00-001609 Adrian Sagman vs. Department Of Health, Board Of Chiropractic Status: Closed Recommended Order on Tuesday, November 7, 2000.

Summary: Candidate taking chiropractic licensure examination failed to establish that he should have been awarded a higher score on the examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADRIAN SAGMAN, )

)

Petitioner, )

)

vs. ) Case No. 00-1609

)

DEPARTMENT OF HEALTH, )

BOARD OF CHIROPRACTIC, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on August

31, 2000, by video teleconference at sites in Miami and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Mark L. Rosen, Esquire

18250 Northwest 2nd Avenue

Miami, Florida 33169

For Respondent: Cherry A. Shaw, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tall ahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to additional credit for the

answer he gave in response to Question 21 on the physical

diagnosis portion of the November 1999 chiropractic licensure

examination.

PRELIMINARY STATEMENT

On April 5, 2000, Petitioner filed with the Agency Clerk of

the Department of Health (Department) a petition requesting a

hearing to contest the failing score that he received on the

physical diagnosis portion of the November 1999 chiropractic

licensure examination.

On April 14, 2000, the Department referred the matter to the

Division of Administrative Hearings (Division) for the assignment

of an Administrative Law Judge "to conduct a fact-finding hearing

pursuant to Sec[ tion] 120.57(1), Florida Statutes, and to submit

a Recommended Order to [the Department]."

As noted above, the hearing was held on August 31, 2000. At

the outset of the hearing, the parties announced that the only

matter in dispute was the scoring of Petitioner's response to

Question 21 on the physical diagnosis portion of the licensure

examination.

During the evidentiary portion of the hearing, four

witnesses testified: Petitioner; Lawrence Weiner, D.C.; Juan

Trujillo; and John Gentile, D.C. In addition to the testimony of

these four witnesses, 15 exhibits (Petitioner's Exhibits 1

through 3 and Respondent's Exhibits 1 through 5 and 7 through 13)

were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing,

the undersigned announced, on the record, that if the parties

desired to file proposed recommended orders, they had to do so

within 20 days from the date the transcript of the final hearing

was filed with the Division. The hearing Transcript (consisting

of one volume) was filed with the Division on October 12, 2000.

On October 31, 2000, the Department filed a Proposed

Recommended Order, which has been carefully considered by the

undersigned. To date, Petitioner has not filed any post-hearing

submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Petitioner took the chiropractic licensure examination

administered in November of 1999.

2. The practical examination consisted of three parts:

"technique," "physical diagnosis," and "x-ray interpretation."

The minimum passing score for each part was 75.

3. Petitioner passed the "technique" and "x-ray

interpretation" portions of the examination; however, he failed

the "physical diagnosis" portion of the examination (PD Test),

with a score of 68.

4. On this portion of the examination, candidates

demonstrated their knowledge of "physical diagnosis" by

responding to test questions, in the presence of two examiners,

verbally and/or, where appropriate, by demonstrating on a

"patient." Their responses were independently evaluated and

graded by the two examiners. A candidate's final score was the

average of the two examiners' scores.

5. Prior to the administration of the PD Test, all

examiners were provided with instructions regarding their role in

the examination process and the standards they should follow in

grading the candidates' performance.

6. Candidates were provided with a Candidate Information

Booklet (CIB) in advance of the licensure examination. Among

other things, the CIB listed, by category ("acupuncture,"

"physical diagnosis," "technique," and "x-ray") reference

materials that could "be used to prepare for the examination."

The list was preceded by the following advisement:

The list is not to be considered all-

inclusive. Thus, other comparable texts may

be used to prepare for the examination.

Under the category of "x-ray" the following "references" were

listed:

Eisenburg, Gastrointestinal Radiology- A

Pattern Approach , Hagerstown, MD:

Lippencott, Second Edition, 1989.

Paul & Juhl, Essentials of Radiologic

Imaging , Hagerstown, MD, Lippencott, Sixth

edition, 1993.

Taveras & Ferrucci, Radiology: Diagnosis-

Imaging-Intervention , Hagerstown, MD:

Lippencott, 1986. Five-volume set, loose-

leaf renewed in July 1994.

