STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAIKH ENAYETUL KARIM, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2635

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, Hearing Officer, on March 5, 1987, in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Shaikh Enayetul Karim, pro se

524 Morris Avenue, Apartment 3D Elizabeth, New Jersey 07208

For Respondent: Jeffrey H. Barker, Esquire

Deputy General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

This cause was initiated by the Petitioner, Shaikh Enayetul Karim, to contest the score accorded him on the dental licensure examination. The Petitioner sat for the dental licensure examination administered by the Department of Professional Regulation in December 1985. He received a failing score for the clinical portion of the examination. A passing score on all portions is required for licensure. Pursuant to the Department's rules, the Petitioner's objections to his score on certain procedures of the clinical portion of the examination were reviewed by the Respondent's dental consultant and examination grader. The result of the review was that the consultant agreed with the original grades assigned by the three independent examiners for five of the procedures, but questioned the grades on two of the procedures and recommended regrading them by an additional three independent graders. Upon regrade, the Petitioner's scores were allegedly insufficient to merit a passing score on the clinical portion of the examination. The Petitioner was informed of this and elected to exercise his rights to a Section 120.57, Florida Statutes, hearing, which proceeding was ultimately assigned to the undersigned Hearing Officer.

The cause came on for hearing as noticed, at which hearing the Petitioner presented his own testimony as well as four exhibits which were admitted into evidence without objection. The Respondent presented its composite exhibit 1

consisting of the examination records of the Petitioner, the examination directives and procedures and the examination answer sheet executed by the Petitioner with a certification attached by the Department's custodian of records certifying that the exhibit consists of a true and correct copy of the examination file for the Petitioner for the December 1985 examination.

Additionally, the Petitioner presented his own testimony, and the Respondent presented the testimony of Lucinda Ann Richards, an examination development specialist of the Department and Sue Ellen Hamilton, a dentist and a dental consultant and examiner for the Department, who was one of the examiners who graded and regraded the Petitioner's examination at issue.

The parties availed themselves of the right to file Proposed Findings of Fact and Conclusions of Law at the conclusion of the proceeding, which were timely filed by the Respondent, although Petitioner did not file Proposed Findings of Fact and Conclusions of Law. Those Proposed Findings of Fact and Conclusions of Law submitted are addressed in this Recommended Order and ruled upon specifically in the Appendix attached hereto and incorporated by reference herein.

The issue concerns whether the Petitioner should be determined to have achieved a passing score upon his 1985 dental examination, whether the grading of that examination was fair and reasonable as to the various procedures at issue, and whether he is thus entitled to licensure as a dentist in the State of Florida.

FINDINGS OF FACT

1. Petitioner, Shaikh Enayetul Karim, sat for the dental licensure examination administered by the Department of Professional Regulation in December 1985. The Petitioner received a failing score of "2.85" for the clinical portion of the examination and a score of "78" on the written and oral diagnosis portion. A passing score on all portions is necessary for licensure.

   
   

2. The Petitioner complained of contradictory grading or disparate grades between each of the three examiners for a given procedure. Accordingly, pursuant to Department rules, the Petitioner's objections were reviewed by the Respondent's dental examination consultant as to the following procedures:

   
   

   1. Procedure 2 - amalgam restoration

   2. Procedure 5 - endodontic evaluation (posterior)

   3. Procedure 6 - endodontic evaluation (anterior)

   4. Procedure 7 - cavity preparation

   5. Procedure 8 - onlay wax-up

   6. Procedure 9 - pin amalgam preparation

   7. Procedure 10 - pin amalgam restoration

      
      

3. The Respondent's consultant, Dr. Sue Ellen Hamilton, testified as an expert witness and was one of the three graders on Petitioner's original examination. Upon reviewing the Petitioner's examination and his scores for each procedure, she ultimately agreed with the grade assigned by the three examiners for procedures numbered 2, 5, 7, 8 and 10 above. She questioned the grades for procedures 6 and 9, however, and recommended that those two procedures be regraded by three additional independent graders. Upon these procedures being regraded, the Petitioner's scores still were insufficient to merit a passing score on the clinical portion of the examination. Passing that portion is required to pass the entire examination and to become licensed.

