02-002302 Jason S. Baker, D.M.D. vs. Department Of Health Status: Closed Recommended Order on Wednesday, October 9, 2002.

Summary: Petitioner`s examination grade on dental examination was correct and challenge by Petitioner should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JASON S. BAKER, D.M.D., )

)

Petitioner, )

)

vs. ) Case No. 02 - 2302

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative L aw Judge Don W. Davis of the Division of

Administrative Hearings conducted a formal hearing in this case

on September 5, 2002, in Tallahassee, Florida. Petitioner

appeared by telephone.

APPEARANCES

For Petitioner: Jason S. Baker, D.M.D., pro se

Westchester Medical Center

95 Grasslands Road, Box 572

Valhalla, New York 10595

For Respondent: E. Renee Alsobrook, 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 December 2001 dental license examination.

PRELIMINARY STATEMENT

In December 2001, Petitioner took the dental licensure

examination. By grade repo rt dated January 22, 2002, the

Department of Health (“the Department”) notified Petitioner that

he had failed the licensure examination. The minimum passing

score for the examination is 3.00, and Petitioner scored 2.87.

Petitioner timely submitted a reque st for hearing to

contest the grading process applied to certain procedures upon

which he was examined. Additionally, at Petitioner’s request, a

re - grade was conducted for the challenged procedures, but

Petitioner still failed the examination.

At the fi nal hearing, Petitioner testified on his own behalf

but offered no additional witnesses. The Department offered six

exhibits. Also, the Department presented the testimony of

Marsha Carnes, accepted as an expert in the field of

psychometrics; Dr. William F. Robinson, D.D.S., accepted as an

expert in the field of dentistry; and by deposition,

Dr. Howell A. Goldberg, D.D.S, an examiner for the December 2001

examination.

No transcript of the final hearing has been supplied, but

proposed Findings of Fact submitted by the parties have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. In December 2001, Petitioner took the dental licensure

examination and failed to pass the clinical portion of the exam.

The examinatio n is a three - day process involving two days of

clinical examination. Those two days of clinical examination

consist of nine procedures. Four of the nine procedures were

challenged by Petitioner.

2. The clinical portion is where the candidate is require d

to perform certain patient procedures. The work product of the

student, or candidate, is evaluated following the performance of

those procedures by three examiners. Each examiner grades the

candidate independently of whatever score the other examiners may

award on a particular procedure. Then the average grade for each

procedure is weighted in accordance with requirements of

Rule 64B5 - 2.013, Florida Administrative Code. This produces the

overall score for the entire clinical exam.

3. The Depar tment uses three examiners' scores because this

provides a more reliable indication of the candidate's competency

and true score. Further, each examiner must be a licensed

dentist for a minimum of five years and have no complaints or

disciplinary actions against their license. Examiners have no

contact with the candidate taking the examination and,

accordingly, have no idea of who they are grading.

4. To further ensure fairness, each examiner must attend

and successfully complete a standardization sessio n. The purpose

of these sessions is to ensure that each examiner is trained to

use the same internal grading criteria. In standardization, each

examiner is thoroughly taught specific grading criteria with the

result that examiners are instructed on how t o evaluate the work

of the candidates.

5. The examiners who graded Petitioner’s examination had

successfully completed the foregoing standardization session.

Also, the Department’s post - exam check found these examiners’

grading to be reliable.

6. Pet itioner contested the score he received on

Procedure 4, the Endodontic procedure, a root canal. The

Endodontic procedure required removal of infected nerve tissue

and blood vessels pulp from the tooth. Petitioner was required

to access the canal and pul p tissue from the outside. Then,

Petitioner was required to remove the bad nerve and cleanse the

canal. Finally, Petitioner was required to seal the canal to

prevent recurring bacteria. Petitioner failed to observe a

fracture in the tooth. He claimed t hat a fracture to the root

of the tooth was caused by the Department after he reviewed his

examination and that no one advised him the root was fractured.

Petitioner requested a score of 3.00 for this procedure.

7. However, the Department's witness, D r. William F.

Robinson, a licensed dentist for 32 years who examined the tooth

and X - ray prepared by Petitioner, testified that the fracture to

the root was noticed in both the X - ray and on the tooth when he

examined the same. Additionally, two of the thr ee re - graders

also noted the fracture of the root. With regard to

Petitioner's preparation of the X - ray at the conclusion of the

examination, Dr. Robinson opined that Petitioner caused the

fracture to the root during the examination and not the

Department , as alleged by Petitioner.

8. Dr. Robinson further opined that even without a

fracture to the root of the tooth, Petitioner failed the

procedure and the failing grade he received was fair.

Dr. Robinson would not recommend that Petitioner recei ve a

passing score of 3.00 on the procedure.

9. The examiners' comments and grades and the testimony of

Dr. William F. Robinson establish that Petitioner failed to

properly perform this procedure. The grade Petitioner received

was fair.

10. Petitioner challenged the grade he received on

Procedure 5, the Class IV Composite Restoration of the front

tooth, but did not offer any testimony at the hearing as to why

the score was not correct for the procedure. Petitioner

requested that the score of 1.00 given by one of the examiners

be thrown out, thus giving him a passing grade on this

procedure.

