Findings Of Fact The agency presented the testimony of Martha Bass, who is an employee of HRS and works in that agency's section which licenses medical technologists and technicians. She testified that Mrs. Lucy Escalada had come to her office seeking information on licensure. While there, Mrs. Escalada had prepared an application for licensure as a medical technician with supporting documents which Mrs. Bass identified and which were received as Exhibit F. Mrs. Bass stated that on the day following Mrs. Escalada's visit she had found certain documents on the floors adjacent to where Mrs. Escalada had been sitting. Mrs. Bass identified Exhibits A, B, and C as the documents she had found. Exhibit A was identified as the original of a Registry Certificate from the American Society of Clinical Pathologists. Exhibit B was an apparent altered copy of certificates of high school completion. Copies of Exhibit A and B were attached to Mrs. Escalada's application. Mrs. Bass stated she had turned Exhibits A, B, and C over to the legal department of HRS who had sent them to the Florida department of Criminal Law Enforcement (FDCLE) crime laboratory for analysis. She further identified Exhibit D as the report which she received from FDCLE on Exhibits A, B. and C. Mrs. Bass testified that Mrs. Escalada had been written and advised that the documents supporting her application were unsuitable and that she would have to submit other proof of her completion of High school. This had not been done by Mrs. Escalada. The Hearing Officer has examined the Exhibits A, B, and C and, without reference to Exhibit D concludes that Exhibit B is an altered original of Exhibit A and that a photocopy of Exhibit B was attached to Exhibit F to prove Mrs. Escalada's completion of high school.
Recommendation The Hearing Officer having found that the document, Exhibit B, to be an altered copy of Exhibit A, and having further found that a photocopy oft Exhibit B was used to substantiate Mrs. Escalada's satisfactory completion of high school recommends that Mrs. Escalada's application be denied pending submission of appropriate documentation of her educational, background, and further that the temporary license issued Mrs. Escalada be revoked. DONE and ORDERED this 16th day of August, 1976, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barbara D. McPherson, Esquire Division of Health and Rehabilitative Services Post Office Box 210 Jacksonville, Florida Mrs. Lucy M. Escalada 6110 S. W. 13th Terrace Miami, Florida 33144 also copy to: Mrs. Lucy M. Escalada at Manual Bocollao Apartado Postal #6-32 Guadalajara, Jalisco Mexico
Findings Of Fact I. The Respondent At all times pertinent to the charges, respondent held medical license No. ME 0025317 authorizing him to practice medicine and surgery in Florida. (P- 1) Respondent, a 52-year-old physician, attended medical school at the Montpellier University School of Medicine from 1961 to 1968, completed a one- year rotating clinical internship in Canada, then obtained his medical degree from Montpellier in 1971. He worked for the next two years as a medical assistant at University Hospital in Jacksonville, Florida, then worked one year as an assistant under the supervision of Dr. Sam Lamb, a Jacksonville physician. In 1972, respondent passed the ECFMG (Educational Council for Foreign Medical Graduates) qualifying examination, an examination foreign medical graduates must pass before becoming licensed in the United States. In 1974, he took the Florida Board of Medical Examiners' licensing examination, failed it, then took it again in 1975 and passed it. He is a member of the American Medical Association, Florida Medical Association, Duval Medical Society, and American Society of Bariatric Physicians. (Testimony of respondent; P-5) After receiving his Florida medical license in 1975, respondent opened an office for the general practice of medicine in Jacksonville, Florida. In December, 1976, he purchased the practice of Dr. Lyman J. Bolin, a recently deceased physician. (Testimony of respondent) For thirteen years, Dr. Bolin had specialized in bariatrics, 2/ the treatment of patients for obesity. When respondent purchased Dr. Bolin's practice, he received files of approximately 3,000 patients. Two of Dr. Bolin's physician trained medical assistants were retained by respondent after he observed their performance and confirmed their competence. He also adopted and continued to follow Dr. Bolin's customary office practice, as it was explained to him by Dr. Bolin's assistants. (Testimony of respondent; P-5) After taking over Dr. Bolin's practice in 1976, 25 percent of respondent's practice consisted of bariatrics, 75 percent was general practice. Gradually, the number of bariatric (weight-control) patients increased so that now they represent approximately 75 percent of his practice. (Testimony of respondent) Between October 17, 1979, and September 30, 1981, respondent purchased at least 1,001,000 tablets of phentermine and 1,010,300 tablets of phendimetrazine, both of which are scheduled controlled substances listed in Chapter 893, Florida Statutes (1981). He dispensed these drugs, as well as other controlled substances, to his patients for the purpose of treating obesity. The Department charges that respondent violated Chapter 458, Florida Statutes, by dispensing these drugs to patients without first performing an adequate medical examination. (Testimony of respondent; P-5) II. Respondent's Office Procedure When he took over Dr. Bolin's practice, respondent adopted an office procedure for treating new patients