00-002330 Rami Ghurani vs. Department Of Health, Board Of Denistry Status: Closed Recommended Order on Friday, December 15, 2000.

Summary: Petitioner challenged periodontal section of dental licensure examination: failed to establish that grading was arbitrary, capricious, or with an abuse of discretion, or that process was devoid of logic and reason. Not entitled to additional credits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAMI GHURANI, )

)

Petitioner, )

)

vs. ) Case No. 00-2330

)

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 3, 2000, by video teleconference with connecting sites

at Miami and Tallahassee, Florida, before Errol H. Powell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Rami Ghurani, pro se

2400 Southwest Third Avenue, No. 702

Miami, Florida 33129

For Respondent: Cherry A. Shaw, Esquire

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner

successfully completed the December 1999 dental licensure

examination.

PRELIMINARY STATEMENT

In December 1999, Rami Ghurani (Petitioner) took the dental

licensure examination (Examination). Petitioner was notified by

the Department of Health, Board of Dentistry (Respondent) that he

had failed the Examination. Successful completion of the

Examination required a minimum score of 3.00 on the Clinical part

and a minimum score of 75.00 on the Laws and Rules part.

Petitioner obtained a score of 2.72 on the Clinical and a score

of 78.00 on the Laws and Rules, thereby failing the Examination.

Petitioner requested a hearing through an Amended Petition

for Formal Administrative Hearing (Amended Petition). In his

Amended Petition, Petitioner listed six areas of dispute as

follows:

(a) Whether the score of 1.66 in the

Periodontal Section of the Examination is

accurate;

(b) Whether the Petitioner sutured the

patient during the Periodontal Section of the

Examination;

(c) Whether the score of 3.00 in the

Endodontic Section of the Examination is

accurate;

(f) [sic] Whether the score of 1.66 in the

Preparation for a 3-unit Fixed Partial

Denture Section of the Examination is

accurate;

(g) [sic] Whether an undercut existed on the

prepped teeth in the 3-unit Fixed Partial

Denture Section of the Examination; and

(h) [sic] Whether the Petitioner was

required to cut a full coverage porcelain

crown instead of porcelain fused to metal

crown in the 3-unit Fixed Dental Section of

the Examination.

On June 1, 2000, this matter was referred to the Division of

Administrative Hearings.

At hearing, the parties informed the undersigned that only

issues (a) and (b) remained; all other issues had been resolved.

Moreover, the parties informed the undersigned that, as a result

of re-scoring, Petitioner's score on the Clinical part had been

increased from 2.72 to 2.89.

Petitioner testified on his own behalf and entered one

exhibit (Petitioner's Exhibit numbered 1) into evidence.

Respondent presented the testimony of four witnesses and entered

13 exhibits (Respondent's Exhibits numbered 1-8 and 10-13) into

evidence. The undersigned took official recognition of

Respondent's Exhibit numbered 9, which is comprised of a copy of

Chapters 466 and 455, Florida Statutes (1999), Section 90.616,

Florida Statutes (1999), and Chapters 64B1 and 64B5, Florida

Administrative Code.

Furthermore, at hearing, Petitioner was afforded an

opportunity to take the deposition of a witness subsequent to the

hearing and late-file the deposition as an exhibit. However, the

record is devoid of a late-filed deposition by Petitioner.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for ten days following the filing of the transcript.

The Transcript, consisting of one volume, was filed on

November 15, 2000. The parties timely filed their post-hearing

submissions, which were considered in the preparation of this

Recommended Order. 1

FINDINGS OF FACT

1. Petitioner has been given a temporary permit to practice

dentistry due to his being a resident in training.

2. In December 1999, Petitioner took the dental licensure

Examination. He successfully completed the Laws and Rules part

of the Examination having received a score of 78.00, where a

minimum score of 75.00 was required to pass that part.

Petitioner failed to successfully complete the Clinical part of

the Examination having received a score of 2.89, where a minimum

score of 3.00 was required to pass the Clinical part. As a

result, Petitioner failed to successfully complete the overall

Examination.

3. On the Periodontal section of the Clinical part,

Petitioner received a score of 1.66. He challenges this score.

4. Each candidate is graded by three examiners. Each

examiner is a dentist who is licensed in the State of Florida,

with a minimum of five active years' experience, and who, among

other things, has no complaints or negative actions against

his/her license.

5. Before every examination, each examiner is trained in

evaluating a procedure to make sure that the procedure is

properly performed. The Department of Health (Department)

conducts training in which each examiner is trained to grade

using the same internal criteria. Such training results in a

standardization of grading criteria. In this training process,

the examiners are trained by assistant examiner supervisors on

the different criteria that are used during the examination. The

assistant examiner supervisors are dentists licensed in the State

of Florida.

