STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRY L. ALLMAN, )

)

Petitioner, )

)

vs. ) Case No. 98-0586

)

DEPARTMENT OF HEALTH, ) BOARD OF HEARING AID SPECIALISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 13, 1998, in Tampa, Florida, before Lawrence P. Stevenson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Terry L. Allman, pro se

110 St. Lucia Loop

Apollo Beach, Florida 33572

For Respondent: Anne Marie Williamson, Esquire

Florida Department of Health 1317 Winewood Boulevard

Building 6, Suite 240

Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether the Petitioner should receive a passing grade on the September 1997 Hearing Aid Specialist examination.

PRELIMINARY STATEMENT

On September 20, 1997, Petitioner sat for the hearing aid

specialist licensure examination. On or about October 22, 1997, Petitioner was informed by the Bureau of Testing of the Department of Business and Professional Regulation, which administers the examination under contract with the Respondent, that he had failed to pass the examination. The minimum passing score on the examination was 75 points. Petitioner’s score was 72.

By letter to Respondent, dated November 26, 1997, Petitioner stated his intent to appeal the test results and request an administrative hearing. Petitioner contested the decision by the examination proctors to not allow him to plug in the computerized audiometer he intended to use during the examination. By letter to counsel for Respondent, dated January 9, 1998, Petitioner confirmed his request for a formal hearing. In this letter, Petitioner realleged that he was adversely affected by the decision regarding the audiometer, and further alleged that two of the questions that he incorrectly answered were so ambiguous they should be discarded.

By letter dated January 28, 1998, Respondent forwarded the petition to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the conduct of a formal administrative hearing in this matter, pursuant to Section 120.57(1), Florida Statutes. A hearing was scheduled for and conducted on May 13, 1998.

At the final hearing, Petitioner testified on his own behalf. Respondent DOR presented the testimony of Wilma Ferrer,

a psychometrician with the Department of Business and Professional Regulation, and of Mary Lou Lauster, a hearing aid

specialist with the Department of Health. Both Ms. Ferrer and Ms. Lauster were accepted as experts in their fields.

Petitioner’s Exhibits 1 and 2 were admitted into evidence.

Respondent’s Exhibits 1-6 were admitted into evidence. Respondent’s Exhibits 1 and 2 were admitted under seal pursuant to Section 455.647, Florida Statutes. By letter dated May 26, 1998, counsel for Respondent submitted additional documentation regarding one of the examination questions, pursuant to the undersigned’s request at hearing.

A transcript of the final hearing was filed at the Division of Administrative Hearings on June 11, 1998. Petitioner filed a Proposed Recommended Order on May 20, 1998. Respondent filed a Proposed Recommended Order on June 23, 1998.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:

1. In September 1997, Petitioner was a trainee and candidate for licensure as a hearing aid specialist, pursuant to Chapter 484, Part II, Florida Statutes, and Chapter 64B6-8, Florida Administrative Code.

2. A trainee studying hearing aid dispensing must do so under the direct supervision of a “sponsor” who is an active Florida licensed hearing aid specialist with an established place of business. Section 484.0445, Florida Statutes; Rule 64B6- 8.003(1), Florida Administrative Code.

3. Petitioner’s sponsor was Gerald Amato, a hearing aid specialist of over 20 years’ experience. Mr. Amato was a franchisee of Beltone, a manufacturer of audiometric equipment, including hearing aids and audiometers. Beltone supplied all of the equipment used by Petitioner.

4. An “audiometer” is a piece of equipment that measures a person’s ability to hear, and is regularly used by hearing aid specialists and trainees. Petitioner testified that, shortly before he commenced his training program, Beltone converted from manual audiometers to computerized audiometers.

5. Petitioner contends that he was placed at an unfair disadvantage because the examination proctors would not allow him to plug in his computerized audiometer for use during the examination. Petitioner argued that the older, manual audiometers provide visual cues such as dials and meters even when they are not plugged in, cues that assist the trainee to successfully complete the examination. The computerized audiometer, on the other hand, presents nothing but a blank screen when it is not plugged in.

6. Petitioner acknowledged that no one taking the exam was allowed to plug in an audiometer. However, he contended that this was a situation in which technology had outpaced the testing procedures, and that Respondent should have made provisions for persons with computerized equipment to take the exam on an even footing with persons using manual equipment.

7. Ms. Wilma Ferrer, a psychometrician familiar with the

   hearing aid specialist examination procedures, testified that candidates were informed they could not plug in their audiometers at least three times before they sat for the exam. The “Candidate Information Booklet,” sent by mail to candidates about a month before the exam, expressly states: “Each candidate is required to bring an audiometer with recorded speech and/or live voice capability to be used during the candidate’s examination.

   Do not plug in audiometer during examination.”

   
   

8. During the hands-on portion of the exam, candidates demonstrate proper procedures, using the proctors as their subjects. If the audiometers were plugged in, there would be some chance of damaging the proctors’ hearing during the exam.

9. Ms. Mary Lou Lauster, an expert regarding hearing aid specialists, testified that the purpose of the audiometer portion of the exam is to permit candidates to demonstrate they know which buttons to push to perform each audiometer function, and that they know how to properly fit the headset.

