3

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEXANDER JOHN LUISI, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1574

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on September 15 and 16, 198, in Naples, Florida.

APPEARANCES

For Petitioner: Tracy H. Bolesky, Esquire

1169 Eighth Street, South Naples, Florida 33940

For Respondent: John E. Griffin, Esquire

Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301

BACKGROUND

By petition filed herein, Petitioner, Alexander John Luisi, seeks to challenge a failing grade received on the December, 1981, examination for licensure as a dentist by Respondent, Department of Professional Regulation, Board of Dentistry. The petition generally alleges that Petitioner was a candidate on the December, 1981 dentistry examination; that he was given a failing grade on the practical or clinical portion of the examination; that subsequent efforts to have his grade changed to passing were unsuccessful; and that because of several deficiencies in the manner in which the examination was administered and graded, he is entitled to a passing grade. Specifically, Petitioner contends (a) the Board failed to implement the examination grading system required by Rule 21G-2.13, Florida Administrative Code, in scoring the examination; (b) that in seven instances the Board examiners used criteria not set forth in Rule 21G-2.13, supra; (c) that Petitioner was penalized twice for the same mistake on three occasions; (d) that insufficient opportunity was afforded Petitioner to have the review coordinator discuss and explain his grievances; (e) that the review coordinator failed to accept standard diagnostic materials that refuted the claims of the examiners; (f) that Petitioner was penalized for examination material broken by the examiner; (g) that Respondent failed to keep all test materials, records and exhibits for two-years as required by law (Section 455.217, Florida Statutes); (h) that a Board examiner

refused to consider a speech impediment of a patient and instead penalized Petitioner when the patient did not speak clearly; (i) that the examiners did not use a "sufficiently uniform" grading standard; (j) that the grading of Petitioner's examination was arbitrary and capricious; (k) that the examiners failed to properly document in writing on the grading sheet "the less than minimally acceptable scores" as required by Rule 21G-2.17, Florida Administrative Code; (1) that the grades given Petitioner were statistically invalid in contravention of Rule 21G-2.18, Florida Administrative Code; (m) that the methods of grading and grades given violated Section 466.001, Florida Statutes; (n) that the Board failed to conduct a mandatory standardization exercise for all examiners prior to each practical examination as required by Subsection 466.006(4) b(5), Florida Statutes, and (o) that even though Petitioner received a passing grade on the other portion of the examination, his failing grade was not adjusted.

The matter was referred to the Division of Administrative Hearings by Respondent on June 4, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated August 11, 1982, a final hearing was scheduled for September 15 and 16, 1982, in Naples, Florida. At the final hearing Petitioner testified on his own behalf and presented the testimony of Dr. Arthur D. Luisi, Jr., Norman Rex Ashley and Dr. Richard R. Souviron, and offered Petitioner's Exhibit 1-16; all were received in evidence. Respondent presented the testimony of Dr. Park L. Weldy and Michael Hadley Jones and offered Respondent's Exhibit 1 upon which a ruling was reserved.

The transcript of hearing (2 volumes) was filed on November 15, 1982.

Proposed findings of fact and conclusions of law have been filed by the parties on November 24, 1982 and considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Petitioner is entitled to a passing grade on the clinical (practical) portion of the December, 1981 dentistry examination.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. INTRODUCTION

   
   

   1. Petitioner, Alexander John Luisi, is a 1977 graduate of Columbia University Dental School. After graduation, he was a candidate for licensure as a dentist in the State of New Jersey and successfully passed all parts of the Northeast Regional Board Examination on his first effort. Thereafter, he practiced dentistry for four years in Runnymede, New Jersey.

      
      

   2. In November, 1981, Petitioner closed his practice in New Jersey and moved to Naples, Florida where he now permanently resides. In December, 1981 he was a candidate on the Florida Dentistry Examination administered by Respondent, Department of Professional Regulation, Board of Dentistry. The examination contains two parts, a written part and a clinical part. A final score of 3, as a general average, is needed to pass the clinical part of the examination.

      Luisi received a passing score of 86 on the written portion and a failing score of 2.14, as a general average, on the clinical portion.

