STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6718

)

RALPH M. BOYD, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Formal Administrative Hearing was held on October 24 and 25, 1990, in Pensacola, Florida before the Division of Administrative Hearings duly-designated Hearing Officer, Diane Cleavinger.

APPEARANCES

For Petitioner: Robert D. Newell, Jr.

Robin C. Nystrom Newell & Stahl, P.A.

817 North Gadsden Street Tallahassee, Florida 32303-6313

For Respondent: Paul Watson Lambert

2851 Remington Green Circle Tallahassee, Florida 32308-3749

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Respondent's license to practice dentistry should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 466, Florida Statutes.

PRELIMINARY STATEMENT

An Administrative Complaint was filed by Petitioner against Respondent, Dr.

Ralph Boyd, D.D.S. on October 7, 1986. On April 15, 1987, the Complaint was voluntarily dismissed without prejudice since the evidence necessary to prosecute the case was in the custody of the Auditor General's office. The Auditor General's office intended to use this evidence in a criminal action against Respondent for alleged Medicaid fraud and would not voluntarily permit Petitioner to have possession of the evidence. 1/ The criminal action resulted in a hung jury and was eventually dismissed by the prosecuting attorney.

On November 9, 1989, more than three years after the original complaint was filed, Petitioner filed a twenty Count Amended Administrative Complaint against Respondent alleging Respondent had, during the period 1981-1985, violated certain provisions of Chapter 466, Florida Statutes, in his treatment of

eighteen dental patients, and the Respondent's requests for payment from Medicaid for those patients. Specifically, the Administrative Complaint alleged that, for various patients, Respondent violated Subsection 466.028(1)(j), Florida Statutes, by knowingly filing a false report, Subsection 466.028(1)(1), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Subsection 466.028(1)(m), Florida Statutes, by failing to keep proper dental records, Subsection 466.028(1)(n), Florida Statutes, by exploiting patients for financial gain, Subsection 466.028(1)(u), Florida Statutes, by committipg fraud, deceit, or misconduct in the practice of dentistry, Subsection 466.028(1)(y), Florida Statutes, by failing to meet the minimum standards of practice, and Subsection 466.028(1)(bb), Florida Statutes, by repeatedly violating provisions of Chapter 466, Florida Statutes.

At the hearing, Petitioner presented the testimony of Dr. Charles Kekich, an expert in general dentistry, Dr. James McLlwain, an expert in pediatric dentistry, Jim Harrison, and T. H. Petitioner also presented the deposition testimony of James Davison and Wes Greenwald and introduced into evidence 31 exhibits. Respondent testified in his own behalf and presented the testimony of Mary Barron Powell, Dr. Anthony Pelezo, Dr. William Lagergreny, an expert in general dentistry, Dr. Robert Wilson, Dr. Stuart Cigel, an expert in dentistry, and Dr. William Rogers, an expert in dentistry. Respondent also introduced four exhibits into evidence and proffered three additional exhibits. Additionally, Respondent and Petitioner entered into a Prehearing Stipulation. The following facts were stipulated:

1. Petitioner has jurisdiction over Respondent in this matter.

2. Ralph M. Boyd, D.D.S., is the Respondent.

3. The patient records for the patients referenced in the Amended Administrative Complaint, the relevant claim forms and the dental remittance vouchers are true copies of the originals.

4. At the time relevant to the allegations in the Amended Administrative Complaint, Respondent was an authorized Medicaid provider.

5. Respondent was licensed to practice dentistry in the State of Florida at the times relevant to the allegations in the Amended Administrative Complaint.

Both attorneys did an excellent job in presenting the facts of this case. Petitioner and Respondent filed Proposed Recommended Orders on January 28,

1991, and January 25, 1991, respectively. The parties' proposed findings of

fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cummulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed dentist in Florida. He has been so licensed since 1971. Dr. Boyd opened his private practice in 1971. That same year, Dr. Boyd began his employment with the Department of Health and Rehabilitative Services' Escambia County Public Health Unit. Since that time he has maintained his practice in both the private and public sectors, carrying on both pratices at the same time. Respondent is currently the Dental Executive Director of the HRS Escambia County Public Health Unit. During the times relevant to the

   Amended Administrative Complaint, Dr. Boyd earned in excess of $100,000.00 a year.

   
   

2. Dr. Boyd comes from a well-established family in the Pensacola area. The family has many professionals in it. Dr. Boyd has a reputation as a highly ethical, very honest individual. He is also known as a sincere and hard working professional who has a high standing in the community and gives freely of his time to raising the quality of health care to the poor. Given these qualities and Dr. Boyd's income from the practice of dentistry, it does not appear likely that Dr. Boyd would jeopardize his career and life goals for the small amounts of money associated with the allegations contained in the Amended Administrative Complaint.

   
   

3. From 1981-1985, Respondent was a Medicaid provider. Dr. Boyd's patient profile was about 60% white and 40% black. The majority of Dr. Boyd's patients were low income to indigent people. About 60% of his patients were Medicaid patients.

   
   

4. The average Medicaid patient has very gross decay and pain.

   
   

5. The problem is further exacerbated by the fact that the water in the Pensacola area is not fluoridated. The lack of fluoridation, results in a considerably higher rate of decay in children and also increases the incidence of dental work needed in the Medicaid population who already suffer from poor dental hygiene.

   
   

6. Many of Dr. Boyd's patients under age 21 required deep root scaling because of their poor dental hygiene. This type of scaling was more than the normal scaling. It was uncommon to perform curettage on patients under 21 years of age. In general, most of Dr. Boyd's patients needed more dental work completed at one time than patients from higher income families. Often Dr. Boyd would be called upon to work on all of a patients teeth in one quadrant while the patient was anesthetized because he was not sure the patient could be made to come back in for later appointments.

   
   

7. The majority of Dr. Boyd's patients would have an initial examination, X-rays, cleaning and then a treatment plan would be devised to use in follow-up appointments. The treatment plan consisted of an entry on a diagram in the chart, using colored markers and symbols to show where dental work was needed. It was highly unusual for Dr. Boyd to omit recording a treatment plan on a patient, except when he dealt with episodic patients. Dr. Boyd also relied on his oral examination sheets, preauthorization request forms and his notes on the record of treatment sheets as his treatment plans.

   
   

8. Medicaid is a federal program which funnels money to the states for payment of the cost of health care to the needy. In order to obtain the federal money, a State must estab1ish a Medicaid Program which meets federal requirements. Florida has established such a program. It is administered by the Department of Health and Rehabilitative Services.

   
   

9. In essence, the Medicaid program establishes a flat rate of compensation for delivery of various medical services, in this case, dental services, to a Medicaid qualified patient. The rate of compensation is generally a flat fee for a certain type of dental service, or category of treatment, i.e. $8 for amalgams (fillings) involving one tooth surface, $16 for fillings involving two tooth surfaces, scaling and curettage, surgical extractions, etc. The fee has no relationship to the amount of time the doctor

   is actually required to spend with the patient in order to deliver any given dental service. However, in recognition of the fact that some dental patients require more time, Medicaid does allow a charge for troublesome patients when such patients are also under 21 years of age.

   
   

10. There are several management type problems for children through the age of 21. These management problems include teeth gritting, thrashing heads to disable the dentist from injecting anesthesia and physical use of hands to push away instruments or syringes. In Dr. Boyd's case, more than half of his patients had some degree of behavior management problem.

    
    

11. A Medicaid provider bills Medicaid for dental services by a system of billing codes. These codes are based on the American Dental Association's codes for classifying each dental service.

    
    

12. As a general rule, a Medicaid provider is entitled to be paid after dental services are rendered or delivered. One exception to the delivery rule occurs when dentures are being made for the patient. In such a case, the doctor is entitled to be paid before actual delivery of the dentures. The exception is based on the fact that a great deal of reimburseable work is performed by the dentist or dental lab prior to actual delivery of the dentures to the patient. A dentist or dental lab is entitled to compensation for such work, even if the dentures are never delivered.

    
    

13. Occasionally, Medicaid requires that a dentist obtain authorization before a particular dental procedure will be paid by Medicaid. Such pre- authorization was always required for scaling and curettage. When scaling and curettage was called for, a dentist would submit a request for such authorization to Medicaid along with X-rays of the patient's teeth. Medicaid would review the X-rays and approve or disapprove payment for the procedure.

    Pre-authorization relates only to the payment for services and not to when those services are performed by the den-ist. In essence, the dentist assumes the risk of not being paid by Medicaid should the pre-authorization be disapproved. Such approval could take from two to three weeks after submission of the documentation.

    
    

14. Important to the determination of certain violations alleged in the Administrative Complaint is the fact that the relationship between the Department of Health and Rehabilitative Services and the dentist is a matter of contract entered into between the respective parties. Incorporated in the Medicaid contract is information contained in three manuals which when stacked on top of each other measure about an inch and one-half. A portion of this case involves certain "standards of practice" which have their sole legal basis in the interpretation of the contract between a Medicaid provider, such as Respondent, and the Department of Health and Rehabilitative Services' Medicaid Division. None of these "standards" have been adopted by the Board of Dentistry as a rule and the Board is not a party to the Medicaid contract. Moreover, the Board could not adopt such "standards" since Chapter 466, Florida Statutes, in no way grants the Board the authority to interpret the language contained in a contract for service that a licensee may have entered into. Therefore, to the extent that some of the alleged violations in certain of Counts of the Amended Administrative Complaint depend on or have their basis in the interpretation of the Medicaid contract or the breach of that contract, then those alleged violations cannot be sustained.

    
    

15. In 1986, Respondent was the subject of an investigation by the Medicaid Fraud Control Unit of the Auditor General's Office. The investigation

    was conducted by Special Agent Wes Greenwald. The investigation stemmed from a computer printout produced by the Program Integrity Division of the Medicaid Office at HRS. The printout indicated that Respondent requested payment for dental work which when compared to a national average was over that average.

    
    

16. Special Agent Greenwald selected 80 patient records out of the 967 Medicaid patients treated by Dr. Boyd during the period January, 1981, through April, 1985, for which claims were submitted to Medicaid for payment. Only 65 of the records could be located. Mr. Greenwald photocopied and reviewed the 65 patient records which could be found. Of the 65 patient records he reviewed, 18 patient records whose treatment had been for multiple tooth surface restorations were identified for further scrutiny. Of those 18 patients he was able to locate and interview 14 patients.

    
    

17. Dr. Charles Kekich is a licensed dentist in Florida and for seven years was employed as a Dental Consultant by HRS Special Health Services. His duties included assisting the Medicaid Fraud Control Unit in their investigations.

    
    

18. Prior to being employed as a dental consultant, Dr. Kekich was employed as a dentist with the State Board of Health which provided clinical dentistry to children from lower socioeconomic groups. For the past 21 years, Dr. Kekich has acted in an administrative or advisory capacity and has not actively rendered dental services, such as the services involved in this case, to patients. Additionally, Dr. Kekich has never been a Medicaid provider and has never filed a Medicaid form. His expertise in the area of Medicaid practice and the general standards of practice in dentistry is therefore given little weight when compared to the experts called by Respondent in this case. 2/

    
    

19. In his capacity as a dental consultant, Dr. Kekich clinically examined

    14 of the 18 patients identified by Mr. Greenwald. 3/ Dr. Kekich did not have the benefit of examining any of the patients prior to any of the work performed on them by Dr. Boyd.

    
    

20. Dr. Kekich used a specialized flashlight which looked like a penlight and a tongue depressor in conducting his examinations. Dr. Kekich examined the patients in the school lunch room and the principal's office at the school the patient attended, at the patients' homes and in the county jail. Smaller patients were asked to lie down on a table or sofa. He did not clean the teeth prior to the examination or attempt to pick the teeth to remove any small debris from the teeth which may be hiding the edges of a filling. He did not use any mirrors. Such an examination's results are at best tenuous since Dr. Kekich's failure to utilize good standard clinical equipment and procedures can easily create a situation where teeth cannot be c1ear1y seen.

    
    

21. Dr. Kekich examined each tooth twice. If there was a question as to the extent of the restoration (e.g. how many of the tooth surfaces were restored), Dr. Kekich believed he gave the benefit of the doubt to Respondent.

    
    

22. Respondent asked Dr. William Rogers to conduct a separate independent examination of the patients included in the Amended Administrative Complaint. Dr. Rogers is a licensed dentist employed by the Escambia County Public Health Unit. Dr. Rogers has been with the Health Unit for 15 years and has had a private dental practice for 16 years.

    
    

23. Dr. Rogers clinically examined 11 patients of the 14 patients that Dr. Kekich examined. The patients were examined in Dr. Boyd's dental office.

    During the examination of each patient, Dr. Roger's used a dental chair, dental mirror, dental Explorer and dental light.

