STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THRESA GIOIA, )

)

)

Petitioner, )

)

vs. ) CASE NO. 88-5996

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

)

Respondent. )

)

RECOMMENDED ORDER

This cause was heard by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings, on July 30, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: D. Carlton Enfinger, Esquire

Barrett, Bajoczky, Hoffman and Harper

131 North Gadsden Street Post Office Box 1501 Tallahassee, FL 32302-1501

For Respondent: Vytas Urba, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

STATEMENT OF THE ISSUE

The issue is whether Ms. Gioia is eligible for re-examination of her clinical dental skills after having failed the clinical dental examination three times. She seeks to be re-examined without completing either a one year general practice residency or a minimum of one academic year of undergraduate clinical course work in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation.

PRELIMINARY STATEMENT

This matter was first filed with the Division of Administrative Hearings in December, 1988, challenging the notification Ms. Gioia received that she had failed to successfully complete the June, 1988, clinical dental examination.

Ms. Gioia then raised three challenges to her score in a petition for formal hearing: 1) that her first clinical examination in June of 1987 should not be counted against her due to misconduct of an examination monitor which

unsettled her and adversely affected her performance 2) that her June, 1988, clinical examination grades were not valid because they are inconsistent and manifest the lack of reliable grading standards, and 3) the policy and rule of the Board of Dentistry which prohibits re-examination of the patient and re- grading of clinical examination results effectively and unnecessarily denied Ms. Gioia the opportunity for adequate and independent review of her clinical examination grades.

The matter was first set for hearing in March of 1989, but due to a conflict which arose in the schedule of counsel for Ms. Gioia, that hearing was continued. Due to substitution of counsel for Ms. Gioia and for the Department, the matter was continued several times. After the appearance of current counsel for Ms. Gioia, Ms. Gioia voluntarily dismissed grounds two and three of her petition for formal hearing. By agreement of the parties, an evidentiary hearing was held on July 30, 1990, on a motion to dismiss which the Department had filed on March 23, 1990. That motion alleges that Rule 21G-2.021(2), Florida Administrative Code, prohibits an applicant such as Ms. Gioia from being re-examined after three failures of the clinical dental examination without completing additional education requirements, that Ms. Gioia had failed the examination three times, had not completed the additional education requirements, and that her petition should therefore be dismissed.

At the hearing Exhibits 1-5 were admitted without objection.

FINDINGS OF FACT

1. Ms. Gioia first attempted the clinical dental licensure examination in June, 1987. On June 11, 1987, during the periodontal portion of the examination, Ms. Gioia was found to be in possession of a periodontal chart, which a monitor regarded as unauthorized written material for an examination candidate to have. The monitor made a report of an irregularity during the examination. On September 3, 1987, Ms. Gioia received from the Board of Dentistry a notice that she had failed to obtain a passing score on the June, 1987, clinical dental licensure examination, and that the Board had been presented with evidence that during the examination she had unauthorized written material in her possession, viz., a periodontal chart, which constituted a violation of Section 466.028(1)(bb), Florida Statutes, and Rule 21-11.007(1)(e), Florida Administrative Code, and that she would not be permitted to be re- examined until she completed a two credit hour college level course in ethics. The letter also notified her that:

   
   

   You may seek review of the above, by filing a petition with the Executive Director of the Board within twenty-one (21) days of your receipt of this notice. You may request a formal proceeding pursuant to Section 120.57(1), Florida Statutes,

   or informal proceedings pursuant to Section 120.57(2), Florida Statutes. If you request formal proceedings, the petition must contain the information required

   by Rule 28-5.201, Florida Administrative Code.

   
   

2. Ms. Gioia then retained counsel, Kenneth Muszynski, and requested an informal hearing on September 28, 1987. The matter came before the Board of Dentistry on July 23, 1988, at its meeting in Tallahassee. According to the Final Order entered by the Board on October 14, 1988, (Board Exhibit 3) the Board found:

   . . . based upon [Ms. Gioia's] testimony relating to her possession of the periodontal chart, the Board determines that [her] possession of the

   periodontal chart did not constitute any intentional violation of examination rules or an attempt to obtain a license by fraud

   
   

   and ordered that she:

   
   

   . . . be certified for licensure without restriction upon her successful completion of the licensure examination.

   
   

   That Final Order effectively rescinded the requirement that she take an ethics course before she could be examined a second time.

   
   

3. No appeal from that Final Order was ever taken. There is no indication in the evidence that Ms. Gioia ever challenged the finding made in the Board's September 3, 1987, letter that she had failed to obtain a passing score on the clinical dental examination given in June, 1987. Rather, she had challenged the allegation of misconduct which had resulted in a restriction on her ability to take the examination again.

   
   

4. Ms. Gioia took the clinical dental examination for a second time in December of 1987, and did not obtain a passing score. She took the clinical dental examination for a third time in June of 1988, and again failed to receive a passing score. As a result, she received a letter on August 5, 1988, from the Board of Dentistry which states, in pertinent part:

   
   

   Pursuant to Florida Statutes 466.006(4)(b)5.,

   . . . "If [an] applicant fails to pass the clinical examination in three attempts, he shall not be eligible for re-examination unless he completes additional education requirements established by the Board."

