The Issue Is Petitioner, M.G. entitled to receive developmental services from Respondent, Department of Children and Family Services (the Department), for his alleged developmental disability, retardation? Section 393.065, Florida Statutes.
Findings Of Fact M.G. is a Florida resident. He was born on January 29, 1982. M.G. lives with his father E.F.G. and his step-mother C.G. M.G. attends public high school. He is assigned classes for the severely emotionally disturbed. This special education program is very structured. M.G. has been in special education classes from the first grade to the present. He is currently in the eleventh grade. M.G.'s need to receive education in that environment is an indication that he suffers from deficits in adaptive behavior as manifested from early in his life and continuing to the present. The manner in which it is necessary to provide education to M.G. points out deficits in the effectiveness or degree to which M.G. may meet standards of personal independence and social responsibility expected of a person his age, cultural group, and community. Over his life M.G. has experienced deficits in adaptive behavior outside his educational environment. These deficits are in relation to day-to-day personal maintenance in matters of hygiene and health, self-motivation, and socialization. The Department takes no issue with M.G.'s established deficits in adaptive behavior manifested from early life and continuing to the present. The Department does dispute M.G.'s claim that he suffers from significantly subaverage general intellectual functioning that exists concurrently with his deficits in adaptive behavior. It is necessary for M.G. to establish that he has significantly subaverage general intellectual functioning existing concurrently with the deficits in adaptive behavior to gain eligibility for services to assist him with his claimed developmental disability. From the time M.G. reached school age to more recent times, he has been exposed to a number of tests designed to measure his general intellectual functioning. On June 30, 1988, M.G. was assessed under the Wechsler Intelligence Scale for Children - Revised (WISC-R). In that test his verbal IQ was 65, his performance IQ was 82, and his full scale IQ was 71. The Wechsler test is designed to measure performance for children up through 16 years and 11 months old. The Wechsler test has a standard deviation of 15 points. On February 24, 1994, M.G. was tested under the Wechsler Intelligence Scale for Children - Third Edition. On that occasion his verbal IQ was 63, his performance IQ was 70, and his full scale IQ was 64. On March 3, 1994, shortly after undergoing assessment by the Wechsler test, M.G. was tested through the Stanford-Binet Intelligence Scale: Fourth Edition. On verbal reasoning SAS he scored 70; on abstract/visual reasoning SAS he scored 85; on quantitative reasoning SAS he scored 84; on short-term memory SAS he scored 68; and his composite score on this test was 74. The Stanford-Binet test has a standard deviation of 16. On June 28, 1996, M.G. was assessed through a Wechsler Intelligence Scale for Children - Third Edition. On that date his verbal IQ was 64, his performance IQ was 81, and his full scale IQ was 70. On April 30, 1999, M.G. underwent a test through the Stanford-Binet Intelligence Scale: Fourth Edition. His verbal reasoning SAS score was 64. His abstract/visual reasoning SAS score was 91. His quantitative reasoning SAS score was 64. His short-term memory SAS score was 64. His test composite score was 67. The Wechsler and Stanford-Binet tests which M.G. was subjected to are standardized intelligence tests utilized by the Department to determine whether persons suffer from retardation in determining eligibility to receive services for developmental disability. Section 393.063(44), Florida Statutes. Ms. Josephine Joseph is a school psychologist. She has utilized the Wechsler and Stanford-Binet Intelligence Scale tests to evaluate her clients. Ms. Joseph administered M.G. the aforementioned tests given on June 28, 1996, and April 30, 1999. Ms. Joseph is expert in the administration and interpretation of the results from the Wechsler and Stanford-Binet tests. In explaining the results of the Wechsler test given M.G. on June 30, 1988, Ms. Joseph commented on the significant discrepancy between M.G.'s verbal and non-verbal skills, indicative of a developmental language disorder. Ms. Joseph described the verbal IQ score of 63 in the February 24, 1994, tests as a score in the mentally handicapped range of intelligence. She referred to the performance score of 70 as within the borderline range of intelligence. The full scale IQ score of 64 was described by Ms. Joseph as in the mentally handicapped range. The full scale score of 74 on the Stanford-Binet tests given on March 3, 1994, was described by Ms. Joseph as in the borderline range of intelligence. The retest by use of the Stanford-Binet was seen by Ms. Joseph as an attempt to allow M.G. to do the best he could in demonstrating his intelligence. Ms. Joseph, in describing the results of the Wechsler tests given to M.G. on June 28, 1996, referred to the verbal IQ score of 64 as within the educable mentally handicapped range. The performance IQ score of 81 was seen by Ms. Joseph in the low average range, slightly inflated by the Wechsler test. The full scale IQ of 70 was seen by Ms. Joseph as in the borderline range. In relation to the April 30, 1999, Stanford-Binet test, Ms. Joseph referred to the full scale score of 67 attained by M.G. as within the educable mentally handicapped range. In referring to all the tests that have been described, Ms. Joseph found the scores by M.G. to be basically in the same range, except for the June 30, 1988, results in the Wechsler test which Ms. Joseph described as in the borderline range, likewise in the results obtained for the Wechsler test on June 28, 1996. The results obtained on April 30, 1999, through the Stanford-Binet test represent the best measure of M.G.'s intelligence in Ms. Joseph's opinion. In that test the full scale score on the Stanford-Binet was 67. From that score, Ms. Joseph expressed the opinion that M.G. is mentally retarded. Dr. Sarah Robinson has a Ph.D. in Clinical Psychology, having also earned a Masters degree in Psychology. She is a licensed psychologist in the State of Florida. She is employed by the Department. Among her duties is the evaluation of applications to determine whether a person is eligible for developmental services for reason that the individual suffers from retardation. Dr. Robinson is expert in determining whether an individual has mental retardation in relation to the ability to obtain services for developmental disability under Chapter 393, Florida Statutes. In this instance, Dr. Robinson examined the test results that have been described and concluded that the level of intellectual functioning by M.G. was not such that he would be eligible to receive services under the law. With this determination, Dr. Robinson did not find it necessary to address any deficits which M.G. had in adaptive behavior as manifest during the period from conception to age 18. Dr. Robinson is aware of the proof concerning M.G.'s deficits in adaptive behavior and indicated in her testimony that she does not dispute what she described as "definite deficits in the area of adaptive behavior." Referring to the Wechsler test results in the June 30, 1988, tests given to M.G., Dr. Robinson notes the verbal intelligence score of 65 and the performance score of 82, a 17 point difference. Based upon reference sources that Dr. Robinson relies on, the difference in the two scores is unlikely to occur by chance alone. The difference is meaningful to Dr. Robinson. Her reaction is that the higher of the two scores is the better indicator of M.G.'s intellectual functioning. This differential in ability taken together with other information provided in the exhibits that were admitted in this proceeding leads Dr. Robinson to conclude that M.G. has a developmental language disorder. In examining the results of the Wechsler test given on February 24, 1994, in which M.G. scored 63 on the verbal and 70 on the performance portions, Dr. Robinson did not see those scores as significantly different in their portrayal. Therefore, the full scale score of 64 was looked at more critically in the assessment by Dr. Robinson. Dr. Robinson referred to the results in the Stanford-Binet tests given on March 3, 1994, where the full scale score was 74. Dr. Robinson noted that the evaluator in the two tests given in 1994 observed that M.G. tried harder on the Stanford-Binet test which would make the results in that test more meaningful. Dr. Robinson has given more credence to the results in the Stanford-Binet test. Dr. Robinson also notes, in relation to the Stanford-Binet test, that the abstract/visual reasoning SAS score of 85 and the quantitative reasoning SAS score of 84, which are similar to the performance portion of the Wechsler IQ test, point to greater intellectual functioning in those measurements than in the verbal reasoning SAS, which was a score of 70, and in short-term memory SAS, a score of 68. In Dr. Robinson's view, the number of points difference between abstract/visual reasoning and quantitative reasoning compared to verbal reasoning and short- term memory are not likely to be matters of chance. Dr. Robinson perceives those differences as meaningful. They represent consistent differences over time in the way that M.G. responds to the tests, when taking into account past evaluations. According to Dr. Robinson, they point to the fact that M.G. performs significantly better in the non-verbal or performance area and that M.G. has some kind of communications disorder or verbal learning disability. Again, as before, Dr. Robinson perceived that the higher area of ability is the best indicator of intellectual functioning. In referring to the Wechsler test given on June 28, 1996, Dr. Robinson points to the performance IQ score of 81 as being the best indicator of intellectual functioning. The difference between that score and the verbal score of 64 is statistically significant in that it is unlikely to occur by chance alone. Dr. Robinson sees the results in this test as describing an individual who has some kind of language disorder or verbal learning disability, not retardation. Dr. Robinson refers to M.G.'s skills as "uneven." By contrast, Dr. Robinson states the opinion that persons with mental retardation have what are referred to as "global delays," meaning that the individuals are "equally delayed in all areas" of ability. Dr. Robinson, in referring to the Stanford-Binet test given on April 30, 1999, notes the verbal reasoning score of 64 as compared to the abstract/visual reasoning score of 91, a 27 point differential. This is perceived by Dr. Robinson as consistent with the pattern of differences in scores experienced when M.G. took prior tests. Dr. Robinson notes that in the Stanford-Binet test given on that occasion, the mean test score for the overall test composite is 100. The standard deviation is 16. Two standard deviations from the mean would establish a score of 68 as within the retardation range. The score of 67 is one point below that cutoff. Nonetheless, Dr. Robinson expressed the opinion that when examining the overall pattern of scores, to include the differential between the score of 91 on abstract/visual reasoning SAS and the score of 64 on verbal reasoning SAS in this test, M.G. has significantly better non- verbal reasoning and problem-solving skills, with significant weaknesses in the area of verbal skills, probably indicative of a communication disorder that has not been remediated. In summarizing her opinion, Dr. Robinson refers to M.G. as an individual who has non-verbal reasoning ability that falls in the low average range of intelligence. In her opinion, M.G. has verbal skills that fall in the mild deficit or mild mental retardation. In her analysis, Dr. Robinson concludes that M.G. has had a life-long communication disorder or a verbal learning disability. Those opinions lead Dr. Robinson to believe that M.G. is not entitled to receive services as a person with the developmental disability of retardation. In performing her review, Dr. Robinson acted in accordance with the practice by the Department to rely upon test results obtained in the past, unless there was no basis for making a determination, in which case a personal interview or testing would have been arranged with the applicant. Dr. Robinson's opinion concerning M.G.'s level of intellectual functioning is accepted as a more reliable impression of M.G.'s intelligence when compared to the opinion expressed by Ms. Joseph.
