STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM ROBINSON, )

)

Petitioner, )

vs. ) CASE NO. 90-2407

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on July 31, 1990, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: William Robinson, pro se

Foundation for Learning 1489 S. University Drive Plantation, FL 33324

For Respondent: John W. Hedrick, Esquire

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner should be awarded credit for his answers to five (5) questions on the September, 1989, Florida Behavior Analysis Certification Examination.

PRELIMINARY STATEMENT

The Department of Professional Regulation, which administered the September 19, 1989, Florida Behavior Analysis Examination on behalf of the Department of Health and Rehabilitative Services, notified Petitioner that he failed to achieve a passing grade on that examination and Petitioner requested a formal hearing regarding his answers to a number of questions on that examination.

This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

The Petitioner testified on his own behalf. The Respondent presented the testimony of Dr. James M. Johnston and Dr. Niece Loewe. Respondent's composite exhibit numbered 1 was admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner sat for the Florida Behavior Analysis Certification Examination administered on September 19, 1989. He failed to achieve a passing score on that examination.

   
   

2. At the final hearing, Petitioner challenged the score he achieved on that examination by raising a general challenge to the essay portion of the examination and by challenging the score given for his answers to questions numbered 60 on Part I, and his answers to questions numbered 11, 36, 42, and 43 on Part II of the examination.

   
   

3. Part I, Item 60, was correctly answered as "C" rather than Petitioner's answer of "B" because raisins and water are quickly consumed, minimally interfere with ongoing training activity and, therefore, would be an excellent functional reinforcer. However, reading would take much longer and is counterproductive since reading is a quiet, non-physical activity, and the staff member is trying to increase the client's physical movement.

   
   

4. Part II, Item 11, was correctly answered with "A" instead of Petitioner's choice of "C" because "A" is a statement of a goal, which is a general statement. "C" is a good example of an objective because it includes specified criteria and time scales. The question asked for a goal.

   
   

5. Part II, Item 36, asks which method of staffing violates legal and/or ethical requirements and standards. Respondent's expert admitted that the question was not well constructed and that answer "B" which was keyed as the correct answer is not correct. Respondent argues that solution "C" is the best answer since it violates the most legal and ethical standards. However, the question does not request the solution which violates the most legal and ethical standards. Since solution "C" and solution "A" chosen by Petitioner both violate legal and/or ethical requirements and standards", both "C" and "A" are correct answers.

   
   

6. Part II, Item 42, is correctly scored as "B" rather than Petitioner's choice of "A" because "B" specifies the particular behaviors that the staff should be engaging in so that the monitoring or supervisory staff can observe a staff member and then mark on a checklist whether those specific behaviors did or did not occur. Answer "A" does not specify the particular staff behaviors being observed, and it uses a rating system which has inherent problems because different meanings can be attributed to each rating description.

   
   

7. Part II, Item 43, is correctly scored as "A" rather than "C" as chosen by Petitioner. "A" specifies checking the staff behavior according to performance criteria on a monthly basis and is positively oriented by giving positive reinforcement for competent performance, giving corrective feedback, and requiring performance to improve to specified criteria. "C" does not describe the monitoring process, does not specify frequency, does not specify giving corrective feedback, and provides for praising only limited behaviors.

   
   

   CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

9. The burden of proof is on Petitioner to show that the questions he has challenged are either ambiguous or have an incorrect solution. Accordingly, Petitioner is required to show that the question could reasonably be interpreted in more than one way or that Respondent's solution is erroneous and Petitioner's solution is correct. As to Item 60 on Part I and Items 11, 42, and 43 on Part II, Petitioner has failed to prove that any of those questions could reasonably be interpreted in more than one way or that Respondent's solution was erroneous and Petitioner's solution was correct.

   
   

10. However, as to Item 36, Part II, Petitioner has met his burden of proof. The correct answer to the question was originally keyed as "B". Respondent's expert at final hearing admitted that "B" was not a correct answer and that instead answer "C" was the best answer. Respondent's expert also admitted that the question was not well constructed. The question did not call for the best answer. Both answers "A" and "C" are correct answers. Since Petitioner chose answer "A", which is a correct answer to the question, Petitioner is entitled to be given credit for his answer to Item 36, Part II. f the additional credit given to Petitioner for correctly answering Item 36, Part II, results in Petitioner achieving a passing grade on the Examination, then Petitioner should be deemed to have achieved a passing grade.

    
    

11. As to Petitioner's general concerns regarding the scoring of the essay portion of the Examination, Petitioner's concerns are too general to result in a successful challenge to the grading of that portion of the Examination. His general concerns fail to identify any question for which credit can be given to him; rather, his general concerns involved questions regarding how standardization of the Scoring for essay answers is accomplished. Petitioner failed to identify any point within that process which did not adequately conform with general principles for testing and measurements or which resulted in his essay answers being graded unfairly.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered awarding to Petitioner credit for

his answer to Item 36 of Part II, and rejecting the remainder of Petitioner's challenges to the September 19, 1989, Florida Behavior Analysis Certification Examination.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of September, 1990.

LINDA M. RIGOT

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 21st day of September 1990.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2407

1. Petitioner's first through fourth, sixth, seventh, and eleventh through seventeenth unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument, or conclusions of law.

   
   

2. Petitioner's fifth, eighth, and tenth unnumbered paragraphs have been rejected as not being supported by the weight of the evidence in this cause.

   
   

3. Petitioner's ninth unnumbered paragraph has been adopted either verbatim or in substance in this Recommended Order.

   
   

4. Respondent's proposed findings of fact numbered 1-4, 6, and 7 have been adopted either verbatim or in substance in this Recommended Order.

   
   

5. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the weight of the evidence in this cause.

   
   

6. Respondent's proposed finding of fact numbered 8 has been rejected as being unnecessary for determination of the issues herein.

COPIES FURNISHED:

John W. Hedrick, Esquire Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Building 1, Suite 407

Tallahassee, Florida 32399-0700

William Robinson Foundation for Learning

1489 South University Drive Plantation, Florida 33324

Docket for Case No: 90-002407

Orders for Case No: 90-002407