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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAFAEL D. MOTA, )

)

Petitioner, )

)

vs. ) Case No. 98-4943

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

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

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

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Rafael D. Mota, pro se

8320 Northwest 10th Street, No. 9

Miami, Florida 33126

For Respondent: Anne Marie Frazee, Esquire

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner is

eligible for licensure as a physician assistant.

PRELIMINARY STATEMENT

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

Written Exam part of the Physician Assistant Examination

(Examination). The minimum score required to pass the

Examination was 600. The Department of Business and Professional

Regulation (DBPR) administered the Examination for the Department

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

successfully complete the Examination, having received a score of

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

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

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

Administrative Hearings.

At hearing, Petitioner testified in his own behalf and

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

evidence. Respondent presented the testimony of two witnesses

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

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

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

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

Administrative Code.

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

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

for ten days following the filing of the transcript. The

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

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

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

preparation of this Recommended Order.

FINDINGS OF FACT

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

General Written Exam part of the Physician Assistant Examination

(Examination).

2. The minimum score required to pass the Examination was

600. The Department of Business and Professional Regulation

(DBPR) administered the Examination for the Department of Health

(Respondent). DBPR notified Petitioner that he did not

successfully complete the Examination, having received a score of

589.20.

3. Petitioner challenged five questions. They were

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

needed to demonstrate that he correctly answered four of the five

questions to successfully complete the Examination.

4. At hearing, Respondent conceded that Petitioner answered

question numbered 179 correctly and should receive credit for

that question. Consequently, Petitioner needs only to

demonstrate that he correctly answered three of the remaining

four questions being challenged.

5. At hearing, Petitioner agreed that the Examination was

fair.

6. The instructions for the Examination directed the

candidates for licensure taking the Examination, among other

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

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

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

The response chosen by Petitioner is a symptom, not a

complication. Generally, the symptom chosen by Petitioner does

not require medical attention. Petitioner should not receive

credit for question numbered 108. 3

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

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

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

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

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

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

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

numbered 173. 4

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

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

Question numbered 224, specifically addressed newborn babies.

The condition identified for newborns is normally regarded as

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

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

Petitioner should not receive credit for question numbered 224. 5

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

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

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

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

ineffective. Petitioner should not receive credit for question

numbered 235. 6

11. Petitioner's answers were not arbitrarily or

capriciously graded.

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

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

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

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

physician assistant. Florida Department of Transportation v.

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

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

preponderance of evidence that the Examination was faulty, that

the questions on the Examination were worded arbitrarily or

capriciously, that his answers to the questions were arbitrarily

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

logic and reason. Harac v. Department of Professional

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

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

1st DCA 1963); State ex rel. Topp v. Board of Electrical

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

1958).

16. Petitioner challenged the grading of his answers to the

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

conceded at the outset that Petitioner correctly answered

question numbered 179 and should receive credit for that

question.

17. Petitioner agreed that the Examination was fair.

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

failed to demonstrate that his answers were arbitrarily or

capriciously graded or that the grading process was devoid of

logic and reason.

19. Petitioner is not entitled to additional credit for

questions numbered 108, 173, 224, and 235.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health enter a final

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

dismissing his examination challenge, and denying him licensure

as a physician assistant.

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

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

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 30th day of April, 1999.

ENDNOTES

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

witness was an expert in physician assistants.

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

by Respondent.

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

were more persuasive.

4/ Ibid.

5/ Ibid.

6/ Ibid.

COPIES FURNISHED:

Rafael D. Mota

8320 Northwest 10th Street, No. 9

Miami, Florida 33126

Anne Marie Frazee, Esquire

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1703

Tanya Williams, Executive Director

Board of Medicine

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1701

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.