98-001528 Philip Andrew Cobb vs. Board Of Chiropractic Status: Closed Recommended Order on Monday, October 26, 1998.

Summary: Failure to accommodate candidate`s visual disability, coupled with his passing the same part of the exam at the next administration, allowed candidate to relate back the passing score, so as to pass 2/3 parts of chiropractic.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP ANDREW COBB, )

)

Petitioner, )

)

vs. ) Case No. 98-1528

)

DEPARTMENT OF HEALTH, BOARD )

OF CHIROPRACTIC, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Fort Myers, Florida, on July 17, 1998.

APPEARANCES

For Petitioner: Philip Andrew Cobb

18508 Orlando Road

Fort Myers, Florida 33912

For Respondent: Anne Marie Williamson, Attorney

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue is whether Petitioner received the proper

grades on the November 1997 chiropractic examination.

PRELIMINARY STATEMENT

By letter dated January 5, 1998, Respondent advised

Petitioner that he had received failing grades on two parts of

the chiropractic licensure examination that he had taken in

November 1997. By letter filed March 18, 1998, Petitioner

protested the scoring and requested a formal hearing.

At the hearing, Petitioner called one witness and offered

into evidence six exhibits. Respondent called two witnesses

and offered into evidence nine exhibits. All exhibits were

admitted, and Respondent Exhibits 2-8 and 10 were sealed.

The court reporter filed the transcript on August 3,

1998.

FINDINGS OF FACT

1. Petitioner graduated in 1994 from a chiropractic

university. He was licensed to practice in Michigan and saw

100-200 patients daily while in practice there.

2. In November 1997, Petitioner took the Florida

chiropractic licensure examination. The November examination

consisted of three parts: technique, physical diagnosis, and

x-ray interpretation. (A fourth part on Florida law is

irrelevant in this case.) A passing grade is 75 on each of

the parts, which are graded separately, not cumulatively.

3. Petitioner earned a passing grade of 85.5 on the

physical diagnosis part of the November examination. However,

he earned failing grades of 60 and 67.6 on the technique and

x-ray interpretation parts, respectively.

4. Petitioner suffers from diabetic retinopathy, which

resulted in neovascularization of both eyes with a rupture in

the left eye. Petitioner was totally blind in this eye for

several months until the blood drained out of it. The

residual scar tissue formed a macula, or traction, that

created a black spot in the center of Petitioner's vision with

the left eye. This condition has not been corrected by

surgery, and Petitioner has been left with a permanent blind

spot in the field of vision of his left eye.

5. When Petitioner first received his application for

the Florida examination, he did not inform Respondent of his

visual disability because it does not affect his ability to

read x-rays in viewboxes, which, based on past experience, was

how Petitioner assumed that the x-rays would be presented.

6. Later, Petitioner learned that the x-rays were

presented on slides projected on large screens for all of the

candidates taking the examination. At the November 1997

examination, there were three screens for approximately 160

candidates.

7. Two to three months prior to the test date,

Petitioner contacted a regulatory specialist for the Board of

Chiropractic to obtain the necessary accommodation, which

would consist merely of assigning Petitioner a seat in the

first row from the screen.

8. When this person did not return Petitioner's calls,

he contacted another person who was employed at the Division

of Medical Quality Assuranceying to help Petitioner, she

suggested that he bring a physician's note to the examination,

and the test administrator would seat him up front.

9. Petitioner did as he was told, but when he appeared

at the test site, about 30-45 minutes early, he was told at

the door that he could not even bring the note inside with him

to show the test administrator. Petitioner entered the test

room and found that he had been assigned a seat three rows

from the back. He tried to explain his situation to a

proctor, but was unable to get his seat moved or permission to

approach the screen to see the x-rays better, so he proceeded

to take the examination.

10. When the x-rays appeared on the screen, Petitioner

tried closing his left eye and squinting, but could not see

the x-rays sufficiently to interpret them in this timed

section of the examination.

11. Respondent's mishandling of Petitioner's timely and

reasonable request for an accommodation for this visual

disability rendered the scoring of the x-ray interpretation

part of the November examination arbitrary and capricious and

devoid of logic and reason.

12. Respondent's solution is to offer a free retest for

this part of the examination. If there were no basis in the

record to imply an accurate score for the x-ray interpretation

part of the November examination, then a free retest would be

Petitioner's sole remedy.

13. However, if there is a basis in the record to imply

an accurate score for the x-ray interpretation part of the

November examination, then this is the preferred remedy

because, for the reasons set forth in the conclusions of law,

this remedy better restores Petitioner to the position in

which he should have found himself after taking the November

1997 examination.