and follow-up visits, a procedure which he believed had been followed by Dr. Bolin. A new patient entering the office would be given a questionnaire and patient history form to complete. A medical assistant would take the patient's weight, blood pressure and pulse, then administer an EKG (electrocardiogram) and perform a hemoglobin (blood) test. The patient would then be taken to an examination room where respondent would review the patient's history, listen to the heart, lungs, examine the eyes with a light, and examine the abdomen. He would then tell the patient about food and cooking, how to make food tasty without large quantities of calories, the importance of dieting, and the importance of calories. The patient would be given paperback books and pamphlets on food preparation and calorie counting. Respondent would then explain what drugs the patient would be receiving, when they should be taken, and possible side-effects. He would then direct a medical assistant to dispense specific drugs to be taken, on a daily basis, during a four-week period. (Testimony of respondent) Medication dispensed to weight-control patients included Thyroid Extract (one grain daily), to enhance weight loss by increasing the metabolic rate; Phenobarbitol (a scheduled controlled substance), to help patients having difficulty sleeping because of the effect of other weight-control medications; diuretics, to rid the body of water buildup; and phentermine and phendimetrazine, to suppress the appetite. Phendimetrazine and phentermine should not be used by patients on tricyclic drugs or suffering from tachycardia, cardiovascular disease or depression. He also dispensed placebos, pills which had no direct weight-control or medical effects. (Testimony of respondent; P-5) Under respondent's standard office procedure, weight-control patients who returned for follow-up visits after exhausting their drug supply were taken to an examination room where medical assistants took their weight and blood pressure. 3/ Changes in these measurements were discussed with the patients and noted on their medical charts. If the medical assistants decided that respondent should see a patient, they would make a notation on the patient's chart. In most cases this notation was not made and follow-up patients were not seen or examined by respondent. After their weight and blood pressure were taken, most patients were told to wait in the reception room. Respondent would then review the patient's chart and decide whether to refill the prescription. If he decided a refill was appropriate, he would instruct a medical assistant to dispense another four-week supply of specified drugs. The patient, who was waiting in the reception room, would then be handed the drugs by a receptionist. Instructions on how to take the medications were affixed to the drug container. The usual charge for these visits, including drugs, was approximately $30.00. (Testimony of respondent, Hullender, Miller, Johnson; P-5) The Department relies on respondent's tea of three patients -- Deborah Hullender, Julia Miller and Geraldine Johnson -- in support of its charge that respondent engaged in a continuous course of conduct of dispensing medication, including controlled substances, without performing adequate medical examinations upon his patients. (Second Amended Administrative Complaint, Count I) Deborah Hullender. Ms. Hullender first visited Dr. Bolin, respondent's predecessor, as a weight control patient in 1976. On her initial visit, Dr. Bolin gave her a complete physical examination (.although omitting a blood test), then dispensed weight-control drugs. After Dr. Bolin's death, she became respondent's patient. Between 19-76-and 1981, he dispensed weight control drugs to her from one to four times a year. During her. visits to his office, she never saw him. Neither did she receive another physical examination. Typically, on arriving at his office, she would be weighed and her blood pressure would be taken by a medical assistant. She would then be given weight-control drugs. (She does not recall ever being asked whether she had experienced side-effects from the drugs.) She paid $20.00 a visit, which included the drugs. Until September, 178, respondent dispensed amphetamines to her. After that dated he dispensed phentermine, phendimetrazin, diuretic tablets, thyroid tablets, and placebos, to her, (Testimony of Hullender, respondent; P-5, P-8, P-10) Julia E. Miller. On May 11, 1979, Ms. Miller, a law enforcement officer with the Jacksonville Sheriff's Office, entered respondent's medical office in an undercover capacity. Her purpose was to obtain scheduled controlled substances for weight control. (She had a history of obesity and was on medication for high blood pressure.) Approximately 20 people were in the waiting room. Posing as a patient, she gave the receptionist her name and told her, falsely, that she had an appointment. When the receptionist. replied that she had neither a record of the appointment nor a patient file, Ms. Miller became indignant and--in an attempt to intimidate the receptionist--asked, "Does this happen often?" (Tr. 54) She also told the receptioniste that she had been coming there a year, that she had not been there in a couple of months, and that she had come now because she was gaining weight and [had] run out of pills." (Tr. 39) The receptionist asked her to put her name, address and phone number on a blank medical history form. (Subsequently, someone placed the notation, "misplaced file," on this incomplete form A few minutes later, Ms. Miller was escorted to