STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE P. CRUZ, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6923

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 13, 1994, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Colonial Square Office Park

8001 North Dale Mabry Highway, Suite 301-A Tampa, Florida 33614

For Respondent: William M. Woodyard, Esquire

Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUE

The issue in this case is whether the Department should give the Petitioner a passing grade on the June, 1993, Board of Dentistry Clinical Examination.

PRELIMINARY STATEMENT

The Petitioner took the June, 1993, Board of Dentistry Clinical Examination and received a failing grade. A Petition for Formal Hearing challenging the examination grade was filed on November 24, 1993. On December 6, 1993, the matter was referred to the Division of Administrative Hearings (DOAH) for formal adminstrative proceedings and was given DOAH Case Number 93-6923. On January 12, 1994, a Notice of Hearing was issued scheduling the case for final hearing on May 13, 1994.

The Petition for Formal Hearing challenged the grades given on five examination procedures. At final hearing, the Petitioner only undertook to challenge the grades given on two examination procedures: a pin amalgam preparation (procedure 8); and the final pin amalgam restoration (procedure 9).

At the final hearing, the Petitioner called two adverse party expert witnesses, all three examination graders on procedures 8 and 9, and his own expert witness. He also testified in his own behalf. In addition, he had Cruz Exhibits 1 and 2 admitted in evidence. The Department recalled its two expert witnesses and had Respondent's Exhibits 1 through 3 admitted in evidence.

At the end of the hearing, the Department ordered the preparation of a transcript of the hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on June 20, 1994. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 93-6923.

FINDINGS OF FACT

1. The Petitioner, Jose P. Cruz, took the June, 1993, Board of Dentistry Clinical Examination. Initially, he received a grade of 2.91, whereas a grade of 3.0 is passing. He requested a review of his grades and received some additional credit, raising his grade for the examination to 2.98--still failing, but quite close to a passing grade.

   
   

2. The examination grade is a weighted aggregate made up of scores given on each tested procedure, using a formula for weighting the scores on each procedure. The possible scores for each procedure range from zero to five, with a score of three considered "passing" for a particular procedure. Likewise, weighted aggregates can range from zero to five, with a grade of 3.00 passing.

   
   

3. Each procedure performed by the Petitioner (and the other examinees) was graded by three graders from pool of qualified graders. The Petitioner's graders not only were qualified, but they also were "standardized." "Standardization" is a process undertaken on the day before the examination to explain to the prospective qualified graders for an examination the criteria for grading the different procedures and how the criteria should be evaluated. The purpose of "standardization" is to insure that the graders are looking at the criteria in the same way, so that ideally each grader would grade the same performance the same way.

   
   

4. Averaging the scores given by three "standardized graders" increased the reliability of the examination results.

   
   

5. Procedure 8 on the examination was a pin amalgam preparation on an ivorine (plastic) tooth. Criteria for the procedure include: (a) outline; (b) depth; (c) retention; (d) pin placement; and (e) mutilation of opposing adjacent teeth.

   
   

6. Two of the three graders gave the Petitioner a score of 3 on Procedure 8; the other gave him a 2.

   
   

7. Procedure 9 on the examination was a pin amalgam final restoration on an ivorine (plastic) tooth. Criteria for the procedure include: (a) functional anatomy - appropriate occlusal and interproximal anatomy; (b) proximal contour and contact - contact is considered present when resistance is met with

   specified floss given at the time of the exam; (c) margins; (d) gingival overhang - overhang is considered to be excess amalgam in either a proximal or gingival direction at the gingival cavosurface margin; and (e) ma[n]agement of soft tissue.

   
   

8. Two of the three graders gave the Petitioner a score of 2 on Procedure 9; the other gave him a 3.

   
   

9. An ivorine (plastic) tooth is not the same as a real tooth. It is easier to carve, but it does not have the major external and internal landmarks created by the enamel, dentin and nerve root of a real tooth. Without additional instructions, the latter differences make it difficult or impossible for the examinee or a grader to apply certain criteria.

   
   

10. The evidence was that the examinees received an examination booklet that instructed them to "treat simulated teeth as normal human teeth, that is, assume the simulated teeth have the same enamel, dentin, and pupil morphology as human teeth."

    
    

11. The instruction in the examination booklet, by itself, leaves some important questions unanswered. "Normal human teeth" differ in the thickness of the enamel, not only from one person to another but also from tooth to tooth within any one person's mouth and even from place to place on any one tooth. Also, the direction in which the enamel rods run in "normal human teeth" differ, depending essentially on the shape of the tooth. The direction of the enamel rods is important in determining whether enough dentin is left under the enamel rods to support the enamel. "Normal human teeth" also have fissures, i.e., little cracks and grooves, and the margins of a preparation and restoration should be extended to include fissures that cannot be eliminated by enamelplasty. But ivorine teeth do not have all the fissures normal teeth have.

    
    

12. As a result of these difference between "normal human teeth" and the test mannequin's ivorine teeth, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the following criteria for Procedure 8: outline form; depth of preparation; and retention.

    
    

13. In addition, as to Procedure 9, functional anatomy depends upon a tooth's interaction with its opposing and adjacent teeth, but the mannequins did not have opposing teeth. As a result, it still would be difficult or

    impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the criterion functional anatomy for Procedure 9.

    
    

14. Similarly, the ivorine teeth in the mannequins were cemented in place, and points were to be deducted for moving them. This made it difficult, if not impossible--even with the information in the examination booklet--for the candidates to control proximal contour and contact, which are criteria for Procedure 9.

