The Issue Whether Petitioner should be issued a license to practice dentistry pursuant to Chapter 466, Florida Statutes.
Findings Of Fact Petitioner Dr. Lester Altman is a licensed dentist in the State of New York who practices dentistry in Brooklyn , New York. He has been in the private practice of dentistry since 1948. (Testimony of Petitioner) Petitioner applied for licensure as a dentist in Florida on two occasions in 1976 and took the necessary examinations for such licenses. On both occasions, he failed to achieve a satisfactory grade of 75 on the clinical examinations. He applied again in March, 1978, and was examined in June, 1978. He was informed by Respondent on July 5, 1978, that he had not achieved a final grade of 75 on the clinical examination and therefore did not qualify for licensure. Petitioner thereafter filed a petition for an administrative hearing which was referred to the Division of Administrative Hearings on July 27, 1979. (Testimony of Petitioner, Case pleadings, Exhibit 13) The June, 1978, clinical examination was conducted in Gainesville, Florida, by a group of examining dentists which consisted of certain members of the Board of Dentistry and other selected Florida dentists. Approximately 75 percent of the group had served previously as examiners. The clinical examination extends for a period of two days and applicants are tested in the areas of cast gold restoration, amalgam restoration, laboratory, denture setup, periodontal evaluation, and professional evaluation. Two separate grades are given for the cast gold restoration, amalgam restoration, and laboratory portions of the examination. Each of the six major parts of the examination is weighted for grading purposes and all scores are considered in arriving at a total score for the test. Each scored portion of the examination receives a grade ranging from 0 to 5, with 5 representing 100 percent and 3 being an average grade of 75 percent. The subject matter of the examination is determined by the Board of Dentistry and the individual grades for each portion of the examination are entered by two examiners on a grading form designed by a professional testing organization in conjunction with the Board for computer scoring. In order to ensure the validity and fairness of the examination, it is necessary that grading procedures be standardized by the examiners. This process is to preclude to the extent possible widely divergent scores being assigned to a particular portion of the examination by individual examiners. Such a standardization process takes place a short time prior to the administration of the examination at which all examiners are in attendance. At that time various criteria are established and the examiners practice grading various parts of the examination using models of teeth, slides, and the like. Grades are compared among the examiners and guidelines are established so that all examiners will be grading on the same criteria. During these sessions, Department Heads and other faculty personnel of the University of Florida Dental School participate and lecture to the examiners. The "professional evaluation" portion of the examination includes grading criteria for clinical judgment, professional judgment, instruments, patient management, clinical examination, and operatory arrangement. "Clinical judgment" deals primarily with the applicant's competence in diagnosing and performing the necessary dental work required in the examination. "Professional judgment" includes considerations of the applicant's concern for and demeanor toward patients as to prevention of pain, courtesy in avoiding appointment delays, and other matters reflecting his interest in the patient. Similarly, the applicant's treatment of his dental assistants is considered in this category. The other areas of patient management, instruments, clinical examination, and operatory arrangement deals with the cleanliness and appropriateness of instruments, extent of dental knowledge and decision making, and treatment of patients. In particular, the areas of clinical judgment, professional judgment, and patient management overlap one another in varying degrees. The professional evaluation segment of the examination is standardized at the early meetings of the examiners by full discussion of the grading criteria among the participants and arrival at a consensus as to uniformity. The examiners are instructed to make notations or check marks on the grading form in cases where a below average grade is entered. The standardization procedures were employed for the June 1978 clinical examination. (Testimony of Hite, Bliss, Santin, (Deposition - Exhibit 2), Dannahower (Deposition- Exhibit 3), Mullens (Deposition - Exhibit 1), Exhibits 4, 8, 12) At the time an applicant reports for the examination, he is assigned a random number which is placed on the various examination forms to provide anonymity. He is assigned his own operatory or treatment area to work in and his own laboratory desk. Various periods of the two-day examination session are spent in the laboratory and clinic areas. Two examiners grade the laboratory work. In the clinic there is an examiner in charge and normally two other examiners who view the candidates's work after each step of the examination and independently enter a grade on the scoring form. After the second examiner has entered the grade, he notes the grade given by the first examiner and, in rare instances where there is more than one grade difference between the two, a third examiner is called in to enter an independent grade of his own. Such an instance did not occur with respect to Petitioner's examination. The "professional evaluation" grade is entered during the last clinic session based on the examiners' observations of the applicants during the cast gold and amalgam restoration and periodontal parts of the examination. The two examiners who grade professional evaluation will have graded the applicant for at least 50 percent of the clinical subjects from which the professional evaluation grade is derived. These examiners also may observe notes or deficiencies entered by other examiners for other clinical portions of the examination and may take these into consideration when entering the professional evaluation grade. Each applicant retains a check sheet throughout the examination on which each step is initialed by the examiner contemporaneously with entry of the grade on the grade sheet to ensure that the applicant has completed each successive step of the examination. The check sheets are monitored by examination assistants to verify that each section of the examination has been completed and graded. There is no place on the check sheet concerning the "professional evaluation" segment of the examination because the grade is entered by the examiners without any prior request from the applicant to be graded in that area. The examiner in charge of the clinic at the time the professional evaluation grade is entered always is one of the graders for that part because he is an experienced Board member. In the case of Petitioner, two Board members graded the professional evaluation part of the examination. (Testimony of Hite, Bliss, Santin (Deposition) Dannahower (Deposition) , Mullens (Deposition), Exhibit 11) After completion of the examination, the scores on the grade sheets are tabulated and weighted to arrive at a final grade. Various statistical studies are made concerning the grading by new examiners to determine if their grading practices produce valid results. The two Board members who graded Petitioner's "professional evaluation" portion of the examination are experienced and considered to be valid graders by Respondent's testing consultant. Each examiner is assigned a number which is entered on the grading form by him at the time he grades a segment of the examination. As a matter of Board policy, the grade for "professional evaluation" is considered by the examiners to be a "3" which is a passing score unless the examiner determines that the grade should be raised or lowered based on the applicant's performance during the examination. Although a computer error was made on a December 1978 examination, none was made on Petitioner's grade sheet for the June 1978 examination. The 1978 computer error was corrected and the applicant was eventually permitted to retake a portion of his examination based on a separate erroneous grading procedure and thereafter obtained a license. The grading form includes blocks at the top of each segment of the examination which the examiner may use to