STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER BROWN, )

)

Petitioner, )

)

vs. ) Case No. 98-1004

)

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on July 22, 1998, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jennifer Lee Brown, D.M.D., pro se Post Office Box 39

Starke, Florida 32091-0039

For Respondent: Anna Marie Williamson, Esquire

Office of the General Counsel Department of Health

2020 Capital Circle South East, Bin # A 02 Tallahassee, Florida 32399-1702

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Jennifer Lee Brown, D.M.D., should receive a passing grade on the

December 1997 Florida dental licensure examination.

PRELIMINARY STATEMENT

In December 1997 the Florida Department of Business and Professional Regulation administered and scored a dental licensure examination. Dr. Brown took the December 1997 dental licensure examination.

Dr. Brown was subsequently notified that she had failed the clinical portion of the examination. Dr. Brown was notified that she had received a score of 2.67 on the clinical portion of the examination. A score of 3 is considered the minimum passing score.

By letter dated February 13, 1998, Dr. Brown requested a formal administrative hearing contesting the score awarded to her for the clinical portion of the dental licensure examination. In particular, Dr. Brown challenged the scores she had been awarded on procedures 2, 5, 6, 7, 8, and 9.

Dr. Brown's request for hearing was filed with the Division of Administrative Hearings by Notice on March 3, 1998. The matter was designated Case No. 98-1004 and was assigned to the undersigned. By Notice of Hearing entered April 7, 1998, the formal hearing was scheduled for June 8, 1998. A Second Notice of Hearing was entered May 11, 1998, rescheduling the formal hearing for July 22, 1998, due to a conflict of the hearing date with the schedule of counsel for Respondent.

At the commencement of the formal hearing, Respondent conceded that an error had been committed in scoring procedures 7

and 8. Respondent reported that correcting the error resulted in a score of 2.82 on the clinical portion of the examination.

Dr. Brown testified on her behalf and offered one exhibit. Petitioner's Exhibit 1 was accepted into evidence. Respondent presented the testimony of Marsha Carnes and Thomas E. Shields, II, D.D.S. Ms. Carnes was accepted as an expert in psychometrics and Dr. Shields was accepted as an expert in dentistry.

Respondent offered four exhibits which were accepted into evidence.

Official recognition of Chapter 61-11 and 64B5-2, Florida Administrative Code, and Sections 466.006 and 466.009, Florida Statutes, was taken at the request of Respondent.

A transcript of the hearing was filed on August 18, 1998.

The parties agreed at the conclusion of the hearing to file proposed orders within ten days after the transcript was filed. Respondent filed a proposed order on August 28, 1998. Dr. Brown informed the undersigned's office by telephone that she did not intend to file a proposed order. The Respondent's proposed order has been fully considered in entering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Jennifer Lee Brown, D.M.D., is a graduate from the University of Florida College of Dentistry.

2. Respondent, the Department of Health (hereinafter referred to as the "Department"), is responsible for the licensure of dentists in the State of Florida.

3. In December 1997 the Florida Department of Business and Professional Regulation, on behalf of the Department, administered the Florida dental licensure examination which persons wishing to practice dentistry in the State were required to pass.

4. Dr. Brown took the December 1997 dental examination (hereinafter referred to as the "Examination"). The Examination consisted of clinical, Florida laws and rules, and oral diagnosis parts.

5. The clinical portion of the Examination consisted of 8 procedures: procedures 1-3 and 5-9.

6. Each procedure was graded by three separate examiners. The scores awarded by the three examiners on each procedure were averaged, resulting in a truer score. Each procedure had standardized "comments" concerning a candidate's performance on the procedure which examiners could note.

7. Examiners were selected from individuals recommended by existing examiners or members of the Board of Dentistry (hereinafter referred to as the "Board"). Prospective examiners could not have any complaints against their license and they were required to have actively practiced dentistry and to be licensed as a dentist in Florida for a minimum of five years.

8. Prospective examiners were required to file an application with the Board's examination committee.

9. Prior to the Examination, a "standardization" session was conducted for the examiners selected. During the session, examiners were trained how to grade the Examination using the same internal criteria. The standardization session was conducted by assistant examiner supervisors appointed by the Board.

10. After completion of the standardization session, and before the Examination, examiners were required to grade five mannequin models in order to evaluate the examiners' understanding of the grading criteria. Each examiner's performance was evaluated to determine whether the examiner should be used during the Examination.

11. The examiners who graded Dr. Brown's clinical part of the Examination were designated as Examiners 168, 176, 195, 207, 264, 290, 298, and 299. All of these examiners completed the standardization session and the post-standardization evaluation.

