The Issue The central issue in this case is whether the Petitioner's document filed with the Division of Administrative Hearings on January 8, 1992, which was initially construed to be a petition challenging an existing rule, and which was assigned to the undersigned on January 16, 1992, should be dismissed as argued in the motion to dismiss filed by the Respondent on January 28, 1992.
Findings Of Fact Petitioner is a second year medical student currently enrolled at the University of South Florida, College of Medicine, in Tampa, Florida. Petitioner is a licensed optometrist in the State of Florida and graduated valedictorian from the University of Houston, College of Optometry in May, 1990. In Florida, the Board of Optometry (Board) retains licensed optometrists who write the questions for the licensing examination administered by the Board. In some instances, the same examination drafters are retained by the Board to administer the practical portions of the examination. Thus, the drafter of the questions may proctor the examination given to examinees. Further, in some instances, the examination drafters have working in their employ unlicensed optometrists or optometry students who receive training from such employer. When that occurs, the unlicensed employee may receive assistance from the employer not available to others who would seek licensure by examination. This appearance of assistance or potential assistance is created because the drafter of the examination is also the grader and employer of the unlicensed person who must be tested for licensure. It is the Petitioner's position that licensed optometrists who provide both the content of the written test and administer the practical portions of the examination for licensure should not also serve as mentor or employer of those seeking licensure by the same examination. Petitioner has not cited an existing rule that regulates the activities described. Rule 21Q-4.006, Florida Administrative Code, adopts by reference Rule 21-11.014, Florida Administrative Code, as the rule governing examination security and monitoring for the Board. That rule provides, in pertinent part: Any individual found by the Department or any board within the Department to have engaged in conduct which subverts or attempts to subvert the examination process may have his or her scores on the examination withheld and/or declared invalid, be disqualified from the practice of the profession, and/or be subject to the imposition of other appropriate sanctions by the Department or, if administered by a board within the Department, by the applicable board. Conduct which subverts or attempts to subvert the examination process includes: Conduct which violates the security of the examination materials. . . Petitioner has not alleged that anyone violated the foregoing rule. Rather, Petitioner maintains that allowing the activities described above to continue gives the appearance of impropriety or increases the potential for impropriety.
The Issue Whether Petitioner is entitled to a passing score on the pharmacology/ocular disease portion of the optometry licensing examination administered August 3, 2000.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Optometry is created as a part of Respondent by Section 463.003(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Optometry, which will enter a Final Order. Section 463.006(1), Florida Statutes, provides that anyone seeking licensure as an optometrist must pass a licensure examination. Section 463.006(2), Florida Statutes, provides, in part, as follows: The examination shall consist of the appropriate subjects, including applicable state laws and rules and general and ocular pharmacology with emphasis on the topical application and side effects of ocular pharmaceutical agents. . . . The optometry licensing examination consists of four separate examinations, one of which is the pharmacology examination. A candidate cannot be licensed as an optometrist in Florida until he or she passes all four examinations. In 1999, Petitioner passed three of the four examinations, but he failed the pharmacology examination. Petitioner retook the pharmacology examination on August 3, 2000. Pursuant to Section 456.017(2), Florida Statutes, and Rule 64B13-4.002, Florida Administrative Code, Petitioner did not have to retake the three portions of the licensure examination he passed in 1999. A candidate who fails a licensure examination has the right to review the examination material to determine whether he or she wants to file a challenge to the grading of the examination. Pertinent to this proceeding, Section 456.017(2), Florida Statutes, requires the following of Respondent: . . . provide procedures for applicants who fail an examination to review their examination questions, answers, papers, grades, and grading key for the questions the candidate answered incorrectly or, if not feasible, the parts of the examination failed. . . . Respondent is required to maintain the examination material by Section 456.017(3), Florida Statutes, which provides as follows: (3) For each examination developed or administered by the department or a contracted vendor, an accurate record of each applicant's examination questions, answers, papers, grades, and grading key shall be kept for a period of not less than 2 years immediately following the examination, and such record shall thereafter be maintained or destroyed as provided in chapters 119 and 257. This subsection does not apply to national examinations approved and administered pursuant to this section. A candidate is not allowed to retain a copy of the examination material or to make any copy thereof. Rule 64B13- 4.003, Florida Administrative Code, provides as follows: (3) An applicant is entitled to review his examination questions, answers, papers, grades and grading key used in the state examination for licensure; however, no applicant may copy any materials provided for his review. . . . A candidate has the right to a second review of the examination material in order to prepare for an administrative hearing. The candidate's attorney can participate in this second review. Rule 64B-1.009(1), Florida Administrative Code, provides, in pertinent part, as follows: (1) After the candidate's petition, which is a written statement requesting a hearing pursuant to 120.57, Florida Statutes, and setting out the information required under rule 28-106.201 of the Florida Administrative Code, has been filed, the candidate, and/or the candidate's attorney shall be permitted to review the examination questions and answers at the department's headquarters for the purpose of preparing for the administrative hearing, as specified in board rule or by the department when there is no board. . . . The examination at issue in this proceeding was not a national examination. Respondent maintains its master examination item bank for the optometry examination by computer. 