enter his number and a grade for the second time. Although the entry of such items would be helpful in the event there is a conflict in the computer grade marked below the block, such entry is not required of the examiner and would not be "read" by the computer. One of Petitioner's examiners who was examiner Number 5 incorrectly entered the number "4" on the grade sheet portion of the examination. In the opinion of the Board testing consultant, such an entry by an examiner of an incorrect examiner number on the grade sheet would not affect the validity of any grade entered at that time. (Testimony of Hite, Bliss, Santin (Deposition), Dannahower (Deposition, Exhibits 8-9, 11) Petitioner's scores for the June 1978 practical examination were as follows: Amalgam Restoration 81.25; Cast Gold Restoration 70.87; Periodontal Evaluation 79.12; Professional Evaluation 62.50; Laboratory Evaluation 68.75; Denture Set-up 56.25. His overall average for the examination was 72.61. (Exhibit 12) Petitioner was unsatisfactory in four parts of the six-part clinical examination. These were denture setup, laboratory, professional evaluation, and cast gold restoration. Notations or check marks were entered on the grading form by examiners as to the deficiencies which prompted the unsatisfactory grades. As to cast gold restoration, one examiner noted "watch calculus" on the cavity preparation segment, and both examiners checked "margins" and reflected "open contact." Although the latter deficiency obviously existed at the time of the examination, a subsequent check of the patient after the examination revealed that the lack of contact was cured by the passage of time. In the laboratory portion both examiners observed "no contact" in the wax pattern portion, but only one examiner noted bubbles, pits, and sprueing in the casting part of the laboratory work. One examiner entered seven check marks on the denture setup portion of the examination and the other examiner entered four check marks for that part. In professional evaluation, one examiner checked "clinical judgment" and the other examiner checked both "clinical judgment" and "professional judgment." The one who entered a deficiency for clinical judgment did so due to the fact that calculus was present during the cavity preparation portion of the cast gold restoration procedure. The second examiner did not recall why he had entered the professional evaluation deficiencies on the grade sheet. Six different examiners participated in the grading of Petitioner's examination. In four of the nine areas which were graded by two examiners, the same grade was entered by both examiners. In the remaining five portions, the two examiners did not deviate by more than one grade score. Three examiners graded the Petitioner in the three areas of work upon which the professional evaluation grade was based. Two of these three examiners graded the professional evaluation portion of the examination. The patients upon whom Petitioner performed dental work during the examination experienced no pain or discomfort during the examination and are of the opinion that Petitioner treated them in an exemplary and professional manner at that time. (Testimony of Hite, Bliss, Dannahower (Deposition) Santin (Deposition), Weissman, Solomon, Exhibits 8-9, supplemented by Exhibits 5-7) Petitioner's scores for the December 1976 clinical examination were higher that those on the June 1978 examination for laboratory and professional evaluation. They were the same for periodontal evaluation and amalgam restoration. The cast gold restoration score was lower in the December 1976 examination. (Exhibits 12-13) Petitioner has had an active practice for many years in Brooklyn, New York, with an average of 15 to 20 patients per day and an annual gross income of over $100,000. The former owner of a large dental laboratory in New York City which produced dental appliances for Petitioner over many years found him to be extremely competent in the work provided to the laboratory. Several of his patients attested to Petitioner's excellent dental work and professional demeanor, and expressed the desire to have him serve as their dentist in Florida. (Testimony of Tauman, Karlin, Cohen, Solomon, supplemented by Exhibit 5)
Recommendation That Petitioner's application for a license to practice dentistry be denied. DONE and ENTERED this 11th day of December, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard Hixson, Esquire Room 1501 - The Capitol Tallahassee, Florida 32301 John P. Fuller, Esquire Fuller, Feingold, Weil and Scheer No. 802 Flagship Bank Building 1111 Lincoln Road Mall Miami, Florida 33139 Florida State Board of Dentistry Attn: Leah Hickel Administrative Assistant 2009 Apalachee Parkway Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DR. LESTER ALTMAN, Petitioner, DEPARTMENT OF ADMINISTRATIVE HEARINGS vs. CASE NO. 79-1639 BOARD OF DENTISTRY, STATE OF FLORIDA, Respondent. /
Findings Of Fact Petitioner enrolled as a student in the College of Dentistry, University of Florida, in the fall quarter of 1974. Petitioner's entering class was denominated by Respondent as the "Gamma" class. The curriculum at the College of Dentistry is divided into four components: Phase A; modular curriculum; selective program; and clinical conference. Of these, Phase A and the modular curriculum comprise the major portion of a dental student's education. The modular curriculum, which is apparently unique to Respondent's institution, is designed with a great deal of flexibility and individualization. Little emphasis is placed upon formal lectures, and after completion of basic level courses, students are allowed to perform the requirements of the modular portion of the curriculum at their own pace. As a student completes the various course modules, members of the thirteen different departments in the College of Dentistry "sign off" on a student's performance, indicating satisfactory completion, and the student moves on to the next module, or course of study. Despite the fact that students are allowed to progress at their own rate, the program is designed essentially for completion in four years. The grading system utilized is "pass-fail", instead of the traditional "A-F" system. Petitioner completed his third year in the College of Dentistry in good standing, and began what should have been his final year in September, 1977. The Student Performance Evaluation Committee ("SPEC") is a standing committee within the College of Dentistry whose function is to monitor dental students' progress through the curriculum; to commend those students whose performance within the College is outstanding; to recommend students for promotion; and to identify those other students having difficulty in one or more parts of the curriculum in order to facilitate the taking of appropriate steps to assist those students. SPEC is composed of eight faculty members and four dental students. In January, 1978, several clinical incidents involving Petitioner were brought to the attention of SPEC by way of recommendations from several members of the faculty in the departments of Operative Dentistry and Community Dentistry that Petitioner be placed on probation for a period of one quarter "... during which time his judgment and integrity be watched very closely ..." (Petitioner's Exhibit #9). One of these incidents occurred on December 14, 1977, at which time Petitioner submitted an impression of an onlay preparation for evaluation to determine whether the impression was suitable to be poured up to make a restoration. Petitioner represented to a faculty member that the impression had previously been approved by another faculty member which, upon further investigation, proved to be untrue. In fact, the impression had been part of an earlier post-test and had been given a failing grade by two other faculty members. Other incidents involved substandard performance by Petitioner in the preparation and placement of tooth-colored restorative materials, two Class II amalgams and a large MOD preparation. Petitioner's performance with respect to the clinical incident involving tooth-colored restorative materials indicated that he did not seem to remember teaching material and that he bad difficulty evaluating his own work. The other clinical incident involving the two Class II amalgams and the MOD preparation indicated that Petitioner did not seem to ... have a grasp of operative dentistry, at times exercises poor clinical judgment, and probably most importantly his attitude is very poor with regard to his own performance ... (Petitioner's