The Issue The issue in this case is whether Colette Michele Gatward (Petitioner) should receive a passing score on the Florida Dental Hygiene Clinical Examination.
Findings Of Fact The Petitioner was a candidate for licensure as a dental hygienist by the State of Florida. All candidates for Florida licensure as dental hygienists are required to pass the Florida Dental Hygiene Clinical Examination. The Petitioner took the exam on November 5, 2010. Information and instructions related to the exam were provided to candidates through a "Candidate Information Booklet" (CIB) that was posted on the Respondent's Internet website approximately 60 days prior to the date of the exam. Candidates were expected to review the information contained in the CIB. The Petitioner was aware of the information in the CIB. Part of the exam required that each candidate perform certain clinical procedures to the teeth of a human patient. The CIB stated that each candidate was responsible for providing their own human patient upon whom the clinical procedures could be performed. A panel of three examiners reviewed and scored each candidate's performance of the clinical procedures. In relevant part, the CIB stated that each candidate must submit a patient with 12 surfaces of explorer-detectable moderate subgingival calculus. An explorer is a piece of equipment used in dental practice. The CIB stated that 6.5 points would be awarded for each of the 12 surfaces of subgingival calculus detected and removed by the candidate during the exam. The CIB also stated that failure to detect and remove a minimum of nine surfaces of moderate subgingival calculus would result in a candidate receiving less than a passing score on the exam. The CIB specifically stated that "[p]oor patient selection and management is a common reason for examination failure." The Petitioner brought her sister-in-law to the exam to serve as her patient. After the applicable portion of the exam was completed, the panel of three examiners evaluated the Petitioner's clinical performance. Two of the three examiners determined that the Petitioner had detected and removed subgingival calculus from only eight surfaces of her patient's teeth. There was no evidence presented to indicate that the Petitioner neglected to remove subgingival calculus from her patient's teeth. The Petitioner was aware at the time of the exam that her sister-in-law did not have sufficient subgingival calculus to meet the patient requirements for the clinical demonstration. The insufficient degree of subgingival calculus present in the Petitioner's patient prior to the clinical exam precluded the Petitioner from passing the exam. The Petitioner received a total deduction of 26 points (6.5 points deducted for each of the four surfaces upon which no subgingival calculus was detected) and failed the exam with a score of 74. The Petitioner offered no credible evidence that the panel of examiners improperly reviewed her performance on the exam or that the score she received on the November 5, 2010, administration of the exam was in any manner incorrect. At the hearing, the Petitioner testified that she is licensed as a dental hygienist in another state, that the examinations in both states were conducted by the same regional testing agency, and that the scores from the other state should be accepted by the Respondent for licensure of dental hygienists in Florida. Florida law does not provide for dental hygienist license reciprocity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Petitioner's challenge to the scoring of the exam referenced herein. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2011. COPIES FURNISHED: Morris Shelkofsky, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Colette Michele Gatward 2212 Margarita Court Kissimmee, Florida 34741 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 H. Frank Farmer, M.D., Ph.D., Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Dade Dental Laboratories was opened in 1973-74 by a nonprofit corporation which leased dental facilities contiguous and internally connected thereto to dentists. One of the original organizers of the laboratory, Samuel Kushner, was a laboratory technician who had so worked in New York for many years. Respondent was employed on a salary (hourly) basis in 1978 to work as a dentist at the dental facility located at 1225 Washington Avenue, Miami Beach, Florida and known as Dade Dental Associates (hereinafter referred to as Dade Dental). At this time, Dade Dental Laboratories was owned by the wives of Samuel Kushner and Frank Schiller. Schiller was employed as office administrator. Dade Dental Laboratories owned the lease of the premises and equipment located therein. In 1978, the dental office spaces were leased to Frederick Stang, D.D.S., who employed Respondent and other dentists on a salary basis. Effective 1 July 1979, Respondent's wife purchased the fifty percent interest in the laboratory previously owned by Mrs. Kushner and the sub1ease of the dental offices was given to Respondent. Stang continued as an employee of Respondent until September 1979. Frank Schiller spoke Yiddish and was often used as a translator for some of the older Jewish clients who came to Dade Dental. After the sublease was given to Respondent, Schiller continued as administrator until September 1979. The ownership of the fifty percent interest in the laboratory owned by Mrs. Schiller, if not still held by Mrs. Schiller, was not shown. Inspections of the premises at 1225 Washington Avenue were conducted in August, September and October 1979 and again in January 1980. The inspection conducted by the Department of Health and Rehabilitative Services on September 24, 1979 revealed X-ray equipment that was defective by reason of not being properly shielded and having a timer operating erratically (Exhibits 4 and 5); the inspections conducted September 6 and 13 revealed old equipment, improper sterilization of instruments, a very dirty laboratory, dirty impression trays, bite blocks with teeth marks indicating prior use, rusted instruments where chrome had chipped off the underlying steel, no sterile sutures, and a cold dry-heat sterilizer. Following these inspections, Respondent ordered a new X-ray machine and new instruments. No evidence was presented that the rusty instruments found in the dental operatories were ever used on a patient. Respondent's testimony, which was not rebutted, was that he didn't like the instruments located in the operatories when he started working there and he brought his own instruments which he used. The charges of allowing unauthorized persons to perform acts constituting the practice of dentistry, malpractice, misconduct in business or personal affairs of a nature to bring the dental profession into disrepute, and failing to exercise proper care in the treatment of patients involved Joseph Cedar and Hilda Hirschman. After receiving a high estimate of the cost for needed dental work from his dentist, Joseph Cedar, at the recommendation of a friend, went to Dade Dental for a second estimate. He first saw Frank Schiller, who