Findings Of Fact The Respondent is a chiropractic physician who practices in Daytona Beach, Florida, and is licensed by the State Board of Chiropractic Examiners to practice in the State of Florida. The Respondent opened the office where he presently practices in September, 1978. On or about July 10, 1979, Judith M. Matovina telephoned the Respondent's office regarding severe headaches which she had been suffering. She had been referred to the Respondent by a friend, Michael Davis, who was studying to be a chiropractor, and who was also a friend of the Respondent. An appointment was initially made for Thursday, July 12; Ms. Matovina preferred to make an appointment for a time that would not interfere with her job, and an appointment was ultimately made for 10:30 a.m. on Saturday, July 14, 1979. Ms. Matovina arrived at the Respondent's office for her appointment at the scheduled time. She sat in the waiting room for approximately five minutes. Dr. Wagner came out to the waiting room after he treated another patient and introduced himself to Ms. Matovina. He gave her a pamphlet to read regarding the treatment of headaches by chiropractors, and a form to fill out which provided personal background and a description of symptoms. She filled out the form and handed it to the Respondent who escorted her to the examination room. He asked her questions about her headaches and about her personal life. She responded that she did not believe the headaches were tension related. He told her to remove her clothes and put on a gown. He left the examination room. Ms. Matovina removed her bra and blouse, but left her slacks and shoes on. After knocking, the Respondent reentered the examination room. The Respondent thereafter engaged in conduct, a portion of which was legitimate and proper chiropractic examination, treatment and therapy; and a part of which can only be construed as an effort to induce Ms. Matovina to engage in sexual activity with the Respondent. He engaged in conversation about his poor relationship with his wife, his relationships with his girlfriends, and the fact that he had had a vasectomy. Ms. Matovina had not been to a chiropractor before, and she expressed fear as to the nature of some of the manipulations and other treatment which the Respondent performed. He referred to her as "such a baby" in response to her fear. He examined her eyes, and told her that she had pretty blue eyes and that his girlfriends had brown eyes. Ms. Matovina asked him where his receptionist was, and the Respondent responded that he did not have a receptionist on Saturday because that is when he scheduled his pretty patients. During the course of one manipulation in which the Respondent held Ms. Matovina's feet, he told her that she had cute feet. In the course of one manipulation in which the patient stood against the wall with the Respondent's arm around her waist, he told her, "They are playing our song," in response to the music on the office stereo system. He held her hand as if he was going to dance with her. He kissed her twice on the shoulder, moved his hand toward her breast, and brushed his hand across her breast. Several times during the course of the examination, Ms. Matovina said that it would be best for her to leave, but the Respondent kept saying that they should try one more manipulation or therapy treatment. Ms. Matovina protested during the course of much of the treatment, and eventually insisted upon getting dressed and leaving. During the examination, the Respondent on several occasions referred to Ms. Matovina's "pretty blue eyes," to the fact that she was "such a baby," to the fact that he had other girlfriends, and a vasectomy. After she got dressed, the Respondent behaved as though none of these things had happened. Ms. Matovina insisted upon paying for the session at that time rather than the following Monday, when the Respondent wanted to schedule another session. Ms. Matovina then left the office. She was there for approximately two hours. The following week, the Respondent had his office contact Ms. Matovina to schedule further sessions, but she refused to accept or to respond to the phone calls.
Findings Of Fact In light of the fact that the parties offered no testimony, either by way of live witnesses or through depositions, the only facts applicable to this proceeding are those admitted in Respondent's Answer to the Petition herein. These are: This is a petition for the determination of the validity of Rule 21D- 2.17, Florida Administrative Code, one of the rules of the Florida State Board of Chiropractic Examiners. Petitioner, William J. Mayers, D.C., is a practicing chiropractor licensed by the Board of Chiropractic Examiners pursuant to Chapter 460, Florida Statutes, and holding License No. 1806. The Petitioner is charged with violating Rule 21D-2.17, Florida Administrative Code, in Administrative Charges brought by the Board of Chiropractic Examiners, and currently pending before a Hearing Officer from the Division of Administrative Hearings in Case No. 78-2550, and the Petitioner is, therefore, substantially affected by the challenged rule.
The Issue The issue in this case is whether Florida Administrative Code Rule Subsections 64B2-15.001(2)(e), (i), and (l) constitute an invalid exercise of delegated legislative authority in that they exceed Respondent's rulemaking authority or enlarge, modify, or contravene the law the Rule implements.