14. In this case, it is possible to imply a correct

score for the x-ray interpretation part of the November

examination due to: 1) the clear nature of Petitioner's

disability; 2) the clear results obtained six months later

when Petitioner retook the x-ray interpretation part of the

examination with no other accommodation besides being seated

in the front row; and 3) the absence of any indication in the

record that Petitioner enlarged his knowledge of x-ray

interpretation between November 1997 and May 1998.

15. In May 1998, Petitioner passed the x-ray

interpretation part with a score of 82.3. It is found that

Petitioner would have passed the x-ray interpretation part of

the November 1997 examination if Respondent had made

reasonable accommodation for his disability. It is further

found that, eliminating the unreasonably adverse testing

conditions at the November examination, Petitioner's proper

test score for the x-ray interpretation in the November 1997

examination is 82.3.

16. Petitioner's performance on the May 1998 examination

does not inspire as much confidence on the technique part of

the examination. Although he raised his score on the latter

examination, he still scored only a 70, which is five points

below passing. At this latter examination, Petitioner also

failed the physical diagnosis part with a score of 73.7, even

though he had passed it with an 85.5 six months earlier. This

matter is discussed in the conclusions of law.

17. Petitioner's strongest challenge to the technique

part of the November examination is confusion concerning an

instruction describing the patient as suffering from an "old

compression fracture." Petitioner did not perform the

manipulative technique, for which he would have received

credit, because he was concerned that the fracture might not

have healed; he thus performed only a soft tissue massage.

18. There is insufficient ambiguity in the description

of an "old compression fracture" to justify Petitioner's

caution, especially considering that he did not avail himself

of the opportunity to ask questions of his examiners.

19. Petitioner's other challenges to the technique part

of the November 1997 examination are without merit.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

21. The standard in challenges to examinations is

whether the examination process was compromised by the

agency's arbitrary action or action that is devoid of logic

and reason. Harac v. Department of Professional Regulation ,

484 So. 2d 1333 (Fla. 3d DCA 1986) and State ex rel. Topp v.

Board of Electrical Examiners for Jacksonville Beach , 101 So.

2d 583 (Fla. 1st DCA 1958).

22. As an applicant, Petitioner has the burden of

proving that the examination process was so compromised.

Department of Transportation v. J. W. C. Company, Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981).

23. As already noted, Petitioner has failed to show that

he is also entitled to a passing grade on the technique part

of the November examination.

24. However, Petitioner has met his burden as to the

x -ray interpretation part of the November 1997 examination.

25. Respondent does not strongly contend that the x -ray

interpretation part of the November 1997 examination was

valid. However, Respondent contends that the only remedy is

to allow Petitioner a free retest.

26. The resolution of all examination-challenge cases

must carefully account for Respondent's responsibility to

administer examinations in order to protect the public from

unskilled practitioners. It is thus typically more difficult

to rescore an improperly scored x-ray interpretation than it

is to rescore a written examination. However, when the record

permits the rescoring of an x-ray interpretation, there is no

less reason to do so than there is to rescore an improperly

scored written examination.

27. Respondent erroneously contends that Rule

61 -11.013(3), Florida Administrative Code, limits the remedy

to a free retake. This rule only requires Respondent to

provide a free retake when Respondent's negligence invalidates

the results of an examination. The de novo nature of this

proceeding permits a wider range of remedies than the limited

remedy for which Respondent argues.

28. The failure to relate back the passing score on the

x-ray interpretation from the May 1998 examination to the

November 1997 examination deprives Petitioner of a full remedy

that, at the same time, poses no risk to the public because he

passed the x-ray interpretation the first time that he could

take it under valid conditions. Rule 64B2-11.003(2), Florida

Administrative Code, allows partial retakes only if two parts

of the examination are passed and limits the number of partial

retakes that a candidate may take before he or she has to

retake the entire examination.

RECOMMENDATION

It is

RECOMMENDED that the Board of Chiropractic enter a final

order awarding Petitioner a passing grade of 82.3 for the

x -ray interpretation part of the Novem ber 1997 examination, in

place of his invalid score of 67.6, so that he will be deemed

to have passed the physical diagnosis and x-ray interpretation

parts of the chiropractic licensure examination at the

November 1997 administration.

DONE AND ENTERED this 26th day of October, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of October, 1998.

COPIES FURNISHED:

Philip Andrew Cobb

18508 Orlando Road

Fort Myers, Florida 33912

Anne Marie Williamson, Attorney

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

Eric G. Walker, Executive Director

Board of Chiropractic

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 must be filed with the

agency that will issue the final order in this case.