STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAHRAM SHAHMOHAMADY, D.M.D., )

)

Petitioner, )

)

vs. ) Case No. 00-4055

)

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 21, 2000, by video teleconference in Tallahassee, and Miami, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Orlando Rodriquez-Rams, Esquire Lorenzo & Capua

9192 Coral Way, Suite 201

Miami, Florida 33165

For Respondent: Cherry Shaw, Esquire

Department of Health 4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1703 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a passing grade on the dental examination given on June 4-7, 2000.

PRELIMINARY STATEMENT

By examination grade report dated August 1, 2000, Respondent, Department of Health, Board of Dentistry (Department), notified Petitioner, Shahram Shahmohamady (Shahmohamady), that he had received a failing score of 2.98 on the clinical portion of the dental examination held on June 4-7, 2000. Shahmohamady requested an administrative hearing, and on October 3, 2000, the case was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.

Respondent filed Respondent's Motion to Dismiss Paragraph 4(a)-(e) of Petitioner's Notice of Appearance and Election of Rights for Lack of Standing on November 1, 2000. Respondent filed Respondent's Motion to Quash the subpoenas of Dr. John Joffre and Dr. Jeff Metcalfe on November 20, 2000. The motions were argued at the final hearing. Respondent's Motion to Dismiss was DENIED, and Respondent's Motion to Quash was GRANTED.

At the final hearing, Petitioner testified in his own behalf and called Marsha Carnes and Stuart A. Caplan as his witnesses. Petitioner's Exhibits 1 and 2 were admitted in evidence. Respondent called Marsha Carnes and Daniel A. Bertoch as its witnesses. Respondent's Exhibits 1-14 were admitted in evidence.

The parties agreed to file proposed recommended orders within 15 days of the filing of the transcript. The one- volume Transcript was filed on January 2, 2001. Respondent filed its Proposed Recommended Order on January 17, 2001. On January 22, 2001, Petitioner filed a request for extension of time to file his Proposed Recommended Order. Petitioner was granted leave to file his Proposed Recommended Order on or before January 31, 2001. Petitioner filed his Proposed Recommended Order on January 29, 2001. The parties' Proposed Recommended Orders have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Shahmohamady took the clinical portion of the dental licensure examination on June 4-7, 2000. He received a failing score of 2.98.

2. The clinical portion of the dental examination consists of nine parts: a written clinical, three patient procedures, and five mannequin procedures. The five mannequin procedures consist of the endodontic, preparation for a three- unit fixed partial denture, the Class IV composite, the Class II composite, and the Class II amalgam.

3. Shahmohamady challenges the grades that he received for the preparation for a three-unit fixed partial denture and the Class IV composite.

4. The Department retains examiners and monitors during the examination. The examiners actually grade the clinical procedures performed by the candidates during the examination. The monitors give instructions to the candidates, preserve and secure the integrity of the examination, and act as messengers between the examiners and candidates.

5. The procedures are blind graded independently by three examiners. The examiners do not know the name of the candidates they are grading. Each examiner grades the procedures independently of the other examiners. Discussion among the examiners is not allowed. The three examiners' grades for each procedure are averaged for the overall grade for the procedure.

6. Each examiner must attend and successfully complete a standardization course prior to the examination. The standardization session trains each examiner to use the same grading criteria. After the examination is concluded and the final grades are given, the Department performs an analysis of the examiners' grading to determine the reliability of each examiner's grading.

7. Candidates and examiners do not have contact during the examination. If a candidate has a problem during the examination, he is to alert a monitor. Candidates may fill out a Monitor-To-Examiner Instruction form, advising the

   monitor of any problem experienced during the examination. The monitor will read the comments of the candidate, and if the monitor agrees with the comments the monitor will write his monitor number on the form and circle the number.

8. The monitor will provide the comment forms to the examiners when they are grading the procedures. Each examiner is to read the comment forms. The examiner is to acknowledge that he has read the forms on the grade sheet by either writing SMN followed by the number of comment sheets he read for all the procedures or by writing under each procedure SMN followed by the number of comment sheets that he read for that particular procedure.

9. Shahmohamady filled out a Monitor-to-Examiner Instructions form on June 6, 2000, for the preparation for a three-unit fixed partial denture procedure and wrote the following:

   Doctor,

   As I was prepping tooth #20 on the sital aspect, the gas torch of the Candidate sitting in front of me (one row over) suddenly burst into a 3 foot flame that caused everyone to yell out. I inadvertently looked up and saw the flame without knowing where it was coming from and paniked [sic] and my bur gouged the mesial aspect of #19 (area of box [sic]

   
   

10. There is no disagreement among the parties that the incident involving the gas burner occurred and no disagreement

    that points should not have been deducted for the gouge of the adjacent tooth resulting from the gas burner incident.

11. The clinical procedures are graded on a scale of zero to five, with five being the best score. If an examiner gives a score of less than five, the examiner is to list a comment number, which corresponds to a list of comments for each procedure. The examiner may also list a comment number for things that the examiner observes during the grading, but for which no points are deducted.

12. For procedure 7, which is the preparation of a three-unit fixed partial denture, the comment list to be used by the examiner was as follows:

    1. Outline Form

    2. Undercut

    3. Insufficient Reduction

    4. Excessive Reduction

    5. Marginal Finish

    6. Unsupported Enamel

    7. Parrallelism

    8. Mutilation of Opposing or Adjacent Teeth

    9. Management of Soft Tissue

       X Additional Comments - Written

       
       

13. For procedure 7, Shahmohamady received a score of 5 from Examiner 289, a score of 4 from Examiner 315, and a score of 3 from Examiner 366. Each of the examiners was given the Monitor-to Examiner Instructions form with the note from Shahmohamady concerning the Bunsen burner incident. Shahmohamady challenges the score that he received from Examiner 366.