4. Lucinda Ann Richards was accepted as an expert witness in the areas of examination development, evaluation and the administration of examinations. She is an examination development specialist with the Department of Professional Regulation and is a PhD candidate in "testing and measurement," a discipline involving training in the development and implementation of fair examinations which accurately test competency in a field such as dentistry. She established that the examination at issue was developed and administered in accordance with the Department's rules. She particularly described the method of training of examiners to ensure that they grade each procedure tested independently of each other and accord a candidate a fair evaluation, giving a candidate the benefit of the doubt in the case of an answer or procedure in which they feel the scoring thereof is a "borderline" passing or failing situation. She established that the examination is based upon "holistic material," that is, the material for the dental examination is not drawn from one or two schools or methods of dentistry, but rather the material for the examination and the questions and procedures upon which candidates are tested is drawn from all generally accepted schools or methods of dentistry and is graded on the same holistic basis, that is, candidates' answers are accorded passing scores if they are correct under theories or practices of any of the generally accepted schools or methods of dentistry related to the procedure or question posed to the candidate. She established that this holistic grading system is more fair and reasonable for examination candidates who typically are educated at many dental schools in many different states. Fairness of the examination and its grading is additionally ensured by the use of three different independent examiners who each independently grade each question or procedure without consultation with each other. Their grades are then submitted for each procedure and averaged so that the score the candidate obtains is an average score so that the candidate will get the benefit of those examiners who graded a given guest ion or procedure with the maximum grade, a "5" to counter balance an examiner who might have graded the procedure with a "1" or "2."

   
   

5. Thus, as established by witness Hamilton, the grades assigned by the three examiners for procedures 2, 5, 7, 8 and 10 were determined upon review to be correct but, as to those grades for procedures 6 and 9 which Ms. Hamilton determined required regrading, it developed that upon regrading of those procedures he was accorded the same grade on procedure 6, but indeed received a lower grade on procedure 9. Thus, ultimately, the Petitioner's grade on the clinical portion of the examination at issue, upon regrading, was still insufficient to accord him a passing score. Contrary to Petitioner's remonstrances before and at hearing, his score was not sufficient so that one additional point would have passed him, even upon regrading his examination.

   
   

6. Witness Sue Ellen Hamilton was accepted as an expert witness in the field of practice of dentistry and the evaluation of dental examination candidates. She was examiner number "083" who helped grade the Petitioner's original examination and who participated in the review of that examination, when he protested his score to the Department. She found that all the procedures mentioned above put at issue by the Petitioner except procedures 6 and 9, were graded correctly. For instance, she did agree with the Petitioner in her testimony that he identified the "canals" correctly, but the other mistakes on that procedure amply justified the original grade she and the other examiners accorded him. Procedure 8 was not accorded a passing score upon original grading or upon review by Ms. Hamilton. That procedure involved a wax "onlay" which was "waxed up" higher or modeled with a higher dimension than surrounding teeth. Ms. Hamilton established that this was a serious defect which would result in that tooth being the only tooth touching the opposing teeth in both jaws. Witness Hamilton otherwise in her testimony, amply

   established that the grades on procedures 2, 5, 7, 8 and 10 were correct as originally scored and that, upon the regrading she felt required on procedures 6 and 9, that the scores upon regrading were correct.

   
   

7. She established that as to procedure 2, there was a serious defect involving an "open contact," that is, too much space between the teeth of the model. The Petitioner had been dissatisfied with the variation of the three examiners' comments about this procedure. Two of the examiners had criticized the open contact, and the third examiner noted "proximal contour." Ms. Hamilton established that these examiners' comments do not actually oppose each other in their import. It would not be possible to verify the fact of contact or lack of it by an X-ray "because of variances due to angulation" (see Petitioner's Exhibit 1). Ms. Hamilton established, however, that given that there was an open contact situation in the Petitioner's performance of this procedure, the procedure should have a failing grade without having the candidate redo that restoration because of the fundamental and serious nature of this defect.

   
   

8. Concerning procedure 5, the grades given were "3", "5" and "1". Ms. Hamilton agreed with the Petitioner that the canal identification was correct. Even so, the "messial" wall was overextended and slight "pulp horns" were found, on the "lingual" wall. She felt that the grade of "5" accorded by one examiner was overly generous but it should be allowed to balance the grade of "1" given by another examiner so that a fair, holistic evaluation of that procedure was that score originally given, that is, an average of the grades "3", "5" and "1". Accordingly, she recommended no regrading. As another example, upon her review of the Petitioner's response to procedure 6 (grades given were "2", "4" and "3") she found that indeed the preparation was overextended incicsally, as the examiners had found, but she could find no evidence of the under-extension concerning which the Petitioner had been criticized and concedes that maybe examiner number "10" had made an error in making the wrong comment about this procedure. Even so, examiner "10" had given the Petitioner a passing grade on it and in an abundance of caution, Ms. Hamilton recommended that it be regraded since she felt the preparation did not deserve a failing grade. The regrading of procedure 6, however, did not result in increasing the overall score on the clinical portion of the exam to a passing grade. As to procedures 7 and 8, she found the grades were fair for those procedures and should stand. For instance, as to procedure 7, she found that the "axial walls will not draw," which is a defect determined originally by the examiners. As to procedure 8, she found that the "margins were generously bulky and the over-waxed buccal cusp and distal marginal ridge would cause hyperocclusion." She felt the overly generous grades of "3" and "4" accorded by two of the examiners adequately compensated for the low grade of "1" accorded by the third examiner and felt that the grade was fair as to that procedure also. Procedure 9 has already been discussed and Ms. Hamilton recommended a regrade of that procedure, which was done. She felt the grade of "5" accorded by one examiner was overly lenient, did not sufficiently balance the lower grade of "2" given by another examiner, hence the recommended regrading for reasons more particularly described in Petitioner's Exhibit 1. Finally, as to procedure 10, the pin amalgam restoration, all three examiners accorded the Petitioner a grade of "3." Ms. Hamilton, upon a review of these grades and of the procedure performed by the Petitioner found that the margins were bulky on the "proximal and buccal surfaces." The distal buccal cusp was too narrow. In short, she felt that the grades accorded this procedure were justified to begin with.