1/ Typically, an examination booklet for a particular examination is printed from that computer item bank only when the booklet is needed for a legitimate purpose, such as an examination, a review, or a hearing. Once the booklet has served its purpose, it is destroyed. A psychometrician and three consulting optometrists usually proofread the contents of a newly printed examination booklet before it is used for an examination. The pharmacology examination at issue in this proceeding consisted of different case histories, each of which described a patient’s presenting condition and pertinent medical history. Each case history was followed by five questions with multiple choice answers. Candidates were instructed to select the best answer to each question from the multiple choice answers provided in the examination booklet. Respondent printed Booklet D from its master examination item bank for use as an exhibit in this proceeding. Booklets A, B, and C were not available for use as exhibits. Following his review of the examination material on November 7, 2000, Petitioner filed the Petition that underpins this proceeding. Question 74 required a candidate to select the best treatment for a patient based on the patient's case history. The candidate had 7 possible answers, lettered A - G, from which to choose. Each of the choices was a prescription medicine. In discussing Question 74, the Petition alleged that according to the answer key, the best answer was a certain topical steroid, which was choice F on Booklet D. That assertion is wrong. Choice E, not choice F, was the choice identified by the answer key as being the best answer to Question 74. Petitioner's response to Question 74 on August 3, 2000, was choice B. In discussing Question 44, the Petition alleged that according to the case history, a particular diagnostic procedure had not been performed on the patient. The last sentence of the case history for this question in Booklet D reflected the results of the diagnostic procedure that Petitioner alleged was not performed. Petitioner reviewed the examination material, including Booklet C, to prepare for the final hearing in this proceeding on February 28, 2001. Petitioner testified at the final hearing that the medication identified by Respondent as being the best response (choice E in Booklets C and D) to Question 74 was not an available answer in Booklets A and B. Petitioner testified at the final hearing that the last sentence of the case history for Question 44 in Booklets C and D had been omitted from Booklets A and B. Petitioner continued to assert that his responses to Questions 44, 74, and 75 were the best responses as those questions were presented to him when he took the examination. Lee Skinner, a psychometrician employed by Respondent, supervised the administration of the pharmacology examination at issue in this proceeding. Mr. Skinner and three consulting optometrists proofread the examination booklets used for the August 3, 2000, pharmacology examination. Mr. Skinner testified that Booklet A was identical in all material respects to Booklet D and that the alleged omissions did not exist. Consistent with Respondent’s policies, the hard copy of Booklet A was destroyed following the administration of the examination. Petitioner's answer sheet and the notes he took during the examination were preserved and were admitted as exhibits. Consistent with Respondent's examination review policies, Petitioner was not permitted to retain a copy of or make notes as to Booklet A, B, or C. For reasons that cannot be attributed to him, Petitioner’s testimony as to the alleged omissions in Booklets A and B could not be corroborated because hard copies of the examination booklets at issue were not available. 2/ Because Petitioner could not have a copy of or make notes from the examination booklets, he had to rely on his memory when preparing the underlying Petition and in testifying. Mr. Skinner’s testimony that there were no material differences between Booklet A and Booklet D is credible and persuasive. Petitioner failed to prove the alleged discrepancies between Booklet A and Booklet D. A score of 70% is needed to pass the pharmacology examination. Petitioner's score on the pharmacology examination administered August 3, 2000, was a failing score of 68.5%. Each of the three questions at issue is worth 0.75%. Petitioner would have to receive credit for a correct answer to at least two of the three questions at issue in this proceeding to attain the additional 1.5% he needs to pass the examination. The case history for Question 44 contained all the information necessary for a candidate to select the correct answer. On August 3, 2000, Petitioner did not select the best answer to Question 44. Consequently, he is not entitled to additional credit for his answer to that question. The case history for Questions 74 and 75 contained all the information necessary for a candidate to select the correct answer. Petitioner received no credit for his answer to Question 74 because he did not select the best answer to that question. Question 75 required the candidate to select the correct dosage and manner of administration of the medicine that was the best answer to Question 74. Petitioner's incorrect answer to Question 74 caused him to miss Question 75. Petitioner received no credit for his answer to Question 75 because he did not select the correct answer to that question. In addition to proofreading an examination booklet, a psychometrician typically reviews all answers to a licensure examination to make sure that no question was invalid. A question is considered invalid if 30% or fewer candidates select the answer identified by Respondent as being the best answer. Mr. Skinner reviewed all answers to Questions 44, 74, and 75 to determine whether an abnormal number of candidates missed each question. Based on the number of candidates that correctly responded to the three questions at issue compared to the incorrect answers, Mr. Skinner opined that each of the three questions was a valid examination question. 3/ Petitioner failed to establish a basis to disqualify Questions 44, 74, or 75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner's challenge to the grading of his responses to Questions 44, 74, and 75 of the pharmacology examination administered August 3, 2000. DONE AND ENTERED this 14th day of June, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of June, 2001.
The Issue The issue in this case is whether Petitioner is entitled to receive a passing grade on her optometry examination.