Exhibit #9) SPEC met on January 31 and February 1, 1978 to consider the incidents described above and, by memorandum dated February 1, 1978, recommended to the Dean of the College of Dentistry that petitioner be placed on probation through June 1, 1978, because his clinical skills in Operative Dentistry were inadequate. SPEC also recommended to the Dean that during the probationary period Petitioner's clinical judgment and management of patient records be closely monitored. By letter dated February 2, 1978, the Dean of the College of Dentistry advised Petitioner that he had been placed on probationary status until June 1, 1978, and further informed Petitioner that "[y]ou clearly must realize the seriousness of this situation, and that your demonstrated clinical judgment and management will determine whether or not you are taken off probation (Petitioner's Exhibit #12). During the 1978 spring quarter, while he was on probation, Petitioner submitted a patient to a part-time faculty member in the Department of Periodontics to be "checked off" as through phase one of periodontal therapy. Before this "checkoff", no restorative work utilizing gold material can be used on a patient, although amalgams and tooth-colored restorative materials are allowable. Petitioner advised the faculty member that he had performed some restorative work, but that he had done nothing that was not permissible prior to approval of completion of the first phase of periodontal therapy. Upon examination, however, it was discovered that Petitioner had, in fact, performed restorative work in the form of either onlays or inlays using gold. Upon being confronted with this fact, Petitioner advised the faculty member that some other unnamed faculty members in Operative Dentistry were "out to get him", and that he did not need any additional problems. The faculty member advised his department chairman of his observations, and the matter was referred to SPEC for consideration. On February 17, 1978, Petitioner had a clinical appointment with a patient, and indicated to a faculty member that he was ready to take a final impression of a tooth which had been prepared for impression at an earlier appointment. Upon examination by the faculty member, it was discovered that the tooth had been improperly prepared, and Petitioner, with the assistance of the faculty member, made a new impression for the crown. The faculty member advised Petitioner that the crown should be fabricated as soon as possible, but Petitioner made no attempt to seat the crown on this patient until five-and-one- half weeks later. At that time, Petitioner appeared at a clinic with a crown which had been fabricated on a single die, with no opposing model or adjacent tooth to wax against. When the faculty member covering the clinic inquired about the location of the models from which the crown had been fabricated, Petitioner advised him that he did not have them. Thereupon, the faculty member required Petitioner to make a new set of impressions. When questioned later by another faculty member concerning this incident, Petitioner represented that he in fact had the models, but could not locate them. Subsequently, on April 11, 1978, Petitioner reported to clinic with the crown referred to above, and was advised by the supervising faculty member that the crown had to be redone, but that it could be adjusted and worn as a "temporary". Later in that same clinic period, Petitioner approached another faculty member requesting authorization to cement the crown permanently, whereupon he was advised that the second faculty member was aware of earlier instructions given to Petitioner that the crown should be cemented only temporarily. The second faculty member was later advised that Petitioner had falsely represented to the first faculty member that Petitioner had indicated that the crown had been approved for permanent installation by the second faculty member. On April 18, 1978, one of the faculty members supervising Petitioner's work, noted extrusion of an upper tooth in one of Petitioner's patients, on whom petitioner had earlier placed a temporary. When the faculty member questioned Petitioner as to whether the temporary had been off for any length of time, Petitioner indicated that he could not remember. However, when the patient was questioned, the faculty member learned that the temporary had, in fact, come off, and that the patient bad advised Petitioner of that fact and been told that it did not matter. Upon further questioning, the patient also revealed that the temporary had been off for as long as one-and-one-half months, thereby apparently causing the extrusion which the faculty member had noted upon clinical examination. As a result of these incidents, SPEC held additional meetings on May 11, 1978 and May 16, 1978, at which time it was determined that SPEC would recommend to the Dean that Petitioner be expelled from the College of Dentistry. On May 31, 1978, Petitioner first took the Mock Board examination administered by Respondent. This examination simulates the state licensing examination which must be passed before a dentist is allowed to practice in Florida. The examination is usually administered near a student's anticipated graduation date, and serves the dual purpose of familiarizing the student with the requirements of the examination for licensure, while at the same time affording the faculty a final opportunity to evaluate a student's maintenance of competency in the various areas tested. Those areas tested on the Mock Board examination are cast gold, amalgams, periodontics, gold lab, denture lab and a final category denominated "professional evaluation". The examination is graded on a scale from zero to five, with five constituting a perfect score, and three a "passing grade". In order to pass the examination an average score of three is necessary. On the May 30, 1978 examination, Petitioner's scores in the aforementioned six categories were, in their respective order, 2.66, 1.22, 1.50, 1.50, 1.83 and 4.00 for an overall average of 2.38. The Dean did not accept SPEC's recommendation that Petitioner be expelled, but instead advised Petitioner, by letter dated May 26, 1978, that he would not be graduated with the rest of his class in June, 1975, and that his probationary status would be continued through the summer and fall quarters of 1978. In addition, by letter dated June 7, 1978, Petitioner was advised of the conditions of his probationary program during the summer and fall quarters. Essentially, these requirements were that Petitioner would be assigned five patients to provide comprehensive patient care, requiring at least periodontal, operative, and fixed prosthodontic needs. Petitioner was advised that any member of the faculty could supervise specific clinical procedures for the assigned patients, but that final examination for each patient in the respective disciplines would have to be performed by certain specified faculty members. In addition, in the June 7, 1978, letter, Petitioner was advised: ... all of the patients will be presented to a review panel consist- ing of Drs. Low, Vertucci, and Leo upon completion of their treatment. This review will consist of a written case presentation and a clinical examination of the patients and their records by the review team. [Emphasis added] At the conclusion of his treatment of the assigned family of patients, Petitioner met with the review panel. Before meeting with the panel, Petitioner advised Dr. Leo that he was unable to have the patients appear before the review team for clinical examination. When the panel met, Petitioner made no written presentation as required by the terms of his probation, and when questioned about the lack of a written presentation, did not respond. As a result of this meeting, the review team determined that, in their judgment, both Petitioner's formal presentation and his management of his family of patients during his probationary period were unsatisfactory. On November 30 and December 1, 1978, Petitioner again was administered the Mock Board examination which he bad earlier failed on May 30, 1978. On this second occasion, Petitioner scored 1.34 on the cast gold section; 2.50 in amalgams; 1.75 in periodontics; 2.50 in gold lab; 2.00 in removable prosthodontics; and 3.00 in professional evaluation, for an overall average of 2.01. Subsequently, SPEC again met and recommended to the Dean that Petitioner not be allowed to graduate in December, 1978. Petitioner was, subsequently, placed on probation by the Dean for the winter quarter