03-003998 Scott D. Lawson vs. Department Of Health Status: Closed Recommended Order on Friday, February 27, 2004.

Summary: Petitioner failed to prove that one scorer assigning him a zero for a Periodontal procedure or one scorer assigning him a zero for a Patient Amalgam Preparation procedure was incorrect, arbitrary, or capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT D. LAWSON, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3998

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Ad ministrative 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, Bin A02

Tallahassee, Florida 32399 - 4005

STATEMENT OF THE ISSUE

The issue is whether the score that Respondent assigned to

the Patient Amalgam Preparation and Periodontal sections of the

clinical p art of Petitioner's June 2003 Florida Dental License

Examination taken was arbitrary or capricious.

PRELIMINARY STATEMENT

By letter dated August 30, 2003, Petitioner challenged the

grades that he received on the Patient Amalgam Preparation and

Periodontal sections 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 he determined that

Petitioner comple ted the preparation of the tooth without

removing all of the caries. The letter challenges the

Periodontal score of one of the three examiners, who assigned

Petitioner a low score because he determined that Petitioner had

left heavy calculus on four teeth . The letter challenges the

scoring of a third procedure, but Petitioner dropped the

challenge to this procedure prior to the hearing.

Prior to the hearing, Petitioner sought the consolidation

of this case with three other cases, also involving dental

ex amination 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 - 3955, separately from the hearing in this 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

witnesses 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 and

offered into evidence nine exhibits: Petitioner Exhibits 1 - 9.

Respondent called five witnesses and offered into evidence 13

exhibits: Respondent Exhibits 1 - 13. All exhibits were admitted

except Petitioner Exhibits 6 and 9, which were proffered. The

Administrative Law Judge sealed Petition er Exhibits 4 - 5 and

Respondent Exhibits 4 - 9.

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 Licens e

Examination. A passing score for the clinical part of the

examination is 3.0. Petitioner received a score of 2.94, so he

failed the clinical part of the examination.

2. Petitioner has challenged the grades of 2.0 that he

received on the Patient Ama lgam Preparation and Periodontal

sections of the clinical part of the examination. In both

sections, 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. For both pr ocedures, Petitioner

challenges only the scores of 0, and he needs two additional

points to pass the clinical part of 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 standardization

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

candidate whose procedures they are scoring.

4. The two sections that are the subject of this case

require the candidate to demonstrate ce rtain skills on a live

patient. While working with the patient, the candidate is

supervised by a monitor. When the candidate has completed the

required dental work to his satisfaction, he so advises the

monitor, who sends the patient to the dental examin ers.

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

three dental examiners examine the patient and score the

procedure. These examiners do not communicate with each other,

and each performs his or her examinations and scores the

procedure in isol ation from the other examiners. Communication

between examiners and candidates is exclusively through monitor

notes.

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

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

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

2. A score of 3 indicates minimal competence.

7. The Periodontal section of the clinical part of the

dental examination required Petitioner to debride five teeth.

Removing calculus from teeth, especially below the gums, is an

important procedure because the build - up of tartar and plaque

may cause pockets to form between the tooth and gum.

Eventually, the gum tissue may deteriorate, ultimately resulting

in the loss of the tooth. Prior to the examination, written

materials explain to the candidates and examiners that the

debridement is to remove all supragingival and subgingival

foreign deposits.

8. For the Periodontal procedure, Examiners 207 and 296

each gave Petitioner a 3, and Examiner 394 gave him a 0. The

scoring sheets provide a space for preprinted notes relevant to

the procedure. All three examiners noted root roughness.

However, Examiner 394 detected "heavy" subgingival calculus on

four teeth and documented his findings, as required to do when

scoring a 0.

9. Petitioner contends that two examiners and he correctly

detected no calculus, and Examiner 394 incorrectly detected

calculus. As an explanation, Petitioner showed that Examiner

394 knows Petitioner in an employment setting, and their

re lationship may have been tense at times. However, Petitioner

never proved that Examiner 394 associated Petitioner's candidate

number with Petitioner. Thus, personal bias does not explain

Examiner 394's score.

10. On the other hand, Examiners 296 and 20 7 are extremely

experienced dental examiners. Examiner 296 has served nine

years in this capacity, and Examiner 207 has served ten years,

conducting 15 - 20 dental examinations during this period of time.

By contrast, Examiner 394 has been licensed in Flor ida only

since 1995 and has been serving as a dental examiner for only

three years.

11. However, the most likely explanation for this scoring

discrepancy is that Examiner 394 explored more deeply the

subgingival area than did Examiners 207 and 296 or Pet itioner.

Examiner 394 testified with certainty that he found the calculus

at 5 - 6 mm beneath the gums. This is likely deeper than the

others penetrated, but not unreasonably deep.

12. For the Periodontal procedure, an examiner who found

calculus on four teeth would be entitled to award the candidate

0 points. Examiners may deduct two points per tooth that has

been incompletely cleaned, although the lowest score is 0.

Examiner 394's score of 0 is therefore legitimate and at least

as reliable as the othe r scores of 3.

13. The Amalgam Preparation 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 pr eparation 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.

14. Written mater ials, 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 Amalgam Preparation

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

this case.

15. Examiners 207 and 417 each assigned Petitioner a 3 for

this procedure, but Examiner 420 assigned him a 0. Examiners

207 and 417 noted some problems with the preparation of the

tooth, but neither detected any caries. Examiner 420 detected

caries and documented his finding, as required to do when

scoring a 0.

