STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR BARTHOLOMEW LUISI, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1692

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on October 28 and 29, 1952, in Naples, Florida.

APPEARANCES

For Petitioner: Tracy H. Bolesky, Esquire

1169 Eighth Street, South Naples, Florida 33940

For Respondent: John E. Griffin, Esquire

Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

BACKGROUND

By petition filed herein, Petitioner, Arthur Bartholomew Luisi, Jr., seeks to challenge a failing grade received on the December, 1981, examination for licensure as a dentist by Respondent, Department of Professional Regulation, Board of Dentistry. The petition generally alleges that Petitioner was a candidate on the December, 1981 dentistry examination; that he was given a failing grade on the practical or clinical portion of the examination; that subsequent efforts to have his grade changed to passing were unsuccessful; and that because of several deficiencies in the manner in which the examination was administered and graded, he is entitled to a passing grade. Specifically, Petitioner contends (a) the Board failed to implement the examination grading system required by Rule 21G-2.13, Florida Administrative Code, in scoring the examination; (b) that the Board used criteria in grading his examination that were not set forth in Rule 21G-2.13, supra; (c) that the Board omitted one required criterion on the examination; (d) that if the candidate's examination was regraded using only the rule-mandated criteria, his grade would be substantially higher; (e) that the examiners were arbitrary and capricious in their evaluation of his procedures; (f) that the examiners failed to document in writing the less than minimally acceptable scores as required by Rule 21G-2.17, Florida Administrative Code; (g) that the grades given by Respondent were statistically invalid; (h) that the methods of grading were in violation of

Section 466.001, Florida Statutes; (i) that the candidate was unable to have an adequate post-examination review session because the Board failed to keep all examination records and exhibits for a 2-year period as required by law; (j) that the candidate was given an insufficient time period in which to review his grades with a review coordinator; (k) that the examiners erred in certain respects in grading the various procedures; and (1) that despite receiving a passing grade on the written part of the examination, the Board would not adjust the clinical part of the examination.

The matter was referred to the Division of Administrative Hearings by Respondent on June 8, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated August 12, 1982, a final hearing was scheduled for October 28 and 29, 1982, in Naples, Florida. At the final hearing Petitioner testified on his own behalf and presented the testimony of Dr. Joseph E. Barton, Michael Hadley Jones, John McLaughlin, and Dr. Richard R. Souviron, and offered Petitioner's Exhibits 1-21; all were received in evidence. Respondent presented the testimony of Dr. Park L. Weldy and Michael Hadley Jones and offered Respondent's Exhibits 1-5; all were received except Exhibit 2 upon which a ruling was reserved.

The transcript of hearing (two volumes) was filed on November 17, 1982.

Proposed findings of fact and conclusions of law have been filed by the parties on December 6, 1982 and considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Petitioner is entitled to a passing grade on the clinical (practical) portion of the December, 1981 dentistry examination.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. INTRODUCTION

   
   

   1. Petitioner, Arthur B. Luisi, Jr., is a 1973 graduate of the University of Pennsylvania School of Dental Medicine. After graduation, he was a candidate for licensure as a dentist in the State of New Jersey and successfully passed all parts of the Northeast Regional Board Examination. Thereafter, he practiced dentistry for eight years in Runnymede, New Jersey.

      
      

   2. In 1981, Petitioner closed his practice in New Jersey and moved to Naples, Florida where he now permanently resides. In December, 1981 he was a candidate for the Florida Dentistry Examination administered by Respondent, Department of Professional Regulation, Board of Dentistry. The examination contains two parts, a written part and a clinical part. A final score of 3, as a general average, is needed to pass the clinical part of the examination. Luisi received a passing score of 92 on the written portion and a failing score of 2.67, as a general average on the clinical portion.

      
      

   3. Luisi sought an opportunity to review his examination with a representative of the Board in Tallahassee, Florida. Efforts to have his clinical grade adjusted upward were unsuccessful. Luisi then filed a petition which precipitated this proceeding. In his petition, Luisi contended generally that two factors required that a passing grade be given him on the clinical part

      of the examination: (a) the grading by the examiners was not in conformity with Department rules and was mathematically incorrect, and (b) the examiners' criticisms of the procedures employed by Petitioner on the examination were not valid.

