00-004055 Shahram Shahmohamady, D.M.D. vs. Department Of Health, Board Of Denistry Status: Closed Recommended Order on Thursday, February 1, 2001.

Summary: Candidate failed dentistry examination. Examiners correctly graded the procedures tested.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAHRAM SHAHMOHAMADY, D.M.D., )

)

Petitioner, )

)

vs. ) Case No. 00-4055

)

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on November 21, 2000, by video teleconference in

Tallahassee, and Miami, Florida, before Susan B. Kirkland, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Orlando Rodriquez-Rams, Esquire

Lorenzo & Capua

9192 Coral Way, Suite 201

Miami, Florida 33165

For Respondent: Cherry Shaw, Esquire

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a passing grade on the

dental examination given on June 4-7, 2000.

PRELIMINARY STATEMENT

By examination grade report dated August 1, 2000,

Respondent, Department of Health, Board of Dentistry

(Department), notified Petitioner, Shahram Shahmohamady

( Shahmohamady), that he had received a failing score of 2.98

on the clinical portion of the dental examination held on June

4-7, 2000. Shahmohamady requested an administrative hearing,

and on October 3, 2000, the case was forwarded to the Division

of Administrative Hearings for assignment to an administrative

law judge.

Respondent filed Respondent's Motion to Dismiss Paragraph

4(a)-(e) of Petitioner's Notice of Appearance and Election of

Rights for Lack of Standing on November 1, 2000. Respondent

filed Respondent's Motion to Quash the subpoenas of Dr. John

Joffre and Dr. Jeff Metcalfe on November 20, 2000. The

motions were argued at the final hearing. Respondent's Motion

to Dismiss was DENIED, and Respondent's Motion to Quash was

GRANTED.

At the final hearing, Petitioner testified in his own

behalf and called Marsha Carnes and Stuart A. Caplan as his

witnesses. Petitioner's Exhibits 1 and 2 were admitted in

evidence. Respondent called Marsha Carnes and Daniel A.

Bertoch as its witnesses. Respondent's Exhibits 1-14 were

admitted in evidence.

The parties agreed to file proposed recommended orders

within 15 days of the filing of the transcript. The one-

volume Transcript was filed on January 2, 2001. Respondent

filed its Proposed Recommended Order on January 17, 2001. On

January 22, 2001, Petitioner filed a request for extension of

time to file his Proposed Recommended Order. Petitioner was

granted leave to file his Proposed Recommended Order on or

before January 31, 2001. Petitioner filed his Proposed

Recommended Order on January 29, 2001. The parties' Proposed

Recommended Orders have been considered in rendering this

Recommended Order.

FINDINGS OF FACT

1. Shahmohamady took the clinical portion of the dental

licensure examination on June 4-7, 2000. He received a

failing score of 2.98.

2. The clinical portion of the dental examination

consists of nine parts: a written clinical, three patient

procedures, and five mannequin procedures. The five mannequin

procedures consist of the endodontic, preparation for a three-

unit fixed partial denture, the Class IV composite, the Class

II composite, and the Class II amalgam.

3. Shahmohamady challenges the grades that he received

for the preparation for a three-unit fixed partial denture and

the Class IV composite.

4. The Department retains examiners and monitors during

the examination. The examiners actually grade the clinical

procedures performed by the candidates during the examination.

The monitors give instructions to the candidates, preserve and

secure the integrity of the examination, and act as messengers

between the examiners and candidates.

5. The procedures are blind graded independently by

three examiners. The examiners do not know the name of the

candidates they are grading. Each examiner grades the

procedures independently of the other examiners. Discussion

among the examiners is not allowed. The three examiners'

grades for each procedure are averaged for the overall grade

for the procedure.

6. Each examiner must attend and successfully complete a

standardization course prior to the examination. The

standardization session trains each examiner to use the same

grading criteria. After the examination is concluded and the

final grades are given, the Department performs an analysis of

the examiners' grading to determine the reliability of each

examiner's grading.

