STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PRAFUL N. PATEL, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0588

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 6, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: James Sweeting, III, Esquire

2111 East Michigan Street, Suite 210

Orlando, Florida 32806

For Respondent: E. Harper Field

Deputy General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The issue presented for consideration is whether the grading of the Petitioner's performance in certain portions of the June 1988 state dental clinical examination was erroneous.

PRELIMINARY STATEMENT

Petitioner testified on his own behalf and had two exhibits admitted into evidence. Respondent presented the testimony of Ansu Mason and Peter Keller.

Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, a candidate for licensure as a dentist, was administered the state Dental Examination in June 1988. A part of the exam, the clinical portion, requires that each candidate perform specified procedures on a human patient.

2. The exam procedures are performed in a clinical setting. A floor monitor is present during the examination. After each procedure is performed, the monitor escorts the patient to a grading room.

   
   

3. In the grading room, three examiners separately and independently review each candidate's performance. The examiners generally do not discuss or otherwise communicate their opinions or the grades awarded other than to note such on the grading sheet completed by each examiner.

   
   

4. The examiners are Florida-licensed practicing dentists. Prior to the examination, the examiners participate in a training session designed to provide a standardized, uniform reference for grading the results of a candidate's performance on the clinical exam.

   
   

5. Each examiner awards a numerical grade between 0 and 5 for each procedure. The grade for each procedure reflects an evaluation of the whole of a candidate's performance. Comments are made by each examiner on the grading sheet, either through marking in a computer-scored portion on the sheet, or by written notes outside the computer-scored area. The criteria for each possible grade is as follows:

   
   

   0--complete failure

   1--unacceptable dental procedure

   2--below minimal acceptable dental procedure 3--minimal acceptable dental procedure

   4--better than minimal acceptable dental procedure 5--outstanding dental procedure

   
   

   The three scores awarded by the examiners are averaged to provide the grade for each procedure.

   
   

6. Each candidate is identified on the grading sheet by number so as to prevent an examiner from knowing the identity of the individual candidate being reviewed. Each examiner is also identified by number. Examiners are assigned to grade a candidate through a random selection process.

   
   

7. The test monitor is responsible for collecting the grading sheets after each examiner has completed the review. After the grading process is complete, the patient is returned to the clinic for performance of the next procedure.

   The grading process is repeated for each step.

   
   

8. The Petitioner challenges the scores awarded to two of the ten procedures performed as part of the clinical exam. Procedure number two on the exam, the amalgam cavity prep, provides for the preparation of a decayed tooth for filling. Procedure number three, the final amalgam restoration, provides for the filling of the prepared cavity. The two procedures account for 20% of the total points on the clinical examination, divided between procedure two (two-thirds) and procedure three (one-third).

   
   

9. On procedure number two, the Petitioner received a grade of 3 from examiner 133, a grade of 4 from examiner 194, and a grade of 0 from examiner

192. Examiner 192 noted that caries remained present in the prepared tooth cavity. Neither examiner 133 nor examiner 194 noted remaining caries, although both identified other areas of concern regarding the candidate's performance. According to the examination rules of the Department, a grade of 0 is mandatory if caries remain after completion of the procedure.

1. There was no evidence to indicate that the review and scoring by examiner 192 was erroneous, beyond the fact that other examiners did not note remaining caries. It is possible, according to expert testimony, for one examiner to identify remaining caries which other examiners fail to discover. The remaining decay can be dislodged by one examiner in reviewing the procedure and therefore not visible to subsequent examiners, or the decay, loosened by the procedure, can be otherwise displaced within the patient's mouth between examinations.

   
   

2. On procedure number three, the candidate received a grade of 3 from examiner 101, a grade of 4 from examiner 052, and a 0 from examiner 192. Examiner 192 noted that the functional anatomy, proximal contour, and margin of the amalgam restoration were deficient, further noting that a cervical shoulder existed and that the prepared area was not filled.

   
   

3. The evidence did not indicate that the grade awarded by examiner 192 for procedure number three was erroneous or mistaken. According to the evidence, including expert testimony based upon a review of x-rays taken subsequent to completion of the procedure, the grade awarded by examiner 192 was appropriate.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Persons desiring to become licensed as dentists in Florida must apply to the Department of Professional Regulation for licensure. As part of the licensing process, applicants are required to take and pass a clinical examination. Section 466.007, Florida Statutes. The examination is administered according to Chapter 466, Florida Statutes, and Chapter 21G, Florida Administrative Code. The evidence did not establish that administration of the June 1988 examination failed to conform to the requirements set forth in statute and rule.

   
   

6. In an administrative challenge to the results of an examination grading process, an applicant must establish by a preponderance of the evidence that the scoring of his exam was erroneous and that the exam responses should receive additional consideration. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA 1977). The burden has not been met. The evidence did not establish that the grading of the two procedures was incorrect or otherwise inappropriate.

The Petitioner asserts that the fact that one examiner awarded grades which were lower that the grades awarded by the two other examiners indicates that the lower grades are incorrect or erroneous. The suggestion is that it is highly improbable, perhaps statistically impossible, for a candidate to receive a score of 3 or 4 from two examiners and a 0 from the third. Yet, such evidence provides no more support for the Petitioner's assertion than it does for the proposition that it is the higher grades which are incorrect.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Professional Regulation, Board of dentistry enter a Final Order dismissing the Petitioner's challenge to the grading of the two clinical procedures on the June 1988 dental examination.

DONE and RECOMMENDED this 7th day of July, 1989, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July,

APPENDIX

CASE NO. 89-0588

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows:

1. Rejected. The evidence did not establish that procedure number two is weighted more than all other procedures, but did indicate that procedures performed within the oral cavity are more heavily weighted that procedures performed outside the cavity. Procedures two and three are both performed within the oral cavity. Procedure two is, and, totaled, constitute 20% of the clinical examination. Procedure two provides two-thirds of the 20%, with procedure three providing one-third of the 20%.

   
   

2. Rejected, restatement of testimony. The appropriate criteria for the 0-5 grade scale is as stated in Rule 21G-2.013 Florida Administrative Code.

   
   

3. Rejected, not supported by weight of evidence. Both examiners noted comments on the grading sheet, either through marking within computer-scored area or by writing additional comments on the grading sheet.

1. Rejected. The evidence did not indicate that it was "customary" for examiners to pass notes through monitors to the candidate. The witness testified that, on occasion, he had passed notes to monitors when he gave a score below three on the referenced procedures. However, there is apparently no requirement that examiners inform candidates, through monitors, of problems which are found during the grading of the candidate's work.

2. Rejected, irrelevant. There is no requirement that the candidate should have been informed of the acceptability of his work or of his scores during the procedure.

   
   

3. Rejected, not supported by weight of the evidence. The fact that one examiner identifies specific problem areas which are not identified by other examiners does not indicate that the scores are erroneous or that the standardization process undergone by the examiners was deficient.

   
   

4. Rejected, conclusion of law.

14-15. Rejected, goes to weight accorded testimony of referenced witnesses.

Respondent

The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows:

4. Rejected, irrelevant.

9. Rejected, as to characterization of Petitioner's testimony.

COPIES FURNISHED:

James Sweeting, III, Esquire

2111 East Michigan Street, Suite 210

Orlando, Florida 32806

E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0729

Docket for Case No: 89-000588

Orders for Case No: 89-000588