Findings Of Fact Background Petitioner, Richard Alan Cohen, sat for the dental licensure examination in December 1992 and received an overall score of 2.98 for the clinical portion of that examination. The minimal passing score for the clinical portion of the examination was 3.0. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 01, 05 and 06. Respondent rejected petitioner's challenge, and petitioner filed a timely request for a formal hearing pursuant to section 120.57(1), Florida Statutes, to contest respondent's grading of those procedures. At hearing, petitioner abandoned his challenge to the grading of procedures 01 and 05. The examination procedure During the course of the examination at issue, the candidates were called upon to exhibit, with regard to procedure 06, certain manual skills relevant to an endodonic procedure. Specifically, the candidate was required to prepare a tooth, which had been extracted and mounted in a mold, for what is commonly called a "root canal." Preparing for the procedure included the cleaning and shaping of the interior of both root canals from each apex (the tip of the root) up to the access area near the crown (top) of the tooth. Thereafter, sealant was to be sprayed into the canal, and gutta percha condensed (compressed) in the canal until it was completely filled. The goal of the procedure was to get a seal within one half to one millimeter of the apex, and to fill the canal so there were no voids. The quality of a candidate's performance on the procedure was graded by three examiners who assigned grades of 0 to 5 based on their assessment of the candidate's performance. The scores assigned were then averaged to derive the score achieved by the candidate on the procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, a grade of "4" represented a better than minimally acceptable dental procedure, and a grade of "5" represented an outstanding dental procedure. See, Rule 61F5-2.013, Florida Administrative Code. Petitioner's examination results Petitioner received a grade of 3.66 for procedure 06, based on scores of 3, 3, and 5 from the individual examiners. Although a passing score on procedure 06, petitioner's overall score on the clinical part of the examination was 2.98; a score below the minimum 3.00 required to pass that portion of the examination. According to the grade sheets, the two examiners who assigned petitioner a grade of 3 observed that petitioner failed to properly fill the canal spaces with gutta percha. In the opinion of the one examiner who testified at the hearing, such observation was based on his examination of an x-ray (petitioner's exhibit 1D) which reflected that the canal was filled beyond the apex and there appeared to be some spacing between the wall of the canal and the filling material. A review of the examination results At hearing, the proof demonstrated that the quality of petitioner's performance on that portion of procedure 06 pertinent to this case is aptly reflected on the x-ray marked as petitioner's exhibit 1D. That x-ray reflects, with regard to one of the canals petitioner filled, what is either a void or filling material beyond the apex of the root. Either event evidences a failure to properly fill the canal space, and warrants a grade of less than 5. Here, petitioner contends he should be awarded a grade of 4 for the procedure. The proof fails, however, to support his contention. If the image reflected by the x-ray is gutta percha beyond the apex, petitioner's performance on the procedure would not meet minimally acceptable dental standards and would merit a failing grade. If on the other hand, the material extending beyond the apex is sealant or the image reflected by the x-ray is a void, the procedure was acceptable, but warranted a grade of less than 5. Under such circumstances, it is concluded that the proof fails to demonstrate that the grades of 3 accorded petitioner were baseless, lacking in reason or that in deriving such grades the examiners departed from the essential requirements of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the subject petition. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1994. Hearings 1550 Hearings 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 22nd day of February
Findings Of Fact An accusation was filed against Respondent by the Petitioner complaining that Respondent had allowed unlicensed personnel to perform certain acts and duties which required a license to perform. Subsequently the parties stipulated that Respondent's license to practice dentistry shall be suspended for a period of six months effective July 25, 1977. The opera- tion of said suspension will be cancelled thirty days after said date and thereafter Respondent will remain on probation, subject to periodic review for the remaining five months. Respondent admits that the facts set forth therein do constitute a violation of Sections 466.02, 466.04 and 466.24, Florida Statutes. The Petitioner in its final order dated July 25, 1977 accepted the stipulation and entered an order essentially quoting the stipulation: Ordered and adjudged: Respondent's license to practice dentistry shall