STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. STEVEN ROBERTS, )
)
Petitioner, )
)
vs. ) CASE NO. 88-0578
)
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter was heard by William R. Dorsey, Jr., the hearing officer designated by the Division of Administrative Hearings, on Thursday, May 26, 1988, in Fort Lauderdale, Florida and on March 13, 1989, in Tallahassee, Florida.
APPEARANCES
For Petitioner: P. Gregory Jones, Esquire
The Law Office of BOHDAN NESWIACHENY C & S Bank Building, Suite 2200
One Financial Plaza
Fort Lauderdale, Florida 33394
For Respondent: E. Harper Fields, Esquire
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES
The issue is whether Dr. Roberts is entitled to licensure as a dentist in the State of Florida due to the invalidity of the clinical dental examination given in June of 1987, or, if the examination itself is valid, whether the grade assigned to Dr. Roberts should be adjusted to become a passing grade?
PRELIMINARY STATEMENT
Dr. Steven Roberts received notice from the Department of Professional Regulation, Board of Dentistry, that he had not received a passing grade on the clinical dental examination administered in June of 1987. He then sought a review of his grade, and ultimately requested a formal hearing to contest his grade.
At the formal hearing held in Fort Lauderdale, Florida on December 29, 1988, Dr. Roberts presented the testimony of Dr. Gerald P. Gultz, a dentist and of Dr. Robert S. Kennedy, an expert in testing and measurement. The following exhibits were entered into evidence by agreement: exhibits 4, 5, 8, 10, 38, 47,
101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, and 112. Dr. Roberts
offered the following exhibits, which were received in evidence: exhibits 5E, 5F, 6, 7, 9, 39, 40, 43, 44, 50, 51, 200, 201, 202, 203, and 204. The
Department presented the testimony of Lucinda A. Richards, an expert in testing and measurement, and Dr. Theodore Simkins, a dentist. The Department offered exhibits 1, 2, 3, and 103 in evidence, which were admitted. The hearing could not be completed on December 29, 1988. After three substitutions of counsel for the Department, the hearing was reconvened in Tallahassee, Florida on March 13, 1989, to continue the testimony of Lucinda A. Richards, and to take the testimony of Dr. Roberts. Counsel for Dr. Roberts requested and received three extensions of time for the filing of proposed recommended orders. A proposed recommended order was filed by Dr. Roberts on July 11, 1989. The Department of Professional Regulation filed no proposed recommended order. Rulings on proposed findings of fact are made in the Appendix.
FINDINGS OF FACT
Dr. Roberts and His Background
Dr. Steven Roberts is a dentist licensed to practice in the State of New York. He attended the United States Military Academy and received his undergraduate degree in 1970. He graduated from the New York University College of Dentistry in 1978, and practiced dentistry in New York, New York from 1978- 1987. To be licensed in New York, Dr. Roberts passed the national boards and the northeast regional board examination. During the course of his practice in New York, Dr. Roberts never received a complaint or had a claim for malpractice made or filed against him.
Clinical Examinations
Dr. Roberts took the Florida clinical dental examinations in June of 1986, January of 1987, and June of 1987. His grade on the June of 1987, examination is the subject of this proceeding. Dr. Roberts has successfully passed the written examination and the diagnostic examination required for licensure by Section 466.066(4)(a) and (c), Florida Statutes.
Dr. Roberts' score for the June of 1987, clinical dental examination was 1.95; the minimum passing score is 3.00. The procedures tested during the June 1987, Clinical Dental Examination and Dr. Roberts' scores were as follows:
The Procedure | The Score | The | Revised Score |
Periodontal | 1.67 | ||
Amalgam Cavity | |||
Preparation | 1.67 | ||
Amalgam Cavity | |||
Restoration | 3.00 | ||
Composite Preparation | .67 | ||
Composite Restoration | .33 | ||
Posterior Endodontics | 2.00 | 3.66 | |
Cast Preparation | 2.67 | 3.00 | |
Pin Amalgam Preparation | 1.00 | ||
Pin Amalgam Restoration | 1.67 | ||
Denture | 3.63 | ||
Total Score | 1.95 | 2.15 |
Dr. Roberts made a timely request to review his grade, and filed objections to his grades; a regrading procedure resulted in the regrading of his scores for posterior endodontics and cast restoration as set forth above.
