Findings Of Fact The parties stipulated to certain facts as follows: Dr. Emory T. Cain is currently licensed as a dentist in Florida holding License No. 4260. Dr. Cain is subject to the juris- diction of the Florida State Board of Dentistry under Chapter 466, Florida Statutes, and the rules and regulations promulgated thereunder. Dr. Cain was served a copy of the Accusation filed by the Florida State Board of Dentistry and the Explanation of Rights and Election of Rights form in accordance with Chapters 120 and 466, Florida Statutes. Dr. Cain answered the allegations contained in the Accusation by indicating on the Election of Rights form that the alle- gations contained disputed issues of material fact and that he elected to have a formal hearing before a hearing officer appointed by the Division of Administrative Hearings. Dr. Cain does not wish to contest the allegations set forth in the Accusation and for the purposes of this hearing, said allegations shall be deemed as true. Additionally, there are further facts which are relevant to this proceeding. On or about October, 1975, Dr. Cain had in his employ, Ms. Charlotte Reavis, whose duties were to serve the normal function of a dental hygienist in the office. Ms. Reavis was not a dental hygienist and Dr. Cain was aware of this fact, having utilized Ms. Reavis as a dental assistant for some time prior to October, 1975. Ms. Reavis, in the performance of her duties, frequently scaled patients' teeth although she performed no deep scaling. The scaling included the re- moval of calculus deposits, accretions and stains from the exposed surfaces of the teeth and the gingival sulcus of patients. This practice continued from approximately October, 1975, until the date of receipt of the Accusation by Dr. Cain, except as noted below. This work was performed under the supervision and control of Dr. Cain who had knowledge of same and allowed sane to be per- formed in violation of Sections 466.02 and 466.24, Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry. On or about November, 1975, Dr. Cain was notified by Harold Ritter, D.D.S. of Tallahassee, that there was some concern re- garding Dr. Cain's use of unauthorized per- sonnel to scale teeth in his office. Dr. Cain discussed this telephone conversation with his associate, Tom Delopez, D.D.S. and for approximately a month the manner in which Ms. Reavis performed her duties was altered. Also, Dr. Cain initiated efforts to locate a dental hygienist during this time. However, Ms. Reavis thereafter began scaling patients' teeth again. In January, 1976, Dr. Delopez initiated a discussion with Dr. Cain regarding the con- tinued use of Ms. Reavis to scale teeth. Dr. Delopez informed Dr. Cain that this practice was prohibited by law and expressed his opinion that it should be discontinued. Dr. Cain informed Dr. Delopez that Dr. Delopez could scale the teeth of the patients he treated but that Ms. Reavis would continue to clean and scale the teeth of other patients. After approximately one month, Ms. Reavis resumed scaling the teeth of patients treated by Dr. Delopez. Dr. Delopez's association with Dr. Cain terminated during September, 1976. On or about September, 1976, Carl Daffin, D.D.S. became employed by Dr. Cain as an associate. Dr. Cain did not disclose to Dr. Daffin that Ms. Reavis was not a dental hygienist and Ms. Reavis continued to perform the same duties, including the scaling of the teeth of patients, until Dr. Cain's receipt of the Accusation filed in this cause. The facts set forth above do show a vio- lation of Sections 466.02(4) and 466.24(e), Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry. The Hearing Officer further finds: The Respondent Dr. Emory Cain enjoys a good reputation among his colleagues and among the medical community in Tallahassee. The consensus of the numerous witnesses produced by the Respondent is that Dr. Cain enjoys a high professional reputation. Dr. Cain also enjoys a reputation as an unselfish contributor to the civic well being of the community. There has been no complaint from the patients of the Respondent that the work done by Charlotte Reavis, a dental assistant employed by the Respondent, that Charlotte Reavis caused injury to a patient. The work done by a dental assistant and the training received by a dental assistant does not equal the work licensed to be done by a dental hygienist and does not equal the amount of training required of a dental hygienist. A deposition of Louis Pesce, D.D.S., taken on behalf of the Florida State Board of Dentistry was received and considered by the Hearing Officer subsequent to the hearing and depositions of Shelley Register, Jo Ann Barnes, and Elizabeth Barber taken at the incident of the Respondent Dr. Emory T. Cain were received subsequent to the hearing. The Respondent Dr. Cain made a minimum effort to find a dental hygienist to work in his office but was satisfied with the work done by the dental assistant, Charlotte Reavis, and continued to use her to perform a procedure lawfully relegated to a dental hygienist, that is the scaling of teeth. The proposed orders of the Petitioner and of the Respondent have been examined and considered in this Recommended Order.
Recommendation Suspend the license of Respondent Cain for a period not to exceed thirty (30) days. DONE and ORDERED this 30th day of June, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Michael Huey, Esquire Post Office Box 1794 Tallahassee, Florida 32302 Thomas F. Woods, Esquire Felix A. Johnston, Jr., Esquire 1030 East Lafayette Street, Suite 112 Tallahassee, Florida 32301
Findings Of Fact The Petitioner, a candidate for licensure as a dentist, was administered the state Dental Examination in June 1988. A part of the exam, the clinical portion, requires that each candidate perform specified procedures on a human patient. The exam procedures are performed in a clinical setting. A floor monitor is present during the examination. After each procedure is performed, the monitor escorts the patient to a grading room. In the grading room, three examiners separately and independently review each candidate's performance. The examiners generally do not discuss or otherwise communicate their opinions or the grades awarded other than to note such on the grading sheet completed by each examiner. The examiners are Florida-licensed practicing dentists. Prior to the examination, the examiners participate in a training session designed to provide a standardized, uniform reference for grading the results of a candidate's performance on the clinical exam. Each examiner awards a numerical grade between 0 and 5 for each procedure. The grade for each procedure reflects an evaluation of the whole of a candidate's performance. Comments are made by each examiner on the grading sheet, either through marking in a computer-scored portion on the sheet, or by written notes outside the computer-scored area. The criteria for each possible grade is as follows: 0--complete failure 1--unacceptable dental procedure 2--below minimal acceptable dental procedure 3--minimal acceptable dental procedure 4--better than minimal acceptable dental procedure 5--outstanding dental procedure The three scores awarded by the examiners are averaged to provide the grade for each procedure. Each candidate is identified on the grading sheet by number so as to prevent an examiner from knowing the identity of the individual candidate being reviewed. Each examiner is also identified by number. Examiners are assigned to grade a candidate through a random selection process. The test monitor is responsible for collecting the grading sheets after each examiner has completed the review. After the grading process is complete, the patient is returned to the clinic for performance of the next procedure. The grading process is repeated for each step. The Petitioner challenges the scores awarded to two of the ten procedures performed as part of the clinical exam. Procedure number two on the exam, the amalgam cavity prep, provides for the preparation of a decayed tooth for filling. Procedure number three, the final amalgam restoration, provides for the filling of the prepared cavity. The two procedures account for 20% of the total points on the clinical examination, divided between procedure two (two-thirds) and procedure three (one-third). On procedure number two, the Petitioner received a grade of 3 from examiner 133, a grade of 4 from examiner 194, and a grade of 0 from examiner 192. Examiner 192 noted that caries remained