98-001797 John Bisanti vs. Board Of Chiropractic Status: Closed Recommended Order on Tuesday, September 1, 1998.

Summary: Petitioner failed to prove entitlement to additional points on licensure examination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN BISANTI, )

)

Petitioner, )

)

vs. ) Case No. 98-1797

)

DEPARTMENT OF HEALTH, )

BOARD OF CHIROPRACTIC, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Notice was provided and on August 4, 1998, a formal hearing

was conducted in this case under authority set forth in Sections

120.569(1) and 120.57(1), Florida Statutes. By agreement of the

parties and the administrative law judge, all persons

participated in the hearing at the offices of the Division of

Administrative Hearings, Tallahassee, Florida, with the exception

that Petitioner participated by telephone from Springfield,

Massachusetts. Charles C. Adams was the Administrative Law

Judge.

APPEARANCES

For Petitioner: John Bisanti, pro se

150 Sumner Avenue

Springfield, Massachusetts 01108

For Respondent: Ann Marie Frazee, Esquire

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUES

Should Petitioner receive a passing grade for the technique

portion for the November 1997 chiropractic licensure examination

(the examination) administered by Respondent?

PRELIMINARY STATEMENT

By mail dated January 5, 1998, Petitioner was informed that

he had received a score of 70 points for the technique portion of

the examination. To pass, Petitioner must have received a score

of 75 points on that portion of the examination. In all other

respects Petitioner had passed the examination. In response,

Petitioner challenged the scores that he received for technique

in relation to the examiner score sheets at lines 1, 4, and 7.

To resolve those issues Petitioner requested a formal hearing.

In turn, the case was transmitted to the Division of

Administrative Hearings and the formal hearing ensued.

Petitioner testified in his own behalf. Petitioner's

Exhibits A through C were admitted. Respondent presented the

testimony of Zohre Bahrayni, Ph.D., and Darrel Thomas Mathis,

D.C. Respondent's Exhibits 1 through 8 were admitted.

The parties filed a prehearing statement in which the

parties stipulated to certain facts.

Respondent's counsel requested that official recognition be

made of Chapters 61-11 and 64B2-11.001 through 11.013, Florida

Administrative Code. That request was granted.

The parties were provided the opportunity to submit proposed

recommended orders following the filing of the hearing

transcript. The transcript was filed on August 13, 1998.

Respondent's counsel filed a proposed recommended order.

Petitioner did not. The submission by the Respondent has been

considered in preparing the recommended order.

FINDINGS OF FACT

1. Petitioner practices chiropractic in Massachusetts. In

November 1997, Petitioner took the Florida chiropractic licensure

examination. To pass that examination it was necessary for

Petitioner to score 75 points on the technique portion of the

examination. Petitioner received a score of 70 points.

Petitioner disputes the scores received on several questions,

described as questions 1, 4, and 7. Each contested question is

worth five points.

2. As a candidate for licensure, Petitioner received an

information booklet which contained a reading list informing the

candidates of writings of experts in various subjects covered by

the examination, upon whom the candidates should rely. This

included a list of experts in the technique portion of the

examination. Respondent intended to defer to the opinions of

those experts in grading the candidates.

3. Additionally, Petitioner and other candidates in the

November 1997 examination, were provided written instructions

concerning the technique portion of the examination. Those

instructions stated:

TECHNIQUE EXAMINATION

FORM 1

Demonstrate the following chiropractic

techniques on the patient. For each

technique, indicate the

a. patient and doctor position.

b. location of the segment.

c. patient and doctor contact point.

d. line of drive.

Do not actually perform the techniques, but

set them up and indicate how you would

perform them.

If the technique is grossly inadequate and/or

clinically inappropriate, no credit will be

given for that technique.

Technique 1: Bilateral Anterior-Superior

Ilia

Technique 2: Posterior Radial Head on Left

Technique 3: Plantar Cuboid

Technique 4: Posterior Superior Occiput on

Right

Technique 5: L-2, Left Posterior Spinous

Yes or No for position, location, contact,

and line of drive/correction

CHIROPRACTIC PRACTICAL EXAMINATION

11/97 TECHNIQUE (EXAMINER)

4. The expectation was that each candidate in the

examination would set up and indicate the manner in which the

candidate would perform the five techniques and the four specific

positions, locations, contact points, and lines of drive related

to the five techniques, without actually performing to

conclusion.

