DAVID R. NESS, )
vs. ) CASE NO. 91-0700
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on March 21, 1991, in Orlando, Florida.
For Petitioner: David R. Ness
For Respondent: Vytas J. Urba, Esquire
1940 N. Monroe Street, Ste. 60
Petitioner has challenged the September 1990 Optometry licensure examination in general, as unfair, and has challenged his grade on portions of the examination. The issues are whether the examination is valid and whether Petitioner was wrongfully denied credit for any of his responses to specific questions in the examination.
This case was referred to the Division of Administrative Hearings on January 31, 1991, after Petitioner filed his request for formal hearing on the results of his September 1990 optometry examination.
At the hearing, David Ness testified in his own behalf and presented the additional testimony of C. Gregory Aker, O.D., and James Lanier, O.D., both qualified as experts in the field of optometry.
Respondent presented the testimony of Brian Den Beste, O.D., Gary L. Barker, O.D., and Edward Attaway, O.D., all qualified as experts in optometry; and Eunice Loewe, PhD.
The following exhibits were received in evidence: Petitioners exhibits #1- 7; Respondent's exhibit #1; and Joint Exhibits #1-7. At the request of Respondent, without objection by Petitioner, Joint Exhibits #1-6, which include portions of examination questions and answers, are SEALED pursuant to Section 455.229(2), F.S.
A transcript of the hearing was filed, and both parties submitted proposed recommended orders. These have been carefully considered, and the findings of fact proposed by each are addressed in the attached appendix.
David R. Ness, Petitioner, attended Southern College of Optometry in Memphis, Tennessee, and graduated in May 1990.
Part of his training included a three-month externship with James C. Lanier, O.D., an optometrist practicing in Jacksonville, Florida. Dr. Lanier found him a very competent student, thorough in his fact finding and case histories; and satisfactory, if not above average, in his examination of the patients.
Dr. Lanier did not participate in the grading of the examination in issue and has no personal knowledge of Petitioner's performance on the examination.
Petitioner sat for the September 1990 Optometry licensure examination. He passed the certification portion of the examination and the laws and rules section; he failed the pharm./ocular portion and the clinical portion. After several challenges to the examination, the Board adjusted some scores, but Petitioner's scores in the pharm./ocular section and the clinical sections were still below passing.
Written Examination
The pharmacology/ocular written portion of the examination consists of a series of case histories, with five questions directed to each. Petitioner explained that he challenged his score on the following specific questions: History #1, question #4; History #5; question #23; History #7, questions #32-35; and History #10, question #48.
Case history #1 describes a 19-year old female soft contact lens wearer with symptoms correctly identified by Petitioner as Giant Papillary Conjunctivitis. The patient relies on her contact lenses because she is an actress. The severity of her condition is 3+ on a scale of 1-4, with four being the most severe.
Question #4 requires selection from six choices of the initial management course of choice.
Petitioner chose "c", Pred Forte suspension, every two hours.
Pred Forte is the strongest commercially available steroid and its application every two hours is reserved for very severe cases. While the condition described is moderate to severe, the better answer is "f", "switch to preservative free system, enzyme cleaning 1 time a week". The patient's
cleaning solution, described in the case history, is an old solution with a preservative which is known to cause conjunctivitis. While the safest course would be to discontinue contact lens wear, this is a radical option for a patient who must wear the lenses for her work. The preferred course then is to change the solution to see if the condition improves before moving to a less conservative treatment such as Pred Forte.
Case history #5 describes symptoms and includes a color photograph of the eye in issue. Petitioner correctly identified the differential diagnosis as "Essential Iris Atrophy" and "Reiger's Anomaly". The next question, #23, states that the fellow eye shows similar findings in a slit lamp examination, and asks which of the differential diagnoses is the final diagnosis.
Petitioner selected "Essential Iris Atrophy". The correct answer is "Reiger's anomaly". Essential Iris Atrophy is almost always unilateral and Reiger's is bilateral. The question required the examinee to know this distinction.
Case history #7, describes a 37-year old patient with alleged recent vision field loss which occurred after thoracic surgery. The history describes an examination in which the patient remarks that he "isn't going to sue the physician" and where, with coaxing, his vision is much better than he admits. The patient also presented summary results of carotid artery testing and CT studies, which were normal.