present in the prepared tooth cavity. Neither examiner 133 nor examiner 194 noted remaining caries, although both identified other areas of concern regarding the candidate's performance. According to the examination rules of the Department, a grade of 0 is mandatory if caries remain after completion of the procedure. There was no evidence to indicate that the review and scoring by examiner 192 was erroneous, beyond the fact that other examiners did not note remaining caries. It is possible, according to expert testimony, for one examiner to identify remaining caries which other examiners fail to discover. The remaining decay can be dislodged by one examiner in reviewing the procedure and therefore not visible to subsequent examiners, or the decay, loosened by the procedure, can be otherwise displaced within the patient's mouth between examinations. On procedure number three, the candidate received a grade of 3 from examiner 101, a grade of 4 from examiner 052, and a 0 from examiner 192. Examiner 192 noted that the functional anatomy, proximal contour, and margin of the amalgam restoration were deficient, further noting that a cervical shoulder existed and that the prepared area was not filled. The evidence did not indicate that the grade awarded by examiner 192 for procedure number three was erroneous or mistaken. According to the evidence, including expert testimony based upon a review of x-rays taken subsequent to completion of the procedure, the grade awarded by examiner 192 was appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Board of dentistry enter a Final Order dismissing the Petitioner's challenge to the grading of the two clinical procedures on the June 1988 dental examination. DONE and RECOMMENDED this 7th day of July, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, APPENDIX CASE NO. 89-0588 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: Rejected. The evidence did not establish that procedure number two is weighted more than all other procedures, but did indicate that procedures performed within the oral cavity are more heavily weighted that procedures performed outside the cavity. Procedures two and three are both performed within the oral cavity. Procedure two is, and, totaled, constitute 20% of the clinical examination. Procedure two provides two-thirds of the 20%, with procedure three providing one-third of the 20%. Rejected, restatement of testimony. The appropriate criteria for the 0-5 grade scale is as stated in Rule 21G-2.013 Florida Administrative Code. Rejected, not supported by weight of evidence. Both examiners noted comments on the grading sheet, either through marking within computer-scored area or by writing additional comments on the grading sheet. Rejected. The evidence did not indicate that it was "customary" for examiners to pass notes through monitors to the candidate. The witness testified that, on occasion, he had passed notes to monitors when he gave a score below three on the referenced procedures. However, there is apparently no requirement that examiners inform candidates, through monitors, of problems which are found during the grading of the candidate's work. Rejected, irrelevant. There is no requirement that the candidate should have been informed of the acceptability of his work or of his scores during the procedure. Rejected, not supported by weight of the evidence. The fact that one examiner identifies specific problem areas which are not identified by other examiners does not indicate that the scores are erroneous or that the standardization process undergone by the examiners was deficient. Rejected, conclusion of law. 14-15. Rejected, goes to weight accorded testimony of referenced witnesses. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 4. Rejected, irrelevant. 9. Rejected, as to characterization of Petitioner's testimony. COPIES FURNISHED: James Sweeting, III, Esquire 2111 East Michigan Street, Suite 210 Orlando, Florida 32806 E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729
Findings Of Fact Frank A. Velez, Jr., D.D.S. has been registered with the Florida State Board of Dentistry since 1967. His latest address on file with the Board is 4640 Orange Blossom Trail, Orlando, Florida. The records of the Board show no licensed hygienist with the same address as Velez or that any licensed personnel are employed by Velez. In November, 1973 Mrs. Margaret B. Laursen went to Dr. Velez for professional services. Velez performed a root canal and took impressions for a partial plate. When the patient returned for the bridge work to be inserted in her mouth Velez removed a tooth before putting in the plate. When the plate was inserted it did not fit and despite several visits to Dr. Velez for adjustment, the plate could not be worn because of the pain and discomfort caused with the plate in place. Finally, in August, 1974, she went to Dr. Barnes. Upon examination Dr. Barnes observed a large root tip which had been left in the cavity from which the tooth was extracted. This root tip was visible without x- ray. The root tip that had been removed and the x-ray showing the root tip were admitted into evidence as Exhibits 5 and 6. After extracting the root tip and adjusting the partial plate Dr. Barnes could not make the partial plate fit, largely because an extension had been added to the plate to take care of the space caused by the extraction of the molar from which the root tip had been left. Dr. Barnes further found that the crown which had been placed on the tooth used to anchor the partial plate had been cracked and the plate could not be securely attached thereto. Since the partial was sitting on top of the root tip at the time it was being fitted by Dr. Velez, the pain would not allow the partial to fit comfortably. Mrs. Estella Livermore saw a brochure from Dr. Velez on a bulletin board in the trailer park where she resided. Therein it said that he would make a full set of upper and lower dentures for $98. Needing dentures she visited Velez in January, 1976. Upon arrival she talked to Velez and the secretary who showed her two sets of teeth; one the $98 set and the deluxe version at $150. As a result of the conversation she authorized Velez to make her a $150 set. At this time Mrs. Livermore had been wearing dentures for about 30 years. On her initial visit impressions were taken and about a week later she went back when the plates were ready. When the new dentures were placed in her mouth she couldn't eat, drink, or talk with them. At Velez's insistence she tried to wear them, but couldn't even drink water with the teeth in. After complaining to Velez he stated that he would make another set. When the other set was prepared they appeared to fit worse than the first set. They were impossible to wear. She called Velez and he stated he couldn't do anything about it. Telephone calls to his office were answered by a recording. Subsequently, she and her husband went by his office to wait him out. When he appeared he was angry because she had not called for an appointment and wanted to know if she wanted him to take some material off the plates. When Mrs. Livermore replied that she didn't know, he took the teeth into his lab for a short while and when he returned shoved them in her mouth and escorted her out. His nurse told her if she came back he would charge her $10 per visit. The teeth still could not be used by Mrs. Livermore and when she complained to the dental society she was referred to Dr. Waldheim, Assistant Secretary Treasurer of the State Board of Dentistry. In February, l976 Dr. Waldheim examined Mrs. Livermore and found the dentures to be oversized with a poor occlusion. The dentures were inadequate for the patient and could not be adjusted to fit. Mrs. Georgia McCampbell visited Dr. Velez in late November, 1975 to have teeth pulled and dentures made. He took impressions of her teeth and approximately one week later when she returned several teeth were extracted and both upper and lower dentures were inserted. The lowers fit badly and would not stay in place. Her next appointment was one week later. During this period of time the dentures were burning and hurting very badly and when she went back for her appointment she did not see Dr. Velez, but was seen only by an assistant. By this time her gums inflamed and abscessed. She told the assistant she had an appointment with Dr. Velez, but was advised that since she was late for her appointment with Velez she could not see him. One of the assistants attempted to fit