Findings Of Fact Petitioner Michael John Badanek, D.C., is a duly licensed chiropractic physician in the State of Florida. Dr. Badanek actively practices in Ocala, Florida. Dr. Badanek has engaged in and is engaging in, the advertising of professional services to the public. Dr. Badanek is subject to the provisions of Chapter 460, Florida Statutes, and the rules promulgated by Respondent. Dr. Badanek's failure to adhere to the provisions of Chapter 460, Florida Statutes, and the rules promulgated thereunder, including the Challenged Rule Subsections, may result in the discipline of his professional license. Dr. Badanek has standing to challenge the Challenged Rule Subsections. The affected state agency is the Board of Chiropractic Medicine (hereinafter referred to as the "Board"), located at 4052 Bald Cypress Way, Tallahassee, Florida. The Board is charged by Chapter 460, Florida Statutes, with the duty of regulating the chiropractic profession in Florida. In carrying out that duty, the Board has adopted Florida Administrative Code Rule Chapter 64B2. At issue in this matter is the Challenged Rule Subsections of Florida Administrative Code Rule 64B2-15.001. The Challenged Rule Subsections provide the following: 64B2-15.001 Deceptive and MisleadingAdvertising Prohibited; Policy; Definition. . . . . (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading, if it: . . . . (e) Coveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, posses qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialties recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each specialty requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that "The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine." A chiropractor may use on letterhead or in advertising a reference to any honorary title or degree only if the letterhead or advertising also contains in the same print size or volume the statement "Honorary" or (Hon.) next to the title. . . . . (i) Contains any representation regarding a preferred area of practice or an area of practice in which the practitioner in fact specializes, which represents or implies that such specialized or preferred area of practice requires, or that the practitioner has received any license or recognition by the State of Florida or its authorized agents, which is superior to the license and recognition granted to any chiropractor who successfully meets the licensing requirements of Chapter 460, F.S. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a specialty area recognized by the Board, or . . . . (l) Contains a reference to any other degree or uses the initials "M.D." or "D.O." or any other initials unless the chiropractic physician has actually received such a degree and is a licensed holder of such degree in the State of Florida. If the chiropractic physician licensee is not licensed to practice in any other health care profession in Florida, the chiropractic physician must disclose this fact, and the letterhead, business card, or other advertisement shall also include next to the reference or initials a statement such as "Not licensed as a medical doctor in the State of Florida" or "Licensed to practice chiropractic medicine only" in the same print size or volume. . . . . The authority cited by the Board as its "grant of rulemaking authority" for the Challenged Rule Subsections is Section 460.405, Florida Statutes, which provides: Authority to make rules.--The Board of Chiropractic Medicine has authority to adopt rules pursuant to ss 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. The Board has cited Sections 456.062 and 460.413(1)(d), Florida Statutes, as the "law implemented" by the Challenged Rule Subsections. Section 456.062, Florida Statutes, provides: Advertisement by a health care practitioner of free or discounted services; required statement.--In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, chapter 484, chapter 486, chapter 490, or chapter 491, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place. Section 460.413(1)(d), Florida Statutes, provides the following ground for disciplinary action: "False, deceptive, or misleading advertising." While neither this provision nor any other specific provision of Chapter 460, Florida Statutes, imposes a specific duty upon the Board to define what constitutes "false, deceptive, or misleading advertising," the Board is necessarily charged with the duty to apply such a definition in order to carry out its responsibility to discipline licensed chiropractors for employing "false, deceptive, or misleading advertising."
