03-003955 Glen T. Casto vs. Department Of Health Status: Closed Recommended Order on Friday, February 27, 2004.

Summary: Petitioner proved that scorer assigning him a zero for a Patient Amalgam Preparation detected caries visually, not tactilely, in violation of the Board`s requirements, and the score was inaccurate and arbitrary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLEN T. CASTO, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3955

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Admi nistrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in West

Palm Beach, Florida, on January 28 - 29, 2004.

APPEARANCES

For Petitioner: James Randolph Quick

Driftwood Plaza

2151 South U.S. Highway One

Jupiter, Florida 33477

For Respondent: Cassandra Pasley

Senior Attorney

Department of Health

Office of the General Counsel

4052 Bald Cypress Way, B in A02

Tallahassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

The issue is whether the score that Respondent assigned to

the Patient Amalgam Preparation section of the clinical part of

Petitioner's June 2003 Florida Dental License Examination was

arbitrary or capricious.

PRELIMINARY STATEMENT

By Petition for Administrative Hearing Involving Disputed

Issues of Material Fact dated September 10, 2003, Petitioner

challenged the grade that he received o n the Patient Amalgam

Preparation section of the clinical part of the June 2003

Florida Dental License Examination. The letter challenges the

Patient Amalgam Preparation score of one of the three examiners,

who assigned Petitioner a low score because she determined that

Petitioner completed the preparation of the tooth without

removing all of the caries.

Prior to the hearing, the petitioner in DOAH Case No.

03 - 3998 sought the consolidation of his case with three other

cases, including the above - styled case. All four cases involved

dental examination challenges. Respondent opposed consolidation

on the ground that consolidation would unnecessarily breach the

confidentiality of the examination materials. The

Administrative Law Judge denied the motion to consolidate the

cases.

By the time of the hearing, two of the three other

examination challenges had been dismissed. The parties were

prepared to try to conduct the hearing of the remaining case,

DOAH Case No. 03 - 3998, separately from the hearing in thi s case.

However, to eliminate possible confusion, to reduce the

inconvenience to witnesses testifying in both cases, and to

avoid the risk of an incomplete record, the Administrative Law

Judge ordered that the entire transcript of the testimony of the

wit nesses would form part of the record in both cases, but the

parties would introduce exhibits for each case separately, and

each petitioner would be present only during testimony

applicable to his case.

At the hearing, Petitioner called nine witnesses an d

offered into evidence one exhibit: Petitioner Exhibit 3.

Respondent called five witnesses and offered into evidence ten

exhibits: Respondent Exhibits 1 - 10. All exhibits were

admitted. The Administrative Law Judge sealed Respondent

Exhibits 4 - 8.

The court reporter filed the transcript on February 16,

2004. The parties filed their proposed recommended orders on

February 26, 2004.

FINDINGS OF FACT

1. Petitioner took the June 2003 Florida Dental License

Examination. A passing score for the clinical part of the

examination is 3.0. Petitioner received a score of 2.9, so he

failed the clinical part of the examination.

2. Petitioner has challenged the grade of 2.0 that he

received on the Patient Amalgam Preparation of the clinical part

of the examin ation. The score of 2.0 is derived from averaging

the 3s that Petitioner received from two evaluators and the 0

that he received from one evaluator. Petitioner challenges only

the score of 0, and he needs two additional points to pass the

clinical part o f the examination.

3. The administration of the clinical part of the dental

examination requires Respondent to recruit and train numerous

examiners and monitors, all of whom are experienced, licensed

dentists. The training process includes standardizati on

exercises designed to ensure that all examiners are applying the

same scoring criteria. The evaluation of specific procedures

are double - blind, with scoring sheets that identify candidates

by test numbers, so examiners do not know the identity of the

c andidate whose procedures they are scoring.

4. The section that is the subject of this case requires

the candidate to demonstrate certain skills on a live patient.

While working with the patient, the candidate is supervised by a

monitor. When the cand idate has completed the required dental

work to his satisfaction, he so advises the monitor, who sends

the patient to the dental examiners.

