00-005107 Harry W. Landsaw vs. Department Of Health Status: Closed Recommended Order on Thursday, June 14, 2001.

Summary: Petitioner is not entitled to additional credit for his licensure examination responses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY W. LANDSAW, )

)

Petitioner, )

)

vs. ) Case No. 00-5107

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on April 2, 2001, by video teleconference between Tallahassee

and Miami, Florida, before Claude B. Arrington, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Frank P. Rainer, Esquire

Sternstein , Rainer and Clarke, P.A.

101 North Gadsden Street

Tallahassee, Florida 32301-7606

For Respondent : Cherry A. 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 score on the

pharmacology/ocular disease portion of the optometry licensing

examination administered August 3, 2000.

PRELIMINARY STATEMENT

Petitioner sat for the pharmacology/ocular disease portion

of the optometry licensure examination (pharmacology

examination) on August 3, 2000. Petitioner received a failing

score on the examination and thereafter timely challenged the

grading of the examination. The challenge was referred to the

Division of Administrative Hearings, and this proceeding

followed.

Four different printings of the examination booklet will be

discussed in this Recommended Order which, for ease of

reference, will be referred to as Booklet A, Booklet B, Booklet

C, and Booklet D. Respondent printed each of these booklets

from its master examination item bank, which is maintained by

computer. The first printing was to create the examination

booklet used by Petitioner when he took the pharmacology

examination on August 3, 2000 (Booklet A). The second printing

occurred when Petitioner reviewed the examination material on

November 7, 2000 (Booklet B). The third printing occurred when

Petitioner reviewed the examination material on February 28,

2000 (Booklet C). The fourth printing was to create the

examination booklet admitted into evidence as Respondent's

Exhibit 5 (Booklet D).

On November 7, 2000, Petitioner reviewed Booklet B , his

responses to the examination questions, the answer key, and

notes he had taken during the examination. He thereafter

challenged the scoring of Questions 44, 55, 66, 74, and 75. At

the formal hearing, Petitioner withdrew all challenges except

those to Questions 44, 74, and 75.

Petitioner reviewed Booklet C in preparation for the final

hearing on February 28, 2001.

At the final hearing, Petitioner contended that the

Booklets A and B omitted certain information contained in

Booklets C and D, and that the omissions impacted his answers to

Questions 44, 74, and 75. Petitioner asserted that he is

entitled to credit for Questions 44, 74, and 75 because his

response to each question was the best answer to the question as

it was presented to him when he took the examination. In the

alternative, Petitioner asserted that the challenged questions

should be invalidated and his examination re-scored without the

challenged questions.

Respondent asserted that there were no material differences

in any of the booklets and that Petitioner is entitled to no

additional credit for any question because he failed to select

the best answer for each question. Respondent also asserted

that there is no basis to invalidate the challenged questions.

At the final hearing, Petitioner testified on his own

behalf and introduced five sequentially numbered exhibits, each

of which was admitted into evidence. Respondent presented the

testimony of Lee Skinner (a psychometrician) and Mark Liebetreu

(an optometrist). Respondent offered nine sequentially numbered

exhibits, each of which was accepted into evidence. Official

recognition was taken of all pertinent statutes and rules.

A transcript of the proceedings was filed April 19, 2001.

Petitioner and Respondent filed proposed recommended orders,

which have been duly considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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:

(2 ) 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. . . .

3. 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.

4. 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.

5. 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:

(2) . . . 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. . . .

6. 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.

7. 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. . . .

8. 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. . . .

9. The examination at issue in this proceeding was not a

national examination.

10. 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.

11. A psychometrician and three consulting optometrists

usually proofread the contents of a newly printed examination

booklet before it is used for an examination.

12. 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.

13. 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.

14. Following his review of the examination material on

November 7, 2000, Petitioner filed the Petition that underpins

this proceeding.

15. 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.

16. 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.

17. Petitioner reviewed the examination material,

including Booklet C, to prepare for the final hearing in this

proceeding on February 28, 2001.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. Mr. Skinner’s testimony that there were no material

differences between Booklet A and Booklet D is credible and

persuasive.

26. Petitioner failed to prove the alleged discrepancies

between Booklet A and Booklet D.

27. 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%.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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/

33. Petitioner failed to establish a basis to disqualify

Questions 44, 74, or 75.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

35. Petitioner has the burden of proving by a

preponderance of the evidence that he is entitled to additional

credit for his responses to the examination questions. See

Harac v. Department of Professional Regulation , 484 So. 2d 1333

(Fla. 3d DCA 1986) ; State ex rel. I. H. Topp v. Board of

Electrical Contractors for Jacksonville Beach, Florida , 101

So. 2d 583 (Fla. 1st DCA 1958) ; and State ex rel. Glaser v. J.

M. Pepper , 155 So. 2d 383 (Fla. 1st DCA 1963). Petitioner did

not meet that burden in this proceeding.

36. The examination questions and answers are confidential

pursuant to Section 456.014, Florida Statutes. A separate order

sealing the transcript and the exhibits entered in this

proceeding will be entered simultaneously with the entry of this

Recommended Order.

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of June, 2001.

ENDNOTES

1/ Respondent’s practice of maintaining its master examination

by computer was not shown to violate the requirement set forth

in Section 456.017(3), Florida Statutes, that it maintain an

accurate record of Petitioner’s examination questions.

2/ Prior to the final hearing, Petitioner moved to shift the

burden of proof to Respondent pursuant to the doctrine of

spoilated evidence because the hard copy of the examination used

by Petitioner was destroyed. The Administrative Law Judge

presiding over this case when the motion was filed denied the

motion. While Petitioner's ability to prepare for this

proceeding was undoubtedly hampered by Respondent's policy that

examination booklets be destroyed after each examination and by

its policies that restrict a candidate's access to examination

materials, the validity of those policies is not at issue in

this proceeding.

3/ As to Question 44, only 29 of 153 candidates for the

pharmacology examination chose the response to the question

selected by Petitioner. As to Question 74, 78 of the 153

candidates chose the answer selected by Petitioner. As to

Question 75, 68 of 153 candidates chose the answer selected by

Petitioner. Of the 153 candidates who sat for the pharmacology

examination, 146 achieved a passing score.

COPIES FURNISHED :

Frank P. Rainer, Esquire

Sternstein , Rainer and Clarke, P.A.

101 North Gadsden Street

Tallahassee, Florida 32301-7606

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 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.