed findings of fact. To the extent that the contents of these proposed findings of fact are reflected in this Recommended Order, the contents are adopted. The remainder is subordinate. Proposed findings of fact 26, 27, 31, 32, 34, and 39 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 30 and 33 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(30; 5 & 6(4); 7-10(5-8); 11 & 12(11 & 12); 14(14); 15(13); 18(15); and 30(10). Proposed findings of fact 3, 21, 28, 29, and 31 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13, 16, 19, 20, and 22 are irrelevant or unnecessary. Proposed findings of fact 17, 26, and 27 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 23-25 are considered and discussed in the Conclusions of Law in the Recommended Order. COPIES FURNISHED: Lynne Hankins-Fielder Attorney at Law 402 Appelrouth Lane, Suite 10 Key West, Florida 33040 Theresa M. Bender Assistant Attorney General Suite 1603--The Capitol Tallahassee, Florida 32399-1550 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The issues are whether Respondent is guilty of making or filing a false report signed in the capacity of a licensed chiropractic physician, in violation of Section 460.413(1)(j), Florida Statutes, and, if so, the penalty.
Findings Of Fact Respondent has been a licensed chiropractor in Florida since 1978, holding license number CH0002696. Petitioner requires licensed chiropractors to file Mandatory Practitioner Profile Questionnaire Packets (Profiles). The subject Profile was due on or before April 15, 1999. The Profile asks the licensee to supply various items of information and answer several questions. Section II of the Profile requires information concerning "medical education." In response to the question of what medical school Respondent attended, he wrote: "Logan 'Quack Con-Artist' School of Chiropractic." In response to the type of his degree, Respondent wrote: "Quack Con-Artist Chiropractic Degree." In response to questions concerning medical training, Respondent answered: "'Fraudulent' Automobile Personal Injury Cases (Robbing Insurance Companies)" and "'Fraudulent' Workers Compensation Cases (Robbing Insurance Companies)." Respondent also added to these responses, as well as the responses cited in the preceding paragraph, the following: "Caveat: see letter dated April 7, 1999 sent to Gloria Henderson, Division Director)." Section VIII of the Profile requires information concerning criminal offenses. This section asks: "have you ever been convicted or found guilty, regardless of whether adjudication of guilt was withheld, or pled guilty or nolo contendere to a criminal misdemeanor or felony in any jurisdiction?" The question then states: "If "YES," briefly describe the offense(s), indicate whether the conviction is under appeal, and attach copy of notice of appeal." The form supplies three lines for each of these items of information. Respondent answered "no" to the first question in Section VIII and left the remainder of the section blank. The Profile concludes, immediately above the signature line: "I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 455.624, 458.327, 458.331, 459.013, 459.015, 460.413, 461.013, 775.082, 775.083 and 775.084, Florida Statutes." Respondent signed on the signature line and added the date of April 7, 1999. Immediately beneath the signature line, Respondent added: "Notice: Signed under caveat--see letter dated April 7, 1999 sent to Gloria Henderson, Division Director." Respondent's four-page letter to Gloria Henderson dated April 7, 1999, references the Profile, notifies Ms. Henderson and Petitioner of Respondent's intent to sue, and demands that Petitioner omit Respondent's listing from a website of chiropractors because, in part, "I do NOT accept their 'valueless treatment' known as an "adjustment" (it is a waste of money and time), and because I practice health care from an "Allopathic" (medical approach) point of view, including but not limited to, surgery, drug prescription, physical therapy " Respondent states in the letter that the Petitioner's failure to incorporate his comments in all computer files listing him as a chiropractor will result in his filing a federal action under tort and constitutional law seeking $1 million plus punitive damages. The final caveat in the April 7 letter states: My (Roy A. Day) signature on the instant letter, and the associated completed questionnaire, reflects the denial of Roy A. Day to have meaningful access to so-called "licensed attorney" courts of law, and the associated denials of each and all discovery, and trial by jury, and the right to each and all appeals, and the denial to write a brief on appeals, and each and all associated "railroading" of Roy A. Day, with the overlay for "licensed attorney" courts of law to deny the law, facts and evidence existed when they pertained to Roy A. Day, since Roy A. Day is not represented by a so-called "licensed attorney" at $300.00 per hour in artificial-monopolistic legal fees. In addition, the signature reflects each and all associated "forced and coerced" action, specifically, Roy A. Day has been denied "due process and equal protection of the law." On February 6, 1995, Pinellas County Circuit Court entered an Order of Probation. The Order states that Respondent pleaded guilty to aggravated stalking, interception of oral communication, and uttering a check with a forged endorsement. The Order withholds adjudication and places Respondent on probation for two years. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of two counts of the third-degree felony of uttering a check with a forged endorsement, in violation of Section 831.02, Florida Statutes. The checks totaled approximately $20,000, and, sometime between March 13 and May 5, 1993, Respondent passed each check knowing that the signature of his brother, Donald Day, was forged. For each count, the court sentenced Respondent to one year in jail with credit for 130 days he had already served in jail, and the sentences ran concurrently. As a result of Respondent's violation of the conditions of probation, on September 20, 1996, Pinellas County Circuit Court entered a judgment finding Respondent guilty of the third-degree felony of aggravated stalking, in violation of Section 784.048(3), Florida Statutes. The stalking consisted of repeated and harassing telephone calls that Respondent made to the house of a person who had, at one time, expressed interest in purchasing a home in which Respondent had an interest, but later decided not to pursue the purchase. The court sentenced Respondent to one year in jail with credit for 133 days that he had already served in jail, and this sentence ran concurrently with the sentences for uttering a check with a forged endorsement. Petitioner lacked a copy of a judgment concerning the interception of oral communications. This offense arose out of Respondent's surreptitious recording of a conversation that he had with a police officer who was investigating the stalking charges. Absent a copy of the judgment, however, insufficient evidence of this conviction exists for the purpose of this disciplinary case. At the final hearing, Respondent explained that he did not disclose these criminal convictions on the Profile because doing so would somehow implicate him as a "co-conspirator" in the injustices perpetrated upon him by the authorities involved in prosecuting these offenses. Respondent falsely failed to disclose on the Profile his convictions for aggravated stalking and uttering a check with a forged instrument. His failure to disclose this information constitutes fraudulent concealment of these criminal offenses. In a fairly straightforward case, Respondent has filed nearly 250 pleadings containing thousands of pages. He also abused the subpoena power of this tribunal by subpoenaing judges and court officials from every level of the federal and state judiciaries. Last but not least, Respondent has defamed and discredited numerous persons without apparent reason, although some question exists whether Respondent is capable of exercising consistent control over the impulses leading to at least some of these utterances. The crimes of which Respondent was convicted may have arisen out of family disagreements, possibly concerning the sale of a family home. Respondent may be obsessively preoccupied with actual or perceived injustices that he suffered as a result of this transaction. Undoubtedly, Respondent compulsively litigates everything that has the most remote bearing upon this transaction, using court files as archives for materials that he believes will vindicate him, despite an ardent and often- expressed repulsion for judges, lawyers, and others connected with the legal system. No penalty but revocation is suitable under the circumstances, absent a showing by Respondent that he has commenced or is continuing therapy and that the prognosis is reasonably good. The record lacks such evidence. Respondent is not unintelligent, nor is he entirely devoid of insight. His thinking, although at times disordered, is capable of impressive organizational efforts, as best revealed by his meticulous organization in his proposed recommended order of what otherwise seemed to be a bewildering variety of materials that Respondent has seen fit to file in this case. Although his behavior seems at times compulsive, Respondent was capable of a certain level of self-restraint, at least during the hearing and when not directly confronting the underlying transaction or crimes. If they occur at some point in the future, successful diagnosis and treatment of Respondent should inform Petitioner's interpretation of the events and behaviors described in this Recommended Order, if Respondent seeks relicensure as a chiropractor.
Recommendation It is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Respondent guilty of violating Section 460.413(1)(j), Florida Statutes, and revoking his license. DONE AND ENTERED this 19th day of July, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 19th day of July, 2001. COPIES FURNISHED: Joe Baker, Jr. Executive Director Board of Chiropractic Medicine 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 Theodore M. Henderson Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Wings S. Benton, Senior Attorney Agency for Health Care Administration Office of General Counsel Medical Quality Assurance Practitioner Regulation--Legal Post Office Box 14229 Tallahassee, Florida 32317-4229 Roy A. Day Post Office Box 33 Tarpon Springs, Florida 34688-0033