7. Candidates and examiners do not have contact during

the examination. If a candidate has a problem during the

examination, he is to alert a monitor. Candidates may fill

out a Monitor-To-Examiner Instruction form, advising the

monitor of any problem experienced during the examination.

The monitor will read the comments of the candidate, and if

the monitor agrees with the comments the monitor will write

his monitor number on the form and circle the number.

8. The monitor will provide the comment forms to the

examiners when they are grading the procedures. Each examiner

is to read the comment forms. The examiner is to acknowledge

that he has read the forms on the grade sheet by either

writing SMN followed by the number of comment sheets he read

for all the procedures or by writing under each procedure SMN

followed by the number of comment sheets that he read for that

particular procedure.

9. Shahmohamady filled out a Monitor-to-Examiner

Instructions form on June 6, 2000, for the preparation for a

three-unit fixed partial denture procedure and wrote the

following:

Doctor,

As I was prepping tooth #20 on the sital

aspect, the gas torch of the Candidate

sitting in front of me (one row over)

suddenly burst into a 3 foot flame that

caused everyone to yell out. I

inadvertently looked up and saw the flame

without knowing where it was coming from

and paniked [sic] and my bur gouged the

mesial aspect of #19 (area of box [sic]

10. There is no disagreement among the parties that the

incident involving the gas burner occurred and no disagreement

that points should not have been deducted for the gouge of the

adjacent tooth resulting from the gas burner incident.

11. The clinical procedures are graded on a scale of

zero to five, with five being the best score. If an examiner

gives a score of less than five, the examiner is to list a

comment number, which corresponds to a list of comments for

each procedure. The examiner may also list a comment number

for things that the examiner observes during the grading, but

for which no points are deducted.

12. For procedure 7, which is the preparation of a

three-unit fixed partial denture, the comment list to be used

by the examiner was as follows:

1 Outline Form

2 Undercut

3 Insufficient Reduction

4 Excessive Reduction

5 Marginal Finish

6 Unsupported Enamel

7 Parrallelism

8 Mutilation of Opposing or Adjacent Teeth

9 Management of Soft Tissue

X Additional Comments - Written

13. For procedure 7, Shahmohamady received a score of 5

from Examiner 289, a score of 4 from Examiner 315, and a score

of 3 from Examiner 366. Each of the examiners was given the

Monitor-to Examiner Instructions form with the note from

Shahmohamady concerning the Bunsen burner incident.

Shahmohamady challenges the score that he received from

Examiner 366.

14. Examiner 366 put numbers 4, 5, and 8 on the comment

portion of the grading sheet for procedure 7. Those comments

referred to excessive reduction, marginal finish, and

mutilation of opposing or adjacent teeth. He indicated that

he had read the three comment sheets that were submitted for

the mannequin procedures and so indicated by writing "SMN-3"

on the grading sheet for Shahmohamady. Examiner 366 did not

deduct points for the mutilation of the adjacent tooth due to

the Bunsen burner explosion. The grade which Shahmohamady

received for procedure 7 is correct and should not be

increased.

15. After a candidate receives his grades for the dental

examination, he may request an administrative hearing if he

fails the examination. When the Department receives a request

for an administrative hearing, the Department will regrade the

procedures done by that candidate. The top three examiners

from the examination based on the post-examination analysis

that is done by the Department are chosen to regrade the

procedures which are being contested. In addition to

regrading candidates who have failed the examination, the

examiners also regrade some candidates who have successfully

passed the examination in order to ensure the integrity of the

regrading process.

16. Shahmohamady challenged the grade he received on

procedure 7 and procedure 4; thus his examination was

regraded. Each of the grading sheets had the following

comment listed on the grading sheet for procedure 7 prior to

the regrading: "Ignore nicked adjacent tooth bunson [sic]

burner explosion."

