97-005865 Susan J. Summerton-Madison vs. Board Of Optometry Status: Closed Recommended Order on Friday, May 22, 1998.

Summary: Petitioner not entitled to license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN J. SUMMERTON-MADISON, )

)

Petitioner, )

)

vs. ) Case No. 97-5865

)

DEPARTMENT OF HEALTH, BOARD OF )

OPTOMETRY, )

)

Respondent. )

_______________________________________)

RECOMMENDED ORDER

On March 23, 1998, a formal administrative hearing was held

in Tampa and Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

The hearing was conducted by videoconference from Tallahassee,

Florida.

APPEARANCES

For Petitioner: Susan J. Summerton-Madison, pro se

559 99th Avenue North

Naples, Florida 34108

For Respondent: Anne Marie Williamson, Esquire

Department of Health

Building 6, Room 102

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUE

Whether the Petitioner is entitled to an award of additional

points sufficient to achieve a passing score on the July 1997

optometry exam.

PRELIMINARY STATEMENT

The Petitioner took the July 1997 optometry licensure

examination. By grade report dated August 27, 1997, the

Petitioner was advised that she had not passed the clinical

portion of the examination.

The Petitioner requested a formal administrative hearing.

The request was forwarded to the Division of Administrative

Hearings which scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on her own behalf

and had exhibits numbered 1-8 admitted into evidence. The

Respondent presented the testimony of two witnesses and had

exhibits numbered 1-6 admitted. A transcript of the hearing was

filed. The Respondent filed a proposed recommended order.

FINDINGS OF FACT

1. Susan J. Summerton-Madison (Petitioner) took the July

1997 examination for licensure as an optometrist in the State of

Florida.

2. A portion of the examination tests the clinical skills

of the applicant for licensure. Each applicant performs a number

of tasks while two examiners observe.

3. Prior to administration of the test, all examiners

receive standardization training providing a baseline for grading

the individual performance of each applicant.

4. Examiners grade each applicant independently of each

other.

5. During the clinical part of the test, a viewing system

known as a "teaching tube" is attached to the optometrist's

equipment used by the applicant. The applicant performs each

task twice because only one examiner at a time can observe the

performance through the tube.

6. Prior to beginning the clinical portion of the exam, the

applicant and the examiners set the tube focusing mechanism so

that both the applicant and the examiner have a clear view of the

procedures being demonstrated.

7. By grade report dated August 27, 1997, the Petitioner

was advised that she had scored 68.80 on the clinical portion of

the examination.

8. A score of at least 75 points is required to pass the

clinical portion of the examination for licensure as an

optometrist.

9. The Petitioner challenges the grading of the following

questions:

Section 1, questions 4a and 4b.

Section 2, questions 3a, 3b, 5c, 6a, 7b, 10a,

11a, 11b, 12a, 12b, 13a, 14a, 15a, 18a, 18b,

21a, 21b, 24a, 25a, and 26a.

10. The Petitioner asserts that her pregnancy during the

examination resulted in ocular changes which caused focusing

anomalies. The anomalies allegedly caused the viewing equipment

through which the examiners observed her performance to be out of

focus.

11. The Petitioner received score deductions related to

lack of focus on numerous questions; specifically section 2,

questions 3a, 3b, 5c, 6a, 7b, 10a, 13a, 14a, 15a, 18a, 21a, 24a,

25a, and 26a.

12. There are multiple causes of temporary ocular changes,

including nervousness. Although there is evidence that pregnancy

can result in ocular changes, the evidence fails to establish

that any focusing problems which occurred during the Petitioner's

performance on the July 1997 examination were related to

pregnancy.

13. Refocusing the viewing mechanism takes approximately

five seconds. There is no evidence that an applicant is

prevented from refocusing the equipment during the clinical

examination.

14. Although examiners are under no obligation to advise

applicants during the test, one of the examiners observing the

Petitioner suggested that she refocus the equipment. The

Petitioner asserts that the request caused her to run out of time

on section 2, questions 11a, 11b, 12a, and 12b. The evidence

fails to establish that any problems related to insufficient time

for the examination were related to the examiner's suggestion.