      
      

2. THE GRADING OF THE EXAMINATION

   
   

   1. The clinical portion of the examination administered by Respondent in December, 1981 required a candidate to perform eleven procedures.1/ The appropriate weights and percentages of final grade of each procedure are set forth in Rule 21G-2.13, Florida Administrative Code.

      
      

   2. Grades ranging from zero (complete failure) to five (outstanding dental procedure) are assigned to each procedure. An overall average final grade of three (minimal acceptable dental procedures) is required to successfully complete this part of the examination. Petitioner received an overall average final grade of 2.67, which is below the minimum score necessary for licensure.

      
      

   3. Each examination is graded by three independent examiners. These are selected from a group of Florida licensed dentists who have successfully completed an examiner training program. This program includes the grading of models previously prepared by the Board. On the day prior to the examination, all examiners are given a nine hour standardization program conducted by Respondent to promote consistency and objectivity in interpreting and applying the grading criteria. They also take a "dry run" examination on various model procedures supplied by the Board.

      
      

   4. The examiners grade independently of each other and do not know the score any other examiner might have given the candidate. Grading is not done in the presence of the candidate, and only the candidate's number is known to the examiner. In the event two of the three grades given by the three examiners are more than two grades apart, a fourth and fifth examiner are used to grade the procedure.

      
      

3. THE GRADING SYSTEM

   
   

   1. Rule 21G-2.13, Florida Administrative Code, specifies the criteria to be considered in grading each procedure. The rule provides that "[t]he criteria are to be weighted equally" except where a candidate errs in certain defined areas, or fails to attempt or complete a specified procedure. In those cases, a zero grade on the entire procedure is mandatory. Despite this clear and unequivocal language, Respondent aid not give equal numerical weight to each of the criteria in grading the various procedures. Had the criteria been graded in such a manner, Petitioner's grade would have been higher. Respondent attempts to justify this deviation from the rule by interpreting the term "weighted equally" to mean that each criterion is of equal importance, and that if any one is missed to a severe enough degree, it could cause the candidate to fail that procedure. It claims a literal interpretation of the rule is not possible since under current technology and research an examination cannot be structured to provide equal numerical weight for each criterion. Therefore, it graded Luisi's examination as a holistic evaluation of his work with a severe error in any one criterion possibly resulting in a failing grade.

      
      

   2. The grading sheet for each procedure identifies the procedure being tested, and lists the criteria to be considered. The criteria are also spelled out in Chapter 21G-2, Florida Administrative Code. Underneath the criteria are a number of "comments" which relate to the criteria enumerated on the grade

      sheet. The examiner then notes each deficiency by blacking out the blank number which corresponds with the particular criterion or comment. Explanatory remarks are also made on the face of the grading sheet where the examiner has given a grade of less than three.

      
      

   3. Petitioner contends the "comments" are "non-legally mandated criteria", and as such, cannot be used as a basis for determining his score since they are not included in the criteria identified in Chapter 21G-2. However, the comments are words or phrases that relate to or further identify the mandated criteria already listed on the grade sheet, and merely enable an examiner to identify aspects of the criteria that may be deficient. Further, they merely amplify the criteria prescribed for each procedure, and are not used to grade down a candidate.

      
      

4. CRITICISMS OF GRADES ON PROCEDURES

1. Each party hired an expert dentist to evaluate the procedures performed by Petitioner on the examination. Their purpose was to determine if the grades given by the examiners were arbitrary and capricious. They also assigned the grades that they would have given had they graded the examination. The grades given by the two experts obviously differed, with one awarding Petitioner a passing grade, and the other generally agreeing with the results of the examiners. While Respondent's expert did not agree entirely with each of the grades given by the examiners, he specifically concluded that their overall results were reasonable, and were not arbitrary or capricious.

