The Issue The issues for resolution, as provided in an Order Finding Probable Cause dated March 11, 1992, are whether Respondent, as a member of the State Board of Acupuncture: violated section 112.313(7)(a), F.S., by having an employment or contractual relationship with The Healing Center which created a continuing or frequently recurring conflict between his private interest and the performance of his public duties; and violated section 112.3143(2), F.S. by voting on a measure which inured to his or his wife's special private gain without disclosing the nature of his interest in the matter.
Findings Of Fact Harvey Kaltsas served on the Board of Acupuncture from February, 1987 through April 3, 1991. As a member of the Board of Acupuncture, his duties included regulation of the practice of acupuncture, and the promulgation of rules to implement Chapters 455, 457, and 120, Florida Statutes. Mr. Kaltsas has been a licensed acupuncturist in the State of Florida since 1984, and was registered as an apprentice prior to licensure. Since 1989, Harvey Kaltsas has been married to Cynthia O'Donnell, who is the sole officer and shareholder of a business, The Healing Center, Inc., which was incorporated in April of 1989. In addition to providing other health services, The Healing Center, Inc. has sold sterile, disposable acupuncture needles since October, 1990. Gross sales of needles have averaged one to two thousand dollars per month from October 1990 until the present. Harvey Kaltsas was not and is not a shareholder or stockholder in The Healing Center, Inc. Harvey Kaltsas has had no interest in The Healing Center, Inc. At all times pertinent to the complaints at issue, The Healing Center, Inc. was located at 430 North Tamiami Trail, Suite C, Sarasota, Florida 34236. The lease for such property remained in the name of Harvey Kaltsas during this period. Although Harvey Kaltsas was ultimately responsible for lease payments on the property, lease payments were made by The Healing Center, Inc. to the landlord. Harvey Kaltsas, as well as other tenants of the property, paid rent to The Healing Center, Inc. The utilities account for the leased property was in the name of Harvey Kaltsas. Although he was ultimately responsible for utilities payments, such payments were made by The Healing Center, Inc. From April, 1989 through December 1990, Harvey Kaltsas was both a tenant of and an independent contractor with The Healing Center, Inc. As a tenant, Mr. Kaltsas paid rent of approximately $300.00 per month to The Healing Center, Inc. As an independent contractor, Mr. Kaltsas performed thermographic examinations on several patients of The Healing Center, Inc. These services were performed from time to time on an ad hoc basis. For these services, Mr. Kaltsas received $3625.00. No contract existed between Mr. Kaltsas and the Healing Center, Inc., regarding performance of these services. Other individuals provided similar thermographic services. On January 1, 1991, Harvey Kaltsas became a salaried employee of The Healing Center, Inc. At the time he vacated his seat on the Board of Acupuncture in April 1991, he was still a salaried employee of The Healing Center, Inc. On December 14, 1990, Harvey Kaltsas moved for consideration of, and voted for, an amendment to Rule 21AA-8.002, Florida Administrative Code, which would have required all licensed acupuncturists in the State of Florida to use only sterile, disposable acupuncture needles. The matter had been raised in an earlier meeting of the board by Luis Celpa, another acupuncturist member. The proposed amendment to Rule 21AA-8.002, Florida Administrative Code, was noticed and published in the Florida Administrative Weekly on February 15, 1991 (Vol. 17, No. 7, p.645). The proposed amendment deleted existing language with regard to sterilization procedures and substituted language requiring disposable needles for one-time use only. The proposed ruled was subsequently withdrawn by the Board of Acupuncture and never became effective. The Joint Administrative Procedures Committee challenged the authority for the rule since Chapter 457, F.S. provides for resterilization of needles. Prior to voting on the measure to amend Rule 21AA-8.002, Florida Administrative Code, Mr. Kaltsas did not disclose to the Board of Acupuncture his interests in or relationship with The Healing Center, Inc. On or about March 7, 1991, The Healing Center, Inc. mailed a letter signed by Cynthia O'Donnell-Kaltsas to licensed Florida acupuncturists advising them of the proposed rule change requiring the use of sterile, disposable needles and offering such needles for sale at a discounted price. Ms. O'Donnell was aware of the board's action, and the letter was mailed after publication of the proposed rule change in The Florida Administrative Weekly. After the rule was withdrawn Ms. O'Donnell sent a follow up letter stating that the rule did not go through and apologizing for any misinformation. Even though she does not use the husband's name, Ms. O'Donnell signed the letters, "O'Donnell-Kaltsas", as her husband had been president of the Florida Acupuncture Association and she was raising money for the association with a 2 percent contribution from needle sales. There are a significant number of potential vendors offering sterile, disposable needles for sale to Florida practitioners of acupuncture. There are a minimum of at least fifteen such vendors in Florida, as well as a minimum of eleven practitioners