be suspended for a period of six months effective July 25, 1977. The operation and said suspension will be cancelled thirty days after said date and thereafter Respondent will remain on probation, subject to periodic review for the remaining five months. On or about November 14, 1977 a second administrative accusation was filed by the Petitioner against Respondent Davis. It charged Respondent in part as follows: That during the thirty day period in which the license of James R. Davis, III, D.D.S., was suspended pursuant to the final order, James R. Davis, III, D.D.S., continued to operate and maintain his dental practice by allowing his assistants, employees, and other licensed dentists to see and examine his patients, perform dental treatment and charge for dental services rendered. That, based upon the above allegations, James R. Davis, III, D.D.S., has violated the laws of Florida and the standards of his profes- sion because he has been guilty of misconduct in his business affairs in such a manner as to bring discredit upon the dental profession in violation of Florida Statutes Section 466.24(3)(a. Respondent requested subject administrative hearing. The Petitioner, Florida State Board of Dentistry, contends that the Respondent violated the suspension order by continuing to operate and maintain his dental practice by allowing his assistants, employees, and two dentists to see and examine his patients, perform dental treatment, and charge for dental services rendered. Respondent, James R. Davis, III, contends that he did not violate the suspension order and denies that he has violated the laws of Florida and the standards of his profession, or that he has been guilty of misconduct in his business affairs in such a manner as to bring discredit upon the dental profession. The depositions of Thomas Guilday, Esquire and Michael Huey, Esquire and Richard Langley, Esquire were admitted by stipulation into evidence. The testimony of Dr. William B. Kent III, Dr. Bruce Mitchell, Jr., Sally Dawson, Charlotte Mullins, and Dr. James R. Davis III were presented in person. Other documentation pertinent to this hearing was admitted into evidence. The proposed Orders and memorandums were considered. The Respondent, Dr. Davis, has practiced dentistry since 1971 as an employee of a Professional Association, James R. Davis, III, D.D.S., P.A. During the period beginning July 25, 1977 and continuing up to and including August 25, 1977, Dr. Davis did not personally practice dentistry in any manner. He was out of the city and on vacation the major part of that time. Richard Langley, an attorney for Dr. Davis, informed Dr. Davis that the suspension did not pertain to the Professional Association offices of Dr. Davis or to its employees. It was the understanding of Mr. Langley through conversation with two attorneys for the Petitioner, Mr. Guilday and Mr. Huey, that the suspension by the Board went to Dr. Davis personally, and not to the Professional Association owned by Dr. Davis. Neither the Stipulation nor the Final Order which preceded this hearing mentioned the Professional Association and both are styled "Florida State Board of Dentistry, Petitioner, versus James R. Davis, Respondent." The Articles of Incorporation of James R. Davis III, D.D.S., P.A. is a matter of record having been filed August 16, 1971. The Professional Association is also indicated by his professional signs. Dr. William B. Kent, III and Dr. W. Bruce Mitchell, Jr. were issued Board of Dentistry duplicate licenses to practice dentistry in the Respondent Davis' dental offices at 826 DeSoto Street, Clermont, Florida. Doctors Kent and Mitchell practiced dentistry as associates or employees of James R. Davis III, D.D.S, P.A. during the period of Dr. Davis' suspension and absence. There are no guidelines, rules or regulations promulgated by the Petitioner Board which would have given Respondent Davis notice that the suspension would include his Professional Association and its employees. He was not notified verbally. It cannot be assumed that Dr. Davis would close his office except as to a secretary informing those who called that Dr. Davis would not be in for a month, as Petitioner contends he should have. A dentist would not abandon his practice for such a period of time without making provisions for patients, particularly emergency situations absent a clear direction to do so. There is no evidence to show that he was to close the office.
Recommendation Enter an order finding that James R. Davis III is not guilty of violating the laws of Florida and the standards of his profession. DONE and ENTERED this 6th day of March, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Office Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 James B. Byrne, Jr., Esquire 1335 CNA Building 255 South Orange Ave. Orlando, Florida 32801 J. Michael Huey, Esquire Huey and Camper 1020 East Lafayette Street Tallahassee, Florida 32301 Richard H. Langley, Esquire Post Office Box 188 Clermont, Florida 32711
The Issue The issue for determination is whether Petitioner successfully completed the clinical portion of the December 1997 dental hygiene examination.
