STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JORGE JOSE VELIS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3705

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by it duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on September 23, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Jose I. Perez, Esquire

Grove 2000 Building Suite 100-D

2000 South Dixie Highway Miami, Florida 33133

For Respondent: Vytas J. Urba, Esquire

Assistant General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner's challenge to the grading of his dental manual skills examination should be sustained.

PRELIMINARY STATEMENT

Petitioner sat for the dental manual skills examination in November 1991. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, numbers 2, 7 and 8. The respondent sustained petitioner's challenge to the grading of procedure 7 and had the procedure regraded, but such regrading failed to raise the overall grade awarded for the procedure. Respondent denied petitioner's challenge to the grading of procedures 2 and 8. In turn, petitioner filed a timely request for a formal hearing, pursuant to Section 120.57(1), Florida Statutes, to contest the respondent's grading of procedures number 7 and 8.

At hearing, petitioner called Ansu Mason and Theodor Simkin as witnesses. Respondent called no additional witnesses. Joint exhibits 1-10 were received into evidence. The transcript of hearing was filed October 2, 1992, and the parties were granted leave until October 30, 1992, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within 30 days after the transcript is filed. Rule 60Q-2.031(2), Florida Administrative Code. The parties' proposals are addressed in the appendix to this recommended order.

FINDINGS OF FACT

Background

1. Petitioner, Jorge Jose Velis, sat for the dentistry manual skills examination pursuant to Section 466.006(3)(c)3, Florida Statutes (1991), in November 1991.

   
   

2. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 2, 7 and 8. The respondent sustained petitioner's challenge to the grading of procedure number 7 and had such procedure regraded, but such regrading failed to raise the overall grade awarded for the procedure. Respondent denied petitioner's challenge to the grading of procedures 2 and 8. In turn, petitioner filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes, to contest the respondent's grading of procedures number 7 and 8.

   
   

   The examination procedure

   
   

3. During the course of the examination at issue in this proceeding, the candidates were called upon to exhibit manual skills by performing various procedures on a laboratory model. The quality of the candidate's performance was then graded by three examiners who assigned grades of 0 to 5 based on their assessment of the candidate's performance. The scores assigned were then averaged to derive the score achieved by the candidate on the particular procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, and a grade of "5" represented outstanding dental procedure. See Rule 21G-2.013, Florida Administrative Code.

   
   

4. Each of the examiners who participated in both the original grading of petitioner's model and the regrade had been licensed by the Florida Board of Dentistry for at least five years, and had participated in a day-long standardization training session the day before the examination was offered. Based on their previous performance as graders and their performance at the November 1991 examination, these examiners demonstrated a statistically acceptable grade variation range.

   
   

   Petitioner's examination results and review.

   
   

5. Petitioner received a final grade of 2.97 on the examination, which was below the minimum passing grade of 3.0. Pertinent to this case, respondent received a grade of 2.66 for procedure 7, based on scores of 1, 3 and 4 from the individual examiners, and a grade of 2.66 for procedures 8, based on scores of 3, 1 and 4 from the individual examiners.

6. Dr. Theodor Simkin, the respondent's consultant, upon petitioner's request for a regrade, examined petitioner's models and the evaluations of the examiners with regard to procedures number 7 and 8. In Dr. Simkin's opinion, which is credited, the original grade of 1 assigned to procedure 7 did not conform with the grading criteria since petitioner's error was not serious enough to warrant a grade of one. Accordingly, Dr. Simkin recommended a regrade of procedure number 7. With regard to procedure number 8, Dr. Simkin did not recommend a regrade because in his opinion, which is credited, the low grade of

   1 was warranted because of a sever undercut made by petitioner on the tooth which would prevent any crown made up for the tooth from fitting properly. Accordingly, the assignment of a failing grade of 1 for procedure number 8 was appropriate under the grading criteria.

