STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY W. LANDSAW,

Petitioner,

vs.

DEPARTMENT OF HEALTH,

Respondent.

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) Case No. 00-5107

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on April 2, 2001, by video teleconference between Tallahassee and Miami, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Frank P. Rainer, Esquire

Sternstein, Rainer and Clarke, P.A.

101 North Gadsden Street Tallahassee, Florida 32301-7606

For Respondent: Cherry A. 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 score on the pharmacology/ocular disease portion of the optometry licensing examination administered August 3, 2000.

PRELIMINARY STATEMENT

Petitioner sat for the pharmacology/ocular disease portion of the optometry licensure examination (pharmacology examination) on August 3, 2000. Petitioner received a failing score on the examination and thereafter timely challenged the grading of the examination. The challenge was referred to the Division of Administrative Hearings, and this proceeding followed.

Four different printings of the examination booklet will be discussed in this Recommended Order which, for ease of reference, will be referred to as Booklet A, Booklet B, Booklet C, and Booklet D. Respondent printed each of these booklets from its master examination item bank, which is maintained by computer. The first printing was to create the examination booklet used by Petitioner when he took the pharmacology examination on August 3, 2000 (Booklet A). The second printing occurred when Petitioner reviewed the examination material on November 7, 2000 (Booklet B). The third printing occurred when Petitioner reviewed the examination material on February 28, 2000 (Booklet C). The fourth printing was to create the examination booklet admitted into evidence as Respondent's Exhibit 5 (Booklet D).

On November 7, 2000, Petitioner reviewed Booklet B, his responses to the examination questions, the answer key, and

notes he had taken during the examination. He thereafter challenged the scoring of Questions 44, 55, 66, 74, and 75. At the formal hearing, Petitioner withdrew all challenges except those to Questions 44, 74, and 75.

Petitioner reviewed Booklet C in preparation for the final hearing on February 28, 2001.

At the final hearing, Petitioner contended that the Booklets A and B omitted certain information contained in Booklets C and D, and that the omissions impacted his answers to Questions 44, 74, and 75. Petitioner asserted that he is entitled to credit for Questions 44, 74, and 75 because his response to each question was the best answer to the question as it was presented to him when he took the examination. In the alternative, Petitioner asserted that the challenged questions should be invalidated and his examination re-scored without the challenged questions.

Respondent asserted that there were no material differences in any of the booklets and that Petitioner is entitled to no additional credit for any question because he failed to select the best answer for each question. Respondent also asserted that there is no basis to invalidate the challenged questions.

At the final hearing, Petitioner testified on his own behalf and introduced five sequentially numbered exhibits, each of which was admitted into evidence. Respondent presented the

testimony of Lee Skinner (a psychometrician) and Mark Liebetreu (an optometrist). Respondent offered nine sequentially numbered exhibits, each of which was accepted into evidence. Official recognition was taken of all pertinent statutes and rules.

A transcript of the proceedings was filed April 19, 2001.

Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Optometry is created as a part of Respondent by Section 463.003(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Optometry, which will enter a Final Order.

2. Section 463.006(1), Florida Statutes, provides that anyone seeking licensure as an optometrist must pass a licensure examination. Section 463.006(2), Florida Statutes, provides, in part, as follows:

   1. The examination shall consist of the appropriate subjects, including applicable state laws and rules and general and ocular

      pharmacology with emphasis on the topical application and side effects of ocular pharmaceutical agents. . . .

      
      

3. The optometry licensing examination consists of four separate examinations, one of which is the pharmacology examination. A candidate cannot be licensed as an optometrist in Florida until he or she passes all four examinations.

4. In 1999, Petitioner passed three of the four examinations, but he failed the pharmacology examination. Petitioner retook the pharmacology examination on August 3, 2000. Pursuant to Section 456.017(2), Florida Statutes, and Rule 64B13-4.002, Florida Administrative Code, Petitioner did not have to retake the three portions of the licensure examination he passed in 1999.

5. A candidate who fails a licensure examination has the right to review the examination material to determine whether he or she wants to file a challenge to the grading of the examination. Pertinent to this proceeding, Section 456.017(2), Florida Statutes, requires the following of Respondent:

   1. . . . provide procedures for applicants who fail an examination to

      review their examination questions, answers, papers, grades, and grading key for the questions the candidate answered incorrectly or, if not feasible, the parts of the examination failed. . . .

