Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Carl L. Altchiler holds licenses to practice dentistry in the States of New York (1957) and New Jersey (1973). From 1974 through 1977, petitioner was employed in Florida as an institutional dentist at the Sunland Center in Orlando and the Sumter Correctional Institution in Bushnell. He has not practiced dentistry since 1978. In June of 1980, petitioner was a candidate for Florida licensure and took the clinical or practical portion of the dentistry examination. A prerequisite for licensure is that a candidate receive a final total clinical grade of 3.0. Petitioner received a grade below 3.0 on six of the eleven procedures tested, giving him an overall grade of 2.70 on the clinical portion of the exam. A candidate for licensure with the Board of Dentistry must take both a written examination and a pracatical or clinical examination. The clinical exam consists of six parts and requires that eleven procedures be completed. These include the following: Amalgam preparation on a patient Amalgam restoration on a patient Periodontal exercise on a patient Occlusal registration and transfer Final impression Pin amalgam preparation Pin amalgam final restoration Endodontic anterior Endodontic posterior Cast gold preparation Cast gold restoration Prior to the June, 1980, clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each area, the procedures the candidates were to follow in taking each procedure and the grading system. The candidates also participated in a three to four hour orientation program prior to the exam, where protocol was discussed and questions regarding procedure were answered. Florida dentists who have practiced for at least five years are preselected to be examiners for the clinical portion of the dentistry exam. Approximately 23 examiners were utilized during the June, 1980, exam. Prior to arriving at the examination site, each examiner is sent the grade sheets to be utilized and the instructions to candidates. They also receive examiner and monitor instructions and forms. On the day prior to the exam, the examiners are given an 8-hour "standardization" course where the grading guidelines and procedures are discussed. This is to promote consistency and objectivity in grading. Examiners are instructed to independently grade each procedure assigned to them by awarding a grade of from 0 to 5 and indicating the appropriate number on the comment portion of the grading sheet to justify the grade assigned. They may also provide additional comments if they so desire. The grades of 0 to 5 represent the following: 0 = complete failure 1 = unacceptable dental procedure 2 = below minimal acceptable dental procedure 3 = minimal acceptable dental procedure 4 = better than minimally acceptable dental procedure 5 = outstanding dental procedure Each clinical procedure performed by a candidate is independently graded by three different examiners, and the three grades are then averaged to determine the total grade for that procedure. Among the forms which the examination monitors are instructed to utilize is a "Report of Equipment Failure." If utilized during the exam, this form is to be placed in the candidate's file containing the examiner's grade sheets. Four witnesses who were qualified and accepted as experts in the field of dentistry testified in this proceeding. Thomas Gerald Ford, Jr., D.D.S. and Allen M. Guy, D.D.S. were called on behalf of the petitioner. Dr. Ford has practiced general dentistry since 1972, is a member of various dental associations, is a dental consultant for various agencies and private organizations and has given testimony in all phases of forensic dentistry. Dr. Guy has practiced general dentistry since 1971 and is a member of various dental associations. Neither Dr. Ford nor Dr. Guy has served as a monitor or examiner for the Florida dentistry examination. Testifying on behalf of the respondent were Rupert Q. Bliss, D.D.S. and Louis Vodila, D.D.S. Dr. Bliss has practiced general dentistry since 1956, specializing in restorative dentistry, is a member of various dental associations, has taught dentistry, is currently a member of the,Florida Board of Dentistry and has served as an examiner for the Florida dental examination. Dr. Vodila has practiced general dentistry since 1956, is a former member of the Board of Dentistry and has served as Chairman of the Dental Examination for two or three exams. He presently serves, as he did in June of 1980, as the consultant and Chief Dental Examiner for the Department of Professional Regulation, Office of Examination Services. PROCEDURE NUMBER 5 Procedure Number 5, entitled "Complete Denture Evaluation" was a test of the candidate's ability to transfer the centric relation of a live patient's jaw to an articulator. The accurate transfer from the human jaw to the articulator is crucial since the denture will be constructed on the articulator and not in the patient's mouth. If the transfer is not accurate, the denture will not fit or function properly. Wax bite registrations were utilized for this procedure and the test was whether the candidate could accurately duplicate the patient's jaw relationship on an articulator. Hand articulation is not an acceptable means of determining the accuracy of the transfer and cannot simulate the articulation observed by the three examiners who graded this procedure. Petitioner received the grades of 3, 2 and 2, for an overall score of 2.33 on Procedure Number 5. The two examiners who assigned a grade of 2 noted that the centric relation was unacceptable. Other comments listed by the three examiners were that the appearance of the wax was overcontoured and that the interocclusal distance (space) was too little. Petitioner's live patient for this procedure, Beatrice King, testified that the wax bite registrations fit and felt comfortable during the June, 1980, examination. She felt that two of the three examiners were very rough with her. She noted that the one gentle examiner had no trouble placing the rims in her mouth, and that she had to blow to enable their removal. During the administrative hearing, Mrs. King inserted the wax registrations in her mouth and felt that they were still comfortable and that her bite was normal. The expert witnesses testifying for both petitioner and respondent observed the registrations inside Mrs. King's mouth during the hearing. Petitioner's two expert witnesses agreed that the wax bite registrations lacked in appearance and were overcontoured. However, they both felt from observing the registrations in Mrs. King's mouth, that the centric relation was acceptable and repeatable and that, if inserted properly, a full seating could be obtained on Mrs. King. They would have assigned a grade of 3 and 4, respectively. Respondent's expert witness observed that the rims of the wax did not match and that the back sides of the rims were touching, thus providing an obstruction to proper closing. It was also his observation that the inserted bite rims in Mrs.King's mouth had lateral movement. He felt that a grade of 2 was "very generous." PROCEDURE NUMBER 6 Procedure Number 6, entitled "(Final) Complete Denture Evaluation," consisted of the preparation of an impression of the mouth. of a completely endentulous patient. On this procedure, petitioner received grades of 1, 2 and 4, for an overall grade of 2.33. All of the examiners noted voids in the impression tray. Other comments made by the examiners included pressure areas, inablility to observe a post-dam area, the tray not being built u high enough into the vestibule and lack of retention and stability. The actual impression tray used by petitioner during the examination has been distorted by improper storage while in the custody of respondent. It therefore could not be inserted into the mouth of Mrs. King for observation by the expert witnesses who testified at the hearing. Nevertheless, upon observation of the