took Cedar to Seymour Rickles, D.D.S., one of the dentists employed at the facility. Cedar described Schiller as the "boss" who gave orders and who looked into his mouth. No evidence was presented that Schiller ever put his hands or any instrument in Cedar's mouth while Cedar was being treated by Respondent or any other dentist at Dade Dental. After examination and impression, Rickles prepared crowns and a partial denture. Although Cedar testified that Rickles performed all the work done on him, the dental record (Exhibit 14) shows 5 dentists worked on Cedar at this office. However, most of the work appears to have been done by Rickles and Stang. After the work on Cedar had been completed, he complained of pain from the partial dentures which had been prepared for him and was referred to Respondent, who first saw Cedar on June 28, 1979 when he adjusted the partial plates. Exhibit 14 indicates Respondent again saw Cedar on July 3, 19, 24, 25 and August 7 for adjustments. Cedar testified he told Respondent about a sore spot near the partial denture on the upper left side of his mouth but Respondent only told him it was not caused by the dentures. Respondent's version was that he X-rayed the lower right side of Cedars' mouth where the partial had been fitted and found an abscess which could cause the pain described by Cedar, and that Cedar never complained of soreness in the upper left area of his mouth. On August 15 or 16, 1979 Cedar went to the dental clinic at Mount Sinai Medical Center complaining of a soreness in the upper left area of his mouth. He was examined by several dentists because the affected area looked suspicious, and a biopsy was done. This showed the lesion to be squalus cell carcinoma, which was subsequently excised. The lesion removed from Cedar's mouth was well-differentiated in mid- August when he was seen at Mt. Sinai. It is unlikely that a well-differentiated lesion will develop in a week to ten days, but could develop in a period of two or more weeks. A competent dentist should recognize a well-differentiated lesion and refer the patient to an oral surgeon. Failure to do so constitutes practice below minimum accepted community standards. Respondent has referred other patients to oral surgeons when suspicious conditions were observed in patients' mouths. (Exhibit 18). Hilda Hirschman first visited Dade Dental in December 1978 and was referred to Respondent. She had several teeth extracted by Respondent, partial dentures made and two crowns installed. Mrs. Hirschman testified that Schiller escorted her into Respondent's office on her first visit and wrote down and quoted to her prices for work as he and Grebin talked. She thought Schiller was the head dentist. She also testified that one time Schiller ground down one of her teeth. When told periodontal treatment was indicated, Mrs. Hirschman told Respondent she did not want root canals done. After her teeth had been extracted and partials made, the partials were inserted by Respondent, but neither of the partials fit. The upper was adjusted to fit and a second impression was taken for the lower. Mrs. Hirschman was later examined by Dr. Leonard Sakris at the request of the Dental Board. From his study of the X-rays taken in November 1978 and August 1979 and his examination of the patient, Dr. Sakris opined that the teeth extracted by Respondent could have been saved if root canal therapy had been used and crowns installed. This examination also revealed the condition of Mrs. Hirschman's mouth to be bad, with two ill-fitting partial dentures and restoration placed over decay. The conclusion this decay existed when Respondent treated Mrs. Hirschman was reached from the X-rays. On cross- examination, Dr. Sakris acknowledged that decay was not always discernible on X- rays and could be misdiagnosed absent a visual examination and probe by the dentist. Dr. Sakris' examination did not confirm Mrs. Hirschman's testimony that Schiller had ground down her tooth. He found no evidence of grinding, except possibly on Lower Left Canine 3. This is also the tooth with decay found on Sakris' examination. The crown on Lower Right 5 placed by Respondent had a bad margin and decay when Mrs. Hirschman was examined by Sakris. Unless margin of crown makes solid contact with tooth, decay can occur. It is below acceptable minimum standards to leave open margins between crown and tooth. Respondent's testimony that he suggested Mrs. Hirschman go to a periodontist for root canal treatment and she refused is corroborated by Mrs. Hirschman's testimony that she didn't want the expense of root canals. Without periodontal treatment for Mrs. Hirschman's dental condition, extraction is the standard practice. Respondent's testimony that both he and Stang worked on Mrs. Hirschman is supported by Exhibit 13 and lends credence to his testimony that he did not prepare the crowns he installed on this patient. Further, Exhibit 13 contains the notation that Mrs. Hirschman "refuses pero" (presumably periodontal treatment) and confirms Respondent's testimony that the patient's refusal to have root canals left him no choice but extraction. The parties stipulated that the advertising which forms the basis for Counts XVI II through XXI was ordered and paid for by Stang, although it continued for some two months after Respondent took over the operation of the dental clinic before it was stopped. Respondent's testimony that he neither ordered nor paid for the advertising which appeared after July 1, 1979 was not disputed. No evidence was presented regarding the character of this advertising, other than the examples thereof shown in Exhibit 8.
The Issue The issues in this case are framed by the Notice of Intent to Issue an Order to Cease and Desist, filed by the Florida Insurance Commissioner on August 18, 1992, Dept. of Insurance Case No. 92-CA-058EMM, as modified by the parties' Joint Prehearing Stipulation, filed on March 18, 1993. The Cease and Desist Order alleges in Count I essentially that the United Dental Program of America (UDP) 2/ is a dental service plan that has been operating in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 637, Part III, Fla. Stat. (1991). Count II alleges essentially that, in so operating, UDP and one or more of the other respondents were guilty of various deceptive acts or practices prohibited by either Chapter 637, Part III, or by Chapter 624, Fla. Stat. (1991). In the parties' Joint Prehearing Stipulation, the Department of Insurance dropped all of the alleged deceptive acts or practices except the allegation that sales solicitation materials falsely guaranteed savings of 60 percent or more under the UDP product. Count III alleges essentially that UDP has been transacting insurance in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 624, Fla. Stat. (1991). The Cease and Desist Order also seeks an administrative penalty against UDP in an amount not to exceed $1,000 per violation, and an administrative penalty of $10,000 against each of the other respondents for each dental service plan contract or insurance contract offered or effectuated in Florida.