    
    

15. Despite the deficiencies in the information in the examination booklet, taken by itself, there also was evidence that the graders were instructed orally during standardization, and the candidates were instructed during an orientation prior to the administration of the examination, that they were to assume an "ideal, minimal preparation" and that the purpose of the examination was simply to demonstrate basic knowledge of acceptable techniques. They also were told to assume "normal" or "ideal" enamel thickness of

    approximately 0.5 millimeter. Given those qualifications, they were told that the preparations were to have a "normal outline form" and "normal depth." As for functional anatomy, they were told that restorations were to "set up ideal (or normal) occlusion" by making the marginal ridges even and by replacing the restoration to the "normal shape of a cusp of a tooth." As for proximal contour, a restoration's marginal ridges were to meet (i.e., match) those of the adjacent tooth. Candidates also were allowed to ask questions as part of the orientation to clarify the oral instructions, as necessary.

    
    

16. Given the additional oral instructions, the candidates and graders were given a clear enough understanding of the examination criteria. Evaluation of the candidates' and the graders' performance by the Department's psychometrician indicated that the examination was valid and reliable.

    
    

17. The Petitioner's performance of Procedure 8 was primarily deficient in that the outline form was 0.25 millimeter short of the lingual occlusal groove, which was clearly visible on the ivorine tooth and which should have been included within the outline form. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade.

    
    

18. The Petitioner's performance of Procedure 9 was primarily deficient in that the restoration did not replace the "normal shape of a cusp of a tooth" and that the marginal ridges did not meet those of the adjacent tooth. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade.

    
    

19. There was evidence that, since the examination on ivorine teeth only simulates real teeth, which are easier to carve than real teeth, and is necessarily limited to a demonstration of basic knowledge of acceptable techniques, the examination does not directly test the candidate's ability to actually practice dentistry. But, due to heightened concern for the transmission of infectious disease, including HIV, ivorine teeth have been used in dental schools and in dental clinical examinations exclusively for over ten years, and the Petitioner did not prove that the use of ivorine teeth, instead of extracted real teeth, for his examination was unreasonable.

CONCLUSIONS OF LAW

1. In order to be licensed to practice dentistry in Florida, applicants for licensure must successfully complete an examination administered and graded by the Department of Business and Professional Regulation. Section 466.006, Fla. Stat. (1993). Criteria for the clinical portion of the exam are set out in

   F.A.C. Rule 61F5-2.013.

   
   

2. The Petitioner in this case has the burden to prove his examination challenge by a preponderance of the evidence. Cf. Florida Dept. of Transp. v.

   J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

   
   

3. The Petitioner did not prove that the Department administered or graded his examination arbitrarily, capriciously, or devoid of logic and reason. Cf. State of Florida v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); Topp v. Bd. of Electrical Examiners for Jacksonville Beach, 101 So. 2d 583 (Fla. 1st DCA 1958).

4. The Petitioner did not prove that the examination instructions were substantially insufficient or misleading. Cf. Alvarez v. Dept. of Prof. Reg., Bd. of Acupuncture, 458 So. 808 (Fla. 1st DCA 1984). (However, it was shown that many of the factual disputes at issue in this case could have been eliminated had the written examination instructions and criteria explained the application of the criteria to the use of ivorine teeth.)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Dentistry, enter a final order denying the Petitioner's examination challenge.

RECOMMENDED this 28th day of July, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 28th day of July, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6923

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2.-4. Accepted but subordinate and not necessary.

1. Rejected as not proven. (The exam should not necessarily measure a person with more dental experience as receiving a higher grade.)

2. Accepted but subordinate and not necessary.

3. Accepted and incorporated.

8.-10. Rejected as not proven. (It would be more accurate to say that the Department's examination reviewer could neither say that the the score of 2 was erroneous or unreasonable or that a score of 3 would have been erroneous or unreasonable.)

11. Accepted and incorporated.

12.-16. Accepted but subordinate and not necessary. (As to 16, however, he reiterated his opinion that the appropriate score was a 2.)

17. Accepted and incorporated to the extent not subordinate or unnecessary.

18.-19. Accepted and incorporated.

1. Rejected as not proven that the dentin is the "stronger material." Otherwise, accepted and incorporated.

2. Accepted and incorporated.

22.-26. Accepted and incorporated to the extent not subordinate or unnecessary. However, as found, notwithstanding the limitations inherent in not being able to see on the ivorine tooth exactly where the enamel would end and the dentin would begin, or where the enamel rods would be, certain basic knowledge of acceptable techniques can be demonstrated on the ivorine teeth, given certain additional instructions.

27.-29. Rejected as not proven. The Petitioner's expert was not "standardized" and was not privy to what the graders were told during standardization or what the candidates were told during orientation.

30. See 22.-26.

31.-32. See 27.-29.

33. See 22.-26.

Respondent's Proposed Findings of Fact.

1.-8. Accepted and incorporated to the extent not subordinate or unnecessary.

9.-10. Accepted and subordinate to facts found.

11. Rejected as contrary to the evidence that the Petitioner introduced no competent and substantial evidence in support of his challenge.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Colonial Square Office Park 8001 North Dale Mabry Highway Suite 301-A

Tampa, Florida 33614

William M. Woodyard, Esquire Assistant General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

Jack McRay, Esquire Acting General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

William Buckhalt, Executive Director Board of Dentistry

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Board of Dentistry written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Board of Dentistry concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-006923

Orders for Case No: 93-006923