   
   

7. Based on Dr. Simkin's conclusions, petitioner's procedure number 7 was regraded. In such regrading, petitioner's model was hand-delivered by a Department of Professional Regulations representative to three examiners, different from the original examiners, but all of whom participated in the standardization and grading of the November 1991 examination. In the regrade, petitioner received scores of 3, 3 and 2, for an average or final grade of 2.66, the same failing score he had previously received. The scores assigned by the examiners on regrading were, however, rendered in conformance with the grading criteria, and were an appropriate reflection of petitioner's performance.

   
   

8. Here, the proof demonstrates that the regrade of procedure number 7 and the original grading of procedure number 8 were rendered in accordance with the grading criteria, and that petitioner's final grade of 2.97 was appropriately derived. Accordingly, petitioner failed to attain a minimum passing grade on the examination.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

10. Pursuant to Chapter 466, Florida Statutes, certain statutory prerequisites are established which must be satisfied before a candidate may be licensed to practice dentistry in the State of Florida. Pertinent to this case, Section 466.006(3)(c)3, Florida Statutes (1991), requires the successful completion of a dental manual skills examination as one alternative for a graduate of a dental college or school that is not appropriately accredited or approved to satisfy one of the criteria necessary to sit for the dentistry licensure examination. Effective December 31, 1991, such option expired and is no longer available to petitioner. Section 466.006(3)(c)3, Florida Statutes.

    
    

11. Here, petitioner bears the burden of establishing that the dental manual skills examination, the administration of the examination, or the grading of the examination failed to conform with existing criteria, and that he is entitled to a passing grade. See, Alvarez v. Department of Professional Regulation, 458 So.2d 808 (Fla. 1st DCA 1984), State ex rel. Glasser v. J. M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963), and State ex rel. Topp v. Board of Electrical Examiners, 101 So.2d 583 (Fla. 1st DCA 1958). Based on the facts heretofore found, petitioner has failed to sustain such burden.

    
    

12. At hearing, petitioner requested, as an alternative to the granting of additional credit, that a "second regrade" of procedure number 7 be accorded, and in his proposed recommended order requests that the original scores of 3 and

4 on procedure 7 be retained and the score of 1 be replaced by a score of 2, which the respondent's consultant deemed an appropriate score. Such requests find no evidentiary or legal support. First, there is no record support to afford petitioner a "second regrade" because the first regrade of procedure number 7 was found to have been rendered in accordance with the established grading criteria. Rules 21-11.011(3)(g)3 and 21G-2.013, Florida Administrative Code. Second, to manipulate the original scores assigned procedure number 7, as suggested by petitioner, would be contrary to the procedures established by Rules 21-11.011(3)(g)3 and 21G-2.017(1), Florida Administrative Code, and an inaccurate reflection of petitioner's performance. Succinctly, simply substituting a score of 2, which the consultant found appropriate, for the score of 1, and retaining the higher scores of 3 and 4, does not comport with the consultant's opinion, which is credited, that petitioner's overall performance merited a score of two on procedure number seven.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the subject petition. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of

December 1992.

WILLIAM J. KENDRICK

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 23rd day of December 1992.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1 & 2. Unnecessary detail.

1. Addressed in paragraph 5.

2. Addressed in paragraph 10.

3. Addressed in paragraphs 2 and 5-8.

4. Rejected as argument or addressed in paragraph 12.

Respondent's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraphs 1 and 10.

3. Addressed in paragraphs 3 and 5.

4-9. Addressed in paragraphs 5-8, otherwise unnecessary detail. 11-12. Addressed in paragraphs 3 & 4, otherwise unnecessary

detail.

13. Addressed in paragraph 8.

COPIES FURNISHED:

Jose I. Perez, Esquire Grove 2000 Building Suite 100-D

2000 South Dixie Highway Miami, Florida 33133

Vytas J. Urba, Esquire Assistant General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

William Buckhalt Executive Director Board of Dentistry

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

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: 92-003705

Orders for Case No: 92-003705