00-001419 Joellen L. Dreyfus vs. Department Of Health, Board Of Chiropractic Status: Closed Recommended Order on Tuesday, October 10, 2000.

Summary: Exam challenge proved addition of physical therapy to chiropractic exam violated statute and rule. Governing exam by altering percentages of areas covered. With elimination of physical therapy questions, passed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOELLEN L. DREYFUS, )

)

Petitioner, )

)

vs. ) Case No. 00-1419

)

DEPARTMENT OF HEALTH, BOARD OF )

CHIROPRACTIC, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

On August 25, 2000, a formal administrative hearing was held

in this case in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: E. Renee Alsobrook, Esquire

Post Office Box 37094

Tallahassee, Florida 32315-7094

For Respondent: Cherry A. Shaw, Esquire

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, Joellen L.

Dreyfus, should receive a passing grade on the May 1998

Chiropractic Board Examination.

PRELIMINARY STATEMENT

Petitioner filed her examination challenge on March 15,

2000. The challenge was referred to the Division of

Administrative Hearings (DOAH) on April 3, 2000. After a request

to extend the time to respond to the Initial Order was granted, a

Notice of Hearing was issued on June 5, 2000, scheduling final

hearing for August 25, 2000, in Tallahassee, Florida.

A Joint Response to Order of Pre-Hearing Instructions was

filed on August 16, 2000. Included was a stipulation that

Petitioner should have received a passing grade on the Technique

section of the examination, leaving a failing grade in the

Physical Diagnosis section of the examination.

At the outset of final hearing, a dispute arose as to which

Physical Diagnosis questions Petitioner should be allowed to

challenge. Petitioner sought to challenge Questions 21, 23, and

24; Respondent (the Department of Health) sought to limit the

challenge to Questions 23 and 24 on the ground that any challenge

to Question 21 was untimely.

The subject matter of the examination challenge in this case

included the subject matter of Questions 23 and 24 but not the

subject matter of Question 21. There was no record indication of

any challenge to Question 21 (on use of X-rays) prior to final

hearing. As late as the filing of the Joint Response to Order of

Pre-Hearing Instructions, there was no indication of a challenge

to Question 21. Nonetheless, Petitioner asserted that she still

could challenge Question 21 because the challenge was not

discovered until the Petitioner's attorney's prehearing

examination review on August 17, 2000. Petitioner first gave

notice of her intention to challenge Question 21 by letter sent

by fax late in the afternoon on August 21, 2000. Under those

circumstances, it was decided to proceed on Questions 23 and 24

and to treat the request to consider Question 21 as a request to

re-open final hearing for additional evidence on Question 21.

Ruling on the request may be found at the end of this Preliminary

Statement.

Petitioner testified in her own behalf and called two expert

witnesses in her case-in-chief. She also had Petitioner's

Exhibits 1 and 2 admitted in evidence. Respondent called four

witnesses (including two experts) and had Respondent's Exhibits

1-9, 11, and 13-16, 19-26, and 28 admitted in evidence.

(Respondent's Exhibits 3 through 6 were confidential records

admitted under seal.)

After presentation of evidence, Respondent requested a

transcript of the final hearing, and the parties were given ten

days from the filing of the transcript in which to file proposed

recommended orders ( PROs). Counsel for Petitioner then asked to

be allowed to retain Petitioner's hearing copies of Respondent's

Exhibits 4 and 5 for purposes of preparing Petitioner's PRO.

Respondent objected, ruling was reserved, and final hearing was

concluded, subject to ruling on the pending motions.

On August 31, 2000, an Order on Respondent's Exhibits 4 and

5 was entered, allowing a further in camera consideration of the

exhibits.

The Transcript was filed on September 14, 2000. The fu rther

in camera consideration of the exhibits took place on

September 20, 2000. On September 25, 2000, both parties filed

PROs, which have been considered.

Petitioner's request to re-open the evidence is denied.

Petitioner failed to establish that Respondent was to blame for

delaying the prehearing examination review. In addition,

Petitioner failed to file any motion to require an earlier

prehearing examination review. Under those circumstances,

Petitioner waived any challenge Question 21. Put another way,

Petitioner's late challenge to Question 21 was untimely. See

Recommended Order of Dismissal, Yates v. Dept. of Bus. Reg.,

Board of Prof. Land Surveyors , 1997 WL 1052912 (DOAH 1997), and

Final Order Adopting Recommended Order entered June 19, 1997.

