STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA D. FARHADY, )

)

Petitioner, )

)

vs. ) Case No. 99-5120

) DEPARTMENT OF HEALTH, BOARD OF ) OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 10, 2000, at Fort Lauderdale, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sandra D. Farhady, pro se

6404 Wiley Street

Hollywood, Florida 33023

For Respondent: Angela T. Hall, Esquire

Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1703 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to receive a passing score on the clinical portion of the August 1999 optometry licensure examination.

PRELIMINARY STATEMENT

In August 1999, Petitioner, Sandra D. Farhady (Farhady), took the optometry licensure examination given by Respondent, Department of Health (Department). By grade examination report dated September 13, 1999, the Department notified Farhady that she had failed the clinical portion of the licensure examination. Farhady timely requested an administrative hearing to contest the grading of her answers to questions 11a, 25a, 26a, 27a, 28a, 30a, 32a, 33a, 33b, 33c, 34a, 2a, and 4a. The Department forwarded the case to the Division of Administrative Hearings on

December 6, 1999, for assignment to an Administrative Law Judge.

At the final hearing, Petitioner testified on her own behalf and presented the testimony of Lynne Erbe, O.D. Petitioner's Exhibits A, B, D, and E were admitted in evidence. Petitioner's Exhibit C was rejected. The Department called Lee Skinner and Marguerite Ball, O.D., as its witnesses. The Department presented the testimony of Christian P. Guier, O.D., by deposition. Respondent's Exhibits A-J and L were admitted in evidence. Respondent's Exhibit M was rejected. Respondent's Exhibits I and J were admitted under seal pursuant to Section 455.647, Florida Statutes.

Official recognition was taken of Sections 463.006, 455.564, and 455.647, Florida Statutes, and Chapters 64B-1 and 64B13-4, Florida Administrative Code.

The parties were to file their proposed recommended orders within ten days of the filing of the transcript, which was filed on March 14, 2000. The parties timely filed their proposed recommended orders, which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Sandra Farhady (Farhady), took the Florida optometry licensure examination in August 1999. The examination is divided into four portions: laws and rules, pharmacology, clinical, and certification.

2. Prior to the administration of the test, each examiner is given grading standards, which are the requirements that must be met by a candidate to successfully demonstrate a particular procedure. All examiners receive standardization training, during which the examiners are trained to apply grading standards consistently. Examiners are instructed to wear their best corrective lenses.

3. Examiners are instructed to grade each applicant independently of each other and are not permitted to confer with each other concerning a candidate's score. If both examiners agree, the candidate receives no credit or full credit, depending on whether they considered the candidate to have properly performed the procedure requested. If they disagree, the candidate is given partial credit on that procedure.

4. The clinical portion of the examination requires the applicant to perform a number of tasks while two examiners evaluate the procedures. The examiners observe the procedure through a viewing system known as a teaching tube which is attached to the optometrist's equipment used by the candidate. Only one teaching tube is used so each examiner views the procedure separately. The candidate may ask the first examiner to grade his view and hold the view for the second examiner without having to refocus, or the candidate may perform the procedure for each examiner.

5. Farhady passed the laws and rules, pharmacology, and certification portions of the examination, but failed the clinical portion of the examination with a score of 69.1. The passing score for the clinical examination is 75.0.

6. Farhady challenged the score that she received on question 11a of the clinical examination. The question dealt with a procedure called retinoscopy, and the Department conceded at final hearing that Farhady should have been given credit for her answer. The additional points associated with question 11a raised Farhady's final score to 70.125.

7. Farhady challenged the score she received for questions 33a, 33b, 33c, and 34a of the clinical examination. The questions relate to a procedure known as applanation tonometry, which is used to check a patient for glaucoma by measuring the

   intraocular pressure. This portion of the examination was worth ten points.

8. Applanation tonometry is performed using a tonometer. The tonometers used by all the candidates for the August 1999 examination were part of a Zeiss slit lamp, which is also called a Zeiss microscope. It is an apparatus commonly used by optometrists within the scope of their practice. Each of the tonometers had a large fixation device mounted on the left side of the microscope. On the day of the clinical portion of the examination, the tonometer used by Farhady was in working order. No other candidate made a complaint concerning the working condition of the tonometer. The tonometer used by Farhady was not altered before, during, or after Farhady's session.