Recommendation Upon consideration of the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered denying M.G. eligibility to receive services for a developmental disability. DONE AND ENTERED this 27th day of July, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 July, 2000.
Findings Of Fact The Petitioner sat for the October 1993 administration of the licensure examination for Metallurgical Engineering. When his examination was graded, he was assigned a raw score of 45 points. A raw score of 48 points is the minimum passing grade on the subject examination. The Respondent stipulated at hearing that the Petitioner is entitled to one additional raw score point, which brings the Petitioner's total undisputed raw score to 46. One of the essay questions on the subject examination was Item 258. According to the scoring plan for Item 258, an exam-taker could earn from 0 to 10 points in two-point increments depending on the quality of his answer. The scoring plan for Item 258 specifies that 2 points should be awarded for an answer that demonstrates "rudimentary knowledge" and that 4 points should be awarded for an answer that demonstrates "more than rudimentary knowledge but [is] insufficient to demonstrate competence." When the Petitioner's examination was graded the first time, he was awarded 0 points for his answer to Item 258. When the Petitioner's examination was regraded, he was awarded 2 points for his answer to Item 258. 1/ The evidence at hearing establishes that the Petitioner's answer to Item 258 demonstrates more than rudimentary knowledge, but is insufficient to demonstrate competence. 2/ Accordingly, pursuant to the scoring plan for Item 258 the Petitioner is entitled to receive 4 points for his answer to Item 258.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Petitioner is entitled to a raw score of 48 points on the subject examination, which is a passing grade. DONE AND ENTERED this 8th day of March 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 March 1995.
The Issue The issue in this case is whether the Petitioner is entitled to additional credit for his response to question number 123 of the Principles & Practice Civil/Sanitary Engineer Examination administered on April 24, 1998.
Findings Of Fact Petitioner took the April 24, 1998, Principles & Practice Civil/Sanitary Engineer examination. A score of 70 is required to pass the exam. Petitioner obtained a score of 69. In order to achieve a score of 70, Petitioner needs a raw score of 48. Petitioner obtained a score of 69 which is a raw score of 47. Therefore, Petitioner is in need of one (1) additional raw score point. On question number 123, Petitioner received a score of six points out of a possible ten. Question nimber 123 is scored in increments of two raw points. Two additional raw score points awarded to the Petitioner would equal a raw score of 49, equating to a conversion score of seventy-one, a passing score. The National Council of Examiners for Engineering and Surveying (NCEES), the organization that produces the examination, provides a Solution and Scoring Plan which outlines the scoring process used in question number 123. The Petitioner is not allowed a copy of the examination question or the Solution and Scoring Plan for preparation of the Proposed Recommended Order. Question number 123 has three parts: part A, part B, and part C. For a score of ten on question number 123, the Solution and Scoring Plan states that the solution to part A must be correct within allowable tolerances; the solution to part B must state two variables that affect the answer in part A; and the solution to part C must state that anti-lock brakes do not leave skid marks thus making it very had to determine braking distance. For a score of eight points on question number 123, the Solution and Scoring Plan states that part A could contain one error and lists specific allowable errors, and that part B and part C must be answered correctly showing mastery of the concepts involved. Petitioner made an error in part A which falls into the allowable errors listed in the Solution and Scoring Plan under the eight-point scoring plan. Petitioner answered part B correctly. Petitioner contends that he also answered correctly part C, and should be awarded eight points. NCEES marked part C incorrect. Question number 123 is a problem involving a vehicle (vehicle number one) that skids on asphalt and hits another vehicle (vehicle number two). Part C asks "Explain how your investigation of this accident would have changed if vehicle one had been equipped with anti-lock brakes." The Petitioner's answer was as follows: If vehicle one does not "lock" its brakes, its deceleration will be dependent upon its brakes. (Not f). [Judge's note: f is used as the symbol for the co-efficient of friction between the tires and road surface in the problem.] The rate of deceleration (a) must be determined (from testing, mfg, [manufacturer,] etc.) As stated above, the Board accepts a solution that recognizes that the vehicle equipped with anti-lock brakes will not leave skid marks which can be used for computing initial speed using the skid distance equation. The Petitioner's answer pre-supposes that there are no skid marks because the vehicle's wheels do not lock because of the anti-lock brakes; therefore, if the co-efficient of friction of the tires, which generates the skid marks, has no effect. The Petitioner introduced a portion of a commonly used manual for preparation for examination (Petitioner's Exhibit 1), which states, regarding a vehicle that does not lock its brakes, "its decelerations will be dependent upon its brakes." The Board's expert recognized the statement by the Petitioner in response to part C as true, but indicated it was not responsive to the question in that it did not state specifically that the vehicle would not produce skid marks that would be able to be measured for use in the skid distance equation. The solution sheet states regarding part C, "Part C is answered correctly by explaining that anti-lock brakes would not leave skid marks thus making it very had to determine the braking distance."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board of Professional Engineers enter a Final Order giving Petitioner credit for part C on the examination and passing the test. DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 25th day of March, 1999. COPIES FURNISHED: Natalie A. Lowe Vice President of Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 John D. Watson 88 Marine Street St. Augustine, Florida 32084 Dennis Barton, Executive Director Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301
Findings Of Fact Based upon the record evidence, the following findings of fact are made: Charles is Petitioner's natural son. He was born on November 12, 1972. Both Charles and his mother are permanent residents of the State of Florida. Throughout his childhood, Charles experienced severe emotional and behavioral problems that hampered his development. He is still plagued by many of these same problems. Charles has substantial functional limitations in the areas of self- care, receptive and expressive language, learning, 2/ mobility, self-direction, capacity for independent living and economic self-sufficiency. Charles is now, and has been since March 17, 1988, enrolled in a residential program for S.E.D. (Severely Emotionally Disturbed) students at the Devereux Hospital and Children's Center of Florida (Devereux) in Melbourne, Florida. Prior to his admission to Devereux, Charles was a student in the Dade County school system (County). While a County student, Charles participated in a Variety of the County's exceptional student education programs, including those for the learning disabled, emotionally handicapped and educable mentally retarded. None of these programs were deemed suitable to meet Charles' special educational needs. Accordingly, the County contracted with Devereux to provide Charles with the educational services he is now receiving. The scores Charles has received on the most recent standardized intelligence (IQ) tests he has taken accurately reflect that his intellectual functioning is significantly below average. In March 1990, Charles took a Wechsler Adult Intelligence Scale- Revised (WAIS-R) IQ test administered by Dr. Ivan Danger. Charles appeared to be nervous and anxious during the testing. The results of the test were as follows: verbal IQ- 66; performance IQ- 71; and full scale (overall) IQ- 67. 