STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT D. LAWSON, )

)

Petitioner, )

)

vs. ) Case No. 03-3998

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in West Palm Beach, Florida, on January 28-29, 2004.

APPEARANCES

For Petitioner: James Randolph Quick

Driftwood Plaza

2151 South U.S. Highway One Jupiter, Florida 33477

For Respondent: Cassandra Pasley

Senior Attorney Department of Health

Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-4005

STATEMENT OF THE ISSUE

The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation and Periodontal sections of the clinical part of Petitioner's June 2003 Florida Dental License Examination taken was arbitrary or capricious.

PRELIMINARY STATEMENT

By letter dated August 30, 2003, Petitioner challenged the grades that he received on the Patient Amalgam Preparation and Periodontal sections of the clinical part of the June 2003 Florida Dental License Examination. The letter challenges the Patient Amalgam Preparation score of one of the three examiners, who assigned Petitioner a low score because he determined that Petitioner completed the preparation of the tooth without removing all of the caries. The letter challenges the Periodontal score of one of the three examiners, who assigned Petitioner a low score because he determined that Petitioner had left heavy calculus on four teeth. The letter challenges the scoring of a third procedure, but Petitioner dropped the challenge to this procedure prior to the hearing.

Prior to the hearing, Petitioner sought the consolidation of this case with three other cases, also involving dental examination challenges. Respondent opposed consolidation on the ground that consolidation would unnecessarily breach the confidentiality of the examination materials. The Administrative Law Judge denied the motion to consolidate the cases.

By the time of the hearing, two of the three other examination challenges had been dismissed. The parties were prepared to try to conduct the hearing of the remaining case,

DOAH Case No. 03-3955, separately from the hearing in this case. However, to eliminate possible confusion, to reduce the inconvenience to witnesses testifying in both cases, and to avoid the risk of an incomplete record, the Administrative Law Judge ordered that the entire transcript of the testimony of the witnesses would form part of the record in both cases, but the parties would introduce exhibits for each case separately, and each petitioner would be present only during testimony applicable to his case.

At the hearing, Petitioner called nine witnesses and offered into evidence nine exhibits: Petitioner Exhibits 1-9. Respondent called five witnesses and offered into evidence 13 exhibits: Respondent Exhibits 1-13. All exhibits were admitted except Petitioner Exhibits 6 and 9, which were proffered. The Administrative Law Judge sealed Petitioner Exhibits 4-5 and Respondent Exhibits 4-9.

The court reporter filed the transcript on February 16, 2004. The parties filed their proposed recommended orders on

February 26, 2004.

FINDINGS OF FACT

1. Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.94, so he failed the clinical part of the examination.

2. Petitioner has challenged the grades of 2.0 that he received on the Patient Amalgam Preparation and Periodontal sections of the clinical part of the examination. In both sections, the score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. For both procedures, Petitioner challenges only the scores of 0, and he needs two additional points to pass the clinical part of the examination.

3. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring.

4. The two sections that are the subject of this case require the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners.

5. For each section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communication between examiners and candidates is exclusively through monitor notes.

6. For each section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or

1. A score of 3 indicates minimal competence.

   
   

   1. The Periodontal section of the clinical part of the dental examination required Petitioner to debride five teeth. Removing calculus from teeth, especially below the gums, is an important procedure because the build-up of tartar and plaque may cause pockets to form between the tooth and gum. Eventually, the gum tissue may deteriorate, ultimately resulting in the loss of the tooth. Prior to the examination, written materials explain to the candidates and examiners that the debridement is to remove all supragingival and subgingival foreign deposits.

   2. For the Periodontal procedure, Examiners 207 and 296 each gave Petitioner a 3, and Examiner 394 gave him a 0. The scoring sheets provide a space for preprinted notes relevant to

      the procedure. All three examiners noted root roughness. However, Examiner 394 detected "heavy" subgingival calculus on four teeth and documented his findings, as required to do when scoring a 0.

   3. Petitioner contends that two examiners and he correctly detected no calculus, and Examiner 394 incorrectly detected calculus. As an explanation, Petitioner showed that Examiner

      394 knows Petitioner in an employment setting, and their relationship may have been tense at times. However, Petitioner never proved that Examiner 394 associated Petitioner's candidate number with Petitioner. Thus, personal bias does not explain Examiner 394's score.

