STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF DENTISTRY,

Petitioner,

vs.

MIRANDA WHYLLY SMITH, D.D.S.,

Respondent.

/

Case No. 13-1586PL

RECOMMENDED ORDER

On November 13 through 15, 2013, a final administrative hearing was held in this case in Brooksville before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jack F. Wise, Esquire

Adrienne C. Rodgers, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: John E. Terrel, Esquire

Law Office of John E. Terrel Suite 11-116

1700 North Monroe Street Tallahassee, Florida 32303-0501

STATEMENT OF THE ISSUES

The issues in this case are whether the Board of Dentistry (Board) should discipline the Respondent on charges that she

violated section 466.028(1)(z), (ff), and (gg), Florida Statutes (2009-2012),1/ by: improperly delegating professional responsibilities to persons not qualified to perform them; operating her dental office below minimum acceptable standards; and allowing the administration of anesthesia, in violation of Board rules.

PRELIMINARY STATEMENT

The Petitioner, Department of Health (DOH), filed an Administrative Complaint against the Respondent alleging: in Count I, that she improperly delegated professional responsibilities to persons not qualified to perform them, in violation of section 466.028(1)(z); in Count II, that she aided unlicensed activity, in violation of section 466.028(1)(g); in Count III, that she operated her dental office below minimum acceptable standards, in violation of section 466.028(1)(ff); in Count IV, that she made deceptive representations, in violation of section 466.028(1)(x); in Count V, that she was incompetent or negligent by failing to meet the standard of care in diagnosis and treatment, in violation of section 466.028(1)(l); in

Count VI, that she allowed the administration of anesthesia, in

violation of Board rules and, therefore, section 466.028(1)(gg); and, in Count VII, that she was guilty of fraud, deceit, or misconduct, in violation of section 466.028(1)(t). The Respondent disputed the charges and requested an administrative

hearing. By the final hearing, Counts II, IV, V and VII were dropped, leaving Counts I, III, and VI.

The parties filed a Joint Pre-Hearing Stipulation. At the hearing, the following exhibits were admitted in evidence: Joint Exhibit 1; the Petitioner's Exhibits 1, 3, 4, 6, 7, and 10; and

the Respondent's Exhibits 1, 10 through 14, 22, and 26. The following witnesses testified: Kristina Plumadore, William Hemme, and Lillian Torres, who are expanded-function dental assistants employed by the Respondent; Priscilla Davila, a dental assistant formerly employed by the Respondent; V.S. and E.H., the parents of patients of the Respondent; V.C., a patient of the Respondent; William Robinson, D.D.S., a general dentist; Jonathan Disbury, M.D., an anesthesiologist; and Lori DePina, Kent Whylly, and Lisa Mello, office employees of the Respondent. (The transcript of the deposition of L.C., who was a patient of the Respondent, was received as Petitioner's Exhibit 10 in lieu of live testimony.)

The Petitioner's Exhibit 6, which was identified as the Respondent's application for conscious sedation permits with supporting documents, was received subject to appropriate authentication by affidavit. The Respondent moved to strike the exhibit provided with the affidavit on the ground that it added pages to the exhibit presented at the hearing. The Petitioner responded that no pages were added, which the Respondent conceded

after a closer inspection. However, the Respondent maintained that portions of the exhibit should be stricken because it contained pages (the ones initially alleged to be added) that were not described in the name given to the exhibit.

Essentially, the exhibit was the application file, not just the application and supporting documents. The Respondent's late objection is overruled, and the motion to strike is denied.

Ruling was reserved on the Petitioner's objections to the Respondent's Exhibits 4, 5, 8, 19, 25, and 29. The parties were given an opportunity to address those objections post-hearing, which the Petitioner did. Upon further review of the exhibits and the arguments, the objections are sustained.

The parties were given an opportunity, post-hearing, to address the Respondent's objection and motion to strike the testimony of Dr. Robinson on the ground the Respondent had contacted him about testifying on her behalf. The Respondent objected and moved to strike representations made in the Petitioner's post-hearing filing about telephone conversations with Dr. Robinson after the hearing concerning his contact with counsel for the Respondent. Upon consideration of all the filings, the Respondent's objections are overruled, and her motions to strike are denied.

The Transcript of the final hearing was filed, and the parties filed proposed recommended orders that have been considered.