    
    

24. Each doctor reported his exam findings on a form developed for such a purpose. Common notations used by each dentist were as follows: (a) the letter "O" was used to signify the occlusal surface of a tooth which is top of the tooth; (b) the letter "M" was used to signify the mesial surface which is the part of the tooth that faces the front; (c) the letter "D" was used to signify the distal surface of the tooth which is the part of the tooth that faces the back; (d) the letter "B" was used to signify the buccal surface which is the side of the tooth facing the cheek; and, (e) the letter "L" was used to signify the lingual surface which is the side of the tooth that faces the tongue. The abbreviation "EX" on Dr. Kekich's exam chart means extracted. The abbreviation "NF" means no filling. Each Doctor also referenced a particular tooth according to a standard numbering system where each tooth is given a number. A diagram showing this numbering system is contained in Appendix II of this Recommended Order. The results of these respective examinations along with Dr. Boyd's results are as follows:

    
    

    PATIENT	TOOTH	BOYD	KEKICH	MCLEOD	ROGERS
    S.C.	28	O	O	no exam	O
    #1	30	OBL	extracted		missing
    	31	OBL	O		OBL
    	29	O	O		O
    M.G.	3	OBL	OL	no exam	O-OL
    #3	2	OBL	O		OL
    	5	O	O		O
    	4	O	O		O
    	12	O	O		O
    	13	O	O		O
    	14	OBL	OL		OL
    	15	OBL	O		OL
    	18	OBL	O		OL
    	2O	O	O		O
    	21	O	O		O
    	28	O	O		O
    	29	O	O		O
    	30	OBL	O		OB
    N.L.	2	OBL	OL	OL	OL
    #6	3	OBL	OL	OL	OL
    	14	OBL	OL	OL	OL
    	15	OBL	OL	OL	OL
    	18	OBL	O	O	O
    	19	OBL	OB	OB	OB
    	28	OL	O	O	O
    	29	OL	O	O	O
    	30	OBL	OB	OB	OB
    	31	OBL	O	O	OB
    J.L.	2	OBL	O/site B	O/site B	no exam
    #7	9	OBL	O/site O	O/site I
    	10	OBL	OL/site J	OL/site J
    	11	OBL	OB/site K	OB/site K

    	12	OBL	OB/site L	OB/site L
    	19	OBL	OB/site S	O/site S
    	20	OBL	OB/site T	OB/site T
    S.M.	2	OBL	OBL	OBL	no	exam
    #8	3	OL	OL	OL
    	14	OL	OL	OL
    	15	OBL	OL	OL
    	18	OBL	O	O
    	19	OBL	O	O
    	20	OBL	OBL	O
    	21	MOL	OL	O
    	28	MOL	MO	OL
    	29	OBL	O	O
    	30	OBL	OB	OL
    	31	OBL	OB	OL
    M.M.	2	OBL	O	OL		O
    #9	3	OBL	OL	OL		OL
    	4	O	O	O		O
    	5	O	O	O		O
    	1O	OBL	no rest.	no rest.	no	rest.
    	12	O	O	O		O
    	13	O	O	O		O
    	14	OBL	OL	OL		OBL
    	17	OBL	O	O		O
    	18	OBL	O	O		OB
    	20	OBL	O	O		O
    	21	OBL	O	O		O
    	28	O	O	O		O
    	29	OL	O	O		O
    	30	OBL	OB	OB		OB
    	31	OBL	O	O		OB
    L.A.P.	3	OBL	OL	OL		OBL
    #10	14	OBL	OBL	OL		OBL
    	18	OBL	O	O		OBL
    	19	OBL	OBL	O		OBL
    	20	OBL	DO	OL		OL
    	21	OL	O	O		O
    	28	O	O	O		O
    	29	O	O	O		O
    	30	OBL	OL	OB		OBL
    	31	OBL	O	O		OB
    N.P.	2	OBL	OL	OL	no	exam
    #11	3	OBL	OL	OL
    	4	DOL	DO	DO
    	5	O	O	O
    	12	DOL	missing	missing
    	13	DOL	DO	DO
    	15	OBL	OB	O
    	16	OBL	no rest.	no rest.
    	19	OBL	OB	OB
    	20	O	O	O
    	21	O	O	O
    	28	O	O	O

    	29	O	O	O
    	30	OBL	OB	O-B
    	31	OBL	O	O
    L.P.	3	OBL	OBL	OBL	OBL
    #12	1	OBL	unerupted	missing	missing
    	5	MOL	O	O	O
    	10	OBL	replaced	replaced	replaced
    	12	MOL	O	O	O
    	14	OBL	OL	OL	OL
    	19	OBL	OB	OB	OB
    	30	OBL	OB	OB	OB
    J.S.	2	OBL	OBL	no exam	OL-B
    #14	10	OBL	2D-DO		DOL
    A.S.	2	OBL	O	O	O
    #15	3	OBL	OL	OL	OL
    	4	O	O	O	O
    	5	O	O	O	O
    	12	O	O	O	O
    	13	O	O	O	O
    	14	OBL	OBL	OBL	OBL
    	15	OBL	O	O	O
    	18	OBL	OB	O	O
    	19	OBL	OB	O-B	0-B pit
    	20	OB	O	O	O
    	21	O	O	O	O
    	28	MOL	O	OL	OL
    	29	O	O	O	O
    	30	OBL	OB	O-B	O-B
    	31	OBL	O	O	O
    K.S.	1	OBL	O	O	O
    #16	2	OBL	OBL	O-L	OB-OL
    	3	B	OBL	O-OL-B	B-OB-OL
    	4	OBL	fil. mis.	fil. mis.	fil. mis.
    	14	B/OBL	OBL	O-B-OL	B-OB-OL
    	16	OBL	O	O	O
    	17	OBL	OB	OB	OB
    	18	OBL	OBL	OBL	OBL
    	19	OBL	OBL	OL-B	OL-B
    	20	B	O	O	O
    	21	MOL	OL	OL	MOL
    	28	MOL	OL	O-O	O-OL
    	30	OBL	OB	OB	OB
    	31	OBL	OBL	OBL	OBL
    	32	OBL	OB	OB	OB
    M.W.	18	OBL	O	O	O
    #17	19	OBL	MOB	MO-B	MO-B
    	20	OBL	O	O	O
    	21	O	O	O	O
    	28	MOL	O	O-O	O-O
    	29	OL	O	O	O
    	30	OBL	MOB	MO-B	MO-B

    	31	OBL	O	O	O
    K.W.	2	OBL	OL	OL	OBL
    #18	3	OBL/M	BOL/M	OL	OBL-Mpit
    	5	OBL	OD	O	O
    	12	MOB	DO	OL	OBL
    	13	OBL	missing	missing	missing
    	14	OBL	OBL	OBL	OBL
    	15	OBL	OB	OB	OB
    	18	OBL	OB	OB	OBL
    	20	OBL	OL	OL	OBL
    	21	MOB	MO	MO	MOB
    	23	OBL	no rest.	no rest.	no rest.
    	28	OBL	MOL	MOL	MOL
    	29	OBL	OBL	OL	OBL-fil.M

    
    

25. In this case, four experts, including Dr. Boyd, testified, regarding the determination of how many tooth surfaces are involved with that tooth's filling. All four experts legitimately, differed, on how such a determination was made.

    
    

26. It is simplest to visualize the surfaces of a tooth by visualizing a closed box. It has a top with four sides. Obviously, these "surfaces" connect to an adjoining surface at some point or plane. It is a matter of dental philosophy on how many surfaces are involved when dealing with whether an amalgam or filling involves one, two, or three surfaces at these connecting points or planes. The matter would be simple if a simple one dimensional linear connection existed between surfaces. However, such a connection is not the case. All of these surfaces have a thickness or width associated with them making it very difficult, if not controversial, whether a given surface is involved in an amalgam.

    
    

27. Word-wise all of the expert's descriptions for such a determination sound relatively the same. However, it was in the description of what a 1, 2, or 3 surface amalgam looked like that very crucial differences appeared. The differences between the expert opinions depended on where that expert drew the line for a filling "touching" another surface. Dr. Kekich believed that a filling on the occlusal surface could not be said to touch one of the side surfaces, if looking at the top of the tooth, the filling was surrounded by tooth enamel. Dr. Boyd and for the most part his experts did not hold such a view given that the side surfaces have a thickness to them which flows into the occlusal surface. Given that thickness, a filling may be completely surrounded by tooth enamel but still involve "or touch" another surface because the inside interior of that side surface would be undermined by the operation of drilling on the occlusal surface and filling the cavity. A dentist who had not done the actual drilling would be hard put to say whether the drill and consequently the amalgam "touched" one of the side surfaces' interior wall. A dentist would simply have no way to tell if the interior wall of a side surface had been affected by the drilling activity because no individual can see the interior of a tooth.

    
    

28. As a practical matter and especially in the case of surface amalgams, it is almost impossible to determine whether dental work on a patient was needed or not without having examined the patient before the questioned work was performed. None of the dentists who examined Dr. Boyd's patients had the benefit of examining these patients prior to any of the questioned work being performed by Dr. Boyd.

29. The differences among these various experts alone demonstrates that there is no true standard of practice for determining how many tooth surfaces are involved when dealing with potentially multi-surface amalgams. All of the amalgams involved in this case were potential multi-surface amalgams. Absent a clear standard of practice, there can be no violations of Subsections 466.028(1)(j), (l), (n) or (u), Florida Statutes, when multi-surface restorations are at issue. Additionally, since Dr. Boyd had a legitimate reason for labelling a given amalgam as a multi-surface amalgam, Dr. Boyd is not guilty of violating Subsection 466.028(1)(j), (l), (n) or (u), Florida Statutes, because such a reason precludes a finding of any intent by Respondent to commit fraud, misrepresent facts, file false reports or exploit his patients.

    
    

30. Mary Barron Powell prepared and processed the Medicaid billings in Dr. Boyd's office. Ms. Powell had a great deal of experience in preparing Medicaid claim forms and Dr. Boyd had no reason to doubt her ability in that regard. Ms. Powell was authorized by Medicaid to file Medicaid claims. Therefore, Dr. Boyd did not review the claim forms prepared by Ms. Powell. Such delegation of authority to a billing clerk is not unusual in the practice of dentistry and does not violate any standard of practice.

    
    

31. When a Medicaid patient would come in to the office, Ms. Powell would place that patient's name on a list. Medicaid would be billed on a monthly basis for any dental work performed on that patient. All of the Medicaid bills were drawn up at the same time each month. Ms. Powell would generally prepare about fifty Medicaid bills a month.

    
    

32. Ms. Powell completed the claim forms by utilizing Dr. Boyd's record of treatment contained in a patient's dental records. Ms. Powell would fill out the form, affix Dr. Boyd's signature as "Dr. Ralph Boyd/M.B." and mail the claim to Medicaid for payment.

    
    

33. Whenever Ms. Powell had a question relating to preparing or processing a Medicaid bill, she would call the Medicaid office for instructions. When a Medicaid claim was denied, Ms. Powell would telephone Medicaid to ascertain the reason for the denial and receive instructions to refile the rejected claim as a totally new claim.

    
    

34. Ms. Powell was never instructed by Dr. Boyd to bill Medicaid for services that were not performed or were not in a patient's record of treatment. She would occasionally catch and correct errors in her billings and would, if she was not sure about how to correct such errors, call the Medicaid office for instructions. Such instructions often included a direction to refile the claim as a new claim. At other times, Ms. Powell would discover that Medicaid had overpaid a claim. In those instances, she would advise the Medicaid office and Medicaid would subtract the overpayment from the next Medicaid payment. 4/ Occasionally, Ms. Powell would accidentally look at the wrong page of a patient's record and would fill the Medicaid billing form out with the information contained in the treatment plan of the patient instead of with the services which had been performed. Similarly occassionally, Dr. Boyd would indicate the wrong tooth had been treated. However, the dental record would be correct in the total number of teeth treated. Such inadvertant mistakes are a far cry from fraud or negligence in the practice of dentistry on the part of a licensee and do not constitute failure to practice within the minimum standards of practice in dentistry. Similarly the dentist's contractual responsibility in filing a Medicaid claim cannot be used to bootstrap a charge of fraud onto a dentist for such mistakes.

35. As indicated earlier, the Amended Administrative Complaint contains twenty separate counts, involving 18 separate patients. For purposes of clarity the facts and circumstances surrounding each patient, the counts related to that patient and any violations related to that patient will be discussed individually. No alleged violations of Chapter 466, Florida Statutes, were established by the evidence unless it is specifically noted below.

    
    

36. Patient S.C. (1714277020). Count I of the Amended Administrative Complaint charges Dr. Boyd with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of amalgam restorations on teeth 31 and 30 after he had extracted tooth 30.

    
    

37. Respondent's record of treatment on patient S.C. reflects that on February 17, 1984, Dr. Boyd extracted tooth #30 and that on February 28, 1984, he restored teeth ##31, and 30 with three surface restorations. Dr. Boyd's record of treatment also showed that on February 28, 1984, tooth 32 was restored and had a pulpotomy.

