STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. LESTER ALTMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1639

)

BOARD OF DENTISTRY, )

STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, on October 18, 1979, at Miami, Florida, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For the Petitioner: John P. Fuller, Esquire

Fuller, Feingold, Weil and Scheer No. 802 Flagship Bank Building 1111 Lincoln Road Mall

Miami, Florida 33139

For the Respondent: Richard Hixson, Esquire

Room 1501 The Capitol Tallahassee, Florida 32301

ISSUE

Whether Petitioner should be issued a license to practice dentistry pursuant to Chapter 466, Florida Statutes.

FINDINGS OF FACT

1. Petitioner Dr. Lester Altman is a licensed dentist in the State of New York who practices dentistry in Brooklyn , New York. He has been in the private practice of dentistry since 1948. (Testimony of Petitioner)

   
   

2. Petitioner applied for licensure as a dentist in Florida on two occasions in 1976 and took the necessary examinations for such licenses. On both occasions, he failed to achieve a satisfactory grade of 75 on the clinical examinations. He applied again in March, 1978, and was examined in June, 1978. He was informed by Respondent on July 5, 1978, that he had not achieved a final grade of 75 on the clinical examination and therefore did not qualify for licensure. Petitioner thereafter filed a petition for an administrative hearing which was referred to the Division of Administrative Hearings on July 27, 1979. (Testimony of Petitioner, Case pleadings, Exhibit 13)

3. The June, 1978, clinical examination was conducted in Gainesville, Florida, by a group of examining dentists which consisted of certain members of the Board of Dentistry and other selected Florida dentists. Approximately 75 percent of the group had served previously as examiners. The clinical examination extends for a period of two days and applicants are tested in the areas of cast gold restoration, amalgam restoration, laboratory, denture setup, periodontal evaluation, and professional evaluation. Two separate grades are given for the cast gold restoration, amalgam restoration, and laboratory portions of the examination. Each of the six major parts of the examination is weighted for grading purposes and all scores are considered in arriving at a total score for the test. Each scored portion of the examination receives a grade ranging from 0 to 5, with 5 representing 100 percent and 3 being an average grade of 75 percent.

   
   

4. The subject matter of the examination is determined by the Board of Dentistry and the individual grades for each portion of the examination are entered by two examiners on a grading form designed by a professional testing organization in conjunction with the Board for computer scoring. In order to ensure the validity and fairness of the examination, it is necessary that grading procedures be standardized by the examiners. This process is to preclude to the extent possible widely divergent scores being assigned to a particular portion of the examination by individual examiners. Such a standardization process takes place a short time prior to the administration of the examination at which all examiners are in attendance. At that time various criteria are established and the examiners practice grading various parts of the examination using models of teeth, slides, and the like. Grades are compared among the examiners and guidelines are established so that all examiners will be grading on the same criteria. During these sessions, Department Heads and other faculty personnel of the University of Florida Dental School participate and lecture to the examiners.

   
   

5. The "professional evaluation" portion of the examination includes grading criteria for clinical judgment, professional judgment, instruments, patient management, clinical examination, and operatory arrangement. "Clinical judgment" deals primarily with the applicant's competence in diagnosing and performing the necessary dental work required in the examination. "Professional judgment" includes considerations of the applicant's concern for and demeanor toward patients as to prevention of pain, courtesy in avoiding appointment delays, and other matters reflecting his interest in the patient. Similarly, the applicant's treatment of his dental assistants is considered in this category. The other areas of patient management, instruments, clinical examination, and operatory arrangement deals with the cleanliness and appropriateness of instruments, extent of dental knowledge and decision making, and treatment of patients. In particular, the areas of clinical judgment, professional judgment, and patient management overlap one another in varying degrees. The professional evaluation segment of the examination is standardized at the early meetings of the examiners by full discussion of the grading criteria among the participants and arrival at a consensus as to uniformity.