Findings Of Fact At the time the Florida Insurance Commissioner filed the Notice of Intent to Issue an Order to Cease and Desist in this case, UDP was incorporated in the State of Delaware as United Dental Plan of America, Inc. On December 23, 1992, UDP filed a name change with the Secretary of State of Delaware, and the company has since been incorporated as United Dental Program of America, Inc. Before and after the name change, the company has been referred to as UDP, and the acronym "UDP," when used in this Recommended Order, may refer to the company either before or after the name change. The Department and UDP stipulated that, prior to August 18, 1992, Bob Rose, a/k/a Robert Rosenfeld, by a nationally accessible electronic telephone system, recorded a message of solicitation to subscribers, UDP sales associates, and potential sales associates, which was directed, in part, to Florida residents. They also stipulated that respondents Paul Sheldon, William C. Stinnett, Phillip Young, Richard A. Gilbert, John C. Sparks, Jean Joseph and Nick Virenza, a/k/a Nick Verrengia were UDP sales associates who sold UDP memberships in Florida prior to August 18, 1992. The individual named respondents did not enter into the stipulation referred to in the preceding paragraph. However, the UDP stipulation is viewed as evidence on which the findings in the preceding paragraph can be based. Prior to August 18, 1992, without Department approval, UDP sales associates in Florida, including the named respondents referred to in Finding 2, were active in selling subscriptions to UDP's Dental Program to Florida residents, and held meetings for the purpose of selling the Dental Program and recruiting sales associates. There are 1,981 subscribers in the State of Florida. There was no evidence as to which of the 1,981 subscriptions sold in the State of Florida were sold by which of the individuals identified in Finding 2. UDP is not, and has never been, licensed under the Florida Insurance Code. UDP sells an annual membership to its subscribers. There is an individual membership costing $85 a year and a family membership costing $150 a year. If UDP resumes operations in Florida, the annual fees will be $140 for senior couples, $155 for other couples, $170 for families, $80 for senior individuals, and $95 for other individuals. Subscribers are given a one year membership card. For one year from the subscription date, the subscriber receives an annual no-cost dental checkup and x-rays pursuant the UDP subscriber and provider agreements. Subscribers are provided a list of dentists in their geographic area (and elsewhere, if requested) (a "dental directory") who have entered into an agreement with UDP to be on the list. By agreeing with UDP to be on the list, dentists agree that, if they accept a subscriber who has not yet had his or her annual checkup and x-rays, they will do the checkup and x-rays at no cost. They also agree to charge the subscriber for other dental services performed during the subscription year in accordance with a schedule of presumptively reduced fees or, if a procedure is not scheduled, for a 25 percent discount from their usual and customary fees. UDP marketing materials assert that the scheduled fees are lower than the "typical costs." If participating dentists accept subscribers, they agree to abide by the agreement with UDP described in the preceding paragraph. The participating dentists are not obligated to accept subscribers as patients. They have "the right within the framework of professional ethics to reject any patient seeking [their] professional services." The contractual documentation does not further clarify whether, once a participating dentist begins a procedure for a subscriber, the dentist is obligated to complete it or whether, once a procedure is completed for a patient, the dentist is required to accept the patient if the patient returns for additional procedures or services. Notwithstanding the unclear contractual provisions, UDP professes a desire to effectuate an understanding with participating dentists that they will accept UDP patients "on an equal basis" with their other patients. It is not clear how UDP would propose to reach or enforce this understanding. Subscribers are free to use, or attempt to use, any dentist on the list, or directory, and are free to change dentists as often as they choose. (They also remain free to use any dentist not on the list, or directory, under any financial arrangements to which the patient and dentist might agree, but they would not be entitled to benefits under the UDP program.) Except for the annual checkup and x-rays, they are obligated to pay the discounted fees directly to the dentist. Under the UDP program, they expect, and are entitled to, no payment from UDP, either to them or to the dentist. Dentists who agree to participate in the UDP program are also free to maintain their own private practice and to participate in any other dental insurance or plan or program that they wish. Under the UDP program, they expect, and are entitled to, no payment of any kind from UDP. If they perform the free annual checkup and x-rays for a subscriber, they receive no payment from any source for those services. If they perform no other services for a subscriber, the dentists have no recourse against either the patient or UDP. If they perform other services for a subscriber, they are entitled to look only to the subscriber for payment, and only in accordance with the UDP fee schedule, or 25 percent discount, whichever applies. UDP is not liable to the dentists for payment of any part of a subscriber's fees. If the subscriber does not pay, the dentists have no claim against UDP. Under the UDP program, the dentists who agree to participate in the UDP program are solely responsible for dental advice and treatment. UDP has no control over the dentist's practice, rates charged (except insofar as the UDP fee schedule applies, or 25 percent UDP discount is necessary), the dentist- patient relationship, or the dentist's personnel or facilities. UDP and the dentists who agree to participate in the UDP program also agree that the dentists will maintain malpractice insurance coverage for their practices in an amount not less than $300,000 per incident. The dentists must provide UDP with a copy of the malpractice insurance. There was evidence that an early brochure developed by UDP before 1992 contained an untrue guarantee of savings of at least 60 percent. But there was no evidence on which a finding of fact can be based that UDP, through any representative, whether or not named as a respondent to this proceeding, ever delivered a copy of the brochure, or made the misrepresentation, to anyone, much less someone in Florida. In addition, other information also was developed contemporaneously from which it could be determined that savings of at least 60 percent were not guaranteed. The Department first notified UDP that the Department believed UDP and the other named respondents were in violation of the Florida Insurance Code by letter dated March 5, 1992. Between March 5, and August 18, 1992, UDP and the Department engaged in numerous informal telephone and written communications through which UDP attempted in good faith to persuade the Department that UDP was not subject to regulation under either Chapter 637, 624 or 626 and that UDP was not in violation. It was not established how many, if any, of the 1,981 subscriptions UDP sold in Florida occurred after March 5, 1992. According to the Joint Stipulation between the Department and UDP, none of the subscriptions were sold after August 18, 1992, the date of the Cease and Desist Order issued against UDP and the other named respondents. There was no evidence contrary to this stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order: (1) finding that United Dental Program, Inc. (UDP) is a dental service plan corporation subject to regulation under Part III, Chapter 637, Fla. Stat. (1991); (2) finding that individuals who represent UDP are subject to regulation under Section 637.415, Fla. Stat. (1991); (3) finding that UDP and some of its representatives sold 1,981 subscriptions in Florida without having the authorization required under Part III, Chapter 637, Fla. Stat. (1991); (4) requiring UDP and the individual respondents named in Finding 2 to cease and desist from operating the UDP dental service plan corporation in Florida without having the authorizations required under Part III, Chapter 637, Fla. Stat. (1991); and (5) assessing against UDP an administrative penalty in the amount of $5,000. RECOMMENDED this 23rd day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1993.
