STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NEDA RAEISIAN, )

)

Petitioner, )

)

vs. ) Case No. 98-1324

) DEPARTMENT OF HEALTH, BOARD OF ) DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held on August 14, 1998, by the Division of Administrative Hearings, before Daniel M. Kilbride, Administrative Law Judge, by televideo, with Counsel for the Respondent, the Administrative Law Judge, and one witness in Tallahassee, Florida. The Petitioner, Petitioner's counsel, and two witnesses were present in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Perry Doran, II, Esquire

315 East Robinson Street, Suite 555 Orlando, Florida 32801

For Respondent: Anne Marie Frazee, Esquire

Department of Health

2020 Capital Circle, Southeast Bin No. A 02

Tallahassee, Florida 32399-1703 STATEMENT OF THE ISSUE

Whether the Petitioner should receive on the the clinical portion of the examination additional credit, which is sufficient to receive a passing grade on the December 1997 dental licensure

examination.

PRELIMINARY STATEMENT

At the time of the December 1997 dental licensure examination, the Department of Health had a contractual relationship with the Department of Business and Professional Regulation whereby the Department of Business and Professional Regulation administered and scored the examinations for the professions regulated by the Department of Health. In an examination grade report dated January 9, 1998, Petitioner was notified by the Department of Business and Professional Regulation, Bureau of Testing, that she had failed the clinical portion of the dental examination administered in December 1997.

On March 13, 1998, Petitioner timely submitted a request for a hearing to contest the grading of her examination. The Department of Health (Respondent) forwarded the file to the Division of Administrative Hearings for assignment of an Administrative Law Judge, on March 19, 1998. The case was scheduled for hearing. The formal hearing was continued at the request of Petitioner.

At the hearing Petitioner testified in her own behalf and also offered the testimony of three witnesses, including two expert witnesses. Petitioner's Exhibits 1 and 2 were offered and received into evidence. The Respondent presented the testimony of two expert witnesses, and Respondent's Exhibits 1 and 2 were offered and received into evidence.

A transcript was filed on September 4, 1998. Petitioner

filed her Proposed Findings of Fact and Conclusions of Law on August 28, 1998. Respondent filed its Proposed Recommended Order

on September 9, 1998. Both proposals have been given careful consideration.

FINDINGS OF FACT

1. Petitioner, Neda Raeisian, was a candidate for the dental licensure examination administered by the State of Florida in December 1997.

2. The dental examination administered in December 1997 consisted of three parts: a "Florida Laws & Rules" part, an "Oral Diagnosis" part, and a "Clinical" part.

3. The Petitioner received passing scores on the "Florida Laws & Rules" and "Oral Diagnosis" parts of the examination.

4. Petitioner received a score of 2.95 on the Clinical part of the examination. A score of 3.00 was required on the Clinical part of the examination. The Petitioner failed the Clinical portion by .05 of a point, and, therefore, she failed the overall dental examination.

5. Three examiners grade each candidate's clinical portion of the dental examination. Three examiners are used because by averaging the scores of the three examiners, the Respondent is more likely to capture the candidate's true score than by using one or two examiners.

6. Before an examiner may be used for an examination, he or she must be recommended by an existing examiner or by a member of the Board of Dentistry. The proposed examiner may not have any complaints against his or her license and he or she must have been actively practicing and licensed for at least five years in

   the State of Florida. The examiner must complete an application that is sent to the Board of Dentistry examination committee, where it is then reviewed by the committee, and if approved, the examiner is entered into the pool of examiners.

7. Before every examination, the Respondent conducts a standardization session, which is a process by which examiners are trained to grade using the same internal criteria. The Respondent uses assistant examiner supervisors who are appointed by the Board to train examiners on the different criteria that are used during the examination. The assistant examination supervisors go through and describe what a score of five would be, all the way down to a zero, the different criteria for each of those particular grades, and under what circumstances those grades should be given. After the examiners go through a verbal training, they are shown slides of teeth and told what the score on that procedure should be.