of 1979. By letter dated January 5, 1979, the Dean informed Petitioner of the conditions of his probation for the winter quarter. In order to complete the dental curriculum Petitioner was given assignments in the areas of Periodontics, Periodontics, Oral Diagnosis Clinic, and Operative Dentistry, and was required to pass the January, 1979 Mock Board examination. Of these requirements, only those relating to Operative Dentistry and the January, 1979 Mock Board examinations are pertinent to this proceeding. With respect to Operative Dentistry, the Dean's letter of January 5, 1979, required Petitioner to ... spend two one-half day sessions per week exclusive of cancellations in this discipline and work under the supervision of Dr. Antonson or Dr. Clark. The primary emphasis must be on cast gold restorations, amalgams and composite restorations. You must perform these procedures at a clinically acceptable level, which is a score of "3" or above. The patients will be provided from the TEAM pool of patients. [Emphasis added]. The winter quarter of 1979 was comprised of a ten-week period. During this ten-week period, Petitioner spent twelve one-half day sessions in Operative Dentistry instead of the twenty required as a condition of his probation. On January 25 and 26, 1979, Petitioner took the Mock Board examination for the third time. His scores on the examination were 2.0 in cast gold inlays; 1.83 in amalgams; 3.5 in periodontics; 2.0 in cast inlay lab; 3.5 in denture lab; and 2.0 in professional evaluation, for an overall average of 2.41. Although petitioner's overall average was up from the 2.01 he had scored on the November 30-December 1, 1978 Mock Board examination, he was still below the 3.0 average required to pass the examination. In addition, Petitioner's clinical work in the area of Operative Dentistry performed during the winter quarter of 1979, especially that work involving more complex amalgam procedures, was not performed at a clinically acceptable level so as to demonstrate a maintenance of competency. As a result, Petitioner was informed that he would not be allowed to graduate at the end of the 1979 winter quarter due to his failure to perform the requirements of his probation contained in the Dean's earlier letter to him of January 5, 1979. Petitioner was, however, allowed to remain at the College of Dentistry on probationary status during the spring quarter of 1979. By letter dated March 14, 1979, petitioner was advised that he could satisfy the remaining requirements for graduation by successfully completing three cast inlays or onlays; successfully completing three Class II amalgam restorations; and successfully completing the Mock Board examination. In addition, in this same March 14, 1979 letter, Petitioner was advised that [i]n the event that you do not complete these requirements during the spring quarter of 1979, you will be expelled from the College of Dentistry." (Petitioner's Exhibit No. 36). Petitioner participated in the Mock Board examination administered on March 1, 1979. The results of this examination were that Petitioner scored 0.66 in cast gold; 1.83 in amalgams; 1.50 in periodontics; 3.00 in gold lab; 4.00 in denture lab, and 4.00 in professional evaluation, for an overall average of 2.03. Although this was the fourth occasion on which Petitioner had taken the Mock Board examination, his score was the lowest of the ten persons who took this particular examination, and, in fact, Petitioner was the only student who failed the March, 1979 Mock Board examination. Thereafter, Petitioner again took the Mock Board examinations on March 12, 1979. On this occasion, Petitioner scored 1.00 in cast gold; 2.33 in amalgams; 1.75 in periodontics; 2.5 in gold lab; 3.67 in denture lab, and 4.00 in professional evaluation, for an overall average of 2.20. Petitioner successfully performed that portion of his probationary requirements for the spring quarter of 1979 with respect to completion of three Class III amalgam restorations. Petitioner did not begin work on the gold restoration requirement of his probation until April 27, 1979. Additional appointments were scheduled for May 1, 4, and 8, 1979. Temporary restorations Performed by Petitioner on May 1 and May 8 received unsatisfactory clinical evaluations. Thereafter, Petitioner was unable to complete the gold restoration on the patient with whom he had been working because of the patient's inability to keep scheduled appointments. Although Petitioner maintains that he was unable to obtain other patients for completion of his probationary requirement dealing with cast gold inlays or onlays, the record in this proceeding clearly establishes that there was an ample number of patients with the appropriate types of lesions available through the TEAM clinic in the College of Dentistry. Accordingly, Petitioner could have, through the exercise of reasonable diligence, located these patients and performed the necessary restorative work had he chosen to do so. Petitioner was advised that he would be allowed to take the May, 1979 Mock Board examination only upon completion of his other probationary requirements dealing with cast gold restorations and amalgam restoration. Since he did not successfully complete the cast gold restoration requirement he was not allowed to sit for the May Mock Board examination. Petitioner was expelled from the College of Dentistry on June 8, 1979. Petitioner contends herein that Respondent treated him unfairly in failing to furnish monthly written progress reports to him during his various probationary periods. However, it appears clear from the record that Petitioner neither complained to any faculty member concerning not receiving such reports, nor did Respondent on any occasion fail to make abundantly clear to Petitioner its evaluation of his performance. Petitioner also complains that Respondent's decision to expel him from the College of Dentistry was improperly based upon disagreements between Petitioner and various faculty members concerning Petitioner's integrity and moral standards, rather than upon Petitioner's academic performance. In this regard, although it clearly appears that various faculty members in the College of Dentistry were justifiably concerned about Petitioner's personal and professional integrity, the decisions made to place Petitioner on probation on numerous occasions, and ultimately to expel him, had ample basis in his failure to demonstrate that degree of competence necessary to justify the award of a diploma from the College of Dentistry. Further, Respondent's refusal to allow Petitioner to take the May, 1979 Mock Board examination, or to remediate only portions of the various other Mock Board examinations which Petitioner had failed in no way prejudiced Petitioner in his attempts to procure a diploma. In the first instance, the record clearly establishes that no other student in the history of the College of Dentistry was afforded an opportunity to take the Mock Board examinations five times, as was done in Petitioner's case. Petitioner's failure to complete the other probationary requirements imposed upon him in the spring quarter of 1979, together with his failure to pass the Mock Board examinations on five previous occasions, amply justified Respondent's refusal to allow him to sit for the May, 1979 Mock Board examination. Finally, Petitioner's argument that he was treated differently than other members of his entering class who were either given an opportunity to remediate portions of the Mock Board examination, instead of the entire examination as was required of Petitioner, or were graduated without passing the examination is without merit. In the first instance, there is nothing in the record to indicate that other members of Petitioner's class had demonstrated the variety and severity of problems present in Petitioner's work-- a factor which would be necessary in order to validate any conclusions based on a comparison of their treatment by Respondent. Secondly, as indicated above, Petitioner was given more than ample opportunity to remedy any deficiencies in his academic performance by virtue of his being allowed to remain in what is basically a four-year program for approximately five academic years. Despite these opportunities, petitioner was either unable or unwilling to demonstrate competence sufficient to justify award of a diploma. Both Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issue for determination is whether Petitioner successfully completed the clinical portion of the December 1997 dental hygiene examination.