Findings Of Fact Petitioner took the optometry licensure examination on September 22-24, 1991. Following review of her initial scores, Respondent informed her by notice dated February 22, 1991, that she earned 100 points on Florida law and rules, which was a passing grade; 52.5 points on pharmacology and ocular diseases, which was below the minimum passing grade of 70; and 77 points on clinical, which was below the minimum passing grade of 80. Petitioner challenged her grades on the pharmacology and ocular diseases and clinical portions of the examination. However, at the beginning of the hearing, shedropped her challenge to the pharmacology and ocular diseases portion of the examination. The clinical portion of the examination is divided into two sections. In the first section, the applicant sees a "patient." Two examiners watch and listen as the applicant examines the "patient," who is unknown to the applicant and has been prepared with certain information. The applicant is graded under various areas within the broad categories of case history, visual acuity, pupillary exam, confrontation visual fields, and extra-ocular muscle balance assessment. In the second section, the applicant brings with him to the test site his own "patient." Two examiners, who are different from the examiners for section one, evaluate the applicant's ability to use various types of clinical equipment on his "patient." In the first section, Petitioner challenged the grades that she received for Questions 6, 8-10, and 11, which are all worth two points except for Question 10. Question 10 is worth four points. In the second section, Petitioner challenged the grades that she received for Questions 1-4, which are all worth five points, except for Question 4. Question 4 is worth four points. Any combination of additional points adding up to two or more would give Petitioner a passing grade on the pharmacology and ocular disease portion of the examination. As noted below, Petitioner received partial credit for certainanswers. Each of the four examiners completed a scoresheet while grading Petitioner. When no or partial credit was awarded, the examiner would write comments explaining what the problem was. Testifying for Respondent at the hearing, a licensed optometrist, who was one of the examiners of Petitioner for section two, explained adequately each of the scores awarded Petitioner for each of the challenged questions. He established that the equipment was carefully calibrated prior to each test session and for each individual applicant. A psychometrician employed by Respondent also testified that she had analyzed the variance of the scores among the examiners, in terms of overall scores for all applicants, and found no variances tending to discredit the grades. The challenged questions and clinical procedures provided a reliable measure of an applicant's relevant ability, knowledge, and skill. Petitioner's grades were a fair evaluation of her performance on the challenged questions.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Optometry enter a final order dismissing Petitioner's challenge to her scores in pharmacology and ocular diseases and clinical portions of the September, 1990, optometry licensure examination. RECOMMENDED this 19th day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, FL 32399-0792 Chidiebere Ekenna-Kalu P.O. Box 621507 Orlando, FL 32862-1507 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0792
Findings Of Fact At all times material hereto, Respondent was a licensed optometrist in the State of Florida, having been issued license number OP-0000437. On or about January 4, 1986, Clara Piskura was examined and fitted by Respondent for soft contact lenses. She had worn hard contact lenses for approximately 15 years. Respondent issued soft contact lenses to Piskura on January 4, 1986, but she immediately informed him she could not see well with the soft contact lenses. She subsequently reported headaches and a continuing inability to see. On or about January 8 and 18, 1986 Piskura had follow-up visits with Respondent, but when she went to Respondent's office on January 27, 1986, he refused to examine her. Her headaches and inability to see were not corrected in these follow-up visits. Piskura returned the soft contact lenses to Respondent, and received a 50 percent refund of the $110.00 she paid for the soft contact lenses, pursuant to an Agreement she signed on January 4, 1986. According to John Walesby, O.D., who was accepted as an expert in optometry, Respondent failed to keep acceptable minimum optometric records relating to his patient, Clara Piskura. He did not record a patient history or chief complaint, an internal or external examination of the patient, or a visual field testing in an acceptable manner. There is no recording of pupillary examination, or biomicrososcopy (monocular or binocular). Based upon his failure to keep adequate patient records which would meet minimum optometric standards, Respondent's examination and treatment of Piskura was negligent or incompetent in that it was incomplete, and did not allow anyone reviewing the records to interput or understand those records or the patient's condition. However, the evidence does not establish that Respondent's actions constituted misconduct in his profession or gross malpractice. Respondent testified that he conducted a complete and thorough exam of Piskura, but his records do not document or confirm his testimony, or otherwise explain his use of check-marks in his patient records. Respondent has been licensed, and has practiced in the State of Florida, for over 30 years and has never been the subject of license disciplinary action prior to this proceeding.
Recommendation Based upon the foregoing, it is recommended that the Board of Optometry enter a Final Order finding Respondent in violation of Sections 463.016(1)(g) and (k), Florida Statutes, and placing his license on probation for a period of 3 months, conditioned upon his successful completion of 6 hours of continuing optometric education in addition to the hours regularly required to maintain his license and the payment of a $500 administrative fine. DONE AND ENTERED this 7th day of January, 1988, in Tallahassee, Florida. DONALD D. CONN 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 7th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4902 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as unnecessary and irrelevant. 3-4. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. 7-14. Adopted in Finding of Fact 5. 15-16. Rejected as unnecessary and cumulative. Respondent did not file Proposed Findings of Fact upon which explicit findings could be made. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, Florida 33602 Jack L. Hargraves 1211 South Dale Mabry Tampa, Florida 33629 Mildred Gardner Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue in this case is whether Petitioner should receive a passing score on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact In August 2000, Petitioner took the optometry licensure examination and failed to pass the clinical portion of the exam. The clinical portion is where the candidate is required to perform certain patient procedures. The student, or candidate, is evaluated in the process of performing those procedures by two examiners. Each examiner grades the candidate independently of whatever score the other examiner may award on a particular procedure. With regard to the contested questions in this matter, Petitioner objected to the awarding of credit by one examiner and failure of the other examiner to grant credit. In the conduct of the clinical portion of the examination, each procedure is performed twice, once for each examiner. The examiners are not permitted to confer as they apply uniform grading standards to a candidate's performance in demonstrating a particular procedure. Additionally, the examiners have been previously subjected to standardization training where they are trained to apply grading standards in a consistent manner. Both examiners in Petitioner's examination were experienced examiners. Where one examiner gives a candidate one score and the other examiner gives a different score, the two scores are averaged to obtain the candidate's score on that question. With regard to Question 1C on the examination, the candidate is required to tell the patient to look at his or her nose. At the same time, the candidate must hold up a finger in a stationary, non-moving manner. By his own admission, Petitioner failed to comply with this requirement in that his hands were moving. With regard to Question 7A, the candidate was required to tell the patient to look at a distant target. Petitioner told the patient to look straight ahead and argued at final hearing that his instruction was adequate for him to assume that the patient was looking at a distant target. Notably, this question on the examination seeks to elicit a candidate's skill at administering a neurological test of the patient's eye and brain coordination and requires that the candidate specifically tell the patient to look at a distant target. With regard to Question 13C, the candidate must perform a procedure designed to detect retinal lesions. The candidate and the examiner simultaneously look through a teaching tube where the candidate is asked to examiner the patient's eye in a clockwise fashion. When told to look at the nine o'clock position of the retina, Petitioner failed to look at the correct position. By his own admission Petitioner stated that since he had to perform the procedure twice, it is possible that he did not perform the procedure correctly for one examiner. Question 34A relates to Tonometry; the measure of intraoccular pressure (IOP) in the eye. Petitioner was not given credit by one examiner because Petitioner rounded the pressure results he observed. He argued that his answer of 12 was acceptable since he had rounded to the result within 0.5mm of what the machine detected in regard to the patient's eye. One of the purposes of this procedure is to determine whether the candidate can accurately read the dial to the machine. Consequently, Petitioner's failure to perform properly with regard to this procedure was appropriately graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the August 2000 optometry licensure examination. DONE AND ENTERED this 23rd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS 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 23rd day of February, 2001. COPIES FURNISHED: Jayeshkumar Vallabhbhai Patel, O.D. 1601 Norman Drive, Apartment GG-1 Valdosta, Georgia 31601 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, 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. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue for consideration was whether Petitioner was properly denied licensure as an optometrist based on the examination taken by him on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues herein, the Board of Optometry has been the state agency responsible for the licensing of optometrists in Florida. On September 16 - 18, 1988, Petitioner, Kenneth W. Gerke, O.D., took the optometry examination administered at the Department's Miami Examining Center. He failed both the practical examination and a clinical examination, and passed the pharmacology/ocular examination with a grade of 72 and the Florida law/rules examination with a grade of 96. No evidence was introduced to establish what the pass/fail point was for each section of the examination. Thereafter, Respondent requested a review of his scores and on February 28, 1989 he was again notified he had failed the examination though his pharmacy/ocular score was raised to 73.7 and his clinical score was raised to Petitioner then filed a request for a hearing to contest specifically the grade he received on questions 4 & 10 of the clinical examination, Part I, and questions 2, 10, 14, 15, and 16 of the clinical examination, Part II. In his initial request for review, submitted on December 3, 1988, Petitioner did not cite specific questions, asking only that the test results of the practical examination taken on September 18, 1988 be reviewed with special emphasis on that portion of the practical which dealt with tonometry. Petitioner thereafter challenged Examiner 11's grading of question 4, Clinical I, and Examiner 13's grading of question 10, on Clinical I. With regard to the former, Petitioner claims the examiner did not fill in the bubble, thereby depriving him of 1 point. This discrepancy was corrected on review, however, and Petitioner was awarded credit. With regard to the latter, Petitioner was given full credit for the entire question on review. The combined increase did not give him a passing score. With regard to question 2, Clinical II, Petitioner questions Examiner 60's evaluation of his answer, contending the disc was clearly visible and should have been seen by the examiner since the other examiner, 54, who was working in pair with Examiner 60, did see it. Review of the evaluation sheet pertinent to this question reveals that Examiner 60 gave Petitioner no credit, indicating he did not see the disc. Examiner 54, his partner, gave Petitioner credit but, in the comments section of the form, indicated, "not a very good view." On review, examination officials decided to make no change in Petitioner's grade because even Examiner 54, who had given Petitioner credit for having performed the disc, indicated it was not a good view, and on that basis, they could find no basis to change examiner 60's evaluation. Petitioner presented no evidence to show that decision was in error. Petitioner challenged Examiner 54's evaluation of his answer to question 10, Clinical II, indicating, "I did focus on optic disc and estimate C/D ratio (the other examiner saw it and awarded full points). It was very clear to me and I cannot understand why the examiner did not see it." In this case, Examiner 60 gave Petitioner full credit for his answer, but Examiner 54 gave no credit. When examiners disagree, generally examination officials look at the Examiner comments individually. If it is impossible to sustain the negative comments, the negative evaluation is rejected and the applicant is given full credit. Even if the dispute cannot be resolved, partial credit is usually given, and in this case, initially, Petitioner was given half credit. However, upon review it was determined that his challenge to the grade given by examiner 54 on this question had merit, and he thereafter received full credit for the question. This did not give him a passing score, however. With regard to question 14, Clinical II, Petitioner challenged both Examiner 60 and Examiner 54, since both gave him no credit for his performance of the procedure, a Goldman tonometry. Examiner 54 commented that Petitioner "ran out of time" and Examiner 60 commented that he could see no "mires". Petitioner's challenge reads, "My patient was tearing profusely. I applied fluorescein strip and attempted the pressure measurement. There were no mires due to excessive tearing