The Issue Whether Petitioner should receive a passing grade for the Florida Optometry Licensure Examination taken on July 23 through 25, 2004.
Findings Of Fact Dr. Cook is a licensed optometrist in the State of Michigan. She received her Doctor of Optometry degree in 1985, and became licensed in the same year. Dr. Cook has taken the Michigan, Illinois, and Wisconsin state licensure examinations and passed all three examinations on her first try. For 17 years, Dr. Cook practiced optometry at the University of Michigan Health Services. This was a comprehensive practice, including eye examinations with dilation, treatment of eye diseases, emergency care, and the monitoring and follow-up care of patients with glaucoma, cataracts, and other diseases. Except for providing care to family members, Dr. Cook has not practiced professionally, on a regular basis, since August 2001, when she moved to Florida. Dr. Cook is a Fellow of the American Academy of Optometry. She was accepted at the final hearing as an expert in optometry. Dr. Cook desires to become licensed in Florida to practice optometry. As part of the process to apply for licensure in Florida, Dr. Cook is required to retake parts one and two of the national board examinations and to pass the Florida examination for licensure. She retook the national board examinations and passed on the first try. In August 2003, she took the clinical portion of the Florida examination and failed. In July 2004, Dr. Cook retook the clinical portion of the Florida examination. A passing score on the clinical portion is 80. She scored 75.75 on the July 2004 examination, and, thus, failed the clinical portion. For the clinical examination, Dr. Cook was required to bring her own "patient" upon whom some of the examination's required procedures were required to be performed. Some of the procedures are performed on "patients" brought by other candidates taking the examination. The grading on each procedure in the clinical examination is done by two examiners who are licensed, practicing optometrists. A candidate will be graded by a different set of examiners for the morning and afternoon sessions. The examiners are chosen by the Board of Optometry and trained by the Department's Testing Services Unit and outside practitioner consultants prior to the administration of each examination. The examiners are provided with a set of Grading Standards for their use during the grading of the examination. The purpose of the training and standards is to make the grading process objective and to provide grading uniformity and consistency. The examiners are required to grade and mark their scores independently. They are not to compare or discuss their scoring with other examiners at any time. If both examiners' grades agree, the candidate is given either no credit or full credit, depending on whether the examiners considered the procedures were properly performed. If the examiners disagree on the grading, the candidate is given the average of the two grades actually awarded, which is the sum of the two grades divided by two. If an examiner considers that a procedure is properly performed, the examiner marks the grade sheet with a "Y," indicating a yes. Examiners are taught to give the candidates the benefit of the doubt in borderline cases. If an examiner feels that the performance was borderline, the examiner must indicate "borderline" in the comment section on the grade sheet and specify the reason. If an examiner determines that the candidate did not properly perform the procedure, the examiner marks the grade sheet with an "N," indicating a no. An examiner is required to specify the reason for a no grade in the comment section on the grading sheet. Some of the procedures are performed once for both examiners. Other procedures are performed in groups, meaning that the procedures are performed twice, once before each of the examiners. In grouped procedures, the first examiner will read the directions for a procedure, and the candidate will perform the procedure after the directions are given. The first examiner will read the directions for the next procedure, and the candidate will perform the procedure after the directions are read. This format continues until the grouped segment is completed. The same procedures will then be performed for the second examiner, following the same format used by the first examiner. No records are kept to indicate which examiner graded first or second during any part of the examination. The examination candidate has control over when each examiner grades the candidate. When the candidate is ready to be graded, the candidate is required to say, "Grade me now." Dr. Cook has challenged the grades that she received for the following procedures: confrontational field test; measurement of pupil size; rating patient's