In his answers to questions 32-35, Petitioner chose diagnoses and treatment based on his conviction that he should try to help anyone who would come to him. He missed the fact that the patient described in the case history is a malingerer who likely is trying to sue his surgeon, and who requires no treatment.
Case history #10 describes a 68-year old patient who is being examined for fitting of an extended wear contact lens. The best corrected vision is 20/50 OD, with or without a contact lens. The examination question includes two photographs, one of the fundus examination, the other of a fluorescein angiogram. An angiogram is obtained by injecting dye in the forearm and taking pictures with a special filter as the dye circulates through the blood vessels within the eye. This process is able to reveal abnormalities in the eye.
Petitioner missed the question relating to the final diagnosis, which should have been "age-related macular degeneration with secondary choroidal neovascular membrane". Final diagnosis relied, in part, on the fluorescein angiogram.
While Petitioner is not arguing that his answer is correct, he contends that the question itself is invalid, because it depends on a process which optometrists are not licensed to perform and it was too technical for recent graduates.
People coming out of school have been exposed to live patients and have seen fluorescein angiograms performed and have seen their photographs.
Moreover, in Florida, the number of elderly patients makes it necessary that optometrists be proficient in diagnosing age-related macular degeneration.
The Practical/Clinical Examination
Section 1 of the clinical portion of the practical examination involves the two examiners' review of the examinee's performance of an actual eye examination of a live patient. The two examiners are briefed extensively
prior to the examination as to what to look for, but they do not confer during the examination when scoring various functions. For this reason, there may be disagreement between the two examiners. The scores are averaged.
On section 1, item #6, with regard to the patient's case history, "follow-up information", the point spread is 0-7, with points being subtracted for failure to follow up on certain information. One examiner gave Petitioner the maximum number of points for the entire case history section. The other examiner gave Petitioner a "no" (0 points) under "personal ocular history", and commented on the examination score sheet that the examinee did not ask ocular history. The same examiner took off 2 points on item #6, "follow-up information" and commented, "did not ask ocular history".
At some point during Petitioner's initial challenge, he was given credit for item #3, because it was determined that he did obtain an ocular history. The additional points were not restored to item #6, but should have been; as the failure to obtain that history is the basis for the reduced score. The examiner was not present at hearing to explain any other basis.
Section 2 of the clinical portion of the practical examination requires the examinee to perform a series of functions under the scrutiny of two examiners (not the same two as in section 1). Again, the scores are awarded without consultation and there are discrepancies. In each area the examiner marks "yes" or "no" as to whether the procedure is properly performed. A "no" must be supported with the examiner's comment.
Two yes marks entitle the examinee to 2 points; a yes/no is worth one point; and two no's are scored zero.
For each function, the examinee must demonstrate twice. That is, he says "ready", and the first examinee views the result, then he prepares again and signals, "ready", for the second examiner.
For section 2, the candidate is performing techniques or functions on his own patient, a patient whom he brings to the examination and with whom he is familiar.
Petitioner is challenging the grading method for Section 2. In 6 out of 16 techniques or functions, the two examinees disagreed; that is, one gave a "yes", and the other, a "no". Petitioner contends that he should get full credit anytime he got one "yes", since that indicates that two people, the examinee and one examiner, agree.
There are several reasons why two examiners may disagree on whether the examinee performed a function or technique properly. In some instances one examiner may give the individual the benefit of the doubt; in other cases the patient might move or blink or the examinee might lose his focus. The fact that two examiners independently assess the results gives the examinee two chances to demonstrate his skill.
The third section of the clinical examination requires an examination of a live patient where the refractive error of the patient's vision is determined, and a prescription is made.
Before being presented to the examinee, the patient is examined independently by three licensed optometrists serving as "monitors". Their examinations give the refraction results against which the examinee's results are compared. Their
examinations also determine whether the patient is suitable; that is, the eye must be refracted correctable to 20/20 and the other eye correctable to 20/50. A fourth monitor reviews the results before the patient is presented to the examinee.
In this case the patient was examined by the monitors and was found acceptable.
Petitioner had problems with the patient; the best he could read was the 20/25 line. Petitioner felt that the patient should have been disqualified and commented in writing on that at the end of his examination, as was appropriate.
The comments were reviewed by Dr. Attaway, who considered that the patient had met the criteria when examined by the monitors. Petitioner's refractions varied significantly from the monitors' refractions, which also varied somewhat from each other. Petitioner received a score of 3, out of possible 20, on this portion of the examination.
