STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHIDIEBERE EKENNA-KALU, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2119

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

OPTOMETRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on June 7, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Chidiebere Ekenna-Kalu, pro se

P.O. Box 621507

Orlando, Florida 32862-1507

For Respondent: Vytas J. Urba

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe St. Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to receive a passing grade on her optometry examination.

PRELIMINARY STATEMENT

Petitioner took the examination for licensure as an optometrist from September 22-24, 1990. By Amended Notice datedFebruary 22, 1991, Respondent informed Petitioner that she had passed the Florida law and rules section of the examination, but had failed the pharmacology and ocular disease section, for which she earned 52.5 points, and the clinical section, for which she earned 77 points.

By letter dated March 12, 1991, Petitioner requested a formal hearing.

At the hearing, Petitioner called one witness and offered into evidence four exhibits. Respondent called two witnesses and offered no exhibits into

evidence. All exhibits, which have been sealed to preserve the confidentiality of the test materials, were admitted.

Respondent filed a proposed recommended order. All of the proposed findings are adopted or adopted in substance.

FINDINGS OF FACT

1. Petitioner took the optometry licensure examination on September 22-24, 1991. Following review of her initial scores, Respondent informed her by notice dated February 22, 1991, that she earned 100 points on Florida law and rules, which was a passing grade; 52.5 points on pharmacology and ocular diseases, which was below the minimum passing grade of 70; and 77 points on clinical, which was below the minimum passing grade of 80.

   
   

2. Petitioner challenged her grades on the pharmacology and ocular diseases and clinical portions of the examination. However, at the beginning of the hearing, shedropped her challenge to the pharmacology and ocular diseases portion of the examination.

   
   

3. The clinical portion of the examination is divided into two sections. In the first section, the applicant sees a "patient." Two examiners watch and listen as the applicant examines the "patient," who is unknown to the applicant and has been prepared with certain information. The applicant is graded under various areas within the broad categories of case history, visual acuity, pupillary exam, confrontation visual fields, and extra-ocular muscle balance assessment.

   
   

4. In the second section, the applicant brings with him to the test site his own "patient." Two examiners, who are different from the examiners for section one, evaluate the applicant's ability to use various types of clinical equipment on his "patient."

   
   

5. In the first section, Petitioner challenged the grades that she received for Questions 6, 8-10, and 11, which are all worth two points except for Question 10. Question 10 is worth four points. In the second section, Petitioner challenged the grades that she received for Questions 1-4, which are all worth five points, except for Question 4. Question 4 is worth four points.

   
   

6. Any combination of additional points adding up to two or more would give Petitioner a passing grade on the pharmacology and ocular disease portion of the examination. As noted below, Petitioner received partial credit for certainanswers.

   
   

7. Each of the four examiners completed a scoresheet while grading Petitioner. When no or partial credit was awarded, the examiner would write comments explaining what the problem was.

   
   

8. Testifying for Respondent at the hearing, a licensed optometrist, who was one of the examiners of Petitioner for section two, explained adequately each of the scores awarded Petitioner for each of the challenged questions. He established that the equipment was carefully calibrated prior to each test session and for each individual applicant.

   
   

9. A psychometrician employed by Respondent also testified that she had analyzed the variance of the scores among the examiners, in terms of overall

   scores for all applicants, and found no variances tending to discredit the grades.

   
   

10. The challenged questions and clinical procedures provided a reliable measure of an applicant's relevant ability, knowledge, and skill. Petitioner's grades were a fair evaluation of her performance on the challenged questions.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

12. Respondent is responsible for administering the examination for licensure as an optometrist. Section 463.006.

    
    

13. The requirement imposed upon all examinations for licensure is that they "adequately and reliably measure an applicant's ability to practice the profession regulated by" Respondent. Section 455.217(1)(a). A question or portion of a test may be rendered invalid if the question or test instructions are "substantially insufficient and misleading." Alvarez v. Department of Professional Regulation, 458 So. 2d 808, 811 (Fla. 1st DCA 1984).

    
    

14. Petitioner has failed to show that Respondent improperly graded her on the challenged questions so as to impair the reliability of the examination as a measure of her ability, skill, and knowledge of optometry.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the Board of Optometry enter a final order dismissing Petitioner's challenge to her scores in pharmacology and ocular diseases and clinical portions of the September, 1990, optometry licensure examination.

RECOMMENDED this 19th day of June, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1991.

COPIES FURNISHED:

Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Patricia Guilford, Executive Director Board of Optometry

1940 North Monroe Street Tallahassee, FL 32399-0792

Chidiebere Ekenna-Kalu

P.O. Box 621507 Orlando, FL 32862-1507

Vytas J. Urba

Assistant General Counsel

Department of Professional Regulation 1940 N. Monroe St.

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002119

Orders for Case No: 91-002119