STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRANDY KERN, )

)

Petitioner, )

)

vs. ) Case No. 98-1067

)

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 15, 1998, at Vero Beach, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brandy Kern, pro se

1455 90th Avenue, Lot 186 Vero Beach, Florida 32966

For Respondent: Anne Marie Williamson, Esquire

Department of Health Building 6, Room 106

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner successfully completed the clinical portion of the December 1997 dental hygiene examination.

PRELIMINARY STATEMENT

In December 1997, Brandy Kern took the dental hygiene

examination. Ms. Kern successfully completed all portions of the examination, except for the clinical portion.1 As a result, she did not pass the dental hygiene examination. Ms. Kern requested a formal hearing. On March 4, 1998, the matter was referred to the Division of Administrative Hearings.

At hearing, Ms. Kern presented the testimony of one witness, testified in her own behalf, and entered seven exhibits into evidence. The Department of Health (Department) presented the testimony of one witness and entered one exhibit into evidence.

A transcript of the hearing was ordered. The time for filing post-hearing submissions was set for ten days following the filing of the transcript. Subsequent thereto, an extension of time was granted. The parties filed post-hearing submissions which have been duly considered in the preparation of this recommended order.

FINDINGS OF FACT

1. In December 1997, Brandy Kern was a candidate for the dental hygiene examination (Examination). Ms. Kern had completed her dental hygiene studies at the University of Pittsburgh on or about April 29, 1995. She was an excellent student. Prior to making application for the Examination, Ms. Kern had obtained experience in dental hygiene by working as a dental hygienist in at least three dental offices over at least a two-year period in the State of Pennsylvania. Her employers, who were dentists, gave Ms. Kern very positive recommendations.

2. Ms. Kern successfully completed all portions of the Examination, except for the scaling/calculus removal portion of the clinical part of the Examination. As a result, Ms. Kern did not successfully complete the overall Examination.

3. The clinical examination consists of three parts: scaling and calculus removal, polishing, and root planing. The overall score for the clinical examination is determined from all three portions. Scaling and calculus removal counts as 70 per cent of the clinical examination; polishing as 10 percent; and root planing as 20 per cent.

4. Each dental hygiene candidate is graded by three examiners. The clinical portion of Ms. Kern's examination was scored by three examiners. The examiners were 197, 243, and 320.

5. Each examiner is a dental hygienist licensed in the State of Florida and is an experienced dental hygienist. An examiner must be recommended by an existing examiner or by a member of the Board of Dentistry (Board), have no complaints against their license, and be actively practicing.

6. To become an examiner, an application must be completed and submitted to an examination committee of the Board. The committee reviews the application and, if approved, the applicant is placed in a pool of examiners.

7. Before every examination, each examiner is trained in evaluating a procedure to make sure that it is properly performed.

8. The Department of Health (Department) conducts a training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida and are appointed by the Board of Dentistry (Board).

9. To further their training, after the examiners receive their verbal training, the examiners are shown slides of teeth which do not meet the clinical criteria of the examination.

10. To make sure that the examiners have been able to internalize the criteria, following the standardization, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where mannequins are used and the examiners check for errors on the mannequins.

11. After the examiners complete their examination, the Bureau of Testing evaluates the examiners to determine whether the examiners are acceptable to use for the Examination.

12. Subsequent to the Examination, the examiners are scored by the Bureau of Testing. The scoring is based on an examiner's performance wherein the Bureau of Testing examines how every examiner grades with every other examiner to make sure that the examiners are grading with reliability. This review is based on corroborated errors found by an examiner, not on the average

    errors found by an examiner. The average errors found by an examiner are irrelevant to the examiner's performance in that one examiner may have graded candidates who made numerous errors, while another examiner may have graded candidates who made very few errors.

13. For the Examination, candidates are required to bring human patients on whom the candidates perform the dental procedures.

14. Each examiner grades the Examination independently. The examiners do not confer with each other while scoring the Examination.

15. Furthermore, the Examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored by a licensed dental hygienist. When the candidate completes the procedures, a proctor accompanies the patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates.