   4. On the other hand, Examiners 296 and 207 are extremely experienced dental examiners. Examiner 296 has served nine years in this capacity, and Examiner 207 has served ten years, conducting 15-20 dental examinations during this period of time. By contrast, Examiner 394 has been licensed in Florida only since 1995 and has been serving as a dental examiner for only three years.

   5. However, the most likely explanation for this scoring discrepancy is that Examiner 394 explored more deeply the subgingival area than did Examiners 207 and 296 or Petitioner. Examiner 394 testified with certainty that he found the calculus

      at 5-6 mm beneath the gums. This is likely deeper than the others penetrated, but not unreasonably deep.

   6. For the Periodontal procedure, an examiner who found calculus on four teeth would be entitled to award the candidate

      0 points. Examiners may deduct two points per tooth that has been incompletely cleaned, although the lowest score is 0. Examiner 394's score of 0 is therefore legitimate and at least as reliable as the other scores of 3.

   7. The Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth.

   8. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Amalgam Preparation procedure, but this criterion is the only one of importance in this case.

   9. Examiners 207 and 417 each assigned Petitioner a 3 for this procedure, but Examiner 420 assigned him a 0. Examiners

      207 and 417 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 420 detected caries and documented his finding, as required to do when scoring a 0.

   10. As noted above, Examiner 207 is a highly experienced evaluator, but the other two evaluators are experienced dentists. Examiner 417 graduated from dental school in 1979, and Examiner 420 has been licensed in Florida since 1981.

   11. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin.

   12. Examiner 420 testified definitively that he detected caries tactilely, not visually, in Petitioner's patient. This testimony is credited.

   13. It is difficult to reconcile Examiner 420's finding of caries with the contrary finding by the highly experienced Examiner 207. It does not seem especially likely that an experienced dentist would miss decay, especially in the artificial setting of a dental examination, in which everyone's attention is focused on one tooth.

   14. Examiner 207's finding of no caries is corroborated by the same finding of Examiner 417. However, Examiner 417's

       finding is given little weight. She readily suggested that she must have missed the caries. What at first appeared to be no more than a gracious gesture by a witness willing to aid Respondent's case took on different meaning when Examiner 417 testified, in DOAH Case No. 03-3955, first that she had detected visually and then retreated to testifying that she did not know if she had detected caries visually or tactilely--a significant concession because examiners were instructed explicitly not to rely on visual findings of caries.

   15. Returning, then, to the conflict between the findings of Examiner 420 and Examiner 207, substantially unaided by the corroborating findings of Examiner 417, either an experienced, credible dentist has found caries where none exists, or an experienced credible dentist has missed caries. The specificity of Examiner 420's testimony makes it more likely, as logic would suggest, that he did not imagine the existence of caries, and Examiner 207 somehow missed the caries.

   16. It is thus slightly more likely than not that Petitioner failed to remove the caries prior to presenting the patient. More importantly, though, for reasons stated in the Conclusions of Law, Examiner 420, in finding caries, adhered strictly to Respondent's rules and policies for evaluating candidates' work, and his finding was not arbitrary or capricious.

       CONCLUSIONS OF LAW

       
       

   17. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Florida Statutes (2003).

   18. Section 466.066(4)(b)1, Florida Statutes, authorizes the Board of Dentistry to administer a clinical examination to candidates for dental licensure.

   19. Florida Administrative Code Rule 64B5-2.013(1) provides:

       The grading system used during the clinical (or practical) examination for dentistry is as follows:

       1. . Complete failure

       2. . Unacceptable dental procedure

       3. . Below minimal acceptable dental procedure

       4. . Minimal acceptable dental procedure

       5. . Better than minimally acceptable dental procedure

       6. . Outstanding dental procedure

       
       

   20. Florida Administrative Code Rule 64B5-2.013(2)(c) requires an overall average of 3 to pass the clinical part of the dental examination.

