STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JELENA KAMEKA, )

)

Petitioner, )

)

vs. ) Case No. 97-0012

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, COUNCIL ON )

MIDWIFERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on May 13, 1997, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: William P. Doyle, Esquire

1930 Tyler Street

Hollywood, Florida 33020

For Respondent: Steven A. Grigas, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Building 3

Tallahassee, Florida 32308-5403 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner achieved a passing score on the February 21, 1996, midwifery licensure examination.

PRELIMINARY STATEMENT

By notice dated May 31, 1996, Petitioner was advised that she had failed to achieve a passing score on the

February 21, 1996, midwifery licensure examination. Petitioner timely requested an evidentiary hearing to challenge her score. This cause was transferred to the Division of Administrative Hearings on January 2, 1997, to conduct the evidentiary proceeding.

The Petitioner testified on her own behalf and presented the testimony of Matthew Joseph Wenger, Merilene Wells Kushner, and Antoinette Philana Thomas. The Agency also presented the testimony of Matthew Joseph Wenger. Additionally, Petitioner's Exhibits numbered 1-6 and the Agency's Exhibits numbered 1 and 2 were admitted in evidence.

The transcript of the proceeding, the Agency's Proposed Recommended Order, and the Petitioner's Brief Closing Argument were filed post hearing. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

l. The North American Registry of Midwives, by and through Schroeder Measurement Technologies, developed, administered, and graded the midwifery licensing examination which Petitioner took on February 21, 1996. The examination measures minimum competency.

1. The questions for this licensure examination are developed and reviewed by panels of experts who are practicing midwives with between five and thirty years of experience. The answer to each question is tied to reference materials by the

   panel of experts. When a question is challenged by a candidate who sat for the examination, additional experts review the challenge to determine if it has merit. Petitioner's challenged questions were reviewed using this procedure.

2. The minimum passing score on the February 21, 1996, examination was 78.97. The base examination was administered in August 1995 at which time 75 was the minimum passing score. A variation of the August 1995 examination was administered in February 1996. A process known as "statistical equating" was used subsequent to August 1995 resulting in a different "cut score". In essence, the adjustments in "cut scores" occur so that the degree of difficulty remains the same. The "cut score" is not the same as a passing grade.

3. The 78.97 minimum passing score for the February 1996 examination is the equivalent score to the 75 minimum passing score on the original test, having been adjusted statistically for the difficulty level between the tests. The February 1996 test was an easier test than previous examinations and, therefore, a higher raw score was deemed necessary to establish a minimum competency level passing standard.

4. Petitioner achieved a score of 76.14 on the February 1996 midwifery examination.

5. After being notified that she had failed to achieve a passing score, Petitioner traveled to the Agency's offices in Tallahassee to review her examination. She was given copies of

   the questions she answered incorrectly, her answers, the correct answers, and the scoring sheet used to grade her examination.

6. At the beginning of her review, an Agency employee discussed her scoring sheet with her and advised her that there had been a problem with question numbered 115 on the examination. Accordingly, all candidates who took the examination were given credit for having correctly answered that question. He showed Petitioner the handwritten calculations on the bottom of her scoring sheet which reflected the additional credit given to her for a correct answer to question numbered 115. The extra credit still was not enough for Petitioner to achieve a passing score.

7. Petitioner reviewed the questions and her answers. As a result, she filed challenges to 24 questions. Those challenges were reviewed subsequently by a panel of experts. The experts responded to each of Petitioner's challenged questions by explaining in writing why each of Petitioner's answers was correct or incorrect and citing to the page of the authoritative treatise where the correct answer appears.

8. Petitioner had already been given credit for two of the questions she challenged, which she had answered correctly. Petitioner was also given credit for answering correctly one additional question in part one of the examination and three additional questions in part two of the examination.

9. Petitioner's score was then, and only then, re- calculated on the bottom of her scoring sheet to include credit

   for those four additional correct answers. Even after Petitioner's correct raw score was re-calculated and then properly weighted for that portion of the examination, she only achieved a revised score of 77.86, less than the minimum score required to pass the examination.

10. The scoring of Petitioner's examination was fair and accurate. No irregularities occurred in the scoring of Petitioner's examination.

11. The February 21, 1996, midwifery licensing examination, which is administered nationwide, was not arbitrary and capricious. It has undergone a lengthy test-development process which conforms with all known testing standards. Further, the examination's performance on a national basis has shown that it does not discriminate against any subgroup. Each question on the examination has been statistically validated.

12. The statistical analyses and reviews performed after this examination indicate that there are no psychometric characteristics which would indicate that more than one correct answer exists for any question on the February 1996 examination, with the exception of question numbered 115.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

14. The Agency is charged with ensuring that examinations adequately and reliably measure an applicant's ability to practice the profession regulated by the Agency. Section 455.2173(1)(a), Florida Statutes.

15. The law is well settled that the burden of proof is on Petitioner to show that she has passed the examination and is entitled to licensure. Petitioner has failed to meet her burden of proof.

16. Petitioner mounts a number of attacks on the examination itself, none of which have any merit and none of which was supported by any evidence. First, she attempts to attack the other midwifery examinations she has failed. Those arguments are irrelevant since this cause concerns the February 21, 1996, examination only. Second, she alleges that some teacher from a school which competes with the school she

    attended changed the grades on this nationwide examination. No competent evidence was offered to support that argument.

    Similarly, no competent evidence was offered to support her argument that the examination discriminates against non- Caucasians. The statistical analysis of the examination belies that assertion.

17. Petitioner also alleges that her revised score subsequent to her successful challenge to four questions was computed prior to her reviewing the examination and challenging

    any questions. Her testimony in that regard, supported by her friend who also failed the examination, is not credible.

18. Petitioner's evidence that she correctly answered some questions for which she was not given credit was minimal and not persuasive. She presented the testimony of a classmate who passed the midwifery examination administered in August 1995 and became a licensed midwife sometime thereafter as her sole expert witness. That witness has no experience in the formulation, administration, or grading of examinations or analyzing them and has no background in statistical analysis.

19. A brief recess was taken during the final hearing so that Petitioner's expert could look, for the first time, at the

    24 challenged questions, Petitioner's answers, and the responses to Petitioner's challenges made by the panel of experts that reviewed her challenges. After Petitioner's expert's brief review, she testified that 18 of Petitioner's answers were "equally correct" to those selected by the authors and reviewers of the examination.

20. That sole statement was unaccompanied by any identification of which 18 of the 24 questions she looked at, was unaccompanied by any explanation, and was unaccompanied by any reference to any textbook or other authoritative treatise. Accordingly, that "expert opinion" evidence was of no assistance in determining whether Petitioner correctly answered any specific question without receiving credit for that correct answer.

Further, the witness' assertion that Petitioner was correct in all of her challenges is not worthy of belief in view of the number of experts with extensive experience who had written and reviewed those questions, citing the source where the correct answer could be found, and in view of the statistical analysis which disproves that assertion.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED THAT a Final Order be entered dismissing Petitioner's challenge and finding that Petitioner failed to achieve a passing score on the February 21, 1996, midwifery licensing examination.

DONE AND ENTERED this 1st day of August, 1997, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1997.

COPIES FURNISHED:

Steven A. Grigas, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Building 3

Tallahassee, Florida 32308-5403

William P. Doyle, Esquire 1930 Tyler Street

Hollywood, Florida 33020

William Buckhalt, Executive Director Agency for Health Care Administration Council on Midwifery

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000012

Orders for Case No: 97-000012