   3. Luisi sought an opportunity to review his examination with a representative of the Board in Tallahassee, Florida. Efforts to have his clinical grade adjusted upward were unsuccessful. Luisi then filed a petition which precipitated this proceeding. In his petition, Luisi contended generally that two factors required that a passing grade be given him on the clinical part of the examination: (a) the grading by the examiners was not in conformity with Department rules and was mathematically incorrect, and (b) the examiners' criticisms of the procedures employed by Petitioner on the examination were not valid.

      
      

2. THE GRADING OF THE EXAMINATION

   
   

   1. The clinical portion of the examination administered by Respondent in December, 1981 required a candidate to perform eleven procedures.1/ The appropriate weights and percentages of final grade of each procedure are set forth in Rule 21G-2.13, Florida Administrative Code.

      
      

   2. Grades ranging from zero (complete failure) to five (outstanding dental procedure) are assigned to each procedure. An overall average final grade of three (minimal acceptable dental procedures) is required to successfully complete this part of the examination. Petitioner received an overall average final grade of 2.14, which is well below the minimum score necessary for licensure.

      
      

   3. Each examination is graded by three independent examiners. These are selected from a group of Florida licensed dentists who have successfully completed an examiner training program. On the day prior to the examination, all examiners are given an eight hour standardization program conducted by Respondent to promote consistency and objectivity in interpreting and applying the grading criteria. They also take a "dry run" examination on various model procedures supplied by the Board.

      
      

   4. The examiners grade independently of each other and do not know the score any other examiner might have given the candidate. Grading is not done in the presence of the candidate, and only the candidate's number is known to the examiner. In the event two of the three grades given by the three examiners are more than two grades apart, a fourth and fifth examiner are used to grade the procedure.

      
      

3. THE GRADING SYSTEM

   
   

   1. Rule 21G-2.13, Florida Administrative Code, specifies the criteria to be considered in grading each procedure. The rule provides that "[t]he criteria are to be weighted equally" except where a candidate errs in certain defined areas, or fails to attempt or complete a specified procedure. In those cases, a zero grade on the entire procedure is mandatory. Despite this clear and unequivocal language, Respondent did not give equal numerical weight to each of the criteria in grading the various procedures. Had the criteria been graded in such a manner, Petitioner's grade would have been higher. Respondent interprets the language "weighted equally" as not requiring equal point value for each criterion since it claims this cannot be done in dental examinations under current technology and research. Instead, it interprets the term to mean that each criterion is of equal importance, and that if any one is missed to a severe enough degree, it could cause a candidate to fail that procedure. The criteria were therefore graded based upon the examiners' subjective evaluation of the candidates' work using the mandated grading criteria.

   2. The grading sheet for each procedure identifies the procedure being tested, and lists the criteria to be considered. The criteria are also spelled out in Chapter 21G-2, Florida Administrative Code. Underneath the criteria are a number of "comments" which relate to the criteria enumerated on the grade sheet. The examiner then notes each deficiency by blacking out the blank number which corresponds with the particular criterion or comment. Explanatory remarks are also made on the face of the grading sheet where the examiner has given a grade of less than three.

      
      

   3. Petitioner contends the "comments" are "non-legally mandated criteria", and as such, cannot be used as a basis for determining his score since they are not included in the criteria identified in Chapter 21G-2. However, the comments are words or phrases that relate to or further identify the mandated criteria already listed on the grade sheet. Further, they merely amplify the criteria prescribed for each procedure, and are not used to grade down a candidate.

      
      

4. CRITICISMS OF GRADES ON PROCEDURES

1. Each party hired an expert dentist to evaluate the procedures performed by Petitioner on the examination. Their purpose was to determine if the grades given by the examiners were arbitrary and capricious. They also assigned the grades that they would have given had they graded the examination. The grades given by the two experts obviously differed, with one awarding Petitioner a passing grade, and the other generally agreeing with the results of the examiners.

   
   

2. Although both dentists were well-qualified, and had excellent credentials in the field of general dentistry, the Board's expert had done research and consulting work in the area of clinical dental examinations had conducted the examiner standardization for the dental examination in question; and had consulted with several other state dental licensing boards. Petitioner's witness had no such comparable experience, had never been an examiner at a state licensing examination, and had never been standardized for one.