To the extent possible, this Recommended Order has been

written in a manner so as to preserve the confidentiality of

examination questions and answers.

FINDINGS OF FACT

1. Petitioner, Joellen L. Dreyfus, applied for examination

and licensure as a chiropractor and arranged to take the May 1998

Chiropractic Board Examination. She received passing grades on

two sections of the examination (Florida Laws and Rules, and X-

ray Interpretation) but failing grades in Physical Diagnosis and

Technique. During the pendency of this proceeding, it was

stipulated that Petitioner should receive a passing grade in

Technique, leaving only a failing grade of 74 (with 75 passing)

in Physical Diagnosis. Since 75 was passing, Petitioner would

pass the examination either if she is given credit for an

additional answer, or if a question for which she did not get

credit is eliminated.

2. On July 24, 1998, Petitioner telephoned Respondent, the

Department of Health, to request that a "review form for

Chiropractic" be sent to her address in Dunedin, Florida. On

July 30, 1998, Petitioner requested a post-examination review,

which provided the same address in Dunedin, Florida. Respondent

arranged for the review on September 10, 1998, and attempted to

notify Petitioner of the review by letter dated August 21 and

postmarked August 25, 1998, and addressed to Petitioner at her

address in Dunedin, Florida, certified mail, return receipt

requested.

3. Not long after asking for the review, Petitioner moved

to Georgia. Petitioner gave the United States Postal Service

(USPS) a forwarding address in Cartersville, Georgia, but never

notified Respondent of a change of address. When the USPS

received Respondent's letter to Petitioner, it placed a postal

stamp dated August 30, 1998, on th e envelope, bearing the

Cartersville address and a request addressed to Petitioner to

notify the sender (Respondent) of Petitioner's Cartersville

address.

4. The USPS attempted to deliver the letter to Petitioner

at the Cartersville, Georgia, address on September 2 and 7, 1998,

but could not and had to leave notices for Petitioner to claim

the letter. When Petitioner did not claim the letter, the Postal

Service "X"-ed out the postal stamp with the Cartersville address

and returned the letter to Respondent on September 17, 1998, with

a notation that Petitioner had not claimed the letter. The USPS

"X"- ed out the postal stamp to signify that the Cartersville

address was not a good address. Respondent received the returned

letter on September 23, 1998.

5. Because the review notice could not be delivered,

Petitioner never received notice. Not having received notice,

Petitioner did not appear at the scheduled examination review and

was recorded as a "no-show" even though the post office had not

yet delivered a return receipt to Respondent.

6. Ten to fifteen percent of the 200 examination reviews a

year do not "show." Respondent treats them the same way as it

treated Petitioner in this case, which is the same way Respondent

treats examination "no-shows." It is not Respondent's practice

to attempt to contact either examination or review "no-shows."

7. Petitioner did not re-contact Respondent until August

1999. Initially, Petitioner applied to re-take the Chiropractic

Examination in November 1999 but withdrew her application on

September 27, 1999, when she realized that her national board

part I score expired on December 31, 1998, and her national board

scores for parts II and III were going to expire on December 31,

1999. On December 31, 1999, Petition er attempted to "lock-in"

her national board scores but was told that it was too late.

8. When Petitioner realized that there was no way to

preserve her national board scores, she renewed her request to

review the May 1998 examination. With the assistance of her new

attorney, Petitioner persuaded Respondent to agree to an

examination review, which was scheduled for February 2000.

9. In its proposed recommended order (PRO), Respondent

contended that examination review in February 2000 was "for the

sole purpose of preparing for the next examination." (Emphasis

in PRO.) Respondent cited no evidence to support this

contention, and none is found in the record. Petitioner's

examination challenge was filed on March 15, 1998.

10. Respondent also contended in its PRO that Petitioner

should be barred from challenging the May 1998 Chiropractic Board

Examination under the doctrine of laches. But not only was

laches not raised as a defense in the Joint Response to Order of

Pre-Hearing Instructions or at any time prior to Respondent's

PRO, there was no evidence that the delay in the examination

challenge made it difficult for Respondent to defend against the

challenge.

