98-001502 Jenny P. Caceres vs. Board Of Chiropractic Status: Closed Recommended Order on Thursday, October 15, 1998.

Summary: Candidate for licensure as chiropractic physician failed to meet burden of proving that her failing grade on "physical diagnosis" portion of licensure test was product of improper or erroneous grading.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNY C. CACERES, )

)

Petitioner, )

)

vs. ) Case No. 98-1502

)

DEPARTMENT OF HEALTH, )

BOARD OF CHIROPRACTIC, )

)

Respond ent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in

this case on July 31, 1998, 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: Jenny P. Caceres, pro se

2809 Southwest 23rd Terrace

Miami, Florida 33145

For Respondent: Anne Marie Frazee, Esquire

Department of Health

2020 Capital Circle Southeast

Bin number A 02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the failing grade she

received on the physical diagnosis portion of the November 1997

chiropractic licensure examination should be sustained.

PRELIMINARY STATEMENT

By letter dated March 16, 1998, Petitioner requested a

Section 120.57(1) hearing on her challenge to the failing grades

she received on the "physical diagnosis" and "x-ray

interpretation" portions of the November 1997 chiropractic

licensure examination. On March 26, 1998, the matter was

referred to the Division of Administrative Hearings (Division)

for the assignment of an administrative law judge to conduct the

hearing Petitioner had requested.

As noted above, the hearing was held on July 31, 1998. At

the outset of the hearing, Respondent, through counsel, announced

that it had determined that Petitioner should have received

additional points for her responses to questions 18 and 21 on the

"physical diagnosis" portion of the November 1997 licensure

examination. 1/

During the evidentiary portion of the hearing, Petitioner

testified in support of her challenge to the scoring of her

responses to questions 12, 13, 16, 17, 18, 19, and 20 on the

"physical diagnosis" portion of the licensure examination. She

also offered two exhibits into evidence in support of her

position. Both of Petitioner's exhibits were admitted by the

undersigned. Petitioner presented no evidence concerning the "x-

ray interpretation" portion of the licensure examination, thereby

abandoning her challenge to the failing grade she received on

this portion of the examination.

Respondent offered the testimony of Zohre Bayrayni, a

psychometrician with the Department of Business and Professional

Regulation, and Dr. Philip Leon, a chiropractic physician. In

addition, it introduced seven exhibits, all of which were

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 ten days from the date the transcript of the final hearing

was filed with the Division. The hearing transcript was filed

with the Division on October 1, 1998.

Petitioner and Respondent filed their proposed recommended

orders on August 26, 1998, and October 7, 1998, respectively.

These post-hearing submittals have been carefully considered by

the undersigned.

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 1997.

2. The examination consisted of four parts: "x-ray

interpretation"; "technique"; "Florida laws and rules"; and

"physical diagnosis." The minimum passing score for each part

was 75.

3. Petitioner passed the "Florida laws and rules" and

"technique" portions of the examination. She failed the "x-ray

interpretation" and "physical diagnosis" portions of the

examination, with scores of 63.20 and 70.50. respectively.

4. As noted above, Petitioner's evidentiary presentation at

hearing addressed only the "physical diagnosis" portion of the

November 1997 licensure examination.

5. On this portion of the examination, candidates

demonstrated their knowledge of physical diagnosis by responding

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

verbally 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

examiners' scores.

6. Prior to the administration of the "physical diagnosis"

portion of the November 1997 licensure examination (PD Test),

examiners were provided with written instructions (Examiners'

Instructions) regarding their role in the examination process and

the standards they should follow in grading candidates'

performance. In addition, examiners were required to attend a

pre-examination organizational meeting at which they were

provided with further instructions and training designed to

enhance grading standardization.

7. Questions 11 through 13 on the PD Test covered the

subject of orthopedics.

8. Candidates were presented with a written case history to

which they were to refer in responding to these questions, as

well as to all subsequent questions on the PD Test (including

those at issue in the instant case).

