STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLEN T. CASTO, )

)

Petitioner, )

)

vs. ) Case No. 03-3955

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in West Palm Beach, Florida, on January 28-29, 2004.

APPEARANCES

For Petitioner: James Randolph Quick

Driftwood Plaza

2151 South U.S. Highway One Jupiter, Florida 33477

For Respondent: Cassandra Pasley

Senior Attorney Department of Health

Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation section of the clinical part of Petitioner's June 2003 Florida Dental License Examination was arbitrary or capricious.

PRELIMINARY STATEMENT

By Petition for Administrative Hearing Involving Disputed Issues of Material Fact dated September 10, 2003, Petitioner challenged the grade that he received on the Patient Amalgam Preparation section of the clinical part of the June 2003 Florida Dental License Examination. The letter challenges the Patient Amalgam Preparation score of one of the three examiners, who assigned Petitioner a low score because she determined that Petitioner completed the preparation of the tooth without removing all of the caries.

Prior to the hearing, the petitioner in DOAH Case No.

03-3998 sought the consolidation of his case with three other cases, including the above-styled case. All four cases involved dental examination challenges. Respondent opposed consolidation on the ground that consolidation would unnecessarily breach the confidentiality of the examination materials. The Administrative Law Judge denied the motion to consolidate the cases.

By the time of the hearing, two of the three other examination challenges had been dismissed. The parties were prepared to try to conduct the hearing of the remaining case, DOAH Case No. 03-3998, separately from the hearing in this case. However, to eliminate possible confusion, to reduce the inconvenience to witnesses testifying in both cases, and to

avoid the risk of an incomplete record, the Administrative Law Judge ordered that the entire transcript of the testimony of the witnesses would form part of the record in both cases, but the parties would introduce exhibits for each case separately, and each petitioner would be present only during testimony applicable to his case.

At the hearing, Petitioner called nine witnesses and offered into evidence one exhibit: Petitioner Exhibit 3. Respondent called five witnesses and offered into evidence ten exhibits: Respondent Exhibits 1-10. All exhibits were admitted. The Administrative Law Judge sealed Respondent Exhibits 4-8.

The court reporter filed the transcript on February 16, 2004. The parties filed their proposed recommended orders on

February 26, 2004.

FINDINGS OF FACT

1. Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.9, so he failed the clinical part of the examination.

2. Petitioner has challenged the grade of 2.0 that he received on the Patient Amalgam Preparation of the clinical part of the examination. The score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0

   that he received from one evaluator. Petitioner challenges only the score of 0, and he needs two additional points to pass the clinical part of the examination.

3. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring.

4. The section that is the subject of this case requires the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners.

5. For the section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communications between examiners and candidates are exclusively through monitor notes.

6. For the section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or

1. A score of 3 indicates minimal competence.

   
   

   1. The Patient Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth.

   2. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Patient Amalgam Preparation procedure, but this criterion is the only one of importance in this case.

   3. Examiners 207 and 394 each assigned Petitioner a 3 for this procedure, but Examiner 417 assigned him a 0. Examiners

      207 and 394 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 417 detected caries and documented her finding, as required to do when scoring a 0.

   4. Examiner 207 has served as an examiner for 10 years and has conducted 15-20 evaluation examinations during this time. Examiner 417 graduated from dental school in 1979. Examiner 394 has been licensed in Florida since 1995 and has served as an examiner only three years.

   5. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin.

   6. Despite the requirement to detect caries by touch, not sight, Examiner 417 initially testified that she detected the caries by sight. Later in her testimony, she backtracked and stated that she was not sure if she felt it or saw it. Her earlier, more definitive testimony is credited; Examiner 417 never found caries by touch, only by sight.

   7. In DOAH Case No. 03-3998, Examiner 417 readily conceded that she must have missed the caries that another examiner had detected, inspiring little confidence in her caries-detection ability. In that case, her value as one of two dentists in the majority was insignificant, even though the majority finding prevailed. In this case, Examiner 417's role as the lone dentist who found caries is too great an evidentiary burden for her to bear. The vagueness of her testimony and her

      reliance upon visual caries-detection preclude a finding of caries in this patient.

   8. Three other additional factors undermine Examiner 417's finding of caries. First, Examiners 207 and 394 found no caries. Examiner 207 has considerable experience. Examiner 394 has less experience, but he was the lone evaluator in DOAH Case No. 03-3998 to detect calculus deep below the gums, proving that he is both meticulous and a demanding grader. Together, then, the findings of Examiners 207 and 394 of no caries carry much greater weight than the contrary finding of Examiner 417. Nor was it likely that Examiner 417 accidentally dislodged the caries. No evidence suggest that she was the first examiner to examine the patient, and her means of detecting caries was visual, not tactile.