FINDINGS OF FACT

1. The Respondent, Miranda Whylly Smith, D.D.S., holds license DN15873, which authorizes her to practice dentistry in the State of Florida. She has held this license since

   January 2002. No discipline has been imposed against her license to date.

2. Since July 2009, the Respondent has owned and operated a dental practice called "Smiles and Giggles" in Spring Hill, Florida. Prior to May 2011, Smiles and Giggles was located on Mariner Boulevard; in May 2011, it moved to County Line Road.

3. The Respondent is the only dentist practicing at Smiles and Giggles. She employs dental assistants, not dental hygienists.

   Count I--Improper Delegation

   
   

4. Count I charges the Respondent with improperly delegating professional responsibilities to her dental assistants.

5. Expanded-function dental assistants employed by the Respondent have included: Lillian Torres, who worked at Smiles and Giggles from late 2009 to March 2012 and functioned as the "head dental assistant" with responsibility for overseeing the

   
   

   work of other dental assistants working in the office; Kristina Plumadore, who has worked there since 2009; and William Hemme, who has worked there since late 2011 and now serves as head dental assistant. Priscilla Davila worked there as a dental assistant without an expanded-function certificate from May 2011 to August 2011.

6. Incorporated in that charge are specific factual allegations regarding Ms. Torres and an unnamed male expanded- function dental assistant (who, the evidence revealed, was

   Mr. Hemme). (The Administrative Complaint includes other specific allegations based on statements from other dental assistants who did not testify, and those allegations are omitted here, since there was no evidence to support them.) Also incorporated in the charge are general factual allegations that all dental assistants improperly performed many of the same tasks at the direction of Ms. Torres and Mr. Hemme, with the Respondent's knowledge and approval, including taking impressions and bite registrations2/ for dentures, delivering dentures, adjusting dentures with grinding devices, using drills on cavities, filling cavities, and other tasks for which they were not qualified.

7. Count I charges that the Respondent delegated to dental assistants the taking of final impressions for dentures and the making of adjustments to dentures, including the use of

   
   

   high- and/or low-speed drills, which made unalterable changes to the teeth.3/

8. As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres took the final impressions for dentures for a patient, L.C.; that Mr. Hemme adjusted dentures for the patient L.C. by "grinding [them] down"; and that both Mr. Hemme and Ms. Torres did "[a]ll denture fabrication and adjustment procedures" for L.C. In some respects, L.C.'s testimony on this allegation was inconsistent with the dental records introduced by the Respondent, which are more accurate in those respects. L.C. presented to the Respondent in late 2009. Initially, it was planned that a partial upper denture would be made, and an immediate complete lower denture would be made for use after her remaining lower teeth were extracted. In mid- January 2010, the plan changed, and an immediate complete upper denture was made for use after her remaining upper teeth were extracted. The upper teeth were extracted in mid-January 2010, and the immediate upper denture was fitted. In July 2010, attempts were made to adjust the denture because it was uncomfortable and also loose. In October 2011, L.C. returned to Smiles and Giggles with more complaints that the upper denture did not fit correctly and was loose. In late October and early November 2011, the upper denture was relined in an attempt to address the patient's complaints, but her complaints persisted.

   
   

   Later in November 2011, impressions were done for the patient's immediate complete lower denture. In January 2012, the patient's remaining lower teeth were extracted, and her immediate lower denture was fitted and adjusted. L.C. continued to complain about the fit of both dentures, and several attempts were made in the spring of 2012 to adjust them, to no avail. The patient then complained to Medicaid, and she returned to the Respondent to have both dentures redone in January 2013.

9. L.C. testified that the Respondent took no impressions for dentures and did not fit or adjust her dentures until after the spring of 2012. She testified, prior to that all the work was done by Ms. Torres and Mr. Hemme. Ms. Torres and Mr. Hemme testified that they took impressions, but not final impressions or bite registrations, which were done by the Respondent. The dental records reflect that the provider of all these services was the Respondent. However, in this instance, the patient's testimony is credited, and the contrary testimony of Ms. Torres and Mr. Hemme (as well as the possible contrary inference from the dental records) is rejected.

10. On questioning by counsel for the Respondent, Mr. Hemme appeared to take the position that the impressions were not final because they were for immediate dentures, which sometimes are replaced by permanent ones. However, it is clear from the evidence that L.C.'s immediate dentures were intended to be

    
    

    permanent. It was not until after her complaints to Medicaid that the Respondent agreed to make permanent dentures for her.