    
    

38. Dr. Kekich's examination of patient S.C. revealed that tooth #30 was still present in S.C.'s mouth and that it had been restored on three surfaces as indicated in Dr. Boyd's record of treatment. On the other hand, Dr. Rogers examination of S.C. revealed that tooth #30 was missing and tooth #31 had a three surface amalgam restoration, as claimed by Respondent.

    
    

39. On February 25, 1984, Ms. Powell billed Medicaid for restoration of teeth #31 and #30 with three surface amalgam restorations on February 28, 1984, and extraction of tooth #30 on February 17, 1984. Payment was denied on this claim.

    
    

40. On March 21, 1984, Ms. Powell resubmitted the bill to Medicaid. Medicaid paid for the restoration of teeth #31 and #30. Medicaid did not pay for the extraction of tooth #32 because the extraction of that tooth had, inadvertently, been submitted as tooth #30.

    
    

41. Given the fact that tooth #30 is present in S.C.'s mouth and was restored on three surfaces, it is apparent from a review of Dr. Boyd's record of treatment on patient S.C. that Dr. Boyd inadvertently indicated that tooth #30 had been extracted when, in fact, tooth #32 had been removed. The error was continued by Ms. Powell when she filled out the Medicaid claim form. In fact, had the bill been submitted with the correct information, the payment from Medicaid would have been the same as that made for the erroneous billing.

    
    

42. As indicated earlier, such inadvertant errors in the submission of a Medicaid claim form do not support a finding of fraud on the part of Dr. Boyd. Moreover, such occasional errors in a patient's dental record do not fall below the standard of care in the pratice of dentistry in the Pensacola area. Therefore, the Department has not sustained its burden of proof regarding that portion of Count I of the Amended Administrative Complaint and that portion of Count should be dismissed.

    
    

43. Count I of the Amended Administrative Complaint also charges Dr. Boyd with failure to maintain dental records on patient S.C.

44. Importantly, the Board adopted Rule 21G-17.002, Florida Administrative Code, (formerly Rule 21G-17.02, Florida Administrative Code) effective Otober 8, 1985. Prior to this date, there was no rule adopted by the Board of Dentistry addressing any minimum record keeping requirements during the time periods relevant to the Amended Administrative Complaint. 5/ The more convincing evidence presented at the hearing indicates that there has been a considerable change in community and rule standards on minimum record keeping since 1984.

    
    

45. In 1984, when S.C. saw Dr. Boyd for dental services, the prevailing standard of care in dentistry, even without a rule, required that a dentist maintain a treatment plan on a patient unless that patient received episodic care. Episodic care of a patient occcurs when a patient comes in on an irregular basis for treatment for a specific problem usually related to pain. A follow-up vist is not necessary since the patient's condition is treated that day. In such a situation, a treatment plan would be an exercise in futility since the dentist has no assurance of seeing the patient in order to obtain the goals of any treatment plan.

    
    

46. A review of S.C.`s patient record reveals that patient S.C. was most likely an episodic patient. All of S.C.`s appointments were for acute pain and occurred in a relativly short time span. After these appointments, it does not appear that S.C. was seen by Dr. Boyd again. Since S.C. was most likely an episodic patient of Dr. Boyd's, Dr. Boyd did not violate the prevailing standards of record keeping in regards to S.C. by not completing a treatment plan for patient S.C. Therefore, Count I of the Amended Administrative Complaint should be dismissed.

    
    

47. Patient J.D. (2630946789). Count II of the Amended Administrative Complaint alleges that Dr. Boyd is guilty of fraud in the practice of dentistry, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he billed and was paid for a lower denture for J.D. which was not "delivered" to J.D.

    
    

48. In 1983, J.D. was an elderly gentleman who had difficulty with his hearing.

    
    

49. Sometime prior to April 12, 1983, Dr. Boyd had ordered a set of upper and lower dentures for J.D. These dentures were eventually made by a dental lab and sent to Dr. Boyd for fitting in the patient's mouth.

    
    

50. On April 12, 1983, Respondent attempted to fit the upper and lower dentures in J.D.`s mouth. The upper denture fit but the lower denture was uncomfortable to the patient due the shape of his lower mouth. J.D. was asked to return for refitting of the lower denture but did not hear Dr. Boyd's request. Consequently, J.D. did not make a follow-up appointment and never returned for refitting. J.D. kept the upper denture when he left Dr. Boyd's office.

    
    

51. On May 9, 1983, Respondent billed, and was paid by, Medicaid for the upper and lower denture.

    
    

52. Dentists are permitted by Medicaid to bill Medicaid for dentures while they are under construction. It is debatable whether a dentist may keep the money paid for such dentures when the patient does not take permanent possession of the dentures as in this case. Here Dr. Boyd was liable for payment to the

    lab for the construction of the dentures. The dentures were delivered to the patient, but were rejected by him and he did not return for any corrections.

    
    

53. Medicaid does not contain any specific guidelines for a Medicaid provider in this situation, and it is not an unreasonable interpretation of the Medicaid manual and forms to expect to be paid by Medicaid for work performed and expenses incurred on a patient's behalf.

    
    

54. Petitioner's argument that this episode constitutes fraud or negligence on the part of Respondent is spurious since the entire episode is nothing more than a fight over the interpretation of language in a contract for services between Dr. Boyd and the Department of Health and Rehabilitative Services. As indicated earlier, the Board has no authority to enforce its interpretation of that contract, to which it is not a party, by attempting to impose disciplinary action on a licensee. Moreover, even assuming Dr. Boyd's actions were not within the meaning of the Medicaid contract, these facts only support a conclusion of breach of that contract and do not come close to supporting the allegations of fraud levied against Dr. Boyd in the Amended Administrative Complaint. Therefore, this part of Count II of the Amended Administrative Complaint should be dismissed.

    
    

55. Count II of the Amended Administrative Complaint also charges Respondent with poor record keeping in regards to J.D. since J.D.`s patient records do not contain a formal treatment plan. The more convincing evidence demonstrates that the prevailing community standards in the practice of dentistry required some type of "treatment plan." However, that plan need not be a formal plan, but could consist of information from other documents or forms contained within a patient's file which demonstrated the course of action a dentist intended to take with that patient. In J.D.`s case, such information was contained within the preauthorization form sent to Medicaid around February 19, 1983. That form indicated that the course of treatment for J.D. was to fit him for dentures and that the preliminary work had been completed to accomplish that goal. Since, in 1983, the preauthorization form was an adequate substitute for a formal treatment plan, Dr. Boyd is not guilty of poor record keeping in regards to J.D.`s patient record and Count II should be dismissed.

    
    

56. Patient M.G. (1506307108). Count III of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he billed for multiple restorations on teeth ##2, 3, 14, 15, 18 and 30; performed unnecessary scaling and curettage; and claimed a behavior management fee on M.G. Count III also charges Respondent with poor record keeping.

    
    

57. Respondent wrote in his records that on April 2, 1983, he restored teeth ##2, 3, 14, 15, 18 and 30 each with three surface restorations. Medicaid paid for the three surface restoration of patient M. G.'s teeth ##2, 3, 14, 15

    18 and 30.

    
    

58. Dr. Kekich's exam showed that teeth ##3 and 14 had only two surface amalgam restorations and that teeth ##2, 15, 18 and 30 had only one surface amalgam restoration, 10 surfaces less than that claimed by Respondent.

    
    

59. Dr. McLeod's did not examine patient M.G.

60. Dr. Roger's exam showed teeth ##2, 3, 14, 15, 18 and 30 with two surface amalgam restorations and teeth ##18, 28 and 29 with one surface amalgam restoration, 6 surfaces less than that claimed by Respondent.

    
    

61. However, as indicated earlier in this Recommended Order, the evidence demonstrated that there was no one expert's opinion on the number of tooth surfaces involved in an amalgam which could be considered as a professional standard. In this regard, the exam results relating to one patient are not neceesarily controlling. The exam results for the entire group of patients demonstrates the lack of any true standard of practice in this area. Importantly, a review of the exam results also shows that the experts, including Dr. Boyd, often agreed with the number of surfaces involved in a given amalgam. Without a clear standard, Dr. Boyd cannot be found guilty of violating any of the provisions of Chapter 466, Florida Statutes. Additionally, since the theory followed by Dr. Boyd for determining the number of surfaces involved in a multi- surface restoration had a reasonable clinical basis; in good dental practice, the fact that Dr. Boyd claimed more tooth surfaces were affected by a given multi-surface amalgam than the other experts discovered does not support a conclusion that Dr. Boyd knowingly and deliberately claimed too many surfaces in order to defraud Medicaid. Similarly, the facts do not support a conclusion that Dr. Boyd misrepresented the number of surfaces involved in a multi- surface amalgam. Put simply, the number of tooth surfaces involved in a given multi- surface amalgam is highly debatable. Therefore, those portions of Count III relating to these facts should be dismissed.

    
    

62. Respondent also billed and was paid for a behavior management fee for patient M.G. The behavior management problem occurred on M.G.`s second visit during which M.G.`s second molar was surgically extracted. At the time of the second visit, patient M.G. was 17 years old. In order to indicate a management problem had occurred, Respondent put in patient M.G.`s record "management problem". The notation in M.G. `s chart speaks for itself and means that a management problem existed. The notation, although brief, met the standards of practice at the time of M.G.`s second visit. 6/

    
    

63. The HRS Children's Dental Services manual states that a behavior management fee is allowed (when nitrous oxide is not used) to handle a patient under 21 years of age who is either handicapped or presents management problems. There is no specific contractual definition of what constitutes a behavior management problem. Nor is there any Board rule on the subject. However, generally, it is reasonable to interpret the Medicaid contract to mean that a behavior management problem exists when a patient makes it more difficult than usual to treat, or when it takes extra time or effort to treat, or when the patient is being uncooperative. Such behavior management problems can occur on a random basis for inexplicable reasons.

    
    

64. The Department's expert in the field of pediatric dentistry testified to a number of generalities about behavior management problems. Significantly, there was no evidence (other than Dr. Boyd's records) regarding M.G.`s actual behavior while in Dr. Boyd's office. Without such evidence there is no way to clearly or convincingly determine whether M.G. was, in fact, not a behavior management problem. Generalities about the type of patient who presents a "normal" behavior management problem simply do not constitute sufficient evidence to demonstrate clearly or convincingly that M.G. was not such a case or was not an exception to the average patient with a behavior management problem. Moreover, such evidence does not shift the burden of going forward with the evidence to Respondent. 7/ Therefore, the portions of Count III relating to these facts should be dismissed.

65. Respondent's records also show that he performed scaling and curettage on patient M.G.

    
    

66. Scaling is the removal of hard deposits from teeth through the use of instruments or ultrasound. Scaling is the procedure used to remove calculus. Curettage is the use of a very sharp instrument to remove soft tissue that is inflamed or diseased in order to promote healing. Curettage is not limited to hard tissue.

    
    

67. The Medicaid Children's Manual has a series of billing codes relating to scaling and curettage procedures. Code 04220 refers to scaling and curettage, two different procedures. It is reasonable to interpret this code as covering either procedure. The code includes deep cleaning by scaling or deep root cleaning by scaling of the tooth roots supergingival, i.e. deep periodontal root cleaning. Code 04341 is the procedure code for periodontal scaling. Periodontal scaling does not generally involve the root.

    
    

68. Respondent testified that he performed deep-periodontal root cleaning on M.G. Deep periodontal root cleaning either falls within the code for scaling and curettage or it is a reasonable interpretation of the Medicaid contract that the billing code for scaling and curettage includes instances where only deep periodontal root cleaning is performed on a patient.

    
    

69. Additionally, as indicated earlier, a dentist is required to obtain pre-athorization from Medicaid for scaling and curettage. In this case, Dr. Boyd received such pre-authorization from Medicaid after Medicaid reviewed the Medical documentation, including x-rays, sent by Dr. Boyd for such pre- authorization. It is absolutely ludicrous to now assert that Dr. Boyd is guilty of any falsehoods or fraud based on his billing Medicaid for dental services he performed under code 04220 when Medicaid reviewed the medical information for Dr. Boyd's work and approved payment of the procedure under that code. Therefore, the portions of Count III relating to violations of Sections 466.028(1)(j), (1), (n) or (u), Florida Statutes, should be dismissed.

    
    

70. In maintaining M.G.`s patient record, Dr. Boyd followed the community practice of using different colored pens on a treatment plan/tooth diagram to indicate what work a tooth needed. Various types of marks were used in conjunction with the colored pens to indicate the status of the work. Unfortunately, the records introduced into evidence by Petitioner were photocopies of the original records and the colors cannot be determined from this evidence. The treatment plan contained in M.G.`s record shows marks on the tooth diagram located in that treatment plan and the record of treatment is consistent with that diagram. This diagram is also sufficient to justify the course of treatmeet given to patient N.G. Additionally, the pre-authorization form reviewed and approved by Medicaid is sufficient to justify the scaling and curettage done on M.G. In 1983, these records met the standard of practice for record keeping in the Pensacola area. Therefore, the portions of Count III relating to these facts should be dismissed.

