98-004943 Rafael D. Mota vs. Board Of Medicine
 Status: Closed
Recommended Order on Friday, April 30, 1999.

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Summary: Respondent conceded that Petitioner should receive credit for one challenged question. Petitioner failed to demonstrate that he should receive credit for the remaining challenged questions. Recommend to dismiss challenge and deny licensure.





13Petitioner, )


16vs. ) Case No. 98-4943





31Respondent. )



36Pursuant to notice, a formal hearing was held in this case

47by video teleconference on February 12, 1999, at sites located in

58Miami and Tallahassee, Florida, before Errol H. Powell, a

67designated Administrative Law Judge of the Division of

75Administrative Hearings.


78For Petitioner: Rafael D. Mota, pro se

858320 Northwest 10th Street, No. 9

91Miami, Florida 33126

94For Respondent: Anne Marie Frazee, Esquire

100Department of Health

1032020 Capital Circle, Southeast

107Bin A02

109Tallahassee, Florida 32399-1703


116The issue for determination is whether Petitioner is

124eligible for licensure as a physician assistant.


133In June 1998, Rafael D. Mota (Petitioner) took the General

143Written Exam part of the Physician Assistant Examination

151(Examination). The minimum score required to pass the

159Examination was 600. The Department of Business and Professional

168Regulation (DBPR) administered the Examination for the Department

176of Health (Respondent). DBPR notified Petitioner that he did not

186successfully complete the Examination, having received a score of

195589.20. By letter dated October 21, 1998, Petitioner requested a

205hearing pursuant to Subsection 120.57(1), Florida Statutes. On

213November 4, 1998, this matter was referred to the Division of

224Administrative Hearings.

226At hearing, Petitioner testified in his own behalf and

235entered five exhibits (Petitioner's Exhibits numbered 1-5) into

243evidence. Respondent presented the testimony of two witnesses

251(both experts) 1 and entered ten exhibits (Respondent's Exhibits

260numbered 1-7, 9, 16, and 17) 2 into evidence. Official

270recognition was taken of Sections 458.347, 455.647, and 455.574,

279Florida Statutes; and Chapter 64B-1 and Rule 64B8-30.003, Florida

288Administrative Code.

290A transcript of the hearing was ordered. At the request of

301the parties, the time for filing post-hearing submissions was set

311for ten days following the filing of the transcript. The

321transcript was filed on March 31, 1999. The parties timely filed

332post-hearing submissions (Petitioner on February 17, 1999, and

340Respondent on April 5, 1999), which have been considered in the

351preparation of this Recommended Order.


3591. In June 1998, Rafael D. Mota (Petitioner) took the

369General Written Exam part of the Physician Assistant Examination


3792. The minimum score required to pass the Examination was

389600. The Department of Business and Professional Regulation

397(DBPR) administered the Examination for the Department of Health

406(Respondent). DBPR notified Petitioner that he did not

414successfully complete the Examination, having received a score of


4243. Petitioner challenged five questions. They were

431questions numbered 108, 173, 179, 224, and 235. Petitioner

440needed to demonstrate that he correctly answered four of the five

451questions to successfully complete the Examination.

4574. At hearing, Respondent conceded that Petitioner answered

465question numbered 179 correctly and should receive credit for

474that question. Consequently, Petitioner needs only to

481demonstrate that he correctly answered three of the remaining

490four questions being challenged.

4945. At hearing, Petitioner agreed that the Examination was


5046. The instructions for the Examination directed the

512candidates for licensure taking the Examination, among other

520things, to "choose the best answer to each question."

5297. As to question numbered 108, the best and correct

539response was "A." Petitioner chose "C" as the correct response.

549The response chosen by Petitioner is a symptom, not a

559complication. Generally, the symptom chosen by Petitioner does

567not require medical attention. Petitioner should not receive

575credit for question numbered 108. 3

5818. As to question numbered 173, the best and correct

591response was "A." Petitioner chose "B" as the correct response.

601The treatment for response "A" involves medication which is meant

611to stop a stroke; whereas the treatment for response "B" is not

623for the threat of a stroke. Even though response "B" is a risk

636factor for a stroke, response "A" is more of a risk factor than

649response "B". Petitioner should not receive credit for question

659numbered 173. 4

6629. As to question numbered 224, the best and correct

672response was "C." Petitioner chose "D" as the correct response.

682Question numbered 224, specifically addressed newborn babies.

689The condition identified for newborns is normally regarded as

698transient, so response "C" would be the best response.

707Petitioner's response "D" was more appropriate for non-infants.

715Petitioner should not receive credit for question numbered 224. 5

72510. As to question numbered 235, the best and correct

735response was "A." Petitioner chose "B" as the correct response.

745Response "A" is the first drug of choice for treatment; whereas,

756response "B" is one of the drugs used if response "A" is

768ineffective. Petitioner should not receive credit for question

776numbered 235. 6

77911. Petitioner's answers were not arbitrarily or

786capriciously graded.

78812. The grading process was not devoid of logic and reason.


80213. The Division of Administrative Hearings has

809jurisdiction over the subject matter of this proceeding and the

819parties thereto pursuant to Section 120.569 and Subsection

827120.57(1), Florida Statutes.

