97-002518 Arthur A. Gage vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, January 7, 1998.

Summary: Petitioner failed to show that grade on the dentistry examination was incorrect.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR GAGE, )

)

Petitioner, )

)

vs. ) Case No. 97-2518

)

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

by video teleconference on October 31, 1997, at West Palm Beach,

Florida, before Susan B. Kirkland, a duly designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Arthur A. Gage, pro se

12688 Tucano Circle

Boca Raton, Florida 33428

For Respondent: Janine B. Myrick

Senior Attorney

Florida Department of Health

1317 Winewood Boulevard

Building 6, Room 102

Tallahassee, Florida 32399-0700

STATEMENT OF THE ISSUE

Whether Petitioner should receive a passing grade on the

clinical portion of the dentistry examination administered in

December 1996.

PRELIMINARY STATEMENT

On March 19, 1997, Petitioner, Arthur A. Gage (Gage) filed a

the Petition for Formal Hearing challenging the grading of his

challenge to the dentistry examination administered in December

1996. On May 23, 1997, the Division of Administrative Hearings

received the case for assignment to an administrative law judge.

The final hearing was scheduled for September 11, 1997. The

Board of Dentistry was transferred from the Agency for Health

Care Administration to the Department of Health by Section 20.43,

Florida Statutes. The caption in this case has been changed to

reflect this transfer. On August 27, 1997, Respondent filed a

Motion to Dismiss for Lack of Jurisdiction or, in the

Alternative, to Relinquish Jurisdiction to the Board of Dentistry

for Purposes of Conducting an Informal Hearing and Motion to

Dismiss. The motions to dismiss and relinquish jurisdiction were

denied. The motion for a continuance was granted, and the final

hearing was rescheduled for October 31, 1997.

At the final hearing, Gage testified on his own behalf.

Petitioner's Exhibit 1 was admitted in evidence at the final

hearing. Gage was granted leave to file exhibits after the close

of the hearing, and Respondent, Department of Health, Board of

Dentistry, was afforded an opportunity to file objections to the

exhibits. In its proposed recommended order, Respondent objected

to the admission of the late-filed exhibits. Respondent's

objections were overruled, and Petitioner's Exhibits 2-6 were

admitted in evidence. Respondent called Marsha Carnes and

Thomas E. Shields, III, DDS, as its witnesses. Respondent's

Exhibit 1 was admitted in evidence.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the transcript. The transcript

was filed on November 10, 1997. On November 19, 1997, Respondent

filed a Motion for Extension of Time to File Proposed Recommended

Order. The motion was granted, and the time for filing proposed

recommended orders was extended to December 3, 1997. The parties

timely filed their proposed recommended orders, which have been

considered by the undersigned Administrative Law Judge in

entering this Recommended Order.

FINDINGS OF FACT

1. In June 1996, Petitioner, Arthur A. Gage (Gage), took

the dentistry examination for licensure as a dentist in Florida.

He was unsuccessful on the clinical part.

2. In December 1996, Gage retook the clinical portion of

the examination. He was notified by an examination grade report,

mailed on January 13, 1997, that he had again failed the clinical

portion of the examination. He achieved a general average score

of 2.75. A final grade of 3 or better as a general average on

the clinical portion is a passing score.

3. Gage complains that there was inconsistency among the

examiners in grading the examination. In particular, he submits

that if you average the grades by each examiner on the mannequin

portion of the examination that the averages are 3.25, 3.08, and

1.08. Gage averaged all the grades for each examiner and did not

average by procedure. Consequently, Gage's approach did not

produce a statistically meaningful result.

4. Marsha Carnes, a psychometrician with the Department of

Business and Professional Regulation (DBPR), testified for the

Respondent. A psychometrician is an expert in testing and

measurement. Ms. Carnes' responsibility is to ensure the

validity and reliability of the examinations, including the

dentistry examination. Ms. Carnes outlined the procedure used

for selecting the examiners and the grading of the dentistry

examinations.

5. The examiners are selected by the Florida Board of

Dentistry (Board) and must have five years of experience as a

licensed, active dentist in Florida. The examiner must be

recommended by a current examiner or member of the Board.

Examiners must submit an application and have no complaints

against their dentistry license.

6. After the examiners are selected, they are trained by

DBPR. Approximately one month prior to the dentistry

examination, the examiners are sent the details of the

examination, the clinic monitor, and an examiner instruction

package. The examiner package outlines the grading criteria, the

procedures for the examination, and the necessary paper work.

7. The day before the examination, the examiners go through

a standardization process conducted by the psychometrician and

three assistant examiner supervisors from DBPR. The process

takes approximately eight hours.

8. There are nine clinical procedures in the dentistry

examination. Three of the procedures are performed on a patient,

five on a mannequin, and one is written. As part of the

standardization process, the assistant examiner supervisors

outline the criteria for each procedure that is on the

examination and explain what is and is not minimally acceptable.

The examiners are shown slides, and the supervisors explain what

grade should be awarded for each procedure shown on the slides.