   
   

2. Both dentists were well-qualified, and had excellent credentials in the field of general dentistry. However, the Board's expert had done research and consulting work in the area of clinical dental examinations, had conducted the examiner standardization for the dental examination in question, and has consulted with several other state dental licensing boards. Petitioner's witness had no such comparable experience, had never been an examiner at a state licensing examination, and had never been standardized for one.

   
   

3. Of the eleven procedures in question, procedures 3 through 7 were required to be performed on a live patient. The remainder were performed on mannequins (dentoform). At the final hearing, Petitioner produced the patient on whom procedures 3 and 4 were performed. The remaining patients were not present. Instead, Petitioner relied upon patient radiographs (x-rays) and the wax rims used to prepare and construct the dentures. Without the live patients being present and examined by the parties, one could not reasonably and accurately determine whether the deficiencies noted by the examiners on these procedures were wrong or right. Therefore, the grades given by the examiners on procedures 5, 6 and 7 were not shown to be arbitrary or capricious.

   
   

4. On procedure 1, candidates were required to open into the pulp chamber and expose the root canals of a natural posterior molar placed in a model jaw. They were instructed that each canal be clearly visible and opened sufficiently so that a number 30 file could be placed in each canal. Petitioner received scores of 3, 3 and 3, or a final average grade of 3 on the procedure. Although Respondent's expert found certain errors in the procedure present, and would have given a grade of 4, he agreed that under standardization, the grade received was not inappropriate. Under these circumstances, a grade of 3 was not arbitrary or capricious.

   
   

5. Procedure 2 required a candidate to open into the pulp chamber and expose the root canals of a natural anterior tooth placed in a model jaw.

   Again, the candidates were instructed that each canal be clearly visible and opened sufficiently so that a number 30 file could be placed in each canal. Petitioner used a tooth with a nonstandard configuration that required a nonstandard technique. Despite instructions that required a candidate to notify an examiner or monitor if his tooth required a special technique deviating from the grading criteria, he failed to do so. Petitioner received scores of 2, 3 and 3 for a final grade of 2.66. Deficiencies noted by the examiners included gouges, over-extension and poor outline form. These were demonstrated to be present by Respondent's expert witness, and it is found that the grade received by Petitioner was not arbitrary or capricious.

   
   

6. Procedure 3 required a candidate to prepare a tooth with a Class II cavity on a live patient. The tooth was to have decay that barely penetrated the dentin and which permitted an ideal cavity preparation. Petitioner received grades of 0, 0, 3, 3 and 2 for a final average of 1.60. Two examiners concluded that caries (decay) was still present after the procedure was completed; because of this both gave Luisi a zero for the entire procedure despite this being the only noted error. A third examiner wrote that he was unsure whether caries was present while the remaining two examiners detected no caries but did note an error in the depth preparation. After the procedure was completed, the proctor also checked the patient and determined that no decay was present.

   
   

7. Petitioner presented the live patient at the final hearing for examination by the experts. Because Respondent did not wish the filling to be removed, and a visual inspection made of the tooth to determine if indeed caries was present on the ground it would destroy evidence for the Board to consider, the parties agreed that only radiographs (x-rays) would be taken of the patient. Although an x-ray cannot conclusively determine the presence of tooth decay, it is found that none was present because (a) the patient has had no trouble with his tooth in the year since the procedure was performed, (b) the proctor was instructed not to allow a patient with a decayed tooth to leave the premises and to visually check each for that condition, (c) decay is likely to increase or spread with the passage of time, (d) the x-ray provides a reasonable measure of certainty, (e) the x-ray was the only means available to Petitioner to check for decay in view of the Board's adamant reluctance to remove the filling so as to conclusively resolve all doubts, and (f) Respondent's concession that it too would be surprised if indeed any decay was present.

   
   

8. The remaining criticisms noted by the examiners were shown to be present, and to that extent, their grades were not arbitrary or capricious.