the dentures by putting them in, but they were hurting too much for her to wear. A few days later she went to Dr. Ford. When Dr. Ford examined Mrs. McCampbell he found the incision extended from second molar to second molar across the lower front part of her jaw. The wound was open and the jawbone was exposed. A pus-like material was observed in the gum. Her temperature was slightly elevated at 99.2 F. He treated her with antibiotics. Mrs. McCampbell advised Dr. Ford that she had teeth removed ten days before and had been back on three occasions but was unable to see the dentist. She could only see a dental assistant. Dr. Ford expressed the opinion that where six or eight teeth in a row are removed sutures would normally be indicated. Three days later upon her return she was beginning to heal and he removed some bone fragments from the jaw. The incision made when the teeth were removed healed in about three weeks. His examination of the dentures that had been made for Mrs. McCampbell showed they were too large and the jaw would not properly close with the dentures in the mouth. Dr. George A. Woodruff, D.O.S., in Titusville knew Dr. Velez when he was practicing in Titusville some two and a half to three years ago and had patients in common with Velez. One of these patients, Sue Flenniken, visited his office in May, 1972 with gum abscess. She advised him that Velez had proposed to treat her with a root canal. In Dr. Woodruff's opinion a root canal would not have helped in her case, as the gum was abscessed. Some two months later the tooth flared up again and extraction was required. Another client shared with Dr. Velez was one Hazel Todd. She was experiencing problems with a Velez-constructed bridge held by three teeth on which root canals had been done by Dr. Velez. Upon examination Dr. Woodruff found the root canal treatment inadequate. One was underfilled just short of the tip of the root, the other two overfilled with the filling sticking out of the end of the root. This was clearly visible in the x-ray. Dr. Woodruff opined, that the three root canals done at the same time on three teeth in a row was contraindicated. Normally when a patient has sensitivity in an area proper treatment would be to narrow down the sensitivity and then do a root canal on the tooth most suspect to see if that cured the problem before proceeding to treat the other teeth. Mrs. Amelia Thomas visited Dr. Velez in June, l976 for replacement dentures. After she paid half of the quoted price a dental assistant took the impressions from which the new dentures were made. On this visit Dr. Velez did not take any impressions. When she returned a week or ten days later to pick up the teeth she was advised that she had to pay the balance of the amount owed on the teeth prior to having the teeth fitted. When she questioned paying for the teeth before trying them Dr. Velez told her abruptly that is the way that he did it. After she made the balance of the payment the teeth were tried in her mouth. They did not fit well and she could not bite comfortably. Velez took part of the material off the teeth and told her to try them out and come back a week or so later for an adjustment. Although she tried to wear the teeth she couldn't talk or eat with them. She considered they were too large and her jaws would not properly close. When she went back to Dr. Velez with her complaint he told her that he had made the teeth to fit and that she was going to have to wear them. She offered to pay him more if he would make another set that did fit but he declined. Velez then brought in another man who checked her teeth and took them out to the lab to work on. About an hour later Velez advised her that he would make her another set of plates and he took impressions to do so. He also asked for her old plate to be left there for a couple of days which she declined to do because she felt she could not get along without them. She did not return for the second set of teeth because she had become uneasy about the work Dr. Velez had done and stopped payment on her second check. Mrs. Thomas has worn dentures for approximately 40 years and this is the first time a dentist had asked her to leave her old dentures for a pattern. Alfred W. Langley saw Dr. Velez in January, 1976 to have a set of dentures made. Dr. Velez took the impressions and when Langley returned approximately one week later for fitting, the teeth fit so badly that Velez would not let Langley out of the office with them. Velez took a second set of impressions but when Langley returned those teeth fit no better and a third impression was taken. When the third set of teeth was made, Langley took those home with him but they did not fit. They wouldn't stay in place and he could not talk with them. Subsequently he visited the consumer protection agency and obtained a letter from the dental board and from the consumer protection agency. When he confronted Dr. Velez with these letters Velez returned the money he had paid for the teeth. These letters from Dr. Waldheim and from the State Attorney's office were received into evidence as Exhibits 7 and 8. Mrs. Louise Rodgers visited Dr. Velez in February, 1976 experiencing problems with her teeth. Another dentist had wanted to do root canals on some twenty-odd teeth but she didn't feel she could afford the approximately $4,000 she had been advised that treatment would cost. She visited Dr. Velez to see if extraction and dentures would be cheaper. Dr. Velez took x-rays and impressions prior to extracting the teeth. On March 4, 1976 Dr. Velez extracted 23 teeth and put in the plates that he had constructed from the earlier impressions. She immediately inquired if the upper plate was supposed to be as loose as the one in her mouth appeared to be. Under instructions she kept the plate in all afternoon but had to hold her finger on the plate for 3 or 4 hours until the swelling was sufficient to hold the plate in place. Later when she took them out to clean her mouth she couldn't get the plate back in because of the large bone in the way. The following Monday she called the office and was advised to come in on the 11th, some 7 days after the extractions. Dr. Velez was not there and one of the girls in the office tried to put the teeth in but couldn't. Mrs. Rodgers returned the following day and saw Dr. Velez who removed the bone fragment that was in the way. He tried to put the teeth back in but there was too much swelling and the upper part of the jaw was very irritated. When she returned on the 18th of March her gums were still tender but there was no longer any bleeding. On that visit Dr. Velez did some grinding on the teeth so they could be put in her mouth; however, they would not stay in place. Velez advised her to get something gummy and sticky to hold them in. She tried to wear the teeth but they felt too big and would not stay up. She went back on the 23rd of March complaining about her teeth not staying up. She was advised she had to get used to them but he would remake them if she would pay an additional fee of $78. When she called on April 22nd and asked to talk to Dr. Velez the girl said he was extremely busy and couldn't come to the phone. The receptionist advised that she would make her another appointment but she should wait for three weeks. During this time she was still trying to wear the dentures but couldn't eat with them, talk with them, and the uppers kept falling down. When she did return for her final appointment he advised she was just going to have to wear them until she could get used to them. After complaining to the Dental Board Mrs. Rodgers was advised to visit Dr. Waldheim. When Dr. Waldheim examined Mrs. Rodgers in June, 1976 he found that her gums had healed but the teeth did not fit. The occlusial relationship was badly off and the teeth could not be adjusted to fit. Dr. Waldheim further opined that extracting 23 teeth at one time and not seeing the patient until 10 days thereafter was very poor dental practice. In his opinion the patient should always be seen the following day if as many as 23 teeth were extracted. Mrs. Sarah Gier visited Dr. Velez in February, 1976 to have new dentures made. Velez advised her that she could have the $98 set or the $150 deluxe set, but that the $150 teeth were worth approximately $600. She selected the $150 set. At this visit Dr. Velez took impressions and when she returned on February 19 for the teeth the upper dentures appeared all right. Dr. Velez acknowledged that the bottom dentures were