11. Petitioner's examination challenge blamed Respondent

for the delay in reviewing the May 1998 examination and for the

expiration of her national board scores. It also complained of

alleged lack of anonymity and erasure marks on the answer key as

well as on "the visceral portion of physical diagnosis." It then

challenged two specific physiotherapy questions: one dealing

with ultrasound (Question 23); and another dealing with

cryotherapy (Question 24). As to the ultrasound, Petitioner

essentially complained that she should not have been tested on

ultrasound because, as a "straight" chiropractor (as opposed to a

"mixer"), Petitioner did not use ultrasound in her practice and

did not study it in school. As to the cryotherapy, Petitioner

also complained that the answer she gave on the examination was

correct and should have received credit. Finally, Petitioner

challenged the Technique section of the examination (which

Respondent eventually conceded).

12. Like Question 23, Question 24 was worth 5 points on the

100 -point grading scale for the Physical Diagnosis section of the

examination. Question 24 consisted of two parts, A and B, each

worth 2.5 points.

13. Question 24 dealt with the use of cryotherapy. Part A

required a demonstration, which Petitioner clearly failed.

(Petitioner did not challenge part A.) After Petitioner

attempted her demonstration, one of the examiners asked a

question that approximated but was somewhat different from the

actual first subpart of Question 24B. It does not appear from

the evidence that Petitioner herself read the first subpart of

Question 24B; she clearly did not read the question aloud. But

it does not appear that Petitioner was confused by the way in

which the examiner asked the first subpart of Question 24B.

14. Petitioner's answer to the first subpart of Question

24B varied from (was more conservative than) the accepted answer

for time and length of cryotherapy treatment using ice packs.

Petitioner testified that she answered conservatively because the

hypothetical patient was 60 years old.

15. Petitioner's proposed, more conservative treatment may

be appropriate for 60 year-olds with diabetes, fragile skin and

blood vessels, or other hypersensitivity to cold due to aging.

But for most other 60 year-olds, normal cryotherapy protocol is

not contraindicated.

16. Question 24 was silent as to whether cryotherapy was

contraindicated in the hypothetical patient. During the

examination, Petitioner did not ask for clarification as to

whether cryotherapy was contraindicated. It could not be

ascertained from the videotape of the examination whether

Petitioner's answer to the first subpart of Question 24B was

adjusted to take into account possible contraindications due to

age of the hypothetical patient.

17. The authoritative source for the accepted answer

( Applied Physiotherapy , Second Edition, by Jaskoviak and Schafer,

p. 249) stated:

Cold packs are usually applied for 20-30

minutes when maximum effect is to be

achieved. After 30 minutes, the packs lose

their necessary degree of therapeutic

coolness and must be returned to the

refrigerated tank.

The point of the authoritative source appears to be that cold

packs do not remain cold enough for maximum therapeutic effect

for longer than 30 minutes, not that cold packs must be used for

30 minutes for maximum therapeutic effect. It also does not rule

out more conservative treatment for a 60 year-old, even assuming

no contraindications.

18. Respondent's expert testified persuasively that the

authoritative source supported and bolstered his independent

knowledge from personal education and extensive experience that

the accepted answer was correct, not only generally but also in

the case of a 60 year-old female with no contraindications.

Petitioner's two experts testified to the contrary. But one had

virtually no education, training, and experience in

physiotherapy, and the other's education, training, and

experience in physiotherapy was far less than Respondent's

expert.

19. When Petitioner finished her answer to the first

subpart of Question 24B, one of the examiners asked a question

that approximated but differed significantly from the actual

second subpart of Question 24B. The second subpart of Question

24B asked for a listing of physical sensations related to

cryotherapy, in sequential order. But the examiner did not

initially ask for them in sequential order. The evidence was

clear that Petitioner herself did not reread the second subpart

of Question 24B; again, she clearly did not read the question

aloud.

20. Petitioner began to answer the examiner's question,

naming second and fourth sensations in the sequence. As

Petitioner paused in her response, one of the examiners told

Petitioner that there were four sensations and that Petitioner

was required to name all of them in sequential order. The

examiner then repeated the sensation mentioned by Petitioner as

the first in the sequence. Petitioner continued her response by

repeating only the second sensation in the sequence, adding the

third sensation in the sequence, and not repeating the fourth

sensation in the sequence. Petitioner never named the first

sensation in the sequence. At the end of her answer to the

second subpart of Question 24B, she commented: "I'm sorry.