10. Ms. Lauster conceded that some of the older audiometers provide visual cues, but stated her opinion that Petitioner would not be disadvantaged by his use of the computerized audiometer, if he knew how to run it. According to Ms. Lauster, the exam is simply an opportunity for the candidate to talk his or her way through the procedures, and it should make no difference whether the audiometer is plugged in. In other words, the candidate should not need visual cues to successfully negotiate the examination.

11. Ms. Lauster denied the implication that the examiners and the agency itself were unprepared to deal with Petitioner’s new equipment. She testified that other candidates have used the same computerized equipment with success and without incident.

12. At the hearing, Petitioner suggested that a better policy might be to require all candidates to be tested on a single, standard audiometer, so that no candidate could be perceived to have an unfair advantage. Ms. Lauster disagreed with this suggestion, stating that candidates are generally more comfortable using the audiometers with which they were trained.

13. It is found that Respondent’s decision not to allow candidates to plug in their audiometers during the examination was rational and supported by legitimate concerns for the proctors’ hearing. Petitioner was given ample notice that he would not be allowed to plug in his audiometer. Other candidates using the same or similar equipment have successfully completed the examination. All candidates were treated equally in this regard, and Petitioner was not entitled to a special exemption from Respondent’s clearly stated testing policy.

14. Respondent was well aware of the trend in the industry away from manual audiometers, and considered the existence of newer, computerized equipment in deciding to maintain its testing policy of not allowing audiometers to be plugged in during the examinations. Petitioner suggested that his equipment presented a brand new situation that Respondent had not anticipated, but this suggestion was not supported by the evidence presented at

    hearing.

    
    

15. Petitioner also claimed that the proctor engaged him in unnecessary conversation regarding his audiometer, and that this conversation distracted him during the examination. Even crediting Petitioner’s version of events, this conversation cannot be found to have caused Petitioner’s poor performance on the practical portion of the examination.

    
    

16. For reasons that cannot be attributed to Respondent, Petitioner entered the examination anticipating that he would be allowed to plug in his audiometer. The undersigned does not doubt Petitioner’s assertion that his performance on the examination was adversely affected when he was not allowed to plug in his audiometer. However, the fault lies with Petitioner, not with Respondent. Petitioner is not entitled to the award of any additional points in the practical portion of the examination.

17. In his challenge letter, Petitioner also contested Questions 1 and 20 of the written, multiple choice portion of the examination. At hearing, Petitioner withdrew his challenge of Question 20.

18. Each of the written questions was worth one point. Petitioner failed the examination by three points. Thus, even if it were found that he should be awarded one point for Question 1, Petitioner would not achieve a passing score. Petitioner’s challenge of Question 1 will nonetheless be addressed, to ensure

    a complete record in this proceeding.

    
    

19. Question 1 referred to the effect that the addition of an “air” vent would have on an earmold. Petitioner chose the answer that it would “accentuate the low frequencies.” The correct answer was that it would “reduce the feeling of pressure in the ear canal.”

20. Ms. Lauster testified that, while venting may accentuate frequencies, it does not necessarily relate to high or low frequencies. A vent may accentuate high or low frequencies, depending on the size of the vent. The general tendency is for a vent to enhance high frequencies. Ms. Lauster's opinion was supported by a standard textbook on hearing instrument science and fitting practices.

21. It was undisputed that the addition of an air vent does relieve pressure in the ear canal. Thus, the best answer to Question 1 was “reduce the feeling of pressure in the ear canal.” Respondent correctly found that Petitioner’s response to Question

    1 was not the best answer, and correctly denied him credit for that question.

22. Petitioner alleged that Question 1 was of such difficulty that it should either not be counted, or his answer should be counted as correct. Respondent demonstrated that 26 out of 50 candidates answered the question correctly, thus negating Petitioner’s contention in this regard. Question 1 was properly graded as a question of medium difficulty, and is a valid and acceptable item on the examination.

    CONCLUSIONS OF LAW

    
    

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

24. Respondent is authorized to administer licensure examinations for hearing aid specialists, pursuant to Section 455.574, Florida Statutes. Any person desiring to become licensed as a hearing aid specialist in Florida must pass the licensure examination developed by the Department of Health to test an applicant’s competency to perform as a hearing aid specialist. Section 484.045, Florida Statutes. Pursuant to

    contract, the Department of Business and Professional Regulation administers and scores the examination.

25. Petitioner had the burden of demonstrating by a preponderance of the evidence that the examination was scored erroneously, or that the agency acted arbitrarily or capriciously when administering or grading his examination. Benoit vs. Department of Business and Professional Regulation, Board of Hearing Aid Specialists, DOAH Case No. 94-0303 (Recommended Order, April 21, 1994).

26. The competent substantial evidence does not demonstrate that Petitioner is entitled to any additional credit for any of the challenged items on the examination or for the actions taken by the agency’s representatives during the administration of the examination.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Hearing Aid Specialists, enter a final order denying Petitioner’s challenge to the grade assigned him for the September 1997 Hearing Aid Specialist licensure examination.

DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998.

COPIES FURNISHED:

Terry L. Allman, pro se

110 St. Lucia Loop

Apollo Beach, Florida 33572

Anne Marie Williamson, Esquire Florida Department of Health 1317 Winewood Boulevard

Building 6, Suite 240

Tallahassee, Florida 32399-0700

Angela T. Hall, Agency Clerk Department of Health Building Six, Room 240

1309 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health

1317 Winewood Boulevard Building Six, Room 306

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 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: 98-000586

Orders for Case No: 98-000586