of patient washing out fluorescein. I dried the patient's tears, reapplied another fluoresceins strip, and was retaking the pressure when time ran out. I believe the timer was not set correctly to allow me a full two minutes." This procedure requires the candidate to anesthetize the patient's eye, apply a fluorescein dye, and thereafter measure pressure by evaluation of "mires" observed through the instrument. Resolution of this question involves a study of the background of the examination. So much of the examination as is contained in Part I is conducted with the candidate performing certain procedures on a patient provided by the examination officials. Part II of the examination involves observation of procedures accomplished on a patient provided by the candidate. The patient is first evaluated by examination officials to determine that he or she is qualified to serve and one eye is dilated by examination officials at that time. Thereafter, the patient is released to the applicant who performs the procedures required under the observation of the two examiners assigned to him. In the case of question 14, the procedure requires the candidate to demonstrate accurate measurement of intra-ocular pressure. He is required to anesthetize the eye, apply a fluorescein dye by means of a strip dipped into the substance, and thereafter measure pressure by the use of an instrument which is gently placed against the patient's eyeball and through which "mires" are observed. Petitioner's patient was unknown to him at the time he performed the procedure. Because he did not know anyone to take as his patient, prior to the examination he contacted an optometrist in Miami whose secretary's boyfriend was recommended as a patient. Petitioner accepted him and used him and the patient was qualified as a bona fide patient. Petitioner contends, however, that for various reasons, the patient's eyes teared excessively washing out the fluorescein dye which would have provided the "mires" for observation. Before he could get additional dye into the eye and remove the excess, time ran out. He also claims that he was not given the full two minutes to accomplish the procedure. Both examiners denied Petitioner credit for his performance of this procedure. On review it was felt that Petitioner did not overcome the negative comments of the examiners. Further, Petitioner failed to follow the procedure which he should have invoked at the time, a description of which was included in the examination description and study guide provided to him prior to the examination and which was verbally briefed to him the day of the examination. He should have notified his examiners at the time he noticed the excessive tearing. Under the protocol for this examination, those examiners would not have made a determination at the site but would have brought the problem to the supervisor for review. Petitioner also could have filed a card when he left his station to formally register the complaint - not while the patient is still present, but to be reviewed afterward. There is no indication here that either examiner brought Petitioner's problem to the supervisor because Petitioner did not bring it to their attention. In addition, Petitioner did not fill out a comment form about the problem as he could have done when leaving the area. If he had notified the examiners of the problem, they would have stopped the evaluation at that moment. The complaint procedure is designed to insure the applicant gets a fair and full chance to demonstrate his ability. Petitioner failed to utilize it. Consequently, even on review he was awarded no credit for this question. Petitioner also challenges Examiner 60's evaluation of his response to question 15, Clinical II, and contends: I did provide a good view of the angle structures. My patient had wide open angles clearly visible. The evaluation sheet reflects that both Examiners 54 and 60 gave Petitioner no credit for this question. Examiner 54 commented that Petitioner failed to describe "scleral spur" and Examiner 60 commented, "Poor to no view." On review, it was determined that neither examiner initially gave credit and that there was no evidence presented by Petitioner which would cause a change to that lack of award. Based on the evidence presented at the hearing, it is found that Petitioner has failed to demonstrate a basis for change to the score of "0" given him on question 15. Petitioner also challenges Examiner 60's response to question 16, Clinical II, claiming: I did estimate the pigment deposition. The examiner may have had a poor view (as in other parts) but mine was clear. (The other examiner had a clear view and awarded full points.) Review of the evaluation sheets reflects that Examiner 54 gave Petitioner full credit for this procedure and he was originally awarded 2 points. The examination sheet filled out by Examiner 60 reflects, "No credit. Poor to no view." On review, the award of 2 of 4 points was not overturned. At the hearing, Petitioner engaged in a substantial dialogue with the Board's consultant, Dr. Attaway, as to whether the examiners' view of the applicant's performance could have been affected by either the placement of the "teacher's" mirror, through which the examiners observed the procedure, or the examiners' position with regard to the mirror. Dr. Ottawa conceded that both contingencies could affect the evaluation and in light of the fact that Examiner 54 gave full credit with no adverse comment, and his opinion has been held to be highly esteemed in other incidents involving this Petitioner, it must be concluded that Petitioner's accomplishment of the required procedure was done properly and he should be awarded the additional 2 points. In each case during the examination, the candidate is observed by two examiners. It is not uncommon for examiners to disagree. Between 85 and 88 percent of the time, they agree on their evaluation of a particular candidate's procedure. In the instant case, however, the area of disagreement was somewhat higher. When this happens, generally it means the candidate is borderline; neither clearly very good nor clearly very poor. With regard to the pressure test, (Goldman tonometry), measured in procedure 14, the Board's consultant, agrees that not all patients can be evaluated for pressure utilizing this method, also known as aplination tonometry. In the instant case, the evidence showed that the patient had had his eye dilated upon reporting for qualification more than an hour prior to the accomplishment of the procedure. In the course of the qualification and the procedure evaluations, he had been examined by numerous people. This is not an unusual set of circumstances in an examination situation. It would, however, prolong the procedure and certain individuals tear more than others. As a result, it is possible that in these circumstances, the patient would excessively tear and the fluorescein dye used to present the mires could wash out, giving an improper reading. Here, one examiner indicated he was unable to identify or observe any mires. If the probe used to measure pressure were touching the eye and no mires were presented, that would mean there was no dye left on the eye. However, if the probe was not touching the eye, there would be no mires presented even if there was dye in the eye. Petitioner's witness, Dr. Perry, an expert in ophthalmology, has often had dye wash out of an eye because of excess tearing and has often had difficulty in getting a pressure reading. It can quite often take longer than the 