STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE E. STARR, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2423

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 18, 1990, in Fort Lauderdale, Florida, by Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce D. Starr

1043 Southwest 122nd Avenue Building 62

Pembroke Pines, Florida 33025

For Respondent: Vytas J. Urba, Esquire

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

1. Whether Petitioner's challenge to the failing score he attained on the clinical portion of Part II of the September, 1989, optometry licensure examination should be sustained?

   
   

2. If so, what relief should Petitioner be afforded?

PRELIMINARY STATEMENT

By letter received by Respondent's Office Examination Services on April 10, 1990, which read as follows, Petitioner requested a formal hearing on his challenge to the failing score he received on the clinical portion of Part II of the September, 1989, optometry licensure examination:

I would like to initiate a hearing concerning Clinical Portion II, items #1, 4 and 13.

Approximately 20% of the Clinical II exam was graded in discrepancy, with one examiner stating procedure passed and one stating procedure failed. I feel this is an extremely significant amount for an examination to be considered of high quality control.

I would therefore appreciate an appointment for a formal hearing as soon as possible.

The matter was referred to the Division of Administrative Hearings on April 24, 1990, for the appointment of a Hearing Officer.

At hearing, Petitioner was granted leave, without objection, to amend the first paragraph of his letter to reflect that he was challenging his grade on item #14, not 13, of "Clinical Portion II" of the licensure examination.

Petitioner testified on his own behalf at hearing. He presented no other testimony, nor did he offer any exhibits into evidence. Respondent presented the testimony of two witnesses: Dr. Gary Chrycy, a qualified expert in the field of optometry; and Dr. Eunice Loewe, who is employed as an Examination Development Specialist with Respondent. In addition to presenting the testimony of these two witnesses, the Department offered into evidence four exhibits, all of which were received.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that their post-hearing submittals had to be filed no later than ten days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received a copy of the hearing transcript on August 7, 1990. Respondent filed its Proposed Recommended Order on August 17, 1990. The findings of fact proposed by Respondent have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. Petitioner sat for the optometry licensure examination administered by the State of Florida in September, 1989.

   
   

2. The examination included a clinical portion, consisting of three components: Section 1; Section 2; and a refraction exercise.

   
   

3. The maximum number of points Petitioner could have earned on each these three parts of the examination was as follows: Section 1- 28 points; Section 2-

   52 points; and refraction exercise- 20 points.

   
   

4. Petitioner needed a combined total of 80 points on these three parts of the examination to pass the clinical portion of the examination. He received a combined total of 78 points: 28 points for Section 1; 30 points for Section 2; and 20 points for the refraction exercise.

5. On Section 2 of the clinical portion of the examination, Petitioner was required to perform the following 15 routine optometric procedures, with each procedure worth the number of points indicated:

   
   

   1. Demonstrate equator- 5 points;

   2. Demonstrate posterior pole- 5 points;

   3. Scan vessel- 5 points;

   4. Demonstrate a parallelpiped focusing on the endothelium- 4 points;

   5. Estimate anterior chamber depth- 2 points;

   6. Demonstrate technique to determine cell and flare- 2 points;

   7. Demonstrate optic section of crystalline lens- 2 points;

   8. Demonstrate crystalline lens retroillumination- 2 points;

   9. Demonstrate anterior vitreous- 4 points;

   10. Focus on optic disc and estimate C/D ratio- 2 points;

   11. Demonstrate AV crossing and estimate AV ratio- 3 points;

   12. Determine foveal reflex- 3 points;

   13. Demonstrate accurate measurement of intraocular pressure- 5 points;

   14. Demonstrate nasal angle and describe structures- 4 points; and

   15. Estimate pigment deposition- 4 points.

       
       

6. Petitioner's attempted performance of these routine procedures was independently observed 1/ and graded, on a pass/fail basis, by two qualified examiners, each of whom had been given detailed instructions regarding their responsibilities prior to the administration of the examination.

   
   

7. The examiners had been instructed to use a standard of minimal competency in deciding whether to give a candidate a passing or failing grade. Their determination as to whether Petitioner had met this standard with respect to a particular procedure was necessarily a subjective process which required them to exercise their professional judgment.