response to light; demonstrating the equator and posterior pole during the binocular indirect ophthalmoscopy examination; the anterior vitreous portion of the biomicroscopy examination of the anterior segment; the choroidal crescent, posterior vitreous detachment, A-V three crossings out find and reflex, and hypertensive changes portion of the biomicroscopy examination of the fundus; and measuring eye pressure using a Goldmann Tonometer. A confrontational field test is a gross neurological field test in which the candidate compares her visual field to the patient's to pick up gross neurological defects. The Candidate Information Booklet (CIB) states that the confrontational field test is to be performed as described in Clinical Opthalmology by J.D. Duane. In order to perform this test, the candidate sits in front of the patient about a meter away. The patient covers one eye and looks at the candidate's eye, nose, or other structure so that the patient's gaze is not moving around. The candidate puts her non-moving fingers in different quadrants to test the patient's ability to see the fingers. It is important to keep the fingers stationary while performing the test because moving fingers could be detected by the patient even in a blind field. In other words, a patient who is not able to see a stationary finger may be able to detect a finger that is moving because the motion contributes to the detection. Dr. Cook performed the confrontational field test for both examiners simultaneously. She received .75 points out of a possible 1.5 points for the confrontation field test. Examiner 202 gave Dr. Cook full credit for the examination. Examiner 239 gave Dr. Cook no credit and noted the following in the comment section: "Moving fingers--Init performed 'wiggling fingers' while moving target fingers." Examiner 239 also noted "Did very brief static CF test but fingers moving not stationary." Dr. Cook admitted that she did wiggle her fingers during part of the performance of the examination, claiming that she was testing the patient's peripheral vision, which was not part of the examination. The examination was to be performed within the central 30 degrees. The preponderance of the evidence does not establish that Dr. Cook tested the four quadrants with non-moving fingers. Dr. Cook's score of .75 points is correct. As part of the clinical examination, the candidates are required to measure the size of the patient's pupil. In order to measure the pupil, the candidate must not sit in front of the patient. Sitting in front of the patient creates a stimulus for accommodation, which is a phenomenon where the pupil size changes unless the patient can look and focus on a target at a distance. Dr. Cook measured the pupil size of her patient simultaneously for both examiners. Examiner 202 gave Dr. Cook full credit for her performance in measuring the pupil size, and Examiner 239 did not give Dr. Cook credit for her performance. Examiner 239 noted in the comment section, "candidate sat in front of pt." Dr. Cook received .5 points out of a possible one point for measuring the pupil size during the pupillary examination. Dr. Cook claims that she sat off to the side of the patient, lined up her right eye with the patient's right eye, and asked the patient to sight at a target at a distance. The examiners were off to the side when Dr. Cook performed the procedure. The preponderance of the evidence does not establish that Dr. Cook was in the correct position when she measured the patient's pupil size. Dr. Cook's score of .5 is correct. As part of the examination, candidates are required to rate the patient's pupillary response to light on a pupillary scale. The CIB states, "Pupillary examinations, muscle balance, and motility, should be done on both eyes (including dilated eye)." Examiner 202 gave Dr. Cook full credit for rating the pupil, but indicated that her performance was borderline. Examiner 202 stated in the comment section: "borderline - she was confused about 0 to 4+, but eventually got it." Examiner 239 gave Dr. Cook no credit for her performance, and stated in the comment section: "4+ but did not indicate eye, not used to using 0 to 4 scale." Dr. Cook received .5 points out of a possible one point for rating the pupil on a pupillary scale. She gave the same answer simultaneously to both examiners. When Dr. Cook was asked to rate the pupils of her patient, Dr. Cook was uncertain which scale to use, the Marcus Gunn scale or a true light reflex scale. She indicated that she gave a response for both scales and that one of the responses was 4+. Dr. Cook stated at the final hearing that the left pupil was fixed and dilated, but she did not indicate that she rated the left eye as "0." The preponderance of the evidence does not establish that Dr. Cook advised the examiners of her rating of the left pupil. The score of .5 was correct. The binocular indirect ophthalmoscope (BIO) is an instrument used to examine the fundus, which is the inside back part of the eye. The BIO sits on the candidate's head. There is a small mirror attached, through which another viewer may see