STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA A. BENOIT, )

)

Petitioner, )

vs. ) CASE NO. 94-0303

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF HEARING AID SPECIALISTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on March 21, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Donna A. Benoit

100 St. George Boulevard, Apartment 402 Savannah, Georgia 31419

For Respondent: Vytas J. Urba

Assistant General Counsel Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner should receive credit for Question 10 as alleged in her examination challenge filed on December 27, 1993, for the hearing aid specialist examination administered on September 10- 12, 1993.

PRELIMINARY STATEMENT

This case began on December 27, 1993, when the Petitioner filed a letter seeking to challenge the results to the hearing aid specialist examination administered on September 10-12, 1993. Initially, Petitioner challenged 22 exam questions and requested that the bureau of testing for the Department of Business and Professional Regulation, Board of Hearing Aid Specialists (Department), give her credit for the answers she gave. Petitioner had received a passing grade on the practical portion of the exam but had received a 74.00 on the written portion. The minimum grade to pass the written portion, and achieve an overall passing examination status, was 75.00.

At the hearing, Petitioner elected to only pursue her challenge to Question

10 on the examination and presented testimony in her own behalf in connection with that test number. Petitioner's exhibits numbered 1 and 2 were admitted into evidence.

The Department presented the testimony of Ella Hall, a senior psychometrician employed by the Department; and Joann Sellers, a licensed hearing aid specialist and audiologist. Respondent's exhibits 1 through 3 were admitted into evidence. All exhibits have been sealed in an envelope marked "confidential" and are not available for public inspection.

The transcript of the proceeding was filed on April 5, 1994. The parties were afforded ten days from the filing of the transcript to submit proposed recommended orders. Specific rulings on the proposed findings of fact submitted are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. Petitioner, Donna A. Benoit, is a candidate for licensure as a hearing aid specialist. Her examination date was September 10-12, 1993.

   
   

2. There were two sections to the examination for licensure: a practical portion that consisted of several subparts, and a written portion for which the minimum passing grade was 75.00. In order to achieve an "overall examination status" of passing, Petitioner was required to pass both sections. While Petitioner obtained a passing grade on the practical section, her grade on the written section was 74.00.

   
   

3. Upon receipt of her test scores, Petitioner timely challenged the examination results. Initially, Petitioner listed twenty-two questions for which she received no credit as those to be challenged. At hearing, however, Petitioner elected to only challenge one: Question 10.

   
   

4. The format for the written examination was multiple choice, and the instructions directed candidates to choose the best answer from among those suggested. Approximately 79 percent of the candidates taking the examination got Question 10 correct. Therefore, for statistical purposes, Question 10 should not be considered vague or ambiguous.

   
   

5. An audiometric evaluation is required before a hearing aid can be fitted or sold. An audiometric evaluation consists of the following: puretone testing by air and bone conduction, effective masking when indicated, speech reception thresholds, speech discrimination scores, MCL and UCL, and selection of best fitting arrangement.

   
   

6. An otoscopic examination of the ear is performed before the audiometric evaluation can be performed. An otoscopic examination does not, of itself, allow a hearing aid to be fitted or sold. Once the otoscopic examination is successfully completed such that a hearing aid may be fitted and sold, the audiometric evaluation must be performed.

   
   

7. An audiometric evaluation as described in Section 484.0501, Florida Statutes, provides the minimal procedures in the fitting and selling of hearing aids.

8. Petitioner's answer to Question 10, "D", was not the best selection from those available; consequently, the Department correctly scored Petitioner's response.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Petitioner is required to successfully complete the examination prior to licensure.

    
    

11. Petitioner bears the burden of proof to establish that the examination was scored erroneously, or that the agency acted arbitrarily or capriciously when administering or grading her examination.

    
    

12. In this case, the Petitioner has failed to meet that burden. The Department correctly scored Question 10. Petitioner was graded in conformity with established policies and procedures. The Department denied Petitioner credit for Question 10 as it did with other candidates submitting an incorrect answer. Further, the denial of credit for the answer was not arbitrary or capricious.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Business and Professional Regulation, Board of Hearing Aid Specialists, enter a final order denying Petitioner's challenge to Question 10 of the hearing aid specialists examination administered September 10-12, 1993.

DONE AND RECOMMENDED this 21st day of April, 1994, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 21st day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0303

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Petitioner's one page letter filed March 28, 1994, has been considered argument and not in a format to allow rulings on specific facts.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 3, and 6 are accepted.

2. The first two sentences and the last sentence of paragraph

   4 are accepted; the remainder is rejected as irrelevant.

3. The last sentence of paragraph 5 is accepted; the remainder is rejected as unnecessary or irrelevant.

COPIES FURNISHED:

Donna A. Benoit

100 St. George Boulevard Apt. 402

Savannah, Georgia 31419

Vytas J. Urba

Assistant General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay

Acting General Counsel Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Suzanne Lee, Executive Director Board of Hearing Aid Specialists Department of Business and

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: 94-000303

Orders for Case No: 94-000303