Findings Of Fact In December 1997, Brandy Kern was a candidate for the dental hygiene examination (Examination). Ms. Kern had completed her dental hygiene studies at the University of Pittsburgh on or about April 29, 1995. She was an excellent student. Prior to making application for the Examination, Ms. Kern had obtained experience in dental hygiene by working as a dental hygienist in at least three dental offices over at least a two-year period in the State of Pennsylvania. Her employers, who were dentists, gave Ms. Kern very positive recommendations. Ms. Kern successfully completed all portions of the Examination, except for the scaling/calculus removal portion of the clinical part of the Examination. As a result, Ms. Kern did not successfully complete the overall Examination. The clinical examination consists of three parts: scaling and calculus removal, polishing, and root planing. The overall score for the clinical examination is determined from all three portions. Scaling and calculus removal counts as 70 per cent of the clinical examination; polishing as 10 percent; and root planing as 20 per cent. Each dental hygiene candidate is graded by three examiners. The clinical portion of Ms. Kern's examination was scored by three examiners. The examiners were 197, 243, and 320. Each examiner is a dental hygienist licensed in the State of Florida and is an experienced dental hygienist. An examiner must be recommended by an existing examiner or by a member of the Board of Dentistry (Board), have no complaints against their license, and be actively practicing. To become an examiner, an application must be completed and submitted to an examination committee of the Board. The committee reviews the application and, if approved, the applicant is placed in a pool of examiners. Before every examination, each examiner is trained in evaluating a procedure to make sure that it is properly performed. The Department of Health (Department) conducts a training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida and are appointed by the Board of Dentistry (Board). To further their training, after the examiners receive their verbal training, the examiners are shown slides of teeth which do not meet the clinical criteria of the examination. To make sure that the examiners have been able to internalize the criteria, following the standardization, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where mannequins are used and the examiners check for errors on the mannequins. After the examiners complete their examination, the Bureau of Testing evaluates the examiners to determine whether the examiners are acceptable to use for the Examination. Subsequent to the Examination, the examiners are scored by the Bureau of Testing. The scoring is based on an examiner's performance wherein the Bureau of Testing examines how every examiner grades with every other examiner to make sure that the examiners are grading with reliability. This review is based on corroborated errors found by an examiner, not on the average errors found by an examiner. The average errors found by an examiner are irrelevant to the examiner's performance in that one examiner may have graded candidates who made numerous errors, while another examiner may have graded candidates who made very few errors. For the Examination, candidates are required to bring human patients on whom the candidates perform the dental procedures. Each examiner grades the Examination independently. The examiners do not confer with each other while scoring the Examination. Furthermore, the Examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored by a licensed dental hygienist. When the candidate completes the procedures, a proctor accompanies the patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. For the scaling/calculus removal portion of the Examination, the grading criteria is that complete removal of all supra and sub-marginal calculus from each tooth, without laceration to the surrounding tissue, is required. If the tooth is not clean and/or if there is damage to the surrounding tissue, the candidate is considered to have made one (1) error. Pursuant to Board rule, each tooth is judged as a whole. Even if a candidate makes three mistakes in performing the procedure on each tooth, e.g., calculus could be above the gum, calculus could be below the gum, and/or the gum could be lacerated, only one (1) error is counted against the candidate. The examiners do not document what error was committed by the candidate, i.e., whether the error is a calculus error or a laceration error. In grading the scaling/calculus removal portion of the Examination, a grade of five is the highest grade that a candidate can receive. A five is given if there are zero to three errors found. A grade of four is given if there are four errors found. A grade of three, which is considered to be minimally competent, is given if there are five errors found. A grade of two is given if there are six errors found. A grade of one is given if there are seven errors found, and a grade of zero is given if eight or more errors are found. For an error to be counted against a candidate, at least two of the three examiners must corroborate the error, i.e., at least two of the examiners must find the error. For Ms. Kern's clinical examination, she was scored by examiners 197, 243, and 320. All three examiners participated in the standardization training and were considered qualified to act as examiners for the Examination. Ms. Kern's examination was double-blind graded. Each examiner independently graded her examination. Examiner 197 found one error. Both examiners 243 and 320 found seven errors each. Examiners 243 and 320 agreed on six of seven teeth on which errors were found. Consequently, Ms. Kern was considered to have committed six errors. A post-examination review of the examiners was conducted. Examiners 243 and 320 were found to be reliable in their scoring. However, examiner 197 was found to be unreliable in his scoring. Examiner 197 was not used again for the Examination. The scoring of six errors made by Ms. Kern on the scaling/calculus removal portion of the Examination is not arbitrary or capricious or an abuse of discretion. The scoring process is not devoid of logic and reason. However, because examiners do not document the type of error committed by a candidate, a candidate has no way of knowing what detail of a procedure was improperly performed. The candidate only knows that a procedure, as a whole, was improperly performed. Consequently, a candidate who desires to re-take the Examination has no idea what procedure needs improvement by the candidate in order to prepare for a re-taking of the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry enter a final order dismissing Brandy Kern's examination challenge to the clinical portion of the dental hygienist licensure examination administered in December 1997. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998.
