STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK W. FENDER, )

)

Petitioner, )

)

vs. ) Case No. 97-4811

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on January 20, 1998.

APPEARANCES

For Petitioner: Frank W. Fender, pro se

7603 North Laura Street Jacksonville, Florida 32208

For Respondent: Anne Marie Williamson, Esquire

Department of Health

Office of the General Counsel 1317 Winewood Boulevard

Building 6, Room 106

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Frank W. Fender, should have received a passing grade on the March 1997 Clinical Chemistry Technologist examination.

PRELIMINARY STATEMENT

In March 1997 Petitioner, Frank W. Fender, took the Clinical Chemistry Technologist examination. Mr. Fender was subsequently informed by the Department of Business and Professional Regulation, Bureau of Testing, that he did not receive a passing grade on the examination. By letter dated July 25, 1997,

Mr. Fender requested a formal administrative hearing to contest the determination of his grade.

On October 16, 1997, Respondent filed a Notice with the Division of Administrative Hearings requesting the assignment of an Administrative Law Judge to conduct the formal hearing requested by Mr. Fender. The matter was designated Case

No. 97-4811, and was assigned to the undersigned. By Notice of Hearing entered November 17, 1997, the formal hearing was scheduled for January 20, 1998.

The formal hearing was conducted by video conferencing.

Petitioner, one of Respondent's witnesses, and the court reporter were located in Jacksonville, Florida, during the formal hearing. Counsel for Respondent, one of Respondent's witnesses, and the undersigned were located at a public hearing room of the Division of Administrative Hearings in Tallahassee, Florida.

At the formal hearing, Mr. Fender testified on his own behalf. Mr. Fender offered three exhibits. The exhibits were

marked as "Petitioner's" exhibits and were accepted into evidence.

Respondent, the Department of Health, presented the testimony of Eunice Filar, Ph.D., and Carleen Van Siclen.

Dr. Filar was accepted as an expert in psychometrics. Ms. Siclen was accepted as an expert in clinical laboratory sciences. Eight exhibits were offered by Respondent. The exhibits were marked as "Respondent's" exhibits and were accepted into evidence.

On January 29, 1998, a transcript of the hearing was filed.

The parties, therefore, were required to file their proposed orders on or before February 9, 1998. Both parties filed proposed orders on February 9, 1998.

FINDINGS OF FACT

1. Petitioner, Frank W. Fender, took the Clinical Chemistry Technologist examination in March 1997 (hereinafter referred to as the "Examination").

2. The Examination consists of fifty multiple choice questions. The instructions for the Examination specifically informed persons taking the examination that they were to "[a]lways choose the BEST answer."

3. It was determined that Mr. Fender had answered twenty- seven of the Examination questions correctly. Mr. Fender was, therefore, awarded a score of 349. A score of 350 or more was required for a passing score. If Mr. Fender were determined to

   have answered one more question correctly, he would receive a passing score.

4. Mr. Fender was informed that he had not passed the Examination. By letter dated July 25, 1997, Mr. Fender requested a formal administrative hearing to contest his failing score. In particular, Mr. Fender challenged the determination that he did not answer questions 3, 9, 16, and 21 correctly.

   
   

5. Question 3:

   
   

   1. Question 3 involved obtaining "true serum triglyceride results." Mr. Fender selected answer "D" which was: "measure a blank in which the dye-coupling is omitted." The answer considered correct was "B."

   2. The evidence failed to prove that answer "D" was the best answer. While the use of blanks in triglyceride methodologies is correct, "dye-coupling" is not. Therefore, answer "D" is not a correct response.

   3. The evidence failed to prove that answer "D" was the best answer for question 3.

6. Question 9:

   
   

   1. Question 9 asks which enzyme listed in the answers is found to be elevated in the majority of alcoholics.

   2. Mr. Fender selected "B," ALT, as the correct response.

      
      

   3. The evidence failed to prove that answer "B" was the best answer. While ALT may be raised in an alcoholic, it also

      may not be. GGT is the most sensitive indicator of alcoholism. Even if ALT is normal, GGT will be raised in an alcoholic.

   4. The best answer to question 9 was, therefore, "C," GGT. The evidence failed to prove that answer "B" was the best answer to question 9.

7. Question 16:

   
   

   1. Question 16 asks why one must wait approximately 8 hours to draw a blood sample after administering an oral dose of digoxin.

   2. Mr. Fender selected "D" as the correct response. This answer indicates that the reason one must wait is because "all" of the digoxin "will be in the cellular fraction."

   3. Mr. Fender's response was not the best response because of the use of the work "all" in the answer he selected. The most digoxin that could be in the cellular fraction is approximately twenty-five percent, because approximately seventy-five percent is excreted through the kidneys.

   4. The evidence failed to prove that answer "D" was the best answer to question 16.

8. Question 21:

   
   

   1. Question 21 asks the best way to test for suspected genetic abnormalities in an unborn fetus.

   2. Mr. Fender selected answer "B," "performing L/S ratios" as the best answer.

   3. While the evidence proved that L/S ratios will measure immature fetal lungs, this condition results in respiratory distress syndrome. Respiratory distress syndrome is an "acquired" disorder and not a "genetic" abnormality.

   4. While an L/S ratio can be used to test for acquired disorders, a "chromosome analysis," answer "C," is used to test for genetic abnormalities.

   5. The evidence failed to prove that answer "B" was the best answer to question 21.

9. The evidence failed to prove that Mr. Fender should have received a score higher than 349 on the Examination.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes (1997).

11. Any person who wishes to practice clinical laboratory science in Florida must take and pass a licensure examination developed by Respondent. Section 483.809, Florida Statutes (1997).

12. Respondent is authorized to administer licensure examinations for Clinical Laboratory Personnel pursuant to Section 455.574, Florida Statutes (1997).

13. Mr. Fender took the Examination offered in March 1997 but failed to receive a passing score.

14. As the applicant, Mr. Fender had the burden of proving that he should have received a higher score on the Examination. See State ex rel. Glaser v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963).

15. Mr. Fender failed to meet his burden of proof. The evidence failed to prove that Mr. Fender's answers to questions 3, 9, 16, or 21 of the Examination were correct.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered by the Department of Health dismissing Frank W. Fender's challenge to the grade awarded to him on the March 1997 Clinical Chemistry Technologist examination.

DONE AND ORDERED this 2nd day of March, 1998, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1998.

COPIES FURNISHED:

Frank W. Fender

7603 North Laura Street Jacksonville, Florida 32208

Anne Marie Williamson, Esquire Department of Health

Office of the General Counsel 1317 Winewood Boulevard

Building 6, Room 106

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health

1317 Winewood Boulevard

Building 6, Room 306

Tallahassee, Florida 32399-0700

Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E

Tallahassee, Florida 32399-0700

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

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: 97-001148CON

Orders for Case No: 97-001148CON