impression tray, petitioner's two witnesses, while noting the voids and pressure areas, would assign grades of 3.5 and 4, respectively. Respondent's expert witness did not feel that the impression submitted by petitioner constituted good dentistry. Voids and pressure areas in the impression tray can cause distortions and inaccuracies in the final denture. Respondent's witness felt that the grades of 1 or 2 were "very generous." PROCEDURE NUMBER 8 Procedure Number 8, entitled "Cast Gold Cavity Preparation," was conducted on a mannequin and required candidates to complete a cavity preparation to receive a cast gold onlay. The instructions called for the preparation of an MOD onlay replacing the buccal and lingual cusps. Petitioner received grades of 2, 2 and 1 on this procedure, for an overall grade of 1.67. The comments noted on the grading sheets included a rough marginal finish, no gingival bevel, debris, the scarring of adjacent teeth, unsupported enamel and unacceptable outline form and depth preparation. Petitioner agrees that the marginal finish was rough and that the adjacent teeth were scarred. According to petitioner, this latter defect occurred when the head of the mannequin suddenly moved as a result of a loose neck screw causing the drill to slip and go through the metal bands on the adjacent teeth. Petitioner's expert witnesses observed the rough marginal finish, but found the remaining criteria satisfactory. They would assign grades of 3 and 4, respectively. Respondent's witness felt that the outline form did not match what was called for on the examination. Rather than the MOD onlay required, the outline form more resembled one for a three-quarter crown. He noted the other deficiencies marked by the examiners on the comment section of the grading sheet. He felt that the grades of 1 and 2 were consistent with what he observed. PROCEDURE NUMBER 9 Procedure Number 9, entitled "Final Gold Restoration," consisted of the candidate fabricating an onlay casting for an ivorine tooth from a dentoform in a mannequin. The procedure was graded with the gold onlay placed on the tooth within the mannequin jaw and with regard to the relationship of the onlay to the other teeth in the jaw. Petitioner received grades of 0, 1 and 2 for this procedure, for an overall grade of 1.00. The examiner who assigned a grade of 0 noted that the casting was not seated and rocked. The other two examiners did not check this comment, but did make comments pertaining to functional anatomy, proximal contour, contact and surface finish. Petitioner's expert witnesses did not observe the ivorine tooth with the gold on lay in the dentoform in the mannequin jaw. They did observe the ivorine tooth with the gold onlay and found that the onlay did not rock on the tooth. Dr. Ford, while noting a few rough edges on the casting and a little problem in the margin, found the gold to be an exact match of the tooth. He would assign a grade of 4 to this procedure. Dr. Guy, noting a rough surface finish, would assign a grade of 3.6. The ivorine tooth and the gold onlay were in the possession of the respondent until several weeks prior to the administrative hearing. Respondent's two witnesses observed the tooth and onlay prior to the last part of April, 1981, and found that the gold onlay had a slight rock to it at that time. They both admitted that the on lay now seated better on the tooth than when they first observed it, though Dr. Bliss still detected a slight rock. Dr. Vodila felt that the procedure still deserved a failing grade because of the deficiencies in the margins. Dr. Bliss, noting that the procedure could not be accurately graded outside the dentoform in the mannequin's mouth, as well as the lack of seating when he first observed it, felt that the grade of 0 was accurate and that the product failed to meet minimal standards for the practice of dentistry. PROCEDURE NUMBER 10 Procedure Number 10, entitled "Pin Amalgam Preparation," was conducted on a dentoform in a mannequin and consisted of the preparation of a tooth for amalgam restoration. Petitioner did not complete this procedure and received a grade of 0 from each of the three examiners. According to petitioner, during this procedure the head on his mannequin often made sudden movements due to a loose screw on the back of the mannequin's neck. He attempted to tighten the screw to fixate the head on several occasions, but the screw would not hold. He testified that he called the monitor over on several occasions and was told, at first, to do the best he could, and eventually, to go on to another procedure. This testimony was corroborated by the testimony of Suzette Rogers, who assisted petitioner during this procedure. A steady, stable working station is important in this type of procedure for an accurate preparation. A competent dentist is trained to and should be able to steady his work area and complete the procedure even with a loose mannequin head. As noted above, the monitors are instructed to complete a form when equipment failure is demonstrated and to insert that form into the candidate's file. No such form was found in petitioner's file. The lead examiner for the dental exam, Dr. Vodila, was never notified of any mannequin failure during the June, 1980, exam. The same mannequin head used by petitioner was also used by four other candidates before and after petitioner used it. PROCEDURE NUMBER 11 Procedure Number 11, entitled "Pin Amalgam Final Restoration," required the candidate to complete an amalgam restoration in an ivorine tooth with a pin. This procedure was to be accomplished on a prepared tooth placed in a mannequin by the monitor after the candidate turned on a light to indicate his readiness for this procedure. Petitioner apparently did not understand the directions for this procedure, no prepared tooth was placed in the mannequin, and no work product was turned in by the petitioner. A grade of 0 was assigned by all three examiners for Procedure Number 11.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the grades awarded to petitioner on Procedures Number 5, 6, 8, 9, 10 and 11 of the clinical portion of the dentistry examination held in June of 1980 be upheld. Respectfully submitted and entered this 29th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 29th day of October, 1981. COPIES FURNISHED: Robert Dyer, Esquire Duckworth, Allen, Dyer and Pettis, P.A. 400 West Colonial Post Office Box 3791 Orlando, Florida 32802 Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are framed by the Notice of Intent to Issue an Order to Cease and Desist, filed by the Florida Insurance Commissioner on August 18, 1992, Dept. of Insurance Case No. 92-CA-058EMM, as modified by the parties' Joint Prehearing Stipulation, filed on March 18, 1993. The Cease and Desist Order alleges in Count I essentially that the United Dental Program of America (UDP) 2/ is a dental service plan that has been operating in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 637, Part III, Fla. Stat. (1991). Count II alleges essentially that, in so operating, UDP and one or more of the other respondents were guilty of various deceptive acts or practices prohibited by either Chapter 637, Part III, or by Chapter 624, Fla. Stat. (1991). In the parties' Joint Prehearing Stipulation, the Department of Insurance dropped all of the alleged deceptive acts or practices except the allegation that sales solicitation materials falsely guaranteed savings of 60 percent or more under the UDP product. Count III alleges essentially that UDP has been transacting insurance in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 624, Fla. Stat. (1991). The Cease and Desist Order also seeks an administrative penalty against UDP in an amount not to exceed $1,000 per violation, and an administrative penalty of $10,000 against each of the other respondents for each dental service plan contract or insurance contract offered or effectuated in Florida.