The Issue Whether Respondent is guilty of misconduct in the practice of dentistry and/or operating a dental office in such a manner that dental treatment provided is below minimum acceptable standards for the community.
Findings Of Fact At all times relevant hereto, Peter Kurachek, Respondent, was licensed as a dentist in Florida and was the owner of American Dental Center, a dental clinic located in Venice, Florida. Commencing in August 1987, Thomas A. Saitta D.D.S., licensed to practice dentistry in Florida, was employed at the American Dental Center as an independent contractor and was so employed at all times relevant hereto. On Friday, April 15, 1988, patient Kim Pierce a/k/a Kim Hendrick entered the American Dental Center complaining of a toothache and was seen by Dr. Saitta. Examination revealed an abscessed tooth for which Dr. Saitta believed root canal therapy was needed. The patient revealed she had no insurance and no money to pay. Nevertheless, Dr. Saitta commenced the root canal, prescribed penicillin for the inflammation, told the patient if the swelling did not subside quickly a serious medical problem would arise and she should then go to the emergency room at the Venice Hospital. The patient Kim Hendrick returned to the dental clinic Saturday, April 16, 1988 and was again seen by Dr. Saitta who gave her a prescription for Keflex for the infection, told her that if the swelling and pain did not subside by evening she should go to the hospital for medical intervention. He also gave her his professional card with his home telephone number she could call for emergency assistance. On the evening of April 16, 1988 at 11:10 p.m. Kim Pierce presented herself at the emergency room at Venice Hospital with a slight temperature, right eye swollen shot and a marked facial cellulitis. The duty emergency room dentist, Dr. John J. Yurosko, an oral and maxillofacial surgeon was called to treat the patient. Dr. Yurosko incised the gum, drained the infected area, advised the patient to continue the Keflex prescribed by Dr. Saitta and to present at his office Monday. After treating the patient Dr. Yurosko telephoned the number for the dental clinic and received no answer. He then, around midnight, from his home called the residence of Respondent whose wife was up and visiting with a neighbor and who answered the telephone. Yurosko asked to speak to Respondent and was told he was in bed asleep. Yurosko asked that Respondent be called to the telephone. When Respondent got on the line Yurosko complained about the patient (Kim) not being able to contact anyone by calling Respondent's office number, as well as Yurosko's failures to get an answer when he called that number. Following his inability to contact the Dental Center and his conversation with the Respondent, Dr. Yurosko, on April 29, 1988, submitted a complaint to the Department of Professional Regulation (Exhibit 4) in which he advised the Department of his involvement with patient Kim Pierce and his inability to contact her treating dentist. During the investigation which followed this complaint the investigator placed several long distance calls from Fort Myers to the number listed for the American Dental Center during the evening hours and received no answer from an answering service or machine. Respondent's witnesses testified that, except for the short period in April when telephone work was being done in the office clinic, the answering machine was operable. Respondent was able to offer no satisfactory explanation for the investigator's failure to receive an answer when the Dental Center's number was dialed during evening hours. During the period around April 15, 1988, work was being performed rerouting telephone lines at American Dental Center and the telephone answering machine was not working. This fact was known to Respondent and other staff members at the dental center. Respondent had directed the other dentists, including Saitta, to be sure they provided the patients treated during this period with the dentist's home telephone number in case emergency treatment was needed. Additional cards were provided the receptionist to give the telephone number of their treating dentist to the patients when they checked out of the dental center.
