STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL DELROSE, )

)

Petitioner, )

)

vs. ) CASE No. 92-0205

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD of DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on April 29, 1992, in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Daniel C. Delrose (pro se)

2804 South Morland Apartment 304N Cleveland, Ohio 44120

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, Florida

STATEMENT OF THE ISSUES

Whether Petitioner should be granted additional credit for the amalgam cavity preparation performed by him on a live patient during the June, 1991 Dental Examination, so that he would receive a passing grade.

PRELIMINARY STATEMENT

Petitioner was notified that he failed to pass the clinical procedures section of the June, 1991 Dental examination and would not be licensed.

Petitioner timely filed a challenge to the grading of the amalgram cavity preparation of a patient in the clinical procedures section of the examination and sought a 120.57(1) formal hearing. On January 13, 1992, this matter was referred to the Division of Administrative Hearings and this proceeding followed.

At the hearing, the Petitioner testified in his own behalf and offered three exhibits in evidence. The Department offered four exhibits in evidence and presented Theodor Simkin, D.D.S., Ansu G. Mason, Ph.D., as expert witnesses.

The transcript of the hearing was filed with the Clerk of the Division on June 11, 1992. Petitioner did not file proposed findings of fact and conclusions of law. Respondent filed its proposals on June 22, 1992. The proposals have been given careful consideration and have been incorporated when supported by a preponderance of the evidence. My specific rulings, as contemplated in Section 120.57(1)(b)9., Florida Statutes are contained in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner sat for the June 1991 dental examination. On the clinical procedure portion he originally received a score of 2.86. A minimum passing score is 3.00. The total clinical grade consisted of weighing nine different procedures and a written dental examination.

   
   

2. Upon the filing of a protest by the Petitioner, the test was re-scored and on the Amended Grade Report, Petitioner was awarded a total clinical grade of 2.96.

   
   

3. The Bureau of Examination Services, Department of Professional Regulation serves as a facilitator for licensure examinations for the Board of Dentistry. The Bureau prepared the practicum exam and standardized procedures with the examiners.

   
   

4. During the course of the practicum exam, Petitioner was called upon to perform Procedure Number 02, Amalgam Cavity Prep, on a live patient. The procedure called for the award of a maximum of five points by each examiner and the total points would then be averaged together.

   
   

5. Each examiner was given uniform criteria for the procedure which read as follows:

   
   

   Class II amalgam on a patient:

   1. Preparation:

      1. outline form

      2. depth

      3. retention

      4. mutilation of opposing or adjacent teeth

      5. debris removal from cavity preparation

      It is the intent of the Board that each of the criteria are to be accorded equal importance in grading. Equal importance does not mean that each criteria has a numerical or point value but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the judgment of the examiner, could result in a failing grade on the procedure. The criteria do not have any assigned numerical or point value but are to be utilized in making a holistic evaluation of the procedure. However, a grade of zero

      (0) is mandatory if caries remain; if gross overcutting occurs; if mechanical exposure occurs; if the preparation is prepared or attempted to be prepared on the wrong tooth or wrong surface; or if the candidate fails to attempt or complete the procedure.

6. The Petitioner's work was examined separately by three examiners who gave Petitioner grades of "4", "3" and "0" respectively. This resulted in a average of "2.33" points for the procedure.

   
   

7. Examiner Number 054 was one of the three examiners who graded Petitioner's amalgam cavity prep procedure. After examining the patient, he noted on the grading sheet that the depth preparation was too shallow and that "caries" remained and awarded Petitioner a grade of Zero. The presence of caries indicates that decay remained on the tooth and the criteria indicated that a grade of zero (0) is mandatory if caries remain.

   
   

8. All examiners grade candidates procedures in rooms other than the operatories to insure the anonmity of the candidates. In addition, a licensed Florida dentist is in the operatories as an examination monitor and must concur in the observation of the "caries" before a grade of zero is confirmed.

   
   

9. No evidence was presented to indicate that the June 1991 dental examination was administered or graded arbitrarily, capriciously or was devoid of logic or reason.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Chapter 466, Florida Statutes, directs the Board of Dentistry to follow the designated statutory guidelines prior to issuance of a license to every candidate for licensure. Section 466.006, Florida Statutes, requires successful completion of an examination prior to issuance of a license to practice dentistry. This section also vests the Department of Professional Regulation with authority and responsibility for grading such examinations.

    
    

12. Chapter 21G-2.013, Florida Administrative Code, specifies the manner for administration of licensure examinations and also the criteria for grading the examination.

    
    

13. Petitioner has the burden to prove by a preponderance of the evidence that his examination merited the award of more points than he received and that any extra points given would be sufficient to attain a passing grade on the examination. See generally: Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

14. Petitioner was scored 2.96 points, on the amended grade report and

    3.00 points was the minimal passing grade for the examination.

    
    

15. Petitioner failed to prove by a preponderance of the evidence that the amalgam cavity prep, one of the mandatory procedures carried out by him, was done correctly or that one of the examiners graded his work arbitrarily, thus deserving credit.

    
    

16. There was no showing that the dental examination, or any part of it, its administration or grading as carried out by the Department of Professional Regulation was not consistent with Florida Law, or was arbitrary, capricious or devoid of logic and reason. See: State of Florida v. J. M. Pepper, 155 So.2d

    383 (Fla. 1st DCA 1963).

17. In particular, the Department presented evidence through expert testimony that the grading of Petitioner's amalgam cavity prep procedure was propoer and supported by logic and reason. Topp v. Board of Electrical Examiners for Jacksonville Beach, Florida, 101 So.2d 583 (Fla. 1st DCA 1958).

    
    

18. Petitioner did not meet his burden of proof which would demonstrate that the examination instructions themselves were substantially insufficient or misleading. Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for an award of additional points for the amalgam cavity prep procedure, Procedure No. 02, for the Florida dental examination for June, 1991 be DENIED.

DONE AND ENTERED this 25th day of June, 1992, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 25th day of June, 1992.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Petitiioner did not submit proprosed findings of fact.

Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1, 2, 4, 5, 6. Rejected: paragraph 3 (irrelevant)

Copies furnished:

Vytas J. Urba, Esquire Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Daniel Delrose

2804 South Moreland Apartment 304N North

Cleveland, Ohio 44120 44120

William Buckhalt Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

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: 92-000205

Orders for Case No: 92-000205