wrong and would have to be made over. He then took impressions for the lower plate but when she returned for them they didn't fit. Dr. Velez instructed her to try and wear them. She tried but couldn't wear them because they hurt too badly. When she returned on March 1, a boy in the office removed her teeth, took them back to the lab to work on them. When he returned they still did not fit and he made a second adjustment. When Dr. Velez appeared he advised her that she would probably have to use powder and that it may be several weeks before she would get used to the teeth. Inasmuch as each visit was now costing $10 she didn't feel that she could make more visits. On March 4th Mrs. Gier called and asked for her money back. Initially the receptionist said all right, but called back and advised that Dr. Velez had changed his mind and could not give her money back. Subsequently when she and her husband stopped by to see Velez he told her if she didn't leave he would call the police. Later she visited Dr. Waldheim, to whom she had been referred by the Dental Board. Dr. Waldheim found the dentures did not fit as they were too large and the jaws could not close to their natural position. Using the witness as a model Dr. Waldheim had her insert the teeth at the hearing. It was clearly evident that the jaws were extended by the teeth and the lips would not close. In Dr. Waldheim's opinion those teeth could never be made to fit. In February, 1976 Mr. Joseph Marrone visited Dr. Velez to have dentures made. He had heard that Dr. Velez was reasonable and the next door neighbor had recommended Dr. Velez. He had a partial plate held by three teeth on the, bottom that needed to be pulled. When Dr. Velez examined him Marrone was advised it would be better to pull the bottom and top teeth and make a full set of dentures. On the first visit Dr. Velez made impressions for the lower plate. On Mr. Marrone's second visit the lower plate was ready and was placed in his mouth. Although the receptionist told him not to take them out they hurt so badly that he had to. When he returned a few days later two girls in the office examined his teeth and made adjustments on them. However, the teeth never fit and were causing bruises and sores in the gums. He could not eat with them. Thereafter Dr. Velez made a second full set of teeth, but they too did not fit. After several adjustments were made Velez advised this would be the last time he could adjust them and if they didn't work he could do nothing more about it. Mr. Marrone then asked him to return his money `and he would go to a dentist who could prepare him a set of dentures he could wear. When Marrone subsequently complained to the dental board he was referred to Dr. Waldheim. Dr. Waldheim's examination of the dentures showed the lower plate extended and it could not be corrected to fit. Mr. Marrone was then referred to another dentist who was able to adjust the upper plate that had been made by Dr. Velez to fit but it was necessary to make a new lower plate for Mr. Marrone. With respect to the various patients of Dr. Velez that had been seen by Dr. Waldheim due to improperly fitting dentures, Dr. Waldheim expressed the opinion that the most probable cause of the ill-fitting dentures was in the manner in which the impressions were taken or in the material used in taking the impressions. If improper impression material was used it could have changed from the time the impression was taken until the time it was used for the mold for the dentures. None of the dentures made for the patients of Dr. Velez that were seen by Dr. Waldheim could have been adjusted so they would fit. Connie Bragdon and Marie Minzenberger worked in Dr. Velez's office in 1975 and 1976. Both had received training from Dr. Velez, both worked as Dr. Velez's assistants, both took impressions from which dentures were made, and both adjusted dentures. They were instructed to give a copy of the letter, admitted into evidence as Exhibit 9, to all patients. These letters contained a map showing the location of the office on the back and advised the prices that the doctor charged for various services. Letters similar to those in Exhibits 2, 4 and 9 were mailed to patients who called and requested information. Rebecca Velez, wife of Dr. Velez, testified over the objection of the attorney for Respondent, who objected on grounds of the husband and wife privilege. Mrs. Velez had worked in the office for approximately one and one half years in 1975 to early 1976. She too had received no previous training. She acknowledged that Exhibits 2 and 4 were very similar to those that were in the office and were given to all patients who visited the office. Dr. Henry Gagliardi, D.D.S. is a dental educator who established a dental hygiene school at the Florida Junior College in Jacksonville. Dr. Gagliardi defined a dental auxiliary as an individual working with or for a dentist. This person can be either a dental assistant or a hygienist; however, the latter requires a license and two years training. A dental assistant may be employed with no preparation or training. A hygienist can scale teeth, use instruments in the mouth, and take impressions. A person not licensed by the dental board may not legally take impressions from which a prosthetic device will be made, but they may take impressions for diagnostic purposes only. A dental assistant may not alter a prosthetic appliance (denture). If an extension on a prosthetic device causes problems to the patient the diagnosis and correction of this problem must be done by a dentist. Since the determination of the accuracy of the bite on a prosthetic device is very important, this is another task that must be done by the dentist and not by an auxiliarist. Dentures are often placed into the oral cavity immediately after extraction and when so done they act as a splint until the cavities heal. In the normal process gums will shrink following extraction of teeth and thereafter the dentures will require adjustment. Improperly fitting dentures can cause lack of equilibrium in the jaws, sore gums, and sores in the mouth. In December, 1973 Mrs. Norma Laursen, daughter-in-law of Margaret B. Laursen, visited Dr. Velez on an emergency basis to have a broken tooth repaired. Dr. Velez was unable to take her case at that time. Several months later she and her husband received an envelope in the mail containing a letter which was introduced into evidence as Exhibit 2. The introduction of Exhibit 2 was objected to on the grounds that there was no evidence that it was signed by Dr. Velez or sent by Dr. Velez. Ruling on this motion was deferred at that time. Since subsequent exhibits indicate that this letter was one of many of a similar kind that were distributed to various individuals, the objection is overruled and Exhibit 2 is admitted into evidence. Robert E. Laursen corroborated the testimony of his wife, Norma. James E. Stone, of Titusville visited Dr. Velez while Velez was practicing in Titusville some two and one half to three years ago. He had chipped a tooth over the week-end and went in to see Dr. Velez for emergency repairs on a following Monday. Dr. Velez took x-rays, filed the tooth down, and advised Mr. Stone that in the future he may need a root canal. Dr. Velez was never his family dentist. Some months later he received in the mail a letter which was offered into evidence as Exhibit 4. Mrs. Stone corroborated the testimony of Mr. Stone with respect to the receipt of Exhibit 4 in the mail. Exhibit 4 was objected to on the same grounds as Exhibit 2 and at the time the ruling on the objection was deferred. For the same reasons given above, Exhibit 4 is now admitted into evidence. Six witnesses, Susan Weiler, Daryl DeVevc, Gustav Jicha, Daisy Smith, Robert B. Smith, and Janice Sidley testified on behalf of Dr. Velez. All had received treatment from Dr. Velez and considered him to be an excellent dentist who did very fine work for each of them. Some had experienced difficulties with dentures made by other dentists, but those prepared by Dr. Velez were excellent. A series of commendatory letters addressed to Dr. Velez were admitted into evidence as Exhibit 13. Attached thereto is an affidavit signed by some 57 former patients to the effect that Dr. Velez had performed dental work on them and they were completely satisfied with his service, his professional conduct and competence as a dentist. Copies of various certificates held by Dr. Velez were admitted into evidence as Composite Exhibit 14.