Recommendation It is RECOMMENDED: that all charges preferred against Peter Kurachek D.D.S. in the administrative complaint filed July 28, 1989 be dismissed. ENTERED this 8th day of May, 1990, in Tallahassee, Florida. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-0187 Petitioner proposed findings are accepted except the following: 15 Rejected as uncorroborated hearsay. 19-21 Dr. Yurosko was accepted as an expert in dentistry and oral surgery--not in dental office procedures or what constitutes adequate emergency services as that phrase is used in Rule 21G- 17.004 Florida Administrative Code. Accordingly, his interpretation of the rule constitutes a legal opinion rather than a dental opinion and, as much, is entitled to little weight. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Janine Bamping, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Peter Kurachek 3920 Bee Ridge Road Sarasota, FL 34233
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation section of the clinical part of Petitioner's June 2003 Florida Dental License Examination was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.9, so he failed the clinical part of the examination. Petitioner has challenged the grade of 2.0 that he received on the Patient Amalgam Preparation of the clinical part of the examination. The score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. Petitioner challenges only the score of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The section that is the subject of this case requires the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For the section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communications between examiners and candidates are exclusively through monitor notes. For the section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Patient Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Patient Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 394 each assigned Petitioner a 3 for this procedure, but Examiner 417 assigned him a 0. Examiners 207 and 394 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 417 detected caries and documented her finding, as required to do when scoring a 0. Examiner 207 has served as an examiner for 10 years and has conducted 15-20 evaluation examinations during this time. Examiner 417 graduated from dental school in 1979. Examiner 394 has been licensed in Florida since 1995 and has served as an examiner only three years. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Despite the requirement to detect caries by touch, not sight, Examiner 417 initially testified that she detected the caries by sight. Later in her testimony, she backtracked and stated that she was not sure if she felt it or saw it. Her earlier, more definitive testimony is credited; Examiner 417 never found caries by touch, only by sight. In DOAH Case No. 03-3998, Examiner 417 readily conceded that she must have missed the caries that another examiner had detected, inspiring little confidence in her caries-detection ability. In that case, her value as one of two dentists in the majority was insignificant, even though the majority finding prevailed. In this case, Examiner 417's role as the lone dentist who found caries is too great an evidentiary burden for her to bear. The vagueness of her testimony and her reliance upon visual caries-detection preclude a finding of caries in this patient. Three other additional factors undermine Examiner 417's finding of caries. First, Examiners 207 and 394 found no caries. Examiner 207 has considerable experience. Examiner 394 has less experience, but he was the lone evaluator in DOAH Case No. 03-3998 to detect calculus deep below the gums, proving that he is both meticulous and a demanding grader. Together, then, the findings of Examiners 207 and 394 of no caries carry much greater weight than the contrary finding of Examiner 417. Nor was it likely that Examiner 417 accidentally dislodged the caries. No evidence suggest that she was the first examiner to examine the patient, and her means of detecting caries was visual, not tactile. Second, the location of the caries in this case was directly in the center of the tooth. So located, it was difficult for Petitioner and Examiners 207 and 394 to miss. Third, by two monitors' notes, Petitioner twice obtained the evaluators' permission to expand the drilled area, due to the extensiveness of the caries, suggesting that Petitioner was devoting careful attention to the removal of all caries, even if it meant an atypical site preparation.
Recommendation It is RECOMMENDED that the Department of Health enter a final order granting Petitioner an additional two points on the clinical part of the June 2003 Florida Dental License Examination and determining that he has passed this part of the dental examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue Whether Petitioner should receive a refund for an alleged overpayment of dental insurance premiums.