8. After the standardization, there is a post- standardization exercise where the examiners are required to grade five mannequin models to make sure they have been able to internalize the criteria.

9. After the post-standardization exercise, the Respondent evaluates the examiners to determine whether they are acceptable to use during the examination.

10. There are also post-examination checks on the examiner, whereby the Respondent decides whether or not to use the examiners again. The Respondent runs the post-examination

    statistical checks to make sure that the examiners grade with consistency and reliability. There is generally a very high agreement rate between the examiners.

11. Typically if there is an inconsistency in grading, it is usually the examiner who gives the higher grade that is incorrect because he or she missed an error; any error found by an examiner must be documented.

12. The examiners grade the examination independently of each other; that is, they do not confer with each other while scoring the examination.

13. The examination is also double-blind graded. Double- blind grading is the process through which examiners have no contact with the candidates. The examination is conducted in such a way that there is one clinic that is monitored by a licensed dentist in which the candidates actually perform the procedures. When the candidates are finished a proctor walks the patient over to another clinic where the examiners are located, and the examiners grade the examination.

14. The candidates perform the patient portion of the examination on human beings that they are responsible for bringing in. If the patient has the necessary characteristics, the patient could serve for two different candidates or on two different examinations.

15. The examination is a minimum competency examination. The grading system used during the clinical portion of the examination is as follows: A zero is a complete failure, a one

    is unacceptable dental procedure; a two is below minimally acceptable dental procedure; a three is minimally acceptable procedure, which is the minimum required to pass the clinical portion; a four is better than minimally acceptable dental procedure; and a five is outstanding dental procedure.

16. An overall score is determine by averaging the three examiners' scores on the eight clinical procedures, putting different weights into a formula, and calculating the final grade. It is required in Board rule that the scores of the examiners be averaged.

17. The Petitioner challenges the score given to her for her performance on Procedure 03, "Amalgam Final Restoration," of the Clinical portion of the examination.

18. The Petitioner performed Procedure 03, the "Amalgam Final Restoration," on a live patient, Ms. Desiree Peacock.

19. The Petitioner's performance on Procedure 03 was graded by three examiners: examiner number 290, identified as Dr. Richard Tomlin, of Pinellas Park, Florida; examiner number 299, identified as Dr. Haychell Saraydar, of Pinellas Park, Florida; and examiner number 176, identified as Dr. Leonard Britten, of Lutz, Florida.

20. The Petitioner received a grade of 4 on a scale of 0-5 for her performance on Procedure 03 by examiner number 290; and a grade of 3 on a scale of 0-5 for her performance on Procedure 3 by examiner number 299. However, she received a grade of 0 on a scale of 0-5 for her performance on Procedure 03 by examiner number 176.

21. The reason the Petitioner was given a score of 0 on procedure 03 by examiner number 176 was that the examiner felt that there was a lack of contact at the amalgam restoration site.

22. The Respondent's dental expert, Jorge H. Miyares,

    D.D.S., testified that a score of 4 is given on Procedure 3 when, in the judgment of the examiner, there are only minor errors present which will not jeopardize the procedure; that a score of

    3 is given on Procedure 03 when, in the judgment of the examiner, the procedure is completed at entry level; and that a score of 0 on Procedure 03 is mandatory if there is a total lack of contact.

23. The examiners are taught and trained to check for contact when grading a candidate's performance on Procedure 03, as a lack of contact is a very significant error that jeopardizes the integrity of the amalgam restoration.

24. There are two different types of contact involved in a Class II Restoration. The type of contact that was referenced by Examiner 176 in his grade documentation sheet is proximal contact. Proximal contact is when a tooth is restored, the proximal tooth next to it must be touching the tooth that has been prepared.

25. Contact is something that either does or does not exist between two teeth. Contact is checked visually and by running a piece of dental floss between the teeth to see if there is resistance.