Findings Of Fact The Petitioner took the chiropractic licensure practical examination administered in November of 1989 and received a score of 71.2%. The minimum passing score was 75%. The Petitioner needs 1.5 additional raw score points in order to obtain a minimal passing grade. The Petitioner challenged portions of the practical portion of the chiropractic examination. The practical examination includes the areas of x-ray technique, chiropractic technique, and physical diagnosis. Stephen Ordet, D.C., testified on behalf of the Respondent. He was received as an expert in chiropractic medicine (TR, page 117, line 19). He testified that he has been an examiner for the Florida chiropractic practical examination since approximately 1980 (TR, page 102, line 18). The practical portion of the chiropractic examination was administered to the Petitioner by two of several doctors of chiropractic, who were examiners at this examination. The practical examination questions asked the Petitioner were developed by the two examining doctors. The various areas which can be included on the technique examination include cervical, lumbar, thoracic, occipital, pelvic, rib, soft tissue, and extremities. The examiners' questions to the Petitioner did not address the lumbar, occipital or rib areas. Examiner No. 12 gave the Petitioner a score of 4 on cervical, 3 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 1 on extremities. Examiner No. 13 gave the Petitioner a score of 4 on cervical, 3.5 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 2 on extremities. Each portion of the examination has a possibility of 4 points. A candidate must average 3 points fob each question on the examination or a score of 75%. The school which the Petitioner attended is an accredited school. The Petitioner's responses to various questions from the examiners were scored by the examiners under more than one phase of the examination. The Petitioner received a grade of 4 (excellent) from both examiners on the cervical portion of the examination. The Petitioner's expert witness testified that the Petitioner's responses to the questions on the pelvic and thoracic were complete answers. The grades given the Petitioner by one of the examiners were 3.5 and 3, and the grades given by the other examiner were 3 and 3. The grades given are consistent with the petitioner's expert's characterization of her performance. There is no evidence that these questions or grading were arbitrary or capricious. The Petitioner was given an extremities question, and she began an examination of the patient. Thereafter, she advised the examiners that her school had not taught adjustment of the extremities and had not known she would be examined in this area. Additional evidence presented at the bearing shows that extremities were not taught at the Petitioner's school when she attended based upon the school's philosophy relating to spinal adjustment. The two remaining areas addressed in the practical portion of the examination were soft tissue and extremities. Grader 13 scored the Petitioner 2.5 on soft tissue and 2 on extremities. Grader 12 scored the Petitioner 2.5 on soft tissue and 1 on extremities. Dr. Ordet opined that extremity technique as a necessary part of chiropractic medicine (TR, page 100, line 11). He referred to several technique books in chiropractic to support the necessity of extremity technique. The text books included Anatomical Adjustment Techniques by Dr. Homer Beatty. One of the examiners responded that they would move onto another area and gave her a new question referring back to the patient with torticollis. The responses by the Petitioner regarding manipulative relief of the torticollis were not addressed by the Petitioner's witness. There is no basis for concluding that the examiners were clearly erroneous in their evaluation of the Petitioner's response. The Respondent's expert witness revealed that the examination did not place special emphasis on the technique taught at the candidate's particular college.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the extremities question be stricken from the techniques attempted; the Petitioner receive the average of her remaining techniques scores; and receive a passing score on the examination. DONE AND ENTERED this 15th day of February, 1991, in Tallahassee, Leon County, 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 15th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3398 Petitioner's Proposed Findings of Fact Adopted and renumbered. Adopted and renumbered. Rejected. The state of the Petitioner's health when this examination was given is conjectural. The Petitioner was given added credit upon a review of her examination; however, one cannot say the examiners were unfair. The testimony about the amount of time for each examination is conflicting. The Petitioner did not clearly establish this point. True but irrelevant. Contrary to the facts. Contrary to the facts. True but irrelevant. Respondent's Proposed Findings of Fact Adopted and rewritten. Not a finding. Not a finding. Adopted and rewritten. Adopted. Adopted in part, rewritten in part, and rejected in part. Adopted first sentence. Adopted. Adopted. COPIES FURNISHED: Ms. Patricia Guilford Executive Director Board of Chiropractic Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Lois Buxbaum 23 Jones Street, #19 New York, NY Vytas J. Urba, Esq. Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 =================================================================
The Issue Whether Respondent committed the offenses described in the administrative complaint filed against him? If so, what penalties should be imposed by the Board of Chiropractic?