the view being seen by the candidate. The candidate holds a condensing lens, which is like a magnifying glass, to evaluate structures in the eye. Examining the fundus with the BIO is a simple procedure, which Dr. Cook performed 14 to 16 times every clinical day for over 17 years. Dr. Cook wore contact lenses during the examination. With the use of contact lenses, Dr. Cook has perfect vision. Dr. Cook adjusted the instrument before the testing procedure started, including adjusting the angle of light and setting the illumination. As part of the examination on the use of the BIO, a candidate is to demonstrate the equator and the posterior pole. In these procedures, the candidate finds the view of the applicable area, one examiner looks through the mirror after the candidate says "Grade me now," and then steps back. The second examiner then looks at the mirror after the candidate again says "Grade me now." Examiner 239 did not give full credit to Dr. Cook in demonstrating the equator. For the portion of the performance which requires the candidate to demonstrate an equator landmark, Examiner 239 gave Dr. Cook a "no" and stated in the comment section: "No clear view through the mirror @ 'Grade me now.'" Examiner 239 also gave Dr. Cook a "no" for an acceptable view of an equator landmark and stated in the comment section: "Dim illumination." Examiner 202 gave Dr. Cook credit for these two performance areas. In the portion of the examination in which the candidate is to demonstrate the posterior pole, the candidate is told that the disc and macula should be seen simultaneously. Examiner 239 did not give Dr. Cook credit for the portion of the examination where the disc and macula are to be viewed simultaneously. Examiner 239 stated in the comment section: "very dim view vis'd ONH not macula." Examiner 202 gave Dr. Cook credit for this portion of the examination. Between the first and second examiners' viewings for the equator and the posterior pole, the patient did not move, Dr. Cook held the focused view still, there was no change in illumination or intensity, and Dr. Cook did not change her position. Thus, it is more likely than not that Examiner 239 was mistaken. Dr. Cook received 3.5 points out of a possible seven points for examining the views of the equator and posterior pole during the binocular indirect ophthalmoscopy examination. She should be credited with an additional 3.5 points. As part of the examination, the candidates were asked to perform an examination using a biomicroscope, which is a microscope combined with a light source that is used to view different structures on the outside and inside of the eye. It is also called a slit lamp. For purposes of the licensure examination, the biomicroscope has a teaching tube attached through the left ocular, and when the examiner looks through the tube she sees the same view the candidate sees through the left ocular. A portion of the examination using the biomicroscope includes grouped procedures. The last procedure on one of the grouped procedures was focusing on the anterior vitreous of the patient's eye. The vitreous is made up of hyaluronic acid and contains vitreal strands made of collagen. As a person ages, the vitreal strands will increase and become more visible. A young patient may have vitreal strands that would be so difficult to see that on viewing the strands the view would appear to be "optically empty." In other words, the vitreous would appear clear on examination. Dr. Cook's patient was a healthy premed student in his early twenties. The patient did not have visible vitreal strands. Before performing the group of procedures, which included the focus of the anterior vitreous, Dr. Cook adjusted the height and width of the light. She set for a direct focal illumination, meaning the light was focused where she was looking. The patient remained still between the procedures, and Dr. Cook did not change the illumination between each grading. Examiner 216 gave Dr. Cook no credit for her focus of the anterior vitreous, stating the illumination was "too dim" and the "vit not seen." Examiner 268 gave Dr. Cook full credit for that part of the examination. Dr. Cook received 1.25 points out of a possible 2.5 points for her performance related to the anterior vitreous portion of the biomicroscopy exam of the anterior segment. Based on the patient's having no visible vitreal strands; the patient not moving between the grading procedures, and Dr. Cook not changing the illumination between grading procedures, it is more likely than not that Examiner 216 was mistaken. Dr. Cook should be awarded 1.25 points for performance of the focus on anterior vitreous. Dr. Cook received 3.5 points out of a possible seven points for her performance related to the choroidal crescent, posterior vitreous detachment, A-V three crossing outs, find and reflex, and hypertensive changes portion of the biomicroscopy exam of the fundus. One of the grouped portions of the examination using the biomicroscope included demonstrating whether a choroidal crescent was present. Determining the presence of a choroidal crescent was the fourth procedure in this grouped segment. A choroidal crescent can be seen when the candidate is looking at the optic nerve and the retina does not come all the way up to the nerve. The choroidal crescent will appear at the edge of the optic nerve. Examiner 268 did not give Dr. Cook any credit for determining whether the choroidal crescent was present, and stated in the comment section, "Did not focus on the edges of the ONH [optic nerve head]." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook did not demonstrate by the greater weight of the evidence that she should be given additional credit for this procedure. Unlike the evidence presented concerning the anterior vitreous, she did not establish that there was no change in illumination, her position, or the patient's position between the grading of the grouped segments. In order to perform the grouped procedures in which she was tested on the presence of the choroidal crescent, Dr. Cook had to move the focus and illumination to different locations related to the optic nerve. The last procedure in the same grouped segment involving the choroidal crescent was demonstrating posterior vitreous separation. Vitreous gel is attached to the back of the eye in several places. When the attachment points for the vitreous are pulled away or become loose, a ring-like structure can be seen where the vitreous pulled loose. Dr. Cook was asked to demonstrate and indicate whether a vitreous separation was present after she performed the procedure involving the choroidal crescent. The proper procedure for checking for posterior vitreous attachment would be to set the proper illumination, focus on the optic nerve, and pull back slightly on the "joy stick." Examiner 268 did not give Dr. Cook any credit for the procedure involving a demonstration of a posterior vitreous separation, stating in the comment section, "Did not pull back." Examiner 216 gave Dr. Cook full credit for the procedure. Again, Dr. Cook failed to establish by a preponderance of the evidence that she should be given additional credit for this portion of the examination. There was no showing that all conditions remained the same when each examiner graded this grouped segment of procedures. Another grouped segment of the examination called for Dr. Cook to start at the optic disc and follow a temporal arcade for a distance of approximately three disc diameters and demonstrate an AV crossing. Dr. Cook was to then indicate whether there were any characteristic hypertensive changes at the crossing. A vascular arcade is a curved shape with blood vessels coming out and arcing toward one another. Most of the blood vessels in the eye are located in this area. Some diseases such as diabetes and hypertension cause changes where the blood vessels in the arcade cross. In order to perform the AV crossing procedure, a candidate has to coordinate the microscope, going up and down and side by side. Lining up is critical on this procedure. Adjustments have to occur separately, once for each examiner. Examiner 268 did not give credit to Dr. Cook for this portion of the examination, stating in the comment section, "No view in the tube." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook has failed to establish that she is entitled to additional points for this portion of the examination. The AV crossing procedure involves making adjustments for each of the examiners as part of the examination, Dr. Cook has not demonstrated by a preponderance of the evidence that all conditions remained the same for each examiner. As part of the examination, candidates are tested on the use of the Goldmann Tonometer, which is a device used to measure eye pressure. The grading on this portion is divided into four categories: illumination at the proper angle, mires alignment, thickness of alignment, and the pressure measurement. Examiner 268 gave Dr. Cook full credit for all categories. Examiner 216 did not give credit to Dr. Cook for having the correct mires alignment, and gave full credit for the remaining categories, indicating that the mires width and the reading of the pressure were borderline. In the comment section, Examiner 216 drew the alignment which he viewed. The mires were not aligned correctly. Dr. Cook received 1.24-1.50 points out of a possible 2.5-3.0 points for the use of the Goldmann Tonometer. Dr. Cook argues that because she was given credit for the pressure reading that it would be impossible for the mires alignment to be incorrect. The reading of the pressure is to test the candidate's ability to read the dial on the tonometer; it is not to determine whether the reading that is on the dial is the actual pressure of the patient. The grading standards require that the examiner put down the reading that he saw during the viewing if it is different from the reading that the candidate gives as a response. Thus, it is possible to be given credit for the pressure reading without having the mires aligned correctly. Dr. Cook has not demonstrated by a preponderance of the evidence that she should be given additional credit for this portion of the examination. None of the examiners testified at the final hearing. The Department did call Dr. Gary McDonald, who was accepted as an expert in optometry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding Dr. Cook an additional 4.75 points for the clinical portion of the optometry licensure examination given on July 23 through 25, 2004, resulting in a passing grade of 80.25. