STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SCHUETZ, )

)

Petitioner, )

)

vs. ) Case No. 97-1759

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida, on May 20, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dr. Eric J. Scheutz, pro se

332 Whispering Oaks Court Sarasota, Florida 34232

For Respondent: Karel Baarelag, Esquire

Agency for Health Care Administration

2295 Victoria Avenue

Fort Myers, Florida 33906-0127 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioner should be awarded a passing grade on the clinical portion of the dental licensing examination given on December 12 through 14, 1996.

PRELIMINARY MATTERS

By Examination Grade Report dated January 13, 1997, Petitioner herein, Dr. Eric J. Scheutz, was advised he had

received a failing grade in the clinical portion of the dental examination which he took between December 12 through 14, 1996. Thereafter, Petitioner submitted a written request for a formal hearing, which was received in the Bureau of Testing on February 26, 1997, and by the Agency for Health Care Administration (Agency) on March 7, 1997. This hearing ensued.

At the hearing, Dr. Scheutz testified in his own behalf and introduced Petitioner's Exhibit One. Respondents presented the testimony of Dr. Theodor Simkin, a dentist and consultant to the Board of Dentistry and an expert in dentistry and the dental examination administration method and criteria; and Marsha Ann Carnes, a psychometrician for the Department of Business and Professional Regulation. Respondents also introduced Respondents' Exhibits A through C.

A transcript of the proceedings was furnished. Subsequent to the receipt thereof, only counsel for the Respondents submitted Proposed Findings of Fact which have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Board of Dentistry was responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is a graduate of the University of Florida School of Dentistry and was eligible to sit for the examination for licensure as a dentist in Florida. Petitioner previously has taken and passed the written portion of the dental examination. He has taken the clinical portion of the examination twice and has received a failing grade each time. He is eligible to take the clinical portion alone for a third time, but must do so within a period of 13 months of taking it the second time or must take both the written and oral portions again.

   
   

2. Dr. Scheutz first took the examination in June 1996. He received a passing grade in each of those examination portions which dealt with Florida laws and rules and with oral diagnosis. However, he received a grade of 2.31 on the clinical examination portion of the examination, and a passing grade was 3.0. Thereafter, in December 1996 he again took the clinical portion and this time received a grade of 2.71, still below the 3.0 passing grade.

3. Dr. Theodor Simkin is a licensed dentist and consultant to the Board of Dentistry, who has been in the private practice of dentistry since 1950 and in Florida since 1975. He has been involved in the development, administration, and grading of the dental examination in Florida since 1979 and was a supervisor for the December 1996 examination. He is familiar with the standards applied in the clinical portion of the examination and how the examination is given and graded. Petitioner has challenged the grade he received on five separate procedures he performed during the December 1996 examination. The procedures chosen for accomplishment during the examination are not unusual procedures, but are common problems seen on a routine basis by a practicing dentist.

   
   

4. Dr. Simkin reviewed the mannequin on which Petitioner did his work and which he presented to the examiners for grading. One of the grades challenged related to a "composite restoration" (Clinical D) for which Petitioner received a grade of 0. In this procedure the candidate is presented with a tooth on a mannequin. The candidate is instructed to cut off a corner of the tooth and then restore that corner with an amalgam restoration. The examiners are not present when the procedure is accomplished, but grade the procedure after completion. Instruction on the procedure is given to the candidate by a monitor who is present in the room but who does not grade the work done. The examination process is accomplished using the candidate number, not the candidate name, so that examiners do not know whose work at which they are looking.

   
   

5. Once the procedure is done by the candidate, the mold is packed in the candidate's presence and is then held in the custody of the Board of Dentistry until examined independently by each of three examiners. Once graded, it is then shipped to Tallahassee and kept in a vault until needed, as here, for review by Dr. Simkin and others. Ordinarily, even if dropped, a model will not break.

   
   

6. In the instant case, Petitioner performed the procedure on an upper right central incisor. The right corner of the tooth, approximately one-third of the tooth, was cut off and the candidate was instructed to rebuild it with a composite material. When the examiners evaluated Petitioner's work, they found that the filling was not bonded to the tooth and was loose. The loose restoration would be useless to the patient, whereas a properly done restoration should last for at least

   several years. On a human, the stresses applied to a tooth repair are significant, and the repair must be sufficient to withstand them.

   
   

7. Notwithstanding Petitioner's claim that the tooth used was an artificial tooth to which the filling material does not easily bond, Dr. Simkin asserts that the bonding which occurs with a plastic tooth is different from that which occurs in a real tooth but the material can bond to the plastic tooth. He knows of no other complaints by other candidates at this examination of not being able to complete the restoration because the materials would not bond. Petitioner admits that when he did the procedure during the June 1996 examination, the tooth bonded correctly. In light of all the evidence regarding this point, it is found that Petitioner's claim is without merit.

   
   

8. Petitioner also challenges his score of 2.0 received for his work on an "amalgam cavity preparation" (Clinical B). This composite score was based on a 2.0 awarded by each of the three examiners. An amalgam preparation is what is done to the tooth to get it ready for filling. In this case, an actual patient, supplied by the examines, had a cavity which was reviewed by the examiners. Once the patient was accepted by the examiners, the candidate then cleaned out the cavity and got it ready for filling. Dr. Simkin's review of the documentation prepared in regard to this candidate's performance of this procedure, in his opinion, supports the grades given by the examiners.

   
   

9. Here, Petitioner sent the examiners a note as to what he proposed to do with his patient. Petitioner sought to deviate from a normal preparation due to the location of the caries, and the monitor agreed, as did the examiners. Thereafter, the candidate did the procedure. All three examiners graded his work against his proposal and gave him a failing grade. The examiners determined that his work on this patient merited only a grade of 2.0 because, according to two examiners, the margin of the filling was not separated from the next tooth as required.