Findings Of Fact On November 16, 1990, Petitioner sat for the Dental Manual Skills Examination administered by Respondent as part of its regulatory duties pertaining to the practice of dentistry in the State of Florida. This examination consisted of nine separate procedures. Each procedure was graded by three dentists, each of whom had been trained by Respondent to grade this type of an examination. Procedures 1-5 have a weighted value of 12 while Procedures 6-9 have a weighted value of 10. Following the initial scoring of Petitioner's performance, Petitioner received a final grade of 2.78. A final grade of 3 was the minimum passing grade. Petitioner challenged the scoring of her performance on Procedure 5 "Completed Endondontic Therapy" and on Procedure 6 "Class II Amalgam Restoration". Following receipt of Petitioner's challenge, Respondent caused the scoring of her performance to be reviewed by Theodore Simpkin, D.D.S., a consultant employed by Respondent. At the recommendation of Dr. Simpkin, Petitioner's performance on Procedure 5 and Procedure 6 was re-scored by three new scorers. As a result of the re-scoring, Petitioner received slightly lower total scores on each of these two procedures and, consequently, a slightly lower final grade. The final grade was still below that required for passage of the examination. At the formal hearing, Petitioner established that she was entitled to have Procedure 5 re-scored. On Procedure 5 the first examiner scored Petitioner's performance as a 2, the second examiner a 0, and the third a 3. Petitioner was entitled to have her performance re-scored because the second examiner neglected to completely fill out the score sheet. Petitioner's performance on Procedure 5 was re-scored by three other dentists used by Respondent as scorers for the manual skills examination. Petitioner failed to establish that the re-scoring of her performance on Procedure 5 was in error or that she was entitled to more credit than she received. Petitioner received the relief to which she was entitled when Respondent caused her performance to be re-scored. At the formal hearing, Petitioner also established that she was entitled to have Procedure 6 re-scored. On Procedure 6 the first examiner scored Petitioner's performance as a 0, the second examiner a 4, and the third a Dr. Simpkin recommended that Petitioner's performance on Procedure 6 be re- scored because he was of the opinion that her performance should not have received a grade of zero from the first examiner and he was also of the opinion that her performance should not have received a four from the other two examiners. Petitioner's performance on Procedure 6 was re-scored by three other dentists used by Respondent as scorers for the manual skills examination. Petitioner failed to establish that the re-scoring of her performance on Procedure 6 was in error or that she was entitled to more credit than she received. Petitioner received the relief to which she was entitled when Respondent caused her performance to be re-scored.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's challenge to the scoring of her performance on Procedures 5 and 6 of the November 1990 Dental Manual Skills Examination. DONE AND ENTERED this 30th day of January, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 30th day of January, 1992. Copies furnished: Tracey S. Hartman, Esquire Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Department of Professional Regulation/Board of Dentistry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Salvatore Carpino, Esquire 1 Urban Center Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Victoria Grimes, D.D.S. 223 Summa Street West Palm Beach, Florida 33405
The Issue The issue presented is whether Petitioner achieved a passing score on the June 1999 Florida dental licensure examination.
Findings Of Fact Petitioner is licensed to practice dentistry in California and was also licensed in Georgia until he permitted his Georgia license to become inactive. He has been engaged in the active practice of dentistry for thirteen years. He has never been sued. Petitioner took the June 1999 clinical portion of the Florida dental licensure examination. He was subsequently advised that he had not achieved a passing score. Petitioner challenges the score he received on two portions of the clinical examination: his amalgam cavity preparation on the patient and his endodontic procedure on an extracted tooth. Petitioner's patient had a cavity between two teeth, although it was much lower than the contact point. The patient also had a large non-contiguous cavity in the front of the same tooth. Petitioner determined that he wished to save as much of the tooth as possible knowing that the large cavity in the front of the tooth would need to be filled. Because of the manner in which it was necessary to prepare the tooth to preserve the maximum amount of structure, he generated a monitor note explaining his approach. When he located the monitor to whom he would turn in his note, that monitor was busy viewing another patient and motioned for Petitioner to place the note at the monitor's station. Petitioner placed the note in the monitor's chair and returned to his patient. Petitioner completed the preparation procedure. While doing so, he noticed that his patient's tooth had a dead tract, a rare dental defect that would not interfere with the process. This was only the second time that Petitioner had seen a dead tract in a tooth despite his many years of practice. The first time had been while Petitioner was in dental school When his patient was graded, two of the three graders gave Petitioner a score of "0," noting that caries remained. The third grader saw no caries but noted debris remained. What the two examiners mistook for further decay was the dead tract. No debris remained. The other comments of the graders suggested that they had not seen the monitor note generated by Petitioner explaining the manner in which he was preparing the tooth and why. Despite the alleged presence of decay, Petitioner was instructed to proceed to fill the cavity. The extracted tooth on which Petitioner performed his endodontic procedure was an "easy" tooth with large canals. One grader gave Petitioner a "5," which is a perfect score. One grader gave him a "3," and the other gave him a "0." Only the grader who gave Petitioner the "0" noted that the tooth was perforated. The tooth Petitioner worked on had no perforation on the inside, and the x-rays taken during the process revealed no file or gutta percha filling off to the side of the canals. Petitioner did not perforate the tooth during his endodontic procedure. Petitioner properly performed both the amalgam cavity preparation on his patient and the endodontic procedure on the extracted tooth. He should be awarded full points on both procedures. The additional points are sufficient to give Petitioner a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner achieved a passing score on the June 1999 dental licensure examination. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 26th day of January, 2000. COPIES FURNISHED: Bill Buckhalt, Executive Director Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Gregory K. Barfield 2555 Collins Road, Penthouse 114 Miami Beach, Florida 33140 Gregory K. Barfield Post Office Box 102 Rancho Sante Fe, California 92067 Adam Keith Ehrlich, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact Petitioner, Shaikh Enayetul Karim, sat for the dental licensure examination administered by the Department of Professional Regulation in December 1985. The Petitioner received a failing score of "2.85" for the clinical portion of the examination and a score of "78" on the written and oral diagnosis portion. A passing score on all portions is necessary for licensure. The Petitioner complained of contradictory grading or disparate grades between each of the three examiners for a given procedure. Accordingly, pursuant to Department rules, the Petitioner's objections were reviewed by the Respondent's dental examination consultant as to the following procedures: Procedure 2 - amalgam restoration Procedure 5 - endodontic evaluation (posterior) Procedure 6 - endodontic evaluation (anterior) Procedure 7 - cavity preparation Procedure 8 - onlay wax-up Procedure 9 - pin amalgam preparation Procedure 10 - pin amalgam restoration The Respondent's consultant, Dr. Sue Ellen Hamilton, testified as an expert witness and