2 minutes allowed during the examination for the procedure and is sometime impossible to get under any circumstances. Aplination tonometry is not a difficult procedure to learn and its use is not reserved to ophthalmologists or optometrists. Routinely, technicians are easily taught to perform it and do so on a repeated basis. Petitioner has worked for an ophthalmologist in the Sarasota area for 5 years as a technician and has done many of the procedures on which he was tested during the examination in issue. Petitioner has done thousands of aplination tonometry procedures and in fact, has performed the procedure on Perry. In those cases of which Dr. Perry is aware, including his own, the procedure was done properly. Dr. Parry agrees that the time limit of 2 minutes allotted at the examination is not unrealistic in the normal situation. However, the procedure often takes more than 2 minutes to perform, and when it does, that fact is usually indicative of a problem with the patient, not the tester. Based on his personal experience with Petitioner's demonstrated ability to properly perform the aplination dynamotor procedure, he is "flabbergasted" that Petitioner had problems with it during the examination. There is more than one way to apply fluorescein dye to an eye for the purpose of pollination dynamotor. One is to apply the fluorescein by strip and the other is to apply a mixture of dye and anesthetic by dropper. The latter method requires a 30 to 60 second wait after application to allow the excess solution to wash out. However, that procedure was not used in this examination, and the strip, which allows immediate application of the probe and observation of mires, was. In the instant case, the patient's eye had been dilated for over an hour when the examiner placed the anesthetic in the eye to be examined and told Petitioner to begin. Petitioner started immediately but was unable to get a mire even though he saw the glow in the patient's eye which indicates the probe was touching the eye as appropriate. When he checked the equipment and found it to be operating properly, he realized that the dye had washed out of the eye because of the tearing and he was attempting to begin the process again when the examiner indicated he had run out of time. Though Petitioner claims the amount of time he was given was improperly measured, he is unable to establish that by any independent evidence. When he asked the examiners for a second opportunity, allegedly he was advised, "Don't worry about it. It's only one question." After the examination, he thought about filing an objection card but, since he claims to have been advised by another optometrist, "not to make waves", he decided against it. Petitioner claims that the examination was fatally flawed for several reasons. The first is that Examiner 60, he claims, was routinely different and more strict with him than was Examiner 54. Rebuttal evidence presented by Ms. Loewe, the examination specialist, indicates, however, that for this examination, Examiner 60 generally graded higher than others across the board. Petitioner also claims that the routine order of tests was not as recommended by experts. Generally, certain procedures are to be accomplished in a certain sequence in a routine examination. Petitioner overlooks, however, that regardless of the sequence of procedures, the examination was not a routine "patient" examination but an examination of the applicant's ability to perform the procedures in question. The considerations dictating a certain sequence in a clinical examination may not be pertinent to the sequence appropriate for a candidate examination, and this argument is without merit. Petitioner also questions the anonymity of the candidate which prevents a knowledge of the candidate's other background and unexamined qualifications. Anonymity is designed to allow a candidate to demonstrate for examiners the substance of his knowledge and skill, is routine, and is found to be appropriate. Further, he claims the location of the examination, the time limit, and the other factors surrounding the conduct of the examination promote nervousness in the candidate and hinder the candidate in his performance of the required procedures to the best of his ability. There was no independent evidence to support this contention or to demonstrate that had the examination been conducted under other circumstances, Petitioner or any other examinee would have performed differently. There are legitimate reasons for the actions taken by the Board, considering the way the examination was conducted. Admittedly the order of tests to be given is not included in the study guide, and the applicant would not know in advance in what order the procedures would be accomplished, but he would have advance information as to which procedures would be examined. Petitioner also pointed out that the patient upon whom he performed the procedures was a stranger to him and that because of his unfamiliarity with the patient and his background, he sustained a handicap more severe than the other candidates. This contention is without merit. All new patients are strangers to the optometrist when they first come for examination. In any case, the candidate is not being asked to treat a patient, but to demonstrate his ability to properly accomplish certain procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's scores on the September 16 - 18, 1988 optometry examination, as revised prior to hearing, be sustained except for that awarded in Question 16, Clinical II, and that he be awarded an additional two (2) points for his performance of that procedure. RECOMMENDED this 19th day of July, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989. COPIES FURNISHED: Kenneth W. Gerke, pro se 1831 Mid Ocean Circle Sarasota, Florida 34239 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Lawrence A. Gonzalez Secretary DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Kenneth A. Easley, Esquire General Counsel DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Pat Guilford Executive Director Board of Optometry 1940 N. Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner sat for the August 24, 1991 Optometry licensure examination. He did exceedingly well on two of the three portions of the examination. His grade on the clinical portion (sections 1 and 2) was 71.5. The minimum passing score was 75.0. Petitioner challenged the behavior of the examiners in section 2 of the clinical portion of the examination, and the grade he received for several individual procedures tested. Petitioner's patient for the clinical examination was his wife, Susan Vazoulas. Mrs. Vazoulas testified that prior to Petitioner entering the examination room for section 2 of the clinical portion of the examination, she overheard the two examiners, one male and one female, discussing material already on their clipboards. The male examiner indicated he had given an "81". The female examiner indicated she had given an "84", but was a "hard liner." Petitioner was not present during this exchange. Mrs. Vazoulas did not see what was on the examiners' clipboards and could not testify with any certainty as to what was being discussed. Every reasonable inference suggests that the examiners' conversation did not apply to Petitioner's section 2 clinical test for the following reasons: The examiners' comments were made before the Petitioner entered the examination room and before he began to take his section 2 clinical examination. The numbers "81" and "84" bear no relationship to any of