vs. ) CASE NO. 77-1744
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on March 27, 1978 at Tallahassee, Florida.
For Respondent: Thomas M. Beason, Esquire
By Amended Request for Hearing filed December 9, 1977, Arnaldo Odio, D.D.S., Petitioner, seeks to have the results of the mannequin examinations taken by him in December 1974, March 1975 and December 1975, in which he was advised by the Florida State Dental Board, Respondent, that he failed, set aside. As grounds therefor it is alleged the grading system used by Respondent was arbitrary, capricious, and contrary to law, thereby depriving Petitioner an opportunity to obtain a license to practice dentistry in Florida.
Three witnesses were called by Petitioner and 12 exhibits were offered into evidence, including the depositions of two dentists, one a member and the other a former member of the Florida Board of Dentistry. Objections to Exhibits 1, 2, 9, and 10 on grounds of relevancy and materiality were overruled subject to the relevancy of these exhibits being shown by other evidence. Ruling on the objection to Exhibit 6 on grounds of relevancy was reserved at the hearing. A review of Exhibit 6 discloses it to be a letter from Dr. Odio's attorney alleging that the examiners and the Florida Board of Dentistry erred in assigning Dr. Odio a failing grade and requesting a hearing. The letter further requested to see the original of Dr. Odio's examination scores. This hearing was held following the filing of the Amended Petition for Hearing and, since
Exhibit 6 has no probative value, the objection to its admission is hereby sustained.
At the completion of Petitioner's case Respondent offered no evidence.
Arnaldo Odio, D.D.S. received his education and dental training in Cuba, completing dental school there in 1942. Thereafter he was in private practice with his uncle in Havana, Cuba for about 5 years following which he worked at a government tuberculosis hospital until he came to the United States in 1965.
At the time of Dr. Odio's arrival in the United States, Florida, as well as most of the other states, did not allow applicants for dental licensure to qualify based upon graduation from a foreign dental school.
Upon his arrival in the United States Odio operated a dental laboratory in the Miami area. He applied for admission to various U.S. dental schools but apparently was not accepted.
In 1970-71 New York changed its law to permit foreign graduates to qualify for licensure and Odio made application, took the necessary tests, and was admitted to practice in New York. He is currently practicing dentistry in New York.
Chapter 72-185 Laws of Florida, 1972, deleted the requirement that graduates of foreign dental schools must, prior to examination, graduate from a United States school and substituted the provision that an applicant graduating from a foreign dental school may qualify for the examination for licensure by passing the National Board of Dental Examiners' examination and exhibiting manual skills on a laboratory model to the satisfaction of the Board. The exhibition of manual skills is called the mannequin examination and consists of work done on extracted human teeth inserted in a model upon which the applicant performs dental work without risk of harm to a patient.
Having passed the National Board in 1970 or 1971 Odio applied to take the mannequin examination in Florida.
Only after successfully completing the mannequin examination is an applicant deemed qualified to sit for the licensure examination which is comprised of a written portion as well as a clinical portion where work is performed on live patients. There is currently no limit on the number of times an applicant may take the mannequin examination.
Dr. Odio took the mannequin examinations in December 1974, March 1975, and December 1975 and was informed after each examination that he had failed to attain the minimum qualifying score. It is these failures Dr. Odio is here contesting.
The examiners for the mannequin examination are selected from the eight members of the Board of Dental Examiners. Before instituting these mannequin examinations the Board consulted professionals in the field of examining procedures and followed the recommendations so received.
The evening before each examination is given the examiners go through a training session in which they are shown dental work and each assigns a grade
which they later defend at a group meeting against the grades assigned by other examiners. This process is repeated several times, after which the grades become more uniform. By this procedure divergences in examining techniques are minimized.
Before the examination each applicant is given an instruction sheet in which the procedures to be followed, the work that must be performed, and the grading procedures are explained. Dr. Odio testified that he fully understood the steps he was required to complete, and which dental procedures were expected for each grade assigned.
During the course of the examination, at the times taken by Odio, the applicant performed three basic procedures and received seven grades. The range of scores on each step graded is from 0 to 5, with a score of 3 representing a passing grade of 75 percentile. This scoring system was adopted as a result of the recommendations of the examining professionals employed to help set up the examination scoring procedures.
Two examiners assign a grade for each procedure completed by an applicant. The mannequin examinations are conducted in a room similar to a teaching dental laboratory with work space for each applicant and the examiners at the front of the room.
No time limit is set for each procedure, but the applicant is given the full working day from 8:30 A.M. to 6:00 P.M. with one hour off for lunch to complete the examination.
As each of the steps upon which the applicant is graded is completed, he takes his mannequin to an examiner who, after examining the work done, assigns a grade. The applicant then must have the procedure graded by a second examiner.
After the examinations are completed the original examination score sheets are forwarded to a grading service where the scores are totaled and the applicant advised of his score. Before the originals are sent the Board makes a xerox copy of each examination sheet in case the originals are subsequently lost or misplaced. This copy is retained by the Board.
The examiners' scores for each procedure are averaged to obtain the applicant's grade on that procedure. A failing grade of 2 on one procedure could be offset by a grade of 4 on another procedure to attain a passing grade of 3.
Since one score is assigned for the preparation of the tooth for filling and a second score assigned after the tooth has been filled, the filling would preclude reevaluation of the score assigned for preparation. Accordingly retention of the mannequins after the work was graded would serve no useful purpose.
Following two of Dr. Odio's mannequin examinations he met with a member of the Board who went over the grade sheet with Dr. Odio to show how the final score was computed. Odio's testimony that these members could not advise specifically why he received a failing score would not be unexpected. The examiners occupy positions similar to judges in a talent show or in a figure skating competition where marks are assigned on observed performance. Certain performances would be expected to be found substandard and others excellent and a third party could not look at a score sheet and say why.