Findings Of Fact The Division of State Group Insurance (Division) is the executive agency within the Department of Management Services (Department) that is responsible for the administration of the State Group Insurance Program (Program). Isaacs was first employed with the State of Florida in 1993, and remained employed with the State until March 2011, when he retired. According to Isaacs, when he originally signed up for dental insurance, there were only two options available for employees; an employee could sign up either for “employee” coverage or for “employee plus family” coverage. Isaacs chose “employee plus family” dental coverage, so that he and his spouse would have coverage. During his tenure as a State employee, Isaacs was married and had no children. At all times material to the instant case, Isaacs resided, and received his mail, at 13021 S.W. 116th Street, Miami, Florida, 33186. On January 1, 2005, the State of Florida started using an online system called “People First” to manage State of Florida employee payroll and benefit packages. Every employee and retiree was given a username and password to access the online system. Each employee’s payroll information, leave balances, and benefits information could be seen online. Pursuant to section 110.123(3)(h), every year there is a finite period of time during which State employees can sign up for benefit plans, or change their existing benefit plans, for the upcoming calendar year. This period is called “open enrollment.” Prior to open enrollment every year, People First mails out, to every State employee, a package which contains a personalized benefits statement and a Benefits Guide, which contains information as to all the benefit plans that are being offered for the upcoming calendar year. The benefits statement informs employees of the benefits they currently have and will continue to have during the upcoming calendar year, unless they make changes to their insurance or coverage level. On September 7, 2007, the Division mailed each participant in the dental insurance program a letter explaining significant changes to the dental program. This letter was mailed by first class mail to the address of record for each employee who was then enrolled in the dental program. Isaacs' address of record in People First was his mailing address: 13021 S.W. 116th Street, Miami, Florida, 33186. Isaacs claims that he never received this letter. The undersigned finds this testimony to not be credible, given that Isaacs' address has not changed in 33 years, and he was unaware of any other problems with delivery to this address. The September 2007 letter advised employees that there would be new coverage levels offered in 2008. It stated, in pertinent part: There will be new coverage levels offered in 2008. You may currently be enrolled in a coverage level that will not be offered. The new coverage levels are: ° Employee Only ° Employee + Spouse ° Employee + Child(ren) ° Family You will have the opportunity during the upcoming Open Enrollment to cancel coverage, change your coverage level, or switch to another dental plan. Any change you make will be effective on January 1, 2008. If you take no action, your dental coverage may be changed automatically for 2008. If you are currently enrolled in a coverage level that will not be offered in 2008, you will be enrolled in Family coverage. People First sent Isaacs open enrollment packages in 2007, 2008, 2009, and 2010. The 2008 package, sent on September 17, 2007, included a Benefits Guide which contained all the information as to the change in the dental insurance program. Employees were placed on notice that except for employees who had previously been enrolled for “Employee” coverage, all coverage levels would be moved to “Family” coverage unless the employees made changes during open enrollment. The package included instructions on how to make the coverage changes, and how to verify that those changes had been properly made. Isaacs never changed his dental plan coverage; therefore, he was defaulted to the “Family” coverage as of January 1, 2008. Due to his failure to act, he remained in that coverage until he retired. The open enrollment packages sent to Isaacs for years 2009, 2010, and 2011 included information as to the dental coverage tiers, and a personalized Benefits Statement which indicated which benefit plans Isaacs was enrolled in, and his coverage level. Every year, he could have made changes to his dental insurance coverage, but failed to do so. As of People First going “live” in 2005, all State employees could review their benefits and coverage levels online. Thus, Isaacs, on his state-issued desktop computer, had access to People First, and could have reviewed his coverage levels and benefit plans. Isaacs admitted at hearing that he did not review the open enrollment packages he received every year because he was under the impression, based on advice he was given, that he need not review the information if he was not making any changes to his coverage levels or benefit plans. He added that he was not sure if he even opened all the open enrollment packages that were sent through the years. Isaacs had the responsibility to open, review, and carefully read the open enrollment packages and all correspondence sent to him by his employer. Isaacs was advised of the changes to the dental plan, but did not review the information sent to him. He had ample notice of the change to the dental plan coverage levels, but failed to review the information, and failed to avail himself of the many opportunities he had to adjust the coverage level. He paid for more coverage than he needed because he ignored all the information sent to him, which gave him specific instructions on how to avoid that exact circumstance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services enter an order denying Isaacs' request for a refund for his overpayment of dental insurance premiums. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 15th day of November, 2011.
Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
The Issue The primary issue in this case is whether the Petitioner should have been given a passing grade on the June 1983 Dental Mannequin examination. A secondary issue is whether the Petitioner should be permitted to take the regular State of Florida dental examination even if he is not entitled to a passing grade on the June 1983 Dental Mannequin examination.