11. Most, if not all, dental assistants working at Smiles and Giggles took impressions for dentures. It is not clear from the evidence whether these were all final impressions, except in the case of the patient L.C.

12. Another patient, V.C.,4/ testified that Ms. Torres also took final impressions for her dentures. The testimony was elicited, in part, as proof of what paragraph 72 of the Administrative Complaint alleges Ms. Davila5/ witnessed.

    Ms. Davila's testimony gave no indication that she witnessed dental care being provided to V.C., and it seems unlikely from the evidence that Ms. Davila's short tenure working for Smiles and Giggles included the time when the care in question was provided to V.C. No dental records were introduced regarding the patient V.C. that could have helped answer that question. The testimony of the patient V.C. also could have been elicited as proof of a general allegation in paragraph 70 of the Administrative Complaint that all Smiles and Giggles dental assistants supervised by Ms. Torres performed various unauthorized tasks, including making dentures.6/

13. According to Mr. Hemme, he adjusts patients' dentures by using a handpiece to polish or smooth down rough spots where they come in contact with the gums to try to make them fit more

    
    

    comfortably. This is what he says he attempted to do to L.C.'s dentures. According to Ms. Torres, she uses an acrylic burr to "bring down high spots" that are identified by the Respondent and to make "minute adjustments" to dentures. These adjustments can be remedied only by making a new set of dentures.

14. Although evidence was presented regarding the taking of bite registrations, the Administrative Complaint does not allege that the Respondent delegated this task to dental assistants. In any event, the evidence was not clear and convincing that dental assistants at Smiles and Giggles took bite registrations for dentures for patients other than L.C. To the contrary, there was no evidence that they did, and several denied it.

15. Count I charges that the Respondent delegated to dental assistants the placement of filling materials and the use of dental instruments, including high- and/or low-speed drills, which made unalterable changes to the teeth.

16. As the factual basis for that charge, the Administrative Complaint alleges: that Ms. Torres has admitted to placing amalgam and composite fillings, using low- and high- speed drills, and using a spoon excavator to take out the upper part of a cavity during the time she worked at Smiles and Giggles; and that all assistants working at Smiles and Giggles, while Ms. Torres worked there, used low-speed drills, all with the Respondent's knowledge or direction. The Administrative

    
    

    Complaint also alleges that Ms. Davila saw dental assistants use high-speed drills and complete fillings on patients during the time she worked at Smiles and Giggles, all with the Respondent's knowledge or direction. The Administrative Complaint also alleges that Ms. Torres "placed fillings" for a patient, T.F., when she had dental work done at Smiles and Giggles in the summer of 2011.7/

17. The evidence was clear that dental assistants at Smiles and Giggles were using flowable resin to fill cavities. This is a composite material that hardens when cured and can only be removed by being drilled out by the dentist using a high-speed handpiece. Dental assistants at Smiles and Giggles also were packing amalgam filling material to fill cavities. The Respondent would then review the restoration. If adjustments were needed, the Respondent or, sometimes, a dental assistant would use a slow-speed handpiece to try to bring down rough or high spots.

18. After the patient T.F. was diagnosed with cavities in the summer of 2011, she returned to have those teeth restored. The Respondent used a drill to prepare the cavities for filling, and Ms. Torres placed composite material. The Respondent then left the room, and Ms. Torres used a slow-speed handpiece, with a burr attached, to grind down the filling to correct the bite.

    
    

    The Respondent did not return to re-examine T.F. before she left the office that day.

19. The Respondent seems to take the position that fillings done by dental assistants were temporary fillings, to be followed by permanent restorations at a later date. But sometimes they were intended to be permanent. Even if intended initially to be temporary, if the patient did not return to have the temporary filling replaced by a permanent restoration, the temporary filling became de facto permanent. In either case, once placed, the filling material could be removed only by being drilled out with a high-speed drill.

20. At some point in 2013, the dental assistants at Smiles and Giggles were told not to place filling material or bring down high spots any more. The source of this directive was not clear from the evidence, but it can be inferred that it came from the Respondent. By mid-October 2013, those tasks were being performed by dental assistants only "every once in a while" and are not being performed by them any longer, according to

    Ms. Plumadore.