3/ A full scale IQ of 67 is more than two standard deviations from the mean score on the test. 4/ In addition to administering this IQ test in March 1990, Dr. Danger also assessed Charles' adaptive behavior by using the Vineland Adaptive Behavior Scale (Vineland), a tool commonly utilized by clinical psychologists for this purpose. Petitioner provided the survey information upon which Dr. Danger based his assessment. On the basis of the composite score Charles received (44), Dr. Danger concluded that Charles was "within the moderate mentally retarded range of adaptive functioning. Approximately, seven months later, in October 1990, Charles took a WAIS-R IQ test administered by Dr. Kathleen I. van Hover. This time Charles sat quietly and was cooperative during the test. Nonetheless, the results of this test ware almost identical to the results of the test he had taken seven months before. The results of the October 1990 test were as follows: verbal IQ- 66; performance IQ- 70; and full scale (overall) IQ- 67. Like Dr. Danger, Dr. van Hover, in conjunction with the IQ test she administered, also conducted an assessment of Charles' adaptive behavior. She too used the Vineland. Charles' teacher at Devereux, as well as a direct care staff person on Charles' unit, furnished the survey information upon which Dr. van Hover based her assessment. On the basis of the composite score Charles received (47), Dr. van Hover concluded that Charles' behavior was "moderately impaired" and "well below his intellectual level." The IQ tests administered by Drs. Danger and van Hover, although the most recent, are not the only IQ tests that Charles has taken over the years. In September 1977 and again in May 1978 Charles was administered Stanford-Binet IQ tests. He attained a full scale or overall score of 65 on the 1977 test and a full scale or overall score of 94 on the 1978 test. 5/ In September 1979, January 1982, June 1984, October 1986 and February 1988, Charles took Wechsler Intelligence Scale for Children- Revised (WISC-R) IQ tests. The results of these tests were as follows: YEAR VERBAL IQ PERFORMANCE IQ OVERALL IQ 1979 46 71 55 1982 66 87 74 1984 64 92 76 1986 50 87 68 1988 57 71 61 Given Charles' age and the lack of any material improvement made in these areas in the past, it is likely that, for the indefinite future, his general intellectual functioning will remain significantly subaverage and that his adaptive behavior will continue to be impaired. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services issue a final order finding that Charles is eligible for developmental services pursuant to Chapter 393, Florida Statues, and granting the application for such services submitted by Petitioner on Charles' behalf. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of February, 1991. STUART M. LERNER 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 11th day of February, 1991.
The Issue Whether Respondent properly invalidated Petitioner’s Florida Teacher Certification Examination for Health K-12 for violating test center rules, as alleged in the Agency Action Letter dated September 17, 2019.
Findings Of Fact Petitioner, Matthew B. Forrest, resides in Jacksonville, Florida where, at all times relevant hereto, he was a football coach and teacher of Health Opportunities in Physical Education (“HOPE”) at Creekside High School. In order to continue teaching HOPE for the 2019-2020 school year, Petitioner was required to become a certified teacher by passing both the General Knowledge and the Health K-12 components of the FTCE. Respondent, Richard Corcoran, as Commissioner of Education (hereinafter, “Respondent” or “Department), is the agency with the duty and authority to certify teachers for the State of Florida. For purposes of this Recommended Order, the Department is the “test program sponsor.” The Department administers the FTCE through third party test administrators. The test administrator in the instant case is a company known as “Pearson.” Petitioner took and passed the General Knowledge Examination on February 25, 2019. Petitioner took the Health K-12 Examination on three different occasions. The administration of the exam relevant hereto was on August 7, 2019. Two different types of breaks may be taken during test administration. A scheduled break is automatic, usually given between sections of an exam. The test administrator instructs candidates as to the length of the break and when to return to the testing room. During a scheduled break, a candidate may access personal items which have been stored at the test center. An unscheduled break is voluntary, and may include time to use the restroom or water fountain. John Hartzog was the test center administrator for the August 7, 2019 exam administration. Petitioner took three unscheduled breaks during the exam. The first lasted 16 minutes, while the other two breaks lasted 6 minutes each. At each break, Petitioner notified the proctor he was leaving to use the restroom. At the Florida Gateway College test center, the restrooms are separate from the testing rooms. The two are located in the same building, but are accessed by different entrances connected by an outdoor covered walkway. The restrooms are considered part of the test center building; however, the parking lot is not. During Petitioner’s third unscheduled break, Mr. Hartzog walked down to the restrooms to check on Petitioner. Mr. Hartzog observed Petitioner exiting his personal vehicle in the parking lot. Petitioner explained that he had water bottles stored in his vehicle and had retrieved and consumed a water bottle after he used the restroom. Through the window of the vehicle, Mr. Hartzog observed a case of 12- ounce water bottles on the back seat directly next to a beach bag, which was unzipped. Mr. Hartzog observed Petitioner’s exam study notes and other papers, as well as Petitioner’s cell phone, in plain view in the open bag.1 Administrative Charges On or about September 17, 2019, Petitioner received the Agency Action Letter, which states, in pertinent part, as follows: As noted on the program website under ‘Policies,’ the FTCE/FELE testing rules DO NOT permit an examinee to leave the test center or to access personal items during an unscheduled break. Therefore, the scores for your Health K-12 examination taken on August 7, 2019, have been invalidated. The Department has charged Petitioner with both leaving the test center, and accessing prohibited materials, during an unscheduled break.2 1 Mr. Hartzog photographed the items on the back seat, as well as the items in the open bag. The photographs were admitted in evidence as Respondent’s Exhibit 10. 2 The Department’s Agency Action Letter does not specifically state what actions taken by Petitioner constitute a violation of the rules. Respondent’s position was clarified throughout the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education issue a final order invalidating Petitioner’s FTCE Health K-12 Examination due to his violations of test center rules during the August 7, 2019 administration of the exam. DONE AND ENTERED this 14th day of February, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 14th day of February, 2020. COPIES FURNISHED: Matthew B. Forrest 10743 Alden Road, Unit 4 Jacksonville, Florida 32246 Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Gavin Hollis Dunn, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner is entitled to receive a passing score on the Physical Diagnosis portion of the May 2002 chiropractic licensure examination.