9. In question 11, candidates were asked to select (from a

list) four orthopedic tests which, under the circumstances

presented in the case history, were appropriate to administer to

the "patient."

10. As Petitioner conceded at hearing, of the four tests

she selected, only three were appropriate. The fourth test she

selected, Yergason's Test, was not an appropriate test to

administer in view of the "patient's" case history.

11. In question 12, candidates were asked to demonstrate on

the "patient" how they would administer the tests they selected

in response to question 11.

12. Question 12 was worth four points. The Examiners'

Instructions provided that candidates should be awarded four

points for selecting and properly demonstrating four appropriate

tests; three points for selecting and properly demonstrating

three appropriate tests; two points for selecting and properly

demonstrating two appropriate tests; and one point for selecting

and properly demonstrating one appropriate test.

13. Both examiners awarded Petitioner two points for her

response to question 12.

14. Although she selected three appropriate tests, she

properly demonstrated only two of these three tests. The test

she did not properly demonstrate was Tinel's Sign.

15. The "patient's" case history suggested that ulnar

nerve, not median nerve, testing needed to be done on the

"patient."

16. There are five types of Tinel's Sign tests. One is

designed to test the ulnar nerve and involves tapping on the

"funny bone." Another is for testing the median nerve and

involves tapping on the wrist.

17. Petitioner demonstrated the type of Tinsel's Sign test

used to probe the median nerve, when she should have demonstrated

the type used to test the ulnar nerve.

18. Because she selected only three appropriate tests and

demonstrated only two of these tests properly, the examiners did

not act without reason or in a manner contrary to the grading

guidelines set forth in the Examiners' Instructions by failing to

award Petitioner more than two points for question 12.

19. Question 13 required candidates to state what

conditions would be suggested by positive results from the tests

selected and demonstrated.

20. Question 13 was worth four points. The Examiners'

Instructions provided that candidates should be awarded four

points for selecting four appropriate tests and correctly

stating, as to each, what condition would be indicated by

positive test results; three points for selecting three

appropriate tests and correctly stating, as to each, what

condition would be indicated by positive test results; two points

for selecting two appropriate tests and correctly stating, as to

each, what condition would be indicated by positive results; and

one point for selecting one appropriate test and correctly

stating, as to that test, what condition would be indicated by

positive test results.

21. Both examiners awarded Petitioner two points for her

response to question 13.

22. Petitioner did not correctly name the condition

suggested by a positive Cervical Compression test, one of the

three tests she correctly selected in response to question 11.

23. Because Petitioner selected only three appropriate

tests and, with respect to one of these tests (the Cervical

Compression test), failed to correctly state what condition would

be indicated by positive test results, the examiners did not act

without reason or in a manner contrary to the grading guidelines

set forth in the Examiners' Instructions by failing to award

Petitioner more than two points for question 13.

24. Questions 14 through 16 on the PD Test covered the

subject of range of motion.

25. In question 16, candidates were asked to explain the

difference and significance between active range of motion and

passive range of motion.

26. Question 16 was worth one point. The Examiners'

Instructions provided that no partial credit could awarded for

answers to question 16.

27. Neither examiner awarded Petitioner any credit for her

response to question 16.

28. In responding to the question, Petitioner gave an

accurate explanation of the difference between active range of

motion and passive range of motion (by noting that the former,

unlike the latter, is performed by the patient without

assistance), but she did not accurately explain the significance

of the difference, as required by the second part of the

question. Petitioner incorrectly stated, in attempting to answer

this part of the question, that active range of motion is

characterized by ligament involvement.

29. Because Petitioner did not correctly answer question 16

in its entirety, the examiners did not act without reason or in a

manner contrary to the grading guidelines set forth in the

Examiners' Instructions by failing to award Petitioner any points

for this question.

30. Questions 17 through 19 on the PD Test covered the

subject of neurology and focused upon muscle testing.