Findings Of Fact At the time the Florida Insurance Commissioner filed the Notice of Intent to Issue an Order to Cease and Desist in this case, UDP was incorporated in the State of Delaware as United Dental Plan of America, Inc. On December 23, 1992, UDP filed a name change with the Secretary of State of Delaware, and the company has since been incorporated as United Dental Program of America, Inc. Before and after the name change, the company has been referred to as UDP, and the acronym "UDP," when used in this Recommended Order, may refer to the company either before or after the name change. The Department and UDP stipulated that, prior to August 18, 1992, Bob Rose, a/k/a Robert Rosenfeld, by a nationally accessible electronic telephone system, recorded a message of solicitation to subscribers, UDP sales associates, and potential sales associates, which was directed, in part, to Florida residents. They also stipulated that respondents Paul Sheldon, William C. Stinnett, Phillip Young, Richard A. Gilbert, John C. Sparks, Jean Joseph and Nick Virenza, a/k/a Nick Verrengia were UDP sales associates who sold UDP memberships in Florida prior to August 18, 1992. The individual named respondents did not enter into the stipulation referred to in the preceding paragraph. However, the UDP stipulation is viewed as evidence on which the findings in the preceding paragraph can be based. Prior to August 18, 1992, without Department approval, UDP sales associates in Florida, including the named respondents referred to in Finding 2, were active in selling subscriptions to UDP's Dental Program to Florida residents, and held meetings for the purpose of selling the Dental Program and recruiting sales associates. There are 1,981 subscribers in the State of Florida. There was no evidence as to which of the 1,981 subscriptions sold in the State of Florida were sold by which of the individuals identified in Finding 2. UDP is not, and has never been, licensed under the Florida Insurance Code. UDP sells an annual membership to its subscribers. There is an individual membership costing $85 a year and a family membership costing $150 a year. If UDP resumes operations in Florida, the annual fees will be $140 for senior couples, $155 for other couples, $170 for families, $80 for senior individuals, and $95 for other individuals. Subscribers are given a one year membership card. For one year from the subscription date, the subscriber receives an annual no-cost dental checkup and x-rays pursuant the UDP subscriber and provider agreements. Subscribers are provided a list of dentists in their geographic area (and elsewhere, if requested) (a "dental directory") who have entered into an agreement with UDP to be on the list. By agreeing with UDP to be on the list, dentists agree that, if they accept a subscriber who has not yet had his or her annual checkup and x-rays, they will do the checkup and x-rays at no cost. They also agree to charge the subscriber for other dental services performed during the subscription year in accordance with a schedule of presumptively reduced fees or, if a procedure is not scheduled, for a 25 percent discount from their usual and customary fees. UDP marketing materials assert that the scheduled fees are lower than the "typical costs." If participating dentists accept subscribers, they agree to abide by the agreement with UDP described in the preceding paragraph. The participating dentists are not obligated to accept subscribers as patients. They have "the right within the framework of professional ethics to reject any patient seeking [their] professional services." The contractual documentation does not further clarify whether, once a participating dentist begins a procedure for a subscriber, the dentist is obligated to complete it or whether, once a procedure is completed for a patient, the dentist is required to accept the patient if the patient returns for additional procedures or services. Notwithstanding the unclear contractual provisions, UDP professes a desire to effectuate an understanding with participating dentists that they will accept UDP patients "on an equal basis" with their other patients. It is not clear how UDP would propose to reach or enforce this understanding. Subscribers are free to use, or attempt to use, any dentist on the list, or directory, and are free to change dentists as often as they choose. (They also remain free to use any dentist not on the list, or directory, under any financial arrangements to which the patient and dentist might agree, but they would not be entitled to benefits under the UDP program.) Except for the annual checkup and x-rays, they are obligated to pay the discounted fees directly to the dentist. Under the UDP program, they expect, and are entitled to, no payment from UDP, either to them or to the dentist. Dentists who agree to participate in the UDP program are also free to maintain their own private practice and to participate in any other dental insurance or plan or program that they wish. Under the UDP program, they expect, and are entitled to, no payment of any kind from UDP. If they perform the free annual checkup and x-rays for a subscriber, they receive no payment from any source for those services. If they perform no other services for a subscriber, the dentists have no recourse against either the patient or UDP. If they perform other services for a subscriber, they are entitled to look only to the subscriber for payment, and only in accordance with the UDP fee schedule, or 25 percent discount, whichever applies. UDP is not liable to the dentists for payment of any part of a subscriber's fees. If the subscriber does not pay, the dentists have no claim against UDP. Under the UDP program, the dentists who agree to participate in the UDP program are solely responsible for dental advice and treatment. UDP has no control over the dentist's practice, rates charged (except insofar as the UDP fee schedule applies, or 25 percent UDP discount is necessary), the dentist- patient relationship, or the dentist's personnel or facilities. UDP and the dentists who agree to participate in the UDP program also agree that the dentists will maintain malpractice insurance coverage for their practices in an amount not less than $300,000 per incident. The dentists must provide UDP with a copy of the malpractice insurance. There was evidence that an early brochure developed by UDP before 1992 contained an untrue guarantee of savings of at least 60 percent. But there was no evidence on which a finding of fact can be based that UDP, through any representative, whether or not named as a respondent to this proceeding, ever delivered a copy of the brochure, or made the misrepresentation, to anyone, much less someone in Florida. In addition, other information also was developed contemporaneously from which it could be determined that savings of at least 60 percent were not guaranteed. The Department first notified UDP that the Department believed UDP and the other named respondents were in violation of the Florida Insurance Code by letter dated March 5, 1992. Between March 5, and August 18, 1992, UDP and the Department engaged in numerous informal telephone and written communications through which UDP attempted in good faith to persuade the Department that UDP was not subject to regulation under either Chapter 637, 624 or 626 and that UDP was not in violation. It was not established how many, if any, of the 1,981 subscriptions UDP sold in Florida occurred after March 5, 1992. According to the Joint Stipulation between the Department and UDP, none of the subscriptions were sold after August 18, 1992, the date of the Cease and Desist Order issued against UDP and the other named respondents. There was no evidence contrary to this stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order: (1) finding that United Dental Program, Inc. (UDP) is a dental service plan corporation subject to regulation under Part III, Chapter 637, Fla. Stat. (1991); (2) finding that individuals who represent UDP are subject to regulation under Section 637.415, Fla. Stat. (1991); (3) finding that UDP and some of its representatives sold 1,981 subscriptions in Florida without having the authorization required under Part III, Chapter 637, Fla. Stat. (1991); (4) requiring UDP and the individual respondents named in Finding 2 to cease and desist from operating the UDP dental service plan corporation in Florida without having the authorizations required under Part III, Chapter 637, Fla. Stat. (1991); and (5) assessing against UDP an administrative penalty in the amount of $5,000. RECOMMENDED this 23rd day of April, 1993, 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 23rd day of April, 1993.