Findings Of Fact The Department is responsible for developing, administering, and scoring examinations to test the competence of persons seeking licensure in Florida as chiropractors. Section 456.017(1)(a), Florida Statutes (2000). Estevez was a candidate for the chiropractic licensure examination administered in May, 2002. In an Examination Grade Report dated July 12, 2002, the Department advised Estevez that he had failed the examination. In this proceeding, Estevez asserts that the Department wrongly failed to credit him with correct answers on three separate questions. If he prevails as to any one question, he would attain a passing score on the examination. The questions at issue come from the clinical portion of the examination. This exam is divided into three subparts: X-ray Interpretation; Physical Diagnosis; and Technique. The questions at issue in this proceeding come from the Physical Diagnosis subpart. The Physical Diagnosis portion of the May 2002 examination is a practical examination that tests a candidate’s competency to evaluate and examine patients by choosing, naming, demonstrating, and interpreting diagnostic imaging and laboratory reports based on a hypothetical case history. The histories are supplied to the candidate, who is then asked to perform a number of "tasks." The questions are designed to measure the ability of an entry level chiropractor to diagnose and treat common ailments for which chiropractic care is typically sought. The hypotheticals avoid the use of exotic problems which would challenge an experienced practitioner. Instead, the test situations are designed to reveal whether the candidate has mastered the basic skills necessary to competently examine a "patient," to identify and administer appropriate tests, to answer questions, and, ultimately, to diagnose the patient's problems in situations which are typical to the day to day practice of chiropractic. The assigned "tasks" are not intended to stump or trap candidates who have mastered entry level skills. In order to be qualified to serve as an examiner, an examiner must have been licensed in Florida as a chiropractor for at least five years, must not have had a chiropractic or other health care license suspended, revoked, or otherwise acted against, and must not be currently under investigation by the Department or any other state or federal agency. Examiners receive training before they are permitted to score a candidate. Each examiner participates as a trainee in scoring 15 or more examination candidates, and the points assigned by the trainee examiner are compared with those assigned by the regular examiners to determine the accuracy of the trainee's scores. In an actual examination, two examiners score the candidate separately, without communicating with one another, in accordance with written standards for each task. These standards are provided to the examiners prior to the examination, and the Department conducts a "standardization" before each administration of the examination. The purpose of the current examination process, including standardization and using two examiners versus one examiner, is to ensure fairness to the candidate and the reliability of the scores. During the "standardization," each task on the Physical Diagnosis portion of the examination is discussed with the examiners, together with the correct answers. Examiners may ask questions, and the examination is discussed thoroughly. The goal of the "standardization" is for each examiner to assign a candidate the same score for the same task. The two examiners on any given examination rarely assign the candidate different scores on the same task. When it does happen, usually one examiner has missed something that the candidate did or misunderstood something that the candidate said. To further assure the fairness of the process, two examiners score each candidate on the Physical Diagnosis portion of the examination, and to provide unsuccessful candidates with a meaningful avenue of appeal, a videotape of the candidate's responses is made. When there is a scoring discrepancy, or when a candidate challenges a decision not to credit an answer, the videotape is available to the examiners, to the administrative law judge, and ultimately to the Board of Chiropractic, so that the candidate's answer may be independently assessed. The two examiner's scoring Estevez's performance on the Physical Diagnosis portion of the examination met the criteria established in the Department's rules and participated in the required training and standardization sessions. In this case, Estevez challenged the scores he received on Tasks 10, 15, and 23 of the Physical Diagnosis portion of the examination. For the reasons set forth below, Estevez has failed to demonstrate that the examiners erred in scoring his answers to these questions. The questions posed in Task 10 arise out of the facts of the examination hypothetical Case 2. Case 2 poses a patient who presents with severe pain and swelling in his calf, ankle, and heel, after he suffered an injury the day before. Also, the “patient” has been unable to bear weight on that leg since the injury. Task number 10 asks the candidate to choose four tests that are appropriate for Case 2 and to state what conditions are suggested by a positive response to the tests selected. Points are only awarded if both the test stated by the candidate is appropriate and the conditions that are suggested by a positive response to the tests are correctly identified. A score of zero points is given when a candidate lists 0-1 correct tests and conditions. A score of two points is given when a candidate lists 2-3 correct tests and conditions. A score of four points is given when a candidate lists all four correct tests and the conditions that a positive test would indicate. Petitioner received zero points from both examiners for his answer to Task 10. Petitioner listed four tests, three of which were correct and one of which was incorrect. However, Petitioner failed to correctly match the condition(s) that would be identified by a positive test result to the three tests that were correctly listed. The first test identified by Petitioner was the Ankle Draw Test. The condition Petitioner listed that would be indicated by a positive sign is “gapping in the area of the ligaments.” Petitioner also stated that this test would be used to check anterior and/or posterior ligaments to see if there is any “laxity.” When asked by one of the two examiners what ligament, Petitioner stated anterior and posterior cruciate and dorsiflexors proateus. A positive Ankle Draw Test would indicate damage to the anterior and/or posterior talofibular ligament stability. Petitioner failed to state this, as he was required to do, in order to receive full credit. Petitioner argues, unpersuasively, that his initial answer of anterior and/or posterior ligaments is sufficient. The second test stated by Petitioner was the Thomas Test. The condition Petitioner listed that would be indicated by a positive sign is damage to the Achilles tendon. The Thomas Test was an incorrect answer for Task 10; a positive Thomas Test does not indicate Achilles tendon rupture, therefore, Petitioner should not receive credit for this answer. The third test stated by Petitioner was the Thompson Test. The condition Petitioner listed that would be indicated by a positive response to this test is exacerbation of pain. In fact, a positive Thompson Test would indicate Achilles tendon rupture. Thus, it was proper not to credit Petitioner's answer. The fourth test stated by Petitioner was the Lateral Stability test. Petitioner stated that this test checks stabilizers on the lateral aspect. Petitioner also listed the peroneus longus and brevis. In fact, a positive Lateral Stability test would indicate a tear of the talofibular and/or calcaneoufibular ligament. Thus, it was proper not to credit Petitioner's answer. Petitioner should not receive any additional points for Task 10 because he failed to correctly match a single appropriate test with the condition that would be indicated by a positive response to that test. Second, Petitioner challenged the score he received on Task 15. This task also arises out of hypothetical Case 2. Here, candidates were asked to indicate which X-ray view or views should be performed. The instructions further provided that points would be deducted for incorrect views. A score of zero points is given when a candidate has stated the required views but has added two or more unacceptable studies, or where a candidate has failed to state all of the required views. A score of two points is given when a candidate has stated the required views but has added one unacceptable study. A score of four points is given when a candidate has stated all of the required views. The correct answer to this question requires listing three required views. Petitioner correctly listed two of the three required views, but failed to list the medial oblique X-ray view. Estevez opined that “Many text books have gone to include the three views as a standard, but this is not so.” To the contrary, the evidence established that Estevez's failure to list the medial oblique X-ray view for this patient rendered his answer for Task 15 fatally incomplete. Finally, Estevez challenged the score he received on Task 23. Task 23 asks the candidate to demonstrate and fully describe testing for the sensory component of cranial nerve V and the motor component for cranial nerve VII. The evidence established that Petitioner's demonstration for the sensory component of cranial nerve V was incomplete. Petitioner failed to fully describe his testing of the ophthalmic branch of cranial nerve V. In addition, a review of the videotape in conjunction with the expert testimony reveals that Petitioner failed to adequately test for sensory perception of the ophthalmic branch of cranial nerve V and failed to demonstrate the requisite knowledge of how the sensory component of all three prongs of cranial nerve V is tested.