Yocum, T. R., & Rowe, L. J., Essentials of

Skeletal Radiology , Baltimore: Williams &

Wilkins, First Edition 1986.

Not on the list under "x-ray" or under any other category was Dr.

Robert Percuoco's Radiographic Positioning for the Chiropractor

(Dr. Percuoco's Publication), the text book used by Dr. Percuoco

in the radiology classes he teaches at the Palmer College of

Chiropractic in Davenport, Iowa (Palmer). Palmer was the

nation's first college of chiropractic, and is accredited by the

Council of Chiropractic Education. Petitioner graduated from

Palmer and was taught radiology by Dr. Percuoco.

7. Question 21 on the PD Test was an eight-point

"diagnostic imaging" question (with no provision for partial

credit) that asked the candidates to "demonstrate a Lateral

Thoracic view." Among the six items the candidates had to

address in answering the question was the central ray.

8. Page 54 of the Dr. Percuoco's Publication describes

what, according to the author, needs to be done to obtain a view

of the lateral thoracic spine. It provides, in pertinent part,

as follows (Dr. Percuoco's Approach):

Center the central ray to the film. The

vertical portion of the central ray should

pass posterior to the head of the humeri.

9. In responding to Question 21 on the PD Test, Petitioner

relied on the foregoing excerpt from Dr. Percuoco's Publication.

He told the examiners that the central ray should be centered to

the film and that the vertical portion of the central ray should

pass one inch posterior to the head of the humerus.

10. The two examiners evaluating his performance both gave

Petitioner an "A" (or no points) for his response to Question 21.

In so doing, they acted reasonably and in accordance with the

grading instructions they had received prior to the

administration of the PD Test.

11. Dr. Percuoco's Approach (upon which Petitioner relied)

is not generally accepted in the chiropractic community.

12. A reasonably prudent chiropractor, in taking an x-ray

of the lateral thoracic spine, would do what was necessary to

have the central ray pass, not "posterior to the head of the

humeri," but "approximately 3 inches inferior to [the] sternal

angle," as Drs. Yocum and Rowe, two of the most respected

radiologists in the country today, instruct in their text,

Essentials of Skeletal Radiology , which was one of the reference

materials listed in the CIB (Dr. Yocum's and Dr. Rowe's

Approach).

12. Dr. Yocum's and Dr. Rowe's Approach yields a more exact

and complete view of the lateral thoracic spine than does Dr.

Percuoco's Approach.

13. Because Petitioner failed to incorporate Dr. Yocum's

and Dr. Rowe's Approach in his response to Question 21, the

examiners were justified in determining that Petitioner did not

answer all six parts of the question correctly and that he

therefore should be awarded an "A" (or no points) for his

response.

CONCLUSIONS OF LAW

14. Any person seeking a license to practice chiropractic

in the State of Florida must take and pass the licensure

examination. Sections 460.406 and 460.411, Florida Statutes.

15. Such licensure examination must "adequately and

reliably measure an applicant's ability to practice

[chiropractic.]" Section 456.017(1)(a), Florida Statutes.

16. The Board of Chiropractic (Board) has been statutorily

empowered to, "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." Section 456.017(1)(b), Florida

Statutes.

17. The Board has adopted such a rule. The rule, Rule

64B2-11.003, Florida Administrative Code, provides as follows:

(1) The Board requires the candidate to pass

the practical examination developed by the

Department of Health, which measures

competency in the following subject areas:

(a) X-ray interpretation of chiropractic and

pathology films. The subject areas and

associated approximate weights for the x-ray

examination shall be as follows:

Congenital anomalies and normal skeletal

variants 12-25%

Trauma 15-20%

Arthritic disorders 10-15%

Tumors and tumorlike processes 5-10%

Infection 1-5%

Hematological and vascular disorders 1-5%

Nutritional, metabolic, and endocrine

Disorders 1-5%

Chest 1-5%

Biomechanics 5-10%

Alternative 1-5%

Technique 5-10%

Anatomy 5-10%

(b) Technique, which may include

manipulation or adjustment of any of the

following anatomical areas: the occiput,

cervical, thoracic, lumbar, pelvis, ribs,

extremities, soft tissue, and the whole body

according to the following approximate

weights:

Doctor/patient position 25%

Location of segment 25%

Contact point 25%

Line of drive 25%

(c) 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%

(2) A score of 75% on each subject area in

subsection (1) shall be necessary to achieve

a passing score on the practical portion of

the examination outlined in subsection (1).