   
   

3. Of the eleven procedures in question, procedures 3 through 7 were required to be performed on a live patient. The remainder were performed on mannequins (dentoform) . None of the patients were present at the final hearing. Instead, Petitioner relied upon patient radiographs (x-rays) and the wax rims used to prepare and construct the dentures. Without the live patients being present and examined by the parties, one could not reasonably and accurately determine whether the deficiencies noted by the examiners on these procedures were wrong or right. Therefore, the grades given by the examiners on procedures 3 through 7 were not shown to be arbitrary or capricious.

   
   

4. On procedure 1, candidates were required to open into the pulp chamber and expose the root canals of a natural posterior molar placed in a model jaw. They were instructed that each canal be clearly visible and opened sufficiently so that a number 30 file could be placed in each canal. Petitioner received scores of 3, 3 and 3, or a final average grade of 3 on the procedure. The evidence is conflicting as to whether errors in the procedure existed, but it is found that there was poor outline form on the tooth as well as gouges. Under these circumstances, a grade of 3 was not arbitrary or capricious.

   
   

5. Procedure 2 required a candidate to open into the pulp chamber and expose the root canals of a natural anterior tooth placed in a model jaw.

   Again, the candidates were instructed that each canal be clearly visible and opened sufficiently so that a number 30 file could be placed in each canal. Petitioner received scores of 1, 3 and 2 for a fin1 average grade of 2.

   Deficiencies noted by the examiners included gouges and poor outline form. These were demonstrated to be present by Respondent's expert witness, and it is found that the grade received by Petitioner was not arbitrary or capricious.

   
   

6. In order to satisfactorily pass procedure 8, candidates were required to prepare a MOD onlay protecting buccal and lingual cusps on an ivorine tooth in a dentoform contained in a mannequin. Petitioner received grades of 0, 0, 3,

   1 and 0, or an overall average of .8 for the procedure. In addition to noted deficiencies relating to outline form, retention form and marginal finish, several examiners concluded that the preparation more closely resembled a 3/4 crown than an onlay. Because of this, he received a zero grade.

   
   

7. The tooth used by Petitioner was fractured, although this occurred after the model was turned in to the examiners. However, this did not contribute to the low score received on the procedure. The basis for the zero grade stemmed from the examiners' conclusion that Petitioner had performed a 3/4 crown preparation rather than preparing an onlay. Therefore, the grade was not arbitrary or capricious, and should not be disturbed.

   
   

8. The next procedure (9) required the candidates to prepare a mesial occlusal distal onlay to be seated on their previously prepared ivorine tooth. Petitioner received grades of 2, 0 and 1 for a final average of 1. The following deficiencies were noted by the examiners: casting not seated, poor margins, functional anatomy, proximal contour, and surface finish. Although the tooth was fractured, this did not hinder the examiners in making proper determinations in the areas previously noted. The errors were confirmed by Respondent's expert witness. Accordingly, it is found that the grade received by Petitioner was not arbitrary or capricious.

   
   

9. Procedure 10 involves the preparation of an ivorine tooth designated at the time of the examination for the placement of a pin amalgam. The type and number of pins was left to the discretion of the candidates. Petitioner received scores of 4, 3 and 2, or an average final grade of 3. Petitioner was downgraded for depth of preparation, outline and retention form. These errors having been demonstrated by Respondent's expert, the grade should not be disturbed.

   
   

10. The last procedure required a candidate to restore a pre-cut ivorine tooth in a dentoform with an amalgam restoration with the use of a pin for the restoration being optional. Petitioner received grades of 3, 2 and 2, or a final average of 2.33 on this procedure. The parties agree that an error in the "margin" occurred, but disagree as to the significance of that error. Because it was shown that the error could increase the probability that recurrent decay would develop in the tooth, the comments and grades on the procedure are found to be correct.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

12. When an applicant challenges the grades he received on a professional licensing examination he must show by a preponderance of evidence that the

    grades in issue were arbitrarily or capriciously given by the examining agency. State ex rel Glasser v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). See also In re Altchiler, 4 FALR 724A (Fla. Bd of Dentistry, Final Order dated 1/16/82); In re Chokhawala, (Fla. Bd of Dentistry, Final Order dated 11/15/82). Absent some showing that the examining agency failed to follow standard procedures for conducting and/or grading the examination, or that the candidate was treated differently from other examination candidates, test results will not be disturbed. In re Corda, (Fla. Bd. of Architecture, Final Order dated 9/28/82).

