STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLENE JOHNSON, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4903

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING ) HOME ADMINISTRATORS, )

)

Respondent, )

)

RECOMMENDED ORDER

For Petitioner: Marlene Johnson, of Sarasota, pro se

For Respondent: Jeffery H. Barker, Esquire, of Tallahassee

At Petitioner's request, a formal administrative hearing was held in this case in Sarasota on February 18, 1987. Nonetheless, the facts are clear, and the only issue is whether the facts entitle Petitioner to the alternative relief she has requested: a final order that she passed the October 13, 1986, Board of Nursing Home Administrators examination; or a final order that her grade for the February 2, 1987, Board of Nursing Home Administrators examination be released to her as soon as possible, retroactive to October 13, 1986, if possible.

FINDINGS OF FACT

1. Marlene Johnson sat for the Nursing Home Administrators licensure examination administered by the Department of Professional Regulation on October 13, 1986.

   
   

2. Petitioner had been notified by Respondent that the Nursing Home Administrator licensure examination would consist of one hundred fifty (150) questions.

   
   

3. The national testing service with whom the Department contracts for preparation of such examinations determined the need for including fifteen (15) additional questions on the examination for the sole purpose of evaluating such questions for use in future examinations. The additional fifteen (15) questions were not to be used in scoring the examination, nor were they.

   
   

4. Candidates for examinations are normally notified in advance by Respondent when such test question evaluation procedures are to be used. But in this instance, Respondent was not notified by its contract testing service that additional questions would be on the exam for statistical purposes, and notice was provided to candidates only on the day of the examination during the instructions to candidates.

5. Mrs. Johnson was surprised and upset that the examination consisted of one hundred sixty-five (165) questions, instead of one hundred and fifty (150) questions as she had been notified. But she was unable to prove quantitatively how this affected her examination results.

   
   

6. Mrs. Johnson completed the examination within the time period allotted and answered all questions.

   
   

7. Mrs. Johnson did not answer a sufficient number of the graded (that is,

   150) questions correctly to receive a passing score on the examination. 75 percent was passing; her grade was 74.7 percent. Petitioner was notified by the Respondent that she had failed the examination.

   
   

8. Mrs. Johnson personally reviewed her examination, including questions, key or correct answers, and her own questions, under supervision of Department of Professional Regulation personnel on January 22, 1987. She filed no objections to her incorrect score for any questions for which she was not given credit.

   
   

9. On Respondent's advice, Petitioner re-took the examination on February 2, 1987.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 455.217, Florida Statutes (1985), gives the Department of Professional Regulation responsibility for devising an examination for licensure by the Board of Nursing Home Administrators which adequately and reliably measures an applicant's ability to practice. When available and approved by the Board, the statute requires the Department to use professional testing services to prepare, administer, grade and evaluate examinations.

    
    

11. Section 468.1695, Florida Statutes (1985), sets out the subjects to be included on the written Board of Nursing Home Administrators examination. It also specifically authorizes the Board, by rule, to adopt use of a national examination.

    
    

12. In Rule 21Z-11.02, Florida Administrative Code (1984 Supp.), the Board approved the examination developed by the National Association of Boards of Examiners of Nursing Home Administrators and specifies its use by the Department of Professional Regulation. The rule also provides that the five subject areas covered by the exam are to be weighted equally and that a raw score of 75 percent as a general average is necessary to pass.

    
    

13. In this case, Respondent followed the statutes and rules. Respondent's testing service did not notify Respondent in advance that 15 additional questions for statistical purposes would be on the examination, and

    Respondent in turn could not give Petitioner advance notice. As a result of the testing service's unprofessionalism, Petitioner was unfairly surprised and upset to learn of the 15 additional questions at the test site.

    
    

14. Despite Petitioner's surprise and upset, she finished the examination in the allotted time and answered all the questions. She could not prove that the 15 additional questions caused her to fail the exam.

15. Although the 15 additional questions did not count and were not weighted equally with the other 150, Petitioner did not prove that the required subject areas were not weighted equally in violation of Rule 21Z-11.02, Florida Administrative Code (1984 Supp.).

    
    

16. In challenging a licensure examination score, the burden of proving inaccuracy or incorrectness of the score is with the Petitioner. The Petitioner must show by a preponderance of the evidence that the examination or its grading was arbitrary or capricious. Unless that obligation is met, Petitioner fails. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

17. The Petitioner, Marlene Johnson, has failed to present sufficient testimony or other evidence to demonstrate that Respondent improperly denied her a license through the entry of a failing grade on the October 13, 1986, examination for Nursing Home Administrators. To the contrary, the preponderance of the evidence in this matter shows that Petitioner was unable to demonstrate minimum skills necessary for passing the examination.

RECOMMENDATION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Professional Regulation, Board of Nursing Home Administrators enter a final order: confirming that Petitioner's grade on the October 13, 1986, examination is a failing 74.7 percent; and denying licensure at this time; and denying Petitioner's other requested relief.

RECOMMENDED this 12th day of March, 1987 in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4903

Section 120.59(2), Florida Statutes (1985) Rulings

Petitioner filed no proposed findings of fact. Respondent's proposed finding 9 is cumulative and the last sentence of 8 is subordinate. Otherwise, Respondent's proposed findings of fact are accepted and incorporated.

COPIES FURNISHED:

Marlene Johnson 5750 Bahia Vista

Sarasota, Florida 33582

Jeffrey H. Barker, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mildred Gardner Executive Director

Board of Nursing Home Administrators Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Wings S. Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-004903

Orders for Case No: 86-004903