   
   

9. Procedure 4 required candidates to place an amalgam restoration in the tooth prepared during the amalgam cavity preparation procedure. Petitioner received grades of 4, 2 and 3 for a final average grade of 3. Luisi was penalized by the examiners for poor margin and inadequate contact. The evidence is conflicting as to whether contact would become better or worse with the passage of time since the filling was prepared. However, there was no showing that the grades received were arbitrary or capricious, and that an overall grade of 3 was inappropriate.

   
   

10. In order to satisfactorily pass procedure 8, candidates were required to prepare a MOD onlay protecting buccal and lingual cusps on an ivorine tooth in a dentoform contained in a mannequin. Petitioner received grades of 4, 3 and 4, or an overall average of 3.66 for the procedure. Although both experts agreed a 4 was an appropriate grade, a 3.66 grade was not arbitrary or capricious given the fact that the marginal finish on the tooth was not perfect.

11. Procedure 9 required the candidates to prepare a mesial occlusal distal onlay to be seated on their previously prepared ivorine tooth. Petitioner received grades of 3, 2 and 2 for a final average of 2.33. The following deficiencies were noted by the examiners: contact, poor margins, functional anatomy, proximal contour, and surface finish. Both experts acknowledged the presence of errors, but differed on their degree of severity. The errors having been confirmed, it is found that the grade received by Petitioner was not arbitrary or capricious.

    
    

12. Procedure 10 involves the preparation of an ivorine tooth designated at the time of the examination for the placement of a pin amalgam. The type and number of pins were left to the discretion of the candidates. Petitioner received scores of 2, 1 and 1, or an average final grade of 1.33. Petitioner was downgraded for depth of preparation, outline form, retention form, marginal finish and pin placement. Petitioner contends that he was given no instructions as to pin placement and should not be penalized for that mistake. However, the examination is designed to test the candidates' knowledge as to proper pin placement, and there was no error in downgrading Luisi on that respect. The remaining deficiencies were demonstrated to be present by Respondent's expert, and the grade should not be disturbed.

    
    

13. The last procedure required a candidate to restore a pre-cut ivorine tooth in a dentoform with an amalgam restoration with the use of a pin for the restoration being optional. Petitioner received grades of 1, 2 and 2, or a final average of 1.66 on this procedure. Although the evidence is conflicting as to whether such errors did in fact occur, and their severity, the comments and grades on the procedure were not shown to be arbitrary and capricious.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

15. When an applicant challenges the grades he received on a professional licensing examination he must show by a preponderance of evidence that the grades in issue were arbitrarily or capriciously given by the examining agency. State ex rel. Glasser v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). See also In re Altchiller, 4 FALR 724A (Florida Board of Dentistry, Final Order, January 16, 1982); In re Chokhawala, (Florida Board of Dentistry, Final Order, November 15, 1982). Absent some showing that the examining agency failed to follow standard procedures for conducting and/or grading the examination, or that the candidate was treated differently from other examination candidate test results will not be disturbed. In re Corda, (Florida Board of Architecture, Final Order, September 25, 1982).

    
    

16. Although a number of contentions were raised in the petition that prompted this proceeding, they may be grouped into two broad areas. First, Petitioner contends that his examination was not graded in accordance with Board rules. Specifically, he contends that Rule 21G-2.13, Florida Administrative Code, requires that each criterion be given equal weight unless otherwise prescribed. The rule provides that "[t]he criteria are to be weighted equally" except that a grade of zero is mandatory if certain errors occur, or if the candidate fails to attempt or complete the procedure.2/

    
    

17. It has long been settled that in construing administrative rules and regulations, the established interpretation of an agency's own rule or

    regulation should be accorded great weight and should be controlling unless it is plainly erroneous or inconsistent. U.S. v. Larionoff, 97 S.Ct. 2150, 2155 (1977); Miami Beach v. Miller, 122 So.2d 578, 581 (Fla. 3d DCA 1960); Louisville

    and N.R. Company v. Speed-Parker, Inc., 130 Fla. 439, 137 So. 724, 731 (1931).

