02-004829 Jeffrey Fisher, O.D. vs. Department Of Health Status: Closed Recommended Order on Wednesday, April 23, 2003.

Summary: Petitioner failed to prove that the scoring of the clinical portion of his optometry licensure examination was arbitrary or capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY FISHER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4829

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Adm inistrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Tampa, Florida, on March 11, 2003.

APPEARANCES

For Petitioner: A. S. Weekley, Jr.

Holland & Knight LLP

Post Offic e Box 1288

Tampa, Florida 33602

For Respondent: Cassandra Pasley

Senior Attorney

Office of the General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to a passing

score on the clinical examination of the July 2002 optometry

licensure examination.

PRELIMINARY S TATEMENT

By Petition for Formal Proceedings filed November 12, 2002,

Petitioner alleged that he took the optometry licensure

examination on July 28, 2002, for which a passing score was 75.

Petitioner alleged that Respondent initially informed him that

hi s score was 73.10, but later admitted that his score should

have been 74.10. Petitioner noted several instances in which

the two examiners assigned him passing and failing scores, or

substantially divergent scores, for the same item. Petitioner

alleged t hat proper grading of these items would have resulted

in him earning a passing score on the examination.

At the hearing, Petitioner called two witnesses and offered

into evidence three exhibits: Petitioner Exhibits B, C, and

D - 4. Respondent called thre e witnesses and offered into

evidence no exhibits. The parties jointly offered 13 exhibits:

Joint Exhibits 1 - 13. All exhibits were admitted. Pursuant to

Section 456.014(2), Florida Statutes, the Administrative Law

Judge sealed the following exhibits: Joint Exhibits 3 - 5, 8, and

13.

The court reporter filed the transcript on March 31, 2003.

The parties filed their proposed recommended orders on April 10,

2003.

FINDINGS OF FACT

1. Petitioner earned a bachelor of science degree in

mathematics from Baylo r University in 1978 and a doctor of

optometry degree from the University of Houston in 1982. He

subsequently became licensed to practice optometry in West

Virginia and Texas. After practicing for years in West

Virginia, Petitioner practiced for 13 years in Texas before

moving to Florida in June 1999.

2. In July 2002, Petitioner took the clinical examination

portion of the optometry licensure examination. To obtain a

license, a candidate must pass this portion of the examination,

as well as the portions pertaining to pharmacology and ocular

disease and Florida laws and rules. Petitioner has already

passed these other portions, so the clinical examination is what

he must pass to earn a Florida license.

3. The clinical examination is a practical examinat ion in

which a candidate must demonstrate specific procedures.

Respondent selects the procedures to be demonstrated on the

basis of their importance to the practice of optometry.

4. Respondent scores the clinical examination by averaging

the scores of tw o examiners, who score the candidate's work

independent of each other. The clinical examination is divided

into two sections, and a different pair of examiners score each

section.

5. An examiner must be a Florida - licensed optometrist for

at least three years prior to the examination. The examiner may

not be under investigation or have been found to have violated

Chapter 456 or 463, Florida Statutes. Prior to performing their

duties, examiners must attend a standardization program, at

which they are tr ained in identifying the skills to be examined

and the standards to be applied. All of the examiners for a

specific examination date attend the same standardization

program, at which Respondent's coordinators present several

hundred slides showing correct and incorrect procedures and

answer any questions that examiners may have.

6. In general, Petitioner challenges the work of one of

Respondent's staff in rescoring his examination and calculating

his score as 74.10. Although still not a passing grade, 74 .10

is one point closer to passing than was his originally reported

score of 73.10. However, this staffperson rechecked her work

and later confirmed that 73.10 was the correct score.

7. At the hearing, Petitioner specifically challenged

Questions 33(b), 33(c), 35(b), 37(a), and 38(b). These

questions are all from the same section of the examination, so

the same two examiners scored each of them.