    
    

71. Patient T.H. (1507902026). Count IV of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he billed for surgical extractions of four teeth and allegedly only extracted two teeth, double billed Medicaid on multiple composite resin restorations on teeth ##6, 7, 8, 9, 10 and 11; performed unnecessary scaling and curettage; and claimed a behavior

    management fee on T.H. Count IV also charges Respondent with poor record keeping.

    
    

72. Respondent wrote in his treatment plan (undated) for patient T.H. that he surgically extracted teeth ##2, 4, 5 and 31 and that he filled teeth ##6, 7, 8, 9, 10 and 11 with resin on the mesial and lingual surfaces.

    
    

73. On June 30, 1983, Respondent billed, and was paid by Medicaid, for the surgical extraction of patient T.H.`s teeth #2, 4, 5 and 31.

    
    

74. Ms. Powell billed Medicaid for the four extractions listed above. In preparing the Medicaid bill, she looked at the wrong page in T.H.`s record and mistakenly got the information she placed in the bill for four rather than two extractions from T.H.`s oral examination chart and treatment plan rather than from the page for the record of treatment. The record of treatment does accurately reflect that only two extractions were performed by Respondent. Dr. Boyd was unaware of Ms. Powell's error and therefore could not have formulated any intent to defraud, knowingly misrepresent, file false reports or exploit a patient for financial gain. Therefore, those portions of Count IV relating to these facts should be dismissed.

    
    

75. Also, on June 30, 1983, Respondent billed twice and was mistakenly paid twice by Medicaid for restoring the lingual surfaces of teeth ##6, 7, 8, 9, 10, and 11 with resin.

    
    

76. Again this bill was prepared by Ms. Powell. It is not unusual that a dentist has to submit a bill twice to Medicaid. The Medicaid manuals indicate that when such a double billing occurs, it will review the bills manually instead of reviewing them by its usual computer review. From this fact, it is reasonable to assume that Medicaid has some procedure for identifying such duplicate bills. Given these facts and the fact that Dr. Boyd was unaware of the double billing or payment in this case, there is nothing in this sequence of events which remotely suggests that Dr. Boyd is guilty of violating any of the statutory provisions in relation to this duplicate bill. Therefore, those portions of Count IV relating to these facts should be dismissed.

    
    

77. Respondent also billed and was paid by Medicaid for a behavior management fee on patient T.H. In 1983, T.H. was 18 years old.

    
    

78. Except for J.D.`s deposition testimony, T.H. was the only patient out of the eighteen patient's selected for review by Wes Greenwald who actually testified at the hearing. T.H. testified that in 1983 she had a lot of cavities. She does not like shots and hates needles. During her appointment with Dr. Boyd in 1983, she was not given any pain medication. The appointment was very painful, but she did not scream or yell. 8/ She did however moan somewhat loudly. Dr Boyd began his attempt at treatment twice and eventually had to give T.H. a shot for pain twice. T.H. stated she did not ask Dr. Boyd to stop when he performed dental work on her mouth. However, her actions during the appointment led Dr. Boyd to cease his first attempt at treatment.

    
    

79. Respondent has no independent recollection of why he would have charged a behavior management fee for patient T.H. 9/ Respondent noted in patient T.H.`s record "management problem". However, T.H.`s record supports Dr. Boyd's contention that T.H. did present a management problem during this visit since he had to begin treatment twice and had to inject T.H. twice during the course of T.H.'s treatment. Additionally, Dr. Boyd's records of T.H. demonstrate that she came in for acute pain. She had bleeding gums when she

    left due to the two teeth he had extracted and the deep root scaling he had performed on T.H. Her rear molars had been drilled for the surgical extraction. Dr. Boyd prescribed a pain medication and an antibiotic for T.H. Given T.H.`s testimony, her demeanor, the record of treatment in T.H.`s record and the passage of time in this case, the Department has failed to produce clear and convincing evidence that Dr. Boyd committed fraud, knowingly misrepresented facts, filed false reports, or exploited a patient by claiming that T.H. presented a management problem during her appointment in 1983. Therefore, those portions of Count IV relating to these facts should be dismissed.

    
    

80. On June 13, 1983, Respondent performed scaling and curettage on patient T.H. As with M.G, Dr. Boyd obtained authorizations from Medicaid based on X-rays of T.H.`s teeth and the preauthorization form sent to Medicaid. Therefore, the same results apply to to the allegations of the Amended Administrative Complaint relating to the scaling and curettage Dr. Boyd performed on T.H. Those portions of Count IV relating to these facts should be dismissed.

    
    

81. Finally, Dr. Boyd's records indicate that T.H. was an episodic patient. However, the Department's own expert did not believe that these records were poor. Given the other testimony in this case and the fact that there was Medicaid preauthorization for the scaling and curettage, the evidence did not demonstrate clearly and convincingly that Respondent was guilty of poor record keeping of T.H.`s records. Therefore, those portions of Count IV relating to these facts should be dismissed.

    
    

82. Patient J.J. (0031653103). Count V of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he billed twice (1982 and 1983) for surgical extraction of teeth ##20, 21, 22, 23, 24, 25, 26 and 27 and providing a complete lower denture to J.J. Count V also charges Respondent with poor record keeping.

    
    

83. Respondent wrote in his records that on October 27, 1982, he surgically extracted teeth ##20, 21, 22, 23, 24, 25, 26 and 27 and that on June 9, 1982, a preauthorization form for a lower denture had been received from Medicaid.

    
    

84. Ms. Powell billed Medicaid for the extractions and the lower denture on November 11, 1983. She mistakenly included a bill for the lower denture because the preauthorization form had been returned to Dr. Boyd's office. However, the dentures were never provided to J.J.

    
    

85. This middle of the month billing was unusual since Ms. Powell normally prepared all the Medicaid bills at the end of the month. The only time she prepared Medicaid bills in the middle of the month occurred when there were too many Medicaid bills to handle at the end of the month. However, all of the Medicaid bills whenever they were prepared during the month were mailed at the end of the month.

    
    

86. The November 11, 1982, Medicaid bill was denied payment by Medicaid. Ms. Powell resubmitted the bill on May 11, 1983. However, in preparing the second bill, Ms. Powell mistakenly put the date of service as May 11, 1983, instead of the original date of service of October 27, 1982 and continued her earlier error of requesting payment for the complete lower denture. This bill was paid by Medicaid.

87. Respondent admits he did not perform any dental services on patient

    J.J. in 1983. However, this admission is immaterial under the facts as outlined above since Dr. Boyd was not aware of Ms. Powell's mistake and did, in fact, perform the extractions he was billing for. Likewise, Dr. Boyd admits that he did not provide patient J.J. with a lower denture. Again, since Respondent was unaware of Ms. Powell's error he cannot be found to have committed fraud, knowingly filed false reports, misrepresented facts or exploited a patient. Therefore, those portions of Count V relating to these facts should be dismissed.

    
    

88. Respondent failed to maintain a formal treatment plan on patient J.J. However, as with the other patients of Dr. Boyd, J.J.`s record contained a preauthorization form and a teeth diagram containing his marks. Both of these documents constitute a treatment plan, including exam and test results, sufficient to meet the standards of practice for record keeping in 1983. Therefore, those portions of Count V relating to these facts should be dismissed.

    
    

89. Patient N.L. (1244305103). Count VI of the Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he double billed for multiple surface restorations on teeth ##14, 15, 18, 19, 23, 28, 29, 30 and 31; and performed unnecessary scaling and curettage on N.L. Count VI also charges Respondent with poor record keeping.

    
    

90. Respondent wrote in his records that on July 14 and 21, 1983, he restored teeth ##31, 30, 2, 3, 14, 15, 18, and 19 each with three surface restorations and teeth ##28 and 29 each with two surface restorations. Respondent billed for restoring a total of 28 surfaces.

    
    

91. On July 16, 1983, Respondent billed Medicaid for restoring patient N.L.'s teeth ##31 and 30 with three surface amalgam restorations and teeth ##28 and 29 with two surface amalgam restorations.

    
    

92. As can be seen from its date, the July 16th bill was prepared in the middle of the month. However, Ms. Powell forgot to mark this bill off her master list of bills to be prepared for the month of July. Due to this oversight, Ms. Powell on July 22, 1984, inadvertantly prepared a second bill for the same services and also included a bill for multiple surface restorations on teeth ##2, 3, 14, 15, 18 and 19. Dr. Boyd was unaware of Ms. Powell's error. However, Medicaid caught the double billing on teeth ##29, 28, 30 and 31, and consequently, Respondent was only paid once for those surface restorations. Again, none of these facts supports a finding that Dr. Boyd committed fraud, knowingly filed false reports, made misrepresentations or exploited a patient. Therefore, those portions of Count VI relating to these facts should be dismissed.

    
    

93. Dr. Kekich's exam showed that teeth ##30, 2, 3, 14, 15 and 19 had only two surface amalgam restorations and teeth ##31, 29, 28 and 18 had only one surface amalgam restoration, 12 surfaces less than that claimed by Respondent.

    
    

94. Dr. McLeod's exam showed teeth ##2, 3, 14, 15 and 19, and 30 had only two surface amalgam restorations and teeth ##18, 28, 29 and 31 had one surface amalgam restoration, 12 surfaces less than that claimed by Respondent.

95. Dr. Roger's exam showed teeth ##2, 3, 14, 15, 19, 30 and 31 with two surface amalgam restorations and teeth ##18, 28 and 29 with one surface amalgam restoration, 11 surfaces less than that claimed by Respondent.

    
    

96. However, as indicated earlier in this Recommended Order, the evidence demonstrated that there was no one expert's opinion on the number of tooth surfaces involved in an amalgam which could be considered as a professional standard. In this regard, the exam results relating to one patient are not necessarily controlling. The exam results for the entire group of patients demonstrates the lack of any true standard of practice in this area. Importantly, a review of the exam results also shows that these three experts often agreed with the number of surfaces involved in a given amalgam. Absent a clear standard, Respondent cannot be found guilty of violating any of the provisions of Chapter 466, Florida Statutes. Moreover, since the theory followed by Dr. Boyd had a reasonable clinical basis in good dental practice, the fact that Dr. Boyd claimed more tooth surfaces were affected by a given multi-surface amalgam than the other experts discovered does not support a conclusion that Dr. Boyd knowingly and deliberately claimed too many surfaces in order to defraud Medicaid. Similarly, the facts do not support a conclusion that Dr. Boyd misrepresented the number of surfaces involved in a multi-surface amalgam. Put simply, the number of tooth surfaces involved in a given multi- surface amalgam is highly debatable. Therefore, those portions of Count VI relating to these facts should be dismissed.

    
    

97. Respondent's record's show he performed scaling and curettage on patient N.L. on July 14, 1983. The evidence demonstrated that Dr. Boyd obtained authorization from Medicaid to perform the procedure for which he billed. The pre-authorization was based on X-rays sent to Medicaid for their review and approval of the procedure. As with the other patients discussed earlier in this Recommended Order, there was no clear and convincing evidence presented that Dr. Boyd is guilty of any violations of Chapter 466, Florida Statutes, which could arguably have arisen out of the services he performed and billed for in regards to N.L. Also, since there was a pre-authorization form contained in N.L.`s patient records, Dr. Boyd's record keeping met the then standard of practice for the maintenance of patient records. Therefore, those portions of Count VI relating to these facts should be dismissed.

    
    

98. Finally, the evidence showed that Respondent had completed a treatment plan for patient N.L. and otherwise appear to meet the standards of practice for the maintenance of patient records in the Pensacola area. Therefore, those portions of Count VI relating to these facts should be dismissed.

    
    

99. Patient J.L. (1463142102). Count VII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly inappropriately billed for multiple surface restorations on teeth ##1d, 2d, 9d, 10d, 11d, 12d and 20d; and performed unnecessary scaling and curettage on J.L. Count VII also charges Respondent with poor record keeping.

    
    

100. Sometime prior to July 14 ,1983, Dr. Boyd restored teeth ##1d, 2d, 9d, 10d, 11d, 12d and 20d each with three surface restorations. On July 14, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##20d(T), 1d(A) and 2d(B) with three surface amalgam restorations.

101. On July 21, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ## 11d(K), 12d(L), 9d(I) and 10d(J) with three surface amalgam restorations.

     
     

102. Dr. Kekich's examination showed that teeth ##20d(T), 1d(A), 10d(J), 11d(K) and 12d(L) had only two surface amalgam restorations and that teeth ##2d(B) and 9d(I) had only one surface amalgam restorations, eight surfaces less than that claimed by Respondent.

     
     

103. Dr. McLeod's exam showed teeth ##20d(T), 10d(J), 11d (K), 12D(L), with two surface amalgam restorations and teeth ##2d(B) and 9d(I) with one surface amalgam restorations, 10 surfaces less than that claimed by Respondent.