11. Procedure 5 of the dental licensure examination is a

procedure that involves the candidate’s ability to replace the

edge of the front tooth with a composite resi n material, which

is a tooth - colored filling. As established by the examiners’

comments and grades and the testimony of Dr. William F.

Robinson, Petitioner failed to properly perform this procedure

and the grade Petitioner received was fair. Specifically , the

examiners found that the tooth was abraded and the re - grader

noted, as did the examiners, the excessive “flash” on the tooth.

Dr. Robinson also noted both deficiencies in the procedure.

12. Petitioner contested the score he received on

Procedure 6, the Class II Composite Restoration procedure in his

original petition, but offered no testimony at the hearing

concerning this procedure.

13. Dr. Robinson reviewed the examiners' grades and the

tooth prepared by Petitioner and opined that Petitioner’s g rade

of 2.66 for this procedure is fair.

14. Based on the examiners’ comments and grades and the

testimony of Dr. Robinson, Petitioner failed to properly perform

this procedure and the grade Petitioner received was fair.

15. Petitioner contested the sco re he received on

Procedure 7, the preparation for a 3 - unit Fixed Partial Denture,

claiming that on the re - grade one of the examiners reviewed the

wrong procedure.

16. The Preparation for a 3 - unit Fixed Partial Denture

procedure of the dental licensure ex amination is a procedure

that involves the candidate’s ability to provide preparations of

two (2) teeth in order to replace a missing tooth with a fixed

bridge.

17. Dr. Robinson established that Petitioner’s work on

this procedure resulted in one tooth, N o. 29, being grossly over

reduced and tooth No. 31 was insufficiently reduced. The result

of such work is that it is impossible to place a bridge on such

an improper preparation. As established by testimony of

Dr. Robinson, Petitioner's problem with this procedure resulted

from Petitioner’s undercut. This undercut indicated that

Petitioner’s preparations were not properly aligned to accept a

bridge.

18. Based on the examiners’ comments and grades, and the

testimony of Dr. Robinson, Petitioner fail ed to properly perform

this procedure and the grade Petitioner received was fair.

19. The Department's “re - grade” process was utilized in

this case. Used to give all candidates who timely request a

hearing another chance at passing, the re - grade process allows

the Department to go back and determine whether any grades

rendered were inconsistent. The Department selects the top

three examiners who had the highest reliability from that

examination to participate in the re - grade process.

20. The Departmen t maintains post - standardization

statistics of the examiners’ performance. In this case, those

statistics indicated that Petitioner’s examiners graded

reliably.

21. In addition, the Department calculates post -

examination statistics for the examiners, whi ch are as follows

for the examiners who graded Petitioner’s challenged procedures:

Examiner Accuracy Index & Rating

#206 95.8 - Excellent

#375 98.8 - Excellent

#380 92.1 - Good

#334 97.8 - Excellent

#298 95.9 - Excellent

#375 98.8 - Excel lent - was an original and

a re - grader.

All of Petitioner's examiners exhibited a reliability

significantly above the minimum acceptable accuracy index of

85.0.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over this mat ter. Section 120.57(1), Florida

Statutes.

23. Respondent's Rule 64B5 - 2.017(1), Florida Administrative

Code, provides:

Each clinical procedure shall be graded by

three (3) examiners, . . . and the 3

independent grades shall be averaged to

determine an applicant’s final grade on each

procedure of the clinical examination.

24. 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

the Department's grading decision in regard to the challenged

examination questions is arbitrary and capricious or an abuse of

discretion. See State ex rel. Glasser v. J.M. Pepper , 155 So. 2d

383 (Fla. Stat. 1st DCA 1963); State ex rel. Topp v. Board of

Electrical Examiners , 101 So. 2d. 583 (Fla. 1st DCA 1958).

25. Examining boards such as the Department's dental board

are gen erally constituted and established for the purpose of

protecting the health and safety of the public against

incompetents who seek to enter the various vocations and

professions. See Topp v. Board of Electrical Examiners at 586.

Such boards are not veste d with “arbitrary hegemony” over the

rights of the individual but are charged with the duty to

administer their rules and regulations equally and justly as

between all persons and groups who come within the bounds of

their jurisdiction. Id.

26. So long as these boards conduct their examinations

fairly and uniformly in accordance with lawful authority and

their own rules and regulations, their judgment as to the proper

grading of such examinations will not be disturbed by the courts.

See Id.

27. In the instant case, it is clear that the Department,

in the exercise of its lawful authority, determined that

Petitioner failed to earn a passing grade on the December 2001

dental licensure examination.

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 December

2001 dental licensure examination.

DONE AND ENTERED this 9th day of October, 2002, in

Tallahassee, Leon C ounty, Florida.

___________________________________

DON W. DAVIS

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of October, 2002.

COPIES FURNISHED :

E. Renee Alsobrook, Esquire

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399 - 1703

Jason S. Baker, D.M.D.

Westchester Medical Center

95 Grasslands Road, Box 572

Valhalla, New York 10595

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Depar tment 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 R ecommended Order should be filed with the agency that

will issue the final order in this case.