9. There are time limits for section two of the clinical portion of the examination, which includes the applanation tonometry procedure. The Candidate Information Booklet for the Optometry Examination, which is provided to all candidates prior to the examination, provides:

   To protect the patient and to evaluate clinical competency, we will put time limits on the amount of time you will have to attempt each of the Section Two procedures. Timing will start after you receive the initial instructions for each procedure from the examiners and will continue until completion of the procedure or until time expires. . . .

   The time limit for the applanation tonometry procedure is six minutes.

10. Farahady was unable to complete the applanation tonometry within the time allowed during the examination. She could not make the probe of the tonometer contact the patient's eye. During the procedure she advised the examiners, "Something is up with the tonometer."

11. Farhady filled in a Candidate Comment Form and stated the following:

    Unable to acquire a view on tonometry. Mires were clear but fluorescent pattern not correct. It appeared like ground glass. I reapplied NAFI, but same view was seen so no grading was possible & I ran out of time.

    
    

12. One of the examiner's noted the following on the Examiner's Comment Form:

    Pt. Ran out of time on tonometry--was apparently unable to see mires. Mires did not 'Flouress' well but was easily visible. Light source was close to 90 [degrees] away which may have contributed. Tonometry was repeated by this examiner without instilling new NaFl successfully by brightening the light source & bringing it to 60 [degrees].

13. Farhady contends that the position of the fixation device prevented her from being able complete the tonometry procedure. The fixation device can be easily moved to one side, pushed back, or folded up. If the fixation device was hindering Farhady in bringing the tonometer probe in contact with the patient's eye, Farhady could have quickly and easily moved the device out of her way. The position of the fixation device is not a defect in the tonometer equipment, which would have

    prevented a candidate from successfully performing applanation tonometry.

14. Item 33a was the evaluation of whether the illumination source was a proper angle of 40 to 60 degrees. Item 33b evaluated whether the mires were the proper width. Item 33c evaluated whether the mires alignment was correct. Item 34 was the evaluation of whether the candidate obtained an accurate reading of the intraocular pressure. Farhady did not have the proper angle, did not demonstrate whether the mires were the proper width, did not align the mires correctly, and did not obtain a reading of intraocular pressure.

15. Farhady challenged the score she received for questions 25a, 26a, 27a, 28a, 30a, and 32a, in section two of the clinical examination. These questions relate to a procedure referred to as biomicroscopy of the fundus. The scores given by the examiners for these questions were not identical.

16. Examiner 199 did not give Farhady any points for questions 25a, 26a, 27a, 28a, and 32a. Examiner 199 noted that Farhady did not establish the proper focus with respect to these procedures. While examiner 231 did give Farhady points for procedure 25a, examiner 231 noted that Farhady had achieved only a borderline focus. Both examiners noted poor focus with respect to question 32a and did not give Farhady credit for that question.

17. Question 25a required proper focus of nerve head. Examiner 199 noted the following on the grade sheet with respect to question 25a:

    Could not get it in view in left ocular. Candidate even verbalized this.

    
    

18. For questions 26a, 27a, and 28a, examiner 199 noted that Farhady had no focus. For question 32a, examiner 199 noted, "could not/would not maintain focus."

19. Farhady challenges the scores she received for questions 2a and 4a on section one of the clinical examination. These questions relate to visual field testing. The candidate is shown a visual field and is asked questions pertaining to the visual field. When Farhady was shown the visual field, she immediately said out loud that it was a glaucomatous loss before the examiner could read the instructions to her. The examiner said, "no" and began to read the instructions. Farhady thought that the examiner meant that it was not a glaucomatous loss. The examiner manual advises the examiners to avoid any comments which the candidate could interpret as favorable or unfavorable.

