STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CECILIA DIAZ,

Petitioner,

vs.

DEPARTMENT OF HEALTH, BOARD OF DENTISTRY,

Respondent.

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) Case No. 01-3621

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on November 28, 2001, in Tampa, Florida.

APPEARANCES

For Petitioner: Cecilia Diaz, pro se

8810 Memorial Highway

Tampa, Florida 33615

For Respondent: Cherry A. Shaw, Esquire

Department of Health

Office of the General Counsel BIN A02

4052 Bald Cypress Way Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Is Petitioner entitled to receive a passing score on the June 2001 dental licensure examination?

PRELIMINARY STATEMENT

In June 2001, Petitioner took the dental licensure examination. In an examination grade report dated

August 9, 2001, the Department of Health (Department) notified Petitioner that she had failed the June 2001 dental licensure examination.

By an Amended Petition for an Administrative Hearing dated August 31, 2001, Petitioner disputed the Department’s grading of the clinical portion of her June 2001 dental licensure examination and requested a formal hearing. By a Notice dated September 11, 2001, and received by the Division of Administrative Hearings (Division) on September 13, 2001, the Department referred this matter to the Division for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Petitioner testified in her own behalf, but presented no other witness. Petitioner’s Exhibit 1 was admitted in evidence. The Department presented the testimony of Marsha Carnes, William Robinson, and John D. Hutchinson. The deposition of Guillermo “Bill” Rodriquez was received in lieu of his live testimony at the hearing. The Department’s Exhibits 1- 6, 8-11, and 13-15 were admitted in evidence. Chapters 466, 456, and 120, Florida Statutes, and Chapters 28-106, 64B5-1, and 64B5-2 Florida Administrative Code, were officially recognized.

A Transcript of this proceeding was filed with the Division on December 24, 2001. The Department timely filed its Proposed Recommended Order. Petitioner elected not to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida responsible for administering the dental licensure examination.

2. Petitioner was an unsuccessful candidate for the June 2001 dental licensure examination in that she failed the clinical portion of the June 2001 dental examination. Originally Petitioner received a score 1.89 on the Clinical portion, but on re-grade received a score of 2.10. However, a score of 3.00 was required to pass the Clinical portion.

3. The June 2001 dental licensure examination consists of two parts: (1) the Clinical portion; and (2) the Laws and Rules portion. The Clinical portion consists of nine procedures. Petitioner challenges five of the nine procedures, which are:

   (1) Periodontal procedure; (2) Class IV Composite Restoration;

   
   

   (3) Class II Composite Restoration; (4) preparation for a three- unit fixed partial denture; and (5) Class II Amalgam Restoration on a model.

4. The Department selects three examiners to independently grade each candidate’s performance, and the average of the three scores from each examiner produces the overall grade for that procedure. The average grade for each procedure is then weighted in accordance with Rule 64B5-2.013, Florida Administrative Code, which produces an overall score for the entire Clinical portion of the examination. This procedure provides for a more reliable indication of the candidate’s competency.

5. Each examiner must be a licensed dentist for a minimum of five years without having any complaints or disciplinary actions against the examiner’s license.

6. The examiners are not allowed to have any contact with the candidates they are grading.

7. Each examiner must attend, and successfully complete, a standardization session, which trains each examiner to use the same internal grading criteria. In this standardization session, the examiners are thoroughly taught specific grading criteria, which instruct the examiners on how to evaluate the work of the candidates.

8. Examiners numbers 005, 316, 346, 360, 361, and 375, who graded Petitioner’s examination, successfully completed the standardization session. The Department’s post-exam check found these examiners' grading to be reliable.

1. Petitioner received a score of 1.66 on the Class IV Composite Restoration. Petitioner contested this score contending that she was downgraded on this procedure because she mistakenly stained that procedure.

2. The Class IV Composite Restoration consists of the restoration of a chipped tooth. The grading is based on the candidate’s ability to restore the tooth as it appeared before restoration. The goal is to restore the tooth to its proper contact and to restore the contact between the teeth.

3. The fact that Petitioner stained the Class IV Composite Restoration did not result in the examiners downgrading the Petitioner’s procedure.

4. Examiner 005 gave Petitioner a score of 2.00, which was based on the contact being open and not having a flushed fit (marginal error).

5. Examiner 316 gave Petitioner a score of 2.00, which was based on Petitioner’s problems with the functional anatomy, the proximal contour, and with the margin.

6. Examiner 346 gave Petitioner a score of 1.00, which was based on Petitioner’s problems with functional anatomy, proximal contour, and mutilation of opposing or adjacent teeth.

7. Petitioner received a score of 0.00 on the Class II Composite Restoration. Petitioner contested this score contending that she was downgraded twice for the same mistake.

8. A Class II Composite Restoration is a procedure that involves the candidate’s ability to fill an opening inside the tooth with composite, which is a tooth-colored filling.

9. The Candidates were instructed, for security reasons, to place dye in the composite and that failure to place dye in the composite would result in a failing grade. Petitioner failed to place dye in the composite.

10. In addition to his comment concerning no dye in the composite, Examiner 005 also commented that Petitioner’s occlusion was very high, which would result in the premature failure of the restoration. Examiner 005 gave Petitioner a score of 0.00.

11. Examiner 316 also gave Petitioner a score of 0.00, which was based on the absence of dye in the composite and the occlusion being high, which would result in the premature failure of the restoration.

12. Examiner 346 also gave Petitioner a score of 0.00, which was based on the absence of dye in the composite.

13. Petitioner contested the score she received on the Preparation for a 3-unit Fixed Partial Denture procedure claiming that the examiners’ comments regarding insufficient and excessive reduction were conflicting comments.