15. The Petitioner asserts that points were deducted for

poor focus on tasks which did not include focus as grading

criteria. The evidence establishes that because the clinical

portion of the test involves examination of ocular systems in a

patient, almost all procedures require correct focus.

16. The Petitioner asserts that on section 2, question 21b,

("foveal reflex") she received no points, but that another

optometrist's examination of the test patient indicated that the

foveal reflex was acceptable. Review of the examination

indicates that the Petitioner's score was lowered because of

focusing problems. The fact that a qualified optometrist

determined the patient to be normal does not entitle the

Petitioner to additional points or indicate that the scoring of

her performance was unfair.

17. Because examiners view separate procedures, it is not

unlikely that examiners may award different scores. It is

possible to evaluate the performance of examiners through use of

"agreement ratings." Agreement ratings indicate the frequency of

which each examiner agrees with the other examiner in testing the

same applicant.

18. The Petitioner notes that the examiners grading her

performance differed in grading section 1, questions 4a and

section 2, questions 3a, 3b, 7b, 10a, 13a, 14a, 15a, 18b, 21a,

21b, and 25a, and asserts that such indicates she was graded

unfairly.

19. Although the agreement ratings of the examiners who

observed the Petitioner were slightly lower than average, the

examiner agreement ratings fail to establish that she was graded

arbitrarily or unfairly. The sample size is so small as to be

subject to influence by borderline candidates, where one examiner

believes an applicant's performance to be more acceptable than

does the other examiner.

20. The Petitioner asserts that on section 2, question 18b,

the lack of agreement between the examiners reflects arbitrary

grading because both supposedly view the same procedure through

the viewing tube. The evidence fails to establish that the

Petitioner is entitled to additional points or that the scoring

of her performance was unfair.

21. The Petitioner asserts that she informed the examiners

that she was pregnant prior to administration of the clinical

portion of the exam and that she should have received special

accommodation of some type based on her condition.

22. Procedures set forth in Rule 61-11.008, Florida

Administrative Code, address special assistance to certain

persons submitting to examination by the Department of Business

and Professional Regulation, Office of Examination Services,

which administered the examination in the instant case. Such

assistance is available to persons with learning disabilities or

physical handicap as defined in the rule. There is no evidence

that the Petitioner sought to utilize such procedures. There is

no evidence that the Petitioner's condition would have been

regarded as a learning disability or physical handicap by the

agency.

23. The Petitioner asserts that an examiner exited the room

while she was addressing section 1, questions 4a and 4b, and that

the confusion of the departure caused the examiners to err. The

evidence establishes that the scores reflect the inappropriate

performance of the task involved, which involved measurement of

the patient's pupil.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

25. Persons desiring to practice in the State of Florida as

optometrists must pass an examination designed to measure

competence. Section 463.006, Florida Statutes.

26. The Department of Health is responsible for

administration of licensure examinations for optometrists.

Section 455.574, Florida Statutes.

27. The Petitioner has the burden of establishing that she

meets the qualifications for licensure. Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349 (1st DCA

1977). In this case, the burden has not been met.

28. The evidence fails to establish that the grading of the

Petitioner's clinical performance was inappropriate. The

Petitioner received numerous deductions in points because, at

least to the eye of the observing examiner, the equipment was not

properly focused on the patient's ocular system. The fact that

points were deducted for focusing problems seems of utmost

importance when the passage of the examination permits a person

to enter a profession where focus is frequently of paramount

concern.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby recommended that the Department of Health enter

a Final Order dismissing the Petitioner's challenge to the grading

of the July 1997 examination for licensure as an optometrist.

DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of May, 1998.

COPIES FURNISHED:

Susan J. Summerton-Madison

559 99th Avenue North

Naples, Florida 34108

Anne Marie Williamson, Esquire

Department of Health

Building 6, Room 102

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Angela T. Hall, Agency Clerk

Department of Health

Building 6, Room 136

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Eric G. Walker, Executive Director

Board of Optometry

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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 must be filed with the agency that will

issue the Final Order in this case.