That's the best I can do. I guess this is why I should have

taken physiotherapy."

21. Petitioner argued that the examiner(s) violated the

Examiner Manual for the Chiropractic Examination May 1998 (the

Examiner Manual) and, in so doing, may have misled Petitioner

into thinking that the first sensation mentioned by Petitioner in

her answer to the second subpart to Question 24B was the first

sensation in the sequence and may have caused Petitioner to omit

the actual first sensation in the sequence.

22. The Examiner Manual stated in pertinent part:

During the examination

If necessary, remind the candidate to

read the questions out loud for the video.

Do not read the questions to the candidate or

ask the candidate for additional information .

(Emphasis in original.)

We have agreed on the following

solutions to possible problems:

* * *

The answer is incomplete: ask for a

complete answer.

* * *

Avoid Giving Clues

DO NOT ask any additional questions, and

DO NOT provide any feedback about the

correctness of the answers. When the

candidate gives a wrong answer, do not ask

the candidate to answer it again. You may

think you are doing the candidate a favor,

but most of the time candidates do not think

that way.

23. While the examiner(s) may have misled Petitioner as to

the first sensation in the sequence, Petitioner also never gave

the last three sensations in proper order. The evidence did not

prove that the examiner(s) misled Petitioner in regard to those

sensations. In addition, Petitioner more or less conceded to the

examiners that she was guessing throughout her attempted answers

to Questions 23 and 24. She told the examiners that she had no

education in or knowledge of cryotherapy and did not use it in

her practice. While correct guesses count as correct answers,

Petitioner's admitted guessing supports the finding that she did

not answer the second subpart to Question 24B correctly.

24. Petitioner also argued that she should be given partial

credit for her answer to the second subpart of Question 24B. But

while partial credit was given for a completely correct answer to

either subpart of Question 24B, partial credit was not given for

a partially correct answer to a subpart. Petitioner did not

prove that the it was arbitrary or unreasonable not to give

partial credit for a partially correct answer to a subpart. To

give Petitioner partial credit for a partially correct answer to

a subpart of Question 24B would give Petitioner an unfair

advantage over other candidates.

25. Question 23 also was worth 5 points on a 100-point

grading scale for the Physical Diagnosis section of the

examination. Petitioner clearly did not answer Question 23 on

the use of ultrasound as physiotherapy.

26. Petitioner asserted that it was unfair and improper for

Respondent to ask questions on physiotherapy on the May 1998

Chiropractic Board Examination because she had no education,

training, or experience in it. Petitioner learned "straight"

chiropractic at Life University in Georgia and practiced

"straight" chiropractic for 12 years in Georgia. "Straight"

chiropractic is limited to identification and correction of

skeletal subluxations by direct manipulation. It does not use

physiotherapy techniques, such as ultrasound and cryotherapy

(icing). But, contrary to Petitioner's position in this case, it

is found that Petitioner did have the opportunity to study

physiotherapy during and after college, but she chose not to.

27. Petitioner also asserted that Respondent gave her

inadequate notice that physiotherapy questions would be on the

May 1998 Chiropractic Board Examination. The Candidate

Information Booklet for the May 1998 Chiropractic Licensure and

Certification Examination (the Candidate Information Booklet)

advised candidates approximately what areas would be covered in

the Physical Diagnosis section of the examination, namely:

Orthopedic and Neurological 30-35%; Diagnostic Imaging 20-25%;

Case History and Physical 15-20%; Laboratory 5-10%; Diagnosis 15-

20%; and Clinical Judgment 5-10%. But it also included the

following statement:

Based on the Board of Chiropractic's approval

of a proposal made by the Department of

Business and Professional Regulation,

starting with the May 1998 examination, the

Physical Diagnosis portion of the examination

will include questions relating to the

practice of Physiotherapy. The inclusion of

these questions does not alter the percentage

of areas to be tested on the Physical

Diagnosis portion [of] the examination, as

stated in Chapter 64B2 of the Board Rules.