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 challenge to Petitioner's failing score on the Physical Diagnosis portion of the Chiropractic Licensure Examination of May 2002. DONE AND ENTERED this 6th day of February, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 6th day of February, 2003. COPIES FURNISHED: Victor Estevez, Jr. 11118-4 Southwest 132 Place Miami, Florida 33186 Cassandra Pasley, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 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 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent has been a Florida-certified teacher. At all times material to the instant case, Respondent has taught chemistry at Coral Gables Senior High School (CGSHS), which is a school operated by the Miami-Dade County School Board (School Board). Respondent is a dedicated educator who has a passion for teaching. On Saturday, October 7, 2000, the mathematics portion of the High School Competency Test (HSCT) was administered at CGSHS. 2/ The HSCT is a standardized statewide examination that students must pass to qualify for a regular high school diploma. 3/ It contains multiple choice questions testing basic skills in reading/communications and mathematics. It has been administered since the 1980's and has always been a "secure" test. There are approximately three or four "editions" of the mathematics portion of the HSCT. 4/ Having to replace one of these "editions" because of a breach of security would entail "significant cost." Respondent was one of the test administrators at CGSHS on October 7, 2000. She had served as a HSCT test administrator five or six times prior to October 7, 2000. Prior to the administration of the test on October 7, 2000, Respondent had been provided training at CGSHS on how to properly discharge her responsibilities as a test administrator. The importance of maintaining test security was emphasized during the training. As part of the training, Respondent received a packet of written materials. It was Respondent's responsibility to read these materials. The training materials repeatedly warned that test administrators were not to open the test booklets. Included in the materials was the version of the "Florida Test Security Statute," Section 228.301, Florida Statutes, in effect prior its amendment by Chapter 97-190, Laws of Florida, 5/ and the version of "Florida Test Security Board of Education Rule," Rule 6A-10.042, Florida Administrative Code, that has been in effect since October 26, 1994. The pre-Chapter 97-190 version of Section 228.301, Florida Statutes, provided as follows: It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 229.57, or, with respect to any such test, knowingly and willfully to: Give examinees access to test questions prior to testing; Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of any secure test booklet; Coach examinees during testing or alter or interfere with examinees' responses in any way; Make answer keys available to examinees; Fail to follow security rules for distribution and return of secure test as directed, or fail to account for all secure test materials before, during, and after testing; Fail to follow test administration directions specified in the test administration manuals; or Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both. A district superintendent of schools, a president of a community college, a president of a university, or a president of a private postsecondary institution shall cooperate with the Commissioner of Education in any investigation concerning the administration of a test administered pursuant to state statute or rule. Rule 6A-10.042, Florida Administrative Code, provides as follows: Maintenance of Test Security Tests implemented in accordance with the requirements of Sections 229.053(2)(d), 229.57, 231.087, 231.0861(3), 231.17, 233.011, 239.301(10), 240.107(8), and 240.117, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved. Test questions shall be preserved in a secure manner by individuals who are developing and validating the tests. Such individuals shall not reveal in any manner, verbally or in writing, the test questions under development. Tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test. Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test. Examinees' answers to questions shall not be interfered with in any way by persons administering, proctoring, or scoring the examinations. Examinees shall not be given answer keys by any person. Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees' achievement. Each person who has access to tests or test questions during the development, printing, administration, or scoring of the tests shall be informed of specifications for maintaining test security, the provisions in statute and rule governing test security, and a description of the penalties for breaches of test security. During each test administration, school district and institutional test administration coordinators and contractors employing test administrators and proctors shall ensure that required testing procedures are being followed at all test administration sites. Officials from the Department are authorized to conduct unannounced observations of test administration procedures at any test administration site to ensure that testing procedures are being correctly followed. Test materials, including all test booklets and other materials containing secure test questions, answer keys, and student responses, shall be kept secure and precisely accounted for in accordance with the procedures specified in the examination program administration manuals and other communications provided by the Department. Such procedures shall include but are not limited to the following: All test materials shall be kept in secure, locked storage prior to and after administration of any test. All test materials shall be precisely accounted for and written documentation kept by test administrators and proctors for each point at which test materials are distributed and returned. Any discrepancies noted in the number or serial numbers of testing materials received from contractors shall be reported to the Department by designated institutional or school district personnel prior to the administration of the test. In the event that test materials are determined to be missing while in the possession of an institution or school district, designated institutional or school district personnel shall investigate the cause of the discrepancy and provide the Department with a report of the investigation within thirty (30) calendar days of the initiation of the investigation. At a minimum, the report shall include the nature of the situation, the time and place of occurrence, and the names of the persons involved in or witness to the occurrence. Officials from the Department are authorized to conduct additional investigations. In those cases where the responsibility for secure destruction of certain test materials is assigned by the Department to designated institutional or school district personnel, the responsible institutional or school district representative shall certify in writing that such destruction was accomplished in a secure manner. In those cases where test materials are permitted by the Department to be maintained in an institution or school district, the test materials shall be maintained in a secure manner as specified in the instructions provided by the Department. Access to the materials shall be limited to the individuals and purposes specified by the Department. In those situations where an employee of the educational institution, school district, or contractor, or an employee of the Department suspects a student of cheating on a test or suspects other violations of the provisions of this rule, a report shall be made to the department or test support contractor, as specified in the test administration procedures, within ten (10) calendar days. The report shall include a description of the incident, the names of the persons involved in or witness to the incident, and other information as appropriate. Officials from the Department are authorized to conduct additional investigations. (4) Violations of test security provisions shall be subject to penalties provided in statute and State Board Rules. Notwithstanding the instructions she had been given (both verbally and in writing), towards the end of the testing period on October 7, 2000, when there were only a few students remaining in Respondent's classroom, Respondent took an "unsealed" 6/ test booklet that a student had handed in, sat down at her desk, looked at the test questions and multiple choice answers in the booklet, and wrote down (on the back of a piece of paper that contained an assignment for a course that she was taking at Florida International University) the numbers of some questions (Questions 1 through 16, 30, 31, 35, 38, 43, 45, 50, 53, and 56 through 60), and, next to each number, what she believed to be the correct (letter) choice for that item. 7/ Respondent was motivated, not by any evil intent, but by mere intellectual curiosity. She simply wanted to see whether the Factor-Label method she had touted to her chemistry students as the best way to solve stoichiometry problems could also be used by them to answer the mathematics questions on the test. She had no intention whatsoever to disseminate, or in any way reveal, to anyone any of the questions on the test or any of her answers to these questions or to otherwise use in a dishonest manner the information she obtained by looking inside the test booklet contrary to the instructions she had been given. To be sure, in failing to follow these directions, Respondent exercised poor judgment 8/; but her actions certainly do not reflect a lack of integrity, good morals, or honesty on her part. Maria Cristina Noya, an educational specialist in the School Board's assessment and educational testing office, monitored the administration of the HSCT at CGSHS (and other schools) on October 7, 2000, to make sure that there were no breaches of security. When she walked into Respondent's classroom, she saw Respondent at her desk engaging in the conduct described above. As Ms. Noya approached, Respondent got up from her seat, with the test booklet in her hand, and greeted Ms. Noya. She did not try to hide from Ms. Noya that she was looking at an open test booklet. Ms. Noya left Respondent's classroom without discussing with Respondent Respondent's non-compliance with test administration protocol. Ms. Noya notified her supervisor, Ada Fernandez- Vicaria, the administrator of the School Board's assessment and educational testing office, of what she had observed in Respondent's classroom. Pursuant to Ms. Fernandez's directive, Respondent was asked to leave the classroom 9/ and go to the office of one of the assistant principals at the school, Dr. Lisa Robertson (who was in charge of the testing at CGSHS that day). Respondent thought that she was going to be admonished for sitting at her desk and not getting up to monitor the activities of the students in her classroom. When she left her classroom to go to Dr. Robertson's office, Respondent took with her the aforementioned piece of paper on which she had written the numbers of certain test questions and her answers to those questions. She did so, not because she intended to make use of what she had written on the paper, but because the other side of the paper had information (unrelated to the test) that she needed. Upon her arrival at Dr. Robertson's office, Respondent discovered that she was summoned to the office to discuss her actions in examining the contents of the test booklet and writing down answers to test questions. At the meeting, Respondent freely admitted that she had engaged in such conduct and turned over to the administrators at the meeting 10/ the piece of paper on which she had written her test answers. Ms. Fernandez-Vicaria placed the paper in a manila envelope, which she sealed with tape placed across the flap. She took the sealed envelope with her when she left the meeting and kept it in her possession until she turned it over to an investigator with the state Department of Education. Respondent subsequently received a letter of reprimand from the principal of CGSHS for her actions on October 7, 2000. Furthermore, she was prohibited from serving as a test administrator until further notice. A "school site investigation" did not reveal that "any students had benefited" from Respondent's non-compliance with test security requirements and therefore no test results had to be voided as a result of Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 9th day of September, 2002.