5. For the section that is the subject of this case, three

dental examiners examine the patient and score the proc edure.

These examiners do not communicate with each other, and each

performs his or her examinations and scores the procedure in

isolation from the other examiners. Communications between

examiners and candidates are exclusively through monitor notes.

6 . For the section that is the subject of this case, the

maximum possible score that a candidate may receive is a 5.

Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or

2. A score of 3 indicates minimal competence.

7. The Patient Amalgam P reparation section of the clinical

part of the examination required Petitioner to remove caries

from one tooth and prepare the tooth for restoration. These

procedures are of obvious importance to dental health. Poor

preparation of the tooth surface will probably result in the

premature failure of the restoration. A restoration following

incomplete removal of caries will probably result in ongoing

disease, possibly resulting in the loss of the tooth.

8. Written materials, as well as Respondent's rules, which

are discussed below, require a 0 if caries remain, after the

candidate has presented the patient as ready for restoration.

Other criteria apply to the Patient Amalgam Preparation

procedure, but this criterion is the only one of importance in

this ca se.

9. Examiners 207 and 394 each assigned Petitioner a 3 for

this procedure, but Examiner 417 assigned him a 0. Examiners

207 and 394 noted some problems with the preparation of the

tooth, but neither detected any caries. Examiner 417 detected

caries and documented her finding, as required to do when

scoring a 0.

10. Examiner 207 has served as an examiner for 10 years

and has conducted 15 - 20 evaluation examinations during this

time. Examiner 417 graduated from dental school in 1979.

Examiner 394 ha s been licensed in Florida since 1995 and has

served as an examiner only three years.

11. The instructions to examiners emphasize that they are

to detect caries "exclusively" tactilely, not visually. Tactile

detection of the stickiness characteristic of caries is more

reliable than visual detection. For example, caries assumes the

color of dentin as the decay approaches the dentin.

12. Despite the requirement to detect caries by touch, not

sight, Examiner 417 initially testified that she detected the

caries by sight. Later in her testimony, she backtracked and

stated that she was not sure if she felt it or saw it. Her

earlier, more definitive testimony is credited; Examiner 417

never found caries by touch, only by sight.

13. In DOAH Case No. 03 - 399 8, Examiner 417 readily

conceded that she must have missed the caries that another

examiner had detected, inspiring little confidence in her

caries - detection ability. In that case, her value as one of two

dentists in the majority was insignificant, even t hough the

majority finding prevailed. In this case, Examiner 417's role

as the lone dentist who found caries is too great an evidentiary

burden for her to bear. The vagueness of her testimony and her

reliance upon visual caries - detection preclude a findi ng of

caries in this patient.

14. Three other additional factors undermine Examiner

417's finding of caries. First, Examiners 207 and 394 found no

caries. Examiner 207 has considerable experience. Examiner 394

has less experience, but he was the lone evaluator in DOAH Case

No. 03 - 3998 to detect calculus deep below the gums, proving that

he is both meticulous and a demanding grader. Together, then,

the findings of Examiners 207 and 394 of no caries carry much

greater weight than the contrary finding of Examiner 417. Nor

was it likely that Examiner 417 accidentally dislodged the

caries. No evidence suggest that she was the first examiner to

examine the patient, and her means of detecting caries was

visual, not tactile.

15. Second, the location of the caries in this case was

directly in the center of the tooth. So located, it was

difficult for Petitioner and Examiners 207 and 394 to miss.

Third, by two monitors' notes, Petitioner twice obtained the

evaluators' permission to expand the drilled area, d ue to the

extensiveness of the caries, suggesting that Petitioner was

devoting careful attention to the removal of all caries, even if

it meant an atypical site preparation.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdicti on over the subject matter. §§ 120.569 and 120.57(1),

Florida Statutes (2003).

17. Section 466.066(4)(b)1, Florida Statutes, authorizes

the Board of Dentistry to administer a clinical examination to

candidates for dental licensure.