31. Question 17 required candidates to name all relevant

muscles that that they would test in light of the case history

with which they were presented (which reflected that the

"patient" had neck pain and numbness radiating down her right arm

into her ring finger and little finger).

32. Question 17 was worth two points. The Examiners'

Instructions provided that candidates should be awarded two

points for naming four relevant muscles; one and a half points

for naming three relevant muscles; one point for naming two

relevant muscles; and a half point for naming one relevant

muscle.

33. Neither of the two examiners awarded Petitioner any

credit for her response to question 17.

34. There was no connection between the muscles Petitioner

named and the nerve root that the symptoms (described in the case

history) suggested was the cause of the "patient's" problems.

35. Inasmuch as Petitioner named no relevant muscles, the

examiners did not act without reason or in a manner contrary to

the grading guidelines set forth in the Examiners' Instructions

by failing to award Petitioner any points for question 17.

36. Question 18 required candidates to demonstrate on the

"patient" how to test two muscles selected by the examiners.

Petitioner was asked to test the "patient's "triceps muscle and

the interossei muscles of the "patient's" hand.

37. The Examiners' Instructions provided that candidates

should be awarded two points (full credit) for correctly

demonstrating both tests and one point for correctly

demonstrating one of the two tests.

38. One examiner awarded Petitioner two points for her

demonstration in response to question 18. The other examiner did

not award Petitioner any points. Accordingly, Petitioner

received one point (the average of the two examiners' point

awards) for her response to question 18.

39. Petitioner tested the interossei muscles of the

"patient's" hand in a manner that is unconventional, but

nonetheless acceptable. She did not test the "patient's" triceps

muscle correctly, however, inasmuch as she did not, during her

demonstration, do what was necessary to isolate that muscle.

40. Because she performed only one of the two tests

correctly, awarding Petitioner more than the one point she has

already received for her response to question 18 would be

inconsistent with the grading guidelines set forth in the

Examiners' Instructions.

41. To receive credit for question 19, candidates had to

explain and interpret a grade level of muscle testing selected by

the examiners. (There are six such grade levels: zero through

five. The examiners were instructed to select one of these six

grade levels.) Petitioner was asked by the examiners to explain

and interpret grade level three testing.

42. Question 19 was worth one point. The Examiners'

Instructions provided that no partial credit could awarded for

responses to question 19.

43. One examiner awarded Petitioner one point for her

response to question 19. The other examiner did not award

Petitioner any points. Accordingly, Petitioner received a half

point (the average of the two examiners' point awards) for her

response to question 19.

44. Petitioner incorrectly stated, in response to question

19, that grade level three testing involves range of motion

without gravity. Grade level three testing actually involves

range of motion with gravity.

45. Accordingly, pursuant to the scoring guidelines set

forth in the Examiners' Instructions, Petitioner should not have

received any credit for her response to question 19.

46. Questions 20 and 21 on the PD Test covered dermatomes

and sensory testing.

47. Question 20 required candidates to name all relevant

dermatome patterns that they would test for in light of the

"patient's" case history and to demonstrate one of these tests

(selected by the examiners) on the "patient." Petitioner was

asked to demonstrate dermatome C5 testing.

48. Question 20 was worth two points. The Examiners'

Instructions provided that candidates should be awarded two

points for correctly naming all relevant dermatome patterns and

correctly demonstrating the selected test, and one point if they

correctly named all relevant dermatome patterns or correctly

demonstrated the selected test (but failed to do both).

49. One examiner awarded Petitioner two points for her

response to question 20. The other examiner awarded Petitioner

one point. Accordingly, Petitioner received one and a half

points (the average of the two examiners' point awards) for her

response to question 20.

50. Petitioner correctly named all of the relevant

dermatome patterns, but she incorrectly demonstrated dermatome C5

testing inasmuch as she focused upon the trapezium ridge, rather

than the lateral aspect of the arm.

51. Accordingly, pursuant to the grading guidelines set

forth in the Examiners' Instructions, Petitioner should have

received one point for question 20.