12. During the clinical part of the Examination, the examiners were required to grade each procedure independently, without conferring with each other.

13. The clinical part of the Examination was "double blind" graded. Examiners did not see the candidates they were grading or watch their work. The test procedures were performed in a clinic in the presence of a licensed dentist. After the procedure was completed, the patient or tooth was taken to another clinic where the examiners reviewed the work performed on

    the patient and graded the procedure. The examiners had no direct contact with any candidate.

14. Candidates were permitted to use "monitor-to-examiner" notes to convey information to the examiners that a candidate wanted the examiners to take into consideration when grading a procedure. Any such notes were read by the examiners and initialed "SMN" (saw monitor note) before they actually looked at the patient or tooth.

15. For the clinical part of the Examination the following grading system was used:

    1. Zero: complete failure;

       
       

    2. One: unacceptable;

       
       

    3. Two: below minimally acceptable.

       
       

    4. Three: minimally acceptable.

       
       

    5. Four: better than minimally acceptable.

       
       

    6. Five: outstanding.

    
    

16. After the Examination was graded, all examiners underwent a post-examination evaluation. Grades awarded by each examiner were compared to other examiners for consistency. All of the examiners who graded Dr. Brown's clinical part of the Examination were found to have performed acceptably.

17. Dr. Brown was subsequently informed that she had failed to obtain the minimum passing grade of 3.00 for the clinical part of the Examination. Dr. Brown was informed that she had been

    awarded a score of 2.67. Dr. Brown was also informed that she passed the other two parts of the Examination.

18. Dr. Brown challenged the scores she had been awarded on the clinical part of the Examination for procedures 2, 5, 6, 7, 8, and 9.

19. The procedures challenged were graded by examiners 176 (graded all the challenged procedures), 195 (graded procedures 5- 9), 207 (graded procedure 2), 298 (graded procedure 2), and 299 (graded procedures 5-9).

20. The Department conceded that the scores awarded Dr. Brown on procedures 7 and 8 were incorrect. As a result, the Department agreed that Dr. Brown's overall score for the clinical part of the Examination should be raised to 2.82. The evidence failed to prove that Dr. Brown should have received a higher score on procedures 7 and 8.

21. Procedure 2 consisted of an amalgam (filling)n preparation on a human patient. Dr. Brown was required to select a tooth and, after the selected tooth was checked by an examiner, complete preparation for the amalgam.

22. Dr. Brown wrote three monitor-to-examiner notes during procedure 2. All three examiners wrote "SMN" on all three notes.

23. Dr. Brown received an average score on procedure 2 of

    
    

    3.66. Dr. Brown was awarded the following individual scores for her performance on procedure 2:

    Examiner Score

    176	4
    207	4
    298	3

    
    

24. Examiners 176 and 298 noted the following comment concerning Dr. Brown's performance on procedure 2: "Depth Prep." Examiner 298 also noted the following comment: "Marginal Finish." Examiner 207 noted the following comment: "Retention Form."

25. Dr. Brown admitted that her performance on procedure 2 was not ideal, but expressed concern that she was graded down for matters dealt with in the monitor-to-examiner notes.

26. Dr. Shields opined that it was possible for the examiners to have reduced the score awarded to Dr. Brown on procedure for depth preparation, marginal finish, and retention form and not have graded her down for the monitor-to-examiner notes. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate.

27. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 2 of the clinical part of the Examination. Dr. Brown received a fairly consistent score from all three graders.

28. Procedure 5 was a "class IV composite restoration." This procedure involved the selection of a tooth by Dr. Brown which she was then required to make a slice cut on to replicate a fracture. Dr. Brown was then required to restore the simulated

    fractured tooth to its normal contour and function. The procedure was performed on a mannequin.

29. Dr. Brown received an average score of 1.66 on procedure 5. Dr. Brown was awarded the following individual scores for her performance on procedure 5:

    Examiner Score

    
    

    176 3

    195 0

    299 2

    
    

30. Examiners 176 and 195 noted the following comment concerning Dr. Brown's performance on procedure 5: "Proximal Contour."

31. Examiners 176 and 299 noted the following comment concerning Dr. Brown's performance on procedure 5: "Margin."

32. Finally, the following additional comments were noted by the examiners:

    Examiner Comment:

    
    

    195 Functional Anatomy Mutilation of Adjacent Teeth

    
    

    289 Gingival Overhang

    
    

33. Dr. Brown's challenge to her score for procedure 5 was essentially that Examiner 199 had given her such a low score on this procedure and procedures 7 through 9 when compared to the scores awarded by Examiners 176 and 298.

34. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 5. Dr. Shields' opinion was based generally upon his 21 years of

    experience as a dentist. More specifically, Dr. Shields based his opinion upon his examination of the actual tooth that Dr. Brown performed procedure 5 on.

35. Dr. Shields found excess material left at the gingival or gum portion of the tooth. Dr. Shields also found that Dr. Brown attempted to polish the material off and had flattened some of the surface of the tooth. Apparently, based upon Examiner 195's comment notes, Examiner 195 was the only examiner to catch these deficiencies in Dr. Brown's performance on procedure 5.

36. Dr. Shields also found slight damage on the mesial, the approximating surface of the lateral incisor, the tooth next to the tooth that was restored.

37. The evidence failed to prove that Dr. Shields' opinions concerning Dr. Brown's performance on procedure 5 were not reasonable and accurate.

38. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 5 of the clinical part of the Examination.

39. Procedure 6 required that Dr. Brown perform an Endodontic Evaluation of the Maxillary First Premolar. Dr. Brown was required to select an extracted tooth, a maxillary tricuspid, examine x-rays of the tooth, and then perform a root canal on the tooth. The tooth had two roots. The root canal involved creating an opening in the tooth and removing the pulpal tissue from the two nerve canals of the tooth (a debridement). The

    canals were to be shaped for an obturation or the filling of the canal. A final x-ray of the tooth was taken after the procedure was completed.

40. Dr. Brown received an average score on procedure 6 of

    
    

    1.00. Dr. Brown was awarded the following individual scores for her performance on procedure 6:

    Examiner Score

    
    

    176 3

    195 0

    299 0

    
    

41. All three examiners noted the following comment for Dr. Brown's performance on procedure 6: "Proper Filling of Canal Spaces with Gutta Percha." Gutta Percha is the material that was used by Dr. Brown to fill the canal of the roots after she completed the debridement.

42. Examiner 195 noted the following additional comment for Dr. Brown's performance on procedure 6: "Access Preparation." Examiner 299 noted the following additional comment: "Shaping of Canals."

43. Dr. Brown's challenge to her score for procedure 6 was based in part on her concern that Examiners 199 and 299 had given her a score of 0 on this procedure while Examiner 176 had given her a score of 3.

44. Dr. Brown admitted that she had caused the gutta percha to extrude through the apex of the canals. She argued, however, that gutta percha is reabsorbed by the patient. Therefore, Dr.

    Brown suggested that her performance was "clinically acceptable." Dr. Brown questioned how one examiner, Examiner 176, could conclude that her performance was in fact clinically acceptable, while the other two examiners concluded it was not.

45. The difficulty with Dr. Brown's position with regard to procedure 6 is that she assumes that the only deficiency with her performance was the extrusion of gutta percha and that it was not a significant deficiency. The evidence failed to support this position.

46. Dr. Shields opined that Dr. Brown should not have received a higher score for her performance on procedure 6. His opinion was based upon the fact that the extrusion of gutta percha was very significant on one of the canals: it extended a millimeter and a half. On the other canal it was a half of a millimeter. Filling the canal one half millimeter to a millimeter is considered ideal. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate.

47. During the standardization session, examiners were told that extrusion of gutta percha more than a half millimeter through the apex was to be considered an error of major consequence. Candidates who extruded guttal percha more than a half millimeter were not to receive a grade higher than one.

48. In light of the instructions during the standardization session, it was more likely that Examiner 176 gave Dr. Brown too high of a score on procedure 6.

49. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 6 of the clinical part of the Examination.

50. Procedure 9 was a pin amalgam final restoration. Although this procedure involved, in a lay person's terms, a filling, what exactly was involved in this procedure was not explained during the formal hearing.

51. Dr. Brown received an average score on procedure 9 of

    
    

    1.66. Dr. Brown was awarded the following individual scores for her performance on procedure 9:

    Examiner Score

    
    

    176 4

    195 0

    299 1

    
    

52. All three examiners noted the following comment concerning Dr. Brown's performance on procedure 9: "Functional Anatomy." Examiners 195 and 299, who both graded Dr. Brown below minimal acceptability, also noted the following comments: "Proximal Contour," "Contract," and "Margin."

53. Dr. Brown failed to present any evidence to support her claim that she should have received a higher score for procedure

1. Dr. Brown simply questioned the fact that Examiner 195 had graded her low on all the clinical procedures.

   1. Dr. Shields opined that Dr. Brown should not receive a higher score on procedure 9. The evidence failed to prove that Dr. Shields' opinion was not reasonable or accurate.