   
   

8. Petitioner received full credit for a procedure if both examiners gave him a passing grade (P). He received no credit for a procedure if both examiners gave him a failing grade (F). Where one examiner gave him a passing grade and the other examiner gave him a failing grade, Petitioner received half credit for the procedure.

   
   

9. The following are the individual grades that were given Petitioner for each of the 15 procedures he attempted to perform:

   Examiner 40 Examiner 54

   
   

   Procedure	1	F	F
   Procedure	2	P	P
   Procedure	3	F	F
   Procedure	4	P	F
   Procedure	5	P	P
   Procedure	6	P	F
   Procedure	7	P	P
   Procedure	8	F	F
   Procedure	9	P	P
   Procedure	10	P	P
   Procedure	11	P	P
   Procedure	12	P	P
   Procedure	13	F	F
   Procedure	14	F	P
   Procedure	15	P	P

   
   

10. As they had been instructed to do, if they gave Petitioner a failing grade or a borderline passing grade, Examiners 40 and 54 provided written comments regarding the grade on the grade sheets they filled out.

    
    

11. The passing grades that, in the view of the Examiner 40, warranted such comments were those given for Procedures 6, 10 and 15.

    
    

12. Examiner 54 believed that the passing grades he gave for Procedures 2, 7, 11 and 14 deserved such comments.

    
    

13. With respect to the failing grade he gave Petitioner for Procedure 1, Examiner 40 commented on his grade sheet, "never got view." Examiner 54's comment for this procedure was, "very poor focus."

    
    

14. Petitioner was initially provided with a binocular instrument that, due to his inability to fuse, he was unable to use to perform Procedure 1. He so advised the two examiners, who obtained another instrument for him to use. After testing the instrument, Petitioner was asked by the examiners if it was better. Petitioner responded in the affirmative, but indicated to them that it still was not ideal. He thereafter attempted to perform the procedure and asked the examiners to grade him.

    
    

15. Procedure 4 is performed with a slit lamp. When the candidate has performed the procedure and he is ready to be graded, he so informs the first examiner, who thereupon looks through the oculars to ascertain whether the candidate has demonstrated a parallelpiped focusing on the endothelium of the cornea of the patient's eye. After the first examiner has completed his evaluation and the candidate indicates that he is ready to be graded again, the second examiner takes the oculars to make his determination as to whether the candidate has properly performed the procedure. The candidate is responsible for holding the focus throughout the procedure. If he does not hold the focus, one examiner may see a properly performed parallelpiped, while the other may not and therefore justifiably give the candidate a failing grade.

    
    

16. As noted above, Petitioner received a passing grade from Examiner 40 and a failing grade from Examiner 54 for Procedure 4. The comment, "specular reflection,'1 appears on Examiner 54's grade sheet next to the failing grade he gave for this procedure. This comment suggests that, unlike Examiner 40,

    Examiner 54 was unable to observe a parallelpiped focused on the endothelium because the reflection of light off the cornea interfered with his view.

    Apparently, during the time between the examiners' observations, there had been a change in focus that resulted in Examiner 40 seeing one thing and Examiner 54 seeing another.

    
    

17. In giving Petitioner a failing grade for Procedure 14, Examiner 40 commented on his grade sheet, "never got stable view." Examiner 54, while he gave Petitioner a passing grade for this procedure, made the comment on his grade sheet regarding this procedure that Petitioner achieved a "very borderline focus." Furthermore, Examiner 54's grade was based upon an observation that was not made at the same time as the observation upon which Examiner 40's grade was based.

    
    

    CONCLUSIONS OF LAW

    
    

18. Any person seeking a license to practice optometry in the State of Florida must apply to the Department of Professional Regulation to take the licensure examination. Section 463.006, Fla. Stat.

    
    

19. The licensure examination consists of the National Board of Examiners in Optometry examination and Parts I and II of the state examination for licensure. Fla. Admin. Code Rule 21Q- 4.001.

    
    

20. Part I of the state examination is a written examination on the applicable statutory and rule provisions governing the practice of optometry. Fla. Admin. Code Rule 21Q- 4.001(2).

    
    

21. Part II of the state examination is a practical examination consisting of a clinical portion and a pharmacology/ocular disease portion. Fla. Admin. Code Rule 21Q- 4.001(2)(a) and (d).