The Issue The issue is whether Respondent's proposed decision to award a computer-maintenance contract to Intervenor is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On November 20, 1998, Respondent issued a Request for Proposals titled "The Maintenance of Network Terminal Equipment" (RFP). The purpose of the RFP is to obtain a three-year maintenance service contract for video display terminals, printers, microcomputers, and related components located throughout the State of Florida. The RFP seeks a three-year, labor-intensive contract projected at the hearing to be worth between $3 million and $3.5 million. RFP Section 6.1 promises a "comprehensive, fair, and impartial evaluation" of all timely submitted offers by an "Evaluation Committee," which is an undefined term. Nothing in the RFP describes the Evaluation Committee, in terms of number or qualifications, except that repeated references to "each evaluator" imply the existence of more than one member. Section 6.1.A identifies four evaluation categories: Corporate Experience (100 points), Project Staff (200 points), Minimum Maintenance Service Requirements (200 points), and Cost (500 points). The category at issue in this case is Corporate Experience. Section 6.1.B states that the Procurement Officer will evaluate whether each offer meets the "fatal criteria." The only relevant fatal criterion is 10, which states: "Are there three (3) years of financial statements for the proposer and any proposed subcontractors, TAB 6?" RFP, Section 6.3.A.10. The RFP does not define "financial statements," nor does it require audited financial statements. The Procurement Officer bore the responsibility for determining whether offers complied with the fatal criteria, and he testified that he applied this fatal criterion by checking for a balance sheet, income statement, and statement of changes in financial position. Tr., p. 84. However, the Procurement Officer, acknowledging the absence of any definition of "financial statements," testified that he would accept "even a balance sheet and income statement," which is exactly what he received from Intervenor. Tr., p. 99. The Procurement Officer added: "I didn't throw out anyone for lack of submitting any other financial statements that are commonly included in audited financial statements." Id. Section 6.1.B also provides that offers meeting the "fatal criteria" will be scored by the Evaluation Committee, which will score each responsive offer "based on the evaluation criteria provided in Section 6.3 " Regarding Corporate Experience, Section 6.1.C.3 states: "The criteria, which will be used in evaluating Corporate Experience, are listed in the Rating Sheet, see Section 6.3.B." Section 6.3 states that the non-fatal criteria for each of the four categories are listed on the Rating Sheet, which is part of the RFP. Each evaluator must assign a score from 0-4 for each of these criteria. The meaning of each point value is as follows: 0 = no value; proposer has no capability or has ignored this area 1 = poor; proposer has little or no direct capability or has not covered this area, but there is some indication of marginal capability 2 = acceptable; proposer has adequate capability 3 = good; proposer has a good approach with above average capability 4 = superior; proposer has excellent capability and an outstanding approach Section 6.3.B lists 40 evaluation criteria divided among three categories. (The fourth category is Cost; its scoring methodology is irrelevant to this case.) Project Staff and Minimum Maintenance Service Requirements contain a total of 37 criteria. Corporate Experience contains only three criteria. The three criteria of Corporate Experience are: Does the proposal present financial information that supports the proposer's ability to perform this work required by this Request for Proposal? (RFP section 5.6.B) Is the ratio of current assets to current liabilities at least 2:1? Is the debt to net worth ratio (total liabilities/net worth) equal to or less than 1? Has the cash/operating capital exceeded projected monthly operating expenses over the past three years? Does the proposer have sufficient financial resources to complete the project? Does the proposal document the proposer's experience, organization, technical qualifications, skills, and facilities? (RFP section 5.6.B) Is the experience supplied (including subcontractor experience) relevant? Has the proposer (including any subcontractors) previously provided the maintenance services required by the department? Have the proposer and any subcontractors previously worked together? Does the proposer[-]supplied organization chart demonstrate the capability to perform well on this project? Have the projects supplied by the proposer or for any subcontractors been performed recently enough to be relevant? What percentage of the work is to be done by the proposer and each subcontractor? Does the proposal present maintenance projects similar to the requirements of this RFP as references? (RFP section 5.6.B) Is each project described in sufficient detail so that the department is able to judge its complexity and relevance? Are projects similar or greater in scope? How broad is the range of equipment that was serviced? How current is the project? The challenge focuses exclusively on the first criterion under Corporate Experience. On this criterion, the evaluators gave Intervenor an average of 3.0 and Petitioner an average of 2.0. The Procurement Officer prepared an Evaluation Manual for the evaluators. The Evaluation Manual states: Scoring should reflect the evaluator's independent evaluation of the proposal's response to each evaluation criterion. Following each evaluation criterion are considerations each evaluator may use in determining an evaluation score. These considerations are only suggestions. The considerations provided are not intended to be an all-inclusive list and will not be scored independently for the criterion that they address. Joint Exhibit 8, page 4. Nothing among the documents given prospective offerors informed them explicitly that the evaluators were not required to consider any of the bulleted items listed under each of the criteria. However, the Procurement Officer conducted a Proposers' Conference, at which he stated that the bullets under all of the criteria were strictly suggestions that the evaluators were free to ignore. Tr., p. 115. The Procurement Officer provided this information in response to a question asked by a representative of Intervenor. Joint Exhibit 23, pp. 63-64. The RFP did not require attendance at the Proposers' Conference, nor did Respondent publish the response following the conference. The three bullets under the first criterion under Corporate Experience appear in Respondent's manual titled "Developing a Request for Proposal (RFP)." The exhibit in evidence is a copy of the manual issued on April 1, 1998, but this manual has been in existence well prior to that. The manual suggests that the RFP include a criterion for evaluating the adequacy of the offeror's financial resources. Under the category of reviewing financial statements, the manual lists the first three bullets, as well as other considerations. However, nothing in the manual requires the inclusion of these bulleted items as scoring criteria or the consideration of these bulleted items within one or more scoring criteria. The rating sheets contain a space for comments. The following are the scores and comments from each of the five evaluators for the challenged criterion regarding the financial resources of Petitioner and Intervenor. Evaluator 1 assigned Intervenor a 2, noting "high debt, loss in income 1998." Evaluator 1 assigned Petitioner a 1, noting "financial information limited. Total assets less than value of contract." Evaluators 2 and 4 each assigned Intervenor a 3 and Petitioner a 2 without any comments. Evaluator 3 assigned Intervenor a 3, noting "Exceeds all requirements." Evaluator 3 assigned Petitioner a 3, noting "financials appear to meet this requirement. However, the replacement parts-inventory [sic] dollars seem very low in relations [sic] to the mentioned state contracts that are currently existing [sic]-[.]" Evaluator 5 assigned Intervenor a 4 without any comments, but citing the presence of a 10-K report in response to where he found the financial information. Evaluator 5 assigned Petitioner a 1 originally, noting "asset/liabilities 1:1." However, he changed his score to a 2 and lined out his comment. In general, the five evaluators have technical backgrounds in telecommunications or information management. They do not have significant backgrounds in business or financial matters. Evaluator 1 has a limited financial background, having taken a couple of accounting courses in college. His testimony during his deposition was evasive. Unwilling or unable at the deposition to discuss substantively the financial statements, Evaluator 1 claimed not to recall nearly all material aspects of the evaluation that had taken place about four months earlier. Evaluators 2 and 3 testified at the hearing. Evaluator 2 owns a company, although he has never read the financial statements of any company besides his own. However, he believes that he can read financial statements to determine if a corporation is profitable. On the other hand, Evaluator 2 admits that he does not know how to calculate the ratio of current assets to liabilities from the financial statements or the difference between a balance sheet and an income statement. Evaluator 2 also admits that he does not know how the value of determining whether the ratio of debt to net worth is less than 1. Evaluator 2 concedes that he does not know how to determine if an offeror had sufficient cash to complete the contract. However, during his deposition, Evaluator 2 testified that he checked the financial statements for cash on hand and monthly income, although he admitted that he did not know how much cash a company would need to perform the contract. Evaluator 2 also admitted in his deposition that, in giving Intervenor a 3 and Petitioner a 2, he did not compare the net worth or ratio of cash to operating expenses of the two offerors. Evaluator 3 testified that he has some relevant education in college, but he has not previously examined financial statements for Respondent. Like Evaluator 2, Evaluator 3 testified that he did not compute any of the bulleted ratios and was incapable of calculating the current ratio described in the first bullet or the other ratios described in the second and third bullets. Evaluator 3 conceded that he did not determine whether the offerors had sufficient resources to complete the project. In his deposition, Evaluator 3 admitted that his review of the financial criterion was largely confined to checking to see if an offeror's assets exceeded its liabilities. Evaluator 3 conceded that he did not compare debt loads. In two respects, Evaluator 3 approached the evaluation differently from his counterparts. First, he assumed that someone had already determined that the offerors were financially able to service the contract. Second, evidently relying on information not contained in the offers or RFP, Evaluator 3 determined that Petitioner's parts inventory was too low. In his deposition, Evaluator 4 stated that he felt that it was optional whether he had to consider whether the financial information supported an offeror's ability to perform the contract. In rating Intervenor, Evaluator 4 admitted that he was unaware of its debt load. Evaluator 4 testified in his deposition