STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

ELIZABETH R. HILLEGAS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1611

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, CLINICAL SOCIAL ) WORK, MARRIAGE AND FAMILY )

THERAPY, AND MENTAL HEALTH )

COUNSELING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 16, 1990, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Ms. Elizabeth R. Hillegas, pro se

1272 N.W. 15th Street Boca Raton, Florida 33486

For Respondent: Cynthia Gelmine, Esquire

Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

This is an exam challenge case in which the Petitioner contends that the Mental Health Counselor licensure examination administered on April 21, 1989, was a defective testing instrument by reason of its including several questions outside the announced subject domain of the test. It is contended by Petitioner that the challenged questions are appropriate for an examination on the subject of Marriage and Family Therapy, but inappropriate for a examination on the subject of Mental Health Counselor. The relief sought is to be given credit for the answers to the challenged questions.

PRELIMINARY STATEMENT

At the hearing the Petitioner testified on her own behalf and offered two exhibits, both of which were received in evidence. The Respondent presented the testimony of one expert witness who testified on the subject of the appropriateness of the challenged questions on a Mental Health Counselor licensure examination. During the course of the hearing the issues were narrowed to a challenge to three specific questions; these being questions 8, 17, and 33.

At the conclusion of the hearing it was determined that neither party intended to order a transcript. All partied waived their opportunities to file proposed recommended orders.

FINDINGS OF FACT

Based on the evidence offered at the formal hearing in this case, the following facts are found:

1. The Petitioner, Elizabeth R. Hillegas, took the Mental Health Counselor licensure examination administered on April 21, 1989. The Petitioner's examination was given a failing grade. The Petitioner needs to receive credit for correct answers on at least two more questions in order to be entitled to a passing grade. The Petitioner's answers to questions 8, 17, and 33 on the subject examination were incorrect. 2/

   
   

2. All three of the challenged questions, namely questions 8, 17, and 33, inquire as to matters which are part of the basic training in the field of Mental Health Counseling or matters which are crucial to competent practice in the field of Mental Health Counseling. The challenged questions ask about matters which should be known by a competent Mental Health Counselor. Therefore, the challenged questions are within the appropriate subject matter domain for a licensure examination for the profession of Mental Health Counselor. 3/

CONCLUSIONS OF LAW

Based on the applicable legal principles, statutes, and judicial precedents, the following conclusions of law are made:

1. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

2. In a case of this nature, the party seeking licensure bears the burden of demonstrating entitlement to the license sought. See Rule 28-6.08(3), Florida Administrative Code, and Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). If the proof is insufficient to demonstrate entitlement to the license, the license must be denied.

   
   

3. It is undisputed that the Petitioner needs to be credited with correct answers to at least two additional questions in order to be entitled to a passing grade on the subject examination. The record in this case does not provide a basis for awarding any additional credit to the Petitioner. To the contrary, the expert witness testimony in this case compels a conclusion that the challenged questions were proper questions for inclusion in a licensure examination for the profession of Mental Health Counselor.

4. It is also noted that even if it had been established that the challenged questions were beyond the proper domain of a Mental Health Counselor examination, there would be no basis for granting "credit" to the Petitioner for those questions. Under some circumstances the use of a defective testing instrument may entitle the examinees to take the examination again without paying an additional examination fee, but use of a defective testing instrument does not entitle the examinees to "credit" for the defective portions of the examination. See Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984).

RECOMMENDATION

For all of the foregoing reasons, it is RECOMMENDED that the Board of Mental Health Counselors issue a final order in this case dismissing the Petition and assigning to the Petitioner a failing grade on the April 21, 1989, Mental Health Counselor licensure examination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of May 1990.

MICHAEL M. PARRISH

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 25th day of May 1990.

ENDNOTES

1/ Ms. Gelmine resigned her position with the Department effective a few days after the hearing. The Hearing Officer has been advised that the Department is now represented in this case by Harper Field.

2/ The record contains no direct proof of this fact, but it is the most reasonable inference that can be drawn. The Petitioner would not be challenging these questions if she had answered them correctly.

3/ The findings in this paragraph are based on the expert witness testimony offered by the Department. The Department's expert witness was a licensed Mental Health Counselor with many years of experience and excellent academic credentials. While the Petitioner offered her personal opinion that the challenged questions were "unfair," the Petitioner did not offer any expert witness testimony to support her contentions.

COPIES FURNISHED:

Ms. Elizabeth R. Hillegas 1272 N.W. 15th Street Boca Raton, Florida 33486

Harper Field, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Linda Biedermann Executive Director

Clinical Social Work, Marriage and Family Therapy and

Mental Health Counseling 1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Docket for Case No: 90-001611

Orders for Case No: 90-001611