Findings Of Fact Dr. Roberts and His Background Dr. Steven Roberts is a dentist licensed to practice in the State of New York. He attended the United States Military Academy and received his undergraduate degree in 1970. He graduated from the New York University College of Dentistry in 1978, and practiced dentistry in New York, New York from 1978- 1987. To be licensed in New York, Dr. Roberts passed the national boards and the northeast regional board examination. During the course of his practice in New York, Dr. Roberts never received a complaint or had a claim for malpractice made or filed against him. Clinical Examinations Dr. Roberts took the Florida clinical dental examinations in June of 1986, January of 1987, and June of 1987. His grade on the June of 1987, examination is the subject of this proceeding. Dr. Roberts has successfully passed the written examination and the diagnostic examination required for licensure by Section 466.066(4)(a) and (c), Florida Statutes. Dr. Roberts' score for the June of 1987, clinical dental examination was 1.95; the minimum passing score is 3.00. The procedures tested during the June 1987, Clinical Dental Examination and Dr. Roberts' scores were as follows: The Procedure The Score The Revised Score Periodontal 1.67 Amalgam Cavity Preparation 1.67 Amalgam Cavity Restoration 3.00 Composite Preparation .67 Composite Restoration .33 Posterior Endodontics 2.00 3.66 Cast Preparation 2.67 3.00 Pin Amalgam Preparation 1.00 Pin Amalgam Restoration 1.67 Denture 3.63 Total Score 1.95 2.15 Dr. Roberts made a timely request to review his grade, and filed objections to his grades; a regrading procedure resulted in the regrading of his scores for posterior endodontics and cast restoration as set forth above. Each of the procedures tested in the clinical dental examination is scored by three different examiners. For each procedure examiners record their scores on separate 8 1/2" X 11" sheets. Each sheet has a matrix of circles which are blackened with a pencil so that they can be machine scored. On each sheet the candidate's identification number and the examiner's identification number are recorded along with the number for the procedure involved and the candidate's grade. On the sheet for each procedure the criteria for successful performance of the procedure are printed, along with preprinted comments which the examiners may use to explain the reason for the grade assigned. These comments relate to the criteria being examined. The following grades may be assigned by examiners: Complete failure Unacceptable dental procedure Below minimum acceptable dental procedure 3- Minimum acceptable dental procedure 4- Better than minimal acceptable dental procedure 5- Outstanding dental procedure An examiner is not required to mark a comment if the grade assigned is 5, a comment is marked for any grade below 5. Each procedure is graded in a holistic manner. Grades assigned by each of the three examiners for a procedure are averaged; the averaged scores for each procedure are then weighted and the weighted scores are summed to provide the overall clinical grade. By averaging the scores of three examiners for each procedure, variation from examiner to examiner is minimized. The examiners are experienced Florida dentists selected by the Board of Dentistry. An examiner must have at least five years of experience as a dentist and be an active practitioner. Potential examiners attend a standardization training exercise. This training is required by Section 466.006(4)(d), Florida Statutes. Its purpose is to instruct examiners in examination procedures and the criteria to be applied in grading. Through the training the examiner group as a whole arrives at a consensus opinion about the level of grading, so that candidates' scores on the examination will be valid and reliable. The training attempts to focus on each examiner's subjective, internalized evaluation criteria, so that they can be modified, as necessary, to reflect the consensus of all graders. A standardizer explains grading criteria to the potential examiners, and discusses various divisions among schools of thought and training on the procedures which will be the subject of the examination. The standardizer uses dental exhibits from prior dental exams as examples, and identifies grades and errors on the exhibits so that the graders learn and can adhere to uniform grading standards. The training focuses on three problems which professional literature has identified in evaluation: errors of central tendency, proximity errors, and bias a priori. Errors of central tendency result when graders are uncertain of criteria, hesitate to give extreme judgments, even in appropriate cases, and thus tend to improperly grade near the average. Proximity error is a type of halo effect which is applicable in grading of mannequin exhibits. The examiner grades all of the mannequin exhibits for each candidate at one time. If the first example of the candidate's work is especially good, and deserves a grade of 5, the grader may tend to transfer a generally positive attitude towards the next example of the candidate's work and assign a grade which may not be based solely upon the merits of that second piece of work. The same process can improperly depress the grades on subsequent mannequins if the first example of a candidate's work is poor. Bias a priori is the tendency to grade harshly or leniently based upon the examiner's knowledge of the use that will be made of the grade, rather than only on the quality of the work graded. After an 8 to 12 hour standardization training session, the Department administers an examination to those who have been trained. Those with the highest scores become the examiners, i.e., dentists who will grade candidates' work, while those with the lower scores in the training session become monitors, who supervise the candidates in their work on mannequins or on patients, but who do not actually grade student work. There is, however, no minimum score which a dentist who attends the standardization session must obtain in order to be an examiner rather than a monitor. This results, in part, from the limited pool of dentists who participate in the examination processes as monitors or examiners. For the 1987 clinical dental examination 31 dentists accepted selection by the Board and attended the standardization session, 20 were then selected as examiners and 11 became monitors for the examination. None of the dentists who attended the standardization session were dismissed by Department of Professional Regulation from further service at the examination session. The process by which the Department selected the examiners for the 1987 clinical dental exam was neither arbitrary nor capricious, but comports with Rule 21G- 2.020(4), Florida Administrative Code. The standardization training and examination of dentists to determine who will serve as examiners and monitors does not provide any bright line for distinguishing among potential examiners those who will make the most assiduous effort to apply the grading criteria explained in the training session versus those who retain an innate sense of a passing work based on what the examiner considers acceptable work in his own practice. The effort to convey to examiners the standard of "minimum competency" has imperfect success, but the Department's training is appropriate. Out-of-State Candidates' Scores 11. There is a substantial difference in the failure rates for out-of- state candidates and for in-state candidates on the clinical dental examinations. In the June of 1987, exam 82.5% of the candidates who graduated from the only in-state dental school, the University of Florida, passed the entire examination, while 54.2% of the out-of-state graduates passed, and only 37.8% of candidates from foreign schools were successful. Overall, 86.5% of the candidates passed the written portion of the examination, 93.5% the portion on oral diagnosis, but only 63.3% the clinical portion of the examination. Dr. Roberts has failed to prove that the lower pass rate for out-of- state candidates is the result of any sort of conscious effort on the part of examiners to be more stringent in grading out-of- state candidates. Dr. Kennedy's testimony indicated only that the data bear more analysis, not that they prove improper grading. Procedures Performed on Mannequins The Board of Dentistry tests between 600 and 700 dental candidates per year. It is extremely difficult for the candidates to find patients who have exactly the problem which is to be tested and bring them to the examination to work on. Some portions of the clinical dental examination, therefore, are not performed on patients, but on cast models of human teeth which resemble dentures, and which are known as mannequins. This is expressly authorized by Section 466.006(4)(a), Florida Statutes. The notice to appear which candidates receive approximately 30 days before the examination informs them of the types of mannequins which will be used in the examination. Before that time, however, dental supply companies obtain lists of those eligible to take the examination, and contact the candidates in an attempt to sell them the mannequins. Candidates must bring mannequins with them to the examination and can purchase additional mannequins for practice. Testing with mannequins is also more efficient because with live patients, the student must be graded at the time of the examination, while a model can be retained and graded a day or two later. The decision of the Board to have certain procedures performed on mannequins, so that each candidate would be graded on exactly the same procedure, is reasonable. The Board had also considered having students perform all test procedures on extracted human teeth, but there are not a