6. To further their training, the examiners after receiving

verbal training are shown slides of teeth which do not meet the

clinical criteria of the examination.

7. Following the standardization, to make sure that the

examiners have been able to internalize the criteria, the

examiners, themselves, are given an examination. Included in the

examination is a hands-on clinical, where models are used and the

examiners check for errors on the models. The examiners are

evaluated on how they perform when they grade the models, to make

sure that the examiners are grading the candidates the same,

using the same criteria, and with reliability.

8. Each examiner grades the examination independently. The

examiners do not confer with each other while scoring the

examination. The examiners do not have contact with the

candidates.

9. As to grading, the average of the three grades from the

examiners produces the overall grade for the exercise performed

by the candidate. Having three examiners grading provides a more

reliable indication of the candidate's competency and true grade.

10. Furthermore, the examination is double-blind graded,

which is a grading process in which the candidates have no

contact with the examiners. The candidates are located in one

clinic and perform the dental procedures on their human patient.

The clinic is monitored. When the candidate completes the

procedures, a proctor accompanies the human patient to another

clinic where the examiners are located, and the examiners grade

the procedures performed by the candidates.

11. Monitors are used by the Department at the examination.

The role of a monitor is to preserve and secure the integrity of

the examination. The monitor, among other things, gives

instructions to the candidates, answers questions of the

candidates, and acts as a messenger between the candidate and the

examiner. Monitors also ensure that candidates do not have

contact with the examiners.

12. For the Periodontal section, a candidate, as

Petitioner, performs a periodontal exercise on a human patient

who is chosen by the candidate. The human patient must also be

approved by the Department in accordance with criteria specified

by rule. 2 The criteria includes a requirement that the human

patient must have a minimum of five teeth, each of which must

have pockets of a minimum of four mm in depth with sub-gingival

calculus.

13. Petitioner chose his human patient. The Department

approved Petitioner's human patient. Petitioner's human patient

was a periodontally involved patient.

14. Petitioner performed the periodontal exercise on his

human patient. Petitioner's exercise was graded by three

examiners, i.e., Examiners 131, 346, and 264. All three

examiners participated in and successfully completed the

standardization training, and it is inferred that they were

considered qualified to act as examiners for the Examination.

15. Petitioner's examination was double-blind graded. Each

examiner independently graded Petitioner's examination.

16. Examiner 131 found no errors and awarded Petitioner a

grade of five (5). Examiner 346 found gross mutilation of the

human patient's soft tissue of areas 26, 27, and 28, and awarded

Petitioner a grade of zero (0). Examiner 264 also found gross

mutilation of the human patient's soft tissue of areas 26, 27,

and 28, and awarded Petitioner a grade of zero (0).

17. The criteria for the Periodontal exercise mandates a

grade of zero (0) where there is gross mutilation of gingival

tissue. 3 Consequently, Examiners 346 and 264 had no choice but to

award Petitioner a grade of zero (0).

18. After the grading, both graders who found gross

mutilation of gingival tissue made written comments, regarding

the tissue mutilation, on the Examiner-To-Monitor Instructions

form. Examiner 264's comment was "Please have candidate place

perio pak, area 26, 27, 28" and was not intended to be

instructions to Petitioner but was directed to follow-up work or

to attention that the human patient may need afterwards. The

Examiner-To-Monitor Instructions form, with the written comments,

was provided to the monitor who related the comments to

Petitioner. The monitor did not allow Petitioner to view the

written comments.

19. The monitor informed Petitioner that further work

needed to be done as to the human patient. The monitor indicated

on the Examiner-To-Monitor Instructions form that Examiner 264's

comment was related to Petitioner by the monitor writing

"Candidate complied with" and writing and circling his assigned

monitor number. The monitor writing "Candidate complied with"

meant only that the monitor informed Petitioner that further work

needed to be done, not that the Petitioner correctly performed

the procedure.

20. No evidence was presented that Petitioner sutured the

human patient or that he placed a perio pak on the affected

tissue of areas 26, 27, and 28. The evidence shows that the

monitor only related to Petitioner that further work needed to be

done without the monitor specifying what needed to be done.

Moreover, the evidence shows that the monitor did not indicate

that Petitioner had done what was requested of him.

21. A candidate is not informed of his/her performance by

the examiner because there is no contact between the examiner and

the candidate. Additionally, such notification at the

Examination site is not done because it is believed to have the

effect of alarming the candidate and raising the candidate's

anxiety level.

22. The human patient was not informed that there was

mutilation of soft tissue as a result of the periodontal

exercise. Before an individual is accepted by the Department as

a patient, the individual must complete and sign a "Patient

Disclosure Statement and Express Assumption of Risk" form. This

form, among other things, relieves the Department of any

responsibility for poor work done by a candidate or for notifying

the human patient of any poor work done by the candidate and

places the responsibility on the human patient to have a licensed

dentist check the work done by the candidate.