Findings Of Fact In December 1997, Brandy Kern was a candidate for the dental hygiene examination (Examination). Ms. Kern had completed her dental hygiene studies at the University of Pittsburgh on or about April 29, 1995. She was an excellent student. Prior to making application for the Examination, Ms. Kern had obtained experience in dental hygiene by working as a dental hygienist in at least three dental offices over at least a two-year period in the State of Pennsylvania. Her employers, who were dentists, gave Ms. Kern very positive recommendations. Ms. Kern successfully completed all portions of the Examination, except for the scaling/calculus removal portion of the clinical part of the Examination. As a result, Ms. Kern did not successfully complete the overall Examination. The clinical examination consists of three parts: scaling and calculus removal, polishing, and root planing. The overall score for the clinical examination is determined from all three portions. Scaling and calculus removal counts as 70 per cent of the clinical examination; polishing as 10 percent; and root planing as 20 per cent. Each dental hygiene candidate is graded by three examiners. The clinical portion of Ms. Kern's examination was scored by three examiners. The examiners were 197, 243, and 320. Each examiner is a dental hygienist licensed in the State of Florida and is an experienced dental hygienist. An examiner must be recommended by an existing examiner or by a member of the Board of Dentistry (Board), have no complaints against their license, and be actively practicing. To become an examiner, an application must be completed and submitted to an examination committee of the Board. The committee reviews the application and, if approved, the applicant is placed in a pool of examiners. Before every examination, each examiner is trained in evaluating a procedure to make sure that it is properly performed. The Department of Health (Department) conducts a training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida and are appointed by the Board of Dentistry (Board). To further their training, after the examiners receive their verbal training, the examiners are shown slides of teeth which do not meet the clinical criteria of the examination. To make sure that the examiners have been able to internalize the criteria, following the standardization, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where mannequins are used and the examiners check for errors on the mannequins. After the examiners complete their examination, the Bureau of Testing evaluates the examiners to determine whether the examiners are acceptable to use for the Examination. Subsequent to the Examination, the examiners are scored by the Bureau of Testing. The scoring is based on an examiner's performance wherein the Bureau of Testing examines how every examiner grades with every other examiner to make sure that the examiners are grading with reliability. This review is based on corroborated errors found by an examiner, not on the average errors found by an examiner. The average errors found by an examiner are irrelevant to the examiner's performance in that one examiner may have graded candidates who made numerous errors, while another examiner may have graded candidates who made very few errors. For the Examination, candidates are required to bring human patients on whom the candidates perform the dental procedures. Each examiner grades the Examination independently. The examiners do not confer with each other while scoring the Examination. Furthermore, the Examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored by a licensed dental hygienist. When the candidate completes the procedures, a proctor accompanies the patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. For the scaling/calculus removal portion of the Examination, the grading criteria is that complete removal of all supra and sub-marginal calculus from each tooth, without laceration to the surrounding tissue, is required. If the tooth is not clean and/or if there is damage to the surrounding tissue, the candidate is considered to have made one (1) error. Pursuant to Board rule, each tooth is judged as a whole. Even if a candidate makes three mistakes in performing the procedure on each tooth, e.g., calculus could be above the gum, calculus could be below the gum, and/or the gum could be lacerated, only one (1) error is counted against the candidate. The examiners do not document what error was committed by the candidate, i.e., whether the error is a calculus error or a laceration error. In grading the scaling/calculus removal portion of the Examination, a grade of five is the highest grade that a candidate can receive. A five is given if there are zero to three errors found. A grade of four is given if there are four errors found. A grade of three, which is considered to be minimally competent, is given if there are five errors found. A grade of two is given if there are six errors found. A grade of one is given if there are seven errors found, and a grade of zero is given if eight or more errors are found. For an error to be counted against a candidate, at least two of the three examiners must corroborate the error, i.e., at least two of the examiners must find the error. For Ms. Kern's clinical examination, she was scored by examiners 197, 243, and 320. All three examiners participated in the standardization training and were considered qualified to act as examiners for the Examination. Ms. Kern's examination was double-blind graded. Each examiner independently graded her examination. Examiner 197 found one error. Both examiners 243 and 320 found seven errors each. Examiners 243 and 320 agreed on six of seven teeth on which errors were found. Consequently, Ms. Kern was considered to have committed six errors. A post-examination review of the examiners was conducted. Examiners 243 and 320 were found to be reliable in their scoring. However, examiner 197 was found to be unreliable in his scoring. Examiner 197 was not used again for the Examination. The scoring of six errors made by Ms. Kern on the scaling/calculus removal portion of the Examination is not arbitrary or capricious or an abuse of discretion. The scoring process is not devoid of logic and reason. However, because examiners do not document the type of error committed by a candidate, a candidate has no way of knowing what detail of a procedure was improperly performed. The candidate only knows that a procedure, as a whole, was improperly performed. Consequently, a candidate who desires to re-take the Examination has no idea what procedure needs improvement by the candidate in order to prepare for a re-taking of the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry enter a final order dismissing Brandy Kern's examination challenge to the clinical portion of the dental hygienist licensure examination administered in December 1997. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 6th day of August, 1998.
