STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NAVIN SINGH, O.D., )

)

Petitioner, )

)

vs. ) Case No. 00-0131

)

DEPARTMENT OF HEALTH, )

BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference with the parties appearing from West Palm Beach, Florida, on April 10, 2000, before J. D. Parrish, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Navin Singh, O.D., pro se

103 Knights Court

Royal Palm Beach, Florida 33411

For Respondent: Amy M. Jones, Esquire

Office of the General Counsel Department of Health

2020 Capital Circle Southeast, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether the Petitioner's challenge to the licensure examination should be sustained.

PRELIMINARY STATEMENT

This case began on November 19, 1999, when the Petitioner, Navin Singh, O.D., filed a request for an administrative hearing to challenge the results of the August 1999 examination for licensure. Thereafter, by letter dated December 20, 1999, the Petitioner filed an amended request for a hearing. This amended request specified the grounds for the challenge. The Petitioner contested the "discrepancies" in the grading system as well as his "undue hardship" and maintained he should have received a higher grade on the examination. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on January 7, 2000.

At the hearing, the Petitioner testified in his own behalf.

The Petitioner's request to offer the testimony of an expert witness by telephone was denied as the witness could not be sworn. Lee Skinner, an Exam Development Specialist, and Mark Liebetreu, an optometrist, testified on behalf of the Respondent. The Respondent's Exhibits numbered 1 through 11 were received into evidence. The Respondent's exhibits are confidential and have been sealed in this record.

The Transcript of the proceeding was filed on May 22, 2000. The Respondent's Proposed Recommended Order was filed on June 2, 2000, and has been considered in the preparation of this order. The Petitioner has not filed a proposed order.

FINDINGS OF FACT

1. The Petitioner is a candidate for optometry licensure.

   
   

   He took the examination for licensure in August 1999.

   
   

2. The Respondent is the state agency charged with the responsibility of administering license examinations.

3. In September 1999, the results of the August 1999 examination were provided to Petitioner. The examination grade report advised Petitioner that he had failed two portions of the licensure examination. A candidate must pass all portions of the exam to become licensed.

4. As to the clinical portion of the examination, the Petitioner challenged the results due to what he maintained were "discrepancies" in the grading system.

5. As to each question challenged in the clinical portion, the Petitioner cited the differing grades from the two examiners as the basis for his dispute. When the Petitioner received credit for the question from one examiner, he believed he should have received credit from the second as well.

6. The clinical portion of the exam was scored by two examiners who independently reviewed the candidate's work. Typically, the candidate for licensure indicates when the examiner is to evaluate the work by stating "grade me now." As to each task, the candidate receives two scores. The scores are

   added together and divided by two to reach the overall clinical score.

7. Based upon when the candidate directs the examiner to grade, it is possible to receive conflicting results in the scoring process. It is the overall score that determines whether a candidate receives a passing grade on the clinical portion.

8. According to Dr. Liebetreu, a marginal candidate may well be able to correctly perform the task for one examiner yet do so incorrectly for the second reviewer. The method of scoring therefore gives the marginal candidate some credit.

9. As to the questions challenged in the pharmacological portion of the exam, the Petitioner argued that the questions were misleading or had multiple correct answers.

10. Each question challenged offered one most correct answer that the Petitioner should have selected in order to receive full credit. The Petitioner has failed to established that the answers he provided were "more correct" than the ones used by the Respondent to grant credit.

11. The photographs used in the examination were of sufficient quality to provide the candidate with appropriate views to answer questions.

12. The questions challenged were not ambiguous or misleading.

13. The candidates were provided adequate time to complete all portions of the examination.

14. Persons scoring the Petitioner's work during the clinical portion of the exam were not permitted to confer. Their scores were to be based solely on the work they observed.

15. The overall scores issued by persons scoring the Petitioner's work were within acceptable statistical standards.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

17. The Petitioner has the burden of proof to establish the examination was not conducted as provided by law. He has not met that burden. The Department gave the Petitioner credit for all answers that were correct. Moreover, the Petitioner received partial credit for results that were scored differently by two examiners. The Petitioner was required to achieve a passing score on both of the challenged portions in order to be eligible for licensure. Assuming, arguendo, that the clinical

portion would have been passed by giving the Petitioner full credit for the questions he only received partial credit for, he still would not have passed the pharmacological portion of the exam. Therefore, he would not have been eligible for licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Optometry, enter a final order denying the Petitioner's challenge to the August 1999 examination.

DONE AND ENTERED this 20th day of June, 2000, in Tallahassee, Leon County, Florida.

J. D. PARRISH 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 20th day of June, 2000.

COPIES FURNISHED:

Navin Singh, O.D., pro se

103 Knights Court

Royal Palm Beach, Florida 33411

Amy M. Jones, Esquire

Office of the General Counsel Department of Health

2020 Capital Circle Southeast, Bin A02 Tallahassee, Florida 32399-1703

Eric G. Walker, Executive Director Board of Optometry

Department of Health 1940 North Monroe Street

Tallahassee, Florida 32399-0750

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A00

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle Southeast, Bin A02 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: 00-000131

Orders for Case No: 00-000131