sufficient number of all natural teeth available, given the number of students who are tested, both for the examination itself and for practice. The Board determined that it would be better to use mannequins for some of the procedures tested in the examination because they are readily available and students can purchase extra copies for practice. For certain procedures, such as endodontics, specific natural teeth (such as first bicuspids) are often extracted and so are generally available; for procedures performed on those teeth, it is possible to have candidates work on human teeth. By contrast, testing procedures performed on teeth such as incisors is not practicable. It is impossible to obtain enough incisors in good condition, without restorations and chips, for use during an examination. The statute governing the dental examination does require that one restoration performed by candidates must be done on a live patient, and for the June 1987, clinical dental examination that procedure was a class 2 amalgam restoration. The Board directed by rule that mannequins be utilized for five test procedures: the pin amalgam preparation and restoration, Rule 21G-2.013(3)(d), Florida Administrative Code; the endodontic procedure, Rule 21G-2.013(3)(e) Florida Administrative Code; the posterior tooth preparation for a cast restoration, Rule 21G-013(3)(f), Florida Administrative Code, the class III acid etch composite preparation and class IV acid etch composite restoration, Rule 21G-2.013(3)(g), Florida Administrative Code. Performing these procedures on mannequins is not exactly the same as performing procedures on human teeth in a patient. In view of the difficulty involved in finding patients whose teeth present virgin lesions, so that each candidate would be tested on exactly the same problem, the difficulty in grading a large number of procedures performed on live patients, and the difficulty in obtaining a large number of human teeth necessary for testing and for practice, the Board's decision to use the mannequins for these procedures is reasonable. The Legislature recognized this in Section 466.006(4)(b), Florida Statutes, which prescribes that the clinical dental examination shall include restorations "performed on mannequins, live patients, or both. At least one restoration shall be on a live patient." The Board was within its authority when it determined the procedures to be performed on mannequins. Violation of Blind Grading The dental examiners who grade the work of candidates grade blindly, i.e., they do not know which candidate's work they are grading. The Clinical Monitor and Examiner Instruction Manual for the June of 1987, examination makes this clear. At page 24 paragraph 3 the Manual states Examiners are requested to disqualify themselves at anytime they are presented with models or patients treated by a dentist who they know personally or with whom they have had professional contact. All examiners are requested to give department staff the name of any examination candidate who is personally known to them to be taking the exam. The department staff will assist the examiners in avoiding any work performed by the candidates they know. Rationale: Allegations have been made about examiners who knew candidates taking the exam even though the examiners only see candidate numbers. Monitors and Examiners are strongly urged to avoid discussion with candidates about the examination. Even conversation about non-examination related matters can be misinterpreted by other candidates as an unfair privileged communication. Despite this admonition, one of the examiners, Dr. Cohen, who knew Dr. Roberts, graded the work of Dr. Roberts. Dr. Cohen met Dr. Roberts the first time Dr. Roberts took the Florida Clinical Dental Examination in June of 1986. Dr. Roberts had with him a bag which would have identified him as a student from New York University, where Dr. Cohen had taught. Dr. Cohen came over to Dr. Roberts, introduced himself, gave Dr. Roberts his card, (exhibit 44) and invited Dr. Cohen to his hotel room where they discussed practicing dentistry in Florida. In 1986 Dr. Cohen was associated with another dentist, Gerald P. Gultz, who had recently moved to Florida from New York. Dr. Gultz had also been a part-time clinical assistant professor of dentistry at New York University College of Dentistry. After Dr. Cohen returned from the June 1986, administration of the clinical dental examination, he had a conversation with Dr. Gultz in which Dr. Cohen asked Gultz if he knew Dr. Roberts, and commented on Dr. Roberts performance on the clinical examination. Dr. Cohen said Dr. Roberts had done terribly, and Dr. Cohen believed that Dr. Roberts would never get his license to practice in Florida. (Tr. 5/26/88 at 73). Dr. Roberts saw Dr. Cohen at the January of 1987, clinical dental examination, but they did not speak. In June of 1987, Dr. Cohen also spoke briefly to the wife of Dr. Gerald Gultz, Lauren Gultz, saying that he would be seeing Dr. Roberts at the June of 1987, clinical dental examination, which was coming up. He told Mrs. Gultz that Dr. Roberts was a poor practitioner, and that he did not think he would pass the examination. At the June 1987, exam, Dr. Roberts' periodontal patient was his uncle, Mr. Finkelstein. Dr. Cohen was one of the examiners who reviewed Mr. Finkelstein to determine whether his condition was appropriate to serve as a patient for Dr. Roberts on the periodontal portion of the examination. Dr. Cohen had a conversation with Mr. Finkelstein in which he told him "tell your dentist to do a good job". Because Mr. Finkelstein had stated that his dentist was a graduate from N. Y. U. Dental School, Mr. Finkelstein was convinced that Dr. Cohen knew exactly who the dental candidate who would work on Dr. Finkelstein was -- Dr. Roberts. After accepting Mr. Finkelstein as an appropriate periodontal patient, Dr. Cohen also served as a grader on the periodontal procedure performed on Mr. Finkelstein. After grading the work which Dr. Roberts had done, Dr. Cohen told Mr. Finkelstein to tell his dentist that Dr. Cohen would see him later in the hotel where they were staying. At the hotel, Dr. Cohen talked to Dr. Roberts about the dental examination, that he himself had to take the examination three times, although he considered himself to be a superior dentist, and that Dr. Cohen could help Dr. Roberts with his grades but that he could never grade Dr. Roberts more that one grade higher than any of the other examiners. Dr. Cohen served as an examiner (i.e. grader) for Dr. Roberts on six of the nine procedures tested. There were: procedure number 1, the periodontal evaluation where he assigned a failing grade of 2; procedure number 4, the class III composite preparation, where he assigned a failing grade of 1; procedure number 5, the class IV composite restoration, where he assigned a failing grade of 1; procedure number 6, the endodontic evaluation, where he assigned a passing grade of 3; procedure number 7, the preparation for a cast restoration, where he assigned a passing grade of 3; and procedure number 8, the pin amalgam preparation, where he assigned a failing grade of 1. This failure of blind grading is a serious irregularity in the evaluation of Dr. Roberts' performance on the 1987 clinical dental examination, given his prior negative comments about Dr. Roberts before the examination. By ignoring those scores, Dr. Roberts would be evaluated only by two examiners, on all the procedures for which Dr. Cohen gave a grade. This would mean that his scores would not be comparable with those of any other candidate, for his grade on each procedure would not be the result of blind grading by three independent examiners. Dr. Roberts' Challenges to Grades Assigned by Other Examiners The full nine procedures evaluated in the 1987 dental clinical examination and Dr. Roberts' grades were: A periodontal exercise performed on a live patient, Mr. Finkelstein, which involved the scaling of five teeth both above and below the gum and stain removal. Dr. Roberts was assigned scores of 1, 2, and 2 by the examiners (one grade of 2 was assigned by Dr. Cohen) An amalgam cavity preparation, performed on a live patient, Elizabeth Cox, which is the preparation of a tooth for filling. When the preparation is completed a proctor escorts the patient to the three examiners who independently grade this part. After grading, the patient returns to the candidate who completes the filling of the tooth (the restoration) which is subsequently graded independently by three examiners. Dr. Roberts was assigned grades of 1, 1, and 3 for the preparation (none of these grades were assigned by Dr. Cohen). A final amalgam restoration, which is the filling of the tooth prepared in the prior procedure. Dr. Roberts received grades of 3, 3, and 3 on this procedure (none of the grades were assigned by Dr. Cohen). A class III composite preparation, which is preformed on a model, not a live patient. This involves removing decay and shaping a tooth to hold a class III filling, i.e., one located on the side surface of an incisor. Dr. Roberts received scores of 1, 0, and 1 (Dr. Cohen assigned one of the grades of 1) A class IV composite restoration, which is performed on a model, not a live patient. This involves restoring a fractured tooth with a composite restoration material. On this procedure Dr. Roberts received scores of 0, 0, and 1 (Dr. Cohen assigned the grade of 1). An endodontic evaluation performed on a posterior tooth, which is performed on a mannequin, and involves the opening of a molar, and identification of the canals in the tooth in preparation for a root canal procedure. Originally Dr. Roberts received grades of 3, 3, and 0 (one of the grades of 3 was assigned by Dr. Cohen). Dr. Roberts work was regraded