another room where a medical assistant took her weight and blood pressure. She asked the assistant if she could have some stronger pills because the earlier pills had not had the desired weight-loss-effect. The assistants-- without asking about any possible side-effects from the unidentified pills she had been taking--replied in the affirmative. Ms. Miller returned to the waiting room. When she was called to the receptionist's window, she asked if she could have a two-month supply of pills. The receptionist agreed and gave her a two- month supply of diet pills, including two grains of thyroid daily, one diuretic every other day, and two tablets) of phentermine daily. Ms. Miller was charged $40.00 for the visit, including the drugs. (Testimony of receptionist, Miller; P-2) Respondent denies any knowledge of this incident. He denies having seen the patient history form completed by Ms. Miller, and denies having authorized the dispensing of drugs. He asserts that, without more information than was on the history form, he would not have authorized the dispensing of drugs. (Tr. 258) Respondent's denial is accepted as persuasive. The Department has not established, by the requisite quantum of evidence, 4/ that he authorized the dispensing of the four-week supply of drugs to Ms. Miller after reviewing an incomplete patient history form. It has not been proven that respondent saw Ms. Miller's incomplete history form, made any notation on it, or orally authorized the dispensing of drugs to her. The undisputed fact that the receptionist gave Ms. Miller the requested weight-control drugs does not -- standing alone -- establish that respondent authorized, or even knew of the transaction. This is especially so when, as here, the transaction deviated from his normal practice in two significant respects. First, respondent ordinarily had the patient's full medical chart before him when he authorized the dispensing of weight-control drugs; here, he had only a partially completed patient history form. Second, Ms. Miller was given a two-month supply of drugs -- respondent ordinarily authorizes only a one- month supply. (Testimony of respondent, Miller; P-2, P- 3, P-5) (c) Geraldine Johnson. On August 11, 1982, Ms. Johnson, a Department investigator, telephoned respondent's office, stated that her name was Johnson, and asked when she had last visited. (Her purpose was to determine whether respondent had a patient named "Johnson," whose identity she could assume.) The person answering the phone asked if her name was "Betty Johnson." Investigator Johnson, who quickly decided to assume that name, acknowledged that she was Betty Johnson and asked what her weight had been on her last visit. (Her purpose was to see if her weight and the weight of the real "Betty Johnson" were similar.) She was told that Betty Johnson's last weight entry (in March, 1982) was 172 pounds. (Although investigator Johnson believed her own weight to be 160 pounds, her subsequent visit to respondent's office revealed that she weighed 173-1/2 pounds.) Investigator Johnson then made an appointment, under the name of Betty Johnson, for later in the day. On arriving at respondent's medical office and identifying herself as Betty Johnson, investigator Johnson was escorted to a back room where a medical assistant took her weight and blood pressure, and noted them on Betty Johnson's medical chart. The assistant mentioned to investigator Johnson that she had lost some weight but that her blood pressure was a little high, then told her to return to the reception room. Investigator Johnson was not examined by respondent, although she saw him on the premises. The medical assistant did not examine her heart or lungs, take her pulse, or question her about her medical history. After a short time in the waiting room, the receptionist handed her a container of pills, including 28 thyroid tablets (blue), 29 phendimetrazine tablets (yellow), 28 phendimetrazin tablets (gray), 28 phendimetrazin tablets (pink and white), 27 phentermine tablets (.green and white), and 25 phentermine tablets Red and black). Investigator Johnson then paid the receptionist $20.00. Betty Johnson's medical record indicates that Dr. Bolin gave her a physical examination when she first came under his care. for weight control in June, 1975. She made frequent follow-up visits to his office: in 1975, five visits; in 1976, three visits. Respondent then took over Dr. Bolin's practice. In 1977, she made seven visits; in 1978, six visits; in 1979, one visit; in 1980, two visits; and in 1981, three visits. Respondent saw her but once -- in 1977 -- when he listened to her heart. (Testimony of respondent, Johnson; P-3, P-5) III. Respondent's Failure to Practice Medicine in Accordance with Prevailing and Acceptable Standards Guy T. Selander, M.D., and Samuel J. Alford, M.D., are physicians who have practiced family medicine or general practice in Jacksonville, Florida, for approximately 20 and 30 years, respectively. They are aware of the kind of physical examination which, under prevailing and acceptable community medical standards, is required before physician prescribes phentermine or phendimetrazine to a patient for weight loss or obesity. control. They are certified in family practice, a specialty which includes treating for obesity, and are accepted as reasonably prudent similar physicians within the meaning of Section 458.331(1)(t), Florida Statutes (1981). ($-7, P-.9) Their testimony establishes that minimal acceptable and prevailing community medical standards require that a physical examination be administered