8. In Questions 33(b) and (c), the candidate must perform

tonometry on a nondilated eye and demonstrate the proper mires

width and correct mire alignment, respectively. For Question

33(b), Examiner 143 gave Petitioner no credit, noting that the

mires width was "too thin," and Examiner 242 gave Petitioner no

credit, noting that the mires width was "too thin" and there was

"not enough flourescein." For Question 33(c), Examiner 143 gave

Petitioner no credit, noting that the mires were "no [sic]

aligned," and Examiner 242 gave Petitioner no credit, noting

that the "mires [were] off."

9. Petitioner has failed to pr ove error in either score.

For Question 33(b), both examiners found the same condition.

The candidate, not the examiner, as Petitioner claimed, is

responsible for adding flourescein. Insufficient flourescein

would leave the mires too thin. Examiner 242 's additional note

explains the source of Petitioner's error in Question 33(b).

Petitioner's argument that he could still obtain a proper

ultimate reading despite insufficient flourescein and thin mires

lines misses the point of the question, which is to determine if

candidates can take the conventional steps toward the ultimate

objective of estimating intraocular pressure.

10. For Question 33(c), both examiners drew similar

pictures showing that Petitioner's mires lines were misaligned.

Petitioner pro duced no evidence to the contrary. His argument

that he could not have answered Question 34 correctly without

solving Question 33(c) misses the point of Question 34, which is

merely to determine if a candidate can accurately read a dial.

11. For Question 35(b), the candidate must demonstrate

proper illumination of an inferior angle of the eye. Examiner

242 gave Petitioner credit, but Examiner 143 gave Petitioner no

credit, noting "poor lighting." It is entirely possible that

Examiner 242, who was first to examine the demonstrated angle,

found adequate lighting, but, due perhaps to patient movement

with no readjustment, Examiner 143 found inadequate lighting.

In this procedure, only one examiner can check the angle at a

time.

12. For Question 37(a), the candidate must determine the

presence of iris processes by showing the correct response and

clear focus. Examiner 242 gave Petitioner credit, noting that

Petitioner "repositioned [patient] and got focus of angle and

answered correctly," but Examiner 143 gave Petitioner no credit,

noting "no view or focus." As noted by Examiner 242, Petitioner

had to reposition the patient and did so to earn credit for this

item. Evidently, Petitioner failed to do so for Examiner 143.

13. For Question 38(b), the candida te must demonstrate the

specified angle of the eye with proper illumination. Examiner

242 gave Petitioner credit, but Examiner 143 gave Petitioner no

credit, noting "no view of angle." Again, the most likely

reason for the loss of a view was patient move ment without an

accompanying readjustment of the focus.

14. Petitioner has failed to prove that he is entitled to

any additional points for the clinical examination portion of

the optometry licensing examination that he took in July 2002.

CONCLUSIONS OF L AW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

16. As an applicant, Petitioner has the burden of proving

the material allegations. Department of Transportation v. J. W.

C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Petitioner must show that the scoring was arbitrary and

capricious. Espinoza v. Depa rtment of Business and Professional

Regulation , 739 So. 2d 1250 (Fla. 3d DCA 1999).

17. Petitioner has not shown that the scoring process or

the scoring itself was arbitrary or capricious. Rule

64B - 1.006(2) provides that two examiners shall independentl y

score practical or clinical examinations and their scores shall

be averaged. Respondent has followed this procedure, which

obviously contemplates the possibility of some discrepancy

between scorers. Further, logical explanations exist regarding

apparen t discrepancies, and, for these questions, the more

likely source of error was Petitioner, not his examiners.

RECOMMENDATION

It is

RECOMMENDED that the Board of Optometry enter a final order

dismissing Petitioner's challenge to the clinical examination

p ortion of the July 2002 optometry licensure examination.

DONE AND ENTERED this 23rd day of April, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3 2399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Di vision of Administrative Hearings

this 23rd day of April, 2003.

COPIES FURNISHED:

Joe Baker, Jr., Executive Director

Board of Optometry

Department of Health

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 1701

Will iam W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

A. S. Weekley, Jr.

Holland & Knight LLP

Post Office Box 1288

Tampa, Florida 33602

Cassandra Pasley

Senior Attorney

Office of the General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

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 except ions

to this recommended order must be filed with the agency that

will issue the final order in this case.