28. The only other evidence as to whether inclusion of the

physiotherapy questions ( i.e. , Questions 23 and 24) caused the

percentage of areas to be tested to depart from the

approximations in the Candidate booklet or the percentages stated

in the pertinent Board rule was the testimony of Respondent's

psychometric expert. It was her general understanding that

inclusion of the physiotherapy questions did not alter the

percentages because: "They are covered all through the exam I

believe." But she conceded that her expertise does not extend to

examination content, and she could not testify specifically as to

how inclusion of the physiotherapy questions affected the

percentages in the Candidate Information Booklet and in Chapter

64B2 of the Board Rules. No "content expert" addressed the

issue.

29. It is found that the only place where physiotherapy

possibly might fit under the Candidate Information Booklet's

description of Physical Diagnosis would be under "clinical

judgment." If the physiotherapy questions were assigned to

"clinical judgment" under Physical Diagnosis, the ten points

assigned to those questions would have to be added to the six

points assigned to "clinical judgment" on other parts of the

Physical Diagnosis examination, for a total of 16 points, which

exceeds the maximum percentage in the Candidate Information

Booklet. (As reflected in the Conclusion of Law 42, infra , the

same holds true for the percentages stated in Chapter 64B2 of the

Board Rules.)

CONCLUSIONS OF LAW

30. At final hearing, Petitioner had the burden to prove by

a preponderance of the evidence that she passed the Physical

Diagnosis section of the May 1998 Chiropractic Board Examination.

See Harac v. Dept. of Prof. Reg. , 484 So. 2d 1333 (Fla. 3d DCA

1986); Dept. of Transportation v. J.W.C. Company, Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981); State ex rel. Glasser v. J.M.

Pepper , 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v.

Board of Electrical Examiners , 101 So. 2d 583 (Fla. 1st DCA

1958). Petitioner attempted to do this in part by proving that

her answer to the first subpart of Question 24B was correct.

31. As reflected in the Findings of Fact, Petitioner failed

to meet her burden of proof in that regard. Respondent's

"judgment as to the proper grading of such examinations will not

be disturbed by the courts, unless clearly shown to be arbitrary

or devoid of logic and reason." State ex rel. Topp v. Board of

Electrical Examiners , supra , at 586. "Admittedly there will be

questions on examinations of this type for which the amount of

credit to be given various answers may differ in the minds of

reasonable men. That such condition exists is not alone

sufficient cause upon which to bottom an alleged abuse of

discretion." Id.

32. Petitioner also attempted to claim partial credit for

her answer to the second subpart of Question 24B, but she did not

prove that it was arbitrary or unreasonable for Respondent to

disallow partial credit for subparts of Question 24B. To the

contrary, regulatory licensing agencies must "conduct their

examinations fairly and uniformly in accordance with lawful

authority and their own rules and regulations . . .." Id.

33. Finally, Petitioner argued that she passed the Physical

Diagnosis section of the May 1998 Chiropractic Board Examination

because Questions 23 and 24 must be eliminated.

34. Petitioner first argues that Questions 23 and 24 (the

physiotherapy questions) should be eliminated because their

inclusion violated Section 460.406(1)(c), Florida Statutes

(1997), by resulting in the denial of licensure to Petitioner

"solely because the applicant is a graduate of a chiropractic

college that subscribes to one philosophy of chiropractic

medicine as distinguished from another." But it is concluded

that the inclusion of the physiotherapy questions did not violate

Section 460.406(1)(c). (As pointed out by Respondent, Section

460.406(1) referred to denial of an application to take the

chiropractic examination; it does not apply to administration of

the examination.)

35. Petitioner next argues that inclusion of the

physiotherapy questions violated several other statutes governing

chiropractic medicine in Florida at the time of the examination.

Section 460.403(8), Florida Statutes (1997), provided in

pertinent part:

(a) "Practice of chiropractic" means a

noncombative principle and practice

consisting of the science, philosophy, and

art of the adjustment, manipulation, and

treatment of the human body in which

vertebral subluxations and other

malpositioned articulations and structures

that are interfering with the normal

generation, transmission, and expression of

nerve impulse between the brain, organs, and

tissue cells of the body, thereby causing

disease, are adjusted, manipulated, or

treated, thus restoring the normal flow of

nerve impulse which produces normal function

and consequent health by chiropractic

physicians using specific chiropractic

adjustment or manipulation techniques taught

in chiropractic colleges accredited by the

Council on Chiropractic Education. No person

other than a licensed chiropractic physician

may render chiropractic services,

chiropractic adjustments, or chiropractic

manipulations.