     
     

104. Dr. Rogers did not examine J.L.

     
     

105. There is nothing different in the facts and circumstances involving multiple surface restorations to J.L.`s teeth which would cause the result as to these restorations to be different from the result reached regarding other patients. The evidence is insufficient to support a finding that: Dr. Boyd violated any of the statutory provisions of Chapter 466, Florida Statutes, especially those provisions involving a specific intent to defraud or misrepresent. Therefore, those portions of Count VII relating to these facts should be dismissed.

     
     

106. The evidence demonstrated that Dr. Boyd maintained a treatment plan on patient J.L. in the form of a diagram. The treatment rendered to J.L. by Dr. Boyd was consistent with this treatment plan. This diagram comported with the standards of practice for record-keeping applicable in 1983. Therefore, those portions of Count VII relating to these facts should be dismissed.

     
     

107. Patient S.M. (0813036127). Count VIII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he double billed for multiple surface restorations on teeth ##15, 18, 19, 21, 28, 29, 30 and 31; and performed unnecessary scaling and curettage on S.M. Count VIII also charges Respondent with poor record keeping.

     
     

108. On January 30, 1983, Respondent restored teeth ##18, 19, and 20 each with three surface restorations. On February 9, 1983, Respondent restored teeth ##30, 31, 29 and 28 each with three surface restorations. On February 20, 1983 he restored teeth ##2 and 15 each with three surfaces restorations and teeth ##3 and 14 each with two surface restorations.

     
     

109. On November 30, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##18, 19, and 21 with three surface amalgam restorations.

     
     

110. On December 9 and 20, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##30, 31, 29, 28, and 15 with three surface amalgam restorations.

     
     

111. Dr. Kekich's exam showed that teeth ##21, 30, 31, 28 and 15 each had only two surface amalgam restorations and that teeth ##18, 19 and 29 had only one surface amalgam restoration, 11 surfaces less than that claimed by Respondent and paid by Medicaid.

     
     

112. No other doctor examined patient S.N.

113. Again, there is nothing different in the facts and circumstances involving multiple surface restorations to S.M.`s teeth which would cause the result as to these restorations to be different from the result reached regarding other patients. The evidence is insufficient to support a finding that Dr. Boyd violated any of the statutory provisions of Chapter 466, Florida Statutes, especially those provisions involving a specific intent to defraud or misrepresent. Therefore, those portions of Count VIII relating to these facts should be dismissed.

     
     

114. On November 11, 1983, Respondent's records show he performed scaling and curettage on patient S.M. As with the other instances in which Dr. Boyd performed deep root scaling which was billable under the code for scaling and curettage, Dr. Boyd obtained Medicaid authorization fo the procedure. Likewise, the same factual conclusions are drawn from Medicaid's approval and those portions of Count VIII relating to these facts should be dismissed.

     
     

115. Finally, the evidence showed that Dr. Boyd maintained a diagrammatical treatment plan on patient S.M. This diagram met the standards for record-keeping applicable during 1983. Therefore, those portions of Count VII-I relating to these facts should be dismissed.

     
     

116. Patient M.M. (827797029). Count IX of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##2, 3, 10, 14, 17, 18, 20, 21, 30 and 31 and extraction of teeth ##16 and 17; performed unnecessary scaling and curettage on M.M.; and billed for a behavior management fee on patient M.M. Count IX also charges Respondent with poor record keeping.

     
     

117. Respondent's records for patient M.M. reflected that on September 8, 1983, he surgically extracted teeth ##16 and 17 and that on September 15, 1983, he restored teeth ##31 and 32 with three surface restorations and teeth ##28 and

     29 with two surface restorations. M.N.`s patient record also reflected that on September 24, 1983, Dr. Boyd restored teeth ##2, 3, and 19 with three surface restorations and that on October 31, 1983, he restored teeth ##17, 18, 20 and 21 with three surface restorations.

     
     

118. Respondent testified that he restored teeth ##2, 3, 4, 5, 12, 13, 14, 15, 17, 18, 20 and 21. Respondent did not surgically extract any of patient N.M.`s teeth. Respondent did not restore tooth #10. Respondent's treatment plan does not indicate any work with regard to teeth ## 17, 18, 20 and 21.

     
     

119. Dr. Boyd had obtained authorization from Medicaid for the surgical extraction of teeth ##16 and 17. The authorization form indicated that teeth ##16 and 17 should be surgically extracted.

     
     

120. None of the examining dentists' examinations showed extraction of teeth ##16 or 17 or restoration of tooth #10.

     
     

121. On September 30, 1983, Respondent billed Medicaid for restoring teeth ##31, 30, 10, 2, 3 and 14 with three surface amalgam restorations, tooth #29 with two surface amalgam restorations, and the surgical extraction of teeth ##16 and 17. Respondent was paid by Medicaid for the restoration of teeth ##31, 10, 2, 3, 9, 14, 29 and the surgical extraction of teeth ##16 and 17.

122. The September 30, 1983, bill was prepared by Ms. Powell. In preparing this bill, Ms. Powell misread the notation for the restoration of tooth #15 as tooth #10. A mistake that is easily understandable given the appearance of Dr. Boyd's notation. The notation for the surgical extraction of teeth ##16 and 17 is not in Dr. Boyd's handwriting. The notation in M.M.'s record was made by Ms. Powell, without Dr. Boyd's knowledge. Ms. Powell believes she made the entry in the wrong chart, but admits that it was her mistake. She also put down the date of service as the date the authorization from Medicaid for the extractions and the scaling and curetttage was received in Dr. Boyd's office. The Medicaid office had advised Ms. Powell to use the date of authorization as the treatment date in her billings to Medicaid. None of these facts support a finding that Dr. Boyd knowingly, willfully or intentionally committed any fraudulent acts or made any misrepresentations in his practice of dentistry. Similarly, these facts do not support a finding that Dr. Boyd improperly took advantage of his patients for his own financial gain. Such violations require the personal participation of the licensee, in the prohibited activity or at least some showing that the licensee was engaged in some conspiracy with the main perpetrator. No such evidence was produced in this case. Therefore, those portions of Count IX relating to these facts should be dismissed.

     
     

123. On October 31, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##17, 18, 20 and 21 with three surface amalgam restorations.

     
     

124. Dr. Kekich's exam showed that teeth ##30, 3 and 14 had only two surface amalgam restorations add that teeth ##31, 29, 2, 17, 18, 20 and 21 had only one surface amalgam restoration, 9 surfaces less than that claimed by Respondent. Dr. Kekich did not include the surface restorations performed on tooth #15.

     
     

125. Dr. McLeod's exam showed teeth ##2, 3, 14, and 30 had only two surface amalgam restorations and teeth ##17, 18, 20, 21, 29 and 31 had only one surface restored, 8 surfaces less than that claimed by Respondent. Dr. McLeod did not include the surface restorations performed on tooth #15.

     
     

126. Dr. Roger's exam showed that tooth #14 had three surfaces filled, teeth ##3, 18 and 31 had two surface restorations, teeth ##2, 17, 20, 21, and 29 had one surface filled, 8 surfaces less than that claimed by Respondent. Dr. Rogers did not include the surface restorations performed on tooth #15.

     
     

127. The discrepancy among the experts on the number of surfaces involved in a multi-surface amalgam has been previously addressed in this Recommended Order. There is nothing in these facts which suggests a different result should obtain in this Count of the Amended Administrative Complaint. Therefore, those portions of Count IX relating to these facts should be dismissed.

     
     

128. Respondent's records show that he billed and was paid behavior management fees on September 8, 1983, and September 15, 1983; for patient M.M. At the time the behavior management problem occurred, M.M. was 19 years old and was in Dr. Boyd's office for a pulpotomy. A pulpotomy is a very painful procedure. Respondent noted in patient M.M.`s records `management problem". The notation in M.M.`s chart speaks for itself that a management problem existed. The notation, although brief, met the standards of practice at the time of M.M.`s second visit.

     
     

129. As indicated earlier, the HRS Children's Dental Services manual states that a behavior management fee is allowed (when nitrous oxide is not

     used) to handle a patient under 21 years of age who is either handicapped or present management problems. There is no specific contractual definition of what constitutes a behavior management problem. Nor is there any Board rule on the subject. However, generally, it is reasonable to interpret the Medicaid contract to mean that a behavior management problem exists when a patient makes it more difficult than usual to treat the patient, when it takes extra time or effort to treat, or when the patient is being uncooperative. Behavior management problems can occur on a random basis for inexplicable reasons.

     
     

130. The Department's expert in the field of pediatric dentistry testified to a number of generalities about behavior management problems. Significantly, there was no evidence (other than Dr. Boyd's records) regarding M.M.`s actual behavior while in Dr. Boyd's office. Without such evidence there is no way to clearly or convincingly determine whether M.M. was, in fact, not a behavior management problem. Generalities about the type of patient who presents a "normal" behavior management problem simply do not constitute sufficient evidence to demonstrate clearly or convincingly that M.M. was not such a case or was not an exception to the average patient with a behavior management problem. Moreover, such evidence does not shift the burden of going forward with the evidence to Respondent. Therefore those portions of Count IX relating to these facts should be dismissed.

     
     

131. Respondent's records indicate he performed scaling and curettage on all four quadrants of patient M.M.`s mouth on September 8, 1983. As with the other instances in which Dr. Boyd performed deep root scaling which was billabe under the code for scaling and curettage, Dr. Boyd obtained Medicaid authorization for the procedure. Likewise, the same factual conclusions are drawn from Medicaid's approval and those portions of Count IX relating to these facts should be dismissed.

     
     

132. Respondent's treatment plan for patient M.M. is inconsistent with his record of treatment. However, there is nothing in the testimony or any rule which indicates that a treatment plan is required to be consistent with the record of treatment. In fact, it is not unusual for the treatment plan to differ from the record of treatment since frequently once a procedure is begun the dentist wiil discover that additional work or less work needs to be done. The treatment plan is simply a plan. Plans can be and are subject to change.

     In all other respects patient M.M.'s records comport with the standards of practice for the maintenance of such records as existed in 1983. Therefore, those portions of Count IX relating to these facts should be dismissed.

     
     

133. Patient L.A.P. (1827827114). Count X of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly double billed for multiple surface restorations on teeth ##30 add 31; billed for multiple surface restorations on teeth ##3, 19, 20, and 21; and performed unnecessary scaling and curettage on L.A.P. Count X also charges Respondent with poor record keeping.

     
     

134. Respondent wrote in his records that cn February 23, 1984, he restored teeth ##30, 31, each with three surface restorations and restored teeth ##18, 19 and 20 each with three surface restorations. Respondent also wrote in his records that on February 5, 1984, he restored tooth #21 with two surface restorations and on March 28, 1984, he restored teeth ##14 and 3 each with three surface restorations.

135. On February 23, 1984, Respondent billed, and was paid by, Medicaid for restoring teeth ##30 and 31 with three surface amalgam restorations.

     
     

136. On March 28, 1984, Respondent billed, and was paid by Medicaid for restoring teeth ##18, 19, 20 and 3 with three surface amalgam restorations and tooth #21 with two surface restorations with a service date of March 5 and 20, 1984.

     
     

137. On March 30, 1984, Ms. Powell submitted another claim for the restoration of teeth ##18, 19, 20 for three surface amalgam restorations and tooth #21 for two surface amalgam restorations with a service date of March 5 and 20, 1984. She had forgotten that the earlier claim had been paid. Dr. Boyd was unaware of Ms. Powell's duplicate billing. However, the evidence does not demonstrate that this latter claim was paid. Even assuming that it had been paid, such double billing does not support a finding that Dr. Boyd committed any violations of Chapter 466, Florida Statutes, especially since Medicaid supposedly had a procedure for identifying such duplicate claims and had caught such duplicate bills in the past. Such easily committed mistakes simply do not add up to a factual finding of willful fraud, misrepresentation or exploitation on the part of Respondent. Therefore, those portions of Count X relating to these facts should be dismissed.

     
     

138. Dr. Kekich's examination showed that teeth ##30, 19, 20 and 3 had only two surface amalgam restorations and that teeth ##31, 18 and 21 had only one surface amalgam restoration, 8 surfaces less than that claimed by Respondent.

     
     

139. Dr. McLeod's exam showed teeth ##3, 20, and 30 had two surface restorations, and teeth ##18, 19, 21, and 31 had one surface restoration, 12 surfaces less than that claimed by Respondent.

     
     

140. Dr. Roger's exam showed teeth ##3, 18, 19, and 30 had three surface restorations, teeth ##20 and 31 had a two surface restoration and tooth #21 had a one surface restoration, 5 surfaces less than that claimed by Respondent.

     
     

141. As with the other Counts involving multi-surface restorations, these facts do not establish any violations of Chapter 466, Florida Statutes, by Dr. Boyd. Therefore, those portions of Count X relating to these facts should be dismissed.

     
     

142. Respondent's records show he performed scaling and curettage in all four quadrants of patient L.A.P.`s mouth on March 20, 1984. Dr. Boyd obtained authorization from Medicaid for the procedure he billed for. Again, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count X relating to these facts should be dismissed.