was one of the three graders on Petitioner's original examination. Upon reviewing the Petitioner's examination and his scores for each procedure, she ultimately agreed with the grade assigned by the three examiners for procedures numbered 2, 5, 7, 8 and 10 above. She questioned the grades for procedures 6 and 9, however, and recommended that those two procedures be regraded by three additional independent graders. Upon these procedures being regraded, the Petitioner's scores still were insufficient to merit a passing score on the clinical portion of the examination. Passing that portion is required to pass the entire examination and to become licensed. Lucinda Ann Richards was accepted as an expert witness in the areas of examination development, evaluation and the administration of examinations. She is an examination development specialist with the Department of Professional Regulation and is a PhD candidate in "testing and measurement," a discipline involving training in the development and implementation of fair examinations which accurately test competency in a field such as dentistry. She established that the examination at issue was developed and administered in accordance with the Department's rules. She particularly described the method of training of examiners to ensure that they grade each procedure tested independently of each other and accord a candidate a fair evaluation, giving a candidate the benefit of the doubt in the case of an answer or procedure in which they feel the scoring thereof is a "borderline" passing or failing situation. She established that the examination is based upon "holistic material," that is, the material for the dental examination is not drawn from one or two schools or methods of dentistry, but rather the material for the examination and the questions and procedures upon which candidates are tested is drawn from all generally accepted schools or methods of dentistry and is graded on the same holistic basis, that is, candidates' answers are accorded passing scores if they are correct under theories or practices of any of the generally accepted schools or methods of dentistry related to the procedure or question posed to the candidate. She established that this holistic grading system is more fair and reasonable for examination candidates who typically are educated at many dental schools in many different states. Fairness of the examination and its grading is additionally ensured by the use of three different independent examiners who each independently grade each question or procedure without consultation with each other. Their grades are then submitted for each procedure and averaged so that the score the candidate obtains is an average score so that the candidate will get the benefit of those examiners who graded a given guest ion or procedure with the maximum grade, a "5" to counter balance an examiner who might have graded the procedure with a "1" or "2." Thus, as established by witness Hamilton, the grades assigned by the three examiners for procedures 2, 5, 7, 8 and 10 were determined upon review to be correct but, as to those grades for procedures 6 and 9 which Ms. Hamilton determined required regrading, it developed that upon regrading of those procedures he was accorded the same grade on procedure 6, but indeed received a lower grade on procedure 9. Thus, ultimately, the Petitioner's grade on the clinical portion of the examination at issue, upon regrading, was still insufficient to accord him a passing score. Contrary to Petitioner's remonstrances before and at hearing, his score was not sufficient so that one additional point would have passed him, even upon regrading his examination. Witness Sue Ellen Hamilton was accepted as an expert witness in the field of practice of dentistry and the evaluation of dental examination candidates. She was examiner number "083" who helped grade the Petitioner's original examination and who participated in the review of that examination, when he protested his score to the Department. She found that all the procedures mentioned above put at issue by the Petitioner except procedures 6 and 9, were graded correctly. For instance, she did agree with the Petitioner in her testimony that he identified the "canals" correctly, but the other mistakes on that procedure amply justified the original grade she and the other examiners accorded him. Procedure 8 was not accorded a passing score upon original grading or upon review by Ms. Hamilton. That procedure involved a wax "onlay" which was "waxed up" higher or modeled with a higher dimension than surrounding teeth. Ms. Hamilton established that this was a serious defect which would result in that tooth being the only tooth touching the opposing teeth in both jaws. Witness Hamilton otherwise in her testimony, amply established that the grades on procedures 2, 5, 7, 8 and 10 were correct as originally scored and that, upon the regrading she felt required on procedures 6 and 9, that the scores upon regrading were correct. She established that as to procedure 2, there was a serious defect involving an "open contact," that is, too much space between the teeth of the model. The Petitioner had been dissatisfied with the variation of the three examiners' comments about this procedure. Two of the examiners had criticized the open contact, and the third examiner noted "proximal contour." Ms. Hamilton established that these examiners' comments do not actually oppose each other in their import. It would not be possible to verify the fact of contact or lack of it by an X-ray "because of variances due to angulation" (see Petitioner's Exhibit 1). Ms. Hamilton established, however, that given that there was an open contact situation in the Petitioner's performance of this procedure, the procedure should have a failing grade without having the candidate redo that restoration because of the fundamental and serious nature of this defect. Concerning procedure 5, the grades given were "3", "5" and "1". Ms. Hamilton agreed with the Petitioner that the canal identification was correct. Even so, the "messial" wall was overextended and slight "pulp horns" were found, on the "lingual" wall. She felt that the grade of "5" accorded by one examiner was overly generous but it should be allowed to balance the grade of "1" given by another examiner so that a fair, holistic evaluation of that procedure was that score originally given, that is, an average of the grades "3", "5" and "1". Accordingly, she recommended no regrading. As another example, upon her review of the Petitioner's response to procedure 6 (grades given were "2", "4" and "3") she found that indeed the preparation was overextended incicsally, as the examiners had found, but she could find no evidence of the under-extension concerning which the Petitioner had been criticized and concedes that maybe examiner number "10" had made an error in making the wrong comment about this procedure. Even so, examiner "10" had given the Petitioner a passing grade on it and in an abundance of caution, Ms. Hamilton recommended that it be regraded since she felt the preparation did not deserve a failing grade. The regrading of procedure 6, however, did not result in increasing the overall score on the clinical portion of the exam to a passing grade. As to procedures 7 and 8, she found the grades were fair for those procedures and should stand. For instance, as to procedure 7, she found that the "axial walls will not draw," which is a defect determined originally by the examiners. As to procedure 8, she found that the "margins were generously bulky and the over-waxed buccal cusp and distal marginal ridge would cause hyperocclusion." She felt the overly generous grades of "3" and "4" accorded by two of the examiners adequately compensated for the low grade of "1" accorded by the third examiner and felt that the grade was fair as to that procedure also. Procedure 9 has already been discussed and Ms. Hamilton recommended a regrade of that procedure, which was done. She felt the grade of "5" accorded by one examiner was overly lenient, did not sufficiently balance the lower grade of "2" given by another examiner, hence the recommended regrading for reasons more particularly described in Petitioner's Exhibit 1. Finally, as to procedure 10, the pin amalgam restoration, all three examiners accorded the Petitioner a grade of "3." Ms. Hamilton, upon a review of these grades and of the procedure performed by the Petitioner