    
    

13. Although a number of contentions were raised in the petition, they may be grouped into two broad areas. First, Petitioner contends that his examination was not graded in accordance with Board rules. Specifically, he contends that Rule 21G-2.13, Florida Administrative Code, requires that each criterion be given equal weight unless otherwise prescribed. The rule itself provides that "[t]he criteria are to be weighted equally" except that a grade of zero is mandatory if certain errors occur, or if the candidate fails to attempt or complete the procedure.2/

    
    

14. It has long been settled that in construing administrative rules and regulations, the established interpretation of an agency's own rule or regulation should be accorded great weight and should be controlling unless it is plainly erroneous or inconsistent. U.S. v. Larionoff, 97 S. Ct. 2150, 2155 (1977); Miami Beach v. Miller, 122 So.2d 578, 581 (Fla. 3rd DCA 1960); Louisville and N.R. Co. v. Speed-Parker, Inc., 130 Fla. 439, 137 So. 724, 731 (1931).

    
    

15. In the case at bar the regulation in question provides that each criterion shall be "weighted equally". Within the context of this proceeding, the normal and generally accepted meaning of that term is that each criterion shall be given equal numerical or point value when grading a candidate's examination. To place any other interpretation upon the term would be plainly erroneous and inconsistent with the clear and express terms of the rule. While Respondent contends that it is technically impossible to structure an examination in this manner, and that a literal interpretation of the rule would not be practical, the fact that the rule is "burdensome" is no excuse to ignore it. Cf. Kibler v. Department of Professional Regulation, 418 So.2d 1081 at 1084 (Fla. 4th DCA 1982). Further, if Respondent wishes the criteria to be of equal importance rather than equally weighted in terms of grading, it could easily amend the rule to provide that clear and unequivocal meaning. Because the Board's interpretation of the rule is plainly erroneous and inconsistent, Petitioner's examination should be regraded and each criterion "weighted equally" as required by its rule.3/ Larionoff, Miami Beach, and Speed-Parker, supra.

    
    

16. The ancillary contention of Petitioner that Respondent used non- mandated comments in determining his grade is rejected as being contrary to the evidence in this proceeding.

    
    

17. Petitioner next contends the deficiencies noted on his examination were not valid, and indeed were arbitrary and capricious. But in order to pass muster on this contention, something more must be shown than simply producing one expert witness who disagrees with the results of an unbiased, standardized examiner. Instead, it must be affirmatively demonstrated that the examiners acted in an arbitrary or capricious manner when grading the examination of Petitioner. Having failed to do so, this contention must fail. In re Altchiler, supra; In re Chokhawala, supra.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent regrade Petitioner's examination and give equal

numerical value to each criterion; all other requests for relief should be DENIED.

DONE and ENTERED this 9th day of December, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 9th day of December, 1982.

ENDNOTES

1/ These are endodontic access preparation (posterior tooth), endodontic access preparation (anterior tooth), amalgam cavity preparation, final amalgam restoration, occlusal registration and transfer, denture pressure and articulation, periodontal evaluation, cast gold cavity preparation, final gold restoration, pin amalgam preparation, and pin amalgam final restoration.

2/ The same instruction relative to grading is found in Rule 21G-2.19, Florida Administrative Code.

3/ Respondent offered a certified copy of the minutes of the Board's meeting held on July 30, 1982 as Respondent's Exhibit 1. The exhibit was offered for the purpose of demonstrating that the Board construed its rule in the same manner as was advocated in the case at bar. However, this "official expression of interpretation" was made after petitioner's examination was graded, and there was no evidence that the same "policy" was in effect in December, 1981.

Further, petitioner cited no Board orders or decisions that formally express this interpretation. Finally, as noted in the main text of this order, such an interpretation is plainly erroneous and inconsistent with the clear language of the rule. Because the exhibit is irrelevant to a determination of the issue, Petitioner's objection thereto is hereby sustained.

COPIES FURNISHED:

Tracy H. Bolesky, Esquire 1169 Eighth Street, South Naples, Florida 33940

John E. Griffin, Esquire Department of Legal Affairs Room 1601 - The Capitol Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001574

Orders for Case No: 82-001574