Alvarez v. Department of Professional Regulation, Acupuncture

BOOTH, Judge.

This cause is before us on appeal from a final order of the Department of Professional Regulation (DPR) denying the appellants licenses to practice acupuncture¹ in the State of Florida based upon their failure to receive a passing score on the clinical practical portion of the August, 1982 Acupuncture Licensure Examination. The appellants contend, inter alia, that they were given insufficient notice and misleading instructions as to what was required on the clinical practical portion of the examination.

The August, 1982 Acupuncture Licen-sure Examination, the second such examination given in Florida, was divided into four parts:

Part I — state laws and rules relating to acupuncture, health, and safety requirements;

Part II — theory and practice of acupuncture;

Part III — diagnostic techniques and procedures and point/meridian selection; and

Part IV — Section 1: competency in the performance of needle insertion, manipulation, and removal;

Section 2: competency in patient care, sanitation, and antiseptic application.

All six appellants received passing scores for the first three parts. All six appellants failed Part IV, Section 1. Two appellants additionally failed Part IV, Section 2.

Part IV, Section 1 tested the following subject matter areas: (1) accuracy of location of acupuncture point; (2) length of needle/angle of insertion/manipulation; (3) condition of needle — handle comes in contact with skin; and (4) needle manipulation and removal. Examinees received by mail the following instructions regarding the practical examination procedure:

For the final portion of your practical Acupuncture examination, you will be required to perform needle insertion, manipulation and removal on yourself for three (3) different Acupuncture points. Restrooms will be available to all candidates to prepare for his/her examination. Each candidate will be told by the examiner the point(s) on which needle insertion, manipulation and removal are to be performed. You will demonstrate for the two (2) examiners (i.e., a pair) how you will treat a patient in your clinic when performing needle insertion, manipulation and removal. You are not required to ask questions or narrate these procedures. You are required to demonstrate only the proper sterilization and sanitation procedures and proper needling techniques for the designated Acupuncture points....

The examinees were also mailed a bibliography of three books to study for Part II of the examination, “Theory and Practice of Acupuncture.”

At the examination, DPR directed the examiners to tell each examinee to tonify (or sedate)² three different acupuncture points using the correct angle and needle manipulation. In order to receive a passing score for correct needle manipulation, the examinee had to demonstrate the technique of “twisting and twirling” or “lifting and thrusting.” A higher score for superi- or manipulation was awarded if the exami-nee demonstrated both techniques. An ex-aminee received a failing score if he did not demonstrate either of the two techniques. The two techniques are among several used for tonification and sedation. The examinee also received a failing score for the subject matter area of length of needle/angle of insertion/manipulation if he did not use the technique of angled needle insertion.

The parties stipulated that appellee did not notify the appellants expressly in writing prior to the examination that they had to demonstrate one of the needle manipulation techniques known as “twisting/twirling” or “lifting/thrusting” in order to receive a score for correct manipulation, nor that they were required to insert the needle at an angle, either with or against the flow of energy along the meridian, in order to receive a score for correct angle.

The basic question presented as to Part IV, Section 1 was whether the instructions given were so insufficient and misleading as to render that portion of the test invalid.

The hearing officer's recommended order contained the following findings of fact, which were adopted by the agency:

Respondent did not notify the petitioners expressly in writing prior to the examination that they were required to insert the needle at an angle, either with or against the flow of energy along the meridian, in order to receive a score for “correct angle” on the August, 1982, acupuncture licensure clinical practical examination.

Respondent did not notify Petitioners expressly in writing prior to the examination that they had to demonstrate one of the needle manipulation techniques known as “twisting and twirling” or “lifting and thrusting” in order to receive a score for “correct manipulation” on the August, 1982 acupuncture licen-sure clinical examination.

Respondent did not notify Petitioners by rule or otherwise that “needle manipulation” would be graded in two separate items on the grade sheet for each acupuncture point on the examination. Nor did Respondent notify Petitioners expressly in writing prior to the examination that they had to close the hole for tonification and leave the hole open for sedation in order to receive a score for “proper removal” of a needle on this examination.

Acupuncture is defined in the statutes and rules to mean “the insertion of needles into the human body, or the treatment of specific skin areas by means of mechanical, thermal, or the electrical stimulation, for the purpose of controlling and regulating the flow and balance of energy in the body.” There are numerous “schools” of acupuncture throughout the world where “masters” teach different techniques. However, all of these schools teach the traditional Chinese theory of acupuncture which is to balance the energy in the body by “toni-fying” those areas where there is insufficient energy and “sedating” those areas with too much energy. No evidence was presented that different acupuncture “points” are used at the differing schools of acupuncture or that proper results can be obtained if the needle is not inserted accurately on the point to be needled. These “points” are where needles are inserted and manipulated to increase or decrease the flow of energy on that meridian. The differences in these schools of acupuncture, including the western or scientific, consist mainly of techniques used to attain the desired end. Of these techniques, depth of needle insertion, angle of insertion, and how a needle is manipulated to stimulate the point are perhaps the most significant. (emphasis added)

Of the three texts referred to the applicants for study, two describe the traditional Chinese art of acupuncture, while the third, by Felix Mann, tests the Chinese art of acupuncture against western scientific bases to demonstrate the efficacy or lack thereof of some of these procedures. While a scientific basis for certain of the traditional Chinese theories cannot be demonstrated, Mann, and others in the scientific world, contend1, these theories to be without merit.

