01-000374 Navin Singh vs. Department Of Health Status: Closed Recommended Order on Thursday, September 13, 2001.

Summary: Evidence was insufficient to show that candidate for optometry license was entitled to passing grade.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NAVIN SINGH, )

)

Petitioner, )

)

vs. ) Case No. 01-0374

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 2 and 3, 2001, in West Palm Beach, Florida, before

Administrative Law Judge Michael M. Parrish of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Navin Singh, O.D., pro se

103 Knights Court

Royal Palm Beach, Florida 33411

For Respondent : Cherry A. Shaw, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner is

entitled to a passing grade on the clinical portion of the

August 2000 optometry licensure examination.

PRELIMINARY STATEMENT

In August 2000, the Petitioner took the optometry licensure

examination. In an examination grade report dated September 13,

2000, the Department of Health ("Department") notified the

Petitioner that he had failed the clinical portion of the

licensure examination. The minimum passing score for the

clinical portion of the subject examination is 75.00. The

Petitioner scored 70.50. Accordingly, the Petitioner failed to

obtain a passing score on the clinical portion of the subject

examination.

The Petitioner submitted a timely request for a hearing to

challenge the grades awarded to him for his performance of

several of the procedures he was required to perform during the

course of the clinical portion of the examination. In due

course, the proceeding was referred to the Division of

Administrative Hearings, and the case was scheduled for final

hearing at a time convenient to the Petitioner's out-of-state

expert witness.

At the final hearing the Petitioner testified on his own

behalf and also presented the testimony of an expert witness,

Steven Katz, M.D., who is an assistant professor of opthalmology

teaching courses in neuro-opthalmology and optical disease. The

Petitioner also offered seven exhibits. All of the Petitioner's

exhibits were received in evidence. The Respondent presented

the testimony of two expert witnesses : Lee Skinner, M.A., an

expert in psychometrics, and Gary D. McDonald, O.D., an expert

in optometry. The Respondent also offered a total of 16

exhibits, all of which were received in evidence. 1

At the conclusion of the hearing, the parties were allowed

ten days from the filing of the transcript within which to file

their proposed recommended orders. The transcript was filed on

June 21, 2001. Thereafter, both parties filed Proposed

Recommended Orders. The parties' proposals have been carefully

considered during the preparation of this Recommended Order. 2

FINDINGS OF FACT

1. The Petitioner took the optometry licensure examination

in August of 2000. He received passing scores on three of the

four parts of the licensure examination. He received a failing

score on the clinical portion of the examination. The

Petitioner's score on the clinical portion of the subject

examination was 70.50. The minimum passing score is 75.00.

2. The Petitioner contested the scores awarded to him for

his performance of procedures itemized on the examination as 2A,

7B, 10A, 22A, 33C, 9A, 18B, and 14B. 3 During the course of the

hearing, two of the challenged items were resolved without the

need for evidence. The Petitioner withdrew his challenge to

item 10A. The Respondent stipulated that the Petitioner's

performance on item 2A had been incorrectly graded, and agreed

that 1.5 points should be added to the Petitioner's grade on the

subject examination.

3. On five of the items challenged by the Petitioner, one

of the examiners gave the Petitioner credit for successful

completion of the procedure and the other examiner did not. 4

With regard to these five items, the Petitioner's primary

contention is that, if one examiner gave him credit, he should

also have received credit from the other examiner. However,

given the nature of the manner in which the clinical examination

is conducted, different scores by examiners evaluating a

candidate's performance are not unusual, and, standing alone,

different scores are not indicative of any irregularity in the

manner in which the examination was conducted.

4. On the clinical portion of the optometry licensure

examination, each candidate is evaluated by two examiners, each

of whom grades the candidate's performance of a procedure

independently of the other examiner. Further, the examiners are

not permitted to confer with each other regarding a candidate's

scores.

5. Specific written grading standards have been prepared

for each of the procedures candidates are required to perform as

part of the clinical portion of the subject examination. These

written grading standards are provided to all examiners prior to

each examination so that the examiners can review the standards

and be prepared to apply them in a fair and even-handed manner.

Before serving as an examiner, each proposed examiner goes

through a training session. During the training session, each

proposed examiner practices scoring the performance of various

optometry procedures. Following the practice sessions, the work

of each examiner is evaluated to determine whether the examiner

is correctly applying the grading standards. If a potential

examiner is unable to demonstrate the ability to apply the

grading standards, then that examiner is assigned to other

duties and is not assigned to grade candidates on the licensure

exam.

6. The examiners assigned to grade the Petitioner on the

clinical portion of the subject examination all successfully

completed the training process and were determined to be

acceptable by the Department. The examiners assigned to grade

the Petitioner on the clinical portion of the subject

examination were all experienced examiners and a statistical

analysis of their scoring of all candidates on the subject

examination demonstrates that they reliably applied the grading

standards.