The Issue Whether Petitioner's licensure examination challenge should be sustained.
Findings Of Fact Petitioner is a dentist who seeks licensure to practice dentistry in the State of Florida and who was a candidate for the dental examination administered by Respondent in December 1990. Each candidate for licensure is given three opportunities to present a patient who presents certain minimal periodontal problems upon whom the candidate can demonstrate his or her proficiency in periodontics. Rule 21G- 2.013, Florida Administrative Code, provides, in pertinent part, as follows: (2)(b) ... It is the applicant's responsibil- ity to provide a patient who is at least 18 years of age and whose medical history permits dental treatment. In order that the examination may be conducted in an efficient and orderly manner, an applicant will be allowed no more than three attempts to qualify a patient during the specified check-in period for each procedure requiring a patient. The candidate is required to select five teeth that meet certain criteria from the candidate's first patient. Rule 21G-2.013, Florida Administrative Code, provides those criteria, in pertinent part, as follows: (4) The grading of the clinical portion of the dental examination shall be based on the following criteria: * * * (b) Periodontal exercise on a patient with a minimum of 5 teeth, none of which shall have a full crown restoration, all of which shall have pockets at least 4 mm. in depth with obvious sub-gingival calculus detectable by visual or tactile means and radiographic evidence of osseous destruction; at least one tooth shall be a multi-rooted molar which shall be in proximal contact with at least one other tooth; none of the 5 teeth shall be primary teeth. All calculus appearing on radiographs must be detectable by visual or tactile means. The patient is thereafter examined by two examiners who are dentists to determine whether each selected tooth meets the criteria. If the examiners determine that one or more of the teeth selected do not meet the criteria, the candidate has a second opportunity and may select additional teeth from patient one, or the candidate may present patient two and select five teeth from the new patient. If the examiners determine that one or more of the teeth selected on his second opportunity do not meet the criteria, the candidate has a third opportunity and may select additional teeth from patient two, or the candidate may present patient three and select five teeth from that third patient. If the examiners determine that one or more of the teeth selected on his third opportunity do not meet the criteria, the candidate receives, pursuant to Rule 21G-2.013(4)(b), Florida Administrative Code, a score of zero on the periodontics portion of the examination. For her first opportunity, Petitioner presented Patient #1 and selected teeth 13, 14, 19, 20, and 21. Examiners 187 and 054 examined the five teeth selected by Petitioner and rejected teeth 13, 20, and 21. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. Patient #1 had been used by Petitioner during the June 1990 administration of the examination. The five teeth selected from Patient #1 in the June 1990 examination had been accepted, but the teeth that had been accepted did not include teeth 13, 20, or 21. For her second opportunity, Petitioner presented Patient #2 and selected teeth 19, 20, 21, 22, and 23. Examiners 176 and 080 examined these five teeth and rejected teeth 19, 20, and 23. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. For her third opportunity, Petitioner again used Patient #2, but substituted teeth 3, 29, and 30 for the teeth that had been rejected in opportunity two, so that the selected teeth were 3, 21, 22, 29, and 30. Examiners 162 and 195 rejected teeth 3, 29, and 30. Neither of these examiners testified and the reasons for the rejection of these three teeth were not given. Petitioner thereafter received a zero on the periodontal portion of the examination, which greatly contributed to her failing the examination. Petitioner received a final grade of 2.51 on the examination. She needed a score of 3.00 to pass the examination. Each of the examiners who are used by Respondent in the administration of the dental examinations is a dentist who has been licensed in the State of Florida for a minimum of five years. Prior to the examination, the examiners undergo a day long standardization session during which the criteria to be applied and the proper method of application are taught. These dentists who serve as examiners examine the patient and the selected teeth from that patient independently of one another. Neither examiner knows the results of the examination performed by the other examiner and neither examiner knows the candidate who brought that patient to the examination. The purpose of the preliminary examination is to determine whether the teeth selected by the candidate meet the criteria established by Rule 21G- 2.013(4)(b), Florida Administrative Code. The form used by the examiners does not require that the reason for the rejection of a tooth to be stated. If both examiners reject a particular tooth, that tooth cannot be used by the candidate. Petitioner failed to present evidence upon which it can be concluded that the teeth she presented from the two patients she brought to the examination met the criteria for examination found in Rule 21G-2.013(4)(b), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which denies Petitioner's challenge to the dental examination. RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of August, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3086 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in the first numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are adopted in material part by the Recommended Order. The proposed findings of fact in the second numbered paragraph of Mr. Irigonegaray's letter dated August 8, 1991, are rejected as being unnecessary to the conclusions reached. The greater weight of the evidence was that the statistics cited by this paragraph were not designed to measure the professional qualifications of an examiner or how he or she grades a particular criteria. Therefore, these statistics do not support Petitioner's contention that the teeth she selected were arbitrarily or capriciously rejected. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact in paragraphs 1-5 are adopted in material part by the Recommended. COPIES FURNISHED: Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vytas J. Urba, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Beatriz Jacobo 175 Fort Wilkinson Road Milledgeville, Georgia 31061
Findings Of Fact At all times relevant, respondent, Peter Kurachek, held a license to practice dentistry, No. DN005429, issued by the State of Florida, Department of Professional Regulation, Board of Dentistry. In 1983, respondent employed Deborah Burr as a chairside dental assistant. Ms. Burr was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During the employment, respondent directed Ms. Burr to cement and remove temporary crowns, fabricate temporary crowns, fabricate temporary bridgework, make adjustments on permanent dentures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. From a period of 1983 into 1985, respondent employed Craig Marcum as a chairside dental assistant. Mr. Marcum was not licensed by the State of Florida as a dentist or dental hygienist nor did he hold an expanded duties certificate. During this employment, respondent directed Mr. Marcum to cement and remove temporary crowns, fabricate temporary crowns, make adjustments on temporary bridgework, make adjustments on permanent dentures, pack retraction cord, and take opposing impressions for dentures. All of the foregoing were done without respondent's direct supervision. Many patients confused Mr. Marcum as a dentist. But the evidence did not prove that the respondent was aware of this behavior. This behavior became a greater problem when the respondent was opening a Sarasota office between May and December, 1984, and Marcum was in the Venice office under the supervision of other dentists. When the respondent re-assigned a trusted assistant to Venice in September, 1984, she told the respondent that Marcum was referring to himself, and holding himself out, as a dentist. The respondent reprimanded Marcum and had him sign a written promise to cease that behavior. There was no evidence that Marcum continued this behavior after the reprimand. On at least one occasion, Eugena Whitehead, respondent's receptionist, observed Mr. Marcum using a low speed drill inside a patient's mouth. Ms. Whitehead immediately informed respondent of Mr. Marcum's conduct. Respondent took no immediate action but allowed Mr. Marcum to continue using the drill. While in respondent's employ, Mr. Marcum wrote dental prescriptions under respondent's