    
    

21. Count I charges that the Respondent delegated to dental assistants the performance of full-mouth debridement.

22. As the factual basis for that charge, the Administrative Complaint alleges generally that the Respondent

    
    

    delegated to dental assistants at Smiles and Giggles the task of performing full-mouth debridement. No specifics are alleged.

23. A cavitron is a device that uses ultrasound and water to remove plaque. It is used in the subgingival area, i.e., on the parts of teeth at the gum line and under the gums, as part of a full-mouth debridement.

24. At the hearing, the patient T.F. testified that Ms. Torres used a cavitron to clean plaque from her teeth,

    including in the subgingival area. Ms. Torres admitted using the cavitron, but denied using it in the subgingival area. The patient was numbed by a local anesthetic, which would have made it difficult for the patient to sense precisely where the cavitron was being used. The evidence was not clear and convincing that Ms. Torres used the cavitron in the subgingival

    area.

    
    

25. Ms. Davila testified that she saw Ms. Torres and other

    
    

    dental assistants use the cavitron for deep cleaning, which would include in the subgingival area. However, it is not clear how she would have been in a position to ascertain where a cavitron was being used in a patient's mouth. During the relatively short time she worked at Smiles and Giggles, she usually was not in the part of the office where patients' teeth were being cleaned.

    Even if she was in that area of the office, the patient's chair would have been facing away from where Ms. Davila probably would

    
    

    have been standing, so that she would not have been able to observe exactly where the cavitron was being used in the patient's mouth.

26. There was no evidence that the Respondent knew of, or condoned the use of, the cavitron by her dental assistants for full-mouth debridement, including in the subgingival area.

27. Count I charges that the Respondent delegated to dental assistants the initiation of a nitrous oxide mask and the administration of nitrous oxide without direct supervision.

28. As the factual basis for that charge, the Administrative Complaint alleges that Ms. Torres placed a nitrous oxide mask on a minor patient, O.S., and administered nitrous oxide to the patient in August 2010.

29. At the hearing, DOH presented the testimony of the child's mother, who was in the examination room when Ms. Torres placed the mask on her child's face and left. Neither she nor any other staff returned for about 20 minutes, during which the child began to act very calm, relaxed, and groggy, slump in the chair, wave his arms up and down, and act silly. The child was autistic, but this was unusual behavior for him. The mother became concerned and called for help. Ms. Torres returned, took the mask off, and dental work was performed on the patient.

30. Ms. Torres denies that she did anything but put the mask on the patient's face and claims that no nitrous oxide was

    
    

    initiated. This testimony is rejected. It is found that Ms. Torres initiated the flow of nitrous oxide on the child before she left the examination room. The dental records

    indicate that nitrous oxide was administered, which is consistent with the patient's behavior.

31. There was no clear and convincing evidence that it was normal procedure for the dental assistants to initiate nitrous oxide without the Respondent being present. All the dental assistants who testified indicated that they only monitor the flow of nitrous oxide or, at most, adjust the flow at the Respondent's explicit direction during a procedure.

32. Although there were no specific factual allegations about it in the Administrative Complaint, the patient L.C. testified that a dental assistant placed a gas mask on her face when her teeth were being extracted. There was no evidence as to how the flow of nitrous oxide was initiated or administered to L.C.

    Count III--Dental Office Standards

    
    

33. Count III charges the Respondent with operating an inadequately staffed dental office for the number and types of treatments performed for her patients and scheduling too many patients, so that unrealistic time limitations had to be placed on her and her staff, resulting in the office being operated

    
    

    below minimum acceptable standards of performance for the community.

34. At most, the evidence showed that the Respondent operated a dental office that was very busy at times; that full schedules sometimes were exacerbated by emergencies that had to be worked around; that this sometimes resulted in office hours having to be extended into the evening; that the office's function would have benefited from an additional dentist; and that dental assistants at times voiced that the patient load was too high.

35. There also was evidence that the office would have benefited from an experienced office manager/appointment scheduler; that the office eventually did benefit when one was hired; and that the office suffered from the lack of dedication and hard work from some of the dental assistants on staff. Some of them not only slacked off, but also even tried to sabotage the office out of personal animosity towards the Respondent and some of her staff. One of these former dental assistant was fired after she stole drugs from the office.