Each of the procedures tested in the clinical dental examination is scored by three different examiners. For each procedure examiners record their scores on separate 8 1/2" X 11" sheets. Each sheet has a matrix of circles which are blackened with a pencil so that they can be machine scored. On each sheet the candidate's identification number and the examiner's identification number are recorded along with the number for the procedure involved and the candidate's grade. On the sheet for each procedure the criteria for successful performance of the procedure are printed, along with preprinted comments which the examiners may use to explain the reason for the grade assigned. These comments relate to the criteria being examined. The following grades may be assigned by examiners:
Complete failure
Unacceptable dental procedure
Below minimum acceptable dental procedure 3- Minimum acceptable dental procedure
4- Better than minimal acceptable dental procedure 5- Outstanding dental procedure
An examiner is not required to mark a comment if the grade assigned is 5, a comment is marked for any grade below 5.
Each procedure is graded in a holistic manner. Grades assigned by each of the three examiners for a procedure are averaged; the averaged scores for each procedure are then weighted and the weighted scores are summed to provide the overall clinical grade. By averaging the scores of three examiners for each procedure, variation from examiner to examiner is minimized.
The examiners are experienced Florida dentists selected by the Board of Dentistry. An examiner must have at least five years of experience as a dentist and be an active practitioner.
Potential examiners attend a standardization training exercise. This training is required by Section 466.006(4)(d), Florida Statutes. Its purpose is to instruct examiners in examination procedures and the criteria to be applied in grading. Through the training the examiner group as a whole arrives at a consensus opinion about the level of grading, so that candidates' scores on the examination will be valid and reliable. The training attempts to focus on each examiner's subjective, internalized evaluation criteria, so that they can be modified, as necessary, to reflect the consensus of all graders. A standardizer explains grading criteria to the potential examiners, and discusses various divisions among schools of thought and training on the procedures which will be the subject of the examination. The standardizer uses dental exhibits from prior dental exams as examples, and identifies grades and errors on the exhibits so that the graders learn and can adhere to uniform grading standards. The training focuses on three problems which professional literature has identified in evaluation: errors of central tendency, proximity errors, and bias a priori. Errors of central tendency result when graders are uncertain of criteria, hesitate to give extreme judgments, even in appropriate cases, and thus tend to improperly grade near the average. Proximity error is a type of halo effect which is applicable in grading of mannequin exhibits. The examiner grades all of the mannequin exhibits for each candidate at one time. If the first example of the candidate's work is especially good, and deserves a grade of 5, the
grader may tend to transfer a generally positive attitude towards the next example of the candidate's work and assign a grade which may not be based solely upon the merits of that second piece of work. The same process can improperly depress the grades on subsequent mannequins if the first example of a candidate's work is poor. Bias a priori is the tendency to grade harshly or leniently based upon the examiner's knowledge of the use that will be made of the grade, rather than only on the quality of the work graded.
After an 8 to 12 hour standardization training session, the Department administers an examination to those who have been trained. Those with the highest scores become the examiners, i.e., dentists who will grade candidates' work, while those with the lower scores in the training session become monitors, who supervise the candidates in their work on mannequins or on patients, but who do not actually grade student work. There is, however, no minimum score which a dentist who attends the standardization session must obtain in order to be an examiner rather than a monitor. This results, in part, from the limited pool of dentists who participate in the examination processes as monitors or examiners.
For the 1987 clinical dental examination 31 dentists accepted selection by the Board and attended the standardization session, 20 were then selected as examiners and 11 became monitors for the examination. None of the dentists who attended the standardization session were dismissed by Department of Professional Regulation from further service at the examination session. The process by which the Department selected the examiners for the 1987 clinical dental exam was neither arbitrary nor capricious, but comports with Rule 21G- 2.020(4), Florida Administrative Code.
The standardization training and examination of dentists to determine who will serve as examiners and monitors does not provide any bright line for distinguishing among potential examiners those who will make the most assiduous effort to apply the grading criteria explained in the training session versus those who retain an innate sense of a passing work based on what the examiner considers acceptable work in his own practice. The effort to convey to examiners the standard of "minimum competency" has imperfect success, but the Department's training is appropriate.
Out-of-State Candidates' Scores
11. There is a substantial difference in the failure rates for out-of- state candidates and for in-state candidates on the clinical dental examinations. In the June of 1987, exam 82.5% of the candidates who graduated from the only in-state dental school, the University of Florida, passed the entire examination, while 54.2% of the out-of-state graduates passed, and only 37.8% of candidates from foreign schools were successful. Overall, 86.5% of the candidates passed the written portion of the examination, 93.5% the portion on oral diagnosis, but only 63.3% the clinical portion of the examination. Dr. Roberts has failed to prove that the lower pass rate for out-of- state candidates is the result of any sort of conscious effort on the part of examiners to be more stringent in grading out-of- state candidates. Dr. Kennedy's testimony indicated only that the data bear more analysis, not that they prove improper grading.