The Issue Whether Petitioner should receive a passing grade on the clinical portion of the dentistry examination administered in December 1996.
Findings Of Fact In June 1996, Petitioner, Arthur A. Gage (Gage), took the dentistry examination for licensure as a dentist in Florida. He was unsuccessful on the clinical part. In December 1996, Gage retook the clinical portion of the examination. He was notified by an examination grade report, mailed on January 13, 1997, that he had again failed the clinical portion of the examination. He achieved a general average score of 2.75. A final grade of 3 or better as a general average on the clinical portion is a passing score. Gage complains that there was inconsistency among the examiners in grading the examination. In particular, he submits that if you average the grades by each examiner on the mannequin portion of the examination that the averages are 3.25, 3.08, and 1.08. Gage averaged all the grades for each examiner and did not average by procedure. Consequently, Gage's approach did not produce a statistically meaningful result. Marsha Carnes, a psychometrician with the Department of Business and Professional Regulation (DBPR), testified for the Respondent. A psychometrician is an expert in testing and measurement. Ms. Carnes' responsibility is to ensure the validity and reliability of the examinations, including the dentistry examination. Ms. Carnes outlined the procedure used for selecting the examiners and the grading of the dentistry examinations. The examiners are selected by the Florida Board of Dentistry (Board) and must have five years of experience as a licensed, active dentist in Florida. The examiner must be recommended by a current examiner or member of the Board. Examiners must submit an application and have no complaints against their dentistry license. After the examiners are selected, they are trained by DBPR. Approximately one month prior to the dentistry examination, the examiners are sent the details of the examination, the clinic monitor, and an examiner instruction package. The examiner package outlines the grading criteria, the procedures for the examination, and the necessary paper work. The day before the examination, the examiners go through a standardization process conducted by the psychometrician and three assistant examiner supervisors from DBPR. The process takes approximately eight hours. There are nine clinical procedures in the dentistry examination. Three of the procedures are performed on a patient, five on a mannequin, and one is written. As part of the standardization process, the assistant examiner supervisors outline the criteria for each procedure that is on the examination and explain what is and is not minimally acceptable. The examiners are shown slides, and the supervisors explain what grade should be awarded for each procedure shown on the slides. The examiners are given a post standardization examination to make sure that they have internalized the criteria explained during the standardization process. The examination consists of the examiners actually grading models created by applicants in past examinations. Twenty-five different procedures are graded, and DBPR staff evaluate the grading of the examiners to ensure that they are grading consistently. Scores of zero through five are possible on each examination procedure. Five is considered to be an outstanding dental procedure. Four is better than minimally acceptable. Three is minimally acceptable. Two is below minimally acceptable. One is unacceptable, and zero is a complete failure. Rule 64B5-2.013, Florida Administrative Code. Three examiners independently grade each procedure. The dentistry examination is double-blind graded. The applicant has no contact with the examiners, and the examiners do not consult one another. This procedure was followed for the dentistry examination taken by Gage. The overall percentage score is determined by averaging and weighting the grades of the three examiners for each procedure. Statistically, averaging three grades is more accurate than using one grade alone. Gage complains about the inconsistency of the grading of the procedures on the mannequin. The examiners were identified by number as 080, 320, and 321. These examiners successfully completed the standardization process. Gage complains that Examiner 321 gave disproportionately low grades for the procedures performed on the mannequin. It is, however, more common for an examiner to give an inappropriately high grade than an inappropriately low grade. The higher grade can be a result of an examiner missing something, but the low grade must be justified in documentation and then actually verified on the mannequin. The three examiners for the mannequin procedures, when examined in the examiner's performance report, all had statistically acceptable measures of consistency and reliability. Gage complained that the patient on whom he performed the patient procedures had to make several trips to the restroom during the examination and that he did not have time to properly perform all the procedures. During the examination, Gage did not submit monitor to examiner notes, indicating there were any problems encountered during the examination or anything that he wanted the examiners to take into consideration in the grading. Prior to the perio and amalgam sections of the examination, the applicants are read a script that gives instructions as to what is to be done and how much time is allotted. The script provides that the applicants need to plan their usage of time in order to finish the procedures within the allotted four hours. Near the end of the examination, the applicants are advised of the time remaining until the end of the examination. Time management is important in the practice of dentistry because patients do not like to be kept waiting and because certain dental procedures must be executed within certain time frames. Applicants are advised before the examination how much time is allotted. Applicants are responsible for obtaining a patient for the examination. Gage received grades of four, four, and one on the class four composite filling portion of the examination. Examiner 321 gave the grade of one and documented that there was a margin open on the incisal. Dr. Thomas Shields III, who was qualified as an expert witness for the Respondent, reviewed the procedure and found that there was a definite click or catch on the incisal margin of the tooth, which was consistent with the grade of one. On the endo portion of the examination, Gage received grades of two, three, and zero. Dr. Shields reviewed the X-rays of the procedure, which showed that the final fill on the root canal had voids and was unacceptable and one of the tooth canals was not completely filled. On the prosthetic written portion of the examination, Gage scored 70 percent. In order to pass that portion of the examination, the applicant must achieve at least 75 percent, which equates to a 3.75 on a scale of zero to five. Rule 64B5- 2.013(2)(c), Florida Administrative Code. Gage complained that some of the pictures in the booklet were not very good and it was difficult to see which teeth were touching. He went to Tallahassee and reviewed the written portion of the test and made some comments concerning the test. Gage did not present his comments at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Arthur A. Gage failed to achieve a passing score for the clinical portion of the dentistry examination administered December 1996. DONE AND ENTERED this 7th day of January, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Janine B. Myrick, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102 Tallahassee, Florida 32399-0700 Arthur A. Gage, pro se 12688 Tucano Circle Boca Raton, Florida 33428
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.