36. There was no clear and convincing evidence that the Respondent had so many patients that she placed unrealistic time limitations on herself and her staff, or that the result was an office being operated below minimum acceptable standards of performance for the community.

    
    

    Count VI--Sedation

    
    

37. Count VI charges the Respondent with administering anesthesia in a manner that violated the rules of the Board.

38. The factual basis for this charge included allegations that the Respondent did not have a sedation permit from the Board; that the Respondent provided nitrous oxide sedation; that the Respondent had an unsupervised assistant provide nitrous oxide; that the Respondent had dental assistants start nitrous oxide; that children would be placed on nitrous oxide before she was present; that the Respondent had a licensed anesthesiologist provide I.V. sedation with propofol; and that the Respondent's dental office was not equipped, and her staff was not properly trained, as required by statute and Board rules for the administration of I.V. sedation with propofol.

39. The factual basis regarding nitrous oxide refers to the administration of nitrous oxide in the presence of a licensed anesthesiologist. For approximately one year, between 2010 and 2011, the Respondent contracted with Anesthesiology Associates to provide an anesthesiologist to administer anesthesiology to patients who would benefit from it, since the Respondent herself was not authorized to do so. Sometimes, before the Respondent's arrival in the room to perform dental work, the anesthesiologist would direct one of the Respondent's dental assistants to place a gas mask on the patient and initiate nitrous oxide to relax the

    
    

    patient prior to sedation. These allegations are distinct from the previously discussed allegations that the Respondent herself delegated this task to her dental assistants without her direct supervision.

40. In addition to nitrous oxide, which typically was administered by the anesthesiologist to relax a patient before the administration of other sedatives, the anesthesiologist used propofol, versed, and ketamine. Ketamine is an analgesic and sedative that typically was administered by injection to an uncooperative patient, usually a child, prior to the initiation of other sedation. Versed and propofol were administered intravenously. Propofol provided conscious sedation. Patients would be sedated for as long as necessary to complete the procedure, according to the Respondent's estimate. If the procedure was long enough to require too much propofol, versed would be started to complete the procedure. Versed reduces anxiety and relaxes the patient, but does not provide conscious sedation.

41. During this time period, the anesthesiologist typically would go to the Respondent's office two days a week and provide services for six to ten patients a day. He would bring the required drugs and I.V. and other equipment. Later, the equipment was left in a closet at the Respondent's office and any unused drugs sometimes were left in a locked storage closet in

    
    

    the Respondent's office for use the next time. The next time the anesthesiologist came to the Respondent's office, he would get a key from the Respondent or her staff to access the locked storage closet and would inventory and inspect the drugs and equipment to be sure he had what was needed before beginning the day's work.

42. The Respondent or the anesthesiologist provided a crash cart with a heart monitor and oxygen, which was needed to support the breathing of a sedated patient. There was a defibrillator in the Respondent's office, and the anesthesiologist was certified to provide cardiopulmonary resuscitation, if needed. The anesthesiologist testified that he met all the requirements of his license to provide anesthesiology services at the Respondent's office and had everything he needed to provide those services safely.

43. At some point, the Respondent became aware that the Board required her to have a sedation permit to do what she was doing through Anesthesiology Associates. She applied for the permit. For some time after applying, she continued to contract with Anesthesiology Associates to provide these services, but later terminated the contract because she became aware that her sedation permit had not been issued.

    CONCLUSIONS OF LAW

    
    

44. Since this is a license discipline case, the Division must prove its allegations by clear and convincing evidence.

    
    

    Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932

    
    

    Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The Supreme Court has stated:

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

    
    

45. In Count I, DOH charged the Respondent with improperly delegating professional responsibilities to persons not qualified to perform them, in violation of section 466.028(1)(z).

46. Section 466.024(1) provides that a dentist "may not delegate irremediable tasks to a dental hygienist or dental assistant, except as provided by law." "'Irremediable tasks' are those intraoral treatment tasks which, when performed, are irreversible and create unalterable changes within the oral cavity or the contiguous structures or which cause an increased risk to the patient." § 466.024(11), Fla. Stat. "The administration of anesthetics other than topical anesthesia is considered to be an 'irremediable task' for purposes of this chapter." Id.