20. For question 2a, Farhady was asked to name the visual field defect. She stated that it was arcuate scotoma. The correct answer was superior arcuate scotoma. Credit is not given for partial answers. It is important that the candidate identify whether it is a superior or an inferior arcuate scotoma in order to establish the location of the lesion so that the correct diagnosis can be made. Whether the examiner said "no" is

    irrelevant to the answer which Farhady gave to question 2a because she did identify that it was an arcuate scotoma.

21. For question 4a, Farhady was asked which disease would be most consistent with the visual field defect. Farhady answered supracellar craniopharyngioma, which is incorrect. In layman's terms, a supracellar craniopharyngioma is a tumor of the pituitary gland. A visual field of a tumor of the pituitary gland is a bitemporal configuration not an arcuate configuration, meaning that Farhady's answer did not correlate in any way with the visual field defect.

22. It was improper for the examiner to have said "no" after Farhady responded that it was a glaucomatous loss. It could have been interpreted by a candidate, as it was by Farhady, that her response was incorrect. The examiner should have told Farhady to wait until the instructions were read. Question 4a was worth 1.5 points, giving Farhady a total percent score of 71.6, which is not a passing score.

    CONCLUSIONS OF LAW

    
    

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

24. The Department is authorized to administer licensure examinations for optometrists. Section 455.574, Florida Statutes. Any person desiring to practice optometry in Florida is required to pass the licensure examination developed by the

    Department to test an applicant's competency as an optometrist. Section 463.006, Florida Statutes.

25. Petitioner has the burden to establish by a preponderance of the evidence that her examination scoring was flawed and that the Department acted arbitrarily or capriciously or with an abuse of discretion. See Harac v. Department of Business and Professional Regulation, 484 So. 2d 1333, 1337 (Fla. 3rd DCA 1986).

26. Farhady has failed to establish that her failure to complete the applanation tonometry procedure in a timely manner was because of a defect in the equipment used in the examination. Farhady could have moved the fixation device if it was an obstruction during the test.

27. Farhady argues that she should be given partial credit for the applanation tonometry procedure because she correctly performed some parts of the procedure even though she was unable to obtain a reading of the intraocular pressure. The parts of the procedure for which Farhady was being evaluated were not correctly performed by Farhady so she should not be given partial credit for her performance.

28. Farhady alleges that based on the disagreement of the examiners on questions 25a, 26a, 27a, and 28a she should be given additional points. In a similar case, Starr v. Department of Business and Professional Regulation, DOAH Case No. 90-2423, the hearing officer noted the following:

    [T]he two examiners did not observe Petitioner perform these procedures at the same time. Moreover, in performing these procedures, their difference of opinion on the matter would not, in and of itself, provide a basis upon which to conclude that the Petitioner's test results were flawed.

    
    

29. For question 32a, neither examiner gave Farhady points; thus, her argument that the examiners disagreed is without merit. No evidence was presented to establish that the examiners were in error.

30. For question 2a, Farhady contends that she should be given points because the examiner had said "no" to her after she viewed the visual field and stated that it was a glaucomatous loss before the examiner had time to give her the instructions and because she did not feel that she needed to identify the visual field defect as either superior or inferior. Farhady's failure to indicate whether the defect was superior or inferior was not due to the examiner's telling her, "no." Credit is not given for a partial answer; thus, Farhady is not entitled to credit for question 2a.

31. Farhady was confused by the examiner's comment after she indicated that there was a glaucomatous loss. Had the examiner told her to wait until he had read the instructions rather than saying, "no," Farhady would not have been led to believe that an answer relating to glaucoma would have been incorrect. Farhady should be given 1.5 points for question 4a.

32. The Department conceded at the final hearing that Farhady should be given additional points for question 11a, raising her score to 70.125.

33. With credit for questions 11a and 4a, Farhady's final score would be 71.6, which is not a passing score. Farhady has failed to establish that she should be given a passing score for the examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Sandra D. Farhady did not pass the clinical portion of the

August 1999 optometry licensure examination and dismissing her petition.

DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000.

COPIES FURNISHED:

Joe Baker, Jr., Executive Director Board of Optometry

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1703

Angela T. Hall, Esquire Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1703

Sandra D. Farhady 6404 Wiley Street

Hollywood, Florida 33023

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: 99-005120

Orders for Case No: 99-005120