Procedures Performed on Mannequins
The Board of Dentistry tests between 600 and 700 dental candidates per year. It is extremely difficult for the candidates to find patients who have exactly the problem which is to be tested and bring them to the examination to
work on. Some portions of the clinical dental examination, therefore, are not performed on patients, but on cast models of human teeth which resemble dentures, and which are known as mannequins. This is expressly authorized by Section 466.006(4)(a), Florida Statutes. The notice to appear which candidates receive approximately 30 days before the examination informs them of the types of mannequins which will be used in the examination. Before that time, however, dental supply companies obtain lists of those eligible to take the examination, and contact the candidates in an attempt to sell them the mannequins.
Candidates must bring mannequins with them to the examination and can purchase additional mannequins for practice.
Testing with mannequins is also more efficient because with live patients, the student must be graded at the time of the examination, while a model can be retained and graded a day or two later. The decision of the Board to have certain procedures performed on mannequins, so that each candidate would be graded on exactly the same procedure, is reasonable. The Board had also considered having students perform all test procedures on extracted human teeth, but there are not a sufficient number of all natural teeth available, given the number of students who are tested, both for the examination itself and for practice. The Board determined that it would be better to use mannequins for some of the procedures tested in the examination because they are readily available and students can purchase extra copies for practice.
For certain procedures, such as endodontics, specific natural teeth (such as first bicuspids) are often extracted and so are generally available; for procedures performed on those teeth, it is possible to have candidates work on human teeth. By contrast, testing procedures performed on teeth such as incisors is not practicable. It is impossible to obtain enough incisors in good condition, without restorations and chips, for use during an examination. The statute governing the dental examination does require that one restoration performed by candidates must be done on a live patient, and for the June 1987, clinical dental examination that procedure was a class 2 amalgam restoration.
The Board directed by rule that mannequins be utilized for five test procedures: the pin amalgam preparation and restoration, Rule 21G-2.013(3)(d), Florida Administrative Code; the endodontic procedure, Rule 21G-2.013(3)(e) Florida Administrative Code; the posterior tooth preparation for a cast restoration, Rule 21G-013(3)(f), Florida Administrative Code, the class III acid etch composite preparation and class IV acid etch composite restoration, Rule 21G-2.013(3)(g), Florida Administrative Code. Performing these procedures on mannequins is not exactly the same as performing procedures on human teeth in a patient. In view of the difficulty involved in finding patients whose teeth present virgin lesions, so that each candidate would be tested on exactly the same problem, the difficulty in grading a large number of procedures performed on live patients, and the difficulty in obtaining a large number of human teeth necessary for testing and for practice, the Board's decision to use the mannequins for these procedures is reasonable. The Legislature recognized this in Section 466.006(4)(b), Florida Statutes, which prescribes that the clinical dental examination shall include restorations "performed on mannequins, live patients, or both. At least one restoration shall be on a live patient." The Board was within its authority when it determined the procedures to be performed on mannequins.
Violation of Blind Grading
The dental examiners who grade the work of candidates grade blindly, i.e., they do not know which candidate's work they are grading. The Clinical
Monitor and Examiner Instruction Manual for the June of 1987, examination makes this clear. At page 24 paragraph 3 the Manual states
Examiners are requested to disqualify themselves at anytime they are presented with models or patients treated by a dentist who they know personally or with whom they have had professional contact.
All examiners are requested to give department staff the name of any examination candidate who is personally known to them to be taking the exam. The department staff will assist the examiners in avoiding any work performed by the candidates they know. Rationale: Allegations have been made about examiners who knew candidates taking the exam even though the examiners only see candidate numbers.
Monitors and Examiners are strongly urged to avoid discussion with candidates about the examination. Even conversation about non-examination related matters can be misinterpreted by other candidates as an unfair privileged communication.
Despite this admonition, one of the examiners, Dr. Cohen, who knew Dr. Roberts, graded the work of Dr. Roberts.
Dr. Cohen met Dr. Roberts the first time Dr. Roberts took the Florida Clinical Dental Examination in June of 1986. Dr. Roberts had with him a bag which would have identified him as a student from New York University, where Dr. Cohen had taught. Dr. Cohen came over to Dr. Roberts, introduced himself, gave Dr. Roberts his card, (exhibit 44) and invited Dr. Cohen to his hotel room where they discussed practicing dentistry in Florida.