by three new examiners and the grades of the original examiners were discarded. Dr. Roberts ultimately received a grade of 3.67 on the endodontic portion of the examination A preparation of a posterior tooth for a cast restoration, which is performed on a mannequin. It involves preparing a tooth to receive a crown. Dr. Roberts' original grades were 2, 3, and 3 (Dr. Cohen had assigned a grade of 3 on this procedure). On review, Dr. Roberts' was regraded by three new examiners, and the original grades were discarded. Dr. Roberts received a final grade of 3 on this portion of the examination. A pin amalgam preparation, which is performed on a model, not on a live patient. This involves the preparation of a tooth to hold an amalgam filling by inserting a pin into a portion of the tooth, which serves to anchor the filling. Dr. Roberts was assigned grades of 2, 0, and 1 on this procedure (Dr. Cohen assigned the grade of 1). Pin amalgam final restoration, which is performed on a model. It involves filling a tooth with amalgam filling material. Dr. Roberts was assigned grades of 2, 1, and 2 on this procedure (Dr. Cohen assigned one of the grades of 2). Due to the involvement of Dr. Cohen in so many of the procedures involved here, Dr. Roberts performance on the June of 1987, clinical dental examination was not fairly evaluated. A fair evaluation cannot be provided after the fact by merely dropping Dr. Cohen's grades, because Dr. Roberts' performance would not be subject to the independent evaluation of three examiners. Dr. Roberts relies, to a large extent, on the testimony of Dr. Gultz as the basis for regrading his procedures to a passing grade of 3, or better. The testimony of Dr. Gultz does not, however, show that he has ever participated in the standardization exercises for examiners at Florida clinical dental examinations. Dr. Gultz experience as a clinical professor of dentistry at New York University provides a substantial basis for his evaluation of dental procedures. The difficulty, however, is that as with any qualified examiner, his evaluations will be based on internalized standards which are personal to him. There is no way to know whether Dr. Gultz standards for adequate performance are equivalent to those which the standardization training produces among examiners at the standardization exercise before a clinical dental examination. The standardization process "attempts to bring all examiners to the same level of grading, so that each [examiner] is grading in a valid and reliable manner." Clinical Monitor and Examiner Instruction Manual, June of 1987, at page 42. The Florida dental clinical examination uses a holistic grading method. Each score sheet which an examiner fills out has on it the criteria to be applied in evaluating the candidates performance on that procedure. They all contain a statement which reads: It is the intent of the Board that each of the criteria are to be accorded equal importance in grading. Equal importance does not mean that each criteria has a numerical or point value, but means that any one of the criteria, if missed to a severe enough degree so as to render the completed procedure potentially useless or harmful to the patient in the judgment of the examiner, could result in a failing grade on the procedure. The criteria do not have any assigned numerical or point value, but are to be utilized in making a holistic evaluation of the procedure. Each grading sheet also points out to the examiner certain critical factors which, if present, require a grade of 0 for the procedure. The standardization in grading which the Board diligently attempts to achieve through the standardization training and the standardization testing of examiners done at the close of the training is elusive at best. Nonetheless, in the absence of showing that Dr. Gultz standards of evaluation are equivalent to those of an examiner trained at a standardization session, it is impossible to know whether his standards of evaluation are more rigorous or less rigorous than those reflected by the grades assigned to other candidates by the corps of examiners which evaluated the work of candidates at the June of 1987, clinical dental examination. The same is true with respect to the testimony of Dr. Simkins, the expert for the Board in this proceeding. No useful purpose would be served in attempting to choose between the testimony of Dr. Gultz, on the one hand, and the testimony of Dr. Simkins and of the other examiners who testified by deposition in this proceeding. If this were to be done, all the hearing officer would have determined is whose testimony about the appropriate grade to be assigned for each procedure is more believable. On this record it would be impossible to make a further finding about whether that more believable testimony reflects a scoring standard more stringent, less stringent or the same as that generally applied to all candidates by the corps of examiners in the June of 1987, clinical dental examination.
Recommendation It is recommended that the results of the clinical dental examination which Dr. Roberts took in June of 1987, be found invalid, and that he be permitted to take the next clinical dental examination offered by the Department of Professional Regulation at no cost to him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of December, 1989. WILLIAM R. DORSEY, JR. 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 8th day of December, 1989.
The Issue The issue in this case is whether Colette Michele Gatward (Petitioner) should receive a passing score on the Florida Dental Hygiene Clinical Examination.
Findings Of Fact The Petitioner was a candidate for licensure as a dental hygienist by the State of Florida. All candidates for Florida licensure as dental hygienists are required to pass the Florida Dental Hygiene Clinical Examination. The Petitioner took the exam on November 5, 2010. Information and instructions related to the exam were provided to candidates through a "Candidate Information Booklet" (CIB) that was posted on the Respondent's Internet website approximately 60 days prior to the date of the exam. Candidates were expected to review the information contained in the CIB. The Petitioner was aware of the information in the CIB. Part of the exam required that each candidate perform certain clinical procedures to the teeth of a human patient. The CIB stated that each candidate was responsible for providing their own human patient upon whom the clinical procedures could be performed. A panel of three examiners reviewed and scored each candidate's performance of the clinical procedures. In relevant part, the CIB stated that each candidate must submit a patient with 12 surfaces of explorer-detectable moderate subgingival calculus. An explorer is a piece of equipment used in dental practice. The CIB stated that 6.5 points would be awarded for each of the 12 surfaces of subgingival calculus detected and removed by the candidate during the exam. The CIB also stated that failure to detect and remove a minimum of nine surfaces of moderate subgingival calculus would result in a candidate receiving less than a passing score on the exam. The CIB specifically stated that "[p]oor patient selection and management is a common reason for examination failure." The Petitioner brought her sister-in-law to the exam to serve as her patient. After the applicable portion of the exam was completed, the panel of three examiners evaluated the Petitioner's clinical performance. Two of the three examiners determined that the Petitioner had detected and removed subgingival calculus from only eight surfaces of her patient's teeth. There was no evidence presented to indicate that the Petitioner neglected to remove subgingival calculus from her patient's teeth. The Petitioner was aware at the time of the exam that her sister-in-law did not have sufficient subgingival calculus to meet the patient requirements for the clinical demonstration. The insufficient degree of subgingival calculus present in the Petitioner's patient prior to the clinical exam precluded the Petitioner from passing the exam. The Petitioner received a total deduction of 26 points (6.5 points deducted for each of the four surfaces upon which no subgingival calculus was detected) and failed the exam with a score of 74. The Petitioner offered no credible evidence that the panel of examiners improperly reviewed her performance on the exam or that the score she received on the November 5, 2010, administration of the exam was in any manner incorrect. At the hearing, the Petitioner testified that she is licensed as a dental hygienist in another state, that the examinations in both states were conducted by the same regional testing agency, and that the scores from the other state should be accepted by the Respondent for licensure of dental hygienists in Florida. Florida law does not provide for dental hygienist license reciprocity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Petitioner's challenge to the scoring of the exam referenced herein. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011. COPIES FURNISHED: Morris Shelkofsky, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Colette Michele Gatward 2212 Margarita Court Kissimmee, Florida 34741 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 H. Frank Farmer, M.D., Ph.D., Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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 primary issue in this case is whether the Petitioner should have been given a passing grade on the June 1983 Dental Mannequin examination. A secondary issue is whether the Petitioner should be permitted to take the regular State of Florida dental examination even if he is not entitled to a passing grade on the June 1983 Dental Mannequin examination.