Traditional Chinese acupuncture emphasizes the importance of point location, angle of insertions, depth of penetration of the needle, the type manipulation used and opening or closing of the hole. All schools emphasize the importance of point location. Some schools, finding little scientific basis for angle and depth of insertion, de-emphasize the importance of these techniques. Many contend that there is no basis for angled insertions solely for tonification or sedation, that with adequate stimulation, depth of needle is unimportant and that almost any type of stimulation is adequate for either tonification or sedation. Little scientific basis for leaving the hole open or closing the hole for sedation and tonification, respectively, has been demonstrated. Since many acupuncture practitioners in the western world, particularly medical doctors, attain stimulation by the use of electricity, and electricity will pass through body tissue easier than manually transmitted vibrations of the needle, the depth of penetration for these practitioners using electrical stimulation is not particularly important. Accordingly, those practitioners give little weight to depth of penetration. (emphasis added)

Thus, the hearing officer found differences between various recognized schools of acupuncture and further found these differences were most significant as to needle insertion, angle, and manipulation, the very skills tested in Part IV, Section 1. Based on these findings, the hearing officer and the agency should have concluded that DPR’s failure to specify at any time the school or technique to be followed was critical error. However, the hearing officer, in his conclusions of law adopted by the agency, states:

Most of the Petitioners are aware of the various acupuncture techniques espoused by traditional Chinese acupuncturists but declined to demonstrate such techniques during their examination....

It is undoubtedly true that some of these petitioners would have passed the clinical practical portion of this examination if they had known exactly what the examiners expected them to demonstrate. This does not mean that they should have been given such explicit instructions. The bibliography, the wording of the statute and the directions to “tonify using the correct angle and needle manipulation” should certainly place the examinee, with a modicum of training, on notice that he was being graded on his demonstration of traditional Chinese acupuncture techniques.

Thus, the conclusions below are inconsistent and incompatible with the findings of fact. Further, we note that the statute requiring the licensure of acupuncturists does not specify traditional Chinese acupuncture techniques. The bibliography suggested for the written portion of the examination by the Department of Professional Regulation is certainly susceptible to more than one interpretation as to which acupuncture techniques are appropriate for a demonstration of competency in the clinical portion of the examination. The directions to “tonify using the correct angle and needle manipulation” convey little information as to which tonification technique is acceptable since, as found by the hearing officer, there is more than one acceptable angle and needle manipulation. Furthermore, the directions “to demonstrate for the two (2) examiners (i.e., a pair) how you would treat a patient in your clinic when performing needle insertion manipulation and removal,” (emphasis added) would indicate that any recognized acupuncture technique would earn a passing score if properly performed.

We find the agency’s instructions as to Part IV, Section 1 are substantially insufficient and misleading. The error is of fundamental import in that appellants are thereby unfairly deprived of the opportunity to practice their chosen profession. The challenge as to Part IV, Section 2 on separate grounds we find to be without merit, and the order below is affirmed as to that section.

Accordingly, those examinees who failed only Part IV, Section 1 of the examination and who were, for that reason alone, denied licensure may, upon making of a proper application, but at no cost to them, retake the clinical portion, Part IV, Section 1, of the Acupuncture Licensure Examination at the next regularly scheduled examination. Rule 21-11.13(1), Florida Administrative Code.³ Under the circumstances, such action is fair to both sides in that it protects the public but does not penalize examinees for the agency’s inadequate and sometimes misleading directions. The agency’s order is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

SHIVERS and JOANOS, JJ., concur. .

1 . Section 468.322(1), Florida Statutes (1981), defines acupuncture as "the insertion of needles into the human body for the purpose of controlling and regulating the flow and balance of energy in the body.” Rule 21-12.19(2), Florida Administrative Code (1982 Annual Supp.), further defines acupuncture as "the insertion of needles into the human body, or the treatment of specific skin areas by, means of mechanical, thermal, or electrical stimulation, for the purpose of controlling and regulating the flow and balance of energy in the body.” The specialized terminology includes "meridian,” a channel crossing the human body; "tonification,” the process of increasing the energy flowing along a particular acupuncture point's meridian; and "sedation,” the process of decreasing the energy flowing along a particular acupuncture point’s meridian.

2 . Infra at note 1.

3 . Section 21-11.13(1), Florida Administrative Code: "In practical examination, if it is determined that a candidate was graded improperly in a portion of the examination through no fault of his/her own, he/she shall be permitted to retake at the next regularly scheduled examination that portion of the examination at no charge.”