In 1986 Dr. Cohen was associated with another dentist, Gerald P. Gultz, who had recently moved to Florida from New York. Dr. Gultz had also been a part-time clinical assistant professor of dentistry at New York University College of Dentistry. After Dr. Cohen returned from the June 1986, administration of the clinical dental examination, he had a conversation with Dr. Gultz in which Dr. Cohen asked Gultz if he knew Dr. Roberts, and commented on Dr. Roberts performance on the clinical examination. Dr. Cohen said Dr. Roberts had done terribly, and Dr. Cohen believed that Dr. Roberts would never get his license to practice in Florida. (Tr. 5/26/88 at 73).
Dr. Roberts saw Dr. Cohen at the January of 1987, clinical dental examination, but they did not speak.
In June of 1987, Dr. Cohen also spoke briefly to the wife of Dr. Gerald Gultz, Lauren Gultz, saying that he would be seeing Dr. Roberts at the June of 1987, clinical dental examination, which was coming up. He told Mrs. Gultz that Dr. Roberts was a poor practitioner, and that he did not think he would pass the examination.
At the June 1987, exam, Dr. Roberts' periodontal patient was his uncle, Mr. Finkelstein. Dr. Cohen was one of the examiners who reviewed Mr. Finkelstein to determine whether his condition was appropriate to serve as a
patient for Dr. Roberts on the periodontal portion of the examination. Dr. Cohen had a conversation with Mr. Finkelstein in which he told him "tell your dentist to do a good job". Because Mr. Finkelstein had stated that his dentist was a graduate from N. Y. U. Dental School, Mr. Finkelstein was convinced that Dr. Cohen knew exactly who the dental candidate who would work on Dr.
Finkelstein was -- Dr. Roberts. After accepting Mr. Finkelstein as an appropriate periodontal patient, Dr. Cohen also served as a grader on the periodontal procedure performed on Mr. Finkelstein. After grading the work which Dr. Roberts had done, Dr. Cohen told Mr. Finkelstein to tell his dentist that Dr. Cohen would see him later in the hotel where they were staying. At the hotel, Dr. Cohen talked to Dr. Roberts about the dental examination, that he himself had to take the examination three times, although he considered himself to be a superior dentist, and that Dr. Cohen could help Dr. Roberts with his grades but that he could never grade Dr. Roberts more that one grade higher than any of the other examiners.
Dr. Cohen served as an examiner (i.e. grader) for Dr. Roberts on six of the nine procedures tested. There were:
procedure number 1, the periodontal evaluation where he assigned a failing grade of 2;
procedure number 4, the class III composite preparation, where he assigned a failing grade of 1;
procedure number 5, the class IV composite restoration, where he assigned a failing grade of 1;
procedure number 6, the endodontic evaluation, where he assigned a passing grade of 3;
procedure number 7, the preparation for a cast restoration, where he assigned a passing grade of 3; and
procedure number 8, the pin amalgam preparation, where he assigned a failing grade of 1.
This failure of blind grading is a serious irregularity in the evaluation of Dr. Roberts' performance on the 1987 clinical dental examination, given his prior negative comments about Dr. Roberts before the examination. By ignoring those scores, Dr. Roberts would be evaluated only by two examiners, on all the procedures for which Dr. Cohen gave a grade. This would mean that his scores would not be comparable with those of any other candidate, for his grade on each procedure would not be the result of blind grading by three independent examiners.
Dr. Roberts' Challenges to Grades Assigned by Other Examiners
The full nine procedures evaluated in the 1987 dental clinical examination and Dr. Roberts' grades were:
A periodontal exercise performed on a live patient, Mr. Finkelstein, which involved the scaling of five teeth both above and below the gum and stain removal. Dr. Roberts was assigned scores of 1, 2, and 2 by the examiners (one grade of 2 was assigned by Dr. Cohen)
An amalgam cavity preparation, performed on a live patient, Elizabeth Cox, which is the preparation of a tooth for filling. When the preparation is completed a proctor escorts the patient to the three examiners who independently grade this part. After grading, the patient returns to the candidate who completes the filling of the tooth (the restoration) which is
subsequently graded independently by three examiners. Dr. Roberts was assigned grades of 1, 1, and 3 for the preparation (none of these grades were assigned by Dr. Cohen).