    
    

18. In the case at bar the rule in question provides that "the criteria are to be weighted equally". The language in the rule is plain and unambiguous and conveys a clear and definite meaning. That is, each criterion shall be given equal numerical or point value when grading a candidate's examination. To place a different interpretation upon these words, as the Board suggests, would result in a departure from the natural meaning of the language used, and would be plainly erroneous and inconsistent with the clear and express terms of the rule. While Respondent contends that it is technically impossible to structure an examination in this manner, and that a literal interpretation of the rule would be impractical, until the rule is amended the Board cannot ignore it merely because it is "burdensome". Cf. Kibler v. Department of Professional Regulation, 418 So.2d 1081 at 1084 (Fla. 4th DCA 1982). Further, if Respondent wishes the criteria to be of equal importance rather than equally weighted in terms of grading, it could easily amend the rule to provide that clear and unequivocal meaning. Because the Board's interpretation of the rule is plainly erroneous and inconsistent, Petitioner's examination should be regraded and each criterion "weighted equally".3/ Larionoff, Miami Beach, and Speed-Parker, supra.

    
    

19. The related contention of Petitioner that Respondent used non-mandated comments in determining his grade is rejected as being contrary to the evidence in this proceeding.

    
    

20. Petitioner next contends the deficiencies noted on his examination were not valid, and indeed were arbitrary and capricious. But in order to pass muster on this contention, something more must be shown than simply producing one expert witness who disagrees with the results of an unbiased, standardized examiner. Instead, it must be affirmatively demonstrated that the examiners acted in an arbitrary or capricious manner when grading the examination of Petitioner. With the exception of procedure 3, which is discussed hereinafter, this contention must fail. In re Altchiller; In re Chokhawala, supra.

    
    

21. The evidence discloses that Petitioner was severely downgraded by two examiners on procedure 3 for allegedly permitting decay to remain in a tooth after a cavity preparation has been completed. The remaining three examiners found no such decay. However, because of two zeros received, Luisi's final average grade was only 1.60, or far below the 3 required to pass. In an effort to rebut this contention, Petitioner incurred the expense of transporting the patient from the State of Maine to the final hearing for examination by experts on both sides. At the hearing Respondent refused to agree that the filling could be removed from the patient on the ground it would "destroy the evidence of the restoration" and because it also doubted that any decay was present. Instead, x-rays of the tooth were taken in the presence of both parties. The evidence overwhelmingly establishes that no decay was present, and that the zeros given by the two examiners were arbitrary and capricious. Because of this, procedure 3 should be regraded with only the scores of 3, 3 and 2 taken into consideration; the remaining two should be disregarded.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent regrade Petitioner's examination and give equal

numerical point value to each criterion; it should also regrade procedure 3 giving consideration only to the grades of examiners 038, 02 and 048; all other requests for relief should be DENIED.

DONE and ORDERED this 10th day of January, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1983.

ENDNOTES

1/ These are endodontic access preparation (posterior tooth), endodontic access preparation (anterior tooth), amalgam cavity preparation, final amalgam restoration, occlusal registration and transfer, denture pressure and articulation, periodontal evaluation, cast gold cavity preparation, final gold restoration, pin amalgam preparation, and pin artalgam final restoration.

2/ The same instruction relative to grading is found in Rule 21G-2.19, Florida Administrative Code.

3/ Respondent offered a certified copy of the minutes of the Board's meeting held on July 30, 1982 as Respondent's Exhibit 2. The exhibit was offered for the purpose of demonstrating that the Board construed its rule in the same manner as was advocated in the case at bar. However, this "official expression of interpretation" was made after Petitioner's examination was graded, and there was no evidence that the same "policy" was in effect in December, 1981.

Further, Petitioner cited no Board orders or decisions that formally express this interpretation. Finally, as noted in the main text of this order, such an interpretation is plainly erroneous and inconsistent with the clear language of the rule. Because the exhibit is irrelevant to a determination of the issue, Petitioner's objection thereto is hereby sustained.

COPIES FURNISHED:

Tracy H. Bolesky, Esquire 1169 Eighth Street, South Naples, Florida 33940

John E. Griffin, Esquire Department of Legal Affairs Room 1601 - The Capitol Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001692

Orders for Case No: 82-001692