   9. Second, the location of the caries in this case was directly in the center of the tooth. So located, it was difficult for Petitioner and Examiners 207 and 394 to miss. Third, by two monitors' notes, Petitioner twice obtained the evaluators' permission to expand the drilled area, due to the extensiveness of the caries, suggesting that Petitioner was devoting careful attention to the removal of all caries, even if it meant an atypical site preparation.

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Florida Statutes (2003).

   11. Section 466.066(4)(b)1, Florida Statutes, authorizes the Board of Dentistry to administer a clinical examination to candidates for dental licensure.

   12. Florida Administrative Code Rule 64B5-2.013(1) provides:

       The grading system used during the clinical (or practical) examination for dentistry is as follows:

       1. . Complete failure

       2. . Unacceptable dental procedure

       3. . Below minimal acceptable dental procedure

       4. . Minimal acceptable dental procedure

       5. . Better than minimally acceptable dental procedure

       6. . Outstanding dental procedure

       
       

   13. Florida Administrative Code Rule 64B5-2.013(2)(c) requires an overall average of 3 to pass the clinical part of the dental examination.

   14. Florida Administrative Code Rule 64B5-2.013(4)(a)1 describes the Patient Amalgam Preparation section of the clinical part of the dental examination as follows:

       The grading of the clinical portion of the dental examination shall be based on the following criteria:

       1. Class II amalgam on a patient:

          1. Preparation:

             1. Outline form . all prepared surfaces smooth and acceptable extensions without weakening tooth surfaces.

             2. Depth . adequate shape and form designed to resist functional displacement forces.

             3. Retention.

             4. Mutilation of opposing or adjacent teeth.

             5. Debris removal from cavity preparation.

             6. Management of soft tissue is considered adequate in the absence of trauma or mutilation.

                
                

                It is the intent of the Board that each of the criteria are to be accorded equal importance in grading. Equal importance does not mean that each criteria has a numerical or point value but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the judgment of the examiner, could result in a failing grade on the procedure. The criteria do not have assigned numerical or point value but are to be utilized in making a holistic evaluation of the procedure. However, a grade of zero

                (0) is mandatory if caries remain; if gross overcutting occurs; if mechanical

                exposure occurs; if the preparation is prepared or attempted to be prepared on the wrong tooth or wrong surface; or if the candidate fails to attempt or complete the procedure.

                
                

   15. As the applicant, Petitioner has the burden of proving that the scoring of his test was arbitrary or capricious. Espinoza v. Department of Business and Professional Regulation, 759 So. 2d 1250 (Fla. 3d DCA 1999).

   16. A key factor in determining whether the scoring of an examination has been arbitrary or capricious is whether the evaluator deviated from the grading procedures adopted by the sponsor of the examination. See Harac v. Department of Professional Regulation, 484 So. 2d 1333 (Fla. 3d DCA 1986); Topp v. Board of Electrical Examiners for Jacksonville Beach,

       101 So. 2d 583 (Fla. 1st DCA 1958) (dictum).

       
       

   17. In this case, the lone examiner to issue a 0 deviated from the scoring procedure when she detected caries by sight, not touch. Examiner 417's score was wrong, and, as a departure from Respondent's approved evaluation methodology, it was arbitrary. For the reasons set forth in the Findings of Fact, the correct grade was not 0, but 3, as the two other examiners scored this procedure. Under the circumstances, Examiner 417's score of 0 was arbitrary and should be rescored a 3 or, in the alternative, discarded, so that Petitioner earns 3 points for the Patient Amalgam Preparation procedure based on the average of the two scores that are not arbitrary.

RECOMMENDATION

It is

RECOMMENDED that the Department of Health enter a final order granting Petitioner an additional two points on the clinical part of the June 2003 Florida Dental License

Examination and determining that he has passed this part of the dental examination.

DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 27th day of February, 2004.

COPIES FURNISHED:

R. S. Power, 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

William H. Buckhalt, Executive Director Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701

James Randolph Quick Driftwood Plaza

2151 South U.S. Highway One Jupiter, Florida 33477

Cassandra Pasley Senior Attorney Department of Health

Office of the General Counsel 4052 Bald Cypress Way, Bin A02 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-003955

Orders for Case No: 03-003955