A final amalgam restoration, which is the filling of the tooth prepared in the prior procedure. Dr. Roberts received grades of 3, 3, and 3 on this procedure (none of the grades were assigned by Dr. Cohen).
A class III composite preparation, which is preformed on a model, not a live patient. This involves removing decay and shaping a tooth to hold a class III filling, i.e., one located on the side surface of an incisor. Dr. Roberts received scores of 1, 0, and 1 (Dr. Cohen assigned one of the grades of 1)
A class IV composite restoration, which is performed on a model, not a live patient. This involves restoring a fractured tooth with a composite restoration material. On this procedure Dr. Roberts received scores of 0, 0, and 1 (Dr. Cohen assigned the grade of 1).
An endodontic evaluation performed on a posterior tooth, which is performed on a mannequin, and involves the opening of a molar, and identification of the canals in the tooth in preparation for a root canal procedure. Originally Dr. Roberts received grades of 3, 3, and 0 (one of the grades of 3 was assigned by Dr. Cohen). Dr. Roberts work was regraded by three new examiners and the grades of the original examiners were discarded. Dr. Roberts ultimately received a grade of 3.67 on the endodontic portion of the examination
A preparation of a posterior tooth for a cast restoration, which is performed on a mannequin. It involves preparing a tooth to receive a crown.
Dr. Roberts' original grades were 2, 3, and 3 (Dr. Cohen had assigned a grade of
3 on this procedure). On review, Dr. Roberts' was regraded by three new examiners, and the original grades were discarded. Dr. Roberts received a final grade of 3 on this portion of the examination.
A pin amalgam preparation, which is performed on a model, not on a live patient. This involves the preparation of a tooth to hold an amalgam filling by inserting a pin into a portion of the tooth, which serves to anchor the filling. Dr. Roberts was assigned grades of 2, 0, and 1 on this procedure (Dr. Cohen assigned the grade of 1).
Pin amalgam final restoration, which is performed on a model. It involves filling a tooth with amalgam filling material. Dr. Roberts was assigned grades of 2, 1, and 2 on this procedure (Dr. Cohen assigned one of the grades of 2).
Due to the involvement of Dr. Cohen in so many of the procedures involved here, Dr. Roberts performance on the June of 1987, clinical dental examination was not fairly evaluated. A fair evaluation cannot be provided after the fact by merely dropping Dr. Cohen's grades, because Dr. Roberts' performance would not be subject to the independent evaluation of three examiners.
Dr. Roberts relies, to a large extent, on the testimony of Dr. Gultz as the basis for regrading his procedures to a passing grade of 3, or better. The testimony of Dr. Gultz does not, however, show that he has ever participated in the standardization exercises for examiners at Florida clinical dental
examinations. Dr. Gultz experience as a clinical professor of dentistry at New York University provides a substantial basis for his evaluation of dental procedures. The difficulty, however, is that as with any qualified examiner, his evaluations will be based on internalized standards which are personal to him. There is no way to know whether Dr. Gultz standards for adequate performance are equivalent to those which the standardization training produces among examiners at the standardization exercise before a clinical dental examination. The standardization process "attempts to bring all examiners to the same level of grading, so that each [examiner] is grading in a valid and reliable manner." Clinical Monitor and Examiner Instruction Manual, June of 1987, at page 42. The Florida dental clinical examination uses a holistic grading method. Each score sheet which an examiner fills out has on it the criteria to be applied in evaluating the candidates performance on that procedure. They all contain a statement which reads:
It is the intent of the Board that each of the criteria are to be accorded equal importance in grading. Equal importance does not mean that each criteria has a numerical or point value, but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the judgment of the examiner, could result in a failing grade on the procedure. The criteria do not have any assigned numerical or point value, but are to be utilized in making a holistic evaluation of the procedure.
Each grading sheet also points out to the examiner certain critical factors which, if present, require a grade of 0 for the procedure.
The standardization in grading which the Board diligently attempts to achieve through the standardization training and the standardization testing of examiners done at the close of the training is elusive at best. Nonetheless, in the absence of showing that Dr. Gultz standards of evaluation are equivalent to those of an examiner trained at a standardization session, it is impossible to know whether his standards of evaluation are more rigorous or less rigorous than those reflected by the grades assigned to other candidates by the corps of examiners which evaluated the work of candidates at the June of 1987, clinical dental examination. The same is true with respect to the testimony of Dr. Simkins, the expert for the Board in this proceeding.