7. With regard to the procedure required by item 14B, the

Petitioner asserts that his ability to demonstrate the required

procedure was impaired by the fact that the patient was

photophobic. The greater weight of the evidence is otherwise.

While the subject examination was in progress, two optometrists

examined the patient and determined that the patient was not

photophobic.

8. There is no competent substantial evidence of any

misconduct by any of the examiners who graded the Petitioner's

performance during the subject examination. Similarly, there is

no competent substantial evidence that the Department acted

arbitrarily or capriciously, or that it abused its discretion.

There is no competent substantial evidence that the scoring of

the Petitioner's examination performance was flawed, other than

the additional 1.5 points that the Department agreed should be

given for item 2A.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

10. The Department is authorized to administer licensure

examinations for optometrists. Section 455.574, Florida

Statutes. Any person desiring to practice optometry in Florida

is required to pass the licensure examination developed by the

Department to test an applicant's competency as an optometrist.

Section 463.006, Florida Statutes.

11. The Petitioner has the burden to establish by a

preponderance of the evidence that his examination scoring was

flawed and that the Department acted arbitrarily or capriciously

or with an abuse of discretion. See Harac v. Department of

Business and Professional Regulation , 484 So. 2d 1333, 1337

(Fla. 3rd DCA 1986).

12. The Petitioner has failed to establish that his

failure to demonstrate the procedure required by item 14B was

caused by the patient's photophobia. Accordingly, the

Petitioner is not entitled to any additional points for

item 14B.

13. The Petitioner also asserts that, based on the

disagreement of the examiners in their scoring of his

performance on items 7B, 22A, 33C, 9A, and 18B, he should be

awarded additional points on the examination. This argument

also fails for lack of proof. In a similar case, an

administrative law judge noted that "the two examiners did not

observe Petitioner perform these procedures at the same time.

Moreover, even if they had observed Petitioner simultaneously

and disagreed as to whether Petitioner has shown minimal

competency in performing these procedure, their difference of

opinion on the matter would not, in and of itself, provide a

basis upon which to conclude that the Petitioner's test results

were flawed." See Star v. Department of Business and

Professional Regulation , DOAH Case No. 90- 2423. 5 In addition,

Rule 64B-1.006(2), Florida Administrative Code, allows for

subjective evaluation and disagreement of examiners on a

candidate's performance on a practical examination. The rule

states, "no less than two examiners shall independently evaluate

the performance of each candidate and the independent grades of

the examiners shall be averaged to produce the final score for

each candidate." The rules do not provide for the "dismissal"

of the opinion of an examiner who gives no credit when another

examiner gives credit, as the Petitioner appears to request.

Accordingly, the Petitioner is not entitled to any additional

points for items 7B, 22A, 33C, 9A, and 18B.

14. It is conceded by the Department that the Petitioner

is entitled to have 1.5 raw points added to his score. These

additional points are not sufficient to raise the Petitioner's

grade to a passing grade.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be issued concluding

that the Petitioner is not entitled to a passing grade on the

clinical section of the optometry licensure examination and

dismissing the petition in this case.

DONE AND ENTERED this 13th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

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 13th day of September, 2001.

ENDNOTES

1/ Several of the exhibits offered by the Respondent are

confidential documents within the meaning of Section 456.014,

Florida Statutes.

2/ The findings and conclusions proposed by the Respondent are,

to a large extent, consistent with the conclusions reached by

the Administrative Law Judge. Portions of the Respondent's

proposed findings and conclusions have been incorporated into

this Recommended Order.

3/ At the hearing the Petitioner also sought, for the first

time, to litigate the scores awarded to him for his performance

of the procedures itemized as 26A and 28A. The Respondent

objected to the Petitioner's tardy attempts to litigate items

26A and 28A. In this regard the Respondent argued that it would

be prejudiced because the Petitioner had not provided any prior

notice of his intent to litigate items 26A and 28A. The

Respondent's objections were sustained, and the Petitioner was

precluded from presenting any evidence as to items 26A and 28A.

4/ The five procedures on which one examiner scored the

Petitioner as successful and on which the other examiner scored

him as unsuccessful were 7B, 22A, 33C, 9A, and 18B.

5/ To similar effect, see Jayeshkumar Vallabhbhai Patel, O.D.

v. Department of Health , DOAH Case No. 00-5023 (Recommended

Order issued February 23, 2001; Sandra D. Farhady v. Department

of Health, Board of Optometry , DOAH Case No. 99-5120

(Recommended Order issued April 13, 2000); and Susan J.

Summerton-Madison v. Department of Health, Board of Optometry ,

DOAH Case No. 97-5865 (Recommended Order issued May 22, 1998).

COPIES FURNISHED:

Cherry A. Shaw, Esquire

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1703

Navin Singh, O.D.

103 Knights Court

Royal Palm Beach, Florida 33411

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Joe Baker, Jr., Executive Director

Board of Optometry

Department of Health

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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.