found that the margins were bulky on the "proximal and buccal surfaces." The distal buccal cusp was too narrow. In short, she felt that the grades accorded this procedure were justified to begin with. In summary, as established by Ms. Hamilton, although the Petitioner felt many of the grades were inconsistent and contradictory, it was established that the comments of the examiners were guidelines to show candidates where their procedures differed from the ideal situation. Comments are designed to overlap each other for each procedure so each situation is evaluated as completely as possible. It is difficult, given different aspects and interpretations possible for each procedure to have agreement of all three examiners as to scoring on the same procedure. This is why three examiners were used so as to aim for a holistic evaluation of each procedure and to average the number scores accorded by each examiner so as to accord maximum fairness to the candidate. She and witness Richards established that this was done as to each of the contested procedure grades for the Petitioner. With this type of grading in mind, it was shown that the object of the examination review accorded the Petitioner when he first objected to his grades, is to try to discern if a grade by one examiner is unjustifiably low and is not compensated for by a lenient grade from the other examiner, or examiners, for the same procedure. If one examiner, for instance, accords a grade of "1" for a procedure and other examiner on the same procedure accords a grade of "5", it may be that the grade of "1" is too low but that the grade of "5" is too beneficial to the candidate. Thus, the grades are averaged and the lenient grade is allowed to be averaged with the "too-low" grade, which results in a fair result for the candidate and helps to render the examination as a whole, and each procedure, a fair test of the candidate's overall competence in the field of dentistry. It has thus been established by Respondent's expert witnesses that the examination development and its administration and method of grading was professionally accurate, fairly took into account, and gave candidates the benefit of, their education in various schools or methods of dentistry, was statistically valid and was free of arbitrariness or caprice.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Petitioner, Shaikh Enayetul Karim, be denied licensure as a dentist in the State of Florida. DONE and ORDERED this 24th day of June, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2635 The Petitioner Karim did not file Proposed Findings of Fact and Conclusions of Law in this case. The Respondent Department of Professional Regulation did file Proposed Findings of Fact and Conclusions of Law, all of which were accepted. COPIES FURNISHED: Shaikh Enayetul Karim Apartment 30 524 Morris Avenue Elizabeth, New Jersey 07208 Jeffrey H. Barker, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The primary issue in this case is whether the Petitioner should have been given a passing grade on the June 1983 Dental Mannequin examination. A secondary issue is whether the Petitioner should be permitted to take the regular State of Florida dental examination even if he is not entitled to a passing grade on the June 1983 Dental Mannequin examination.
Findings Of Fact On the basis of the testimony of the witnesses and the exhibits received into evidence at the hearing, I make the following findings of fact: The Petitioner, Dr. Angel N. Diaz-Norrman, is a graduate of a foreign dental school. Since his graduation from dental school he has engaged in three years of postgraduate training in the field of dentistry at the University of Miami and at the University of Florida. He has also completed all requirements for a teaching fellowship in the field of general dentistry. He is currently pursuing a program on postgraduate study in the specialty of periodontics at the University of Florida. His grade point average in his periodontic studies is 4.0 for both the didactic and the clinical portions of his studies. The Petitioner has twice taken the State of Florida Dental Mannequin Examination, once in December of 1982 and once in June of 1983. He was assigned a failing grade on both of those examinations. His December 1982 grade was slightly higher than his June 1983 grade. His June 1983 grade was 2.37. The minimum passing grade is 3.00. The State of Florida Dental Mannequin examination is a practical examination which tests several specified clinical skills. The examination consists of ten procedures, of which only nine are grades. Each of the nine graded procedures are graded separately. Each of the nine graded procedures on the examination is independently graded by three examiners. Each examiner assigns a grade of from 0 to 5 to the procedure and the final score for each procedure is determined by averaging the three grades given to that procedure. The final score on the entire examination is determined on the basis of a weighted average as provided in Rule 21G-2.19(1), Florida Administrative Code. 1/ The examiners who grade the State of Florida Dental Mannequin examination are all experienced Florida dentists who are selected by the Board of Dentistry. A person chosen as an examiner must have at least five years experience as a dentist. All persons who are selected to be examiners receive a full day of training in the examination process. They review the criteria by which each procedure is to be judged and they participate in a practice grading exercise. Proposed examiners who do not do a good job on the practice grading exercise are not selected as examiners, but are given other tasks at the examination such as serving as monitors. 2/ The application of the grading criteria is not a mathematically precise procedure. Although some shortcomings on the examination procedures require an automatic grade of 0, there is no mathematical formula for deducting any specific number of points or fractions of points for lesser shortcomings or deviations from an excellent procedure. Rather, the examiners use an holistic approach to the grading of each procedure. During the examination each examiner is required to record the grade assigned to each procedure on a written form. Whenever an examiner assigns a failing score to a procedure, the examiner is required to include on the grading form written comments sufficient to justify the failing grade. The written comments do not have to include everything the examiner thought was wrong with the procedure, but must include enough to justify the failing grade. An examiner is not required to justify a passing grade. When the Petitioner took the Dental Mannequin examination in June of 1983, the grades he received from each examiner on each graded procedure were as follows: Procedure Examiner Examiner Examiner Average No. No. 45 No. 48 No. 80 Grade 1. 1 0 0 0.33 2. 2 5 5 4.00 3. 1 3 3 2.33 4. 3 3 3 3.33 5. 2 1 3 2.00 6. 3 5 5 4.33 7. 1 2 3 2.00 8. 2 1 3 2.00 9. 1 1 1 1.00 8. The average grade given to the Petitioner for his performance on procedures number 1, 2, 5, 7, 8, and 9 was a fair and reasonable grade for his performance on each of those procedures. In other words, the average grades given to the Petitioner on those six procedures were fair and accurate measures of the skills demonstrated by the Petitioner on those procedures. The average grade given to Petitioner for procedure number 3 was higher than it should have been. The quality of the Petitioner's performance on procedure number 3 was such that he should have been given a grade of 1.00 instead of 2.33. The average grade given to Petitioner for procedure number 4 was lower than it should have been. The quality of the Petitioner's performance on procedure number 4 was such that he should have been given a grade of 4.00, instead of 3.33. The average grade given to Petitioner for procedure number 6 was lower than it should have been. The quality of the Petitioner's performance on procedure number 6 was such that he should have been given a grade of 5.00, instead of 4.33. With regard to procedure number 9, the Petitioner misunderstood the instructions and prepared a "wax-up" for a cast gold bridge of a type different than that required by the instructions. Between the time of the June 1983 examination and the time of the hearing the "wax-up" prepared by the Petitioner for procedure number 9 became partially damaged while in the custody of the Respondent.