No useful purpose would be served in attempting to choose between the testimony of Dr. Gultz, on the one hand, and the testimony of Dr. Simkins and of the other examiners who testified by deposition in this proceeding. If this were to be done, all the hearing officer would have determined is whose testimony about the appropriate grade to be assigned for each procedure is more believable. On this record it would be impossible to make a further finding about whether that more believable testimony reflects a scoring standard more stringent, less stringent or the same as that generally applied to all candidates by the corps of examiners in the June of 1987, clinical dental examination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this matter. See Section 120.57(1), Florida Statutes (1987).
The standard of review in this matter is set by Rule 28-6.008(3), Florida Administrative Code:
Any hearing on the denial of a license shall be conducted in accordance with Section 120.57, and unless otherwise provided by law the applicant shall have the burden of establishing entitlement to the license.
The issue then, is whether Dr. Roberts has established that he is entitled to licensure as a dentist in the State of Florida.
Dr. Roberts has attacked the validity of the June 1987, clinical dental examination for failure to comply with Section 466.006(4)(d), Florida Statutes, which requires that
The board by rule shall determine the passing grade for each procedure and the acceptable variation for examiners. No such rule shall apply retroactively. The department shall require a mandatory standardization exercise for all examiners prior to each practical or clinical examination and shall retain for employment only those dentists who have substantially adhered to the standard of grading established at such exercise.
The Department did conduct the required standardization exercise, and did choose those dentists as examiners (as opposed to monitors) from among those who most closely adhered to the standard of grading established by consensus at that exercise. It is not significant that there was no preset grade which an experienced dentist had to obtain in order to be designated as an examiner rather than a monitor. Obviously, the candidates have undergone a substantial expenditure of time and money in arranging to be present for the clinical dental examination with their patients and mannequins. The examination could not be called off if an insufficient number of dentists obtained some preset score on the standardization exercise. The Department's practice of rank ordering the dentists according to their performance on the standardization exercise, and choosing those who best adhered to the standard of grading established at the exercise as the examiners, and using the remaining dentists as monitors, adheres to the statutory requirement and Rule 21G- 2.020, Florida Administrative Code.
The Board has adopted a rule on acceptable variation for examiners, which is published at Rule 21G-2.017(2), Florida Administrative Code; it states:
There shall be a variance review of all grades of all applicants taking the clinical part of the examination for the purpose of determining inter-examiner variance.
Such a report was prepared. This confidential dental examiner performance report was introduced into evidence as exhibit 5E. The report analyzes the performance of all of the examiners, and makes recommendations about whether the examiners in the lower quartile of accuracy ratings should be retained as examiners for subsequent examinations. These analyses, done pursuant to Rule 21G-2.017(2), meet the requirement of Section 466.006(4)(d), Florida Statutes (1987).
In his proposed recommended order Dr. Roberts attacks the rather complex grading system set out in Rule 21G-2.013, Florida Administrative Code. The short answer to the attack is that in the absence of a challenge to the rule under Section 120.56, Florida Statutes, the rule must be applied as written, and no rule challenge was filed. Dr. Roberts' attack focuses on the Board's decision to separately grade candidates on their preparation of teeth and then on restoration. The Legislature gave the Board authority in Section 466.006(d), Florida Statutes, which is broad enough to permit the Board to score the clinical dental examination in the manner prescribed by Rule 21G-2.013, Florida Administrative Code, including the weights assigned to certain procedures and the breaking of others into rational subparts, such as preparation and restoration. The grading system is neither arbitrary nor capricious. Section 120.52(8)(e), Florida Statutes.
Dr. Roberts is incorrect in his argument, that it was improper for the Board to test a class III composite preparation (procedure number 4) and class IV composite restoration (procedure number 5) by using a mannequin. Rule 21G- 2.013(3)(g), Florida Administrative Code, provides that the clinical dental examination shall include a class III or IV acid-etch composite preparation and restoration performed "on a specified model". Rule 21G-2.013(4)(g), the grading criteria, also provides that this procedure shall be performed "on a specified model." 1/ Having set, by rule, the requirement that this procedure be performed on a model, the Board was required to follow its own rule. For each of these procedures Dr. Roberts argued that the use of the mannequin rather than a patient affects the manner in which the procedure is carried out making successful more difficult. While this may be so, the practicabilities of large scale examinations require the use of models. The Board has the statutory authority to require the use of models for these procedures.