to a new patient before prescribing phentermine or phendimetrazine. This examination consists of taking a detailed medical history, and checking the patient's heart (including an EKG), lungs, and hemoglobin. Respondent's office procedure meets this community medical standard, (Testimony of respondent; P-7, P-9) The evidence does establish, however, that there were two instances where respondent violated both his office procedure and the prevailing community medical standard. Between 1977 and 1981, he dispensed to Debbie Hullender and Betty Johnson--both under his continuing care for obesity control--phentermine and phendimetrazine, without first having given them physical examinations. (Testimony of Hullender, respondent; P-3) The testimony of Doctors Selander and Alford also establishes the minimal acceptable and prevailing community medical standard concerning the type of examination which must be performed on a follow-up patient prior to prescribing or dispensing phentermine or phendimetrazine for weight-control. This standard requires the physician to see the patient at intervals not exceeding 60 days. During those visits, the patient's weight, pulse, and blood pressure are taken and the physician questions-the patient to discern any possible side-effects from drugs prescribed earlier. (P-7, P-9) Respondent--both in his routine office procedure and in the specific care he gave Debbie Hullender and Betty Johnson --violated this minimal acceptable and prevailing community medical standard. (Testimony of respondent, Hullender, Johnson, P-7, P-9) Respondent's testimony that his medical care complied with the minimal prevailing and acceptable community medical standards is rejected as self- serving and uncorroborated by independent and substantial evidence. The testimony of a pharmacist that unnamed physicians have sometimes authorized the refill of a phentermine or phendimetrazine prescription--without seeing the patient--establishes only that there may be one or more other physicians in the Jacksonville area who have violated the prevailing and acceptable community medical standards. (Testimony of respondent, Langston)
The Issue The issue is whether the examination was unfairly graded, and if so, whether petitioner would have passed, if it had been graded fairly.
Findings Of Fact Petitioner Bruce K. Barr almost passed the clinical portion of the December 1981 examination administered to applicants for Florida dental licenses. On a scale of 0 to 5, he scored 2.992, rounded to 2.99, the merest fraction below the lowest possible passing grade, 3.0. In the course of the clinical portion of his examination, Dr. Barr performed various dental procedures, each of which was evaluated by three and, in one instance, five examiners. An average score was computed for each procedure and these scores were used to calculate another weighted average, which was the final score awarded Dr. Barr on the clinical portion of the examination. The following chart, based on joint exhibits B and E, reflects the scores Dr. Barr received from each examiner for each clinical procedure, reflects the average score calculated for each procedure, and indicates the weight given each procedure in calculating the weighted average of 2.99. Procedure Scores Grade for Weight Procedure Endodontics Posterior 4,3,3 3.33 7.5 percent Cavity Prep. Final 4,4,3 3.67 13.3 percent Restoration 3,3,2 2.67 6.6 percent Anterior 4,3,3 3.33 7.5 percent Amalga Denture Occlusal R & Pressure and T 2,2,2 2.00 10.0 percent Articulation 4,3,3 3.33 10.0 percent Peridontal Cavity Prep. Final 3,1,1 1.67 10.0 percent Restoration 3,2,2 2.33 5.0 percent Evaluation 5,4,4,3,2 3.60 20.0 percent Cast Gold Pin Amalgam Prep. Final 3,3,3 3.00 6.6 percent Restoration 3,3,2 2.67 3.3 percent The weight to be given each procedure is specified by Rule 21G-213(3), Florida Administrative Code. Dr. Barr contends that the 2 he received from one of the examiners who evaluated his periodontal work, the 2 he received from one of the examiners who evaluated the final amalgam restoration he performed, one of the two 3s he received from examiners who evaluated the denture pressure and articulation procedures he performed, and the 2 he received from one of the examiners who evaluated his pin amalgam final restoration were improper for various reasons. All of the clinical examiners were licensed as dentists in Florida and none had practiced less than five years. After they had been selected as examiners, they gathered for an all-day standardization session to "fine tune [the criteria] and come to a consensus about how they [we]re going to grade." (T. 62) At this session, the examiners applied the "criteria in a full mock examination. . ." (T. 62) Department heads from the dental school of the University of Florida participated in the standardization exercises (T. 81). The grade of 3.0 was chosen to represent "minimally acceptable." In no case did one examiner know what grade another examiner had given. In an effort to ensure uniformity in grading, two additional examiners were asked to evaluate a procedure, whenever any two of the first set of three scores were separated by three or more points. When additional examiners were assigned to a procedure, they were not told how many other evaluations had been performed, although circumstances were sometimes such that they could deduce that they were not among the first three examiners to evaluate. DOCUMENTATION The examiners were furnished a form for each evaluation of each of the procedures. More than 17,000 evaluations took place in connection with