that he did not feel qualified to decide whether an offeror could perform financially under the RFP. In his deposition, Evaluator 5 testified that he did not know what financial resources an offeror must possess to be able to complete the contract. He also admitted that he never determined if Intervenor had operated at a loss for the past two years. In addressing the qualifications of the evaluators to score the financial criterion, it is useful to compare their evaluations to what was being evaluated. The Administrative Law Judge rejects Petitioner's implicit invitation to assess the qualifications of the evaluators without regard to the extent to which their evaluations corresponded with, or failed to correspond with, that which they were evaluating. It is impossible to perform much of a comparative analysis of the financial resources of Petitioner and Intervenor because of the paucity of financial information supplied by Petitioner. Petitioner did not submit audited, reviewed, or even compiled financial statements, so that a credibility issue attaches to its owner-generated statements. Also, Petitioner did not submit a statement of changes in financial position, which is the first financial document that the Procurement Officer testified that he would consult in assessing a corporation's financial resources. Tr., p. 88. Absent this data concerning cash flow, it is not possible to identify reliably the information necessary to consider the third bullet, which asks the evaluator to compare historic cash flow from operations (which is derived from the statement of changes in financial position) with the "projected monthly operating expenses" (which is derived from the income statement). Subject to these important qualifications concerning Petitioner's financial statements, Petitioner's balance sheet reveals a current ratio of 5:1 and a ratio of total liabilities to net worth of well under 1. By contrast, Intervenor's audited financial statements (for DecisionOne Corporation and Subsidiaries) reveal a current ratio of barely 1:1, total liabilities in excess of total assets, and a negative shareholder's equity of $204,468,000. Intervenor's income statement discloses a net loss of $171,641,000 in fiscal year ending 1998 with a note suggesting that $69,000,000 of this loss is attributable to nonrecurring merger expenses. If interest is included, as it should be (given its impact on real-world cash flow), Intervenor's statement of changes in financial position reports negative cash flows for the past three years. Counting interest and taxes, the negative cash flow in 1998 is $37,298,000. This negative cash flow is attributable to the payment of a $244,000,000 to Intervenor's parent, but negative cash flows of $13,144,000 and $11,961,000 in 1997 and 1996, respectively, do not include any dividend payments. Perhaps partly due to the already-discussed problems in ascertaining the role, at hearing, of the accuracy of the scoring, Intervenor did not elicit explanatory testimony concerning its relatively complicated financial statements, although Intervenor's forbearance seems directed more to not developing the evidentiary record concerning the formal and substantive deficiencies of Petitioner's financial statements. However, it is clear that, except for Evaluator 1, Respondent's evaluators could not and did not understand much more of Intervenor's financial statements than that they were professionally prepared and contain large numbers. Turning to the extent to which the scores correspond to what the evaluators were scoring, Petitioner's financial statements are incomplete and owner-generated. Given these facts, the evaluators could legitimately give Petitioner a 2, which is an "acceptable" score, reflective of "adequate capability." The evaluators could also have legitimately given Petitioner a 1, indicative of a "poor" score with "some indication of marginal capability." The evaluators could not have given Petitioner a 0 because its financial statements are at least partly present in the offer and reflect some financial capability. By contrast, Intervenor's financial statements are completed and audited. However, they portray a company that is in financial distress with substantial losses, a negative shareholder's equity, and ongoing negative cash flows. Although much better in form than the financial statements of Petitioner, Intervenor's financial statements raise at least one question as to form because, although disclosing interest and tax payments, they attempt to stress a modified cash flow without regard to these substantial cost items. Given the sizeable losses suffered recently by Intervenor, the evaluators could not rationally assign Intervenor a 3, which is "good" and reflective of "above average capability." Without dealing with Intervenor's losses and specifically identifying cash flow that would be available, after debt service and other expenditures, to service the contract, the evaluators could not rationally assign Intervenor even a 2. Except for Evaluator 1, the evaluators never identified the financial condition of Intervenor and thus never considered it in their scoring. Undermined from the start by a lack of knowledge of roughly how much financial capacity would be necessary to service the three-year contract, the scoring process, as applied to Intervenor, is further undermined by the near-total absence in the record of any informed reason for the scoring of Intervenor's offer. Evaluator 3 erroneously believed that someone not on the evaluation team had already determined that the offerors were financially capable of performing the contract. Evaluator 4 erroneously believed that evaluating the financial condition of the offerors was optional, and admitted that he was unqualified to perform this task in any event. Evaluator 2 claimed to be able to identify losses on a financial statement, but, if he did so as to Intervenor's statements, there is no evidence in the record that he gave the matter any thought. Evaluator 5 expressly admitted that he never made this determination. The only informed bases in the record, either contemporaneous with the scoring process or at any later time through the hearing, for the scoring of the subject criterion in the offers of Petitioner and Intervenor are the evaluation forms of Evaluator 1. In these forms, Evaluator 1 correctly noted the loss suffered by Intervenor in 1998 and the already- mentioned formal deficiencies of Petitioner's financial statements. However, the sole contribution of Evaluator 1 to this case is in the comments on his forms. He was unwilling and unable to discuss any aspect of his scoring when questioned at his deposition. The case of the financial qualifications of the evaluators thus comes down to four evaluators who had no idea what they were doing and one evaluator who offers only two spare, handwritten notes suggestive of a rational basis for distinguishing between the financial capabilities of the two offerors. This is insufficient. The RFP promised an informed evaluation by more than one evaluator. Even if the RFP did not so promise, the promising comments of Evaluator 1 are not indicative of his qualifications when, for no good reason, he could not recall the recently completed evaluation process or could not or would not respond meaningfully to questions concerning the financial materials that he was evaluating. For the purpose of assessing the qualifications of Evaluation 1, the hint of rationality present in his two comments is overwhelmingly offset by the actual financial condition of Intervenor. Rejecting a chance to discuss his evaluation, Evaluator 1 has chosen to let his evaluation be judged on the strength of its correspondence to the subject matter of the evaluation, Intervenor's financial statements. Under all of the circumstances, Evaluator 1's evaluation of the subject criterion in Intervenor's offer was clearly erroneous and contrary to competition. The remaining evaluators' evaluations of this criterion were clearly erroneous, contrary to competition, arbitrary, and capricious. However, Petitioner has elected not to make a direct issue of the accuracy of the scores. Addressing the qualifications of the evaluators, then, their evident lack of qualifications, coupled with the already-described grave deficiencies in the results of their scoring the first criterion of Intervenor's offer and the material impact on the outcome of the relative scoring of the offers of Intervenor and Petitioner, has rendered the evaluation process clearly erroneous, contrary to competition, arbitrary, and capricious.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order rejecting all offers. DONE AND ENTERED this 3rd day of September, 1999, in Tallahassee, Leon County, Florida. ___________________________________ 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 3rd day of September, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 William E. Williams Andrew Berton, Jr. Huey Guilday Post Office Box 1794 Tallahassee, Florida 32302-1794 R. Beth Atchison Assistant General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory P. Borgognoni Kluger Peretz 17th Floor, Miami Center 201 South Biscayne Boulevard Miami, Florida 33131
The Issue Whether just cause exists to terminate Respondent's employment for misconduct in office and immorality, as alleged in the Administrative Complaint.
Findings Of Fact The Broward County School Board, Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times pertinent hereto, Respondent was employed as a teacher at Lauderhill Middle School ("Lauderhill"), which is a public school in Broward County. The Events of March 11, 2010 On March 11, 2010, Respondent was scheduled to administer the science portion of the Florida Comprehensive Assessment Test ("FCAT") to a first-period class at Lauderhill. The FCAT is a significant test in that students' performance on the examination influences the letter grades (A through F) awarded annually to Florida's public schools, which in turn impacts the level of funding school districts receive from the state. Prior to March 11, 2010, and during the same school year, Respondent——as well as all other personnel who planned to administer the FCAT——were required to read the FCAT Test Administration Manual ("FCAT manual") and attend in-service training. Pertinent to the instant case and consistent with the FCAT manual, Respondent and her colleagues were specifically instructed during training that electronic devices, including cell phones, could not be used during testing. The testing schedule for March 11, 2010, contemplated that Respondent and the other teachers administering the FCAT would report to the office of Shalonda Griggs (one of Lauderhill's guidance counselors) at approximately 8:25 a.m. to pick up the testing materials for their respective first period students. Prior to leaving Ms. Griggs' office, each teacher was expected to examine the test booklets and ensure that the materials were intact——i.e., confirm that none of the seals on the test books were broken. It was further anticipated that each teacher would begin the FCAT at 8:30 a.m. On the morning of the examination, Respondent timely reported to Ms. Griggs' office and signed for the testing materials. Respondent reported no issues with the test booklets and proceeded to her classroom. At approximately 8:30 a.m., guidance counselor Janet Jackson——who was monitoring teachers in the area of the school where Respondent's classroom was located——observed Respondent, who had not started the FCAT, engaged in a verbal altercation with a student (C.H.). Ms. Jackson promptly advised Lauderhill's principal, Jeannie Floyd, of the situation, at which point Ms. Floyd and Ms. Griggs responded to the classroom and instructed Respondent to cease her inappropriate dialogue with C.H. and to begin the FCAT immediately. Before she returned to the front office, Ms. Floyd spoke briefly with C.H.