Dr. Attaway did not, himself, examine the patient and the monitors who performed the examinations were not present to testify. The only evidence to rebut Petitioner's findings was the written report of the monitors.
Pass Rate for the Examination
Out of 130 candidates, approximately 34 percent passed all parts of the September optometry examination.
In 1986, 51 percent passed; in 1987, 33.5 percent passed; in 1988, 59.6 percent passed; and in 1989, 52 percent passed.
These figures do not, alone, establish that the test is too technical or unfair, nor does the fact that very good students failed. When the examinations are evaluated, when the examinee's performance is rated, there is no established pass rate; the monitors have no idea how close the individual examinee is to passing, either originally or when a challenge is being addressed.
Petitioner was a very articulate and candid witness. His two experts were clearly knowledgeable and were sincerely concerned that he should be licensed.
None had the experience of Respondent's witnesses, also well-qualified licensed optometrists, in working with the examination.
With the exception of the inconsistent score on Section 1, item #6, Petitioner failed to prove that he is entitled to a higher score on any portion of the examination, or that the examination itself was invalid or unfair.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.
Section 463.006, F.S., requires that persons seeking a license to practice optometry in the State of Florida successfully pass an examination designated by the Board of Optometry. Section 455.217, F.S., provides broad authority to the Division of Examination and Licensure of the Department of
Professional Regulation to provide services for the preparation and administration of all examinations.
One who fails a licensure examination shoulders a heavy burden in proving that a subjective evaluation by an expert is arbitrary. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986).
Petitioner in this case failed to meet that burden, except as to the one examination segment addressed in Paragraph 11, above, and as to the third section of the clinical examination.
The Department of Professional Regulation has promulgated this rule regarding practical examinations for professional licenses:
21-11.009 Practical Examinations.
Candidates required to take a practical examination shall be informed by the Depart- ment in writing of the performance criterion and any special equipment required for such performance.
In the event that professional examiners are employed to evaluate candidate performance in practical examinations, two or more exam- iners shall independently evaluate the perfor- mance of each candidate and the independent grades of the examiners shall be averaged to produce the final score for each candidate...
* * *
Each examiner shall grade independently of the other, and shall not discuss the can- didate's performance with anyone at any time during the examination or before the grades are recorded.
The practical examiners shall read to the candidates the instructions for each practical performance or the instructions shall be dis- tributed in written form. The examiners shall grade the candidates only with regard to the prescribed performance criterion. The candi- date and practical examiner shall not engage in conversation during the practical perfor- mance, unless said conversation is a part of the practical examination.
(emphasis added)
The Department complied with its rule in scoring Petitioner's practical examination. He may prefer that scoring be done in a different manner, but the rule has not been determined invalid, and has the force and effect of law. Without changing its rule, the Department could not score the examination by giving full credit when one examiner agrees with the examinee, as suggested by Petitioner.
Petitioner contends that because of the failure rate, and because some apparently excellent students failed, the examination is invalid or unreasonably restrictive, as prohibited by Section 455.201(3), F.S.
Substantially more proof than was presented in this proceeding is required for that finding.
The only competent, nonhearsay evidence regarding the patient in the third section of the clinical examination is Petitioner's finding that the patient did not meet the criteria of 20/20 correctable vision in the eye being examined. Petitioner was entitled to a patient who met the criteria set by the agency for the examination.
The appropriate remedy is to permit the Petitioner to retake that portion of the examination, without payment of an additional fee. Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984).
Based on the foregoing, it is hereby, recommended that Petitioner's final score on Section 1 of the clinical examination be adjusted to reflect full credit for Item #6; that he be permitted to retake Section 3 of the clinical examination; and that his remaining challenges to the examination be denied.
RECOMMENDED this 29th day of May, 1991, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0700
The following constitute specific rulings on the findings of fact proposed by the parties:
1.-2. Adopted in paragraph 2.
3. Adopted in substance in paragraph 20. 4.-6. Rejected as irrelevant.
13.-14. Rejected as statements of statutory language rather than findings of fact.
4.-5. Rejected as unnecessary.
6.-15. Rejected as restatement of testimony; summary statements, or argument, rather than findings of fact.
David R. Ness
Vytas J. Urba, Esquire
Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60
Patricia Guilford, Exec. Director Dept. of Professional Regulation Board of Optometry
1940 N. Monroe Street Tallahassee, FL 32399-0792
Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