   
   

6. The examiners are instructed to make notations or check marks on the grading form in cases where a below average grade is entered. The standardization procedures were employed for the June 1978 clinical examination. (Testimony of Hite, Bliss, Santin, (Deposition - Exhibit 2), Dannahower (Deposition- Exhibit 3), Mullens (Deposition - Exhibit 1), Exhibits 4, 8, 12)

   
   

7. At the time an applicant reports for the examination, he is assigned a random number which is placed on the various examination forms to provide

   anonymity. He is assigned his own operatory or treatment area to work in and his own laboratory desk. Various periods of the two-day examination session are spent in the laboratory and clinic areas. Two examiners grade the laboratory work. In the clinic there is an examiner in charge and normally two other examiners who view the candidates's work after each step of the examination and independently enter a grade on the scoring form. After the second examiner has entered the grade, he notes the grade given by the first examiner and, in rare instances where there is more than one grade difference between the two, a third examiner is called in to enter an independent grade of his own. Such an instance did not occur with respect to Petitioner's examination.

   
   

8. The "professional evaluation" grade is entered during the last clinic session based on the examiners' observations of the applicants during the cast gold and amalgam restoration and periodontal parts of the examination. The two examiners who grade professional evaluation will have graded the applicant for at least 50 percent of the clinical subjects from which the professional evaluation grade is derived. These examiners also may observe notes or deficiencies entered by other examiners for other clinical portions of the examination and may take these into consideration when entering the professional evaluation grade.

   
   

9. Each applicant retains a check sheet throughout the examination on which each step is initialed by the examiner contemporaneously with entry of the grade on the grade sheet to ensure that the applicant has completed each successive step of the examination. The check sheets are monitored by examination assistants to verify that each section of the examination has been completed and graded. There is no place on the check sheet concerning the "professional evaluation" segment of the examination because the grade is entered by the examiners without any prior request from the applicant to be graded in that area. The examiner in charge of the clinic at the time the professional evaluation grade is entered always is one of the graders for that part because he is an experienced Board member. In the case of Petitioner, two Board members graded the professional evaluation part of the examination. (Testimony of Hite, Bliss, Santin (Deposition) Dannahower (Deposition) , Mullens (Deposition), Exhibit 11)

   
   

10. After completion of the examination, the scores on the grade sheets are tabulated and weighted to arrive at a final grade. Various statistical studies are made concerning the grading by new examiners to determine if their grading practices produce valid results. The two Board members who graded Petitioner's "professional evaluation" portion of the examination are experienced and considered to be valid graders by Respondent's testing consultant. Each examiner is assigned a number which is entered on the grading form by him at the time he grades a segment of the examination.

    
    

11. As a matter of Board policy, the grade for "professional evaluation" is considered by the examiners to be a "3" which is a passing score unless the examiner determines that the grade should be raised or lowered based on the applicant's performance during the examination.

    
    

12. Although a computer error was made on a December 1978 examination, none was made on Petitioner's grade sheet for the June 1978 examination. The 1978 computer error was corrected and the applicant was eventually permitted to retake a portion of his examination based on a separate erroneous grading procedure and thereafter obtained a license.

13. The grading form includes blocks at the top of each segment of the examination which the examiner may use to enter his number and a grade for the second time. Although the entry of such items would be helpful in the event there is a conflict in the computer grade marked below the block, such entry is not required of the examiner and would not be "read" by the computer. One of Petitioner's examiners who was examiner Number 5 incorrectly entered the number "4" on the grade sheet portion of the examination. In the opinion of the Board testing consultant, such an entry by an examiner of an incorrect examiner number on the grade sheet would not affect the validity of any grade entered at that time. (Testimony of Hite, Bliss, Santin (Deposition), Dannahower (Deposition, Exhibits 8-9, 11)

    
    

14. Petitioner's scores for the June 1978 practical examination were as follows: Amalgam Restoration 81.25; Cast Gold Restoration 70.87; Periodontal Evaluation 79.12; Professional Evaluation 62.50; Laboratory Evaluation 68.75; Denture Set-up 56.25. His overall average for the examination was 72.61. (Exhibit 12)

    
    

15. Petitioner was unsatisfactory in four parts of the six-part clinical examination. These were denture setup, laboratory, professional evaluation, and cast gold restoration. Notations or check marks were entered on the grading form by examiners as to the deficiencies which prompted the unsatisfactory grades. As to cast gold restoration, one examiner noted "watch calculus" on the cavity preparation segment, and both examiners checked "margins" and reflected "open contact." Although the latter deficiency obviously existed at the time of the examination, a subsequent check of the patient after the examination revealed that the lack of contact was cured by the passage of time. In the laboratory portion both examiners observed "no contact" in the wax pattern portion, but only one examiner noted bubbles, pits, and sprueing in the casting part of the laboratory work. One examiner entered seven check marks on the denture setup portion of the examination and the other examiner entered four check marks for that part. In professional evaluation, one examiner checked "clinical judgment" and the other examiner checked both "clinical judgment" and "professional judgment." The one who entered a deficiency for clinical judgment did so due to the fact that calculus was present during the cavity preparation portion of the cast gold restoration procedure. The second examiner did not recall why he had entered the professional evaluation deficiencies on the grade sheet.