——who was visibly upset——and advised her that she could take the FCAT on the following day. Approximately 35 minutes later, Assistant Principal Cindy Pluim proceeded to Respondent's classroom to monitor the testing procedures. Upon her arrival, Ms. Pluim observed Respondent, who had yet to begin administering the test, conversing on a cell phone in front of the class. Although Ms. Pluim ordered Respondent to end the telephone call and exit the classroom so that another member of the faculty could administer the test, Respondent refused and advised that she was speaking with her lawyer. Respondent further remarked that the seals of the test booklets had been prematurely broken——i.e., that the booklets had been unsealed prior to Respondent taking possession of them in Ms. Griggs' office. During the final hearing, Ms. Pluim credibly testified that contrary to Respondent's statement, the test booklets in question had not been unsealed. Between 9:15 and 9:20 a.m., Ms. Pluim returned to the front office and informed Ms. Floyd that Respondent had refused to comply with her directives. At that point, Ms. Floyd and Ms. Pluim proceeded to Respondent's classroom and observed that she had yet to end the telephone call. According to Ms. Pluim, whose testimony the undersigned credits fully, the students appeared nervous and upset by Respondent's conduct. In an effort to avoid any unpleasantness in the students' presence, Ms. Floyd stood in the doorway and repeatedly gestured for Respondent to exit the classroom. Undeterred, Respondent ignored Ms. Floyd and continued with her telephone conversation. After she waited fruitlessly for nearly five minutes in the hope that Respondent would comply, Ms. Floyd returned to the front office and requested assistance from the School Board's special investigative unit (SIU). At 9:44 a.m., Respondent——who was still in her classroom——sent an e-mail to: James Notter, the Superintendent of Schools for Broward County; the Commissioner of Education for the State of Florida; Paul Houchens, the Director of Assessment for the Broward County School District; and Ms. Floyd. The e- mail reads, in pertinent part: Mrs. Floyd you forgot to sign the security checklist the three times you entered my classroom even though I did ask you to. * * * Now I have students complaining that their tests have been tampered with and had to listen to complaints. I don't know what is going on, but testing is a serious matter and not to be taken lightly. I have already reported this information to others. Ms. Floyd, as you are aware my daughter attends this school and testing effects [sic] her. What is going on is a travesty and what is going on now isn't right. At approximately 10:15 a.m., several SIU officers (and an officer with the Lauderhill Police Department) arrived at Lauderhill, removed Respondent (who still had not started the FCAT) from her classroom, and later escorted her from the campus. Subsequent Events On a Saturday morning during late March or early April 2010, Respondent appeared unannounced at the residence of Ronald Bryant, whose daughter attended Lauderhill. During the visit—— which irritated Mr. Bryant due to the early hour and lack of advance notice——Respondent stated that Ms. Floyd was attempting to "cover-up" cheating on the FCAT. Respondent further indicated that she wished for Mr. Bryant to contact the Broward County School Board and lodge a complaint. Although Mr. Bryant did not believe that the allegations were any of his business, he later went to Lauderhill——in an effort to determine why Respondent had come to his home——and spoke with Ms. Floyd. On another occasion following the events of March 11, 2010, Respondent contacted (by telephone) a second parent, Leslie Pullum. During the phone conversation, Respondent attempted to convince Ms. Pullum that Ms. Floyd was using her (Ms. Pullum's) daughter as part of a conspiracy to get Respondent fired. Ms. Pullum, unconvinced and upset by Respondent's remarks, subsequently complained to Ms. Floyd about Respondent's behavior. During the final hearing, Petitioner elicited no evidence concerning the veracity of Respondent's allegations regarding Ms. Floyd.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (1) finding Respondent guilty of misconduct in office; finding Respondent not guilty of immorality; and (3) terminating Respondent's employment as a teacher with the School Board. DONE AND ENTERED this 23rd day of November, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 23rd day of November, 2011.
The Issue Whether Petitioner has a developmental disability that makes her eligible to receive services from the Department of Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is almost 59 years old. She has lived a very sheltered life, and she has always been considered to be "slow" by her family. Petitioner moved to Florida in the early 1990's, and she currently resides in Merritt Island. Petitioner lived at home with her parents until two and one-half years ago when her mother had a debilitating stroke and was moved into a nursing home. Since then, Petitioner has lived by herself. Petitioner never learned to ride a bike or drive a car. She did not date. Petitioner's work experience, as detailed in the 1974 report prepared by psychologist William McManus (discussed below), was limited to 11 years as a stock clerk in a family business. She has not worked since 1973. Petitioner has the social skills of a 12 to 13-year-old child. She reads at the fifth grade level. Petitioner is incapable of managing her own finances. Petitioner's social security check is sent to Ms. Michalsky, who pays Petitioner's rent for her. Petitioner is incapable of managing her own diet. Her meals consist primarily of sweets, microwave foods, and sodas. Ms. Michalsky, Petitioner's second cousin and the only relative who lives near her, has been Petitioner's de facto guardian since Petitioner's mother suffered the stroke. Ms. Michalsky has children of her own, and she is unable to adequately care for Petitioner. It was apparent from Ms. Michalsky testimony at hearing that she is genuinely concerned for Petitioner's safety and well-being. Petitioner attended and graduated from St. Mary of Perpetual Help High School (St. Mary) in June 1962. Out of a class of 99 students, Petitioner was ranked 99th. Petitioner's transcript from St. Mary shows that she received grades at or near the lowest passing grade in all of her classes. This suggests that Petitioner was being "socially promoted." Petitioner's transcript also shows that she scored very poorly on all of the standardized tests that she took. Petitioner took the Otis S-A Test Form A (Otis Test) in January 1958. She was 14 years old at the time. The purpose of the Otis Test is to determine a cognitive IQ. A score of 100 is considered average. The standard deviation for the test is 15. A person whose score is more than two standard deviations below the average, i.e., a score below 70, is considered to be retarded. Petitioner's IQ, as determined by the Otis Test, was 73. The margin of error for the Otis Test is +/- five points. Thus, Petitioner's "actual" IQ was between 68 and 78. Petitioner scored in the third percentile of the Differential Aptitude Test (DAT), meaning that she scored higher than only three percent of the people who took the test. Petitioner took this test in April 1959. She was 15 years old at the time. Her score on the DAT roughly translates into an IQ level of 75. Petitioner was in the first percentile on the SRA National Education Development Test, meaning that she scored higher than only one percent of the people who took the test. Petitioner took this test in the spring of 1960. She was 17 years old at the time. In July 1974, Petitioner was examined by William McManus, a licensed psychologist. Mr. McManus examined Petitioner based upon the Wechsler Adult Intelligence Scale (Wechsler Scale). Petitioner was 31 years old at the time. The Wechsler Scale includes 11 subtests, each of which are separately scored. The scores of the subtests are used to formulate a verbal IQ, a performance IQ, and an overall IQ. The separate scoring of the subtests allows a more detailed analysis of the subject's IQ, which in turn results in a more accurate reflection of the subject's learning abilities. The average score on each subtest is ten. Scores between seven and ten are considered average; scores between five and seven are considered borderline; and scores less than five are considered very low. There is typically no "scatter" in the scores of a person who is retarded. In other words, the person's score on all or almost all of the 11 subtests are in the very low range, i.e., below five. There was considerable "scatter" in the Petitioner's scores on the subtests. She scored in the average range on five of the 11 subtests; she scored in the borderline range on four of the subtests; and she scored in the very low range on only two of the subtests. Petitioner's overall IQ, as determined by the Wechsler Scale, was 75. Her verbal IQ was 79 and her performance IQ was 73. The information originally submitted to the Department with Petitioner's application for developmental services included only medical records. Those records did not include any of the IQ test scores described above. Neither the medical records originally submitted to the Department (which were not introduced at the hearing), nor any of the evidence introduced at the hearing suggest that Petitioner suffers from cerebral palsy, autism, spina bifida, or Prader-Willi syndrome. The denial letter issued by the Department on July 24, 2001, was based only upon the medical records submitted with the application. After receiving the denial letter, Ms. Michalsky spoke with Department employee Pat Rosbury regarding the type of information needed by the Department. Based upon those conversations, Ms. Michalsky provided additional records to the Department, including records showing the IQ test results described above. Ms. Michalsky was unable to obtain any additional records from Petitioner's childhood because such records are over 50 years old. The Department forwarded the supplemental records to Dr. Yerushalmi on October 16, 2001, because the scores showed borderline retardation. Dr. Yerushalmi did not personally evaluate Petitioner, but based upon her review of the IQ test scores described above, she concluded that Petitioner is not retarded and, hence, not eligible for developmental services from the Department. Dr. Yerushalmi "suspects" that Petitioner had a learning disability as a child and that disability, coupled with her sheltered upbringing, led to her current state. The Department did not issue a new denial letter after Dr. Yerushalmi's review of the supplemental records confirmed the Department's original decision that Petitioner is ineligible for developmental services. Petitioner's request for a formal administrative hearing was dated October 17, 2001, and was received by the Department on October 19, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner to be ineligible for developmental services. DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 6th day of June, 2002.