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of June, 2005. COPIES FURNISHED: Edwin A. Bayó, Esquire Gray Robinson 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302-3189 Allen R. Roman, Esquire Department of Health Office of General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether Frank Giampietro (Petitioner) should be awarded additional credit for answers given on the chiropractic physical diagnosis practical licensure examination administered in November, 1989, and based thereon, whether he should be licensed to practice chiropractic in the State of Florida.
Findings Of Fact Petitioner has been licensed to practice chiropractic in the State of Rhode Island since March, 1986. He took the diagnosis portion of the chiropractic practical examination administered by the Respondent on November 9, 1989, for purposes of being licensed in the State of Florida. Petitioner received a grade of 68.7% on this portion of the exam. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if he should be granted additional credit on this practical exam, and based thereon, whether he should have passed this examination. It was established that the physical diagnosis practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam and was qualified to serve as an examiner. At hearing, the Petitioner disputed the score he received in the areas of neurology, orthopedics, and differential diagnosis. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 2 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 4 content areas in the November, 1989 physical diagnosis practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, one examiner gave Petitioner the grades of 2.5 in orthopedics and 3 in both neurology and differential diagnosis, while the other examiner gave him 2 in orthopedics, 2.5 in neurology and 3 in differential diagnosis. If Petitioner received two additional raw points on these three content areas which are under challenge, he would receive an overall passing score of 75%. Regarding the practical exam content area of orthopedics, the Petitioner improperly performed Apley's test, according to the expert testimony of Dr. Ordet, and incorrectly responded that the medial and lateral meniscus could not be differentiated using Apley's test. The Petitioner also improperly performed McMurray's test, as well as muscle testing of the hamstrings and quadriceps. The Petitioner's witness, Dr. Hoover, confirmed that he did not properly perform Apley's test, and did not make a determination as to the medial or lateral meniscus by rotating the patient's foot, as he could have. Regarding the neurology portion of the exam, Petitioner incorrectly identified the location of the upper motor neuron track, and according to Dr. Ordet, the Petitioner also incorrectly stated that pathologic reflexes which would actually be for a lower motor neuron lesion were the pathologic reflexes for an upper motor neuron lesion. This was a very significant error, according to Dr. Ordet, whose testimony is credited. Regarding the differential diagnosis portion of the exam, the Petitioner's response to the patient's bowel blockage was not precise or specific. Petitioner did not demonstrate that he had more than an adequate understanding of this subject area due to the nebulous answers he gave. Even the Petitioner's witness, Dr. Hoover, agreed with the grade of 3 which Petitioner received on this portion of the exam. Based on the evidence in the record, it is found that Petitioner was correctly graded on the orthopedics, neurology and differential diagnosis portions of the practical examination. It was not established that the grades given were contrary to fact or logic, and in fact, competent substantial evidence supports the grades which he received.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to his grades on the orthopedics, neurology and differential diagnosis portions of the November, 1989, chiropractic examination. DONE AND ENTERED this 18th day of October, 1990 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 18th day of October, 1990. APPENDIX (D0AH CASE NO. 90-3399) The Petitioner did not file specific proposed findings of fact, but did file a letter dated September 28, 1990, on October 1, 1990, addressed to the undersigned. This letter does not evidence that a copy was provided to counsel for the Respondent, and therefore, it has not been considered. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. 4. Adopted in Finding 2. 5-6. Adopted in Finding 7. 7-8. Adopted in Finding 8. 9-10. Adopted in Finding 9. COPIES FURNISHED: Frank Giampietro 1704 Adair Road Port St. Lucie, FL 34952 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth D. Easley, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792