    
    

16. Six different examiners participated in the grading of Petitioner's examination. In four of the nine areas which were graded by two examiners, the same grade was entered by both examiners. In the remaining five portions, the two examiners did not deviate by more than one grade score. Three examiners graded the Petitioner in the three areas of work upon which the professional evaluation grade was based. Two of these three examiners graded the professional evaluation portion of the examination.

    
    

17. The patients upon whom Petitioner performed dental work during the examination experienced no pain or discomfort during the examination and are of the opinion that Petitioner treated them in an exemplary and professional manner at that time. (Testimony of Hite, Bliss, Dannahower (Deposition) Santin (Deposition), Weissman, Solomon, Exhibits 8-9, supplemented by Exhibits 5-7)

    
    

18. Petitioner's scores for the December 1976 clinical examination were higher that those on the June 1978 examination for laboratory and professional evaluation. They were the same for periodontal evaluation and amalgam

    restoration. The cast gold restoration score was lower in the December 1976 examination. (Exhibits 12-13)

    
    

19. Petitioner has had an active practice for many years in Brooklyn, New York, with an average of 15 to 20 patients per day and an annual gross income of over $100,000. The former owner of a large dental laboratory in New York City which produced dental appliances for Petitioner over many years found him to be extremely competent in the work provided to the laboratory. Several of his patients attested to Petitioner's excellent dental work and professional demeanor, and expressed the desire to have him serve as their dentist in Florida. (Testimony of Tauman, Karlin, Cohen, Solomon, supplemented by Exhibit 5)

    
    

    CONCLUSIONS OF LAW

    
    

20. Petitioner seeks to be issued a license to practice dentistry in the State of Florida, pursuant to Chapter 466, Florida Statutes. The petition alleges various irregularities in the manner of grading and scoring Petitioner's June 1978 clinical examination and states that the grading practices and procedures were arbitrary, capricious, and provided insufficient guidelines for examiners to use as a basis for determining grades.

    
    

21. Section 466.14, Florida Statutes, prescribes the subject matter of dental examinations and directs the Board of Dentistry to issue a license to an applicant who makes a passing grade on the examination.

    
    

22. The evidence establishes that the clinical examination administered to the Petitioner in June 1978 was of proper content and was standardized in the normal manner as to grading practices and procedures. It further shows that the examination was administered properly by competent examining dentists. There was no showing that they were biased or prejudiced against the Petitioner in any manner or that they deviated from established procedures to any significant degree. Neither has it been shown that there was any mathematical or other error in establishing Petitioner's scores on the examination.

    
    

23. Petitioner complains that one of the examiners entered the wrong examination number on one portion of the examination. However, there is no indication that an inaccurate grade was registered. He also attacks the standardization procedure of the professional evaluation part of the examination based on several testimonial conflicts as to whether such standardization actually was performed prior to the clinical examinations and as to the persons who participated therein. These discrepancies were resolved by the totality of the evidence which showed that standardization was indeed performed prior to the June 1978 examination in which the examiner group participated fully. The evidence also shows that, although there are overlapping criteria used to determine a grade in this portion of the examination, such criteria are applied as uniformly as possible considering the subjective nature of evaluating the professionalism of the applicant.

    
    

24. Although Petitioner further complained about the concept of calling in a third examiner in the event the first two examiners differed by more than one grade on a portion of the examination, his complaint cannot be considered in this proceeding since such a procedure was not employed with respect to Petitioner's examination.

    
    

25. Petitioner asserts that the grading of the professional evaluation portion is unfair because examiners do not take and retain notes on their

    observations of an applicant. However, it was shown that notes are customarily placed on the grade sheet itself in order that any subsequent review of the examination will provide some basis of justification for the score. This procedure was followed with respect to Petitioner's examination.

