STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERISTINE KORINKO, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2405

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on August 1, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Kristin Korinko, pro se

Stirling Road Apartments 4100 Northwest 77th Avenue Davie, Florida 33024

For Respondent: John W. Hedrick, Esquire

Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner should be awarded credit for her answers to three (3) questions on the

September, 1989, Florida Behavior Analysis Certification Examination.

PRELIMINARY STATEMENT

The Department of Professional Regulation, which administered the September 19, 1989, Florida Behavior Analysis Certification Examination on behalf of the Department of Health and Rehabilitative Services, notified Petitioner that she failed to achieve a passing grade, and Petitioner requested a formal hearing regarding her answers to several questions on that examination. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

The Petitioner testified on her own behalf. The Respondent presented the testimony of Dr. James M. Johnston and Dr. Eunice Loewe. Additionally, Petitioner's Exhibit numbered 1, Joint Exhibit numbered 1, and Respondent's Exhibit numbered 1 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner sat for the Florida Behavior Analysis Certification Examination administered on September 19, 1989. She failed to achieve a passing score on that examination.

   
   

2. At the final hearing, Petitioner challenged the score given for her answers to question numbered 56 on Part I and her answers to questions numbered

   11 and 47 on Part II of the examination.

   
   

3. Part I, Item 56, was correctly scored as "A" rather

   than Petitioner's choice of "C". "A" required the client to make eye contact within 2 seconds of the prompt or instruction, which is an acceptable standard in the field of behavioral analysis.

   However, "C" allowed a 10-second latency period, which is an unacceptably long standard.

   
   

4. Part II, Item 11, was correctly scored as "A" rather than "C" as selected by Petitioner. The question asked about a behavioral goal, and "A" is a good example of a goal, which is a general statement of behavioral change intended. "C" is a good example of an objective rather than a goal because it involves a short time frame and includes specific performance standards.

   
   

5. Part II, Item 47, was correctly answered as "total duration of screaming in seconds" or "total duration of screaming in minutes." Petitioner's answer of "total duration of screaming" was incorrect because the question required showing the length of time, and no measure of time was given by Petitioner.

   
   

6. At the formal review process conducted by the Department of Professional Regulation in Tallahassee, Petitioner was given for her review all questions from the examination and her answers to the multiple choice questions. She was also given grading sheets indicating the correct answer according to the "key" for the multiple choice questions and indicating which of her answers to the essay questions had been marked as being correct or incorrect. Inadvertently, she was not given her answers to the essay questions, and Petitioner failed to advise anyone that she had not been given that one component of the materials. At the conclusion of that review process she filed challenges to the three specific questions in dispute in this proceeding.

   
   

7. On July 31, 1990, a prehearing review was conducted

   by the Department of Professional Regulation at which time Petitioner was again given materials to review in preparation for

   her presentation at the final hearing. She was permitted to review questions, her answers, and the correct answers to those questions which she had challenged. She was not given a copy of her answers to all of the essay questions on the Examination.

   Again, she said nothing.

   
   

8. During the final hearing in this cause, Petitioner challenged the review process alleging that she was given incomplete materials and there for was not permitted to prepare properly for the final hearing. She admitted that she had not advised either the Department of Health and Rehabilitative Services or the Department of Professional Regulation that she had been given incomplete materials, deciding instead to say nothing about that mistake until the final hearing.

   
   

9. One of the three questions challenged by Petitioner

   was one of the short essay questions. Petitioner was not prejudiced by the Department's mistake during the formal review process. Petitioner voluntarily waived any other challenges she may have had to the short essay portion of the Examination or to the formal review process. Petitioner limited the challenges that she did file to three specific questions, and this proceeding has been limited to those three challenges which were timely and properly made.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

11. The burden of proof is on Petitioner to show that the questions she has challenged are either ambiguous or have an incorrect solution. Accordingly, Petitioner is required to show that the question could reasonably be interpreted in more than one way or that Respondent's solution is erroneous and Petitioner's solution is correct. As to each of the three questions challenged in this proceeding, Petitioner has failed to prove that any question could reasonably be interpreted in more than one way or that Respondent's solution was erroneous and that Petitioner's solution was correct.

    
    

12. As to Petitioner's position that she was denied a fair review because she was not given her answers to the short essay questions, Petitioner's position is without merit. She was given all questions on the Examination, she was given grading sheets showing which questions she answered correctly and incorrectly for the entire Examination, and she was given her answers to the multiple choice questions. She ignored the Department of Professional Regulation'S error in not giving her copies of her answers to the short essay questions and did not raise that error as an issue in this proceeding until during the final hearing. The lack of prejudice to Petitioner is shown by the fact that one of the three challenges she did file was to a short essay question. Petitioner has clearly waived her right to untimely raise challenges to the administration of the examination in question.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered rejecting Petitioner's challenges to the September 19, 1989, Florida Behavior Analysis Certification Examination and finding that Petitioner failed to achieve a passing grade on that Examination.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24 day of September, 1990.

LINDA M. RIGOT

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 24 day of September 1990.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2405

1. Petitioner's first and second unnumbered paragraphs

   have been rejected as not being supported by the weight of the evidence in this cause.

2. Petitioner's third and fourth unnumbered paragraphs

   have been rejected as being unneccessary for determination of the issues herein.

3. Respondent's proposed findings of fact numbered 1-6 have been adopted either verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

John W. Hedrick, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Building 1, Suite 407

Tallahassee, Florida 32399-0700

Kristin Korinko

Stirling Road Apartments 4100 Northwest 77th Avenue Davie, Florida 33024

Docket for Case No: 90-002405

Orders for Case No: 90-002405