00-005023 Jayeshkumar Vallabhbhai Patel vs. Department Of Health Status: Closed Recommended Order on Friday, February 23, 2001.

Summary: Petitioner`s grade on the clinical portion of optometry licensure examination was properly assessed and Petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAYESHKUMAR VALLABHBHAI PATEL, O.D., )

)

Petitioner, )

)

vs. ) Case No. 00-5023

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

_____________________________________)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis,

Administrative Law Judge for the Division of Administrative

Hearings, held a final hearing in the above-styled case on

January 30, 2001, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jayeshkumar Vallabhbhai Patel, O.D.,

pro se

1601 Norman Drive, Apartment GG-1

Valdosta, Georgia 31601

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 Petitioner should

receive a passing score on the clinical portion of the August

2000 optometry licensure examination.

PRELIMINARY STATEMENT

In August 2000, Petitioner took the optometry licensure

examination. By grade dated September 13, 2000, Petitioner

was informed by Respondent’s personnel that Petitioner had

failed to achieve a passing score on the clinical portion of

the licensure examination. Petitioner scored 74.20. A score

of 75 is required to pass the clinical portion of the

examination. Consequently, Petitioner failed the overall

examination.

Petitioner contested the grade awarded by Respondent and

the matter was transferred to the Division of Administrative

Hearings on December 13, 2000.

At t he final hearing, Petitioner presented 5 exhibits and

testified in his own behalf. Respondent presented 12 exhibits

and testimony of two witnesses.

The Transcript of the final hearing was filed on

February 8, 2001. Proposed Findings of Fact submitted by the

parties have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. In August 2000, Petitioner took the optometry

licensure examination and failed to pass the clinical portion

of the exam. The clinical portion is where the candidate is

required to perform certain patient procedures. The student,

or candidate, is evaluated in the process of performing those

procedures by two examiners. Each examiner grades the

candidate independently of whatever score the other examiner

may award on a particular procedure.

2. With regard to the contested questions in this

matter, Petitioner objected to the awarding of credit by one

examiner and failure of the other examiner to grant credit.

3. In the conduct of the clinical portion of the

examination, each procedure is performed twice, once for each

examiner. The examiners are not permitted to confer as they

apply uniform grading standards to a candidate's performance

in demonstrating a particular procedure. Additionally, the

examiners have been previously subjected to standardization

training where they are trained to apply grading standards in

a consistent manner. Both examiners in Petitioner's

examination were experienced examiners. Where one examiner

gives a candidate one score and the other examiner gives a

different score, the two scores are averaged to obtain the

candidate's score on that question.

4. With regard to Question 1C on the examination, the

candidate is required to tell the patient to look at his or

her nose. At the same time, the candidate must hold up a

finger in a stationary, non-moving manner. By his own

admission, Petitioner failed to comply with this requirement

in that his hands were moving.

5. With regard to Question 7A, the candidate was

required to tell the patient to look at a distant target.

Petitioner told the patient to look straight ahead and argued

at final hearing that his instruction was adequate for him to

assume that the patient was looking at a distant target.

Notably, this question on the examination seeks to elicit a

candidate's skill at administering a neurological test of the

patient's eye and brain coordination and requires that the

candidate specifically tell the patient to look at a distant

target.

6. With regard to Question 13C, the candidate must

perform a procedure designed to detect retinal lesions. The

candidate and the examiner simultaneously look through a

teaching tube where the candidate is asked to examiner the

patient's eye in a clockwise fashion. When told to look at

the nine o'clock position of the retina, Petitioner failed to

look at the correct position. By his own admission Petitioner

stated that since he had to perform the procedure twice, it is

possible that he did not perform the procedure correctly for

one examiner.

7. Question 34A relates to Tonometry; the measure of

intraoccular pressure (IOP) in the eye. Petitioner was not

given credit by one examiner because Petitioner rounded the

pressure results he observed. He argued that his answer of 12

was acceptable since he had rounded to the result within 0.5mm

of what the machine detected in regard to the patient's eye.

One of the purposes of this procedure is to determine whether

the candidate can accurately read the dial to the machine.

Consequently, Petitioner's failure to perform properly with

regard to this procedure was appropriately graded.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over this matter. Section 120.57(1), Florida

Statutes.

9. Respondent's Rule 64B-1.0 06(2), Florida

Administrative Code, allows for subjective evaluation and

disagreement on a candidate's performance on the clinical

portion of the licensure examination for optometrists by no

less than two examiners. The rule also requires that the

independent grades of examiners be averaged to produce a final

score. No provision is made in the rule to discard the

opinion or grade of one examiner in favor of the other.

10. Petitioner seeks licensure and thereby bears the

burden of demonstrating entitlement to the license sought.

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

396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner has not met

this burden. Petitioner has not shown by a preponderance of

the evidence that Respondent's grading decision in regard to

the challenged examination questions is arbitrary and

capricious or an abuse of discretion.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

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

dismissing Petitioner's challenge to the grade assigned him

for the August 2000 optometry licensure examination.

DONE AND ENTERED this 23rd day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Admini strative 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 wit h the Clerk of the

Division of Administrative Hearings

this 23rd day of February, 2001.

COPIES FURNISHED:

Jayeshkumar Vallabhbhai Patel, O.D.

1601 Norman Drive, Apartment GG-1

Valdosta, Georgia 31601

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 A00

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.