14. The Preparation for a 3-unit Fixed Partial Denture procedure is a procedure that involves the candidate’s ability

    to replace a missing tooth with a fixed partial denture or fixed bridge. Petitioner received a score of 2.00 on this procedure.

15. A tooth has five surfaces (front, back, top, inside and outside). Therefore, one surface of the tooth may have insufficient reduction, while another surface of the tooth may have excessive reduction. It is not unusual for examiners to see and comment on different errors.

16. Examiner 316 gave Petitioner a score of 2.00 on this procedure because there was a problem with the outline form, insufficient reduction on the preparation and errors on the marginal finish.

17. Examiner 005 gave Petitioner a score of 2.00 on this procedure because there was a problem with the outline form and there was both insufficient reduction and excessive reduction on the preparation.

18. Examiner 346 gave Petitioner a score of 2.00 on this procedure because there was excessive reduction on the preparation, marginal finish, and mutilation of opposing or adjacent teeth.

19. Petitioner contested the score of 0.66 that she received on the Class II Amalgam Restoration on a model procedure. This procedure is similar to Class II Composite, which involves the candidate’s ability to restore a cavity in the tooth so that the finished product restores proper form and

    function to the tooth. The difference is that amalgam rather than composite is used for the restoration. The restored tooth should closely resemble its original size and shape.

20. Examiner 316 gave Petitioner a score of 1.00 on this procedure because there was a gingival overhang on the distal lingual aspect of the restoration, which could cause tooth decay and gingivitis.

21. Examiner 346 also gave Petitioner a score of 1.00 because of problems with functional anatomy, proximal contour, margin, and gingival overhang.

22. Examiner 005 gave Petitioner a score of 0.00 because of problems with proximal contour and gingival overhang.

23. Petitioner contested the score of 1.66 that she received on the Periodontal procedure alleging that she was graded unfairly because she could not remove all of the calculus on this procedure, and that one examiner gave her a score of 3.00.

24. The Periodontal procedure involves the candidate’s ability to completely remove any stains, calculus deposits or any foreign debris from the surface of the tooth.

25. Patient selection is very important for the periodontal procedure. It is the candidate’s responsibility to select a suitable patient as clearly outlined in the Candidate’s

    Information Booklet, which is mailed to the candidate prior to the examination.

26. Petitioner chose a difficult patient, considered to have heavy calculus deposits and severe periodontal disease.

27. Petitioner admitted that she did not remove all of the calculus deposits on her patient.

28. Petitioner failed to present sufficient evidence to show that it was impossible to remove all of the calculus on the patient she had chosen.

29. Examiner 360 gave Petitioner a score of 3.00, but commented that sub-gingival calculus remained on the tooth, and there was root roughness.

30. Examiner 375 gave Petitioner a score of 2.00 because sub-gingival calculus remained on the tooth and there was root roughness.

31. Examiner 361 gave Petitioner a score of 0.00. The basis for this score was that there were heavy deposits of calculus and root roughness on teeth number 19, 29, and 30, and that the procedure was of little value to the patient.

32. The Department provides a re-grade process for all candidates who timely request a hearing. The purpose of the re- grade is to determine if any of the grades rendered were inconsistent. The Department selects the top three examiners

    who had the highest reliability from that examination to participate in the re-grade.

33. On re-grade, Petitioner’s overall grade increased slightly from 1.89 to 2.10 but not enough for Petitioner to receive a passing grade.

34. The Department’s post-standardization statistics of the examiners’ performance indicated that Petitioner’s examiners graded reliably. The post-standardization statistics indicate the examiner’s performance on grading of models during standardization.

35. In addition, the Department calculates post- examination statistics for the examiners who graded the Petitioner’s challenged procedures. They are:

    Examiner Accuracy Index & Rating

    361 94.2 – Very Good

    360 95.1 – Excellent

    375 96.0 – Excellent

    005 94.3 – Very Good

    316 97.0 – Excellent

    346 97.2 – Excellent

    
    

    All examiners’ reliability was significantly above the minimum acceptable accuracy index of 85.00.

    CONCLUSIONS OF LAW

    
    

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

37. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

396 So. 2d 778 (Fla. 1st DCA 1981). Since Petitioner is attempting to establish entitlement to a license to practice dentistry in the State of Florida, Petitioner has the burden in this proceeding. See Rule 28-107.003(3), Florida Administrative Code. To meet this burden, Petitioner must establish facts upon which her allegations are based by a preponderance of the evidence. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern Company, 670 So. 2d 932, 933 (Fla. 1996); and Section 120.57(1)(h), Florida Statutes (2001). Petitioner has failed to meet her burden to show that her examination scoring was flawed, and the Department acted arbitrarily or with an abuse of discretion. See Harac v. Department of Professional Regulation, 484 So. 2d 1333 (Fla. 3rd DCA 1986).

RECOMMENDATION

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

Recommended that the Board of Dentistry enter a Final Order dismissing Petitioner’s challenge to the grades she received on the Clinical portion of the June 2001 dental licensure examination and denying Petitioner licensure as a dentist in the

State of Florida due to her failure to receive a passing grade on the June 2001 dental licensure examination.

DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 31st day of January, 2002.

COPIES FURNISHED:

Cecilia Diaz

8810 Memorial Highway

Tampa, Florida 33615

Cherry A. Shaw, Esquire Department of Health

Office of the General Counsel BIN A02

4052 Bald Cypress Way Tallahassee, Florida 32399-1703

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way BIN A02

Tallahassee, Florida 32399-1701

William H. Buckhalt, Executive Director Board of Dentistry

Department of Health 4052 Bald Cypress Way BIN C06

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way BIN A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 01-003621

Orders for Case No: 01-003621