name. But the evidence did not prove that the respondent did not dictate the prescription or, if he did not, that the respondent knew about forged prescriptions. In 1983, respondent employed Pam Anderson as a chairside dental assistant. Ms. Anderson was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During this employment, respondent directed Ms. Anderson to cement and remove temporary crowns, fabricate temporary crowns, do temporary fillings, make adjustments on permanent dentures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. In 1983, respondent employed Patricia M. Lacher as a chairside dental assistant. Ms. Lacher was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During this employment, respondent directed Ms. Lacher to cement and remove temporary crowns, fabricate temporary crowns, make adjustments on temporary bridgework, take opposing impressions for permanent dentures, make adjustments on permanent dentures, remove sutures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. In 1983, respondent employed Gwen Green as a chairside dental assistant. Ms. Green was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During this employment, respondent directed Ms. Green to cement and remove temporary crowns, fabricate temporary crowns, make adjustments on temporary bridgework, make adjustments on permanent dentures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. Through 1983 and 1984, Dr. Kurachek imposed an office policy that dental assistants, not dentists or dental hygienists, perform the duties of packing retraction cord, fabricating temporary crowns and bridges to a dentist's specifications, and adjusting permanent dentures to a dentist's specifications, all without direct supervision. Since some time in 1985, the respondent altered his practices to some extent. He no longer has dental assistants place or remove temporary restorations or cement temporary crowns and bridges or take study impressions unless the dental assistant has an expanded duties certificate and is under direct supervision. He does not allow dental assistants to place or remove or cement or recement permanent crowns or bridges, take final impressions for dentures, pack retraction cord, use a handpiece, or drill, in a patient's mouth or do temporary fillings regardless whether the dental assistant has an expanded duties certificate. He still has dental assistants, with or without the expanded duties certificate, make temporary crowns and bridges to his or another dentist's specifications outside of the mouth and adjust permanent dentures to his or another dentist's specifications, both outside the mouth either in a laboratory or in the operatory which serves as a laboratory and both under the direct supervision of the responsible dentist. The respondent understands that these procedures are legal based on his understanding of what DPR representatives have told dental assistants in his employ.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Dentistry enter a final order: holding the respondent, Peter Kurachek, D.D.S.: (a) guilty as charged of five counts of violating Section 466.028(1)(g) and (aa) (1983), one for each of the dental assistants Burr, Marcum, Lacher, Anderson and Green; and (b) guilty of a sixth count, as charged, for violating Section 466.028(1)(bb) (1983); imposing a $5,000 fine payable within 30 days; suspending the respondent's license for a period of six months; and placing the respondent on probation for one year after reinstatement of his license. RECOMMENDED this 15th day of March, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1988.
The Issue The basic issue in this case is whether the Petitioner, Maria I. Galarza, is eligible to take the dental mannequin exam. The Board proposes to deny the Petitioner's application to take the exam on the grounds that the Petitioner's dental degree from the Universidad Central del Este in the Dominican Republic is not the equivalent of four academic years of dental education. The Petitioner contends her degree is equivalent and meets the criteria for taking the dental mannequin exam.
Findings Of Fact Facts stipulated to by all parties Petitioner sought approval of the Board to take the manual skills (mannequin) examination as an avenue toward being certified for licensure as a dentist in Florida with an application dated September 17, 1991. 1/ With her application, Petitioner submitted sufficient evidence to establish that she graduated from high school in Puerto Rico; received a bachelor of arts degree from a college in Puerto Rico; graduated with a "titulo" or degree in dentistry from the Universidad Central del Este (UCE) in the Dominican Republic; has attained an age of more than 18 years; and had completed the National Dental Board Examination with passing scores within the ten years preceding her application. UCE is not a dental school accredited by the Commission on Accreditation of the American Dental Association or its successor agency or any other nationally recognized accrediting agency. UCE is a foreign dental school located in the Dominican Republic. It is a member of the Asociacion Latinoamericana de Facultades y Escuelas de Odontologia (ALAFO). Pursuant to statute and rules of the Board, Petitioner submitted her educational credentials to ECE for a determination as to whether she had completed the equivalent of five academic years of post secondary education including four years of dental education. The Board of Dentistry requires that all graduates of foreign dental schools have their degrees evaluated for equivalency to U.S. degrees by Educational Credential Evaluators, Inc. (hereafter ECE). ECE is headed by Dr. James Frey. ECE has evaluated numerous dental degrees for graduates of Universidad Central del Este. In August 1990 ECE changed its opinion of the degree. ECE believes its previous evaluations finding the degree equivalent are erroneous. The Petitioner attended the UCE dental program from September 1979 to September 30 ,1982. UCE awarded Petitioner credit for previously completed course work and did not require Petitioner to take or complete the following courses in UCE's dental curriculum: Mathematics (4 credits) Literature (9 credits) Philosophy (undetermined credits) Sociology (undetermined credits) Physics (8 credits) Biology (4 credits) UCE has a dental program consisting of three academic semesters per calendar year. Dr. Frey testified that a four year dental degree requires a minimum of 120 semester hour credits. He determined that Ms. Galarza achieved the equivalent of 101.5 semester hours of credit at Universidad Central del Este. Dr. Frey also determined that UCE granted her the equivalent of fourteen additional semester hours of credit for course work already taken at the University of Puerto Rico. The University of Florida has the only accredited dental program in the State of Florida. At the University of Florida, dental students attend courses for three academic semesters per calendar year and the dental curriculum lasts for 3.66 calendar years and a total of eleven semesters. The Board, based upon its review of the Petitioner's credentials and the report from ECE determined the Petitioner has not completed four academic years of post secondary dental education. The Petitioner disagrees with the Board's determination. Facts based on evidence submitted at hearing The dental mannequin examination is an examination given to graduates of dental schools that are not accredited by the American Dental Association. Successful completion of the dental mannequin examination is a statutory prerequisite to taking the licensure examination. The dental education program at UCE is planned as an eleven semester program and consists of approximately 63 courses, for which the university awards a total of approximately 230 credits. 2/ Eleven of the courses are described as being part of the "Curso Comina" the so-called "common courses." The eleven courses that comprise the so-called "common courses" are high school level pre-dentistry courses.3/ These pre-dentistry courses are planned as part of the first two semesters, but in actual practice are taken at random times during the program, sometimes as late as the last semester. The eleven courses that make up the so-called common courses" represent a total of approximately 39 credits 4/ as follows: Mathematics 011 (or 101) 4 Literature 011 (or 101) 5 Phylosophy [sic] 2 Sociology 2 Physics 011 (or 101) 4 Biology 4 Literature 102 4 Dom. Soc. History 2 Mathematics 012 (or 102) 4 General Chemistry 4 Physics 012 (or 102) 4 Total "common course" credits 39 The Universidad Central del Este awarded the Petitioner a total of approximately 233 credits, including the credits that were awarded for either successful completion of, or for exemption from, the so-called "common courses." When the credits for the so-called "common courses" (which as noted above are pre-dentistry courses) are subtracted from the total credits awarded, the Petitioner's transcript reflects a total of approximately 194 credits of dental education. One credit at the dental education program at UCE represents the equivalent of approximately one-half of a semester hour credit at a dental education program in the United States. Accordingly, the Petitioner's 194 credits of dental education at UCE are the equivalent of approximately 97 semester hours at a dental education program in the United States. 