Findings Of Fact Based upon the evidence received at hearing, the Hearing Officer makes the following findings of fact: Dr. Jordan Breslaw is now, and was in 1987, licensed to practice chiropractic in the State of Florida. Dr. Breslaw is the owner of Jordan Chiropractic Center. The Center is located in Margate, Florida. On or about November 11, 1987, Dr. Breslaw placed an advertisement in the Quad City News announcing that the Jordan Chiropractic Center would be hosting a "Community Appreciation Day" at its location in Margate on November 16, 1987. The advertisement contained the following representation: As an act of Community Service the Jordan Chiropractic Center will DONATE ALL SERVICES to anyone who wants to experience the benefits of Chiropractic. Everyone Welcome! [emphasis in original.] Appearing beneath this statement were drawings of gift- wrapped boxes and balloons. Next to these drawings were the following words in italics: "Entertainment," "Door Prizes," "Food and Refreshments," and "Meet The Merchants." The advertisement did not set forth the usual fees and charges for chiropractic services rendered at the Jordan Chiropractic Center; nor did it state that any patient or other person responsible for payment had the right to refuse to pay, cancel payment, or be reimbursed for payment for any service, examination, or treatment which was performed as a result of, and within 72 hours of responding to, the advertisement. Dr. Breslaw examined and treated patients at the Jordan Chiropractic Center on Monday, November 16, 1987. He charged these patients his usual fee for these services.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Chiropractic enter a final order finding Dr. Jordan Breslaw guilty of the offenses charged in the administrative complaint and imposing an administrative fine of $1,000 and placing him on probation for three months, as described above, for his transgressions. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June, 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 of Administrative Hearings this 30th day of June, 1989. COPIES FURNISHED: Cynthia Shaw, Esquire Department of Professional Regulation 1940 North Monroe Street Suit 60 Tallahassee, Florida 32399-0792 Dr. Jordan Breslaw 201 North State Road 7 Margate, Florida 33063 Pat Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Should Petitioner receive a passing grade for the technique portion for the November 1997 chiropractic licensure examination (the examination) administered by Respondent?
Findings Of Fact Petitioner practices chiropractic in Massachusetts. In November 1997, Petitioner took the Florida chiropractic licensure examination. To pass that examination it was necessary for Petitioner to score 75 points on the technique portion of the examination. Petitioner received a score of 70 points. Petitioner disputes the scores received on several questions, described as questions 1, 4, and 7. Each contested question is worth five points. As a candidate for licensure, Petitioner received an information booklet which contained a reading list informing the candidates of writings of experts in various subjects covered by the examination, upon whom the candidates should rely. This included a list of experts in the technique portion of the examination. Respondent intended to defer to the opinions of those experts in grading the candidates. Additionally, Petitioner and other candidates in the November 1997 examination, were provided written instructions concerning the technique portion of the examination. Those instructions stated: TECHNIQUE EXAMINATION FORM 1 Demonstrate the following chiropractic techniques on the patient. For each technique, indicate the patient and doctor position. location of the segment. patient and doctor contact point. line of drive. Do not actually perform the techniques, but set them up and indicate how you would perform them. If the technique is grossly inadequate and/or clinically inappropriate, no credit will be given for that technique. Technique 1: Bilateral Anterior-Superior Ilia Technique 2: Posterior Radial Head on Left Technique 3: Plantar Cuboid Technique 4: Posterior Superior Occiput on Right Technique 5: L-2, Left Posterior Spinous Yes or No for position, location, contact, and line of drive/correction CHIROPRACTIC PRACTICAL EXAMINATION 11/97 TECHNIQUE (EXAMINER) The expectation was that each candidate in the examination would set up and indicate the manner in which the candidate would perform the five techniques and the four specific positions, locations, contact points, and lines of drive related to the five techniques, without actually performing to conclusion. Petitioner and other candidates were graded by two examiners. The examiners, in scoring the candidates, used a grading sheet which described the activities by referring to the five techniques as cases. The various positions, locations, contact points, and lines of drive were numbered 1 through 20, with the first four numbers referring to case 1, numbers 5 through 8 referring to case 2, et cetera. Before performing as examiners in the November 1997 session, the examiners who graded Petitioner underwent training to ensure that they followed the same criteria for scoring the Petitioner. Petitioner contests the scores that he received in relation to technique 1 position a./case 1 position 1; technique 1 line of drive d./case 1 line of drive 4; and technique 2 patient and contact point c./case 2 contact point 7. Those items respectively correspond to questions 1, 4, and 7, referred to by the parties. After the two examiners entered the individual scores for the various items within a technique, the scores by the individual examiners were added to arrive at an aggregate score. The aggregate score was then divided by two to reach the final results on the technique portion of the examination. By that arrangement Petitioner received a score of 70 points, insufficient to pass the technique portion of the examination. Although examiner 07, in the score sheet reference case 1 position 1, marked "Y" to point out that the Petitioner had achieved compliance with the expectations of that technique, the examiner did not assign five points to the Petitioner indicating credit for that item. Instead the score sheet reflects zero points for the item. Examiner 15 in relation to that item, wrote "N" on the score sheet signifying non-compliance and provided zero points for non-compliance. In all other respects the scores of the two examiners in relation to the technique portion of the examination, to include the disputed items, were in accord. Notwithstanding the determination by the initial examiners that Petitioner had failed the