5. Petitioner and other candidates were graded by two

examiners. The examiners, in scoring the candidates, used a

grading sheet which described the activities by referring to the

five techniques as cases. The various positions, locations,

contact points, and lines of drive were numbered 1 through 20,

with the first four numbers referring to case 1, numbers 5

through 8 referring to case 2, et cetera .

6. Before performing as examiners in the November 1997

session, the examiners who graded Petitioner underwent training

to ensure that they followed the same criteria for scoring the

Petitioner.

7. Petitioner contests the scores that he received in

relation to technique 1 position a./case 1 position 1; technique

1 line of drive d./case 1 line of drive 4; and technique 2

patient and contact point c./case 2 contact point 7. Those items

respectively correspond to questions 1, 4, and 7, referred to by

the parties.

8. After the two examiners entered the individual scores

for the various items within a technique, the scores by the

individual examiners were added to arrive at an aggregate score.

The aggregate score was then divided by two to reach the final

results on the technique portion of the examination. By that

arrangement Petitioner received a score of 70 points,

insufficient to pass the technique portion of the examination.

9. Although examiner 07, in the score sheet reference case

1 position 1, marked "Y" to point out that the Petitioner had

achieved compliance with the expectations of that technique, the

examiner did not assign five points to the Petitioner indicating

credit for that item. Instead the score sheet reflects zero

points for the item. Examiner 15 in relation to that item, wrote

"N" on the score sheet signifying non-compliance and provided

zero points for non-compliance. In all other respects the scores

of the two examiners in relation to the technique portion of the

examination, to include the disputed items, were in accord.

10. Notwithstanding the determination by the initial

examiners that Petitioner had failed the technique portion,

Respondent instituted a non-rule policy to have three additional

examiners review Petitioner's performance on the technique

portion, by resort to the audio-video tape that had been made

during the pendency of the technique portion of the examination.

Apparently, Respondent in view of the reference by examiner 07 to

"Y," indicating compliance with case 1 position 1, treated the

item in a manner which signified compliance. Thus Petitioner was

entitled to 5 points on the score sheet of examiner 07. The

activities of the discrepancy reviewers were designed to

determine whether that view finding compliance should be upheld

in a setting where examiner 15 had entered "N" for that item

signifying non-compliance. The review was expected to break the

impasse. The three reviewers determined that Petitioner had not

complied with the requirements of case 1 position 1. As a

result, the score of 70 points, the average arrived at by adding

and then dividing the two 70-point scores assigned by the

original examiners was upheld. When Petitioner was given notice

of the examination results, the 70-point score for the technique

portion was reflected in those results.

11. By inference it is found that the original examiners

and discrepancy reviewers practiced chiropractic in Florida.

12. In reference to case 1 position 1, examiner 15

commented about "contact P.S.I.S. should be ischium." P.S.I.S.

stands for Postier Superior Iliac Spine. Examiner 07 made no

comment concerning that item.

13. In reference to case 1 line of drive 4, both examiners

felt that Petitioner had not complied with that requirement.

Examiner 07, in commenting, stated "not on ischium." Examiner 15

commented "wrong line of drive."

14. In reference to case 2 cont act point 7, examiner 07

commented, "Not thumb-thenar." Examiner 15 commented, "No thumb

contact."

15. At the hearing to contest the preliminary determination

finding Petitioner to have failed the technique portion of the

examination, Petitioner offered his testimony as an expert in

chiropractic concerning the several items at issue. To rebut

that testimony, Respondent presented Dr. Darryl Thomas Mathis, an

expert who practices chiropractic in Florida. Dr. Mathis also

served as an examiner in the licensure examination, but did not

test Petitioner. In his opinion Petitioner feels that he is

entitled to additional points on each of the several questions at

issue. In his opinion, Dr. Mathis disagrees.

16. In explaining his performance related to case 1

position 1, Petitioner opined that his placement of the patient

in the side posture position was correct.

17. Petitioner also opined that his position for the case

was correct.

18. By contrast to the Petitioner's opinion concerning case

1 position 1, Dr. Mathis expressed the opinion that Petitioner's

position in addressing the patient was incorrect. According to

Dr. Mathis, Petitioner had his hand pointing upward parallel to

the spine of the patient and not 90 degrees to the spine when

contacting the ischium as required. In Dr. Mathis' opinion the

table height for the examination area Petitioner was working in

did not prohibit Petitioner from positioning himself

appropriately to demonstrate his position reference to the

patient. Dr. Mathis' opinion is accepted. Petitioner is not

entitled to receive points for case 1 position 1.