   
   

   Therefore, you are not eligible to sit for the Florida Dental Examination until you complete

   a one year general practice residency or a minimum of one academic year of undergraduate clinical coursework in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation.

   
   

5. This letter prompted Ms. Gioia to request a review of her score on the June, 1988, clinical dental examination. After the review, Ms. Gioia was informed that the review did not result in an alteration of her grade, and if she wished to initiate a formal administrative hearing to challenge her grade she must do so within 30 days from the date of that October 4, 1988, letter. A petition for formal administrative hearing was filed, again by Kenneth Muszynski, on her behalf on November 14, 1988, which instituted this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

7. It is undisputed that Ms. Gioia failed the June, 1987, clinical dental examination. Having been accused of misconduct, it is not surprising that this would affect her performance. She was notified that she had failed that examination, and that she would not be permitted to re-take the examination unless she took a college course in ethics. She challenged this action, and filed a petition for an informal proceeding, and prosecuted the matter through the Board's entry of a Final Order, which she did not appeal. That proceeding forecloses Ms. Gioia from raising, at this point, the correctness of the Board's determination that she failed to pass the June, 1987 clinical dental examination.

   
   

8. Ms. Gioia argues that while she does not dispute that she failed to obtain a passing score on the June, 1987, clinical dental examination, her substantial interest in having three fair opportunities to pass the clinical dental examination was not adversely affected until she received the Board's August 5, 1988, letter denying her the opportunity to be re-examined unless she completed an additional academic year of undergraduate clinical coursework in dentistry.

   
   

9. The source of the requirement that an applicant for dental licensure who has failed the clinical examination three times must take additional coursework before being re-examined is found in Section 466.006(4)(b)5, Florida Statutes, which states:

   
   

   4 If the applicant fails to pass the clinical examination in three attempts, he shall not be eligible for re-examination unless he completes additional educational requirements established by the Board.

   
   

   That statute has been implemented by Rule 21G-2.021(2), Florida Administrative Code, which states in pertinent part:

   
   

   Any applicant who has failed to pass the clinical examination or the diagnostic skills examination in three attempts each shall not be eligible for re-examination until he completes a one year general practice residency or a minimum of one academic year of undergraduate clinical coursework in dentistry at a dental school approved by the American Dental Association's Commission on Dental Accreditation. At the time of application for re- examination the applicant must furnish proof from

   the educational institution of successful completion of the general residency program or the required coursework . . . Successful completion of coursework shall be established by submission of an official transcript.

   
   

10. Ms. Gioia has not filed a challenge to this rule under Section 120.56, Florida Statutes. Indeed, given the statutory basis for the Board's rule, it is doubtful that such a challenge could be successful. Both the text of the statute and the Board's rule refer to an applicant who has failed to pass an examination "in three attempts." Ms. Gioia attempted the clinical dental examination on three occasions, in June, 1987, December, 1987, and June, 1988. She falls within the scope of Section 466.006(4)(b)5 and Rule 21G-2.021(2), Florida Administrative Code. The time to have raised the issue of whether the

June, 1987, examination should be counted as an examination at all, due to the controversy over whether Ms. Gioia was guilty of misconduct, should have been raised in the informal administrative proceeding which she filed, and which was concluded by means of a Final Order from the Board on October 14, 1988. Ms.

Gioia raised the question of whether she should be barred from re-examination unless she completed a two credit hour college level course in ethics in an informal proceeding, and at that time she also could have raised the question of the fairness of counting that examination for any purpose. It would make little sense to allow dental applicants the opportunity to split their challenges to examination results, raising some challenges promptly upon notification that they have failed to pass the exam, but preserving the question of whether an earlier exam was a fair opportunity to demonstrate the applicant's clinical skills until the applicant ultimately fails the examination on two more occasions. There is nothing in the September 3, 1987, letter which the Board sent to Ms. Gioia informing her of her opportunity to challenge the Board's determination that she had failed the September 3, 1987, clinical examination which could have misled her into a reasonable belief that the issue of whether that examination was a fair one, and should be counted against her as one of her three attempts, could be preserved until a later time.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the petition for formal

hearing filed by Ms. Gioia which contended that her score on the clinical dental examination in June, 1987, should not be counted due to monitoring misconduct which unsettled her, and ordering that she not be certified to re-take the clinical dental examination until she completes the education requirements imposed in Rule 21G-2.021(2), Florida Administrative Code.

DONE and ENTERED this 23rd day of August, 1990, at Tallahassee, Florida.

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 23rd day of August, 1990.

Copies furnished:

Vytas Urba, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

D. Carlton Enfinger, Esquire Barrett, Bajoczky, Hoffman

and Harper

131 North Gadsden Street Post Office Box 1501

Tallahassee, Florida 32301-1501

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

Docket for Case No: 88-005996

Orders for Case No: 88-005996