16. For the scaling/calculus removal portion of the Examination, the grading criteria is that complete removal of all supra and sub-marginal calculus from each tooth, without laceration to the surrounding tissue, is required. If the tooth is not clean and/or if there is damage to the surrounding tissue, the candidate is considered to have made one (1) error. Pursuant

    to Board rule, each tooth is judged as a whole. Even if a candidate makes three mistakes in performing the procedure on each tooth, e.g., calculus could be above the gum, calculus could be below the gum, and/or the gum could be lacerated, only one (1) error is counted against the candidate.

17. The examiners do not document what error was committed by the candidate, i.e., whether the error is a calculus error or a laceration error.

18. In grading the scaling/calculus removal portion of the Examination, a grade of five is the highest grade that a candidate can receive. A five is given if there are zero to three errors found. A grade of four is given if there are four errors found. A grade of three, which is considered to be minimally competent, is given if there are five errors found. A grade of two is given if there are six errors found. A grade of one is given if there are seven errors found, and a grade of zero is given if eight or more errors are found.

19. For an error to be counted against a candidate, at least two of the three examiners must corroborate the error, i.e., at least two of the examiners must find the error.

20. For Ms. Kern's clinical examination, she was scored by examiners 197, 243, and 320. All three examiners participated in the standardization training and were considered qualified to act as examiners for the Examination.

21. Ms. Kern's examination was double-blind graded. Each

    examiner independently graded her examination.

    
    

22. Examiner 197 found one error. Both examiners 243 and

    
    

    320 found seven errors each.

    
    

23. Examiners 243 and 320 agreed on six of seven teeth on which errors were found. Consequently, Ms. Kern was considered to have committed six errors.

24. A post-examination review of the examiners was conducted. Examiners 243 and 320 were found to be reliable in their scoring. However, examiner 197 was found to be unreliable in his scoring. Examiner 197 was not used again for the Examination.

25. The scoring of six errors made by Ms. Kern on the scaling/calculus removal portion of the Examination is not arbitrary or capricious or an abuse of discretion. The scoring process is not devoid of logic and reason.

26. However, because examiners do not document the type of error committed by a candidate, a candidate has no way of knowing what detail of a procedure was improperly performed. The candidate only knows that a procedure, as a whole, was improperly performed. Consequently, a candidate who desires to re-take the Examination has no idea what procedure needs improvement by the candidate in order to prepare for a re-taking of the Examination.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

28. Pursuant to Section 455.574, Florida Statutes, the Department is authorized to administer licensure examinations for dental hygienists. The Department has contracted with the Department of Business and Professional Regulation for the administering and scoring of the examinations for professions regulated by the Department.

29. Section 466.007, Florida Statutes, provides in pertinent part:

    (4) To be licensed as a dental hygienist in this state, an applicant must successfully

    complete the following:

    
    

    * * *

    
    

    (b) A practical or clinical examination. . . The department shall require a mandatory standardization exercise pursuant to s. 455.217(1)(b) for all examiners prior to each practical or clinical examination and shall retain for employment only those dentists and dental hygienists who have substantially adhered to the standard of grading established at such exercise. . . .

30. The dental hygiene licensure examination administered in December 1997 complied with the requirements of Rule 64B5- 2.0135, Florida Administrative Code.

31. The burden of proof is on Ms. Kern to show by a preponderance of evidence that the scoring of the scaling/calculus removal portion of the Examination was arbitrary or capricious, or that the scoring process was devoid of logic and reason. Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. Glasser v. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

32. Ms. Kern has failed to meet her burden.

RECOMMENDATION

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

RECOMMENDED that the Department of Health, Board of Dentistry enter a final order dismissing Brandy Kern's

examination challenge to the clinical portion of the dental hygienist licensure examination administered in December 1997.

DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 6th day of August, 1998.

ENDNOTE

1/ The record did not reflect and no evidence was presented demonstrating what the minimum score was required to pass the clinical portion of the examination and what score Ms. Kern received on the clinical portion. However, the parties do agree that Ms. Kern did not receive a passing score.

COPIES FURNISHED:

Brandy Kern, pro se

1455 90th Avenue, Lot 186 Vero Beach, Florida 32966

Anne Marie Williamson, Esquire Department of Health

Building 6, Room 106

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Bill Buckhalt, Executive Director Board of Dentistry

Division of Medical Quality Assurance Department of Health

1940 North Monroe Street Tallahassee, Florida 32399-0797

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle Southeast Tallahassee, Florida 32399-1703

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: 98-001067

Orders for Case No: 98-001067