who sell needles. In addition, Chinese practitioners have direct access to needle suppliers in China from whom they can purchase needles. Florida practitioners receive solicitations from needle vendors across the country and from needle vendors located in Canada, England, Taiwan and Hong Kong. There are no barriers to interstate sale and shipment of needles into the State of Florida by any company or person. The Board of Acupuncture does not regulate the sellers of acupuncture needles. No barriers to entering this market have been established by the Board of Acupuncture. The Board does not license persons or entities which sell needles, nor does it inspect facilities of such persons or entities. The Board does not regulate the types of needles which can be sold, nor does it subject sellers of needles to any kind of disciplinary action. For all intents and purposes, Mr. Kaltsas and his wife maintain separate financial identities. They maintain separate bank accounts, with the exception of a $30.00 credit union account. They do not have signing privileges on each other's banking accounts. In business transactions involving The Healing Center, Inc., Mr. Kaltsas did not receive any special consideration with respect to the amount of rent or with respect to making of rent payments. Although the couple resides in a house owned by Ms. O'Donnell, Harvey Kaltsas makes payments to her to offset the household expenses. There is no evidence that the vote of December 14, 1990 regarding the proposed attachment to Rule 21AA-8.002, Florida Administrative Code, inured to the special private gain of Mr. Kaltsas or to the special private gain of Cynthia O'Donnell. There is no evidence that any matter came before the Board of Acupuncture on a continuing or frequently recurring basis which created a conflict between Mr. Kaltsas' private interests and the performance of his public duties. The sterile, disposable needle rule was formally addressed on two occasions while Mr. Kaltsas was on the Board; it was approved by the Board on December 14, 1990; and it was subsequently withdrawn by the Board on April 3, 1991. Most acupuncturists use disposable needles already. The low cost of such needles compared to the cost of effective sterilization created a legitimate concern for the safety and welfare of the needle handlers and their patients. This concern, rather than any private interest or benefit motivated Harvey Kaltsas' action as a board member.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the Commission on Ethics enter its final order and public report finding that Harvey Kaltsas did not violate Sections 112.3143(2), Florida Statutes (1989) and 112.313(7)(a), Florida Statutes, as alleged, and dismissing the complaints. DONE AND ORDERED this 31st day of August, 1993, in Tallahassee, Florida. MARY CLARK 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 31st day of August, 1993.
Findings Of Fact The Petitioner sat for the July 1985 acupuncture exam. The examination consisted of two written parts, which the Petitioner passed. The practical portion of the examination (Part III) consisted of two sections. Section I consisted of a written clinical competency examination and Section II was a clinical practical examination, both of which are based on traditional oriental theories of acupuncture. Each section was graded based upon a scale of 100. The Petitioner also passed the written portion of the practical examination and the only portion of the examination at issue is the clinical practical examination, and specifically that portion concerning location of acupuncture points on models employed for purposes of administering the examination. The Petitioner additionally successfully passed the needling technique and sanitation portions of the examination, including evaluation in such areas as proper sanitation and sterilization, the accuracy of point locations, the insertion of the needle in proper direction of flow, the proper depth of insertion, proper needle manipulation, and proper needle removal. In addition to the needling technique portion of the examination, which the Petitioner passed, he was required to locate acupuncture points on a model provided by the Department. He was required to demonstrate basic knowledge of acupuncture points and meridian location. The point location portion of the clinical practical examination at issue, consisted of locating 18 acupuncture points on the models provided. The candidates were required to locate each point on the designated models in the anatomical position in which the models were presented. The candidates were allowed to palpate the models or press them with the fingers to aid in locating the points. Once the candidate located the point accurately, he was to place an adhesive dot on that point. The candidates were given a sheet listing the points that should be located and given 25 minutes to do so, then they were required to leave the examination room. Two examiners then evaluated the accuracy of their point location. The examination candidates were not allowed to use point finding devices or tape measures to aid in locating the points. In order to pass the practical examination, including the section at issue involving acupuncture point location, the candidate was required to get a score of at least 70 on a scale of 100. The Petitioner scored a 56 out of a possible 100 on this portion of the examination. Six of his point locations were shown on the graders' score