(b) Any chiropractic physician who has

complied with the provisions of this chapter

may examine, analyze, and diagnose the human

living body and its diseases by the use of

any physical, chemical, electrical, or

thermal method ; use the X ray for diagnosing;

phlebotomize; and use any other general

method of examination for diagnosis and

analysis taught in any school of

chiropractic.

(c)1. Chiropractic physicians may adjust,

manipulate, or treat the human body by

manual, mechanical, electrical, or natural

methods; by the use of physical means or

physiotherapy, including light, heat, water,

or exercise ; by the use of acupuncture; or by

the administration of foods, food

concentrates, food extracts, and items for

which a prescription is not required and may

apply first aid and hygiene, but chiropractic

physicians are expressly prohibited from

prescribing or administering to any person

any legend drug except as authorized under

subparagraph 2., from performing any surgery

except as stated herein, or from practicing

obstetrics.

* * *

(f) Any chiropractic physician who has

complied with the provisions of this chapter

is authorized to analyze and diagnose

abnormal bodily functions and to adjust the

physical representative of the primary cause

of disease as is herein defined and provided.

. . . A chiropractic physician may not use

acupuncture until certified by the board.

(Emphasis added.)

36. Section 460.401, Florida Statutes (1997), stated:

The sole legislative purpose for enacting

this chapter is to ensure that every

chiropractic physician practicing in this

state meets minimum requirements for safe

practice. It is the legislative intent that

chiropractic physicians who fall below

minimum competency or who otherwise present a

danger to the public health be prohibited

from practicing in this state.

37. Section 455.517, Florida Statutes (1997), stated in

pertinent part:

(1) It is the intent of the Legislature

that persons desiring to engage in any lawful

profession regulated by the department shall

be entitled to do so as a matter of right if

otherwise qualified.

(2) The Legislature further believes that

such professions shall be regulated only for

the preservation of the health, safety, and

welfare of the public under the police powers

of the state.

* * *

(4) No board, nor the department, shall

create unreasonably restrictive and

extraordinary standards that deter qualified

persons from entering the various

professions.

38. Petitioner argues essentially that Section 460.403(8)

made physiotherapy optional, and Sections 460.401 and 455.517

prohibited testing optional practice areas. This argument is

rejected. Section 455.574(1)(a), Florida Statutes (1997),

provided in pertinent part: "The department shall certify that

examinations developed and approved by the department adequately

and reliably measure an applicant's ability to practice the

profession regulated by the department." Since physiotherapy and

other optional practice areas were regulated by Respondent,

Respondent was authorized to administer examinations covering

those optional areas, subject to other pertinent statutes and

rules. Cf. Buxbaum v. Dept. of Prof. Reg. , 13 F.A.L.R. 2029,

1991 WL 832841.

39. But Petitioner also argues that other pertinent

statutes and rules prohibited Respondent from testing

physiotherapy on the May 1998 Chiropractic Board Examination.

40. Section 455.574(1), Florida Statutes (1997), also

provided in pertinent part:

(a) . . . After an examinat ion developed or

approved by the department has been

administered, the board, or the department

when there is no board, may reject any

question which does not reliably measure the

general areas of competency specified in the

rules of the board. . . .

(b) For each examination developed by the

department or contracted vendor, to the

extent not otherwise specified by statute,

the board, or the department when there is no

board, shall by rule specify the general

areas of competency to be covered by each

examination, the relative weight to be

assigned in grading each area tested , and the

score necessary to achieve a passing grade,

and fees, where applicable, to cover the

actual cost for any purchase, development,

and administration of required examinations.

. . . If a practical examination is deemed

to be necessary, the rules shall specify the

criteria by which examiners are to be

selected, the grading criteria to be used by

the examiner, the relative weight to be

assigned in grading each criterion, and the

score necessary to achieve a passing grade.