On each grade sheet the various factors that are to be considered by the examiner are listed alongside each score box. Occasionally the examiner will place a check mark alongside the factor wherein he considered the applicant's work to be deficient.
Petitioner presented a summary of the grades assigned at the mannequin examinations in March and December, 1975. These show that of the 25 examination scores of the 7 procedures graded (March 1975) the two examiners assigned different grades a total of 74 times. These grades varied by more than one point only 10 times. Similarly on the December 1975 mannequin examination, the examiners differed by 1 point or more 78 times, but on only 6 grades did they differ by more than one point. No particular significance to the variance of these scores was established.
A quick perusal of Exhibit 2, the test sheets for the December 1975 examination indicates that approximately half of the applicants passed the examination.
Once the examination grades are assigned and turned in by the examiner, no changes are made to these scores. The originals of the test scores for the December 1974 and March 1975 mannequin examinations could not be located by Respondent; however, the copies made before the exams were delivered for grading, were produced. The originals of the December 1975 exam sheet except for that of Dr. Odio were produced and a copy of Odio's December 1975 exam was admitted as Exhibit 3. Although Petitioner contends that Respondent erred in failing to maintain these originals for two years as required by the statutes, no prejudice to Petitioner resulting from this error was shown or that this contributed in any manner toward Petitioner's failure to pass these mannequin examinations.
No evidence was presented to indicate that different standards were applied in grading Petitioner than were applied to all other applicants.
Petitioner was approved to take the December 1976 mannequin exam but did not appear. He had received a stab wound in the hand shortly before the exam and did not have the dexterity needed to complete the exam at that time.
Petitioner's proposed findings of fact are generally in agreement with the findings above except that some of Petitioner's proposed findings were not included in the Findings of Fact because they were not deemed material. In the Proposed Findings Petitioner emphasized the discrepancies in the grades assigned by the two examiners and showed that the two examiners grading each step of a mannequin exam were in agreement only some 55 percent of the time and not the 85 percent agreement sought by the board. A review of Dr. Leo Foster's testimony (Exhibit 8) reveals his testimony on p. 12 to be that the grading consistency sought was that the grade given by the two examiners be within one point of each other 85 percent of the time. In the exam in March 1975 where there were 10 differences of more than one point on 175 grades in exam scores given by the two examiners this equals approximately 94 percent agreement. On the December 1975 exam where there were only 6 grades assigned by the two examiners which were more than one point apart the agreement between examiners exceeded 96 percent.
CONCLUSIONS OF LAW
Petitioner qualified to take the mannequin examination in accordance with Section 466.13 Florida Statutes, which provides in pertinent part:
Graduates of foreign dental colleges or schools not approved by the board shall furnish evidence of achievement of a score on the examination of the National Board of Dental Examiners at least equal to the minimum score required for certi- fication by that board, and shall exhibit manual skills on a laboratory model to the satisfaction of the board before being eligible for the examination.
Although copies of the rules applicable to the mannequin examination at the time Petitioner took the examination were not presented, the testimony was that the Professional Evaluation score comprised 10 percent of the final grade and the three procedures each counted 30 percent of the final grade. Rule 21G-2.04(3)(c)3 currently in effect provides that the mannequin examination is now comprised of five parts with different weights assigned to each part.
Petitioner cites York v. State 10 S.2d 813 (Fla. 1943) to support his position that failure to keep examination papers for two years as required by law constituted sufficient grounds for requiring the Board to give a passing grade. However, the York case is distinguishable from the instant case principally in that the exam grade complained of in York was on the theoretical portion which was a written examination, York's paper was before the court and the court found York received a passing grade. It was the Board's failure to produce examination papers of other candidates which led the Supreme Court to conclude the lower court "reached a righteous judgment" in issuing the Writ of Mandamas.
The evidence here presented contained no aura of prejudice or discrimination in the grading of Dr. Odio's exam. The examiners before each exam go through the training procedure recommended and twice Dr. Odio was given an audience with an examiner to review his grade. Obviously the exam score sheet or copy was available for those interviews. No prejudice to Petitioner was shown by reason of the Board's inability to produce the originals of the examination score sheet for the December 1974 or March 1975 exam.
Grades given by examiners on the mannequin examination are based, by the nature of the examination, on what the examiner sees and how he interprets this in the light of his training, background, and experience. Since every dentist's experience varies somewhat from the experience of others, some variation in the grades assigned by different examiners would seem to be the natural and expected concomitant of this varied experience. The procedures utilized to make these grades uniform appear to be highly successful in reducing the magnitude of the variations that otherwise might be expected. This is demonstrated by only 6 grade variations of more than one point on some 168 grades assigned (24 x 7) on the December 1974 mannequin examination.
When it is considered that each examiner gives a grade on each procedure and this grade is derived from the examiner's observation of the work performed by the examiner it becomes readily apparent why such a grade is not subject to a subsequent review in the absence of the mannequin or upon the completion of the restoration if it is the grade given for preparation that is contested. The procedures adopted by the Board for conducting these exams were shown to be reasonable and as objective as is practicable when each grade is in the nature of a judgment call.
From the foregoing it is concluded that Petitioner presented no credible evidence that the grades assigned to him, or to others participating in the mannequin examinations with Petitioner, were arbitrary, capricious or otherwise not in accordance with law. It is therefore,
RECOMMENDED that the Amended Petition filed by Arnaldo Odio on December 7, 1977 be dismissed.
DONE and ENTERED this 13th day of April, 1978, in Tallahassee, Florida.
P. O. Box 10069 Tallahassee, Florida 32302
Thomas M. Beason, Esquire Assistant Attorney General Department of Legal Affairs The Capitol
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