     
     

143. Like with M.M., Respondent's record of treatment is not consistent with his treatment plan. Again there is no requirement that such records be consistent. L.A.P.`s records, otherwise, comport with the standard of practice for record keeping in 1984. Therefore, those portions of Count X relating to these facts should be dismissed.

     
     

144. Patient N.P. (0032545100). Count XI of the Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface

     restorations on teeth ##2, 3, 4, 14, 16 and 19; and performed unnecessary scaling and curettage on N.P. Count XI also charges Respondent with poor record keeping.

     
     

145. Respondent wrote in his records that on May 25, 1982 he restored teeth ##13, 16, 19, 2, 3, 4 and 31 each with three surface restorations.

     
     

146. On May 25, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##13, 16, 19, 2, 3, 4, and 31 with three surface amalgam restorations.

     
     

147. Dr. Kekich's examination showed that teeth ##13, 19, 2, 3, and 4 had only two surface amalgam restorations; and that tooth #31 had only one surface amalgam restoration and that tooth #16 had not been restored, 10 surfaces less than claimed by Respondent.

     
     

148. Dr. McLeod's exam showed teeth ##2, 3, 4, 13, and 19 had two surface restorations and tooth #31 had a one surface restoration and tooth #16 had not been restored, 10 surfaces less than that claimed by Respondent.

     
     

149. As with the other Counts involving multi-surface restorations, these facts do not establish any violations of Chapter 466, Florida Statutes, by Dr. Boyd. Therefore, those portions of Count XI relating to these facts should be dismissed.

     
     

150. Respondent billed and was paid a behavior management fee for patient

     N.P. The behavior management problem occurred during N.P.'s visit on May 25, 1983. At that time N.P. was 18 years old. N.P. had been brought in by his parents to receive all the dental work he needed during the one office visit. The patient was in pain. The molar was surgically extracted. The work Dr. Boyd performed on the patient took most of the evening and involved all four quadrants of the mouth. Given these facts, it is more likely than not that N.P. presented a management problem, for which Dr. Boyd was entitled to bill Medicaid. Respondent noted in patient N.P.`s records "management problem". The notation, although brief, met the standards of practice at the time of N.P.`s visit. Therefore, those portions of Count XI relating to these facts should be dismissed.

     
     

151. Respondent's records reflect that, on May 25, 1983, he performed scaling and curettage on patient N.P. in all four quadrants of the patient's mouth. Dr. Boyd obtained authorization from Medicaid for the procedure he billed for. As with other patients involved in this case who had scaling and curettage performed on them by Respondent, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count XI relating to these facts should be dismissed.

     
     

152. From the records it appears that N.P. was an episodic patient or was at least a patient on whom it was useless to develop a complete treatment plan since N.P. did not maintain any regular dental care. N.P.`s records did contain a completed tooth diagram and an authorization form for some of the work performed by Dr. Boyd. Since this information is present in N.P.`s records and given the episodic nature of N.P.`s dental care, it cannot be found that Dr. Boyd's records fell below the standard of practice for the maintenance of patient records in effect during 1983. Therefore, those portions of Count XI relating to these facts should be dismissed.

153. Patient L.P. (1244305138). Count XII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##5, 12, 14, 19, and 30; and failed to keep adequate patient records.

     
     

154. Respondent wrote in his records that on February 1, 1983, he restored teeth ##5, 12, 14, 30, and 19 each with three surface restorations.

     
     

155. On July 21, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##5, 12, 14, 30 and 19 with three surface amalgam restorations.

     
     

156. Dr. Kekich, Dr. McLeod and Dr. Roger's examination showed that teeth ##14, 30 and 19 had only two surface amalgam restorations and that teeth ##5 and

     12 had only one surface amalgam restoration, seven surfaces less than that claimed by Respondent.

     
     

157. As with the other patient's who had multiple surface restorations, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XII relating to these facts should be dismissed.

     
     

158. Respondent's records on patient L.P. contained a completed tooth diagram, patient history and treatment record. L.P.`s records, otherwise, comport with the standard of practice for record keeping in 1983. Therefore, those portions of Count XII relating to these facts should be dismissed.

     
     

159. Patient B.J.R. (1000702022). Count XIII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for surgical extraction of teeth ##18, 20, 21, 22, 23, 24, 26, 27, 28, 30 and 31 which he did not perform; and the failure to provide a complete lower denture. Count XIII also charges Respondent with poor record keeping.

     
     

160. After examination of B.J.R, Respondent prepared a treatment plan on patient B.J.R. indicating that the patient needed surgical extraction of teeth ##30, 31, 28, 27, 26, 24, 23, 22, 21, 18 and 20 and the provision of a complete upper and lower denture. However, the planned work was never performed.

     
     

161. On April 15, 1983, Ms. Powell billed Medicaid for the surgical extraction of teeth ##30, 31, 28, 27, 26, 24, 23, 22, 21, 18 and 20: and the provision of a complete lower denture. Respondent also billed for a complete upper denture, however it was denied by Medicaid. In preparing this bill, Ms. Powell inadvertently looked at the treatment plan for patient B.J.R. As a consequence she put incorrect information in the April 15, 1983, bill. Dr. Boyd was unaware of Ms. Powell's error.

     
     

162. These facts do not establish that Dr. Boyd committed any violations of Chapter 466, Florida Statutes. There was no showing that Dr. Boyd had any knowledge of the incorrect billing statement. Therefore, those portions of Count XIII relating to these facts should be dismissed.

     
     

163. As indicated earlier, Respondent did not perform any dental work on patient B.J.R. In 1983, there was no statutory or rule which required recordation of information that work was not performed be included in a

     patient's record. Since no dental work was performed, Respondent was not required to maintain a record of treatment for patient B.J.R. B.J.R.`s records, otherwise, comport with the standard of practice for record keeping in 1983.

     Therefore, those portions of Count XIII relating to these facts should be dismissed.

     
     

164. Patient J.S. (001286396115). Count XIV of the Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on tooth #2d which were not performed add surgical extraction of teeth ##4d, 5d and 7d that were not extracted; and poor record keeping on patient J.S.

     
     

165. Respondent wrote in his records that on September 2, 1983, he filled tooth #2d with a three surface amalgam restoration. Respondent billed, and was paid by Medicaid for restoring tooth #2d with a three surface amalgam restoration.

     
     

166. Respondent's records show that on July 25, 1983, he surgically extracted patient J.S.`s teeth ##4d and 5d. On July 25, 1983, Respondent billed, and was paid by, Medicaid for surgically extracting teeth ##4d and 5d.

     
     

167. Respondent's records show that on April 7, 1984, he surgically extracted tooth #7d. Respondent billed, and was paid by, Medicaid for extracting tooth #7d.

     
     

168. Dr. Kekich and Dr. McLeod's examinations showed that tooth #2d had only two surface amalgam restorations, one surface less than that claimed by Respondent.

     
     

169. Dr. Roger's exam showed tooth #2d had a three surface restoration.

     
     

170. Clearly, these facts do not demonstrate that Respondent committed any violations of Chapter 466, Florida Statutes. Therefore, those portions of Count XIV relating to these facts should be dismissed.

     
     

171. Dr. Kekich testified that teeth ##2d, 5d, and 7d were missing but not extracted. However, there is no credible way for a dentist to come to such a conclusion when the teeth are not present in the patient's mouth. Therefore, Dr. Kekich's opinion is not given any weight and the evidence did not otherwise demonstrate that teeth ##2d, 5d and 7d were not surgically extracted.

     Therefore, those portions of Count XIV relating to these facts should be dismissed.

     
     

172. Respondent admits that it was an oversight on his part that a treatment plan for patient J.S. was not prepared. J.S. does not appear to be the type of patient that would not require a treatment plan. Therefore, the omission of such a treatment plan is a violation of the standard of practice for maintenance of patient records in effect in 1983. However, since this was a rare instance in Dr. Boyd's performance, the failure to create such a treatment plan would be a minimal violation requiring only minor discipline.

     
     

173. Patient A.S. (0032748108). Count XV of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple

     surface restorations on teeth ##2, 3, 15, 17, 18, and 31; and performed unnecessary scaling and curettage on A.S. Count XV also charges Respondent with poor record keeping.

     
     

174. Respondent wrote in his records that on March 31, 1983, he restored patient A.S.'s teeth ##2, 3, 15, 18, 19 and 31 each with three surface amalgam restorations and tooth #20 with a two surface restoration.

     
     

175. On May 31, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##15, 17, 31, 2, and 3 with three surface amalgam restorations and tooth #20 with two surface amalgam restorations.

     
     

176. Dr. Kekich's exam showed that teeth ##18, 19, and 3 had only two surface amalgam restorations and that teeth ##15, 31, 2, and 20 had only one surface restoration, 7 surfaces less than that claimed by Respondent.

     
     

177. Both Dr. McLeod and Dr. Roger's exams showed tooth #3 with a two surface restoration and teeth ##2, 15, 18, 19, 20 and 31 with one surface restoration, 9 surfaces less than that claimed by Respondent.

     
     

178. As with the other patient's who had multiple surface restorations, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XV relating to these facts should be dismissed.

     
     

179. Respondent's records show that he performed scaling and curettage on patient A.S. in all four quadrants of the patient's mouth on May 24, 1983. As with other patients involved in this case who had scaling and curettage performed on them by Respondent, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count XV relating to these facts should be dismissed.

     
     

180. Respondent admits that it was an oversight on his part that a treatment plan for patient A.S. was not prepared. A.S. does not appear to be the type of patient that would not require a treatment plan. Therefore, the omission of such a treatment plan is a violation of the standard of practice for maintenance of patient records in effect in 1983. The failure to create such a treatment plan would be a minimal violation requiring the only minor discipline.

     
     

181. Patient K.S. (0882865102). Count XVI of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##1, 4, 16, 17, 30 and 32; and performed unnecessary scaling and curettage on K.S. Count XVI also charges Respondent with poor record keeping.

     
     

182. Respondent wrote in his records that on November 19, 1980, September 7, 1980, and March 22, 1983, he filled teeth ##30 and 33 each with three surface amalgams restorations.

     
     

183. Respondent's records also show that on March 22, 1983, he filled teeth ##1, 16, 17 and 32 with three surface restorations.

     
     

184. Respondent billed Medicaid for restoring teeth ##30, 32, 1, 16 and 17 with three surface amalgam restorations on March 22, 1983.

185. Respondent was paid by Medicaid for the restoration of teeth ##1, 16, and 17. Payment for the restorations to teeth ##30 and 32 was denied by Medicaid.

     
     

186. On September 30, 1983, Respondent billed, and was paid by, Medicaid for restoring tooth #4 with three surface amalgam restorations.

     
     

187. Dr. Kekich's examination showed that teeth ##30, 32, and 17 had only two surface amalgam restorations and, that teeth ##1, 16 and 4 had only one surface amalgam restoration, nine surfaces less than that claimed by Respondent and seven surfaces less than for what he was paid.

     
     

188. Both Dr. McLeod and Dr. Roger's exams showed teeth ##17, 30 and 32 had two surface restorations and teeth ##1, 4, and 16 had one surface restoration, nine surfaces less than that claimed by Respondent and seven surfaces less than for that he was paid.

     
     

189. As with the other patient's who had multiple surface restorations, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XVI relating to these facts should be dismissed.

     
     

190. Respondent's records of patient K.S. show that on February 6, 1982, and on March 22, 1983, on the patient's first and second visit, Respondent performed scaling and curettage. As with other patients involved in this case who had scaling and curettage performed on them by Respondent, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count XVI relating to these facts should be dismissed.

     
     

191. Like with M.M., Respondent's record of treatment is not consistent with his treatment plan. Again there is no requirement that such records be consistent. K.S.`s records, otherwise, comport with the standard of practice for record keeping in 1980 through 1983. Therefore, those portions of Count XVI relating to these facts should be dismissed.

     
     

192. Patient M.W. (1826211101). Count XVII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##18, 20, 28, 29 and 31; performed unnecessary scaling and curettage on M.W.; and billed for a behavior management fee on patient M.W. Count XVII also charges Respondent with poor record keeping.

     
     

193. Respondent wrote in his records that on June 22, 1983, he restored teeth ##28, and 31 each with three surface amalgam restorations and tooth #29 with two surfaces.

     
     

194. Respondent billed, and was paid by, Medicaid for restoring teeth ##28 and 31 with three surface amalgam restorations and tooth #29 with two surface amalgam restorations.

     
     

195. Respondent's records show that on June 29, 1983 Respondent restored three surfaces on teeth ##18 and 20.

     
     

196. On June 29, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##18 and 20 with three surface amalgam restorations.

197. Dr. Kekich, Dr. McLeod, and Dr. Roger's exams showed that teeth ##18, 20, 28, 29 and 31 had only one surface amalgam restorations, nine surfaces less than that c1aimed by Respondent.

     
     

198. As with the other patient's who had multiple surface restorations and for the reasons stated earlier in this Recommended Order, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XVII relating to these facts should be dismissed.