52. Question 21 was worth two points. One examiner awarded

Petitioner two points for her response to question 21. The other

examiner awarded Petitioner one point. Accordingly, Petitioner

received one and a half points (the average of the two examiners'

point awards) for her response to question 21. Respondent

concedes that Petitioner should have received full credit (two

points) for her response to question 21, and there is no evidence

indicating otherwise.

CONCLUSIONS OF LAW

53. 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.

54. Such licensure examination must "adequately and

reliably measure an applicant's ability to practice

[chiropractic.]" Section 455.574(1)(a), Florida Statutes.

55. 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 455.574(1)(b), Florida

Statutes.

56. 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

disorder 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

Chapter 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.

57. 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.

58. 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 five

years of continuous practice in the State of

Florida as a licensed chiropractor;

(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 59-1.073(5),

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.

59. 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.

60. 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 Respondent.

61. 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.

62. Petitioner requested such a hearing in the instant case

to contest the failing grade (70.5, 4.5 points below the minimum

passing grade) she received on the physical diagnosis portion of

the November 1997, licensure examination. Respondent 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.

63. At the hearing, Petitioner had the burden of

establishing by a preponderance of the evidence that her failing

grade was the product of arbitrary or otherwise improper or

erroneous grading. See Harac v. Department of Professional

Regulation, Board of Architecture , 484 So. 2d 1333, 1338 (Fla. 3d

DCA 1986); Florida Department of Health and Rehabilitative

Services v. Career Service Commission , 289 So. 2d 412, 414 (Fla.

4th DCA 1974).

64. She failed to meet this burden of proof.

65. In attempting to meet her burden, Petitioner did not

present the testimony of any independent expert witness.

Instead, she relied exclusively on her own testimony, which she

was free to do notwithstanding her interest in the outcome of the

case. See Martuccio v. Department of Professional Regulation ,

622 So. 2d 607, 609-10 (Fla. 1st DCA 1993). Respondent countered

Petitioner's testimony with the expert testimony of an

experienced and knowledgeable practicing chiropractic physician,

Dr. Philip Leon. Given Dr. Leon's impressive credentials and

qualifications, his superior knowledge and expertise, and his

apparent candor and lack of bias, the undersigned has credited

Dr. Leon's expert testimony (concerning the appropriateness of

Petitioner's responses to questions 12, 13, 16, 17, 18, 19 and

20) over Petitioner's testimony to the contrary. While it is

undisputed that Petitioner should have received two, instead of

one and a half, points for her response to question 21, it

appears, based upon Dr. Leon's testimony, that none of the other

challenged scores (that is, averaged point awards) Petitioner

received on the PD Test (for questions 12, 13, 16, 17, 18, 19,

and 20) was undeservingly low. Adding just a half point (for her

response to question 21) to her total score on the PD Test would

still give her a failing grade (of 71) on this portion of the

licensure examination.

66. Because the preponderance of the evidence does not

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

product of arbitrary or otherwise improper or erroneous grading,

Petitioner's challenge to this failing grade 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 grade she received on the

physical diagnosis portion of the November 1997 chiropractic

licensure examination.

DONE AND ENTERED this 15th day of October, 1998, 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 ( 850) 921-6847

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of October, 1998.

ENDNOTE

1/ Respondent conceded that Petitioner was entitled to full

credit for her response to question 21. It, however, did not

agree that Petitioner also should have received full credit for

her response to question 18, although it did admit that one of

the examiners erred in giving her no credit (instead of partial

credit) for her response to this question.

COPIES FURNISHED:

Jenny P. Caceres, pro se

2809 Southwest 23rd Terrace

Miami, Florida 33145

Anne Marie Frazee, Esquire

Department of Health

2020 Capital Circle, Southeast

Bin number A 02

Tallahassee, Florida 32399-1703

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

Eric G. Walker, Executive Director

Board of Chiropractic

1940 North Monroe Street

Tallahassee, Florida 32399-0752

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.