17. Procedure 7 was regraded by three examiners, one of

whom was Examiner 366. Examiner 366 again gave Shahmohamady a

score of three and included comment 4 on the comment section.

Examiner 298 gave Shahmohamady a score of 2 for the procedure,

included comment 4, and wrote " overtapered" on the grading

sheet. Examiner 316 gave Shahmohamady a score of 3 and

included comments 1, 4, and 5. Comment 1 referred to outline

form. On regrading, Shahmohamady received an overall lower

score for procedure 7 than he did in the original grading.

Procedure 7 was graded correctly, and Shahmohamady is not

entitled to additional points for that procedure.

18. Shahmohamady challenged the score that he received

for the Class IV composite restoration. He received an

overall score of 2.66. The Class IV composite restoration is

a procedure that involves the candidate's ability to cut a

section of the tooth off the corner of the biting edge of the

front tooth below the level where it contacts the adjacent

tooth. The candidate is required to restore the contact and

the tooth structure to proper form and function in a tooth-

colored material. Based on the expert testimony of the

Department's witness, Dr. Dan Bertoch, the restoration done by

Shahmohamady was not done properly and would fail prematurely.

Examiner 366 opined that Shahmohamady did not appropriately

restore the proximal anatomy and the proximal contour.

Shahmohamady did not properly perform the Class IV composite

restoration procedure and should not be given a passing score

for that procedure.

19. Petitioner claims that Examiner 366 consistently

graded Shahmohamady lower than the other two examiners. Based

on the post-examination statistical analysis performed by the

Department, Examiner 366 tied for second place in reliability

for scoring. On a scale of 100, he scored 96, which is

considered to be excellent. The other two examiners who were

grading Shahmohamady clinical procedures scored lower on

reliability than Examiner 366. Examiner 366's was a reliable

grader and correctly graded Shahmohamady's examination.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

this proceeding. Section 120.57(1), Florida Statutes.

21. An examinee has the burden to establish that his

failing score was a product of arbitrary or otherwise improper

or erroneous grading. See Harac v. Department of Professional

Regulation , 484 So. 2d 1333 (Fla. 3rd DCA 1986).

22. Rule 64B5-2.017, Florida Administrative Code,

provides:

(1) All clinical gradings by examiners

are to be made independently. Each

clinical procedure shall be graded by three

(3) examiners. On the clinical

examinations described in Rules 64B5-2.103

and 59Q-2.019, the three independent grades

shall be averaged to determine an

applicant's final grade on each procedure

of the clinical examination. . . .

(2) There shall be a variance review of

all grades of all applicants taking the

clinical part of the examination for the

purpose of determining inter-examiners

variance.

(3) Failure of an applicant in any

clinical procedure may be documented on the

grading sheet by the examiner.

Documentation may be accomplished through

the use of "comments" contained on the

grade sheet. The "comments" section may

contain any technical terms or charts that

define, illustrate or otherwise explain the

criteria utilized in grading a particular

procedure. For the purpose of expedience

and brevity in grading, appropriate

"comments" may be noted by recording

"comments" on an optical scan field

contained on the grade sheet. . . .

23. Shahmohamady's examination was graded independently

by three examiners. Examiner 366 correctly graded procedure 7

and the Class IV composite restoration, and the grades should

not be changed for those procedures. Shahmohamady has failed

to establish that the grade he received was arbitrary,

erroneous, or improper. Shahmohamady's overall score of 2.98

on the clinical portion of the examination was correct, and he

failed to pass the clinical portion of the examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that a Final Order be entered

finding that Shahram Shahmohamady failed the clinical portion

of the June 4-7, 2000, dental examination with a score of

2.98.

DONE AND ENTERED this 1st day of February, 2001, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February, 2001.

COPIES FURNISHED:

Orlando Rodriquez-Rams, Esquire

Lerenzo & Capua

9192 Coral Way, Suite 201

Miami, Florida 33165

Cherry 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 32399-0792

William H. Buckhalt, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

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.