6. Respondent is required to maintain the examination material by Section 456.017(3), Florida Statutes, which provides as follows:

   (3) For each examination developed or administered by the department or a contracted vendor, an accurate record of each applicant's examination questions, answers, papers, grades, and grading key shall be kept for a period of not less than

   2 years immediately following the examination, and such record shall thereafter be maintained or destroyed as provided in chapters 119 and 257. This subsection does not apply to national examinations approved and administered pursuant to this section.

   
   

7. A candidate is not allowed to retain a copy of the examination material or to make any copy thereof. Rule 64B13- 4.003, Florida Administrative Code, provides as follows:

   (3) An applicant is entitled to review his examination questions, answers, papers, grades and grading key used in the state examination for licensure; however, no applicant may copy any materials provided for his review. . . .

   
   

8. A candidate has the right to a second review of the examination material in order to prepare for an administrative hearing. The candidate's attorney can participate in this second review. Rule 64B-1.009(1), Florida Administrative Code, provides, in pertinent part, as follows:

   (1) After the candidate's petition, which is a written statement requesting a hearing pursuant to 120.57, Florida Statutes, and setting out the information required under

   rule 28-106.201 of the Florida Administrative Code, has been filed, the candidate, and/or the candidate's attorney shall be permitted to review the examination questions and answers at the department's headquarters for the purpose of preparing for the administrative hearing, as specified in board rule or by the department when there is no board. . . .

   
   

9. The examination at issue in this proceeding was not a national examination.

10. Respondent maintains its master examination item bank for the optometry examination by computer. 1/ Typically, an examination booklet for a particular examination is printed from that computer item bank only when the booklet is needed for a legitimate purpose, such as an examination, a review, or a hearing. Once the booklet has served its purpose, it is destroyed.

11. A psychometrician and three consulting optometrists usually proofread the contents of a newly printed examination booklet before it is used for an examination.

12. The pharmacology examination at issue in this proceeding consisted of different case histories, each of which described a patient’s presenting condition and pertinent medical history. Each case history was followed by five questions with multiple choice answers. Candidates were instructed to select the best answer to each question from the multiple choice answers provided in the examination booklet.

13. Respondent printed Booklet D from its master examination item bank for use as an exhibit in this proceeding. Booklets A, B, and C were not available for use as exhibits.

14. Following his review of the examination material on November 7, 2000, Petitioner filed the Petition that underpins this proceeding.

15. Question 74 required a candidate to select the best treatment for a patient based on the patient's case history.

    The candidate had 7 possible answers, lettered A - G, from which to choose. Each of the choices was a prescription medicine. In discussing Question 74, the Petition alleged that according to the answer key, the best answer was a certain topical steroid, which was choice F on Booklet D. That assertion is wrong.

    Choice E, not choice F, was the choice identified by the answer key as being the best answer to Question 74. Petitioner's response to Question 74 on August 3, 2000, was choice B.

16. In discussing Question 44, the Petition alleged that according to the case history, a particular diagnostic procedure had not been performed on the patient. The last sentence of the case history for this question in Booklet D reflected the results of the diagnostic procedure that Petitioner alleged was not performed.

17. Petitioner reviewed the examination material, including Booklet C, to prepare for the final hearing in this proceeding on February 28, 2001.

18. Petitioner testified at the final hearing that the medication identified by Respondent as being the best response (choice E in Booklets C and D) to Question 74 was not an available answer in Booklets A and B.

19. Petitioner testified at the final hearing that the last sentence of the case history for Question 44 in Booklets C and D had been omitted from Booklets A and B.

20. Petitioner continued to assert that his responses to Questions 44, 74, and 75 were the best responses as those questions were presented to him when he took the examination.

21. Lee Skinner, a psychometrician employed by Respondent, supervised the administration of the pharmacology examination at issue in this proceeding. Mr. Skinner and three consulting optometrists proofread the examination booklets used for the August 3, 2000, pharmacology examination. Mr. Skinner testified that Booklet A was identical in all material respects to Booklet D and that the alleged omissions did not exist.

22. Consistent with Respondent’s policies, the hard copy of Booklet A was destroyed following the administration of the examination. Petitioner's answer sheet and the notes he took

    during the examination were preserved and were admitted as exhibits.

23. Consistent with Respondent's examination review policies, Petitioner was not permitted to retain a copy of or make notes as to Booklet A, B, or C.