   21. Florida Administrative Code Rule 64B5-2.013(4)(b) describes the Periodontal section of the clinical part of the dental examination as follows:

       Periodontal exercise on a patient with a minimum of 5 teeth, none of which shall have a full crown restoration, all of which shall have pockets at least 4 mm. in depth with obvious sub-gingival calculus

       detectable by visual or tactile means and radiographic evidence of osseous destruction; at least one tooth shall be a multi-rooted molar which shall be in proximal contact with at least one other tooth; none of the 5 teeth shall be primary teeth. All calculus appearing on radiographs must be detectable by visual or tactile means.

       1. Definitive debridement (root planing, deep scale, stain removal):

          1. Diagnosis . clinical and radiographic.

          2. Presence of stain on assigned teeth.

          3. Presence of supra-gingival calculus on assigned teeth.

          4. Presence of sub-gingival calculus on assigned teeth.

          5. Root roughness on assigned teeth.

          6. Management of soft tissue is considered adequate in the absence of trauma or mutilation.

             
             

             It is the intent of the Board that each of the criteria are to be accorded equal importance in grading. Equal importance does not mean that each criteria has a numerical or point value but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the judgment of the examiner, could result in a failing grade on the procedure. The criteria do not have any assigned numerical or point value but are to be utilized in making a holistic evaluation of the procedure. However, a grade of zero

             (0) is mandatory if there is gross mutilation of gingival tissue of if

             the candidate fails to attempt or complete the procedure.

   22. Florida Administrative Code Rule 64B5-2.013(4)(a)1 describes the Patient Amalgam Preparation section of the clinical part of the dental examination as follows:

       The grading of the clinical portion of the dental examination shall be based on the following criteria:

       1. Class II amalgam on a patient:

          1. Preparation:

             1. Outline form . all prepared surfaces smooth and acceptable extensions without weakening tooth surfaces.

             2. Depth . adequate shape and form designed to resist functional displacement forces.

             3. Retention.

             4. Mutilation of opposing or adjacent teeth.

             5. Debris removal from cavity preparation.

             6. Management of soft tissue is considered adequate in the absence of trauma or mutilation.

       
       

       It is the intent of the Board that each of the criteria are to be accorded equal importance in grading. Equal importance does not mean that each criteria has a numerical or point value but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the judgment of the examiner, could result in a failing grade on the procedure. The criteria do not have assigned numerical or point value but are to be utilized in making a holistic evaluation of the procedure. However, a grade of zero

       (0) is mandatory if caries remain; if gross overcutting occurs; if mechanical

       exposure occurs; if the preparation is prepared or attempted to be prepared on the wrong tooth or wrong surface; or if the candidate fails to attempt or complete the procedure.

   23. As the applicant, Petitioner has the burden of proving that the scoring of his test was arbitrary or capricious. Espinoza v. Department of Business and Professional Regulation, 759 So. 2d 1250 (Fla. 3d DCA 1999).

   24. A key factor in determining whether the scoring of an examination has been arbitrary or capricious is whether the evaluator deviated from the grading procedures adopted by the sponsor of the examination. See Harac v. Department of Professional Regulation, 484 So. 2d 1333 (Fla. 3d DCA 1986); Topp v. Board of Electrical Examiners for Jacksonville Beach,

       101 So. 2d 583 (Fla. 1st DCA 1958) (dictum).

       
       

   25. Petitioner has failed to prove that the grading of the Periodontal and Patient Amalgam Preparation sections of the clinical part of the dental examination was arbitrary or capricious in any respect. The 0 for the Periodontal procedure is entirely legitimate and probably the correct grade. The 0 for the Patient Amalgam Preparation is legitimate, although this is a much closer call. Most importantly, though, Examiner 420 adhered strictly to all evaluation procedures. Under these circumstances, Petitioner has failed to show that Examiner 420's score of 0 is in any way arbitrary or capricious.

RECOMMENDATION

It is

RECOMMENDED that the Department of Health enter a final order dismissing Petitioner's challenge to the scoring of the clinical part of the June 2003 Florida Dental License Examination.

DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 27th day of February, 2004.

COPIES FURNISHED:

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel 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

James Randolph Quick Driftwood Plaza

2151 South U.S. Highway One Jupiter, Florida 33477

Cassandra Pasley Senior Attorney Department of Health

Office of the General Counsel 4052 Bald Cypress Way, 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-003998

Orders for Case No: 03-003998