    
    

26. It is further claimed that Petitioner should not have received a lower grade in professional evaluation on the June 1978 examination than he received on the December 1976 examination because he had improved or retained the same scores on the 1978 examination for the parts upon which the professional evaluation grade was based. This contention is not meritorious because it is entirely conceivable that professional or clinical judgment factors will vary at any given time, and can only be judged at the time they are observed. Also, the fact that one of the examiners could not recall the basis for giving Petitioner a low grade in professional evaluation, at the time he was deposed, is understandable in view of the time lapse since the administration of the examination and the number of applicants whom he graded. Although Petitioner's patients during the examination attested to his good work and the absence of pain, these factors are not determinative of the grade received since many other aspects of performance are considered in arriving at the professional evaluation grade.

    
    

27. Although there were several discrepancies between examiners as to noted deficiencies in dental work performed by Petitioner during the examination, the fact that the grades entered by each pair of examiners were either only one grade score apart or identical for the various portions of the examination serves to render such differences inconsequential.

    
    

28. It is concluded that Petitioner has failed to establish that he is entitled to be licensed in the State of Florida based on his performance in the June 1978 clinical examination. It is apparent that petitioner has conducted a successful practice in the State of New York for a long period of time.

    However, this fact should not be considered in evaluating his performance in the clinical examination unless major conflicts had existed among the examiners as to his grades or the testing and grading procedures had been found deficient.

    Such was not the case.

    
    

29. Petitioner's brief and Respondent's proposed findings of fact and conclusions of law have been fully considered. Those portions of such submissions which have not been incorporated or discussed in this Recommended Order are considered to be unnecessary or unwarranted in fact or law.

RECOMMENDATION

That Petitioner's application for a license to practice dentistry be denied.

DONE and ENTERED this 11th day of December, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Richard Hixson, Esquire Room 1501 - The Capitol Tallahassee, Florida 32301

John P. Fuller, Esquire Fuller, Feingold, Weil and Scheer

No. 802 Flagship Bank Building 1111 Lincoln Road Mall

Miami, Florida 33139

Florida State Board of Dentistry

Attn: Leah Hickel Administrative Assistant 2009 Apalachee Parkway

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

DR. LESTER ALTMAN,

Petitioner,

DEPARTMENT OF ADMINISTRATIVE HEARINGS

vs. CASE NO. 79-1639

BOARD OF DENTISTRY, STATE OF FLORIDA,

Respondent.

/

FINAL ORDER

Pursuant to notice, this matter came before Nancy Kelley Wittenberg, Secretary of the Department of Professional Regulation, on February 13, 1980, for consideration of the Recommended Order entered by Thomas C. Oldham, Hearing Officer, Division of Administrative Hearings. The Recommended Order is attached hereto as Exhibit "A".

The Secretary having reviewed the entire record, including all pleadings, exhibits admitted into evidence, the transcript of the hearing proceedings, the Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer finds as follows:

1. The findings of fact contained in the Recommended Order are adopted by the Department as its findings of fact and are incorporated herein as though fully set forth;

   
   

2. The conclusions of law contained in the Recommended Order are adopted by the Department as its conclusions and are incorporated herein as though fully set forth; and

   
   

3. Upon consideration and oral argument the exceptions filed by Petitioner to the extent they are inconsistent with this Order are specifically rejected as being irrelevant or not supported by the evidence.

Based upon the foregoing findings of fact and conclusions of law, the Department adopts the recommendation of the Hearing Officer and accordingly it is ORDERED,

1. The application of Petitioner, Dr. Lester Altman, for a license to practice dentistry in the State of Florida is hereby denied.

   
   

2. The request of petitioner, Dr. Lester Altman, to retake the laboratory and cast-gold restoration portions of the Dentistry examination is hereby denied.

DONE AND ORDERED this 13th day of February, 1980, in Tallahassee, Florida.

Nancy Kelley Wittenberg Secretary

Department of Professional Regulation

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was forwarded by certified mail this 14th day of February, 1980, to: Lester Altman, D.D.S., 97-07 63 Road, Rego Park, New York 11374, Mr. Thomas Oldham, Hearing Officer, Division of Administrative Hearings, 101 Collins Building, Tallahassee, Florida 32301, and Mr. Richard Hixson, Assistant Attorney General, Office of the Attorney General, The Capitol, Tallahassee, Florida 32301.

Deborah J. Miller Staff Attorney

Docket for Case No: 79-001639

Orders for Case No: 79-001639