Findings Of Fact On the basis of the testimony of the witnesses and the exhibits received into evidence at the hearing, I make the following findings of fact: The Petitioner, Dr. Angel N. Diaz-Norrman, is a graduate of a foreign dental school. Since his graduation from dental school he has engaged in three years of postgraduate training in the field of dentistry at the University of Miami and at the University of Florida. He has also completed all requirements for a teaching fellowship in the field of general dentistry. He is currently pursuing a program on postgraduate study in the specialty of periodontics at the University of Florida. His grade point average in his periodontic studies is 4.0 for both the didactic and the clinical portions of his studies. The Petitioner has twice taken the State of Florida Dental Mannequin Examination, once in December of 1982 and once in June of 1983. He was assigned a failing grade on both of those examinations. His December 1982 grade was slightly higher than his June 1983 grade. His June 1983 grade was 2.37. The minimum passing grade is 3.00. The State of Florida Dental Mannequin examination is a practical examination which tests several specified clinical skills. The examination consists of ten procedures, of which only nine are grades. Each of the nine graded procedures are graded separately. Each of the nine graded procedures on the examination is independently graded by three examiners. Each examiner assigns a grade of from 0 to 5 to the procedure and the final score for each procedure is determined by averaging the three grades given to that procedure. The final score on the entire examination is determined on the basis of a weighted average as provided in Rule 21G-2.19(1), Florida Administrative Code. 1/ The examiners who grade the State of Florida Dental Mannequin examination are all experienced Florida dentists who are selected by the Board of Dentistry. A person chosen as an examiner must have at least five years experience as a dentist. All persons who are selected to be examiners receive a full day of training in the examination process. They review the criteria by which each procedure is to be judged and they participate in a practice grading exercise. Proposed examiners who do not do a good job on the practice grading exercise are not selected as examiners, but are given other tasks at the examination such as serving as monitors. 2/ The application of the grading criteria is not a mathematically precise procedure. Although some shortcomings on the examination procedures require an automatic grade of 0, there is no mathematical formula for deducting any specific number of points or fractions of points for lesser shortcomings or deviations from an excellent procedure. Rather, the examiners use an holistic approach to the grading of each procedure. During the examination each examiner is required to record the grade assigned to each procedure on a written form. Whenever an examiner assigns a failing score to a procedure, the examiner is required to include on the grading form written comments sufficient to justify the failing grade. The written comments do not have to include everything the examiner thought was wrong with the procedure, but must include enough to justify the failing grade. An examiner is not required to justify a passing grade. When the Petitioner took the Dental Mannequin examination in June of 1983, the grades he received from each examiner on each graded procedure were as follows: Procedure Examiner Examiner Examiner Average No. No. 45 No. 48 No. 80 Grade 1. 1 0 0 0.33 2. 2 5 5 4.00 3. 1 3 3 2.33 4. 3 3 3 3.33 5. 2 1 3 2.00 6. 3 5 5 4.33 7. 1 2 3 2.00 8. 2 1 3 2.00 9. 1 1 1 1.00 8. The average grade given to the Petitioner for his performance on procedures number 1, 2, 5, 7, 8, and 9 was a fair and reasonable grade for his performance on each of those procedures. In other words, the average grades given to the Petitioner on those six procedures were fair and accurate measures of the skills demonstrated by the Petitioner on those procedures. The average grade given to Petitioner for procedure number 3 was higher than it should have been. The quality of the Petitioner's performance on procedure number 3 was such that he should have been given a grade of 1.00 instead of 2.33. The average grade given to Petitioner for procedure number 4 was lower than it should have been. The quality of the Petitioner's performance on procedure number 4 was such that he should have been given a grade of 4.00, instead of 3.33. The average grade given to Petitioner for procedure number 6 was lower than it should have been. The quality of the Petitioner's performance on procedure number 6 was such that he should have been given a grade of 5.00, instead of 4.33. With regard to procedure number 9, the Petitioner misunderstood the instructions and prepared a "wax-up" for a cast gold bridge of a type different than that required by the instructions. Between the time of the June 1983 examination and the time of the hearing the "wax-up" prepared by the Petitioner for procedure number 9 became partially damaged while in the custody of the Respondent.
Recommendation On the basis of all of the foregoing, I recommend that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the June 1983 Dental Mannequin examination is 2.37, a failing grade, and that the Petitioner is not eligible to retake the Dental Mannequin examination or to take the regular dental license examination. DONE AND ENTERED this 4th day of April 1985 at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985.
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation and Periodontal sections of the clinical part of Petitioner's June 2003 Florida Dental License Examination taken 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 2.94, so he failed the clinical part of the examination. Petitioner has challenged the grades of 2.0 that he received on the Patient Amalgam Preparation and Periodontal sections of the clinical part of the examination. In both sections, 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. For both procedures, Petitioner challenges only the scores 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 two sections that are the subject of this case require 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 each 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. Communication between examiners and candidates is exclusively through monitor notes. For each 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 Periodontal section of the clinical part of the dental examination required Petitioner to debride five teeth. Removing calculus from teeth, especially below the gums, is an important procedure because the build-up of tartar and plaque may cause pockets to form between the tooth and gum. Eventually, the gum tissue may deteriorate, ultimately resulting in the loss of the tooth. Prior to the examination, written materials explain to the candidates and examiners that the debridement is to remove all supragingival and subgingival foreign deposits. For the Periodontal procedure, Examiners 207 and 296 each gave Petitioner a 3, and Examiner 394 gave him a 0. The scoring sheets provide a space for preprinted notes relevant to the procedure. All three examiners noted root roughness. However, Examiner 394 detected "heavy" subgingival calculus on four teeth and documented his findings, as required to do when scoring a 0. Petitioner contends that two examiners and he correctly detected no calculus, and Examiner 394 incorrectly detected calculus. As an explanation, Petitioner showed that Examiner 394 knows Petitioner in an employment setting, and their relationship may have been tense at times. However, Petitioner never proved that Examiner 394 associated Petitioner's candidate number with Petitioner. Thus, personal bias does not explain Examiner 394's score. On the other hand, Examiners 296 and 207 are extremely experienced dental examiners. Examiner 296 has served nine years in this capacity, and Examiner 207 has served ten years, conducting 15-20 dental examinations during this period of time. By contrast, Examiner 394 has been licensed in Florida only since 1995 and has been serving as a dental examiner for only three years. However, the most likely explanation for this scoring discrepancy is that Examiner 394 explored more deeply the subgingival area than did Examiners 207 and 296 or Petitioner. Examiner 394 testified with certainty that he found the calculus at 5-6 mm beneath the gums. This is likely deeper than the others penetrated, but not unreasonably deep. For the Periodontal procedure, an examiner who found calculus on four teeth would be entitled to award the candidate 0 points. Examiners may deduct two points per tooth that has been incompletely cleaned, although the lowest score is 0. Examiner 394's score of 0 is therefore legitimate and at least as reliable as the other scores of 3. The 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 Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 417 each assigned Petitioner a 3 for this procedure, but Examiner 420 assigned him a 0. Examiners 207 and 417 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 420 detected caries and documented his finding, as required to do when scoring a 0. As noted above, Examiner 207 is a highly experienced evaluator, but the other two evaluators are experienced dentists. Examiner 417 graduated from dental school in 1979, and Examiner 420 has been licensed in Florida since 1981. 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. Examiner 420 testified definitively that he detected caries tactilely, not visually, in Petitioner's patient. This testimony is credited. It is difficult to reconcile Examiner 420's finding of caries with the contrary finding by the highly experienced Examiner 207. It does not seem especially likely that an experienced dentist would miss decay, especially in the artificial setting of a dental examination, in which everyone's attention is focused on one tooth. Examiner 207's finding of no caries is corroborated by the same finding of Examiner 417. However, Examiner 417's finding is given little weight. She readily suggested that she must have missed the caries. What at first appeared to be no more than a gracious gesture by a witness willing to aid Respondent's case took on different meaning when Examiner 417 testified, in DOAH Case No. 03-3955, first that she had detected visually and then retreated to testifying that she did not know if she had detected caries visually or tactilely--a significant concession because examiners were instructed explicitly not to rely on visual findings of caries. Returning, then, to the conflict between the findings of Examiner 420 and Examiner 207, substantially unaided by the corroborating findings of Examiner 417, either an experienced, credible dentist has found caries where none exists, or an experienced credible dentist has missed caries. The specificity of Examiner 420's testimony makes it more likely, as logic would suggest, that he did not imagine the existence of caries, and Examiner 207 somehow missed the caries. It is thus slightly more likely than not that Petitioner failed to remove the caries prior to presenting the patient. More importantly, though, for reasons stated in the Conclusions of Law, Examiner 420, in finding caries, adhered strictly to Respondent's rules and policies for evaluating candidates' work, and his finding was not arbitrary or capricious.