14. Examiner 366 put numbers 4, 5, and 8 on the comment portion of the grading sheet for procedure 7. Those comments referred to excessive reduction, marginal finish, and mutilation of opposing or adjacent teeth. He indicated that he had read the three comment sheets that were submitted for the mannequin procedures and so indicated by writing "SMN-3" on the grading sheet for Shahmohamady. Examiner 366 did not deduct points for the mutilation of the adjacent tooth due to the Bunsen burner explosion. The grade which Shahmohamady received for procedure 7 is correct and should not be increased.

15. After a candidate receives his grades for the dental examination, he may request an administrative hearing if he fails the examination. When the Department receives a request for an administrative hearing, the Department will regrade the procedures done by that candidate. The top three examiners from the examination based on the post-examination analysis that is done by the Department are chosen to regrade the procedures which are being contested. In addition to regrading candidates who have failed the examination, the examiners also regrade some candidates who have successfully passed the examination in order to ensure the integrity of the regrading process.

16. Shahmohamady challenged the grade he received on procedure 7 and procedure 4; thus his examination was regraded. Each of the grading sheets had the following comment listed on the grading sheet for procedure 7 prior to the regrading: "Ignore nicked adjacent tooth bunson [sic] burner explosion."

17. Procedure 7 was regraded by three examiners, one of whom was Examiner 366. Examiner 366 again gave Shahmohamady a score of three and included comment 4 on the comment section. Examiner 298 gave Shahmohamady a score of 2 for the procedure, included comment 4, and wrote "overtapered" on the grading sheet. Examiner 316 gave Shahmohamady a score of 3 and included comments 1, 4, and 5. Comment 1 referred to outline form. On regrading, Shahmohamady received an overall lower score for procedure 7 than he did in the original grading. Procedure 7 was graded correctly, and Shahmohamady is not entitled to additional points for that procedure.

18. Shahmohamady challenged the score that he received for the Class IV composite restoration. He received an overall score of 2.66. The Class IV composite restoration is a procedure that involves the candidate's ability to cut a section of the tooth off the corner of the biting edge of the front tooth below the level where it contacts the adjacent tooth. The candidate is required to restore the contact and

    the tooth structure to proper form and function in a tooth- colored material. Based on the expert testimony of the Department's witness, Dr. Dan Bertoch, the restoration done by Shahmohamady was not done properly and would fail prematurely. Examiner 366 opined that Shahmohamady did not appropriately restore the proximal anatomy and the proximal contour.

    Shahmohamady did not properly perform the Class IV composite restoration procedure and should not be given a passing score for that procedure.

19. Petitioner claims that Examiner 366 consistently graded Shahmohamady lower than the other two examiners. Based on the post-examination statistical analysis performed by the Department, Examiner 366 tied for second place in reliability for scoring. On a scale of 100, he scored 96, which is considered to be excellent. The other two examiners who were grading Shahmohamady clinical procedures scored lower on reliability than Examiner 366. Examiner 366's was a reliable grader and correctly graded Shahmohamady's examination.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

21. An examinee has the burden to establish that his failing score was a product of arbitrary or otherwise improper

    or erroneous grading. See Harac v. Department of Professional Regulation, 484 So. 2d 1333 (Fla. 3rd DCA 1986).

22. Rule 64B5-2.017, Florida Administrative Code, provides:

    (1) All clinical gradings by examiners are to be made independently. Each clinical procedure shall be graded by three

    1. examiners. On the clinical examinations described in Rules 64B5-2.103 and 59Q-2.019, the three independent grades shall be averaged to determine an applicant's final grade on each procedure of the clinical examination. . . .

       1. There shall be a variance review of all grades of all applicants taking the clinical part of the examination for the purpose of determining inter-examiners variance.

       2. Failure of an applicant in any clinical procedure may be documented on the grading sheet by the examiner. Documentation may be accomplished through the use of "comments" contained on the grade sheet. The "comments" section may contain any technical terms or charts that define, illustrate or otherwise explain the criteria utilized in grading a particular procedure. For the purpose of expedience and brevity in grading, appropriate "comments" may be noted by recording "comments" on an optical scan field contained on the grade sheet. . . .

    
    

23. Shahmohamady's examination was graded independently by three examiners. Examiner 366 correctly graded procedure 7 and the Class IV composite restoration, and the grades should not be changed for those procedures. Shahmohamady has failed to establish that the grade he received was arbitrary, erroneous, or improper. Shahmohamady's overall score of 2.98

on the clinical portion of the examination was correct, and he failed to pass the clinical portion of the examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Shahram Shahmohamady failed the clinical portion of the June 4-7, 2000, dental examination with a score of 2.98.

DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida.

___________________________________ SUSAN B. KIRKLAND

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001.

COPIES FURNISHED:

Orlando Rodriquez-Rams, Esquire Lerenzo & Capua

9192 Coral Way, Suite 201

Miami, Florida 33165

Cherry Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1703

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-0792

William H. Buckhalt, Executive Director Board of Dentistry

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

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: 00-004055

Orders for Case No: 00-004055