STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT E. McGUIRE, O.D., )

)

Petitioner, )

)

vs. ) CASE NO. 81-354

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in the above styled cause on June 15, 1981, in Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert E. McGuire, O.D., Pro Se

2530 Stern Drive

Atlantic Beach, Florida 32233

For Respondent: Robert D. Newell, Esquire

OERTEL AND LARAMORE, P.A.

646 Lewis State Bank Building Tallahassee, Florida 32302

The issue for determination in this case is whether the Petitioner, Robert

1. McGuire, O.D. is entitled to a passing grade on the State Optometry Licensing Exam administered on July, 1980.

   
   

   Proposed Recommended Orders have been submitted by the parties. To the extent that those proposed findings are not reflected in this order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues for determination here.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner took the optometry examination administered to candidates for certification for licensure to practice optometry in the State of Florida in July of 1980.

      
      

   2. The written portion of the optometry examination consisted of four sections or sub-parts; ocular pathology, theory and practice, pharmacology and laws and rules. The ocular pathology section consisted of 100 written and 20 slide questions. One and one-half hours were allotted for completion of the ocular pathology section. Thirty minutes was permitted for the completion of the slide portions of the ocular pathology sub-part. The written and slide

      portions of the ocular pathology section were separated by the administration of the theory and practice sub-part of the optometry exam, which consisted of one hundred items with one and one-half hours permitted for completion.

      
      

   3. The Petitioner completed the ocular pathology section of the exam and received a final grade of 69. A minimum passing grade of 70 was required by the Respondent on that portion of the optometry exam. Ocular pathology was the only portion of the exam which the Petitioner failed.

      
      

   4. An item analysis of the items on the ocular pathology portion of the examination was undertaken by the Department of Professional Regulation staff subsequent to administration of the examination. The item analysis undertaken was in conformity with standard post-test procedures for determining the validity of test items.

      
      

   5. Following the item analysis review, members of the Board of Optometry who formulated the exam received the item analysis results and recommended to the Board that credit be given to all candidates, including Petitioner, for each item on the ocular pathology portion of the examination which was determined to be invalid. As a result of the Board's authorization, credit was given to all candidates for 22 percent of the examination.

      
      

   6. The ocular pathology portion of the examination had a higher error or adjustment rate than the other subparts of the examination which ranged from 2 percent to 15 percent.

      
      

   7. The points awarded by the Board on the ocular pathology portion of the exam to compensate for invalid test questions were awarded in a manner commensurate with accepted testing techniques for evaluating test questions. Petitioner's score on the ocular pathology portion of the exam was adjusted from

      46 to 58 points following the Board's first authorized analysis. Following a second regrading that the Board authorized to compensate for questions eliminated as a result of examinee review, the Petitioner's score on the ocular pathology portion was again adjusted upward from 58 to 69 points.

      
      

   8. The method utilized by the Department in reviewing examinations authorizes credit for questionable exam items. Such an approach to testing results in scores which are adjusted upward as test items are eliminated. This is a liberal approach to testing philosophy which effectively resolves doubts regarding a correct answer in favor of the examinee.

      
      

   9. Petitioner completed the ocular pathology portion of the examination but did not have sufficient time to review all his responses before turning in the test. Petitioner did not, however, participate in a review of his examination when given an opportunity to do so by the Department within thirty

      (30) days after the announcement of test scores.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause.

   11. Pursuant to Section 455.217, Florida Statutes (1979), the Division of Administrative Services of the Department

       
       

       . . . shall ensure that [licensure] examinations adequately and reliably measure an applicant's ability to practice the profession regulated by the department . . . After an examination has been administered, the board may reject any question which does not reliably measure the general areas of

       competency specified in the board's rules . . .

       
       

   12. The evaluation procedure utilized by the Department and the Board in reviewing the July, 1980, optometry licensing examination followed the above statute by ensuring that only items which "reliably measure" areas of competence be counted on the exam. By giving credit for invalid items the Department and Board followed the least restrictive approach to examination review methodology which effectively gives credit to candidates for all questionable items. Such an approach is illustrated by this case in which the Petitioner's ocular pathology examination grade was readjusted upward by over 20 joints following completion of the review process.

       
       

   13. Accordingly, the Petitioner has failed to demonstrate by substantial and competent evidence that the Respondent unfairly formulated, administered, graded or reviewed the ocular pathology portion of the July, 1980, optometry examination.

RECOMMENDATION

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

That the Department enter a final order denying the Petitioner's request that his score pathology portion of the July, 1980 optometry examination be adjusted to reflect a passing grade.

DONE and ENTERED this 30th day of July, 1981, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1981.

COPIES FURNISHED:

Robert D. Newell, Esquire OERTEL AND LARAMORE, P.A.

646 Lewis State Bank Building Tallahassee, Florida 32302

Robert E. McGuire, O.D. 2530 Stern Drive

Atlantic Beach, Florida 32233

Docket for Case No: 81-000354

Orders for Case No: 81-000354