   
   

9. In summary, as established by Ms. Hamilton, although the Petitioner felt many of the grades were inconsistent and contradictory, it was established that the comments of the examiners were guidelines to show candidates where

   their procedures differed from the ideal situation. Comments are designed to overlap each other for each procedure so each situation is evaluated as completely as possible. It is difficult, given different aspects and interpretations possible for each procedure to have agreement of all three examiners as to scoring on the same procedure. This is why three examiners were used so as to aim for a holistic evaluation of each procedure and to average the number scores accorded by each examiner so as to accord maximum fairness to the candidate. She and witness Richards established that this was done as to each of the contested procedure grades for the Petitioner.

   
   

10. With this type of grading in mind, it was shown that the object of the examination review accorded the Petitioner when he first objected to his grades, is to try to discern if a grade by one examiner is unjustifiably low and is not compensated for by a lenient grade from the other examiner, or examiners, for the same procedure. If one examiner, for instance, accords a grade of "1" for a procedure and other examiner on the same procedure accords a grade of "5", it may be that the grade of "1" is too low but that the grade of "5" is too beneficial to the candidate. Thus, the grades are averaged and the lenient grade is allowed to be averaged with the "too-low" grade, which results in a fair result for the candidate and helps to render the examination as a whole, and each procedure, a fair test of the candidate's overall competence in the field of dentistry.

    
    

11. It has thus been established by Respondent's expert witnesses that the examination development and its administration and method of grading was professionally accurate, fairly took into account, and gave candidates the benefit of, their education in various schools or methods of dentistry, was statistically valid and was free of arbitrariness or caprice.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1985).

    
    

13. Rule 21G-2.013, Florida Administrative Code, requires that an examination candidate achieve a score of "3.0" on the clinical portion of the examination and a grade of "75" on the written and oral diagnosis portion. The Petitioner achieved a score of "78" on the latter portion of the examination, but a score of only "2.85," even upon regrading, on his clinical examination for the reasons delineated in the above Findings of Fact. Accordingly, he cannot be determined to have achieved a passing score on the examination in view of the above Findings of Fact and the unrefuted testimony and evidence of record.

    
    

14. In challenging the licensure examination score, the burden of proving inaccuracy or incorrectness of that score lies with the Petitioner. The Petitioner must establish by a preponderance of the evidence that the examination, its administration, or its grading was unreasonable, arbitrary or capricious as, for instance, by showing that the grading standards in the above- cited rule were not adhered to. If the Petitioner fails to meet that burden, then the Petitioner must fail. Florida Department of Transportation vs. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

15. The Petitioner herein, Shaikh Enayetul Karim, has failed to establish with sufficient credible testimony or other evidence, that the Respondent improperly denied him a license through the entry of a failing grade on the

clinical portion of the dental examination and therefore the entire examination. To the contrary, the preponderance of evidence of record as to this examination establishes that the Petitioner did not demonstrate sufficient, minimal dental skills requisite to establish his minimum competence in the field of dentistry and to justify according him a passing score on the examination. The examination areas or subjects tested and the grading and regrading methods and procedures were in compliance with the above rule.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED that the Petitioner, Shaikh Enayetul Karim, be denied licensure as a dentist in the State of Florida.

DONE and ORDERED this 24th day of June, 1987, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2635

The Petitioner Karim did not file Proposed Findings of Fact and Conclusions of Law in this case. The Respondent Department of Professional Regulation did file Proposed Findings of Fact and Conclusions of Law, all of which were accepted.

COPIES FURNISHED:

Shaikh Enayetul Karim Apartment 30

524 Morris Avenue Elizabeth, New Jersey 07208

Jeffrey H. Barker, Esquire Deputy General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Pat Guilford, Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-002635

Orders for Case No: 86-002635