16. As noted above, Examiner 207 is a highly experienced

evaluator, but the other two evaluators are experienced

dentists. Examiner 417 graduated from dental s chool in 1979,

and Examiner 420 has been licensed in Florida since 1981.

17. The instructions to examiners emphasize that they are

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

detection of the stickiness characteristic of caries is mo re

reliable than visual detection. For example, caries assumes the

color of dentin as the decay approaches the dentin.

18. Examiner 420 testified definitively that he detected

caries tactilely, not visually, in Petitioner's patient. This

testimony is c redited.

19. It is difficult to reconcile Examiner 420's finding of

caries with the contrary finding by the highly experienced

Examiner 207. It does not seem especially likely that an

experienced dentist would miss decay, especially in the

artificial setting of a dental examination, in which everyone's

attention is focused on one tooth.

20. Examiner 207's finding of no caries is corroborated by

the same finding of Examiner 417. However, Examiner 417's

finding is given little weight. She readily s uggested that she

must have missed the caries. What at first appeared to be no

more than a gracious gesture by a witness willing to aid

Respondent's case took on different meaning when Examiner 417

testified, in DOAH Case No. 03 - 3955, first that she had d etected

visually and then retreated to testifying that she did not know

if she had detected caries visually or tactilely -- a significant

concession because examiners were instructed explicitly not to

rely on visual findings of caries.

21. Returning, the n, to the conflict between the findings

of Examiner 420 and Examiner 207, substantially unaided by the

corroborating findings of Examiner 417, either an experienced,

credible dentist has found caries where none exists, or an

experienced credible dentist ha s missed caries. The specificity

of Examiner 420's testimony makes it more likely, as logic would

suggest, that he did not imagine the existence of caries, and

Examiner 207 somehow missed the caries.

22. It is thus slightly more likely than not that

Pet itioner failed to remove the caries prior to presenting the

patient. More importantly, though, for reasons stated in the

Conclusions of Law, Examiner 420, in finding caries, adhered

strictly to Respondent's rules and policies for evaluating

candidates' wo rk, and his finding was not arbitrary or

capricious.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

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

Florida Statutes (2003).

24. Section 466.066(4)(b)1, Florida Statu tes, authorizes

the Board of Dentistry to administer a clinical examination to

candidates for dental licensure.

25. Florida Administrative Code Rule 64B5 - 2.013(1)

provides:

The grading system used during the clinical

(or practical) examination for dentis try is

as follows:

0 . Complete failure

1 . Unacceptable dental procedure

2 . Below minimal acceptable dental

procedure

3 . Minimal acceptable dental procedure

4 . Better than minimally acceptable dental

procedure

5 . Outstanding dental procedure

26. F lorida Administrative Code Rule 64B5 - 2.013(2)(c)

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

the dental examination.

27. Florida Administrative Code Rule 64B5 - 2.013(4)(b)

describes the Periodontal section of the clinical part of the

den tal examination as follows:

Periodontal exercise on a patient with a

minimum of 5 teeth, none of which shall have

a full crown restoration, all of which

shall have pockets at least 4 mm. in depth

with obvious sub - gingival calculus

detectable by visual or t actile means and

radiographic evidence of osseous

destruction; at least one tooth shall be a

multi - rooted molar which shall be in

proximal contact with at least one other

tooth; none of the 5 teeth shall be primary

teeth. All calculus appearing on

radiogr aphs must be detectable by visual or

tactile means.

1. Definitive debridement (root planing,

deep scale, stain removal):

a. Diagnosis . clinical and

radiographic.

b. Presence of stain on assigned

teeth.

c. Presence of supra - gingiva l

calculus on assigned teeth.

d. Presence of sub - gingival calculus

on assigned teeth.

e. Root roughness on assigned teeth.

f. Management of soft tissue is

considered adequate in the absence of trauma

or 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 rend er 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 any

assigned numerical or point value but are to

be utilized in making a h olistic evaluation

of the procedure. However, a grade of zero

(0) is mandatory if there is gross

mutilation of gingival tissue of if

the candidate fails to attempt or complete

the procedure.

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

descri bes 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

following 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 resist 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

or mutilation.

It is the intent of the Board that each of

the crit eria 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 poten tially 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 are 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

wrong tooth or wrong surface; or if the

candidate fails to attempt o r complete the

procedure.

29. 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 Professional Regulation ,

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

30. 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).

31. Petitioner has failed to prove that the grading of the

Periodontal and Patient Amalgam Preparation sections of the

clinical part of the dental examination was arbitrary or

capricious in any respect. The 0 for the Periodontal procedure

is entirely legitimate and probably the correct grade. The 0

for the Patient Amalgam Preparation is legitimate, although this

is a much closer call. Most importantly, though, Examiner 420

adhered strictly to all evaluation procedures. Under these

circumstances, Petitioner has failed to show that Examiner 420's

score of 0 is in any way arbitrary or capricious.

RECOMMENDATION

It is

RECOMMENDED that the Department of Health enter a final

order dismissing Petitioner's challenge to the scoring of the

clinical part of the June 2003 Florida Dental License

Examination.

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

Tallahasse e, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Admin istrative 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 27th day of February, 20 04.

COPIES FURNISHED:

R. S. Power, 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, B in A02

Tallahassee, Florida 32399 - 1701

William H. Buckhalt, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way, B in C06

Tallahassee, Florida 32399 - 1701

James Randolph Quick

Driftwood Plaza

2151 South U.S. Highway One

Jupiter, Florida 33477

Cassandra Pasley

Se nior Attorney

Department of Health

Office of the General Counsel

4052 Bald Cypress Way, B in 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 must be filed with the agency that

will issue the final order in this case.