the December 1981 Examination. On the forms were listed the criteria to be applied and "canned comments" pertaining to each procedure. The "comments" section on the periodontal evaluation form, for example, read as follows: "0-No Comment; 1-Stain; 2-Supra-gingival Calculus; 3-Root Roughness; 4-Sub-gingival Calculus; 5-Tissue Management." The numbers were to permit coding so that the form comments could be read by a machine and do not correlate to any particular score. Examiners were asked to indicate on the form a grade for each procedure they evaluated and, for each procedure which they gave a failing grade (2.0 or lower), they were asked to assign a reason. Whether they made comments on procedures to which they gave grades of 3.0 or better was left to their discretion. PERIODONTAL EVALUATION Because of the three point spread between the 2 and the 5 he received from two of the three examiners who originally evaluated respondent's periodontal work, two additional examiners were asked to make evaluations. All five scores were then averaged, in keeping with the procedure applied in every such case. Examiner No. 36 assigned a grade of 5 and indicated, "No Comment." Examiners Nos. 37 and 71 each assigned a grade of 4 and indicated, "Sub-gingival calculus." Examiner No. 72 awarded the procedure a 3, noting root roughness and sub-gingival calculus. Examiner No. 5 assigned a grade of 2, noting sub- gingival calculus and "Tissue Management." The person on whose teeth petitioner performed the periodontal procedures had moderate roof roughness and "pockets," extensive calculus above and below the gum line, and extensively stained teeth. Respondent's Exhibit No. 3. It was a difficult assignment, and the examiners were so advised. Tissue mismanagement, if any, was not such as to justify a failing grade. Petitioner has had extensive training and experience in periodontics, which is his specialty. AMALGAM RESTORATION Examiners Nos. 5 and 72 each assigned a grade of 3 to petitioner's "final amalgam restoration," indicating problems with "functional anatomy" and "proximal contour." Examiner No. 36 gave this procedure a grade of 2, noting the same problems as the other examiners had indicated, and, in addition, "light contact" and a problem with "margin." Light contact refers to the resistance dental floss met when inserted between the filling and the adjacent tooth; and insufficient resistance could be characterized as a problem with "proximal contour." As for the pin amalgam, final restoration, all three examiners noted problems with functional anatomy. Examiner No. 37, who gave this procedure a grade of 2 wrote out "innocclusion" on the form. The other examiners assigned a grade of 3 but examiner No. 71 noted a problem with "proximal contour" and examiner No. 36 noted a problem with "margin." DENTURE PRESSURE AND ARTICULATION All three examiners who evaluated petitioner's work on dentures commented on "[e]xtension" which relates to the fit. That was the only comment of Examiner No. 72 who gave petitioner a grade of 4 on this procedure. Examiner No. 71 who awarded petitioner a grade of 3 on this, noted a problem with "surface detail" in addition. Even at the time of hearing, there was some detail on the model made by petitioner in performing the required procedure for the examination. Examiner No. 36, who also awarded petitioner a grade of 3 for this procedure, indicated still other problems: "Pressure Areas" and "Distribution." TEST DESIGN The clinical portion of the examination prescribed for licensure as a dentist proceeds on the assumption that different clinicians' evaluations of an applicant's work will vary, even after the examiners have discussed criteria for each procedure and taken other steps toward standardization. Because disagreement is anticipated, three examiners evaluate each procedure independently of one another. Whenever there was more than a two point difference between grades awarded for the same procedure, two additional examiners were called in, in an effort to enhance the reliability of the grade for that procedure. In petitioner's case, there was a three point spread between two evaluations of his periodontal work and a two point spread between different examiners' evaluations of his cast gold cavity preparation, but no more than a single point disparity on any other procedure. The test design contemplates differences of this magnitude. All these safeguards notwithstanding, the test also assumes that there will be errors with respect even to average scores on given procedures. It depends for its reliability on the probability that such errors will not all be in the same direction. Florida's clinical examination employs more examiners and more procedures than any other state's, and compensating errors should make it among the most reliable of examinations of its kind. Proposed findings of fact and proposed recommended orders have been considered and, in many instances, adopted in substance. Otherwise they have been deemed immaterial or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for licensure with leave to reapply. DONE and ENTERED this 20th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of April, 1983. COPIES FURNISHED: M. Catherine Lannon, Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301 Bruce K. Barr, D.D.S 532 Madison Avenue New York, New York 10022 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner should be afforded a passing grade on the contract administration part of the building contractor's examination administered to him on September 8, 1994 and November 3, 1994.