   
   

10. As to the "posterior endodonture procedure" (Clinical M), Petitioner received an overall score of 1.3. In this procedure, the candidate is required to bring in an extracted tooth which is mounted in an acrylic block. The candidate is to remove the nerve and diseased tissue, clean the cavity, file it, fill the canals, and seal the tooth. This is known as a root

    canal. In grading a candidate's work, the examiners look to see that the canal is properly cleaned out, is filled properly and sealed with a surface that is slightly shorter than the apex (highest point) of the tooth. On the x-ray taken of Petitioner's sample, it is obvious, according to Dr. Simkin, that one canal is at or short of the apex, but the other is long, and this is considered unacceptable treatment. Even Petitioner agrees.

    
    

11. Petitioner received grades of 3.0, 2.0 and 1.0 for an overall failing grade of 2.0 on the "prep. cast restoration" (Clinical F). In this instance, the procedure called for the candidate to install a gold onlay. Normally the surface to which the onlay is to be placed is reduced slightly below the abutting face. Here, though one side was acceptable, Petitioner reduced too much on the other side without reason. Petitioner claims, however, that only one of the three examiners indicated excessive reduction. That determination calls for a very subjective opinion. He cannot understand how the propriety of reduction can be determined without looking into the mouth of a patient. However, Petitioner has presented no evidence in support of his opinion.

    
    

12. The fifth challenge relates to the grade Petitioner received in the "pin amalgam pre. procedure" (Clinical G). This involves a situation where one cusp has been removed, and in order to hold a restoration, Repin must be placed in the solid portion of the tooth. The examiners determined that Petitioner's occlusal was too shallow at 1 mm, when it should have gone down 1~ to 2 mm. This, the examiners considered, would not give enough strength to hold the amalgam properly without risk of fracture.

    
    

13. Dr. Simkins is of the opinion that Petitioner was subjected to a standardized test which was graded fairly. It would so appear and Petitioner introduced no evidence to the contrary.

    
    

14. Ms. Carnes, a psychometrician and an expert in testing and test development who trains examiners to ensure they are consistent in their evaluations, agrees with Dr. Simkins' appraisal. The Department of Business and Professional Regulation tries to insure through its standardization efforts that the approach to grading of each examiner is consistent and that all examiners are grading with the same set of criteria. This was done in preparation for the December 1996 dental

    examination and a check done after the examination showed it was graded this way.

    
    

15. Petitioner cites by way of explanation, if not excuse, that during his senior year in dental school, he was badly injured in an automobile accident and required stitches and several weeks of physical therapy for, among other injuries, a herniated disc. When he recovered sufficiently, he finished his course work and sat for the dental examination in June 1996, passing two of three sections, but not the clinical portion.

    
    

16. Dr. Scheutz took the clinical portion of the examination again in December 1996 and again failed to earn a passing score. In his opinion, his knowledge has improved over time, but his procedural skills have diminished over the months due to his injuries. He contends he has work in dentistry he can do which will make accommodations for his physical condition, but does not believe he should have to wait another six months to take the examination again, especially since he would have to again take the entire examination, including those portions he has already passed since at that time more than 13 months from his last examination would have passed.

    
    

17. Petitioner contends the clinical testing portion of the examination is too subjective to be valid. He wants to close this chapter in his life, but does not want to deal any more with the Board.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Petitioner has challenged the failing grades he received in certain portions of the clinical procedures section of the dental examination given on December 12 through 14, 1996. As one challenging the results of the a professional examination, Petitioner has the burden of proof to establish that the grade he received was incorrect or that the examination was unfairly given or graded. State ex rel Glaser vs. Pepper,

    155 So. 2d 383 (Flat 1st DCA 1963).

    
    

20. The Florida Legislature has clearly stated its intention concerning the qualifications of persons seeking to practice dentistry in this state. Section 466.001, Florida Statutes, provides:

    
    

    The legislative purpose for enacting this chapter is to ensure that every dentist

    or dental hygienist practicing in this state meets minimum requirements for safe practice. It is the legislative intent that dentists and dental hygienists who fall below minimum competency

    or who otherwise present a danger to the public shall be prohibited from practicing in this state....

    
    

21. Consistent with that provision, Section 466.006, Florida Statutes, provides for the examination of persons seeking to be licensed as a dentist in this state.

    
    

22. The testimony given at the hearing clearly demonstrated that the examination as given to Petitioner was standardized and graded fairly. It also clearly demonstrated that in the opinion of the graders, Petitioner's procedures for which he received a failing grade did not meet the standards for or justify the award of a higher grade. Nothing was presented by the Petitioner, save his own evaluation of his performance, in support of his claim. His testimony was not persuasive. Consequently, he did not carry his burden to prove that he earned or deserved a passing grade or that the examination was not standardized or fairly graded.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a Final Order denying Petitioner's challenge and sustaining the award of a failing grade on the clinical portion of the dental examination taken by the Petitioner on December 12 through 14, 1996.

DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997.

COPIES FURNISHED:

Dr. Eric J. Scheutz, pro se

332 Whispering Oaks Court Sarasota, Florida 34232

Karel Baarelag, Esquire Agency for Health Care

Administration 2295 Victoria Avenue

Fort Myers, Florida 33906-0127

Jerome W. Hoffman, General Counsel Agency for Health Care

Administration 2727 Mahan Drive

Tallahassee, Florida 32309

William Buckhalt, Executive Director Board of Dentistry

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within fifteen days from the date of this recommended order. Any

exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-001759

Orders for Case No: 97-001759