     
     

199. Respondent's records show that on June 22 and 23, 1983, Respondent experienced a behavior management problem with patient M.W. At that time, M.W. was 18 years old.

     
     

200. Respondent billed and was paid by Medicaid a behavior management fee for June 15 and 22, 1983 for patient M.W. Respondent noted in patient M.W.`s record "management problem". The notation, although brief, met the standards of practice at the time of M.W.'s visit. Therefore, those portions of Count XI relating to these facts should be dismissed.

     
     

201. Respondent performed scaling and curettage on all four quadrants of patient M.W.'s mouth on June 15, 1983. As with other patients involved in this case who had scaling and curettage performed on them by Respondent, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count XVII relating to these facts should be dismissed.

     
     

202. Respondent admits that it was an oversight on his part that a treatment plan for patient M.W. was not prepared. N.W. does not appear to be the type of patient that would not require a treatment plan. Therefore, the omission of such a treatment plan is a violation of the standard of practice for maintenance of patient records in effect in 1983. The failure to create such a treatment plan would be a minimal violation requiring only minor discipline.

     
     

203. Patient K.W. (1608709027). Count XVIII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##18, 20, 21, 23 and 28; and billed for a behavior management fee on patient K.W. Count XVIII also charges Respondent with poor record keeping.

     
     

204. Respondent wrote in his records that on June 21, 1983, he restored teeth ##28 and 23 each with three surface restorations.

     
     

205. Respondent's records show that on June 28, 1983, Respondent restored teeth ##20, 18 and 21 with three surface restorations.

     
     

206. Respondent billed, and was paid by, Medicaid for restoring teeth ##28 and 23 with three surf&ce amalgam restorations.

     
     

207. On June 28, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##20, 18 and 21 with three surface amalgam restorations.

208. Dr. Kekich and Dr. McLeod's exams showed that teeth ##20, 18 and 21 had only two surface amalgam restorations and that tooth #23 had not been restored, nine surfaces less than that claimed by Respondent.

     
     

209. Dr. Roger's exam showed that teeth ##18, 20, and 21 each had three surface restorations and tooth #23 had not been restored, six surfaces less than that claimed by Respondent.

     
     

210. As with the other patient's who had multiple surface restorations and for the reasons stated earlier in this Recommended Order, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XVIII relating to these facts should be dismissed.

     
     

211. Respondent's records show that he also charged a behavior management fee for visits on June 21 and 28, 1983, when patient K.W. was 20 years of age. There is no evidence that Respondent did not experience a behavior management problem with patient K.W. The fact that K.W. did not present such a management problem on the first visit to Dr. Boyd's office, when more painful and intensive work was performed, does not support a finding that K.W. did not become a behavior management problem. It is just as likely that a person would act up after a bad experience as before such an experience. Therefore, those portions of Count XVIII relating to these facts should be dismissed.

     
     

212. Respondent noted in patient K.W.`s record "management problem". The notation, although brief, met the standards of practice at the time of K.W.'s visit. Therefore, those portions of Count XVIII relating to these facts should be dismissed.

     
     

213. Respondent admits that it was an oversight on his part that a treatment plan for patient K.W. was not prepared. K.W. does not appear to be the type of patient that would not require a treatment plan. Therefore, the omission of such a treatment plan is a violation of the standard of practice for maintenance of patient records in effect in 1983. The failure to create such a treatment plan would be a minimal violation requiring the only minor discipline.

     
     

214. Count XIX of the Amended Administrative Complaint alleges that Respondent is guilty of violating Subsection 466.028(1) and (y), Florida Statutes, by being guilty of incompetence or negligence in the practice of dentistry on S.C., M.G., N.L., S.M., M.M., L.A.P., N.P., L.P., J.S., A.S., K.S.,

     M.W. and K.W., the fourteen patients on whom Respondent performed amalgam restorations, in that those restorations did not meet the prevailing standards of practice for amalgam restorations. More specifically, Count XIX alleged that Respondent's amalgam restorations were too big, poorly condensed, had undefined margins and numerous high spots.

     
     

215. The only expert opinion on this subject which was presented by the Department was by a dentist who had not practiced in over twenty years who had not done any surface restorations in as many years and who had never practiced in the Pensacola area. Such an opinion is not entitled to a great amount of weight. On the other hand, Dr. Boyd's expert has maintained an active practice in the Pensacola area and has performed numerous amalgam restorations on patients, including Medicaid patients. His testimony indicated that Dr. Boyd's dental work met the standard of practice in the Pensacola area. This opinion considerably outweighs the Department's expert's opinion. Therefore, no incompetence or negligence on the part of Dr. Boyd has been established by the evidence and Count XIX should be dismissed.

216. Count XX of the Administrative Complaint alleges that, based on the earlier discussed cases, Respondent has repeatedly violated Subsection 466.028(1)(bb), Florida Statutes, by repeatedly violating other provisions of Chapter 466, Florida Statutes.

     
     

217. In this case, the four violations cited for not maintaining proper medical records constitute one violation for purposes of Subsection 466.028(1)(bb), Florida Statutes, and are all of the same type. Therefore, no repeated violations have been by the evidence presented in this case and Count XX should be dismissed.

     
     

     CONCLUSIONS OF LAW

     
     

218. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

     
     

219. Chapter 466, Florida Statutes, regulates the practice of dentistry in the State of Florida. Section 466.028, Florida Statutes, empowers the Board of Dentistry to discipline a licensee for violations of Chapter 466, Florida Statutes. Section 466.028(1), Florida Statutes, states in pertinent part:

     
     

     (j) Filing a report which the licensee knows to be false . . . Such reports or records shall include only those which are signed in the capacity as a licensee.

     
     

     1. Making deceptive, untrue, or fraudulent representations in the practice of dentistry;

        
        

     2. Failing to keep written dental records and medical history recoids justifying the course of treatment of the patient including, but not limited to, patient histories, examination results and test results;

        
        

     3. Exploiting the patient for financial gain of the licensee;

     
     

     (u) Being guilty of fraud, deceit, or misconduct in the practice of dentistry;

     
     

     (y) Being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against prevailing peer performance;

     
     

     (bb) Repeatedly violating the provisions of Chapter 466, Fla. Stat.

     
     

220. As can be seen from the findings of fact, some of the allegations are the result, in large part, of bills or requests for payment that were submitted to Medicaid for the various dental work discussed in each Count. The evidence demonstrated that some of the billing statements were accurate and some contained mistakes. The evidence also showed that all of the billing statements

     were prepared by Dr. Boyd's billing clerk and that any mistakes contained in these billing statements were the clerk's honest mistakes. Dr. Boyd was not aware of these mistakes. There was no evidence that Dr. Boyd conspired with this billing clerk to defraud Medicaid or misrepresent facts to Medicaid.

     Moreover, there was no clear and convincing evidence evidence that Dr. Boyd intended to submit billing statements to Medicaid that were false or fraudulent.

     
     

221. A licensed dentist is not liable for the acts of his or her employee unless the evidence demonstrates that the licensee ordered the employee to perform the prohibited act or, at least, was fully informed of the prohibited act and that the licensee approved of the act. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 4th DCA 1979); Bali v. Yates, 29 So. 2d 729 (Fla. 1946). Additionally, unless there is a specific statutory requirement, there is no duty imposed upon a licensee to inquire into whether his or her employee has properly carried out the agent's responsibilities. A licensee may presume that his employee has not exceeded the employee's or the licensee's authority. Oxford Lakeline v. First National Bank, 24 So. 480 (Fla. 1898). In this case, Respondent's billing clerk was highly experienced in the procedure for filing Medicaid claims prior to her employment with Dr. Boyd. Dr. Boyd had no reason to doubt her expertise and had no reason to double check her work. Therefore, Dr. Boyd cannot be found gulty of violating Sections 466.028(1)(j), (l), (n) and (u), Florida Statutes (1985).

     
     

222. Similarly, there was no clear and convincing evidence that Dr. Boyd intended to defraud or misrepresent facts to Medicaid in regards to the billing statements involving a dispute over whether the dental services billed for were performed. Of importance in this case is that all the experts, including Dr. Boyd, disagree with each other on both the definition of the extent of a filling and on the type of filling seen in the mouth of the patients they examined. It is these disagreements that, in part, causes Petitioner to fail in presenting clear and convincing evidence that Respondent committed Medicaid fraud, filed false reports, misrepresented facts or exploited patients in regards to patients S.C., J.D., M.G., T.H., J.J., N.L., J.L., S.M., M.M., L.A.P., N.P., L.P., B.J.R., J.S., A.S., K.S., M.W. and K.W.

     
     

223. The second key fact which causes the Department to fail to present a clear and convincing case of fraud, misrepresentation, filing false reports or exploitation by Dr. Boyd is the fact that Dr. Boyd enunciated a very reasonable clinical basis for the description of the treatment he made in regards to the number of surfaces involved in a multi-surface amalgam. Irrespective of whether Dr. Boyd's basis for such a description is valid, the fact that Dr. Boyd has such a reason eliminates the finding of any intent on Respondent's part to defraud, misrepresent, file false reports or exploit either Medicaid or his patients.

     
     

224. The third key fact which causes the Department to fail to present a clear and convincing case of fraud, misrepresentation, filing false reports, or exploitation by Dr. Boyd is that the evidence demonstrated that, in regards to amalgam restorations which are borderline amalgams, it is virtually impossible for a dentist who did not perform the dental work or see such work done to determine whether the interior surface of a tooth has been touched by an amalgam.

     
     

225. Fourth, the evidence in relation to scaling and curettage, delivery of dentures, behavioral management fees and multiple billing, clearly, boils down to the interpretation of a contract between Dr. Boyd and Medicaid as to which billing codes should be used in a given situation, when a Medicaid

     provider can demand payment from Medicaid and how a Medicaid provider may demand payment from Medicaid. None of these areas may be regulated by the Board absent specific statutory authority and none may subject a licensee to discipline for allegedly breaching a Medicaid contract. Peck v. Peck v. Department of Business Regulation, Division of Land Sales and Condominiums, 371 So.2d 152, (Fla. 1st DCA 1979); and Fleischman v. Department of Professional Regulation, 441 So.2d 1121 (Fla. 3d DCA 1983). The fact that one of the parties to the contract is a governmental agency is irrelevant and does not create any greater burdens or performance guarantees than any other normal contractual situation. Put simply, failure to perform according to a contract of service is not tantamount to fraud regardless of who the parties to the contract are. Brod V. Jernigan, 188 So.2d 575, (Fla. 2d DCA 1966); and Fleischman, supra. Similarly, the Board cannot blindly adopt such standards of practice which have their sole legal basis in a private contractual arrangement since to permit such an action would be tantamount to permitting the Board to do indirectly what it cannot do directly and in essence would impose contractual terms on practitioners who may not be Medicaid providers and have not entered into such a contract with Medicaid.

     Therefore, to the extent the Department has attempted to establish such standards in this proceeding, such attempt is rejected. See Peck, supra.

     
     

226. Finally, in relation to the scaling and curettage performed by Dr. Boyd, Respondent had authorization to perform the services for which he billed. It is incredible given this authorization, that the Board would pursue allegations of fraud, filing false reports, misrepresentation and exploitation against Dr. Boyd in relation to such scaling and curettage and the use of its associated billing code. Therefore, all of the Counts alleging violations of Subsections 466,028(1)(j), (l), (n), (u) and (bb), Florida Statutes, should be dismissed.

     
     

227. Section 466.028(1)(m), Florida Statutes, requires a dentist to maintain patient records and medical history records justifying the course of treatment, including patient histories, examination results, and test results. Importantly, there was no Board Rule which further defined any record keeping standards in effect at the time these patients were seen by Dr. Boyd. Therefore, those standards were the standards of practice which existed in the community at the time the patient was seen by Dr. Boyd control the scope of what is required to be in properly maintained dental records pursuant to Section 466.028(1)(m), Florida Statutes.

     
     

228. In this case, the relevant time period is 1983 and 1984. The better evidence demonstrated that the standards of practice in 1983 and 1984 included a requirement that a treatment plan in some form be included in a patient's record unless the patient was an episodic patient or a patient for which a treatment plan would serve no purpose. The evidence showed that Dr. Boyd met the standards of record keeping in effect in 1983 and 1984 in regards to all the patients involved in Counts I - XVIII, except for patients J.S., A.S., M.W. and

     K.W. whose records did not contain any treatment plan. Therefore, in regards to patients J.S., A.S., M.W. and K.W., Respondent's patient records fell below the prevailing minimum standards for record keeping in Pensacola for the years 1981- 1985 in violation of Section 466.0028(1)(m), Florida Statutes. Since the violations appear to be exceptions to Dr. Boyd's usual practice and did not impact on the treatment given the patients, these violations should be treated as one violation. Additionally, for similar reasons, these violations are minor violations of Chapter 466, Florida Statutes and should only receive the most minor of penalties.