Recommendation On the basis of all of the foregoing, I recommend that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the June 1983 Dental Mannequin examination is 2.37, a failing grade, and that the Petitioner is not eligible to retake the Dental Mannequin examination or to take the regular dental license examination. DONE AND ENTERED this 4th day of April 1985 at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985.
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation and Periodontal sections of the clinical part of Petitioner's June 2003 Florida Dental License Examination taken was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.94, so he failed the clinical part of the examination. Petitioner has challenged the grades of 2.0 that he received on the Patient Amalgam Preparation and Periodontal sections of the clinical part of the examination. In both sections, the score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. For both procedures, Petitioner challenges only the scores of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The two sections that are the subject of this case require the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For each section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communication between examiners and candidates is exclusively through monitor notes. For each section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Periodontal section of the clinical part of the dental examination required Petitioner to debride five teeth. Removing calculus from teeth, especially below the gums, is an important procedure because the build-up of tartar and plaque may cause pockets to form between the tooth and gum. Eventually, the gum tissue may deteriorate, ultimately resulting in the loss of the tooth. Prior to the examination, written materials explain to the candidates and examiners that the debridement is to remove all supragingival and subgingival foreign deposits. For the Periodontal procedure, Examiners 207 and 296 each gave Petitioner a 3, and Examiner 394 gave him a 0. The scoring sheets provide a space for preprinted notes relevant to the procedure. All three examiners noted root roughness. However, Examiner 394 detected "heavy" subgingival calculus on four teeth and documented his findings, as required to do when scoring a 0. Petitioner contends that two examiners and he correctly detected no calculus, and Examiner 394 incorrectly detected calculus. As an explanation, Petitioner showed that Examiner 394 knows Petitioner in an employment setting, and their relationship may have been tense at times. However, Petitioner never proved that Examiner 394 associated Petitioner's candidate number with Petitioner. Thus, personal bias does not explain Examiner 394's score. On the other hand, Examiners 296 and 207 are extremely experienced dental examiners. Examiner 296 has served nine years in this capacity, and Examiner 207 has served ten years, conducting 15-20 dental examinations during this period of time. By contrast, Examiner 394 has been licensed in Florida only since 1995 and has been serving as a dental examiner for only three years. However, the most likely explanation for this scoring discrepancy is that Examiner 394 explored more deeply the subgingival area than did Examiners 207 and 296 or Petitioner. Examiner 394 testified with certainty that he found the calculus at 5-6 mm beneath the gums. This is likely deeper than the others penetrated, but not unreasonably deep. For the Periodontal procedure, an examiner who found calculus on four teeth would be entitled to award the candidate 0 points. Examiners may deduct two points per tooth that has been incompletely cleaned, although the lowest score is 0. Examiner 394's score of 0 is therefore legitimate and at least as reliable as the other scores of 3. The Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 417 each assigned Petitioner a 3 for this procedure, but Examiner 420 assigned him a 0. Examiners 207 and 417 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 420 detected caries and documented his finding, as required to do when scoring a 0. As noted above, Examiner 207 is a highly experienced evaluator, but the other two evaluators are experienced dentists. Examiner 417 graduated from dental school in 1979, and Examiner 420 has been licensed in Florida since 1981. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Examiner 420 testified definitively that he detected caries tactilely, not visually, in Petitioner's patient. This testimony is credited. It is difficult to reconcile Examiner 420's finding of caries with the contrary finding by the highly experienced Examiner 207. It does not seem especially likely that an experienced dentist would miss decay, especially in the artificial setting of a dental examination, in which everyone's attention is focused on one tooth. Examiner 207's finding of no caries is corroborated by the same finding of Examiner 417. However, Examiner 417's finding is given little weight. She readily suggested that she must have missed the caries. What at first appeared to be no more than a gracious gesture by a witness willing to aid Respondent's case took on different meaning when Examiner 417 testified, in DOAH Case No. 03-3955, first that she had detected visually and then retreated to testifying that she did not know if she had detected caries visually or tactilely--a significant concession because examiners were instructed explicitly not to rely on visual findings of caries. Returning, then, to the conflict between the findings of Examiner 420 and Examiner 207, substantially unaided by the corroborating findings of Examiner 417, either an experienced, credible dentist has found caries where none exists, or an experienced credible dentist has missed caries. The specificity of Examiner 420's testimony makes it more likely, as logic would suggest, that he did not imagine the existence of caries, and Examiner 207 somehow missed the caries. It is thus slightly more likely than not that Petitioner failed to remove the caries prior to presenting the patient. More importantly, though, for reasons stated in the Conclusions of Law, Examiner 420, in finding caries, adhered strictly to Respondent's rules and policies for evaluating candidates' work, and his finding was not arbitrary or capricious.