83014. Petitioner, as the applicant, has the ultimate burden

839of proof to establish that he is entitled to licensure as a

851physician assistant. Florida Department of Transportation v.

858J.W.C. Company, Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

87015. The burden of proof is upon the Petitioner to show by a

883preponderance of evidence that the Examination was faulty, that

892the questions on the Examination were worded arbitrarily or

901capriciously, that his answers to the questions were arbitrarily

910or capriciously graded, or that the grading process was devoid of

921logic and reason. Harac v. Department of Professional

929Regulation, Board of Architecture , 484 So. 2d 1333, 1338 (Fla. 3d

940DCA 1986); State ex rel. Glaser v. Pepper , 155 So. 2d 383 (Fla.

9531st DCA 1963); State ex rel. Topp v. Board of Electrical

964Examiners for Jacksonville Beach , 101 So. 2d 583 (Fla. 1st DCA


97616. Petitioner challenged the grading of his answers to the

986questions numbered 108, 173, 179, 224, and 235. Respondent

995conceded at the outset that Petitioner correctly answered

1003question numbered 179 and should receive credit for that


101317. Petitioner agreed that the Examination was fair.

102118. Petitioner failed to satisfy his burden of proof. He

1031failed to demonstrate that his answers were arbitrarily or

1040capriciously graded or that the grading process was devoid of

1050logic and reason.

105319. Petitioner is not entitled to additional credit for

1062questions numbered 108, 173, 224, and 235.


1070Based on the foregoing Findings of Fact and Conclusions of

1080Law, it is

1083RECOMMENDED that the Department of Health enter a final

1092order giving Rafael D. Mota credit for question numbered 179,

1102dismissing his examination challenge, and denying him licensure

1110as a physician assistant.

1114DONE AND ENTERED this 30th day of April, 1999, in

1124Tallahassee, Leon County, Florida.



1132Administrative Law Judge

1135Division of Administrative Hearings

1139The DeSoto Building

11421230 Apalachee Parkway

1145Tallahassee, Florida 32399-3060

1148(850) 488-9675 SUNCOM 278-9675

1152Fax Filing (850) 921-6847


1157Filed with the Clerk of the

1163Division of Administrative Hearings

1167this 30th day of April, 1999.


11741/ One witness was an expert in psychometrics. The other

1184witness was an expert in physician assistants.

11912/ Respondent's Exhibits numbered 8, 10-15, 18-20 were withdrawn

1200by Respondent.

12023/ Considering the proof, the opinions of Respondent's experts

1211were more persuasive.

12144/ Ibid.

12165/ Ibid.

12186/ Ibid.


1222Rafael D. Mota

12258320 Northwest 10th Street, No. 9

1231Miami, Florida 33126

1234Anne Marie Frazee, Esquire

1238Department of Health

12412020 Capital Circle, Southeast

1245Bin A02

1247Tallahassee, Florida 32399-1703

1250Tanya Williams, Executive Director

1254Board of Medicine

1257Department of Health

12601940 North Monroe Street

1264Tallahassee, Florida 32399-0750

1267Angela T. Hall, Agency Clerk

1272Department of Health

12752020 Capital Circle, Southeast

1279Bin A02

1281Tallahassee, Florida 32399-1703

1284Pete Peterson, General Counsel

1288Department of Health

12912020 Capital Circle, Southeast

1295Bin A02

1297Tallahassee, Florida 32399-1701


1306All parties have the right to submit written exceptions within 15

1317days from the date of this recommended order. Any exceptions to

1328this recommended order should be filed with the agency that will

1339issue the final order in this case.

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Date: 07/09/1999
Proceedings: Agency Final Order
Date: 07/09/1999
Proceedings: Recommended Order
Date: 04/30/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 02/12/99.
Date: 04/05/1999
Proceedings: (Respondent) Proposed Recommended Order filed.
Date: 03/31/1999
Proceedings: Transcript filed.
Date: 02/18/1999
Proceedings: Letter to Judge Powell from R. Mota Re: February 12, 1999 Hearing (1:00 p.m.) Question Number 173, (Risk Factors for Stroke) filed.
Date: 02/17/1999
Proceedings: (Petitioner) Exhibits rec`d
Date: 02/12/1999
Proceedings: Video Hearing Held; see case file for applicable time frames.
Date: 01/28/1999
Proceedings: (Respondent) Notice of Pre-Hearing Exhibits and Intent to Participate at Tallahassee Site; Exhibits rec`d
Date: 12/09/1998
Proceedings: Prehearing Order sent out.
Date: 12/09/1998
Proceedings: Notice of Hearing by Video sent out. (Video Hearing set for 2/12/99; 1:00pm; Miami & Tallahassee)
Date: 11/16/1998
Proceedings: (Respondent) Unilateral Response to Initial Order (filed via facsimile).
Date: 11/06/1998
Proceedings: Initial Order issued.
Date: 11/04/1998
Proceedings: Notice; Request for Formal Hearing (letter form) filed.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Miami, Florida

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Related Florida Statute(s) (4):

Related Florida Rule(s) (1):