Dr. Roberts has also challenged the Board's rule requiring that after a candidate has failed three clinical examinations, he cannot be reexamined until he completes one academic year of undergraduate clinical course work at a dental school approved by the American Dental Association Commission on Dental Accreditation or a one year general practice residency. Rule 21G-2.021(2), Florida Administration Code, implements Section 466.006(4)(b)5., Florida Statutes, which states that if an applicant fails the dental clinical examination on three attempts he is not eligible for reexamination until he complete "additional education requirements established by the board". The issue of the reasonableness of the additional education requirement promulgated as a rule is not open to question in a 120.57(1) hearing. That issue can only be raised in a rule challenge under 120.56, Florida Statutes. In any case, the rule adopted by the Board is consistent with the enabling legislation.
Under Rule 21-11.013(1), Florida Administrative Code,
In a 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.
The grades assigned to Dr. Roberts by Dr. Cohen violated the blind grading provisions of the clinical dental examination. This error is not attributable to Dr. Roberts. He is therefore entitled to retake the next regularly scheduled examination at no charge. See, Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984). As that decision notes, offering the examinee another opportunity to take the professional licensure examination protects the examinee by permitting a fair opportunity to be tested, and protects the public by not licensing an examinee merely because of an error by the agency, when the examinee's competence has not been established. 458 So.2d at 811 and N. 3.
The decision of the District Court of Appeal in Harac v. Department of Professional Regulation, 484 So.2d 1333 (Fla. 3rd DCA 1986), is also applicable here. As with the architecture examination under consideration in Harac, the clinical dental examination is graded in a holistic manner. The Court of Appeals in Harac permitted the licensing of a architect when the architect had challenged his grade. One of the three grades assigned to him was found to be invalid, and the expert produced by the architect not only testified that he found the candidate's test performance to be passing, but did so only after carefully following the appropriate standardization procedures involved in a grading system, 484 So.2d at 1335. Neither Dr. Gultz, the expert for Dr.
Roberts, nor Dr. Simkins, the expert for the Board, testified that their evaluations of the work of Dr. Roberts was based upon grading which met the standardization requirements for the holistic grading method. Therefore, Dr. Roberts has failed to meet his burden of proof to have his performance on the June 1987, clinical dental examination reevaluated in this administrative proceeding and declared to be a successful performance. The most he has proven is that the examination was subject to irregularities in that his performance was not blindly graded.
It is recommended that the results of the clinical dental examination which Dr. Roberts took in June of 1987, be found invalid, and that he be permitted to take the next clinical dental examination offered by the Department of Professional Regulation at no cost to him.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of December, 1989.
WILLIAM R. DORSEY, JR.
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1989.
ENDNOTES
1/ A prior version of the rule had required that these procedures be performed "on a patient". See, rules attached to the deposition of Mary Alice Palmer.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0578
Rulings on findings proposed by Dr. Roberts:
1. Adopted in finding of fact 1, except for the statement concerning employment by the Air Force which, while true, is not relevant.
2-6. Covered in finding of fact 1.
Rejected as unnecessary.
Adopted in finding of fact 2.
Adopted in finding of fact 2.
10-15. Adopted in finding of fact 3.
16 and 17. Adopted in finding of fact 4
Adopted in finding of fact 5.
Adopted in finding of fact 4.
Adopted in finding of fact 5.
Adopted in finding of fact 6.
Adopted in finding of fact 8.
Adopted as modified in findings of fact 8 and 9.
24-26. Rejected as argument.
Rejected for the reasons stated in the conclusions of law.
Adopted as modified in finding of fact 8.
29 and 30. Adopted in finding of fact 7.
Rejected because the criteria are judgmental, but not entirely subjective or arbitrary.
Discussed in the conclusions of law.
33-35. Rejected as unnecessary.
Rejected because the Department properly followed Section 466.006(4)(d) through its use of the variance report to determine whether examiners will be invited to future examinations, as discussed in the conclusions of law.
Rejected as unnecessary.
Rejected as inconsistent with the evidence.
39-42. Rejected as unnecessary.
43. While true, rejected as unnecessary.
44 and 45. Rejected for the reasons stated in finding of fact 10.
46. Rejected, See finding of fact 9.
47-49. Adopted as modified in finding of fact 9.
Generally rejected, except to the extent that the use of Dr. Cohen as an examiner affected Dr. Roberts' grade.
Rejected as inconsistent with the evidence.
52-54. Rejected for the reasons stated in finding of fact 11.
55. Rejected for the reasons stated in finding of fact 10.
56-59. Rejected for the reasons stated in finding of fact 28.
Adopted in finding of fact 26.
Rejected as inconsistent with the Hearing Officer's view of the evidence.