sheets, in evidence as Respondent's Exhibit 3, as "just touching" the circle of the acupuncture point "area of tolerance" determined by Respondent's examiners to delineate the correct area on the model of the acupuncture point involved. Those points are described as follows: REN 12 ZHONGWAN SP. 3 TAIBAI U.B.64 JINGGU S.J.4 YANGCHI S.I.5 YANGGU K.6 ZHAOHAI The two graders involved were inconsistent in grading some point locations. Thus Grader "A" (depicted on Respondent's Exhibit 3) found that no dot had been placed at point "P.5 JIANSHI" at question number 257 on the examination, while Examiner "B" found that a dot had been placed at that point but graded it as being incorrect because he described it as being "1/2 inch off the point and too high." The graders also varied as to their description of the margin of error on those points which they counted as being described incorrectly by the Petitioner. On several occasions, as to those point locations graded as incorrect, the graders varied as much as 1/4 inch from each other in describing the distance the point was placed away from the acceptable tolerance circle. In one instance, at question number 266, point number "S.J.14 JIANLIAO," Grader "A" found the Petitioner's dot to be two inches off the point and too high, while Grader "B" found the Petitioner's dot to be placed only 1/4 inch too high, a significant discrepancy between the two graders. Question number 263 is another such instance. This is one of the six points mentioned above involving the dot just touching the margin of the tolerance circle. Grader "A" found that 1/3 of the dot was inside the circle and Grader "B" found that the dot was just touching the tolerance circle surrounding that point. In fact, as to all but one of the indicated distances on the grading sheets in Respondent's Exhibit 3, where the graders describe the distance in fractions of an inch that the Petitioner's point location dot varied away from the tolerance circles delineating acceptable point location, the examiners' distances described in their comments were at least 1/8 inch and generally at least 1/4 inch different from each other. This is obviously because the examiners used no measuring device in determining the distance Petitioner's "answer dot" was from the acupuncture point or the tolerance circle surrounding it. No measuring device was used to determine how much of a given answer dot extended inside of acceptable tolerance circle. In this connection, Witness Hall established that there was a "50 percent rule," that is, a requirement by the Department that the examination graders count an answer as correct only if 50 percent or more of the answer dot was inside the tolerance circle. This requirement is not published as a rule and was not related to the candidates before they took the examination. Given the showing by the expert testimony adduced by the Petitioner of the imprecision in point location permissible in the field of acupuncture, because of the variables described below, and because the imprecision can be "allowed for" by needle angle and manipulation, etc., the failure to inform the candidates of the "50 percent dot within the circle" requirement was likely a significant factor causing the candidates, including the Petitioner, to locate their points with less precision. Generally accepted acupuncture practice does not require such absolute precision on all point locations. The Respondent presented the testimony of witnesses Phillip Puddy and Harvey Kaltsas. These gentlemen have taken the Florida examination and are licensed in Florida. Witness Puddy, in fact, was at the same examination as the Petitioner and corroborated his testimony that none of the candidates were informed that their dots had to be 50 percent within the defined area of tolerance. Both witnesses acknowledged various texts on acupuncture practice and theory, introduced by the Petitioner, as being authoritative and which show that the relative imprecision of location of acupuncture points is in accord with the teachings of Chinese medicine, which is the basis for the art of acupuncture. The "proportional measurement method" is designed to measure gross distances on the body and to determine the approximate locations of points only. Then the acupuncturist feels for a slight hollow with his fingers which more precisely locates the point before employing the use of acupuncture needles. An important part of point location is the patient's sensitivity, which the acupuncturist observes and uses in aiding him in determining the precise point location. In any event, proportional measurement alone does not necessarily accurately locate an acupuncture point, but merely provides a gross measurement and location. The points used on the models in the examination were depicted on the models in invisible ink by the examination graders (illustrated by "black light" in the grading process). They were located by proportional measurement only. Thus, Witness Puddy established that the method of measurement used to locate the acupuncture points on the examination models is not characterized by any significant level of precision in itself, for purposes of judging the relative imprecision of a candidate's answer dot locations. Further, Witness Puddy established that there is a margin of error of 1/4 inch to one inch, depending upon which acupuncture point is involved and that if a candidate touched those areas within such a margin of error