41. At the time of the May 1998 Chiropractic Board

Examination, Florida Administrative Code Rule 64B2-11.003 set out

the subject areas to be tested for competency on Respondent's

practical examination in chiropractic. They included: X-ray

interpretation; Technique; Physical Diagnosis; and Florida laws

and rules. As to Physical Diagnosis, paragraph (1)(c) of the

rule stated:

Physical diagnosis, which may include any of

the following: case history, chiropractic

examination, general physical examination,

orthopedic examination, neurological

examination, X-ray technique and diagnosis,

laboratory technique and diagnosis,

nutrition, differential diagnosis, and

clinical judgment according to the following

approximate weights:

Orthopedic and neurological 30-35%

Diagnostic imaging 20-25%

Case history and physical 15-20%

Laboratory 5-10%

Diagnosis 15-20%

Clinical judgment 5-10%

The only place where physiotherapy possibly might fit under the

rule's description of Physical Diagnosis would be under "clinical

judgment."

42. If the physiotherapy questions were assigned to

"clinical judgment" under Physical Diagnosis, the ten points

assigned to those questions would have to be added to the six

points assigned to "clinical judgment" on other parts of the

Physical Diagnosis examination, for a total of 16 points, which

exceeds the maximum percentage in the rule (and in the Candidate

Information Booklet for the May 1998 Chiropractic Board

Examination, as reflected in Finding 29, supra .)

43. It is concluded that Questions 23 and 24 must be

rejected because, if they are included, the Physical Diagnosis

examination would not "reliably measure the general areas of

competency specified in the rules of the board ." (Emphasis

added.) Section 455.574(1)(a), Florida Statutes (1997).

Regulatory licensing agencies must "conduct their examinations

fairly and uniformly in accordance with lawful authority and

their own rules and regulations . . .." See State ex rel. Topp

v. Board of Electrical Examiners , supra , at 586. With Questions

23 and 24 eliminated, Petitioner passed the May 1998 Chiropractic

Board Examination.

44. In its PRO, Respondent sought to bar Petitioner's

examination challenge on the ground of laches. The defense of

laches was available to Respondent in this case. See Devine v.

Dept. of Prof. Reg. , 451 So. 2d 994 (Fla. 1st DCA 1984). But one

of the required elements of the defense of laches is injury or

prejudice to the defendant. Id. at 996. Unlike in Devine , where

examination records had been destroyed in the normal course of

business during the passage of time prior to the examination

challenge, there was no evidence of missing examination records

or any other injury or prejudice to Respondent as a result of

passage of time in this case.

45. Respondent seems to argue that injury or prejudice

resulted because Petitioner's examination review in February 2000

was untimely under Florida Administrative Code Rule 64B-1.0013.

But an examination review was not a prerequisite to Petitioner's

examination challenge, and the timing of the review had no effect

on Respondent's ability to respond to Petitioner's examination

challenge. While Respondent might have been able to deny the

request for examination review as untimely, Respondent cannot use

the doctrine of laches to bar the examination challenge on the

basis of an untimely examination review.

46. Even if the evidence had proved a meritorious defense

of laches, Respondent waived the defense in this case by not

raising it in the Joint Response to Order of Pre-Hearing

Instructions or at any time prior to its proposed recommended

order. See State ex rel. Glasser v. J.M. Pepper , supra , at 384

("Having agreed at the pre-trial conference that the only issue

to be tried was whether appellant passed the examination taken by

him, and whether the Board capriciously and arbitrarily failed to

give him a passing grade but on the contrary gave him a failing

grade, appellant precluded himself from injecting into the trial

any separate or different issues other than those agreed upon at

the pretrial conference.") To allow Respondent to add the

defense of laches through its PRO would violate Petitioner's

right to procedural due process of law.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, the Department of Health, enter

a final order that Petitioner passed the May 1998 Chiropractic

Board Examination.

DONE AND ENTERED this 10th day of October, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Adm inistrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of October, 2000.

COPIES FURNISHED:

E. Renee Alsobrook, Esquire

Post Office Box 37094

Tallahassee, Florida 32315-7094

Cherry A. Shaw, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-0950

Joe Baker, Jr., Executive Director

Board of Chiropractic

Department of Health

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399-3257

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

4052 Bald Cypress Way

Bin A00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.