5/ A full four-year dental program in the United States consists of a minimum of 120 semester hours of credit, and usually consists of 128 semester hours of credit. The standard length of a semester in a United States dental education program consists of 15 or 16 teaching weeks. The standard length of a semester at the University of Florida dental program is 16 teaching weeks. The length of the typical semester at the Universidad Central del Este consists of 13 or 13.5 teaching weeks. The Petitioner completed all of her course work at UCE during a period of eight consecutive semesters. During her eighth semester the Petitioner began work on her thesis. During that same semester her transcript reflects that she was also taking at least eleven courses totaling 44 hours of credit. 6/ During her ninth semester at UCE, the Petitioner did not take any classes, but spent all of her time working on her thesis. Educational Credential Evaluators, Incorporated, is the only agency approved by the Board of Dentistry to review foreign educational credentials. No other agency has ever been denied approval by the Board. Although the Board's rules permit other organizations to be approved, no other entity has ever requested to be approved by the Board. Educational Credential Evaluators, Incorporated, provides an evaluation of credentials to determine the quantity of education obtained at a foreign school in terms of the United States educational system. At one time Educational Credential Evaluators, Incorporated, was of the opinion that the dental education program at the Universidad Central del Este was equivalent to four years of dental education in the United States. The educational credentials of one of the Petitioner's classmates who also graduated from the UCE dental program in 1982 were earlier evaluated by Educational Credential Evaluators, Incorporated, and determined to be equivalent to four years of dental education. In 1990, following receipt and review of additional information about the dental program at UCE, Educational Credential Evaluators, Incorporated, concluded that its prior opinion was incorrect. The additional information that formed the primary basis for the change of opinion was that UCE was regularly waiving the so-called "common courses" on the basis of students' prior high school work and that UCE semesters were comprised of only thirteen or thirteen and a half teaching weeks. Educational Credential Evaluators, Incorporated, is now of the opinion that the dental program at UCE is the equivalent of only 3.66 years of dental education. 7/ Upon review of the Petitioner's educational credentials from UCE, Educational Credential Evaluators, Incorporated, concluded that she had actually completed the equivalent of only three and one-quarter years of dental education. 8/ This conclusion did not allow any credit for courses that were waived by UCE based on courses taken by the Petitioner at the University of Puerto Rico. The Board of Dentistry has a Credentials Committee that evaluates all applications to take the dental licensure examination, the dental hygiene licensure examination and the dental mannequin examination. The Credentials Committee reviews the educational credentials of applicants who have graduated from foreign dental schools. In its evaluation of foreign credentials, the Board of Dentistry does not accept as part of the statutorily required dental education any credit for course work completed at an undergraduate institution. Since 1987, the Board of Dentistry has relied upon reports from Educational Credential Evaluators, Incorporated, along with its own review of dental school transcripts, licensure applications, and national board examination scores, to determine the eligibility of applicants to take the dental mannequin examination. The Board has always accepted the recommendation of Educational Credential Evaluators, Incorporated, as to the equivalency of dental education. Prior to 1990, the Board of Dentistry generally accepted a dental education from the Universidad Central del Este as meeting the requirement for dental education set forth in the statutes. In 1990, based upon a report from Educational Credential Evaluators, Incorporated, which tended to confirm some of the Board's suspicions regarding the dental program offered at UCE, the Board changed its position regarding the equivalency of a UCE dental education.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case concluding that the Petitioner has failed to prove by a preponderance of the evidence that she has received the equivalent of four academic years of dental education, concluding that the Petitioner is not eligible to take the dental mannequin examination, and dismissing the petition in this case. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 31st of March, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.
The Issue Whether respondent should license petitioner as a dentist, despite the results of his manual skills examination, on account of the alleged unfairness of Examiner No. 170?
Findings Of Fact Petitioner Mohammed Hossein Teimourijam, who has practiced dentistry for five years and once taught dentistry at the National University of Iran, took the dental manual skills examination respondent administered in November of 1987. The examination consisted of nine procedures which each examinee performed on "dental mannequins." By reference to the number with which each applicant identified all of his procedures, examiners recorded their evaluations. Petitioner's Exhibit No. 1. Petitioner's original score was arrived at, as follows: PROCEDURE 006 154 170 AVERAGE 1 2 2 2 2.0 2 2 2 1 1.66 3 2 2 1 1.66 4 5 5 3 4.33 5 3 3 2 2.66 6 5 4 4 4.33 7 2 3 3 2.66 8 4 4 1 3.0 9 3 3 1 2.33 Respondent's Exhibit No. 3; Petitioner's Exhibit No. 3. Anonymous examiners, who did not see petitioner or any other examinee at work, began grading only after the applicants had finished the assigned procedures. The Board preserved the physical product of each procedure, along with the standardized rating sheets three examiners (Nos. 006, 154 and 170, in petitioner's case), filled out in evaluating each procedure. When respondent Board apprised Dr. Teimourijam that he had scored 2.71, below the 3.0 "necessary to achieve a passing status," Petitioner's Exhibit No. 3, he requested reconsideration. As a result, a consultant to respondent, who had attended the same standardization session as the original graders, reviewed the grading sheets and the procedures. With respect to procedures 8 and 9, the consultant concluded either that one of the original graders' comments was not physically verifiable or that one of the original grades was indefensible. Accordingly, three new graders evaluated petitioner's procedures 8 and 9. The results of the regrading were 3, 3 and 4 for each procedure, which brought petitioner's final grade to 2.84.
The Issue The issues in this case are framed by the Notice of Intent to Issue an Order to Cease and Desist, filed by the Florida Insurance Commissioner on August 18, 1992, Dept. of Insurance Case No. 92-CA-058EMM, as modified by the parties' Joint Prehearing Stipulation, filed on March 18, 1993. The Cease and Desist Order alleges in Count I essentially that the United Dental Program of America (UDP) 2/ is a dental service plan that has been operating in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 637, Part III, Fla. Stat. (1991). Count II alleges essentially that, in so operating, UDP and one or more of the other respondents were guilty of various deceptive acts or practices prohibited by either Chapter 637, Part III, or by Chapter 624, Fla. Stat. (1991). In the parties' Joint Prehearing Stipulation, the Department of Insurance dropped all of the alleged deceptive acts or practices except the allegation that sales solicitation materials falsely guaranteed savings of 60 percent or more under the UDP product. Count III alleges essentially that UDP has been transacting insurance in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 624, Fla. Stat. (1991). The Cease and Desist Order also seeks an administrative penalty against UDP in an amount not to exceed $1,000 per violation, and an administrative penalty of $10,000 against each of the other respondents for each dental service plan contract or insurance contract offered or effectuated in Florida.