Recommendation It is RECOMMENDED that the Department of Health enter a final order dismissing Petitioner's challenge to the scoring of the clinical part of the June 2003 Florida Dental License Examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue Whether Petitioner should receive a passing grade on the clinical portion of the dentistry examination administered in December 1996.
Findings Of Fact In June 1996, Petitioner, Arthur A. Gage (Gage), took the dentistry examination for licensure as a dentist in Florida. He was unsuccessful on the clinical part. In December 1996, Gage retook the clinical portion of the examination. He was notified by an examination grade report, mailed on January 13, 1997, that he had again failed the clinical portion of the examination. He achieved a general average score of 2.75. A final grade of 3 or better as a general average on the clinical portion is a passing score. Gage complains that there was inconsistency among the examiners in grading the examination. In particular, he submits that if you average the grades by each examiner on the mannequin portion of the examination that the averages are 3.25, 3.08, and 1.08. Gage averaged all the grades for each examiner and did not average by procedure. Consequently, Gage's approach did not produce a statistically meaningful result. Marsha Carnes, a psychometrician with the Department of Business and Professional Regulation (DBPR), testified for the Respondent. A psychometrician is an expert in testing and measurement. Ms. Carnes' responsibility is to ensure the validity and reliability of the examinations, including the dentistry examination. Ms. Carnes outlined the procedure used for selecting the examiners and the grading of the dentistry examinations. The examiners are selected by the Florida Board of Dentistry (Board) and must have five years of experience as a licensed, active dentist in Florida. The examiner must be recommended by a current examiner or member of the Board. Examiners must submit an application and have no complaints against their dentistry license. After the examiners are selected, they are trained by DBPR. Approximately one month prior to the dentistry examination, the examiners are sent the details of the examination, the clinic monitor, and an examiner instruction package. The examiner package outlines the grading criteria, the procedures for the examination, and the necessary paper work. The day before the examination, the examiners go through a standardization process conducted by the psychometrician and three assistant examiner supervisors from DBPR. The process takes approximately eight hours. There are nine clinical procedures in the dentistry examination. Three of the procedures are performed on a patient, five on a mannequin, and one is written. As part of the standardization process, the assistant examiner supervisors outline the criteria for each procedure that is on the examination and explain what is and is not minimally acceptable. The examiners are shown slides, and the supervisors explain what grade should be awarded for each procedure shown on the slides. The examiners are given a post standardization examination to make sure that they have internalized the criteria explained during the standardization process. The examination consists of the examiners actually grading models created by applicants in past examinations. Twenty-five different procedures are graded, and DBPR staff evaluate the grading of the examiners to ensure that they are grading consistently. Scores of zero through five are possible on each examination procedure. Five is considered to be an outstanding dental procedure. Four is better than minimally acceptable. Three is minimally acceptable. Two is below minimally acceptable. One is unacceptable, and zero is a complete failure. Rule 64B5-2.013, Florida Administrative Code. Three examiners independently grade each procedure. The dentistry examination is double-blind graded. The applicant has no contact with the examiners, and the examiners do not consult one another. This procedure was followed for the dentistry examination taken by Gage. The overall percentage score is determined by averaging and weighting the grades of the three examiners for each procedure. Statistically, averaging three grades is more accurate than using one grade alone. Gage complains about the inconsistency of the grading of the procedures on the mannequin. The examiners were identified by number as 080, 320, and 321. These examiners successfully completed the standardization process. Gage complains that Examiner 321 gave disproportionately low grades for the procedures performed on the mannequin. It is, however, more common for an examiner to give an inappropriately high grade than an inappropriately low grade. The higher grade can be a result of an examiner missing something, but the low grade must be justified in documentation and then actually verified on the mannequin. The three examiners for the mannequin procedures, when examined in the examiner's performance report, all had statistically acceptable measures of consistency and reliability. Gage complained that the patient on whom he performed the patient procedures had to make several trips to the restroom during the examination and that he did not have time to properly perform all the procedures. During the examination, Gage did not submit monitor to examiner notes, indicating there were any problems encountered during the examination or anything that he wanted the examiners to take into consideration in the grading. Prior to the perio and amalgam sections of the examination, the applicants are read a script that gives instructions as to what is to be done and how much time is allotted. The script provides that the applicants need to plan their usage of time in order to finish the procedures within the allotted four hours. Near the end of the examination, the applicants are advised of the time remaining until the end of the examination. Time management is important in the practice of dentistry because patients do not like to be kept waiting and because certain dental procedures must be executed within certain time frames. Applicants are advised before the examination how much time is allotted. Applicants are responsible for obtaining a patient for the examination. Gage received grades of four, four, and one on the class four composite filling portion of the examination. Examiner 321 gave the grade of one and documented that there was a margin open on the incisal. Dr. Thomas Shields III, who was qualified as an expert witness for the Respondent, reviewed the procedure and found that there was a definite click or catch on the incisal margin of the tooth, which was consistent with the grade of one. On the endo portion of the examination, Gage received grades of two, three, and zero. Dr. Shields reviewed the X-rays of the procedure, which showed that the final fill on the root canal had voids and was unacceptable and one of the tooth canals was not completely filled. On the prosthetic written portion of the examination, Gage scored 70 percent. In order to pass that portion of the examination, the applicant must achieve at least 75 percent, which equates to a 3.75 on a scale of zero to five. Rule 64B5- 2.013(2)(c), Florida Administrative Code. Gage complained that some of the pictures in the booklet were not very good and it was difficult to see which teeth were touching. He went to Tallahassee and reviewed the written portion of the test and made some comments concerning the test. Gage did not present his comments at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Arthur A. Gage failed to achieve a passing score for the clinical portion of the dentistry examination administered December 1996. DONE AND ENTERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Janine B. Myrick, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102 Tallahassee, Florida 32399-0700 Arthur A. Gage, pro se 12688 Tucano Circle Boca Raton, Florida 33428