Upon initial examination, an applicant must

take the entire practical examination. The

applicant must pass at least two (2) of the

three (3) subject areas of the practical

examination in order to retake any failed

subject area. The applicant may retake a

failed subject area only twice, upon which

time the applicant must retake the entire

practical examination.

(3) In addition to the examinations in

subsection (1), the Board also requires the

candidate to pass the examination developed

and administered by the Department of Health,

which measures an applicant's knowledge of

Chapters 455, Part II, and 460, Florida

Statutes, and the rules promulgated

thereunder. A score of 75% shall be

necessary to achieve a passing score on this

part of the examination.

(4) An applicant who is a diplomate of the

American Board of Chiropractic Roentgenology

shall not be required to take the portion of

the practical examination measuring X-ray

interpretation of chiropractic and pathology

films. An applicant who is a diplomate of

the American Board of Chiropractic

Orthopedics shall not be requested to take

the portion of the practical examination

measuring orthopedic diagnosis.

(5) Upon written request from an applicant

who has been approved for examination, the

Department shall provide a translated version

of the examination for licensure into a

language other than English. If no such

translated examination exists, however, the

Department shall require the applicant to pay

the cost of the translation before employing

translators to perform the task.

18. A candidate's performance on the practical examination

must be evaluated by at least two examiners. Each examiner is

required to "independently evaluate the performance of each

candidate." The candidate's final score is arrived at by

averaging the independent grades of the examiners. Rules 64B-

1.006 and 64B-1.008, Florida Administrative Code.

19. Examiners must meet the qualifications prescribed by

Rule 64B2-11.007, Florida Administrative Code, which provides as

follows:

(1) In order to be eligible to act as an

examiner consultant for the licensure

examination, the prospective examiner must

meet the following criteria:

(a) the prospective examiner must have been

actively licensed in the State of Florida as

a chiropractor for at least five (5) years;

(b) the prospective examiner must not have

had a chiropractic license or other health

care license suspended, revoked, or otherwise

acted against. If the prospective examiner

has had prior disciplinary actions, he or she

may apply to the Board for permission to act

as an examiner, and shall provide all

information pertinent to that determination.

(c) the prospective examiner must not be

currently under investigation by the

Department, or by any state or federal

agency;

(d) effective February 28, 1996, the

prospective examiner must have completed not

less than 20 additional hours of post

graduate training or education beyond the

continuing education required for renewal of

licensure during the previous biennium;

(e) the prospective examiner must submit a

current vita including a list of all post

graduate education.

(2) In order to be eligible to act as an

examiner consultant for a certification

examination, the prospective examiner must

meet the criteria established in subsection

(1), and in addition, be certified in the

area to be examined.

(3) Individuals who meet the qualifications

of subsections (1) and (2) of this rule must

be certified pursuant to Rule 64B-1.007,

F.A.C. The Department shall select, from the

Board's recommended list, a sufficient number

of individuals to insure that there will be

an adequate pool from which to draw the

requisite number of examiners.

20. Examiners are required, by rule, to attend "a

standardization session prior to grading to discuss the scoring

criteria and standards." Rule 64B-11.008(1)(d), Florida

Administrative Code.

21. Pursuant to Rule 64B-1.013, Florida Administrative

Code, a candidate who fails to attain a passing score on the

chiropractic licensure examination has "the right to review the

examination questions, answers, papers, grades, and grading keys"

in the presence of a representative of the Department.

22. If the candidate believes that an error was made in the

grading of the examination, the candidate may request a hearing,

pursuant to Chapter 120, Florida Statutes.