Findings Of Fact At the time the Florida Insurance Commissioner filed the Notice of Intent to Issue an Order to Cease and Desist in this case, UDP was incorporated in the State of Delaware as United Dental Plan of America, Inc. On December 23, 1992, UDP filed a name change with the Secretary of State of Delaware, and the company has since been incorporated as United Dental Program of America, Inc. Before and after the name change, the company has been referred to as UDP, and the acronym "UDP," when used in this Recommended Order, may refer to the company either before or after the name change. The Department and UDP stipulated that, prior to August 18, 1992, Bob Rose, a/k/a Robert Rosenfeld, by a nationally accessible electronic telephone system, recorded a message of solicitation to subscribers, UDP sales associates, and potential sales associates, which was directed, in part, to Florida residents. They also stipulated that respondents Paul Sheldon, William C. Stinnett, Phillip Young, Richard A. Gilbert, John C. Sparks, Jean Joseph and Nick Virenza, a/k/a Nick Verrengia were UDP sales associates who sold UDP memberships in Florida prior to August 18, 1992. The individual named respondents did not enter into the stipulation referred to in the preceding paragraph. However, the UDP stipulation is viewed as evidence on which the findings in the preceding paragraph can be based. Prior to August 18, 1992, without Department approval, UDP sales associates in Florida, including the named respondents referred to in Finding 2, were active in selling subscriptions to UDP's Dental Program to Florida residents, and held meetings for the purpose of selling the Dental Program and recruiting sales associates. There are 1,981 subscribers in the State of Florida. There was no evidence as to which of the 1,981 subscriptions sold in the State of Florida were sold by which of the individuals identified in Finding 2. UDP is not, and has never been, licensed under the Florida Insurance Code. UDP sells an annual membership to its subscribers. There is an individual membership costing $85 a year and a family membership costing $150 a year. If UDP resumes operations in Florida, the annual fees will be $140 for senior couples, $155 for other couples, $170 for families, $80 for senior individuals, and $95 for other individuals. Subscribers are given a one year membership card. For one year from the subscription date, the subscriber receives an annual no-cost dental checkup and x-rays pursuant the UDP subscriber and provider agreements. Subscribers are provided a list of dentists in their geographic area (and elsewhere, if requested) (a "dental directory") who have entered into an agreement with UDP to be on the list. By agreeing with UDP to be on the list, dentists agree that, if they accept a subscriber who has not yet had his or her annual checkup and x-rays, they will do the checkup and x-rays at no cost. They also agree to charge the subscriber for other dental services performed during the subscription year in accordance with a schedule of presumptively reduced fees or, if a procedure is not scheduled, for a 25 percent discount from their usual and customary fees. UDP marketing materials assert that the scheduled fees are lower than the "typical costs." If participating dentists accept subscribers, they agree to abide by the agreement with UDP described in the preceding paragraph. The participating dentists are not obligated to accept subscribers as patients. They have "the right within the framework of professional ethics to reject any patient seeking [their] professional services." The contractual documentation does not further clarify whether, once a participating dentist begins a procedure for a subscriber, the dentist is obligated to complete it or whether, once a procedure is completed for a patient, the dentist is required to accept the patient if the patient returns for additional procedures or services. Notwithstanding the unclear contractual provisions, UDP professes a desire to effectuate an understanding with participating dentists that they will accept UDP patients "on an equal basis" with their other patients. It is not clear how UDP would propose to reach or enforce this understanding. Subscribers are free to use, or attempt to use, any dentist on the list, or directory, and are free to change dentists as often as they choose. (They also remain free to use any dentist not on the list, or directory, under any financial arrangements to which the patient and dentist might agree, but they would not be entitled to benefits under the UDP program.) Except for the annual checkup and x-rays, they are obligated to pay the discounted fees directly to the dentist. Under the UDP program, they expect, and are entitled to, no payment from UDP, either to them or to the dentist. Dentists who agree to participate in the UDP program are also free to maintain their own private practice and to participate in any other dental insurance or plan or program that they wish. Under the UDP program, they expect, and are entitled to, no payment of any kind from UDP. If they perform the free annual checkup and x-rays for a subscriber, they receive no payment from any source for those services. If they perform no other services for a subscriber, the dentists have no recourse against either the patient or UDP. If they perform other services for a subscriber, they are entitled to look only to the subscriber for payment, and only in accordance with the UDP fee schedule, or 25 percent discount, whichever applies. UDP is not liable to the dentists for payment of any part of a subscriber's fees. If the subscriber does not pay, the dentists have no claim against UDP. Under the UDP program, the dentists who agree to participate in the UDP program are solely responsible for dental advice and treatment. UDP has no control over the dentist's practice, rates charged (except insofar as the UDP fee schedule applies, or 25 percent UDP discount is necessary), the dentist- patient relationship, or the dentist's personnel or facilities. UDP and the dentists who agree to participate in the UDP program also agree that the dentists will maintain malpractice insurance coverage for their practices in an amount not less than $300,000 per incident. The dentists must provide UDP with a copy of the malpractice insurance. There was evidence that an early brochure developed by UDP before 1992 contained an untrue guarantee of savings of at least 60 percent. But there was no evidence on which a finding of fact can be based that UDP, through any representative, whether or not named as a respondent to this proceeding, ever delivered a copy of the brochure, or made the misrepresentation, to anyone, much less someone in Florida. In addition, other information also was developed contemporaneously from which it could be determined that savings of at least 60 percent were not guaranteed. The Department first notified UDP that the Department believed UDP and the other named respondents were in violation of the Florida Insurance Code by letter dated March 5, 1992. Between March 5, and August 18, 1992, UDP and the Department engaged in numerous informal telephone and written communications through which UDP attempted in good faith to persuade the Department that UDP was not subject to regulation under either Chapter 637, 624 or 626 and that UDP was not in violation. It was not established how many, if any, of the 1,981 subscriptions UDP sold in Florida occurred after March 5, 1992. According to the Joint Stipulation between the Department and UDP, none of the subscriptions were sold after August 18, 1992, the date of the Cease and Desist Order issued against UDP and the other named respondents. There was no evidence contrary to this stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order: (1) finding that United Dental Program, Inc. (UDP) is a dental service plan corporation subject to regulation under Part III, Chapter 637, Fla. Stat. (1991); (2) finding that individuals who represent UDP are subject to regulation under Section 637.415, Fla. Stat. (1991); (3) finding that UDP and some of its representatives sold 1,981 subscriptions in Florida without having the authorization required under Part III, Chapter 637, Fla. Stat. (1991); (4) requiring UDP and the individual respondents named in Finding 2 to cease and desist from operating the UDP dental service plan corporation in Florida without having the authorizations required under Part III, Chapter 637, Fla. Stat. (1991); and (5) assessing against UDP an administrative penalty in the amount of $5,000. RECOMMENDED this 23rd day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1993.