technique portion, Respondent instituted a non-rule policy to have three additional examiners review Petitioner's performance on the technique portion, by resort to the audio-video tape that had been made during the pendency of the technique portion of the examination. Apparently, Respondent in view of the reference by examiner 07 to "Y," indicating compliance with case 1 position 1, treated the item in a manner which signified compliance. Thus Petitioner was entitled to 5 points on the score sheet of examiner 07. The activities of the discrepancy reviewers were designed to determine whether that view finding compliance should be upheld in a setting where examiner 15 had entered "N" for that item signifying non-compliance. The review was expected to break the impasse. The three reviewers determined that Petitioner had not complied with the requirements of case 1 position 1. As a result, the score of 70 points, the average arrived at by adding and then dividing the two 70-point scores assigned by the original examiners was upheld. When Petitioner was given notice of the examination results, the 70-point score for the technique portion was reflected in those results. By inference it is found that the original examiners and discrepancy reviewers practiced chiropractic in Florida. In reference to case 1 position 1, examiner 15 commented about "contact P.S.I.S. should be ischium." P.S.I.S. stands for Postier Superior Iliac Spine. Examiner 07 made no comment concerning that item. In reference to case 1 line of drive 4, both examiners felt that Petitioner had not complied with that requirement. Examiner 07, in commenting, stated "not on ischium." Examiner 15 commented "wrong line of drive." In reference to case 2 contact point 7, examiner 07 commented, "Not thumb-thenar." Examiner 15 commented, "No thumb contact." At the hearing to contest the preliminary determination finding Petitioner to have failed the technique portion of the examination, Petitioner offered his testimony as an expert in chiropractic concerning the several items at issue. To rebut that testimony, Respondent presented Dr. Darryl Thomas Mathis, an expert who practices chiropractic in Florida. Dr. Mathis also served as an examiner in the licensure examination, but did not test Petitioner. In his opinion Petitioner feels that he is entitled to additional points on each of the several questions at issue. In his opinion, Dr. Mathis disagrees. In explaining his performance related to case 1 position 1, Petitioner opined that his placement of the patient in the side posture position was correct. Petitioner also opined that his position for the case was correct. By contrast to the Petitioner's opinion concerning case 1 position 1, Dr. Mathis expressed the opinion that Petitioner's position in addressing the patient was incorrect. According to Dr. Mathis, Petitioner had his hand pointing upward parallel to the spine of the patient and not 90 degrees to the spine when contacting the ischium as required. In Dr. Mathis' opinion the table height for the examination area Petitioner was working in did not prohibit Petitioner from positioning himself appropriately to demonstrate his position reference to the patient. Dr. Mathis' opinion is accepted. Petitioner is not entitled to receive points for case 1 position 1. In reference to case 1 line of drive 4, Petitioner offered his explanation in the examination that he would use the opposite of the actual listing. He opined that given the way that the inter-joint subluxates, one would go in the opposite direction to get a more neutral setting. Therefore when dealing with anterior-superior, one would go postier and inferior to accomplish the opposite of the listing. In contrast, Dr. Mathis, in offering his opinion about this item, referred to the anterior-superior listing as one in which the pelvis, in the circumstance that is bilateral, makes it such that both hip bones, or the pelvis in its entirety, has tipped forward and up over the femur heads or leg bones. Noting that Petitioner stated in his examination that he would thrust in the opposite manner, postier to anterior, meaning back to front, and superior to inferior, from top to bottom, Dr. Mathis opined that Petitioner was partially correct. However, Dr. Mathis was persuaded that additional information was required as to the actual angle or direction of thrust determined by the shaft of the femur or leg bone, and this additional information was not addressed by Petitioner. Dr. Mathis criticizes Petitioner's explanation of the technique to be employed on this item by leaving out the shaft of the femur as constituting the determinate of the angle employed. Moreover, Dr. Mathis did not believe that Petitioner could, in the attempt to demonstrate the technique at issue, perform adequately. The Petitioner was on the upper portion of the pelvis or ilium as opposed to being on the ischium, or lower portion of the pelvis. Consequently, according to Dr. Mathis, if Petitioner was going to thrust in the direction that Petitioner stated he would, he could not get the correction that he was attempting to obtain because Petitioner was on the wrong segment or portion of the pelvis. As Dr. Mathis perceives it, Petitioner could not physically accomplish by demonstration, what he claimed he could do because Petitioner was in the wrong location to make that correction. Dr. Mathis' opinion about case 1 line of drive 4 is accepted. Petitioner is not entitled to receive points for this item. Case 2 contact point 7 is what Petitioner refers as to tennis elbow. Petitioner concedes that normally he would use the thumb as the contact point; however, he offers his opinion that during the time of his practice, he has learned other techniques. According to Petitioner, those other techniques are especially useful to address an acute patient with a lot of swelling, where a thumb contact can be painful. Therefore, Petitioner believes that the thenar, the soft part of the palm of the hand below the thumb, is appropriate as a contact point in an acute situation. Given this alternative, Petitioner did not believe that his use of the thenar in the examination was harmful. By contrast Dr. Mathis believes that the thumb is the only acceptable answer. Further, Dr. Mathis stated that the reference list provided to Petitioner and other candidates prior to the examination, in association with A.Z. States' description of the appropriate technique, upon which the Respondent relied in determining the appropriate answer for this item, concludes that the thumb is to be employed in this technique. Dr. Mathis' opinion is accepted. Petitioner is not entitled to receive points for case 2 contact point 7.