Rejected because the standards and criteria are published in the rules of the Board which are available to candidates and examiners. See, Rule 22I-2.013, Florida Administrative Code.
Rejected because grading criteria are published in the Department's rule. See, finding of fact 26.
To the extent necessary discussed in finding of fact 10.
Rejected because statement quoted in finding of fact 26 is a standard of minimum competency.
Rejected as argument.
Rejected as unsupported by the evidence.
68-82. Rejected for the reason stated in the conclusions of law.
83. Rejected as unnecessary.
84-89. Rejected for the reasons stated in conclusions of law. The grading system established in Rule 21G-2.013, Florida Administrative Code, comports with the Board's statutory authority. The grading system Dr. Roberts advocates would be a more demanding system, because the failure of a student on any single
procedure would be disqualifying, which is not the case in the system the Board uses.
90. Adopted in finding of fact 2.
91-93. Rejected because this argument essentially requires licensure of dentists by endorsement, which is not the scheme established by the Legislature.
94 and 95. Rejected for the reasons stated in the conclusions of law.
96-102. Rejected for the reasons stated in findings of fact 12-15.
103-110. Generally adopted in findings of fact 16-23, although the grades assigned by Dr. Cohen cannot be discarded, for Dr. Roberts would then be evaluated only by two examiners, which would treat him differently than all other candidates for licensure.
111-117. Rejected for two reasons: The rule is within the statutory authority of the Board, and it does not apply here since Dr. Roberts is entitled to another examination without taking further course work, due to the irregularity in the grading by Dr. Cohen.
118-123. Rejected because the notice which Dr. Roberts received by mail was essentially the same as all other candidates received. Individual problems of preparation are not grounds for invalidating the statutory or rule requirements relating to all candidates.
124-134. Rejected because there is no reason to choose between the testimony of Dr. Gultz or of the other examiners for the reasons stated in finding of fact
28. The criticism of negative transference made by Dr. Kennedy is essentially the proximity error which the Department tries to avoid by standardization training. See, finding of fact 7.
135. Rejected because there is insufficient proof in this record that graduates of the University of Florida have any unfair advantage in testing.
136 and 137. Rejected because the method used by the Board is reasonable, and the alternative suggested by Dr. Kennedy are not reasons to invalidate the Board's choices.
138-142. Generally adopted in findings of fact 4 and 5. The comments only justify the reason for a grade less than 5, they do not indicate failure.
143 and 144. Covered in finding of fact 24(b) and (c).
Covered in finding of fact 24(b) and (c).
Covered in finding of fact 26 for all procedures.
147-156. | Rejected | for | the | reasons | stated | in | finding | of | fact | 28. |
157-164. | Rejected | for | the | reasons | stated | in | finding | of | fact | 28. |
165-169. | Rejected | for | the | reasons | stated | in | finding | of | fact | 28. |
170-198. | Rejected | for | the | reasons | stated | in | finding | of | fact | 28. |
199-208. Rejected for the reasons stated in finding of fact 28.
209-229. Rejected for the reasons stated in findings of fact 12-15 on the use of mannequins and for the reasons stated in finding of fact 28 as to grading.
230-240. Rejected for the reasons stated in findings of fact 12-15 on the use of models, and finding of fact 28 for grading. It was improper for Dr. Cohen to evaluate Dr. Roberts' work and findings to this effect have been made.
241-244. Rejected for the reasons stated in finding of fact 28. 245-258. Rejected for the reasons stated in finding of fact 28.
259-272. Rejected for the reasons stated in finding of fact 28. It was improper for Dr. Cohen to have graded the work of Dr. Roberts, and the finding of fact to this effect has been made.
273-281. Rejected for the reasons stated in finding of fact 28. It was improper for Dr. Cohen to have graded the work of Dr. Roberts, and the finding of fact to this effect has been made.
282. No challenge to the prosthodontics grade was made.
283 and 284. Rejected for the reasons stated in finding of fact 28.
COPIES FURNISHED:
P. Gregory Jones, Esquire The Law Offices of
BOHDAN NESWIACHENY
C & S Bank Building, Suite 2200 One Financial Plaza
Fort Lauderdale, Florida 33394
E. Harper Fields, Esquire
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry
1940 North Monroe Street Tallahassee, Florida 32399-0792
| Issue Date | Proceedings |
|---|---|
| Dec. 11, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 06, 1990 | Agency Final Order | |
| Dec. 11, 1989 | Recommended Order | Applicant's challenge to standardization of clinical dental exam rejected, but entitled to free re-take for violation of blindrading requirement. |