    
    

47. "'Remediable tasks' are those intraoral treatment tasks which are reversible and do not create unalterable changes within the oral cavity or the contiguous structures and which do not cause an increased risk to the patient." § 466.024(12), Fla. Stat. Remediable tasks that pose no risk to the patient and are defined by law or rule of the Board can be delegated to dental assistants. Id. By statute, the following tasks are remediable and delegable:

    1. Taking impressions for study casts but not for the purpose of fabricating any intraoral restorations or orthodontic appliance.

       
       

       * * *

       
       

       1. Placing or removing temporary restorations.

          
          

       2. Applying cavity liners, varnishes, or bases.

          
          

       3. Polishing amalgam restorations.

          
          

       4. Polishing clinical crowns of the teeth for the purpose of removing stains but not changing the existing contour of the tooth.

       
       

       § 466.024(1), Fla. Stat. However, a dental assistant cannot be delegated the tasks of gingival curettage or root planing and cannot perform an intraoral procedure "except after such formal or on-the-job training as the board by rule shall prescribe."

       § 466.024(6) and (10), Fla. Stat.

       
       

48. By rule, remediable tasks also are referred to as expanded functions of dental assistants and "are those intra-oral tasks which do not create unalterable changes in the oral cavity or contiguous structures, are reversible and do not expose a patient to increased risks." Fla. Admin. Code R. 64B5-16.001(1). The required formal training in expanded functions is specified in rule 64B5-16.002. For certain remediable tasks, on-the-job training also is required. Fla. Admin. Code R. 64B5-16.001(4).

49. Rule 64B5-16.005(1) specifies which remediable tasks (i.e., expanded functions) can be performed under the direct supervision of a dentist by a dental assistant who has received formal training. These include:

    1. Placing or removing temporary restorations with non-mechanical hand instruments only;

       
       

    2. Polishing dental restorations of the teeth when not for the purpose of changing the existing contour of the tooth and only with the following instruments used with appropriate polishing materials--burnishers, slow-speed hand pieces, rubber cups, and bristle brushes;

       
       

       * * *

       
       

       1. Cementing temporary crowns and bridges with temporary cement;

          
          

       2. Monitor the administration of the nitrous-oxide oxygen making adjustments only during this administration and turning it off at the completion of the dental procedure;

       
       

       * * *

       
       

       (k) Using appropriate implements for preliminary charting of existing restorations and missing teeth and a visual assessment of existing oral conditions;

       
       

       * * *

       
       

       (p) Making impressions for study casts which are being made for the purpose of fabricating orthodontic retainers . . . .

       
       

       "Direct supervision requires that a licensed dentist examine the patient, diagnose a condition to be treated, authorize the procedure to be performed, be on the premises while the procedure is performed, and approve the work performed prior to the patient's departure from the premises." Fla. Admin. Code R. 64B5- 16.001(4).

50. Rule 64B5-16.005(2) specifies which remediable tasks (i.e., expanded functions) can be performed under the indirect supervision of a dentist by a dental assistant who has received formal training. These include:

    1. Making impressions for study casts which are not being made for the purpose of fabricating any intra-oral appliances, restorations or orthodontic appliances;

       
       

    2. Making impressions to be used for creating opposing models or the fabrication of bleaching stents and surgical stents to be used for the purpose of providing palatal coverage as well as impressions used for fabrication of topical fluoride trays for home application;

       
       

       * * *

       
       

       (j) Applying sealants;

       
       

       * * *

       
       

       (m) Removing sutures.

       
       

       "Indirect supervision requires that a licensed dentist examine the patient, diagnose a condition to be treated, authorize the procedure to be performed, and be on the premises while the procedure is performed." Fla. Admin. Code R. 64B5-16.001(5).

51. The evidence in this case was clear and convincing that the Respondent delegated tasks to her dental assistants in violation of these statutes and rules.

52. Count III charged the Respondent with operating her dental office below minimum acceptable standards for the community, in violation of section 466.028(1)(ff). "This includes, but is not limited to, the use of substandard materials or equipment, the imposition of time limitations within which dental procedures are to be performed, or the failure to maintain patient records as required by this chapter." Id.

53. The evidence in this case was not clear and convincing that the Respondent violated section 466.028(1)(ff), except to the extent of the Count I violations.

54. Count VI charged the Respondent with violating section 466.028(1)(gg) by allowing the administration of anesthesia, in violation of Board rules adopted pursuant to section 466.017.