Recommendation It is RECOMMENDED that the Department of Health enter a final order dismissing Petitioner's challenge to the scoring of the clinical part of the June 2003 Florida Dental License 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 This is a license discipline case in which the Respondent has been charged in a Corrected Administrative Complaint with a violation of Section 466.028(1)(m), Florida Statutes.
Findings Of Fact At all times material to this proceeding, the Respondent, Dr. Merle N. Jacobs, has been licensed to practice dentistry in the State of Florida. He currently holds license number DN 0005940. During the period from January 22, 1993, through March 27, 1995, T. C. was a patient of the Respondent. During that period of time, the Respondent performed various dental services for T. C., including the making and fitting of a partial denture. The Respondent prepared and kept dental records and medical history records of his care of patient T. C. The Respondent's records of such care are sufficient to comply with all relevant statutory requirements. The Respondent's records of such care do not include any notations specifically identified or captioned as a treatment plan. The records do, however, include marginal notes of the course of treatment the Respondent intended to follow in his care of patient T. C. Those marginal notes describe the treatment the Respondent planned to provide to patient T. C.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this day of May, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 day of May, 1998.
The Issue The issue is whether Ms. Gioia is eligible for re-examination of her clinical dental skills after having failed the clinical dental examination three times. She seeks to be re-examined without completing either a one year general practice residency or a minimum of one academic year of undergraduate clinical course work in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation.
Findings Of Fact Ms. Gioia first attempted the clinical dental licensure examination in June, 1987. On June 11, 1987, during the periodontal portion of the examination, Ms. Gioia was found to be in possession of a periodontal chart, which a monitor regarded as unauthorized written material for an examination candidate to have. The monitor made a report of an irregularity during the examination. On September 3, 1987, Ms. Gioia received from the Board of Dentistry a notice that she had failed to obtain a passing score on the June, 1987, clinical dental licensure examination, and that the Board had been presented with evidence that during the examination she had unauthorized written material in her possession, viz., a periodontal chart, which constituted a violation of Section 466.028(1)(bb), Florida Statutes, and Rule 21-11.007(1)(e), Florida Administrative Code, and that she would not be permitted to be re- examined until she completed a two credit hour college level course in ethics. The letter also notified her that: You may seek review of the above, by filing a petition with the Executive Director of the Board within twenty-one (21) days of your receipt of this notice. You may request a formal proceeding pursuant to Section 120.57(1), Florida Statutes, or informal proceedings pursuant to Section 120.57(2), Florida Statutes. If you request formal proceedings, the petition must contain the information required by Rule 28-5.201, Florida Administrative Code. Ms. Gioia then retained counsel, Kenneth Muszynski, and requested an informal hearing on September 28, 1987. The matter came before the Board of Dentistry on July 23, 1988, at its meeting in Tallahassee. According to the Final Order entered by the Board on October 14, 1988, (Board Exhibit 3) the Board found: . . . based upon [Ms. Gioia's] testimony relating to her possession of the periodontal chart, the Board determines that [her] possession of the periodontal chart did not constitute any intentional violation of examination rules or an attempt to obtain a license by fraud and ordered that she: . . . be certified for licensure without restriction upon her successful completion of the licensure examination. That Final Order effectively rescinded the requirement that she take an ethics course before she could be examined a second time. No appeal from that Final Order was ever taken. There is no indication in the evidence that Ms. Gioia ever challenged the finding made in the Board's September 3, 1987, letter that she had failed to obtain a passing score on the clinical dental examination given in June, 1987. Rather, she had challenged the allegation of misconduct which had resulted in a restriction on her ability to take the examination again. Ms. Gioia took the clinical dental examination for a second time in December of 1987, and did not obtain a passing score. She took the clinical dental examination for a third time in June of 1988, and again failed to receive a passing score. As a result, she received a letter on August 5, 1988, from the Board of Dentistry which states, in pertinent part: Pursuant to Florida Statutes 466.006(4)(b)5., . . . "If [an] applicant fails to pass the clinical examination in three attempts, he shall not be eligible for re-examination unless he completes additional education requirements established by the Board." Therefore, you are not eligible to sit for the Florida Dental Examination until you complete a one year general practice residency or a minimum of one academic year of undergraduate clinical coursework in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation. This letter prompted Ms. Gioia to request a review of her score on the June, 1988, clinical dental examination. After the review, Ms. Gioia was informed that the review did not result in an alteration of her grade, and if she wished to initiate a formal administrative hearing to challenge her grade she must do so within 30 days from the date of that October 4, 1988, letter. A petition for formal administrative hearing was filed, again by Kenneth Muszynski, on her behalf on November 14, 1988, which instituted this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the petition for formal hearing filed by Ms. Gioia which contended that her score on the clinical dental examination in June, 1987, should not be counted due to monitoring misconduct which unsettled her, and ordering that she not be certified to re-take the clinical dental examination until she completes the education requirements imposed in Rule 21G-2.021(2), Florida Administrative Code. DONE and ENTERED this 23rd day of August, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 23rd day of August, 1990. Copies furnished: Vytas Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 D. Carlton Enfinger, Esquire Barrett, Bajoczky, Hoffman and Harper 131 North Gadsden Street Post Office Box 1501 Tallahassee, Florida 32301-1501 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