26. Examiners 290 and 299 would have been required to give the Petitioner a grade of 0 on Procedure 03 if they had found a lack of contact.

27. The findings of examiners 290 and 299 during their review of the Petitioner's performance on Procedure 03 were inconsistent with the findings of examiner 176 (lack of contact)

    during his review of the Petitioner's performance on Procedure 03.

28. The inconsistency between the findings of examiners 290 and 299 and the findings of examiner 176 during their review of the Petitioner's performance on Procedure 03 were statistically unusual.

29. Respondent performed Procedure 03 on the patient Desiree Peacock. Following the exam, Peacock used dental floss on the affected area and she believed she felt resistance.

30. Although the grading on Procedure 03 of the clinical portion of the examination is inconsistent, the Respondent followed its standard testing procedures for the December 1997 dental examination.

31. The evidence is insufficient to prove that the Respondent's examiner acted arbitrarily or capriciously or with an abuse of discretion in refusing to give the Petitioner a passing grade on procedure 03 of the clinical examination.

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1997).

33. Any person desiring to practice dentistry in Florida is required to pass the licensure examination developed by the Respondent to test an applicant's competency as a dentist.

34. The Respondent is authorized to administer licensure

    examinations for dental candidates. Section 455.574, Florida Statutes (1997).

35. At the time of the December 1997 dental licensure examination, the Respondent had a contract with the Department of Business and Professional Regulation (DBPR), whereby DBPR

    administered and score the examinations for professions regulated by the Department of Health.

36. The burden of proof in this case is on the Petitioner, the party asserting the affirmative of the issue that is the subject matter of these proceedings. Antel v. Department of Professional Regulation, 522 So. 2d 1056 (Fla. 4th DCA 1988.) Petitioner must show that her examination merited the award of more points than she received and that any extra points given would be sufficient to attain a passing grade on the examination. Petitioner has the burden of proving by a preponderance of the evidence that the score given to her by the examiners on the December 1997 dental licensure examination was arbitrary or capricious or constituted an abuse of discretion. See State ex rel. Glaser v. J. M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of Electrical Examiners, 101 So. 2d

    583 (Fla. 1st DCA 1958).

    
    

37. Based on the facts found herein, Petitioner failed to meet that burden. Petitioner seeks to prove that there was contact between two teeth in Procedure 03. However, this tribunal cannot rely on the hearsay testimony given by Desiree Peacock relating to the alleged comments made by one of the Respondent's examiners or alleged comments made by her personal dentist in support of a finding of fact.

38. Under Chapter 120, any relevant evidence is admissible if it is the sort of evidence on which reasonable prudent persons are accustomed to rely in the conduct of their affairs. However,

    hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Sections 120.569(2)(e) and 120.57(1)(c), Florida Statutes (1997); Rule 28-106.21(3), Florida Administrative Code.

39. In addition, although the expert witnesses concur that the scores of the examiners on Procedure 03 were inconsistent and were statistically unusual, there was no testimony to indicate that the scoring by the examiners was arbitrary, capricious or an abuse of discretion. What was shown was that the examiners' observations were different from each other. This is insufficient to meet the burden of proof required in order for the Petitioner to prevail.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Petitioner's challenge to the grade assigned her for the clinical portion of the December 1997 dental licensure examination.

DONE AND ENTERED this 22nd day of September, 1998, at Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 22nd day of September, 1998.

COPIES FURNISHED:

Anne Williamson, Esquire Department of Health Building 6, Room 102

1317 Winewood Boulevard

Tallahassee, Florida 32399

Dr. Neda Raeisian 2161 Lake Debra Drive Apartment 1726

Orlando, Florida 32835

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast Bin A 02

Tallahassee, Florida 32399-1703

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle Southeast Bin A-02

Tallahassee, Florida 32399-1703

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: 98-001324

Orders for Case No: 98-001324