23. The grading of Petitioner's Periodontal exercise is not

arbitrary or capricious or an abuse of discretion. The grading

process is not devoid of logic and reason.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

25. Pursuant to Section 455.574, Florida Statutes (1999),

the Department is authorized to administer licensure examinations

for dentists.

26. Section 466.006, Florida Statutes (1999), provides in

pertinent part:

(4) To be licensed as a dentist in this

state, an applicant must successfully

complete the following:

(a) A written examination on the laws and

rules of the state regulating the practice of

dentistry;

(b)1. A practical or clinical examination,

which shall be administered and graded by

dentists licensed in this state and employed

by the department for just such purpose. The

practical examination shall include:

a. Two restorations, and the board by rule

shall determine the class of such

restorations and whether they shall be

performed on mannequins, live patients, or

both. At least one restoration shall be on a

live patient;

b. A demonstration of periodontal skills on

a live patient;

c. A demonstration of prosthetics and

restorative skills in complete and partial

dentures and crowns and bridges and the

utilization of practical methods of

evaluation, specifically including the

evaluation by the candidate of completed

laboratory products such as, but not limited

to, crowns and inlays filled to prepared

model teeth;

d. A demonstration of restorative skills on

a mannequin which requires the candidate to

complete procedures performed in preparation

for a cast restoration; and

e. A demonstration of endodontic skills.

27. Petitioner, as the applicant, has the ultimate burden

of proof to establish that he is entitled to licensure as a

dentist. Florida Department of Transportation v. J.W.C. Company,

Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

28. The burden of proof is on Petitioner to show by a

preponderance of evidence that the grading of the Periodontal

section, Clinical part of the Examination was arbitrary or

capricious or consituted an abuse of discretion, or that the

grading process was devoid of logic and reason. Harac v.

Department of Professional Regulation, Board of Architecture , 484

So. 2d 1333 (Fla. 3d DCA 1986); State ex rel. Glasser v. Pepper ,

155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board

of Electrical Examiners for Jacksonville Beach , 101 So. 2d 583

(Fla. 1st DCA 1958).

29. Petitioner has failed to meet his burden.

30. Petitioner is not entitled to additional points on the

Periodontal section, Clinical part of the Examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Board of

Dentistry, enter a final order dismissing Rami Ghurani's

examination challenge to the periodontal section of the clinical

part of the dental licensure examination administered in December

1999.

DONE AND ENTERED this 15th day of December, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of December, 2000.

ENDNOTES

1/ Petitioner attached to his post-hearing submission excerpts

from a published textbook on periodontics. Petitioner did not

request leave to use and attach the excerpts or to late-file the

excerpts. As a result, neither the excerpts nor any argument

relying upon the excerpts were considered in the preparation of

this Recommended Order.

2/ Rule 64B5-2.013(4)(b), Florida Administrative Code, provides:

(4) The grading of the clinical portion of

the dental examination shall be based on the

following criteria:

* * *

(b) Periodontal exercise on a patient with a

minimum of 5 teeth, none of which shall have

a full crown restoration, all of which shall

have pockets at least 4 mm. in depth with

obvious sub-gingival calculus detectable by

visual or tactile means and radiographic

evidence of osseous destruction; at least one

tooth shall be a multi-rooted molar which

shall be in proximal contact with at least

one other tooth; none of the 5 teeth shall be

primary teeth. All calculus appearing on

radiographs must be detectable by visual or

tactile means.

1. Definitive debridement (root planing,

deep scale, stain removal):

a. diagnosis -- clinical and radiographic

b. presence of stain on assigned teeth

c. presence of supra-gingival calculus on

assigned teeth

d. presence of sub-gingival calculus on

assigned teeth

e. root roughness on assigned teeth

f. management of soft tissue is considered

adequate in the absence of trauma or

mutilation.

It is the intent of the Board that each of

the criteria are to be accorded equal

importance in grading. Equal importance does

not mean that each criteria has a numerical

or point value but means that any one of the

criteria, if missed to a severe enough degree

so as to render the completed procedure

potentially useless or harmful to the patient

in the judgment of the examiner, could result

in a failing grade on the procedure. The

criteria do not have any assigned numerical

or point value but are to be utilized in

making a holistic evaluation of the

procedure. However, a grade of zero (0) is

mandatory if there is gross mutilation of

gingival tissue or if the candidate fails to

attempt or complete the procedure.

3/ Ibid.

COPIES FURNISHED:

Rami Ghurani

2400 Southwest Third Avenue, No. 702

Miami, Florida 33129

Cherry A. Shaw, Esquire

Department of Health

2020 Capital Circle, Southeast

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 H. Buckhalt, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.