that would show a basic, competent knowledge of acupuncture. Both the Petitioner's witnesses acknowledged that various factors can alter acupuncture point locations, such as the position of the patient; the true location of a point as being beneath the skin of a patient, such that the skin can move in relation to the point location so that the point's depiction on the skin surface is an imprecise indicator, as well as the fact that the anatomical point locations simply vary because not all patients are anatomically the same. It was established by both witnesses that an imprecision in point location by practicing acupuncturists is permissible since a point's location is judged not merely by physical measurement, but by palpation and concomitant observance of the patient's reaction and sensitivity. In this connection, when the needles are used, the insertion of the needle can vary as to its location because such factors as needle angle and means of manipulation can overcome a relative lack of precision in locating the precise acupuncture point before needle insertion. Both witnesses agreed that the use of proportional measurement does not precisely define an acupuncture point, but rather serves to locate the general tolerance area which point must then be precisely located by the use of the acupuncturist's touch, combined with observing the patient's sensitivity to touch at that point. Thus, the location of acupuncture points as done in the examination preparation is in itself a relatively imprecise means of locating the points. In short, these witnesses established that acupuncturists differ as to what is an appropriate margin for error in locating an acupuncture point and established that there is no absolute standard for location of acupuncture points such as the "50 percent-of-the-dot" unwritten requirement in the grading of this examination. Both witnesses opined that if a candidate placed his answering dot in such a way as to contact the defined area of acupuncture point tolerance, then he has exhibited a basic understanding and competency as to acupuncture point location. These opinions were not rebutted and are accepted. Acupuncture point location is appropriately accomplished by taking into consideration the various variables involved and discussed above, many of which are subjective and peculiar to the individual patient. As shown by Respondent's only witness, Ella Hall, the preparers of the examination encircled each purported acupuncture point with an invisible ink circle delineating the tolerance area which varied anywhere from 5/16 to 15/16 of an inch and then enforced the Board's internal, unpublished requirement that the answer dot of the candidate had to be at least 50 percent within that varying tolerance circle. The graders, in turn, then used no measuring device to determine whether 50 percent of a dot was within the circle or not, nor in determining the size of the dot nor the size of the circle itself. These witnesses thus established that there was a significant level of imprecision in the point location portion of the examination's preparation and format. Witness Puddy's testimony, as well as the authoritative text, in evidence as Petitioner's Exhibit 2, (at page 124) establishes that the purpose of proportional measurement is to determine approximate locations of points over gross distances on the body rather than to establish a single, absolute standard for making fine measurements. It was thus demonstrated by the Petitioner that the application of the requirement of the dot being 50 percent within the requested tolerance circle, located by proportional measurement, is contrary to generally accepted theory and principles of acupuncture as described by the two expert witnesses presented by the Petitioner, as well as the text material in evidence. The location of further points by this means is contrary to the generally accepted purpose of proportional measurement in the practice of acupuncture. In summary, it has been demonstrated that the Petitioner's location of the above-mentioned six acupuncture points, which both examiners agreed touched the tolerance areas of the requested points, but for which they accorded no credit to the Petitioner, in reality are adequate demonstrations of accurate point locations. Petitioner's expert witnesses, and corroborating authoritative texts establish such point location as demonstrating a sufficiently clear and concise understanding of the prevailing principles and theories of acupuncture as to meet the purpose and intent of the examination as described in the authority discussed below.
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 a Final Order be entered by the Board of Acupuncture according the Petitioner a passing grade of 72 upon the subject acupuncture examination. DONE and ORDERED this 17th day of February, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1314 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Accepted. Accepted. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Rejected as subordinate to the Hearing Officer's Findings of Fact and as immaterial. Rejected as subordinate to the Hearing Officer's Findings of Fact and as immaterial. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. COPIES FURNISHED: Gary I. Jones 3714 Zephyr Street Houston, Texas 77021 H. Reynolds Sampson, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Marcelle Flanagan Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