Findings Of Fact Respondent is the state agency responsible for testing and licensing of individuals who seek licensure as building contractors in the State of Florida. Petitioner is an applicant for licensure, having taken the building contractor's examination on September 8, 1994 and November 3, 1994. The minimum score required to pass the examination is 70. Petitioner received a score of 67 on the September 8, 1994 examination. He received a score of 63 on the November examination. Examination materials were clearly and unambiguously presented on each occasion that Petitioner took the examination. Further, Respondent provided information regarding protest procedures to Petitioner, sufficient to permit him to protest what he has alleged to be poor graphic quality of examination blue prints. The challenged examinations contained sufficient and correct information for a candidate to select correct responses. Correct responses to the exam questions are supported by approved reference materials. Correct responses did not require knowledge beyond the scope of knowledge that could be reasonably expected from a candidate for licensure. The examinations challenged by Petitioner were reliable and valid. The challenged exams are not arbitrary, capricious or devoid of logic. There exists no evidentiary basis to award Petitioner additional credit for his examination responses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the relief requested by Petitioner. DONE and ENTERED in Tallahassee, Florida, this 24th day of May, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-8. Rejected, Petitioner's proposed findings obviously reflect his heart felt concern that he has not been treated fairly in the testing process. Unfortunately, the weight of the evidence supports a finding that the scores received by him in this instance were not improperly awarded. Respondent's Proposed Findings 1.-3. Rejected, unnecessary to result. 4.-11. Accepted. COPIES FURNISHED: Bernard F. Aebly 1251 Ida St. Jacksonville, FL 32208-3572 William M. Woodyard, Esq. D B P R 1940 N. Monroe St. Tallahassee, FL 32399-0750 Richard Hickok Executive Director D B P R 7960 Arlington Expwy., Ste. 300 Jacksonville, FL 32211-7467 Jack McRay General Counsel D B P R 1940 N. Monroe St. Tallahassee, FL 32399-0792
Findings Of Fact Petitioner took the chiropractic examination given by Respondent on November 4-7, 1992. The examination consists of three parts; physical diagnosis, technique, and x-ray interpretation. The minimum passing grade on each part is 75. Petitioner received an 80 on x-ray interpretation and a 36.5 and 67.5, respectively, on the physical diagnosis and technique parts. Here, Petitioner challenges only his score of 67.5 received on the technique part of the examination. If Petitioner passes the technique portion of the examination, he will be required to pass only the physical diagnosis in order to complete the examination requirements for his license. The technique portion of the examination consists of five clinical cases and four follow-up questions on each case. The technique part of the examination is timed. Like all candidates, Petitioner was provided with a timer and informed that no more than 10 minutes was allowed for all five cases, including the 20 follow-up questions. Petitioner neither stated a need for additional time nor requested additional time to complete the technique portion of the examination. Petitioner has only one leg and would have been given additional time if requested. Petitioner's challenge to the technique part of the examination is limited to clinical Case 1. No challenge is made to the follow up questions to Case 1. Case 1 required Petitioner to set up an appropriate technique for a patient who was eight months into pregnancy. The patient had a left anterior superior ilium. The condition of anterior superior ilium is more often associated with trauma to the buttocks or a fall on one's hip than with pregnancy. Pregnancy causes the joints to move easily and requires special consideration when performing adjustments. Special consideration includes different set-up, contact, and line of drive. Petitioner's first form of adjustment for Case 1 was his own adaptation for the facts presented. Petitioner changed the contact points and line of drive from that reasonably considered appropriate under the circumstances. Once the contact points were improperly changed, the line of drive was incorrect.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY Petitioner's request for credit on Case 1 and a passing grade on the technique portion of the chiropractic examination given November 4-7, 1992. DONE and ENTERED this 18th day of August 1993, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993 APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0699 Petitioner's Proposed Findings of Fact Petitioner submitted no proposed findings Respondent's Proposed Findings of Fact 1.-8. Accepted in substance COPIES FURNISHED: Robert J. Dixon 8300 U.S. #1 North Micco, FL 32976 Vytas J. Urba, Esquire Dept. of Business and Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Diane Orcutt Executive Director Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack Mcray Acting General Counsel Dept. of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Department should give the Petitioner a passing grade on the June, 1993, Board of Dentistry Clinical Examination.