Findings Of Fact 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. 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. 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. 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. 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. 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 A score of 3 indicates minimal competence. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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
The Issue The issue in this case is whether Petitioner should have received a passing score on the June 2001 Florida Dental Licensure Examination, notwithstanding Respondent’s determination that he failed the test.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Siegel, who graduated from dental school in 1999, took the June 2001 Florida Dental Licensure Examination (the “Exam”), which was administered by the Department on June 2 through June 5, 2001. The Exam had two parts, a Clinical Part and a Laws and Rules Part. The Clinical Part was further divided into ten sections, each of which consisted of a separate clinical procedure. The minimum passing score on the Laws and Rules Part was 75.00; on the Clinical Part, a minimum score of 3.00 was required to pass. As calculated by The Department, Siegel scored 70.00 and 1.49, respectively, on the two parts. Thus, according to The Department, Siegel failed both parts of the Exam. Each candidate’s performance on the Clinical Part of the Exam was scored independently by three examiners chosen by the Department.1 These examiners were not informed of any candidate’s identity, nor were the candidates told the examiners’ names; they were not permitted to speak directly to one another while the Exam was being administered. The examiners who graded Siegel’s clinical performance had successfully completed standardization training.2 Additionally, the Department determined, as part of a routine post-Exam statistical review of examiner performance, that these particular examiners were reliable in terms of their consistency in applying the proper grading criteria.3 To determine a candidate’s overall score on the Clinical Part of the Exam, the Department first computed the average of the three examiners’ raw scores for each individual procedure. Each average score was then adjusted using the percentages prescribed in Rule 64B5-2.013, Florida Administrative Code, to arrive at a weighted mean score. A candidate’s overall score on the Clinical Part was equal to the sum of his or her weighted mean scores for each section. At hearing, Siegel challenged just one clinical procedure, the Patient Amalgam Restoration.4 An amalgam restoration is a dental procedure that involves filling a cavity so that the affected tooth is restored to proper form and function. After this procedure, the treated tooth should closely resemble its original size and shape. Siegel’s raw scores on this procedure were very low. One of the examiners who testified at the hearing, a dentist with some 40 years’ experience, had awarded Siegel no points for the Patient Amalgam Restoration procedure because, after completion of the work, the restoration was fractured and the patient’s gingival margin was open. Another examiner, a dentist with 35 years of experience, explained at hearing that Siegel's work on the amalgam restoration was a failure; in this examiner’s opinion, the patient's tooth was actually in worse condition after Siegel had finished the procedure. The testimony of these examiners was credible and is accepted as being truthful and accurate. Accordingly, it is found that Siegel failed to perform the amalgam restoration with the minimum degree of skill and competence required for licensure as a dentist in this state. For his part, Siegel contended that one of the examiners (presumably the one who did not testify at hearing) had caused the restoration to fracture. Siegel based this theory on the account of his patient, Scott Graham, who testified that one of the examiners had "picked" at his tooth with a sharp instrument.5 (Mr. Graham is not a dentist.) Mr. Graham, however, had not complained about any alleged examiner misconduct at the time of the examination. Likewise, no examiner ever reported any such irregularity. In the absence of contemporaneous corroborating evidence, created before it became known that Siegel had failed the Exam, Mr. Graham’s testimony is simply not persuasive evidence of examiner misconduct. To be sure, it is theoretically possible that an examiner might damage a candidate’s work and then attempt to cover up his error by blaming the candidate. The evidence in this case, however, is not nearly sufficient to support such a finding. To underscore the point: Siegel’s theory is speculative at best. As for the remaining clinical procedures, while Siegel complained that his scores were not a reliable or accurate measure of his performance, he failed to introduce any persuasive evidence in support of this allegation. At bottom, the trier is not persuaded that the scores Siegel received were arbitrary, capricious, unfair, inconsistent, or otherwise objectionable. To the contrary, the evidence in the record demonstrates convincingly that the scores Siegel received on this Exam were reliable, correct, impartially rendered, and consistent with the grading practices used in scoring other candidates’ work.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Department advise the Board Of Dentistry to enter a Final Order (a) holding that Siegel's administrative challenge to the scores he received on the June 2001 Florida Dental Licensure Examination is without factual and legal merit and (b) declaring that Siegel failed said examination. DONE AND ENTERED this 19th day of February, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 19th day of February, 2002.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent regrade Petitioner's examination and give equal numerical point value to each criterion; it should also regrade procedure 3 giving consideration only to the grades of examiners 038, 02 and 048; all other requests for relief should be DENIED. DONE and ORDERED this 10th day of January, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1983.
The Issue The issue is whether Michael Germaine should be granted additional credit for Procedure 03-Amalgam preparation on the December 1988, dentistry examination or should be permitted to retake that portion of the examination at no additional cost.
Findings Of Fact Dr. Michael Germaine is a licensed dentist in the State of New York and has sought to be licensed as a dentist in the State of Florida. He has taken the Florida examination three times and has not passed the clinical examination. The last time Dr. Germaine took the Florida dental examination was in December 1988. The clinical portion involves the actual performance of various dental procedures on mannequin teeth and on live patients. On the December 1988, clinical examination, Germaine received an overall score of 2.97. The minimum passing score is 3.00. On Procedure 03- Amalgam preparation, Germaine received a score of 2.66. This score is the result of averaging the grades of 3, 2, and 3 given by three different examiners. During the clinical portion of the examination, a procedure is available to candidates for writing a "monitor's note." This procedure is the sole means by which a candidate may communicate with the examiners who will grade the procedures. The candidate could use this vehicle to advise the examiners about any problems or special circumstances encountered in the procedure in order to give the examiners all the information necessary to fairly and accurately grade the procedure. The process calls for the candidate to have a proctor summon a monitor who will oversee the preparation of the note and will deliver the note to the examiners. Procedure 03-Amalgam restoration involved filling a tooth with an amalgam filling after removal of a cavity. The procedure was timed. Within the allotted time, the candidate was to take an x-ray of the completed restoration. The x-ray was reviewed by the examiners. When Germaine looked at the x-ray for Procedure 03, he noticed what appeared to be excess loose amalgam lodged next to the tooth. He wanted to write a monitor's note to let the examiners know that he was aware of the excess amalgam that would be removed in the ordinary office setting. He was also concerned that the amalgam looked attached to the tooth, which would be a defect known as a gingival overhang. Dr. Germaine asked the proctor to send a monitor and then waited for the few minutes that remained of the time allotted