STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAREN GLASSMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0184

) DEPARTMENT OF PROFESSIONAL ) REGULATION, MENTAL HEALTH )

COUNSELORS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on March 18, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Caren Glassman, pro se

1231 SE 1 Street

Apt. 13

Fort Lauderdale, Florida 33301

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida

32399-0792

STATEMENT OF THE ISSUE

Whether Petitioner's responses to Questions 38, 53, and 71 of the April 1991 Mental Health Counselor's Examination were incorrectly scored. Whether Question 71 of said examination is an improper question.

PRELIMINARY STATEMENT

Petitioner sat for the Mental Health Counselor's Examination administered by Respondent in April 1991. Petitioner timely challenged the scoring of the responses to Questions 38, 53, and 71 of the professional counseling section of the examination. Petitioner also challenged whether Question 71 was impermissibly ambiguous. Petitioner's challenge initially involved several other questions. After having the opportunity to review the questions, Petitioner abandoned all other challenges to the examination. Petitioner failed to achieve a passing score on the professional counseling section of the

examination. Petitioner answered 102 of the 140 questions on the professional counseling section correctly. Had she answered one additional question correctly, she would have passed the professional counseling section of the examination.

At the formal hearing, Petitioner testified on her own behalf and called Joyce Gilbert and Ruth Franzen as additional witnesses. Respondent called Polly Caskie as its only witness. Ms. Gilbert is a licensed mental health counselor. Ms. Franzen is a licensed clinical social worker. Dr. Caskie is a licensed mental health counselor and a licensed marriage and family therapist. All witnesses were accepted as experts in their respective fields of education, training, experience, and licensure. The parties offered four joint exhibits into evidence and Respondent offered three additional exhibits. Petitioner was permitted to file a supplement to Joint Exhibit 4. All offered exhibits, including the supplement to Joint Exhibit 4 filed March 30, 1992, were accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

To preserve the confidentiality of the examination questions, the questions and answers will not be stated verbatim. Joint Exhibits 1-3, the challenged questions, will be considered confidential exhibits and sealed.

FINDINGS OF FACT

1. Petitioner sat for the Mental Health Counselor's Examination administered by Respondent in April 1991. Petitioner was credited with 102 correct answers out of 140 questions on the professional counseling section of the examination. A score of 103 correct answers out of 140 questions was required to pass the section.

   
   

2. Petitioner abandoned all challenges except the challenges to the scoring of her responses to Questions 38, 53, and 71. Petitioner also asserts that Question 71 is unfair because it is ambiguous.

   
   

3. All three of the questions involved in this proceeding are multiple choice questions, each with four possible answers. The candidates are instructed to select the best answer to the question.

   
   

4. Question 38 pertains to an expression used to described adolescence and asks the candidate to select the best answer that explains the meaning of that expression. Petitioner selected multiple choice number 4 as her answer to the question. Respondent established that multiple choice number 1 was the best answer to the question. Petitioner received no credit for her answer to question 38 because she did not select the best answer to the question.

   
   

5. Question 53 pertains to a patient who rambles during an interview and requires the candidate to select from among the four multiple choice answers the best answer that names the technique used by the interviewer to bring the patient back to the main purpose of the discussion. Petitioner selected multiple choice number 1 as her answer to the question. Respondent contends

   that multiple choice number 4 was the best answer to the question. Petitioner contends that multiple choice number 4 is not a technique and that, consequently, number 4 cannot be the best answer to the question. The greater weight of the evidence, including the literature submitted as exhibits by the parties, is that multiple choice number 4 is a technique and that multiple choice number 4 is the best answer to the question. Petitioner received no credit for her answer to question 53 because she did not select the best answer to the question.

   
   

6. Question 71 pertains to an employee at an industrial plant who has sought out the mental health counselor in the employee assistance program. Petitioner contends that the question is ambiguous because insufficient information is given for the reasons the employee sought out the mental health counselor. Respondent established that sufficient information was provided by the root of the question to enable the candidate to select the best answer to the question. Consequently, it is concluded that the question is not impermissibly ambiguous.

   
   

7. Petitioner selected multiple choice number 1 as her answer to Question Number 71. Respondent established that multiple choice number 2 was the best answer to the question. Petitioner received no credit for her answer to question 71 because she did not select the best answer to the question.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1991).

   
   

9. Petitioner has the burden of proving by a preponderance of the evidence that she is entitled to the relief she seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), State ex rel. Glasser v. J.M. Pepper, et al., 155 So.2d 383 (Fla. 1st DCA 1963), and Topp v. Board of Electrical Examiners, 101 So.2d 583 (Fla. 1st DCA 1958). Petitioner has failed to meet that burden.

   
   

10. Section 455.229(2), Florida Statutes (1991), provides, in pertinent part, as follows:

(2) ... If an administrative hearing is held, the department shall provide challenged examination questions and answers to the hearing officer. The examination questions and answers provided at the hearing are confidential and exempt from s. 119.07(1), unless invalidated by the hearing officer. ...

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the validity of

Question 71 and which denies Petitioner's challenge to the scoring of her responses to Questions 38, 53, and 71 of the professional counseling section of the Mental Health Counselor's Examination administered by Respondent in April 1991.

DONE AND ORDERED this 11th day of May, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearing The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1992.

APPENDIX TO RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraph 1 are discussed as preliminary matters. The proposed findings are unnecessary as findings of fact and are, consequently, rejected.

2. The proposed findings of fact contained in the first sentence of Paragraph 2.a.(1) are rejected because they are unnecessary to the conclusions reached. The candidates are instructed to select the best answer to the question. All four choices may be correct answers. While it may arguably be a correct answer, the answer selected by the Petitioner was not the best answer to the question. The proposed findings of fact contained in the second sentence of Paragraph 2.a.(1) are rejected because they are contrary to the findings made.

3. The proposed findings of fact contained in Paragraph 2.a.(2) are rejected because they are subordinate to the findings made.

4. The proposed findings of fact contained in Paragraph 2.a.(3) are rejected because they are contrary to the findings made.

5. The proposed findings of fact in Paragraph 2.b.(1) are rejected as being the recitation of testimony that was considered in making the finding that the question is not ambiguous.

6. The proposed findings of fact in Paragraph 2.c.(1) are rejected as being the recitation of testimony that was considered in making the findings reflected herein. The question called for the candidate to state what the phrase means, not whether the phrase is an improper use of a word of art.

7. The proposed findings of fact in Paragraph 2.c.(2) are rejected as being unnecessary to the conclusions reached.

8. The proposed findings of fact in paragraph 3, 4, 5, and 6 are rejected as being unnecessary to the conclusions reached.

The proposed findings of fact in paragraph 7 are rejected as being unsubstantiated by the evidence.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in Paragraphs 1 and 2 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in Paragraph 3 are rejected as being unsubstantiated by the evidence.

3. The proposed findings of fact in Paragraphs 4, 5, 6, and 7 are rejected as being subordinate to the findings made.

COPIES FURNISHED:

Caren Glassman 1231 SE 1 Street

Apt. 13

Fort Lauderdale, Florida 33301

Vytas J. Urba, Esquire Assistant General Counsel

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Diane Orcutt, Executive Director Department of Professional Regulation Mental Health Counselors

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 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: 92-000184

Orders for Case No: 92-000184