24. For reasons that cannot be attributed to him, Petitioner’s testimony as to the alleged omissions in Booklets A and B could not be corroborated because hard copies of the examination booklets at issue were not available. 2/ Because Petitioner could not have a copy of or make notes from the examination booklets, he had to rely on his memory when preparing the underlying Petition and in testifying.

25. Mr. Skinner’s testimony that there were no material differences between Booklet A and Booklet D is credible and persuasive.

26. Petitioner failed to prove the alleged discrepancies between Booklet A and Booklet D.

27. A score of 70% is needed to pass the pharmacology examination. Petitioner's score on the pharmacology examination administered August 3, 2000, was a failing score of 68.5%.

28. Each of the three questions at issue is worth 0.75%.

    
    

    Petitioner would have to receive credit for a correct answer to at least two of the three questions at issue in this proceeding to attain the additional 1.5% he needs to pass the examination.

29. The case history for Question 44 contained all the information necessary for a candidate to select the correct answer. On August 3, 2000, Petitioner did not select the best answer to Question 44. Consequently, he is not entitled to additional credit for his answer to that question.

30. The case history for Questions 74 and 75 contained all the information necessary for a candidate to select the correct answer. Petitioner received no credit for his answer to Question 74 because he did not select the best answer to that question.

31. Question 75 required the candidate to select the correct dosage and manner of administration of the medicine that was the best answer to Question 74. Petitioner's incorrect answer to Question 74 caused him to miss Question 75.

    Petitioner received no credit for his answer to Question 75 because he did not select the correct answer to that question.

32. In addition to proofreading an examination booklet, a psychometrician typically reviews all answers to a licensure examination to make sure that no question was invalid. A question is considered invalid if 30% or fewer candidates select the answer identified by Respondent as being the best answer. Mr. Skinner reviewed all answers to Questions 44, 74, and 75 to determine whether an abnormal number of candidates missed each question. Based on the number of candidates that correctly

    responded to the three questions at issue compared to the incorrect answers, Mr. Skinner opined that each of the three questions was a valid examination question. 3/

33. Petitioner failed to establish a basis to disqualify Questions 44, 74, or 75.

    CONCLUSIONS OF LAW

    
    

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

35. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to additional credit for his responses to the examination questions. See Harac v. Department of Professional Regulation, 484 So. 2d 1333

    (Fla. 3d DCA 1986); State ex rel. I. H. Topp v. Board of Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1st DCA 1958); and State ex rel. Glaser v. J. M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963). Petitioner did

    not meet that burden in this proceeding.

    
    

36. The examination questions and answers are confidential pursuant to Section 456.014, Florida Statutes. A separate order sealing the transcript and the exhibits entered in this proceeding will be entered simultaneously with the entry of this Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner's challenge to the grading of his responses to Questions 44, 74, and 75 of the pharmacology examination administered August 3, 2000.

DONE AND ENTERED this 14th day of June, 2001, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 14th day of June, 2001.

ENDNOTES

1/ Respondent’s practice of maintaining its master examination by computer was not shown to violate the requirement set forth in Section 456.017(3), Florida Statutes, that it maintain an accurate record of Petitioner’s examination questions.

2/ Prior to the final hearing, Petitioner moved to shift the burden of proof to Respondent pursuant to the doctrine of spoilated evidence because the hard copy of the examination used by Petitioner was destroyed. The Administrative Law Judge presiding over this case when the motion was filed denied the motion. While Petitioner's ability to prepare for this proceeding was undoubtedly hampered by Respondent's policy that examination booklets be destroyed after each examination and by

its policies that restrict a candidate's access to examination materials, the validity of those policies is not at issue in this proceeding.

3/ As to Question 44, only 29 of 153 candidates for the pharmacology examination chose the response to the question selected by Petitioner. As to Question 74, 78 of the 153 candidates chose the answer selected by Petitioner. As to Question 75, 68 of 153 candidates chose the answer selected by Petitioner. Of the 153 candidates who sat for the pharmacology examination, 146 achieved a passing score.

COPIES FURNISHED:

Frank P. Rainer, Esquire Sternstein, Rainer and Clarke, P.A.

101 North Gadsden Street Tallahassee, Florida 32301-7606

Cherry A. 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 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary 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: 00-005107

Orders for Case No: 00-005107