    
    

55. Rule 64B5-14.005(1), a rule adopted by the Board pursuant to section 466.017, states:

    No dentist shall administer, supervise or permit another health care practitioner, as defined in Section 456.001, F.S., to perform the administration of general anesthesia, deep sedation, conscious sedation or pediatric conscious sedation in a dental office for dental patients, unless such dentist possesses a permit issued by the Board. A permit is required even when another health care practitioner, as defined in Section 456.001, F.S., administers general anesthesia, deep sedation, conscious sedation, or pediatric conscious sedation in a dental office for a dental patient.

    
    

56. Rule 64B5-14.005(1), another rule adopted by the Board pursuant to section 466.017, defines general anesthesia as:

    A controlled state of unconsciousness, produced by a pharmacologic agent, accompanied by a partial or complete loss of protective reflexes, including inability to independently maintain an airway and respond purposefully to physical stimulation or verbal command. This modality includes administration of medications via parenteral routes; that is: intravenous, intramuscular, subcutaneous, submucosal, or inhalation . . . .

    
    

57. The evidence was clear and convincing that the Respondent violated section 466.28(1)(gg).

58. Through rule 64B5-13.005(1), the Board adopted disciplinary guidelines that establish a range of penalties for violations. For a violation of section 466.028(1)(z), first offense, the penalty range is from a $5,000 fine to a $10,000

    
    

    fine and probation with conditions, and a minimum six-month suspension. For a violation of section 466.028(1)(gg), first offense, the penalty range is from a $5,000 fine to a $10,000 fine and probation with conditions.

59. Rule 64B5-13.005(1) sets out aggravating and mitigating factors to be considered to determine whether the discipline imposed should be outside the guideline's ranges. These include efforts by the licensee to rehabilitate, actual knowledge of the licensee, attempts by the licensee to correct or stop the violation, and refusal by the licensee to correct or stop the violations. These factors do not warrant a penalty outside the guideline's range, but warrant a penalty towards the top of the

range.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order: finding the Respondent guilty of violations under Counts I and VI of the Administrative Complaint; imposing a $10,000 fine; suspending her license for six months; placing her on probation with appropriate conditions for six months after the suspension is lifted.

DONE AND ENTERED this 5th day of March, 2014, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2014.

ENDNOTES

1/ Unless otherwise noted, all statutory references are to Florida Statutes (2013), which reflects the statutes in effect during the relevant conduct of the Respondent. Likewise, all rule references are to the version of the rule in effect during the relevant time period.

2/ However, taking bite registrations is not included in the list of delegations in the Count I charges in paragraph 102 of the Administrative Complaint.

3/ The charge in paragraph 102 of the Administrative Complaint refers to "unalterable changes to the teeth." With regard to dentures, the factual allegations referred to adjustments to the denture.

4/ In the Transcript, this witness twice was referred to erroneously by the initials L.C. (Tr. 381)

5/ The Administrative Complaint refers to Ms. Davila by the initials P.D. and, erroneously, as a male. In the Transcript, Ms. Davila once was referred to erroneously by the initials V.D. (Tr. 390)

6/ In argument on the Respondent's objection to this witness's testimony, paragraph 70 was not cited by the Department, but it was cited earlier in the hearing in the Department's argument for the admission of the testimony of another witness. The argument based on paragraph 70 is better than the argument based on paragraph 72.

7/ The Administrative Complaint also alleges that Ms. Torres performed the oral examination on this patient, that the Respondent only looked at radiographs and that Ms. Torres used a high-speed drill on the patient. Those allegations were not proven by clear and convincing evidence. The patient and

Ms. Torres were acquaintances, and the patient was an orthodontic assistant. The two discussed what Ms. Torres observed and the probable diagnosis and treatment plan, which corresponded with the Respondent's diagnosis and proposed treatment plan. There was no evidence that Ms. Torres used a high-speed drill on T.F.

COPIES FURNISHED:

Susan Foster, Executive Directory Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C-08 Tallahassee, Florida 32399-3258

Jennifer A. Tschetter, General Counsel Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701

John E. Terrel, Esquire

Law Office of John E. Terrel Suite 11-116

1700 North Monroe Street Tallahassee, Florida 32303-0501

Jack F. Wise, Esquire Adrienne C. Rodgers, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 13-001586PL

Orders for Case No: 13-001586PL