9. The examiners are given a post standardization

examination to make sure that they have internalized the criteria

explained during the standardization process. The examination

consists of the examiners actually grading models created by

applicants in past examinations. Twenty-five different

procedures are graded, and DBPR staff evaluate the grading of the

examiners to ensure that they are grading consistently.

10. Scores of zero through five are possible on each

examination procedure. Five is considered to be an outstanding

dental procedure. Four is better than minimally acceptable.

Three is minimally acceptable. Two is below minimally

acceptable. One is unacceptable, and zero is a complete failure.

Rule 64B5-2.013, Florida Administrative Code.

11. Three examiners independently grade each procedure.

The dentistry examination is double-blind graded. The applicant

has no contact with the examiners, and the examiners do not

consult one another. This procedure was followed for the

dentistry examination taken by Gage.

12. The overall percentage score is determined by averaging

and weighting the grades of the three examiners for each

procedure. Statistically, averaging three grades is more

accurate than using one grade alone.

13. Gage complains about the inconsistency of the grading

of the procedures on the mannequin. The examiners were

identified by number as 080, 320, and 321. These examiners

successfully completed the standardization process.

14. Gage complains that Examiner 321 gave

disproportionately low grades for the procedures performed on the

mannequin. It is, however, more common for an examiner to give

an inappropriately high grade than an inappropriately low grade.

The higher grade can be a result of an examiner missing

something, but the low grade must be justified in documentation

and then actually verified on the mannequin.

15. The three examiners for the mannequin procedures, when

examined in the examiner's performance report, all had

statistically acceptable measures of consistency and reliability.

16. Gage complained that the patient on whom he performed

the patient procedures had to make several trips to the restroom

during the examination and that he did not have time to properly

perform all the procedures. During the examination, Gage did not

submit monitor to examiner notes, indicating there were any

problems encountered during the examination or anything that he

wanted the examiners to take into consideration in the grading.

17. Prior to the perio and amalgam sections of the

examination, the applicants are read a script that gives

instructions as to what is to be done and how much time is

allotted. The script provides that the applicants need to plan

their usage of time in order to finish the procedures within the

allotted four hours. Near the end of the examination, the

applicants are advised of the time remaining until the end of the

examination.

18. Time management is important in the practice of

dentistry because patients do not like to be kept waiting and

because certain dental procedures must be executed within certain

time frames. Applicants are advised before the examination how

much time is allotted. Applicants are responsible for obtaining

a patient for the examination.

19. Gage received grades of four, four, and one on the

class four composite filling portion of the examination.

Examiner 321 gave the grade of one and documented that there was

a margin open on the incisal. Dr. Thomas Shields III, who was

qualified as an expert witness for the Respondent, reviewed the

procedure and found that there was a definite click or catch on

the incisal margin of the tooth, which was consistent with the

grade of one.

20. On the endo portion of the examination, Gage received

grades of two, three, and zero. Dr. Shields reviewed the X-rays

of the procedure, which showed that the final fill on the root

canal had voids and was unacceptable and one of the tooth canals

was not completely filled.

21. On the prosthetic written portion of the examination,

Gage scored 70 percent. In order to pass that portion of the

examination, the applicant must achieve at least 75 percent,

which equates to a 3.75 on a scale of zero to five. Rule 64B5-

2.013(2)(c), Florida Administrative Code. Gage complained that

some of the pictures in the booklet were not very good and it was

difficult to see which teeth were touching. He went to

Tallahassee and reviewed the written portion of the test and made

some comments concerning the test. Gage did not present his

comments at the final hearing.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

23. Respondent is authorized to administer licensure

examinations for dentists. Section 466.006, Florida Statutes.

Further, the Board of Dentistry has promulgated Chapter 64B5-2,

Florida Administrative Code, which outlines various aspects of

the dentistry examination process.

24. Since Gage seeks licensure from Respondent and has

alleged that the grading of his dentistry examination was flawed,

Gage has the burden of establishing by a preponderance of the

evidence that he should be given a passing grade. See generally

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349 (Fla. 1st DCA 1977).

25. Gage did not establish by a preponderance of the

evidence that the dentistry examination was not conducted in

accordance with the applicable laws and regulations.

26. Gage alleged but did not show how the scores that he

received were incorrect or what score he should have received by

particular examiners. Gage's solution of throwing out the low

scores is not in compliance with Rule 64B5-2.017, Florida

Administrative Code, which requires that the three grades for

each procedure shall be averaged to determine the applicant's

final grade on each procedure.

27. The evidence did establish that Gage should not receive

a passing score for the clinical portion of the dentistry

examination which he took in December.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding that

Arthur A. Gage failed to achieve a passing score for the clinical

portion of the dentistry examination administered December 1996.

DONE AND ENTERED this 7th day of January, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of January, 1998.

COPIES FURNISHED:

William Buckhalt, Executive Director

Board of Dentistry

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

Janine B. Myrick, Esquire

Department of Health

1317 Winewood Boulevard

Building 6, Room 102

Tallahassee, Florida 32399-0700

Arthur A. Gage, pro se

12688 Tucano Circle

Boca Raton, Florida 33428

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.