23. Petitioner requested such a hearing in the instant case

to contest the failing score (68, seven points below the minimum

passing score) he received on the PD Test.

24. The Department granted Petitioner's request for a

hearing and referred the matter to the Division for the

assignment of an Administrative Law Judge to conduct the hearing

Petitioner had requested.

25. At the hearing, Petitioner had the burden of

establishing, by a preponderance of the evidence, that his

failing score was the product of arbitrary or otherwise improper

or erroneous scoring. See Harac v. Department of Professional

Regulation, Board of Architecture , 484 So. 2d 1333, 1338

(Fla. 3d DCA 1986)("Ordinarily one who fails a licensure

examination would shoulder a heavy burden in proving that a

subjective evaluation by an expert is arbitrary."); Florida

Department of Health and Rehabilitative Services v. Career

Service Commission , 289 So. 2d 412, 414 (Fla. 4th

DCA 1974)(1974)("[T]he burden of proof is on the party asserting

the affirmative on an issue before an administrative

tribunal. . . . 'As a general rule the comparative degree of

proof by which a case must be established is the same before an

administrative tribunal as in a judicial proceeding--that is, [a]

preponderance of the evidence. It is not satisfied by proof

creating an equipoise, but it does not require proof beyond a

reasonable doubt.'"); and Section 120.57(1)(j), Florida Statutes

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute, and shall be based

exclusively on the evidence of record and on matters officially

recognized.").

26. Petitioner failed to submit such proof in the instant

case.

27. The only question the scoring of which Petitioner

disputes is Question 21 on the PD Test. He was given no points

for his response to this question. The Department contends that

this is what Petitioner deserved because he failed to correctly

answer that part of the question dealing with the central ray

(Central Ray Part). 1/ Petitioner, on the other hand, claims

that his answer to the Central Ray Part of the question was

correct and that, having answered all parts to the question

correctly, he should have received eight points for his response

to the question (which would have resulted in his receiving a

passing grade, 76, on the PD Test).

28. In support of his position, Petitioner presented the

testimony of an independent expert witness, Lawrence Weiner,

D.C., who has been practicing chiropractic for the past eight

years. He also relied on his own testimony, which he was free to

do notwithstanding his interest in the outcome of the case. See

Martuccio v. Department of Professional Regulation , 622 So. 2d

607, 609-10 (Fla. 1st DCA 1993). The Department countered

Petitioner's evidentiary presentation with, among other things,

the testimony of its own chiropractic expert, John Gentile, D.C.,

a knowledgeable practicing chiropractic physician with 20 years

more experience than Dr. Weiner. Given Dr. Gentile's impressive

credentials, his considerable chiropractic experience, and his

apparent candor and lack of bias, the undersigned has credited

his expert testimony (concerning the correctness of Petitioner's

answer to the Central Ray Part of Question 21 on the PD Test)

over the testimony to the contrary of Petitioner and Dr. Weiner

(neither of whom has the credentials or the experience that Dr.

Gentile has). Relying on Dr. Gentile's testimony, the

undersigned has determined that Petitioner did not answer the

Central Ray Part of Question 21 correctly and that Petitioner

therefore did not deserve to receive, in view of the grading

instructions for the PD Test, any more points than he did for his

response to the question.

29. Because the preponderance of the evidence does not

establish that Petitioner's failing score on the PD Test was the

product of arbitrary or otherwise improper or erroneous grading,

Petitioner's challenge to this failing score should be rejected.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered rejecting

Petitioner's challenge to the failing score he received on the

physical diagnosis portion of the November 1999 chiropractic

licensure examination.

DONE AND ENTERED this 7th day of November, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative 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 7th day of November, 2000.

ENDNOTE

1/ The Department does not take the position that Petitioner

answered any other part of the question incorrectly.

COPIES FURNISHED:

Mark L. Rosen, Esquire

18250 Northwest 2nd Avenue

Miami, Florida 33169

Cherry A. Shaw, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

Joe Baker, Jr., Executive Director

Board of Chiropractic

Department of Health

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399-3257

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

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.