    
    

22. Florida Administrative Code Rule 21Q-4.001(2)(d)1. provides as follows with respect to the subject areas that must be covered on the clinical portion of the practical examination:

    
    

    1. Patient History;

    2. Visual Acuity;

    3. Pupillary Examination;

    4. Confrontation Field Testing for Neurological Deficit (Finger Counting);

    5. Extra Ocular Muscle Balance

       Assessment (Versions and Distance Cover Test);

    6. Objective Examination (Retinoscopy);

    7. Subjective Refraction;

    8. Internal Examination by Means of Binocular Indirect Ophthalmoscope;

    9. Biomicroscopy (Binocular);

    10. Goldmann Tonometry;

    11. Binocular View of Posterior Pole (Hruby Lens or Fundus Lens); and

    12. Gonioscopy.

    
    

23. Florida Administrative Code Rule 21Q-4.001(2)(d)1. further provides that 52% of a candidate's grade on the clinical portion of the practical examination should reflect his performance relating to the subject areas

    referenced in h through 1 of said rule provisions, which subject areas were covered on Section 2 of the clinical portion of Part II of the September, 1989, examination taken by Petitioner.

    
    

24. The grading criteria for each of these subject areas, as well as the points associated with each criterion, are set forth in Florida Administrative Code 21Q-4.001(2)(d)2. as follows:

    
    

    H. Internal Examination by Means of Binocular Indirect Ophthalmoscope

    1.1. Accurately views and evaluates retinal landmark as requested- 15 points

    (Points for this criterion shall be assigned as follows: 5 points for each of 3 designated areas of the posterior pole.)

    1. Biomicroscopy (Binocular)

       1.1. Uses proper technique to demonstrate requested views of anterior structures of eye- 16 points

       (Points for this criterion shall be assigned as follows: 4 points each for performance related to the cornea, anterior chamber, lens, and anterior vitreous)

    2. Goldmann Tonometry

       1.1. Demonstrates accurate measurement of intra-ocular pressure- 5 points

    3. Binocular View of Posterior Pole (Hruby Lens or Fundus Lens)

       1.1. Accurately views and evaluates posterior pole landmarks as requested-

       8 points

       (Points for this criterion shall be assigned on the basis of 2 points for each of 4 designated areas of the posterior pole)

    4. Gonioscopy

    1.1 Demonstrates accurate technique for identifying angle structures and estimating anterior chamber depth- 8 points

    
    

25. At least two examiners must grade the applicant's performance on the clinical portion of the practical examination. Fla. Admin. Code Rule 21- 11.009(2). Each examiner is required to "grade independently of the other." Fla. Admin. Code Rule 21- 11.009(3). The applicant's final score is arrived at by averaging the independent grades of the examiners. Fla. Admin. Code Rule 21- 11.009(2). Pursuant to Florida Administrative Code Rule 21Q-4.001(2)(d)4., an "applicant must attain a score of 80 points or better in order to secure a passing grade on the clinical portion of the practical examination."

    
    

26. An applicant who fails to attain a passing score on the optometry licensure examination is entitled to review his examination and to submit written objections for evaluation by Department staff and, if necessary, an expert consultant. Fla. Admin. Code Rules 21-11.011 and 21Q-4.003.

27. If, after such reevaluation, the applicant still has a failing score and he believes that an error was made in the grading of his examination, the applicant may request a hearing, pursuant to Chapter 120, Florida Statutes. Sections 455.229 and 455.230, Fla. Stat.; Fla. Admin. Code Rule 21-11.012.

    
    

28. The burden is on the applicant at hearing to establish by a preponderance of the evidence that his examination was erroneously or improperly graded. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986)("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary"); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414 (Fla. 4th DCA 1974)("the burden of proof is `on the party asserting the affirmative on an issue before an administrative tribunal"').

    
    

29. In accordance with Florida Administrative Code Rule 21-11.013(1), "[i]n a practical examination, if it is determined [following such hearing] 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." See Alvarez

    1. Department of Professional Regulation, 458 So.2d. 808 (Fla. 1st DCA 1984)(where a candidate taking the acupuncture licensure examination fails the practical examination component of the examination due to inadequate instructions, the remedy, in light of the provisions of Florida Administrative Code Rule 21-11.13 (renumbered Florida Administrative Code Rule 21-11.013) is to allow the unsuccessful candidate, upon proper application, to retake the examination at no charge).