19. In reference to case 1 line of drive 4, Petitioner

offered his explanation in the examination that he would use the

opposite of the actual listing. He opined that given the way

that the inter-joint subluxates, one would go in the opposite

direction to get a more neutral setting. Therefore when dealing

with anterior-superior, one would go postier and inferior to

accomplish the opposite of the listing. In contrast, Dr. Mathis,

in offering his opinion about this item, referred to the

anterior-superior listing as one in which the pelvis, in the

circumstance that is bilateral, makes it such that both hip

bones, or the pelvis in its entirety, has tipped forward and up

over the femur heads or leg bones. Noting that Petitioner stated

in his examination that he would thrust in the opposite manner,

postier to anterior, meaning back to front, and superior to

inferior, from top to bottom, Dr. Mathis opined that Petitioner

was partially correct. However, Dr. Mathis was persuaded that

additional information was required as to the actual angle or

direction of thrust determined by the shaft of the femur or leg

bone, and this additional information was not addressed by

Petitioner. Dr. Mathis criticizes Petitioner's explanation of

the technique to be employed on this item by leaving out the

shaft of the femur as constituting the determinate of the angle

employed. Moreover, Dr. Mathis did not believe that Petitioner

could, in the attempt to demonstrate the technique at issue,

perform adequately. The Petitioner was on the upper portion of

the pelvis or ilium as opposed to being on the ischium, or lower

portion of the pelvis. Consequently, according to Dr. Mathis, if

Petitioner was going to thrust in the direction that Petitioner

stated he would, he could not get the correction that he was

attempting to obtain because Petitioner was on the wrong segment

or portion of the pelvis. As Dr. Mathis perceives it, Petitioner

could not physically accomplish by demonstration, what he claimed

he could do because Petitioner was in the wrong location to make

that correction.

20. Dr. Mathis' opinion about case 1 line of drive 4 is

accepted. Petitioner is not entitled to receive points for this

item.

21. Case 2 contact point 7 is what Petitioner refers as to

tennis elbow. Petitioner concedes that normally he would use the

thumb as the contact point; however, he offers his opinion that

during the time of his practice, he has learned other techniques.

According to Petitioner, those other techniques are especially

useful to address an acute patient with a lot of swelling, where

a thumb contact can be painful. Therefore, Petitioner believes

that the thenar, the soft part of the palm of the hand below the

thumb, is appropriate as a contact point in an acute situation.

Given this alternative, Petitioner did not believe that his use

of the thenar in the examination was harmful. By contrast Dr.

Mathis believes that the thumb is the only acceptable answer.

Further, Dr. Mathis stated that the reference list provided to

Petitioner and other candidates prior to the examination, in

association with A.Z. States' description of the appropriate

technique, upon which the Respondent relied in determining the

appropriate answer for this item, concludes that the thumb is to

be employed in this technique. Dr. Mathis' opinion is accepted.

Petitioner is not entitled to receive points for case 2 contact

point 7.

CONCLUSIONS OF LAW

22. The Division of Administ rative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569(1), and 120.57(1),

Florida Statutes.

23. Petitioner was notified that he failed the technique

portion of the chiropractic licensure examination given in

November 1997. To set aside that preliminary determination,

Petitioner must prove by a preponderance of the evidence that he

did pass the technique portion of the examination. As a party

asserting the affirmative, Petitioner bears the burden of proof.

See Florida Dept. of Trans. v. J. W. C. Co., Inc. , 396 So. 2d 778

(1st DCA 1981).

24. As required, Petitioner's performance on the technical

portion of the licensure examination was independently evaluated

by two examiners, with those independent grades assigned being

averaged to produce a final score. See Rule 61-11.009(2),

Florida Administrative Code. Following the averaging, the score

was 70 points. To pass the technique portion of the examination,

it was necessary for Petitioner to receive 75 points of the

possible 100 points. See Rule 64B2-11.003(2), Florida

Administrative Code.

25. From the evidence presented, and based upon the facts

found, Petitioner failed to prove that he was entitled to

sufficient additional points to pass the technique portion of the

1997 chiropractic licensure examination.

RECOMMENDATION

It is, RECOMMENDED:

That a Final Order be issued finding that Petitioner did not

pass the technique portion of the 1997 chiropractic licensure

examination.

DONE AND ENTERED this 1st day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES C. ADAMS

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 1st day of September , 1998.

COPIES FURNISHED:

John Bisanti

150 Sumner Avenue

Springfield, Massachusetts 01108

Ann Marie Frazee, Esquire

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

Eric G. Walker, Executive Director

Board of Chiropractic

Department of Health

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.