   2. The evidence failed to prove that Dr. Brown should have received a higher score for procedure 9 of the clinical part of the Examination.

   3. Dr. Brown's challenge in this case was based largely on the fact that Examiner 195 had graded her performance on procedures 5, 6, and 9 as a zero, procedure 7 as a one, and procedure 8 as a two. Other than the fact that Examiner 195's scores were consistently low, the evidence failed to prove that Examiner 195 improperly graded Dr. Brown except as conceded by the Department on procedures 7 and 8.

   4. Comparing the scores awarded by Examiner 195 to Examiner 176 does raise some question as to why there was such a discrepancy in the two examiners' scores. When the scores on procedures 5, 6, and 9 of all three examiners are compared, however, Examiners 195 and 298 generally were consistently below acceptable, while Examiner 176's scores were generally higher on these three procedures:

      Examiner Procedure 5 Score Procedure 6 Score Procedure 9 Score

      
      

      176	3	3	4
      195	0	0	0
      299	2	0	1

      
      

      This simple mathematical comparison, however, is not sufficient to conclude that Examiner 195 scored too low or that Examiner 176 scored too high.

   5. Other than a simple comparison of the scores of the three examiners, the only evidence concerning whether Examiner

      195 graded too low based upon the scores alone was presented by Ms. Carnes, an expert in psychometrics. Ms. Carnes opined that Examiner 195's performance was acceptable, except with regard to procedures 7 and 8. The evidence failed to refute Ms. Canres' opinion.

   6. Based upon the weight of the evidence, Dr. Brown's score for the clinical portion of the Examination, as adjusted by the Department during the final hearing of this case, was reasonable and accurate.

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes (1997).

   8. Any person who desires to practice dentistry in Florida is required to pass a licensure examination. Section 466.006, Florida Statutes (1997).

   9. The Department is authorized to administer licensure examinations for dentists desiring to be licensed in Florida. Section 455.574, Florida Statutes (1997). The Examination was administered by the Department of Business and Professional Regulation on behalf of the Department.

   10. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in this proceeding. Antel v. Department of Professional Regulation, 522 So. 2d 1056 (Fla. 5th DCA 1988); and Department

       of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

   11. In this case, Dr. Brown was asserting the affirmative by suggesting that she should have received a higher score on the Examination. Dr. Brown, therefore, had the burden of proving that she should have received a higher score. Dr. Brown failed to meet that burden.

   12. Dr. Brown's challenge to the scores she received on the clinical part of the Examination was based in large part on her concern that Examiner 195 had graded her performance excessively low. While the evidence did prove that Examiner 195 graded Dr. Brown low on procedures 5, 6, 7, 8, and 9, that fact alone is insufficient to conclude that Dr. Brown should have received a higher score. Dr. Brown offered no evidence, other than the fact that Examiner 195's scores, to support her concern. A simple comparison of scores could just as reasonably lead to a conclusion that Examiner 176 graded too high as a conclusion that Examiner 195 graded too low. In light of the testimony of Ms. Carnes concerning the fairness of Examiner 195's scores, there is insufficient evidence to support Dr. Brown's challenge to Examiner 195.

   13. Dr. Brown also challenged the scores she received for procedures 2 and 6, and some of the other clinical procedures, on more substantive grounds. Dr. Brown offered testimony concerning her performance on these procedures in an effort to prove that

       she should have received a higher score. While Dr. Brown's testimony was credible, it was not convincing in light of Dr. Shields' opinions concerning Dr. Brown's performance. Dr.

       Shields has practiced dentistry for 21 years. Based upon his experience and his explanation of the reasons why Dr. Brown's performance did not warrant a higher score, Dr. Shields' opinions outweighed Dr. Brown's testimony.

   14. Based upon the weight of the evidence in this case, Dr. Brown failed to prove that she should have received a passing grade on the clinical part of the Examination.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered by the Department of Health, Board of Dentistry, dismissing Dr. Brown's challenge to the amended grade awarded for the clinical part of the December 1997 Dental Examination.

DONE AND ENTERED this 14th day of September, 1998, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

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 14th day of September, 1998.

COPIES FURNISHED:

Jennifer Brown Post Office Box 39

Starke, Florida 32091-0039

Anna Marie Williamson, Esquire Office of the General Counsel Department of Health

Building 6, Room 102

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

William Buckhalt, Executive Director Department of Health

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 98-001004

Orders for Case No: 98-001004