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October 14, 1993


Petition for Review of a Decision of the District of Columbia Board of Medicine

Before Ferren and Sullivan, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge: Petitioner, Ralph N. Singer, a licensed chiropractor, appeals the final order of the District of Columbia Board of Medicine ("the Board") denying his application for certification pursuant to 17 DCMR § 4811.3 (1990) *fn1 to perform ancillary chiropractic procedures. *fn2

The Board denied petitioner's application primarily because he had not taken and passed the tests required by the licensing regulations -- namely, 1) the physiotherapy section of a national examination administered by the National Board of Chiropractic Examiners ("the NBCE") and 2) a related test of knowledge and practical skills in physiotherapy administered by the Board's Advisory Committee on Chiropractic ("the Advisory Committee"). See 17 DCMR § 4811.3 (a) and (b), *fn3 note 1, (supra) .

Petitioner contends that the Board's interpretation of 17 DCMR § 4811.3 as applied to him was "arbitrary and capricious," because the Board: 1) rejected his application despite the District's failure to make available a written examination which the District's own regulations required it to do; 2) interpreted its own regulations to require him to have taken the written examination before being permitted to sit for the practical examination; 3) refused to give due consideration to his alternative demonstrations of competence; and 4) refused to give due consideration to providing certification to him based upon reciprocity. Petitioner's arguments are unpersuasive. Accordingly, we affirm.


The Facts

The essential facts found by the Board and unchallenged on appeal are as follows: Petitioner received his chiropractic license in the District of Columbia in 1983; he has been an active member of the Advisory Committee since June 1989. He has not taken and passed the physiotherapy section of the NBCE's national exam, nor has he taken and passed the special practical exam on physiotherapy administered by the Advisory Committee. In August 1989, petitioner submitted a letter to the Department of Consumer and Regulatory Affairs ("DCRA") applying for ancillary procedure certification in the District of Columbia. The letter stated that petitioner had taken an examination in Florida that qualified as an NBCE physiotherapy examination; it also stated that petitioner was pursuing this route because an application form had not been developed for the Advisory Committee's practical exam and he was concerned that he would not qualify for ancillary procedure certification prior to the Board's September 2, 1989 deadline. See note 3, (supra) . A DCRA official responded to petitioner's letter informing him that the Advisory Committee was in the process of developing an application form and that petitioner's letter would "remain in the file until such time as the application package has been completed."

On April 2, 1990, petitioner submitted, on the newly-prescribed form, an application to DCRA for certification to perform ancillary chiropractic procedures in the District. As with the August 1989 letter, petitioner submitted results of the Florida state examination which included a section on physiotherapy; he also requested to take the practical exam.

DCRA did not schedule or provide for the administration of a special practical examination by the NBCE between September 2, 1988, and September 2, 1989. The NBCE, however, did continue its procedure of offering the national examination, including physiotherapy, twice a year. Petitioner was aware of the Advisory Committee's informal decision that the physiotherapy portion of the NBCE would satisfy the examination requirement of 17 DCMR § 4811.3 (a). Petitioner neither registered with nor made any inquiry of the NBCE to sit for the physiotherapy portion of its examination although he was aware that passing the physiotherapy portion of the regularly-scheduled NBCE would satisfy the requirements of 17 DCMR § 4811.3 (a).

Moreover, NBCE offered to schedule a special examination in the District of Columbia on September 8, 1990, and invited all interested parties to apply by June 15, 1990. Petitioner received notice of this special examination but failed to apply to take the examination. This examination was scheduled for a definite time and place and, but for the lack of response from candidates, would have been administered.

Petitioner was present at the Advisory Committee meetings when the administrative delay in scheduling the special examination was discussed and when it was determined that the September 2, 1989, deadline for taking the examination would not be enforced until the special examination was administered to qualifying parties. Moreover, petitioner sat on the Advisory Committee when at least two other applications for ancillary certification were reviewed and the 1989 examination deadline was not enforced. Petitioner knew that those applicants were encouraged to take the 1990 special examination to satisfy the requirement.


The Standard of ...

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