229. Section 466.028(2), Florida Statutes (1987), authorizes the Board to impose one or more of the following penalties when it finds a licensee guilty of any of the acts described in Section 466.028(1), Florida Statutes.

     
     

     1. revocation or suspension of a licensee;

     2. imposition of an administrative fine not to exceed $3,000 for each count or separate offense;

     3. issuance of a reprimand;

     4. placement if the licensee on probation for a period of time and subject to such conditions as the Board may specify, including requiring the licensee to attend continuing education courses, demonstrate his competence through a written or practical examination, or work under the supervision of another licensee' and

     5. restricting the authorized scope of practice.

        
        

230. Clearly, given the very minor nature of the violations cited above, only a reprimand should be issued to Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation enter a Final

Order issuing a letter of reprimand Respondent's license;

DONE and ORDERED this 9th day of July, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FTh 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1991.

ENDNOTES

1/ Petitioner did not indicate whether the Auditor General's Office was served with a subpoena to produce the evidence and somehow refused to comply with such a subpoena.

2/ Dr. Kekich's only claim to expertise in the area of Medicaid practices is that he is familiar with the Medicaid manuals and the "standards of performance" for Medicaid providers in Florida.

3/ Dr. Donald McLeod, D.D.S., was also hired by the Fraud Unit to conduct an independent examination of eleven of these eighteen patients. Dr. McLeod's results differed somewhat from Dr. Kekich's results and do constitute admissable hearsay since those results corroborate other examination results in this case. Dr. McLeod's results do not materially alter the findings in this Recommended Order.

4/ No such opportunity was afforded Ms. Powell on the Medicaid bills at issue in this proceeding. The first time either Ms. Powell or Dr. Boyd learned of the questioned Medicaid bills was when Dr. Boyd was arrested for Medicaid fraud.

5/ It was contended in Petitioner's Proposed Recommended Order that the prevailing standards of care in dentistry require that the dentist note in the patient's records all x-rays that are taken. There are three problems with this contention. First, there was no rule requiring that such information be placed in a patient's record. The testimony regarding this alleged requirement was vague at best and is not given great weight. Second, the evidence did not indicate whether X-rays of patient's S.C.`s teeth were taken by Dr. Boyd.

Without such evidence, it is impossible to determine whether X-ray information should be in S.C.`s pateint record. Third, the Amended Administrative Complaint did not allege any facts relating to the inclusion or the exclusion of X-ray information in a patient's records. Therefore, Petitioner has failed to demonstrate that Respondent is guilty of poor record-keeping on patient S.C., regarding any X-ray data.

6/ Frankly, it is doubtful whether a behavior management problem constitutes "a course of treatment" which may require a more detailed notation than the notation in M.G.`s record since there may not be any "treatment" involved in such management problems.

7/ Importantly, in all the charges relating to patients with behavior management problems, the Department's expert's opinion was based more on the fact that he did not believ'~ the "management problem" notations in Dr. Boyd's patient records rather than on whether he had any knowledge of the behavior these patients exhibited while in Dr. Boyd's office.

8/ 0f all the things T.H. testified to her clearest recollection of her appointment with Dr. Boyd was the acute pain. It was clear in her demeanor that she blamed Dr. Boyd for the pain she underwent during this appointment and did not think highly of that fact.

9/ Of grave concern in this case, including all of the patients and Counts of the Amended Administrative Complaint, is the fact that this case is extremely old and because of that fact, Dr. Boyd has very little, if any, independent recollection of these patients and their appointments. The concern is that Dr. Boyd's inability to recall events due to the passage of time in this case (for which he was not at fault) has severely impaired his ability to defend the charges contained in the Administrative Complaint, especially in reference to whether there was a behavior management problem with a patient. Given this effect, the extreme passage of time in this case has impaired Respondent's right to due process in this proceeding. For this reason alone, the various counts of the Amended Administrative Complaint involving behavior management fees should be dismissed.

APPENDIX I TO RECOMMENDED ORDER CASE NO. 89-6718

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 9, 12, 13, 14, 16, 19, 20, 21, 22, 23, 24, 31, 33, 37, 38, 39, 40, 44, 51, 53, 55, 56, 57, 61, 62, 63, 64, 65, 69, 70, 71, 72, 73, 74, 75, 77, 80, 85, 86, 87, 88, 89, 92, 93, 94, 95, 99, 100, 101, 102, 103, 104, 105, 113, 114, 115, 116, 117, 123, 124, 125, 126, 127, 130, 133, 134, 135, 138, 139, 140, 142, 143, 144, 145, 146, 149, 150, 151, 156, 157, 158, 159, 160, 161, 162, 163, 165, 168, 169, 170, 171, 172, 174,

   189 and 191 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

   
   

2. The facts contained in paragraphs 7, 8, 10, 11, 15, 17, 18, 27, 30, 41, 43, 45, 46, 47, 49, 50, 52, 78, 79, 81, 82, 90, 96, 98, 106, 107, 108, 109, 118, 119, 120, 121, 128, 136, 147, 148, 152, 153, 154, 164, 173, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186 and 187 of Petitioner's Proposed Findings of Facts are subordinate.

   
   

3. The facts contained in paragraphs 28, 29, 32, 34, 35, 36, 48, 54, 59, 68, 84, 91, 111, 131, 132, 137, 141, 166 and 188 of Petitioner's Proposed Findings of Facts were not shown by the evidence.

   
   

4. The facts contained in paragraphs 25 and 26, of Petitioner's Proposed Findings of Fact are rejected.

   
   

5. The facts contained in the first and third sentences of paragraphs 42, 66, 110, 129 and 175 of Petitioner's Proposed Findings of Fact are adopted. The second sentence of the paragraphs were not shown by the evidence.

   
   

6. The facts contained in the first and second sentences of paragraph 58 of Petitioner's Proposed Findings of Fact are adopted. The third sentence of the paragraph was not shown by the evidence.

   
   

7. The facts contained in the first sentence of paragraphs 60, 67, 76, 83, 97, 112, 122 and 155 of Petitioner's Proposed Findings of Fact are adopted. The second sentence of the paragraphs were not shown by the evidence.

   
   

8. The facts contained in the first sentence and second sentence of and paragraph 176 of Petitioner's Proposed Findings of Fact are adopted. The third sentence of the paragraph was not shown by the evidence.

   
   

9. The facts contained in the second sentence of and paragraph 199 of Petitioner's Proposed Findings of Fact are adopted. The first sentence of the paragraph was not shown by the evidence.

   
   

10. Respondent's Proposed Findings of Fact did not contain paragraphs numbered 25 or 153.

    
    

11. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 10, 11, both

    paragraphs numbered	12, both paragraphs	numbered 13, both paragraphs numbered
    14, 15, 16, 19, 20,	21, 23, 24, 26, 27,	29, 30, 31, 32, 33, 34, 35, 36, 37, 38,
    39, 41, 42, 43, 44,	45, 46, 47, 48, 50,	51, 52, 53, 54, 56, 57, 58, 59, 60, 61,
    62, 64, 65, 66, 67,	68, 73, 77, 78, 79,	80, 81, 82, 83, 88, 89, 90, 91, 93, 94,
    95, 96, 97, 98, 99,	100, 101, 102, 103,	104, 105, 106, 107, 108, 109, 110, 111,
    112, 113, 114, 115,	116, 120, 121, 122,	124, second paragraph numbered 126, 127,
    129, 131, 132, both	paragraphs numbered	134, 135, 136, 137, 138, 139, 140, 142,
    143, 144, 145, 146,	147, 148, 149, 150,	151, 152, 154, 155, 156, 157 and 158 of

    Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

12. The facts contained in paragraphs 8, 9, 17, 18, 22, 28, 40, 49, 55, 63, 69, 71, 74, 75, 76, 84, 85, 86, both paragraphs numbered 87, 117, 118, 119, 123, 125, first paragraph numbered 126, 128, 130 and 133 of Respondent's Proposed Findings of Fact are subordinate.

    
    

13. The facts contained in paragraghs 70 and 72 of Respondent's Proposed Findings of Fact were not shown by the evidence.

COPIES FURNISHED:

Robert D. Newell, Jr. Robin C. Nystrom Newell & Stahl, P.A.

817 North Gadsden Street Tallahassee, Florida 32303-6313

Paul Watson Thambert

2851 Remington Green Circle Tallahassee, Florida 32308-3749

Jack McRay, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Buckhalt Executive Director

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS REC0MMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner, DPR CASE NO.: 0067143 DOAH CASE NO.: 89-6718

vs. LICENSE NO.: DN 0005532

RALPH M. BOYD, D.D.S.,

Respondent.

/

FINAL ORDER

THIS MATTER came to the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes. However, prior to the Board's final consideration of this cause, the parties entered into a consent agreement. Said agreement resolves all issues of fact and law between the parties. Because no dispute of material fact remains between the parties, jurisdiction in the Division of Administrative Hearings ceases to exist and the Hearing Officer's Recommended Order in Case No. 89-6718 is rejected as being moot. In light of the Agreement for entry of a Consent Order submitted by the parties this matter was heard by the Board of Dentistry pursuant to Section 120.57(3), Florida Statutes, on February 29, 1992, in Pensacola, Florida. The Board considered the Agreement for Entry of a Consent Order between the parties which is attached to this Final Order.

Petitioner was represented by Nancy M. Snurkowski, Chief Attorney. Respondent was represented by Paul Watson Lambert, Attorney At Law. The parties had been properly noticed of the hearing. Upon consideration, it is ORDERED AND ADJUDGED:

1. The Agreement for Entry of a Consent Order is approved and adopted and incorporated herein by reference.

   
   

2. Respondent's license to practice dentistry in Florida shall be REPRIMANDED for failure to prepare practice plans for patients J.S., A.S., M.W., and K.W. in 1983 and 1984. Respondent is required to complete 12 hours of continuing dental education in management of patient care within one year after filing of this Final Order. This required continuing education shall be in compliance with Rule 21G-12, Florida Administrative Code and shall be in addition to any continuing education hours required for biennial renewal of Respondent's license to practice dentistry in Florida.

   
   

3. This Final Order shall be placed in and become a permanent part of Respondent's official record with the Board of Dentistry.

   
   

4. This Final Order becomes effective upon being filed with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 27th day of March, 1992.

BOARD OF DENTISTRY

RICHARD J. CHICHETTI, D.M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by U.S. Mail this 27th day of March, 1992, to Ralph N. Boyd, D.D.S., c/o Paul Watson Lambert, Attorney At Law, 2851 Remington Green Circle, Suite C, Tallahassee, Florida 32308; and by U.S. Mail to Diane Cleavinger, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by hand delivery to Nancy M. Snurkowski, Chief Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0750.

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF DENTISTRY,

Petitioner,

vs. DOAH CASE NO.: 89-6718

DPR CASE NO.: 0067143

RALPH M. BOYD, D.D.S.,

Respondent.

/

AGREEMENT FOR ENTRY OF A CONSENT ORDER

RALPH M. BOYD, D.D.S., referred to as the "Respondent," and the Department of Professional Regulation, referred to as "Department," agree to entry of a Consent Order by the Board of Dentistry pursuant to Subsection 124.57(3), Florida Statutes, providing:

1. At all times material thereto, Respondent was a licensed dentist in the State of Florida.

   
   

2. Respondent was charged by an Amended Administrative Complaint filed by the Department and properly served upon Respondent alleging violations of Chapter 466, Florida Statutes.

   
   

3. A Recommended Order was issued July 9, 1991.

   
   

4. The Department filed exceptions to the Recommended Order and Respondent filed exceptions to the Recommended Order.

5. The Parties agree to the entry of a Consent Order pursuant to Section 120.57(3), Florida Statutes, disposing of the Amended Administrative Complaint. Respondent agrees to accept a reprimand for failure to prepare practice plans for patients J.S., A.S., M.W., and K.W. in 1983 and 1984. Respondent agrees to complete 12 hours of continuing dental education in management of patient care within one year after entry of the Consent Order in addition to those hours required for licensure renewal. The Consent Order will be entered in lieu of further consideration of the Recommended Order and to avoid the expense of further administrative and appellate litigation.

   
   

6. Each Party agrees to bear their own costs of attorneys' fees and litigation and waives the right to seek any attorneys' fees or costs from each other. The Parties agree to waive all rights to seek judicial review of or otherwise challenge or contest the validity of the Consent Order.

   
   

7. Each Party agrees that the Agreement for Entry of a Consent Order will not be of any force or effect unless this Agreement and the Consent Order contemplated by this agreement are approved by the Board of Dentistry.

Paul Watson Lambert Robert D. Newell, Jr.

Attorney at Law Newell & Stahl, P.A.

851 Remington Green Circle 817 North Gadsden Street Suite C Tallahassee, Florida 32303 Tallahassee, Florida 32308 (904) 681-3883

(904) 385-9393

ATTORNEY FOR RESPONDENT ATTORNEY FOR PETITIONER

Docket for Case No: 89-006718

Orders for Case No: 89-006718