Findings Of Fact The Petitioner, Jose P. Cruz, took the June, 1993, Board of Dentistry Clinical Examination. Initially, he received a grade of 2.91, whereas a grade of 3.0 is passing. He requested a review of his grades and received some additional credit, raising his grade for the examination to 2.98--still failing, but quite close to a passing grade. The examination grade is a weighted aggregate made up of scores given on each tested procedure, using a formula for weighting the scores on each procedure. The possible scores for each procedure range from zero to five, with a score of three considered "passing" for a particular procedure. Likewise, weighted aggregates can range from zero to five, with a grade of 3.00 passing. Each procedure performed by the Petitioner (and the other examinees) was graded by three graders from pool of qualified graders. The Petitioner's graders not only were qualified, but they also were "standardized." "Standardization" is a process undertaken on the day before the examination to explain to the prospective qualified graders for an examination the criteria for grading the different procedures and how the criteria should be evaluated. The purpose of "standardization" is to insure that the graders are looking at the criteria in the same way, so that ideally each grader would grade the same performance the same way. Averaging the scores given by three "standardized graders" increased the reliability of the examination results. Procedure 8 on the examination was a pin amalgam preparation on an ivorine (plastic) tooth. Criteria for the procedure include: (a) outline; (b) depth; (c) retention; (d) pin placement; and (e) mutilation of opposing adjacent teeth. Two of the three graders gave the Petitioner a score of 3 on Procedure 8; the other gave him a 2. Procedure 9 on the examination was a pin amalgam final restoration on an ivorine (plastic) tooth. Criteria for the procedure include: (a) functional anatomy - appropriate occlusal and interproximal anatomy; (b) proximal contour and contact - contact is considered present when resistance is met with specified floss given at the time of the exam; (c) margins; (d) gingival overhang - overhang is considered to be excess amalgam in either a proximal or gingival direction at the gingival cavosurface margin; and (e) ma[n]agement of soft tissue. Two of the three graders gave the Petitioner a score of 2 on Procedure 9; the other gave him a 3. An ivorine (plastic) tooth is not the same as a real tooth. It is easier to carve, but it does not have the major external and internal landmarks created by the enamel, dentin and nerve root of a real tooth. Without additional instructions, the latter differences make it difficult or impossible for the examinee or a grader to apply certain criteria. The evidence was that the examinees received an examination booklet that instructed them to "treat simulated teeth as normal human teeth, that is, assume the simulated teeth have the same enamel, dentin, and pupil morphology as human teeth." The instruction in the examination booklet, by itself, leaves some important questions unanswered. "Normal human teeth" differ in the thickness of the enamel, not only from one person to another but also from tooth to tooth within any one person's mouth and even from place to place on any one tooth. Also, the direction in which the enamel rods run in "normal human teeth" differ, depending essentially on the shape of the tooth. The direction of the enamel rods is important in determining whether enough dentin is left under the enamel rods to support the enamel. "Normal human teeth" also have fissures, i.e., little cracks and grooves, and the margins of a preparation and restoration should be extended to include fissures that cannot be eliminated by enamelplasty. But ivorine teeth do not have all the fissures normal teeth have. As a result of these difference between "normal human teeth" and the test mannequin's ivorine teeth, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the following criteria for Procedure 8: outline form; depth of preparation; and retention. In addition, as to Procedure 9, functional anatomy depends upon a tooth's interaction with its opposing and adjacent teeth, but the mannequins did not have opposing teeth. As a result, it still would be difficult or impossible--even with the information in the examination booklet--for an examinee or a grader to apply, with any degree of precision, the criterion functional anatomy for Procedure 9. Similarly, the ivorine teeth in the mannequins were cemented in place, and points were to be deducted for moving them. This made it difficult, if not impossible--even with the information in the examination booklet--for the candidates to control proximal contour and contact, which are criteria for Procedure 9. Despite the deficiencies in the information in the examination