18. Florida Adminis trative Code Rule 64B5 - 2.013(1)

provides:

The grading system used during the clinical

(or practical) examination for dentistry is

as follows:

0 . Complete failure

1 . Unacceptable dental procedure

2 . Below minimal acceptable dental

procedure

3 . Minimal a cceptable dental procedure

4 . Better than minimally acceptable dental

procedure

5 . Outstanding dental procedure

19. Florida Administrative Code Rule 64B5 - 2.013(2)(c)

requires an overall average of 3 to pass the clinical part of

the dental examinatio n.

20. Florida Administrative Code Rule 64B5 - 2.013(4)(a)1

describes the Patient Amalgam Preparation section of the

clinical part of the dental examination as follows:

The grading of the clinical portion of the

dental examination shall be based on the

fol lowing criteria:

(a) Class II amalgam on a patient:

1. Preparation:

a. Outline form . all prepared

surfaces smooth and acceptable extensions

without weakening tooth surfaces.

b. Depth . adequate shape and form

designed to res ist functional displacement

forces.

c. Retention.

d. Mutilation of opposing or

adjacent teeth.

e. Debris removal from cavity

preparation.

f. Management of soft tissue is

considered adequate in the absence of trauma

o r mutilation.

It is the intent of the Board that each of

the criteria are to be accorded equal

importance in grading. Equal importance

does not mean that each criteria has a

numerical or point value but means that any

one of the criteria, if missed to a severe

enough degree so as to render the completed

procedure potentially useless or harmful to

the patient in the judgment of the examiner,

could result in a failing grade on the

procedure. The criteria do not have

assigned numerical or point value but ar e to

be utilized in making a holistic evaluation

of the procedure. However, a grade of zero

(0) is mandatory if caries remain; if gross

overcutting occurs; if mechanical

exposure occurs; if the preparation is

prepared or attempted to be prepared on the

wr ong tooth or wrong surface; or if the

candidate fails to attempt or complete the

procedure.

21. As the applicant, Petitioner has the burden of proving

that the scoring of his test was arbitrary or capricious.

Espinoza v. Department of Business and Profe ssional Regulation ,

759 So. 2d 1250 (Fla. 3d DCA 1999).

22. A key factor in determining whether the scoring of an

examination has been arbitrary or capricious is whether the

evaluator deviated from the grading procedures adopted by the

sponsor of the examination. See Harac v. Department of

Professional Regulation , 484 So. 2d 1333 (Fla. 3d DCA 1986);

Topp v. Board of Electrical Examiners for Jacksonville Beach ,

101 So. 2d 583 (Fla. 1st DCA 1958) (dictum).

23. In this case, the lone examiner to issue a 0 deviated

from the scoring procedure when she detected caries by sight,

not touch. Examiner 417's score was wrong, and, as a departure

from Respondent's approved evaluation methodology, it was

arbitrary. For the reasons set forth in the Findings of Fa ct,

the correct grade was not 0, but 3, as the two other examiners

scored this procedure. Under the circumstances, Examiner 417's

score of 0 was arbitrary and should be rescored a 3 or, in the

alternative, discarded, so that Petitioner earns 3 points for

the Patient Amalgam Preparation procedure based on the average

of the two scores that are not arbitrary.

RECOMMENDATION

It is

RECOMMENDED that the Department of Health enter a final

order granting Petitioner an additional two points on the

clinical part o f the June 2003 Florida Dental License

Examination and determining that he has passed this part of the

dental examination.

DONE AND ENTERED this 27th day of February, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

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.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of February, 2004.

COPIES FURNISHED:

R. S. Power, Agency Clerk

Department of Healt h

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, B IN A02

Tallahassee, Florida 32399 - 1701

William H. Buckhalt, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 1701

James Randolph Quick

Driftwood Plaza

2151 South U.S. Highway One

Jupiter, Florida 33477

Cassandra Pasley

Senior Attorney

Department of Health

Office of the General Counsel

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 exceptions

to this recommended order mus t be filed with the agency that

will issue the final order in this case.