STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLETTE MICHELE GATWARD,

Petitioner,

vs.

DEPARTMENT OF HEALTH,

Respondent.

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) Case No. 11-1441

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RECOMMENDED ORDER

On April 22, 2011, a formal administrative hearing was held by video teleconference between Tallahassee and Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Colette Michele Gatward, pro se

2212 Margarita Court

Kissimmee, Florida 34741

For Respondent: Morris Shelkofsky, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue in this case is whether Colette Michele Gatward (Petitioner) should receive a passing score on the Florida Dental Hygiene Clinical Examination.

PRELIMINARY STATEMENT

On November 5, 2010, the Department of Health (Respondent) administered the Florida Dental Hygiene Clinical Examination to the Petitioner. The Respondent notified the Petitioner that she had not passed the exam. By letter filed on November 29, 2010, with the Respondent, the Petitioner challenged the scoring of the exam and requested an administrative hearing. The Respondent forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on her own behalf and had Exhibits numbered 1 through 14 and 16 admitted into evidence. The Respondent presented the testimony of two witnesses and had Exhibits numbered 1 through 4 admitted into evidence.

No transcript of the hearing was filed. Both parties filed proposed recommended orders that have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner was a candidate for licensure as a dental hygienist by the State of Florida.

2. All candidates for Florida licensure as dental hygienists are required to pass the Florida Dental Hygiene

   
   

   Clinical Examination. The Petitioner took the exam on November 5, 2010.

3. Information and instructions related to the exam were provided to candidates through a "Candidate Information Booklet" (CIB) that was posted on the Respondent's Internet website approximately 60 days prior to the date of the exam.

4. Candidates were expected to review the information contained in the CIB. The Petitioner was aware of the information in the CIB.

5. Part of the exam required that each candidate perform certain clinical procedures to the teeth of a human patient.

6. The CIB stated that each candidate was responsible for providing their own human patient upon whom the clinical procedures could be performed.

7. A panel of three examiners reviewed and scored each candidate's performance of the clinical procedures.

8. In relevant part, the CIB stated that each candidate must submit a patient with 12 surfaces of explorer-detectable moderate subgingival calculus. An explorer is a piece of equipment used in dental practice.

9. The CIB stated that 6.5 points would be awarded for each of the 12 surfaces of subgingival calculus detected and removed by the candidate during the exam.

   
   

10. The CIB also stated that failure to detect and remove a minimum of nine surfaces of moderate subgingival calculus would result in a candidate receiving less than a passing score on the exam.

11. The CIB specifically stated that "[p]oor patient selection and management is a common reason for examination failure."

12. The Petitioner brought her sister-in-law to the exam to serve as her patient.

13. After the applicable portion of the exam was completed, the panel of three examiners evaluated the Petitioner's clinical performance. Two of the three examiners determined that the Petitioner had detected and removed subgingival calculus from only eight surfaces of her patient's teeth.

14. There was no evidence presented to indicate that the Petitioner neglected to remove subgingival calculus from her patient's teeth.

15. The Petitioner was aware at the time of the exam that her sister-in-law did not have sufficient subgingival calculus to meet the patient requirements for the clinical demonstration.

16. The insufficient degree of subgingival calculus present in the Petitioner's patient prior to the clinical exam precluded the Petitioner from passing the exam.

    
    

17. The Petitioner received a total deduction of 26 points (6.5 points deducted for each of the four surfaces upon which no subgingival calculus was detected) and failed the exam with a score of 74.

18. The Petitioner offered no credible evidence that the panel of examiners improperly reviewed her performance on the exam or that the score she received on the November 5, 2010, administration of the exam was in any manner incorrect.

19. At the hearing, the Petitioner testified that she is licensed as a dental hygienist in another state, that the examinations in both states were conducted by the same regional testing agency, and that the scores from the other state should be accepted by the Respondent for licensure of dental hygienists in Florida. Florida law does not provide for dental hygienist license reciprocity.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 & 120.57(1), Fla. Stat. (2010).

21. The Respondent is the agency responsible for licensure of dental hygienists in the State of Florida. Licensure as a dental hygienist in the State of Florida requires satisfactory passage of an examination. § 466.007, Fla. Stat. (2010).

    
    

22. The examination is administered pursuant to Florida Administrative Code Rule 64B5-2.103. In relevant part,

    rule 64B5-2.103(3)(d)2. specifically requires that, as part of a candidate's demonstration of periodontal skills on a patient, "twelve surfaces with obvious subgingival calculus detectable by visual or tactile means must be identified and treated by the candidate" during the examination.

23. The Petitioner received a score of 74 points on the exam. A score of 75 was required to pass the exam. The Petitioner has the burden of establishing by a preponderance of the evidence that she is entitled to receive additional points sufficient to result in a passing score on the exam. Balino v. Dep't of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977). Fla. Dep't of

Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

In this case, the burden has not been met.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Petitioner's challenge to the scoring of the exam referenced herein.

DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011.

COPIES FURNISHED:

Morris Shelkofsky, Esquire Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

Colette Michele Gatward 2212 Margarita Court

Kissimmee, Florida 34741

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

H. Frank Farmer, M.D., Ph.D., Secretary State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

E. Renee Alsobrook, Acting 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 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: 11-001441

Orders for Case No: 11-001441