Recommendation It is, RECOMMENDED: That a Final Order be issued finding that Petitioner did not pass the technique portion of the 1997 chiropractic licensure examination. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: John Bisanti 150 Sumner Avenue Springfield, Massachusetts 01108 Ann Marie Frazee, Esquire Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Eric G. Walker, Executive Director Board of Chiropractic Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0752
The Issue Whether the Petitioner should receive a passing grade on the chiropractic licensure examination administered November 13 through 16, 1996.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the time the examination at issue herein was administered, the Agency for Health Care Administration was responsible for administering examinations to certain professionals, including chiropractic physicians, seeking to be licensed to practice in Florida. Sections 20.42(2)(a)2, 455.2141, and 455.2173, Florida Statutes. Dr. Foss sat for the chiropractic licensure examination administered in November, 1996. Part of that examination tested a candidate's competency in physical diagnosis and consisted of an oral practical examination administered to each candidate by a panel of two examiners. A standardization system was used with the examination to create consistency in the questioning and grading of the various examiners. Each examiner was given a manual which identified the procedures which were to be followed in particular situations and the questions which could be asked if, for example, the response of a candidate was not sufficiently specific. In addition, all of the examiners attended meetings each morning of the examination which were designed to standardize the criteria and grading guidelines which were to be applied. The examiners were specifically told to grade independently the responses given by the candidates and not to look at the grades given by the other examiner. The physical diagnosis portion of the November, 1996, examination consisted of twenty-seven questions which the examiners asked the candidates. These questions were derived from two cases involving hypothetical patients whose symptoms were presented to the candidate by the examiners. A series of questions was asked about each patient, and the examiners separately assigned points for the answers given. The total points were then averaged to arrive at the final grade. In Question 8, Dr. Foss was asked to state the specific diagnosis he would derive from the symptoms which had been presented to him and the case history he had developed in response to previous questions regarding one of the hypothetical patients. The question was clear and unambiguous, and Dr. Foss had all of the information needed to make the correct diagnosis. Although Dr. Foss responded to the question with a diagnosis which correctly categorized the disease, his answer did not include the specific diagnosis which he could have derived from the information available to him. Dr. Foss was asked by one of the examiners to be more specific as to the cause of the disease he had diagnosed. After several minutes, Dr. Foss responded with an answer which he has admitted was incorrect. Question 8 was worth eight points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 8 was not arbitrary or capricious or an abuse of discretion. Question 15 was clear, unambiguous, and specifically identified the source to be used in formulating the answer. Dr. Foss did not use the methodology recommended in the source specified in the question; rather, he used a different methodology based on information contained in another source. Question 15 was worth two points on the examination, and one examiner gave him no points for his answer, while the other examiner gave him one point. The number of points awarded to Dr. Foss for his answer to Question 15 was not arbitrary or capricious or an abuse of discretion. In Question 27, Dr. Foss was directed to state his clinical judgment in response to a question asked by the examiners. The question asked was clear and unambiguous. Dr. Foss's response that he would not treat the patient but would refer her to a physician other than a chiropractor was contrary to the results of clinical studies reviewed in a widely- disseminated chiropractic research journal which suggest that chiropractic treatment would be appropriate. Question 27 was worth four points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 27 was not arbitrary or capricious or an abuse of discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order dismissing the challenge of Bryan L. Foss, D.C., to the grade assigned him for the physical diagnosis portion of the November, 1996, chiropractic licensure examination. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Dr. Bryan L. Foss, pro se 867 Tivoli Circle, No. 205 Deerfield Beach, Florida 33441 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