for the procedure. When the monitor finally arrived, the time for the procedure had elapsed and for that reason the monitor did not allow Germaine to write a note. Procedure 03 was graded by three examiners. Examiner 195 gave a grade of 3, but noted on the grade sheet that there "may be loose [amalgam] at gingival margin (obvious on x-ray)." There is a place on the grader's sheet for certain "comments" to be marked if applicable to the procedure. Examiner 195 marked comments for Functional Anatomy and for Gingival Overhang. Examiner 131 awarded 2 points for the procedure and marked comments for Contact and for Gingival Overhang. Examiner 133 awarded 3 points and marked comments for Functional Anatomy and Margin. Dr. Theodore Simkin, accepted as an expert in dentistry, is an experienced examiner and has served DPR as a consultant doing grade reviews. Dr. Simkin acknowledges that Germaine should have been able to write a monitor's note, but such a note should not have changed the grading. Procedure 03 is a patient procedure and as such, examiners are only permitted to grade on what they see in the patient's mouth. The x-rays would only have served to alert the examiners to check the interproximal to see if the amalgam shown on the x-ray was gingival overhang or excess, loose amalgam. If the x-rays had been relied on for grading purposes, the grade would have been zero (0) because the x-rays show excess gingival overhang. Any gingival overhang which was as excessive as appeared on the x-ray would have mandated a grade of zero (0) as explained on the grading sheets of each examiner. Since a grade of zero was not given, it is apparent that the examiners thought the excessive amalgam shown on the x-ray was neither gross nor attached. That Examiner 195 was aware of the loose amalgam between the teeth is obvious from the grade sheet and from an Examiner to Monitor Instruction which went back to Germaine after grading. The instruction was to have the candidate remove the amalgam interproximal (between the teeth). Gross gingival overhang cannot be simply removed like loose amalgam can be removed. Even being aware of the loose amalgam, Examiner 195 still gave Germaine a passing grade of 3. Dr. Germaine maintains that the examiners were biased because they looked at the x-ray without having the benefit of the monitor's note which he was not allowed to write. The assertion is not supported by the competent, substantial evidence, but is instead based on speculation and assumption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Professional Regulation enter a Final Order dismissing the petition filed by Michael Germaine and denying him licensure as a dentist in the State of Florida. DONE and ENTERED this 28th day of September, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3899 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Michael Germaine Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3(2); 4-6(4-6); 7 first sentence (7); and 9(8). Proposed findings of fact 2 and 11 are unnecessary. Proposed findings of fact 7 second sentence, 12, 16, 17, and 20 are unsupported by the competent, substantial evidence. Proposed findings of fact 8, 13, and 14 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 10, 15, 18, and 19 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3). Proposed finding of fact 2 is unnecessary. Proposed finding of fact 3 is a mere summary of testimony and is not a proposed finding of fact. Copies furnished: Michael J. Cherniga Attorney at Law Post Office Drawer 1838 Tallahassee, FL 32301 Vytas J. Urba Staff Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The central issue in this case is whether Petitioner should be granted additional credit for the responses given during his practical examination for licensure which was conducted during November, 1991, and for which Petitioner entered this challenge.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner, David Sanders, is a candidate for chiropractic licensure. His candidate for licensure number is 200142, and he took the November, 1991, practical examination administered by the Department. Petitioner received a score of 64.0 on the practical examination. Petitioner's score fell below the minimum score for passing, 75.0. Petitioner timely challenged the examination results and claimed that the Department had incorrectly graded Petitioner's responses and performance during the examination. In this case, the practical examination was administered by two examiners who, independently of one another, scored the responses given by Petitioner when presented with two case studies. For Case 1, the scoring was divided into fourteen sections or subsections where the candidate was evaluated and given points based upon the responses given. For the orthopedics section of Case 1, the Petitioner was given a scenario of facts from which he was to determine the appropriate tests to be administered to the patient. Following selection of the tests to be given, Petitioner was required to perform the test. For an inappropriate test, no points were awarded, even if the candidate performed the test correctly. Of the nine tests listed, four were to be chosen and performed. One point was awarded for each appropriate test correctly performed. In response to the orthopedics section, Petitioner selected three appropriate tests to perform. Consequently, the maximum grade, per examiner, he could have received was a score of three. Petitioner received a score of two from one examiner, and a three from the other. The first examiner commented that the Yeomans test was wrong. Since Yeomans was an appropriate test to perform, and Petitioner correctly performed the test, Petitioner should have received a three on that section from that examiner. Under the neurological subsections of Case 1, Petitioner was required to identify, based upon the fact scenario given, four muscles which should be examined and tested. Petitioner only identified three relevant muscles. Consequently, he received a score of three from each examiner. The scoring on this subsection was correct. Under subsection 8 of the neurological portion Petitioner received no credit as he failed to select three appropriate tests and correctly interpret the responses. Accordingly, the scoring on this subsection was correct. The final subsection of the neurological portion was the diagnosis rendered based upon all the findings of the scenario and test results. Since Petitioner rendered an inappropriate diagnosis, no points were awarded. The scoring on this subsection was correct. Case 2 of the physical examination contained nine sections or subsections for which Petitioner could have received credit. The first section of Case 2 required Petitioner to obtain a history from the patient. To achieve a perfect score on this section, the candidate had to inquire into seven or more areas of relevant history. If so, the score for the section would be a four. In this case, Petitioner should have received a four from both examiners regarding the history taken. As it was, Petitioner only received a three from the examiners. In order to receive credit on the physical-selection portion of the test, Petitioner was required to auscultate the heart and lungs, and purcuss the chest. Since he failed to do so, the scoring on this subsection was correct. In connection with subsections 18 and 19 of Case 2, Petitioner failed to receive full credit because he did not indicate an appropriate laboratory test. Had Petitioner requested a SMAC test, full credit would have been given for both subsections. As it was, because Petitioner failed to request a SMAC test, he could not receive credit on either subsection. The scoring on these subsections was correct.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Chiropractic Examiners enter a final order changing Petitioner's score on the November, 1991, physical examination as noted above in order to recalculate and determine whether or not Petitioner failed the examination through no fault of his own. DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1992. APPENDIX TO CASE NO. 92-2709 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: With regard to paragraph 1, with the deletion of the words "on physical diagnosis" in sentence 1, the paragraph is accepted. Paragraph 2 is accepted. Paragraph 3 is rejected as contrary to the weight of the evidence. Paragraph 4 is accepted. Paragraphs 5 through 9 are accepted. COPIES FURNISHED: David Sanders 359 Glenwood Avenue Satellite Beach, Florida 32937 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Chiropractic Examiners 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