       
       

30. Subsection (3) of Florida Administrative Code Rule 21-11.013 provides, in pertinent part, that "[i)f through some mechanical fault of the Department .

    . . problems occur which are due to the Department's inaction or negligence, the Department shall permit reexamination in those areas at the next regularly scheduled examination."

    
    

31. In the instant case, Petitioner has requested a hearing to contest the failing score he attained on the clinical portion of the practical examination he took in September, 1989. His challenge is directed to the grading of his performance on Section 2 of this portion of the examination. A review of the record evidence reveals that it is insufficient to support such a challenge.

    
    

32. Petitioner bases his challenge primarily upon, what he terms, the "discrepancy" in grades given him by Examiners 40 and 54 for certain procedures. While it is undisputed that Petitioner received a passing grade from one examiner and a failing grade from the other examiner for Procedures 4, 6 and 14, this, standing alone, does not establish that the examiner who gave Petitioner a failing grade for these procedures did so in error. Firstly the two examiners did not observe Petitioner perform these procedures at the same time. Moreover, even if they had observed Petitioner simultaneously and disagreed as to whether Petitioner had shown minimal competency in performing these procedures, their difference of opinion on the matter would not, in and of itself, provide a basis upon which to conclude that Petitioner's test results were flawed. 2/ Petitioner would still have to show that the examiner giving him a failing grade acted arbitrarily or without reason or logic. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1337 (Fla. 3d

    DCA 1986); State v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583, 586 (Fla. 1st DCA 1958). No such showing has been made in the instant case.

    
    

33. In addition to complaining about the "discrepancy" in the examiners' grades, Petitioner also challenges his test results on the ground that, as a consequence of his poor eyesight, he had difficulty performing Procedure 1 with the substitute piece of equipment he had been furnished by the examiners. Any problems that he may encountered in this regard, however, were not due to the Department's inaction or negligence. While he did tell the examiners that the equipment was not "ideal," he never informed them that he was unable to use it to perform the procedure. To the contrary, he led them to believe otherwise when he indicated that he was ready for them to grade him. Having done so, it is now too late for him to complain about the equipment that he had been provided.

    
    

34. For the foregoing reasons, Petitioner's challenge to the failing score he received on the clinical portion of Part II of the September, 1989, optometry licensure examination is without merit.

RECOMMENDATION

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

RECOMMENDED that the Board of Optometry reject Petitioner's challenge to the failing score he received on the clinical portion of Part II of the September, 1989 optometry licensure examination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of August, 1990.

STUART M. LERNER

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 24th day of August, 1990.

ENDNOTES

1/ Although the examiners did not observe Petitioner simultaneously, the second examiner's observation of an attempted procedure was made shortly after the first examiner had completed his observation and before Petitioner was asked to move on to the next procedure.

2/ Indeed, Florida Administrative Code Rule 21-11.009(2), which provides that "the independent grades of the examiners will be averaged," contemplates that, in their subjective evaluation of a candidate's performance on a practical examination, examiners may disagree.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-2423

The following are the Hearing Officer's specific rulings on the findings of fact proposed by Respondent:

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2. Rejected because it is more in the nature of a statement of the case than a finding of fact.

3. First, second and third sentences: Accepted and incorporated in substance; Fourth and fifth sentences: Rejected because they constitute summaries of testimony rather than findings of fact based upon such testimony; Seventh and eighth sentences: Rejected because they constitute argument rather than findings of fact.

4. Last sentence: Rejected because it constitutes argument rather than a finding of fact; Remaining sentences: Rejected because they constitute summaries of testimony rather than findings of fact based upon such testimony.

5. Last two sentences: Rejected because they constitute argument rather than findings of fact; Remaining sentences: Accepted and incorporated in substance.

6. Rejected because it constitutes a summary of testimony rather than a finding of fact based upon such testimony.

COPIES FURNISHED:

Bruce D. Starr

1043 Southwest 122nd Avenue Building 62

Pembroke Pines, Florida 33025

Vytas J. Urba, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Patricia Guilford Executive Director Board of Optometry

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 90-002423

Orders for Case No: 90-002423