Petitioner's scores on any portion of his licensure examination. The examiners for section 2 were not the examiners for section 1, whereon Petitioner scored 100%. If anything, had the examiners reached two divergent scores of 81 and 84, respectively, it would more likely suggest the presence of independent judging and the lack of collusion, instead of the presence of collusion and absence of independence as assumed by Petitioner in this instance. The examination room in which section 2 of Petitioner's clinical examination was administered was very small, approximately 8 x 10 feet. During section 2, the two examiners separately viewed each of 16 procedures performed on Mrs. Vazoulas by Petitioner and after each procedure, they individually returned to their respective clipboards to record their scores. The two clipboards were placed on a countertop side by side while not in use. Petitioner and Mrs. Vazoulas each observed the examiners separately marking their respective clipboards but never saw what was written down by either of the examiners. Petitioner and Mrs. Vazoulas felt it would have been hard for each examiner to avoid seeing the score assigned by the other examiner, but neither Petitioner nor Mrs. Vazoulas observed any actual sharing of information or scores during Petitioner's section 2 clinical examination or afterwards. Petitioner and Mrs. Vazoulas testified in terms of the examiners having "the chance" to see each other's clipboard and "the opportunity" for collusion and absence of independence in grading. In this instance, Petitioner considered that identical grades given by both examiners was proof of their collusion and arbitrary and capricious grading. However, similarity of scores is equally susceptible of being interpreted as resulting from each examiner having observed the same performance by Petitioner on each of the 16 procedures and applied the same judging criteria to what s/he saw. The law does not presume illicit behavior without more evidence than that it "could have" happened. Petitioner challenged his section 2 grade for clinical procedures 4-9 for biomicroscopy, alleging that he was graded 17.5 out of a possible 20 points while all parts were checked "yes". In fact, the score sheets show that all parts were not checked "yes" by both examiners. One examiner graded procedure four with "N" for "no". This could result in an "all or nothing" score of zero for that item. Assuming, arguendo, the "yes" and "no" were averaged, Petitioner's score still would not have amounted to the additional 2.5 points Petitioner alleged he was entitled to out of this section of the examination. Respondent's Exhibit 2 is a document titled "Optometry Practical Examination Section 2 - Grading Standards August 1991." The instructions to the examiners state in the second paragraph of that document, "Comment on reason for any NO judgment. Comment if performance was a marginal YES." Thus, examiners could legitimately insert comments even where they responded "yes" in evaluating the performance of the candidate in a given procedure. They did so here. Petitioner challenged his grade on procedure number 15, gonioscopy, stating that partial credit should have been given for the showing of the proper angle. Petitioner's Exhibits 1 and 2, the grade sheets for section 2, reflect that Petitioner received no credit from either examiner. Both "no" responses have comments recorded next to them. Respondent's Exhibit 2, page 4, states the criteria for a "yes" response on procedure number 15, gonioscopy, as: Must be focused on nasal angle with proper illumination Gives proper response to question Both criteria must be satisfied to receive a "yes" response. Petitioner and Respondent concur that Petitioner correctly demonstrated the angle required in procedure 15, gonioscopy, which satisfied one of the two required criteria to receive a "yes" from either examiner. Petitioner attempted, by extrapolation of procedure 5, to show that the remaining criterion was also met. He was not persuasive in this attempt. The grade sheets reflect that Petitioner failed to satisfy the second criterion: to give the correct response to the question posed. Petitioner made no valid showing that he did answer the question correctly or that the points available from this answer would raise his total score 3.5 points for a passing grade. Petitioner challenged his grade for procedure number 1, binocular indirect ophthalmoscopy (BIO). Petitioner admitted that he did this procedure incorrectly by using the 3:00 o'clock position, rather than the 9:00 o'clock position requested by the examiners but felt six points should not have been deducted and it should have been marked "yes, marginal," awarding him a majority of the six lost points. Petitioner did not demonstrate good cause within the grading criteria in evidence why he should have received the "majority," presumably four, points. Petitioner presented no evidence concerning the grading of challenged procedures 11 and 14. As to all of the foregoing, Petitioner's challenge to the effect that he did not understand the grading system was not sufficient to carry his burden of proof to establish that the examination, scoring, and/or grading system was arbitrary or capricious.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Professional Regulation enter a final order ratifying the examination grade previously assigned to Petitioner. DONE and RECOMMENDED this 15th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2205 The following constitute specific rulings, pursuant to S120.59 (2) F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: None filed Respondent's PFOF: 1-6 Accepted except for unnecessary, subordinate on cumulative material. 7-13 Accepted except for subordinate material. It is noted that Petitioner bears the burden of proof herein, not Respondent. COPIES FURNISHED: Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 George L. Vazoulas 182C Chestnut Ridge Drive Harrisonburg, VA. 22801 Diane Orcutt, Executive Director Department of Professional Regulation, Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 61.3%, with 221 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. The Petitioner testified that several questions were misspelled in the examination booklet which he received at the exam site. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results. It is also asserted by the Petitioner that he was given insufficient time to review his examination in order to identify problems in the grading of the examination, and that the review room was cramped and noisy. The review session was conducted on October 24, 1989, and the Petitioner attended. The review session began at 8:30 a.m. and concluded at 1:00 p.m. on that date, and was conducted in the Respondent's office in Tallahassee, Florida. The Petitioner actually began his review at 8:35 a.m., and completed the review and left the review room at 12:52 p.m. Thus, the Petitioner has failed to establish, by competent substantial evidence, that he lacked sufficient time to complete his review, and has also failed to prove by competent substantial evidence that conditions in the review room deprived him of an opportunity to conduct a meaningful review of his exam. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2799 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. Adopted in Finding 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue is whether Petitioner is entitled to a passing score on the clinical examination of the July 2002 optometry licensure examination.