booklet, taken by itself, there also was evidence that the graders were instructed orally during standardization, and the candidates were instructed during an orientation prior to the administration of the examination, that they were to assume an "ideal, minimal preparation" and that the purpose of the examination was simply to demonstrate basic knowledge of acceptable techniques. They also were told to assume "normal" or "ideal" enamel thickness of approximately 0.5 millimeter. Given those qualifications, they were told that the preparations were to have a "normal outline form" and "normal depth." As for functional anatomy, they were told that restorations were to "set up ideal (or normal) occlusion" by making the marginal ridges even and by replacing the restoration to the "normal shape of a cusp of a tooth." As for proximal contour, a restoration's marginal ridges were to meet (i.e., match) those of the adjacent tooth. Candidates also were allowed to ask questions as part of the orientation to clarify the oral instructions, as necessary. Given the additional oral instructions, the candidates and graders were given a clear enough understanding of the examination criteria. Evaluation of the candidates' and the graders' performance by the Department's psychometrician indicated that the examination was valid and reliable. The Petitioner's performance of Procedure 8 was primarily deficient in that the outline form was 0.25 millimeter short of the lingual occlusal groove, which was clearly visible on the ivorine tooth and which should have been included within the outline form. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. The Petitioner's performance of Procedure 9 was primarily deficient in that the restoration did not replace the "normal shape of a cusp of a tooth" and that the marginal ridges did not meet those of the adjacent tooth. The Petitioner did not prove that his performance of the procedure, when looked at as a whole, should have been given a passing grade. There was evidence that, since the examination on ivorine teeth only simulates real teeth, which are easier to carve than real teeth, and is necessarily limited to a demonstration of basic knowledge of acceptable techniques, the examination does not directly test the candidate's ability to actually practice dentistry. But, due to heightened concern for the transmission of infectious disease, including HIV, ivorine teeth have been used in dental schools and in dental clinical examinations exclusively for over ten years, and the Petitioner did not prove that the use of ivorine teeth, instead of extracted real teeth, for his examination was unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Board of Dentistry, enter a final order denying the Petitioner's examination challenge. RECOMMENDED this 28th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6923 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and not necessary. Rejected as not proven. (The exam should not necessarily measure a person with more dental experience as receiving a higher grade.) Accepted but subordinate and not necessary. Accepted and incorporated. 8.-10. Rejected as not proven. (It would be more accurate to say that the Department's examination reviewer could neither say that the the score of 2 was erroneous or unreasonable or that a score of 3 would have been erroneous or unreasonable.) 11. Accepted and incorporated. 12.-16. Accepted but subordinate and not necessary. (As to 16, however, he reiterated his opinion that the appropriate score was a 2.) 17. Accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated. Rejected as not proven that the dentin is the "stronger material." Otherwise, accepted and incorporated. Accepted and incorporated. 22.-26. Accepted and incorporated to the extent not subordinate or unnecessary. However, as found, notwithstanding the limitations inherent in not being able to see on the ivorine tooth exactly where the enamel would end and the dentin would begin, or where the enamel rods would be, certain basic knowledge of acceptable techniques can be demonstrated on the ivorine teeth, given certain additional instructions. 27.-29. Rejected as not proven. The Petitioner's expert was not "standardized" and was not privy to what the graders were told during standardization or what the candidates were told during orientation. 30. See 22.-26. 31.-32. See 27.-29. 33. See 22.-26. Respondent's Proposed Findings of Fact. 1.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and subordinate to facts found. 11. Rejected as contrary to the evidence that the Petitioner introduced no competent and substantial evidence in support of his challenge. COPIES FURNISHED: Salvatore A. Carpino, Esquire Colonial Square Office Park 8001 North Dale Mabry Highway Suite 301-A Tampa, Florida 33614 William M. Woodyard, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