Findings Of Fact Petitioner earned a bachelor of science degree in mathematics from Baylor University in 1978 and a doctor of optometry degree from the University of Houston in 1982. He subsequently became licensed to practice optometry in West Virginia and Texas. After practicing for years in West Virginia, Petitioner practiced for 13 years in Texas before moving to Florida in June 1999. In July 2002, Petitioner took the clinical examination portion of the optometry licensure examination. To obtain a license, a candidate must pass this portion of the examination, as well as the portions pertaining to pharmacology and ocular disease and Florida laws and rules. Petitioner has already passed these other portions, so the clinical examination is what he must pass to earn a Florida license. The clinical examination is a practical examination in which a candidate must demonstrate specific procedures. Respondent selects the procedures to be demonstrated on the basis of their importance to the practice of optometry. Respondent scores the clinical examination by averaging the scores of two examiners, who score the candidate's work independent of each other. The clinical examination is divided into two sections, and a different pair of examiners score each section. An examiner must be a Florida-licensed optometrist for at least three years prior to the examination. The examiner may not be under investigation or have been found to have violated Chapter 456 or 463, Florida Statutes. Prior to performing their duties, examiners must attend a standardization program, at which they are trained in identifying the skills to be examined and the standards to be applied. All of the examiners for a specific examination date attend the same standardization program, at which Respondent's coordinators present several hundred slides showing correct and incorrect procedures and answer any questions that examiners may have. In general, Petitioner challenges the work of one of Respondent's staff in rescoring his examination and calculating his score as 74.10. Although still not a passing grade, 74.10 is one point closer to passing than was his originally reported score of 73.10. However, this staffperson rechecked her work and later confirmed that 73.10 was the correct score. At the hearing, Petitioner specifically challenged Questions 33(b), 33(c), 35(b), 37(a), and 38(b). These questions are all from the same section of the examination, so the same two examiners scored each of them. In Questions 33(b) and (c), the candidate must perform tonometry on a nondilated eye and demonstrate the proper mires width and correct mire alignment, respectively. For Question 33(b), Examiner 143 gave Petitioner no credit, noting that the mires width was "too thin," and Examiner 242 gave Petitioner no credit, noting that the mires width was "too thin" and there was "not enough flourescein." For Question 33(c), Examiner 143 gave Petitioner no credit, noting that the mires were "no [sic] aligned," and Examiner 242 gave Petitioner no credit, noting that the "mires [were] off." Petitioner has failed to prove error in either score. For Question 33(b), both examiners found the same condition. The candidate, not the examiner, as Petitioner claimed, is responsible for adding flourescein. Insufficient flourescein would leave the mires too thin. Examiner 242's additional note explains the source of Petitioner's error in Question 33(b). Petitioner's argument that he could still obtain a proper ultimate reading despite insufficient flourescein and thin mires lines misses the point of the question, which is to determine if candidates can take the conventional steps toward the ultimate objective of estimating intraocular pressure. For Question 33(c), both examiners drew similar pictures showing that Petitioner's mires lines were misaligned. Petitioner produced no evidence to the contrary. His argument that he could not have answered Question 34 correctly without solving Question 33(c) misses the point of Question 34, which is merely to determine if a candidate can accurately read a dial. For Question 35(b), the candidate must demonstrate proper illumination of an inferior angle of the eye. Examiner 242 gave Petitioner credit, but Examiner 143 gave Petitioner no credit, noting "poor lighting." It is entirely possible that Examiner 242, who was first to examine the demonstrated angle, found adequate lighting, but, due perhaps to patient movement with no readjustment, Examiner 143 found inadequate lighting. In this procedure, only one examiner can check the angle at a time. For Question 37(a), the candidate must determine the presence of iris processes by showing the correct response and clear focus. Examiner 242 gave Petitioner credit, noting that Petitioner "repositioned [patient] and got focus of angle and answered correctly," but Examiner 143 gave Petitioner no credit, noting "no view or focus." As noted by Examiner 242, Petitioner had to reposition the patient and did so to earn credit for this item. Evidently, Petitioner failed to do so for Examiner 143. For Question 38(b), the candidate must demonstrate the specified angle of the eye with proper illumination. Examiner 242 gave Petitioner credit, but Examiner 143 gave Petitioner no credit, noting "no view of angle." Again, the most likely reason for the loss of a view was patient movement without an accompanying readjustment of the focus. Petitioner has failed to prove that he is entitled to any additional points for the clinical examination portion of the optometry licensing examination that he took in July 2002.
Recommendation It is RECOMMENDED that the Board of Optometry enter a final order dismissing Petitioner's challenge to the clinical examination portion of the July 2002 optometry licensure examination. DONE AND ENTERED this 23rd day of April, 2003, 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 23rd day of April, 2003. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 A. S. Weekley, Jr. Holland & Knight LLP Post Office Box 1288 Tampa, Florida 33602 Cassandra Pasley Senior Attorney Office of the General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 66.9%, with 241 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2803 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