Findings Of Fact On the basis of the testimony of the witnesses and the exhibits received into evidence at the hearing, I make the following findings of fact: The Petitioner, Dr. Angel N. Diaz-Norrman, is a graduate of a foreign dental school. Since his graduation from dental school he has engaged in three years of postgraduate training in the field of dentistry at the University of Miami and at the University of Florida. He has also completed all requirements for a teaching fellowship in the field of general dentistry. He is currently pursuing a program on postgraduate study in the specialty of periodontics at the University of Florida. His grade point average in his periodontic studies is 4.0 for both the didactic and the clinical portions of his studies. The Petitioner has twice taken the State of Florida Dental Mannequin Examination, once in December of 1982 and once in June of 1983. He was assigned a failing grade on both of those examinations. His December 1982 grade was slightly higher than his June 1983 grade. His June 1983 grade was 2.37. The minimum passing grade is 3.00. The State of Florida Dental Mannequin examination is a practical examination which tests several specified clinical skills. The examination consists of ten procedures, of which only nine are grades. Each of the nine graded procedures are graded separately. Each of the nine graded procedures on the examination is independently graded by three examiners. Each examiner assigns a grade of from 0 to 5 to the procedure and the final score for each procedure is determined by averaging the three grades given to that procedure. The final score on the entire examination is determined on the basis of a weighted average as provided in Rule 21G-2.19(1), Florida Administrative Code. 1/ The examiners who grade the State of Florida Dental Mannequin examination are all experienced Florida dentists who are selected by the Board of Dentistry. A person chosen as an examiner must have at least five years experience as a dentist. All persons who are selected to be examiners receive a full day of training in the examination process. They review the criteria by which each procedure is to be judged and they participate in a practice grading exercise. Proposed examiners who do not do a good job on the practice grading exercise are not selected as examiners, but are given other tasks at the examination such as serving as monitors. 2/ The application of the grading criteria is not a mathematically precise procedure. Although some shortcomings on the examination procedures require an automatic grade of 0, there is no mathematical formula for deducting any specific number of points or fractions of points for lesser shortcomings or deviations from an excellent procedure. Rather, the examiners use an holistic approach to the grading of each procedure. During the examination each examiner is required to record the grade assigned to each procedure on a written form. Whenever an examiner assigns a failing score to a procedure, the examiner is required to include on the grading form written comments sufficient to justify the failing grade. The written comments do not have to include everything the examiner thought was wrong with the procedure, but must include enough to justify the failing grade. An examiner is not required to justify a passing grade. When the Petitioner took the Dental Mannequin examination in June of 1983, the grades he received from each examiner on each graded procedure were as follows: Procedure Examiner Examiner Examiner Average No. No. 45 No. 48 No. 80 Grade 1. 1 0 0 0.33 2. 2 5 5 4.00 3. 1 3 3 2.33 4. 3 3 3 3.33 5. 2 1 3 2.00 6. 3 5 5 4.33 7. 1 2 3 2.00 8. 2 1 3 2.00 9. 1 1 1 1.00 8. The average grade given to the Petitioner for his performance on procedures number 1, 2, 5, 7, 8, and 9 was a fair and reasonable grade for his performance on each of those procedures. In other words, the average grades given to the Petitioner on those six procedures were fair and accurate measures of the skills demonstrated by the Petitioner on those procedures. The average grade given to Petitioner for procedure number 3 was higher than it should have been. The quality of the Petitioner's performance on procedure number 3 was such that he should have been given a grade of 1.00 instead of 2.33. The average grade given to Petitioner for procedure number 4 was lower than it should have been. The quality of the Petitioner's performance on procedure number 4 was such that he should have been given a grade of 4.00, instead of 3.33. The average grade given to Petitioner for procedure number 6 was lower than it should have been. The quality of the Petitioner's performance on procedure number 6 was such that he should have been given a grade of 5.00, instead of 4.33. With regard to procedure number 9, the Petitioner misunderstood the instructions and prepared a "wax-up" for a cast gold bridge of a type different than that required by the instructions. Between the time of the June 1983 examination and the time of the hearing the "wax-up" prepared by the Petitioner for procedure number 9 became partially damaged while in the custody of the Respondent.
Recommendation On the basis of all of the foregoing, I recommend that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the June 1983 Dental Mannequin examination is 2.37, a failing grade, and that the Petitioner is not eligible to retake the Dental Mannequin examination or to take the regular dental license examination. DONE AND ENTERED this 4th day of April 1985 at Tallahassee, Florida. MICHAEL M. PARRISH 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 4th day of April, 1985.
Findings Of Fact At all times relevant, Respondent, John W. Delk, held a license to practice dentistry, number DN 0005106, issued by the State of Florida, Department of Professional Regulation's Board of Dentistry. James Whisman was a patient at the Delk Dental Center from July 14, 1981 until May 22, 1984. Dr. John W. Delk was the dentist of record for James Whisman. On July 14, 1981, Dr. John W. Delk prepared teeth #6, 7, and 8 for crown and bridgework which included the placement of a post in tooth #8. On July 29, 1981, James Whisman returned to the Delk Dental Center to have the crowns on #6, 7, and 8 seated. On July 29, 1981, Don Berman seated permanent crowns on teeth #6, 7, and 8 for James Whisman using a permanent cement. Don Berman was a technician (dental assistant) for the Delk Dental Center and was not a licensed dentist or dental hygienist. He did not have an expanded duties certificate. On August 11, 1981, Respondent diagnosed a need, and had Berman prepare a treatment plan, for future dental work for James Whisman. During the establishment of Mr. Whisman's August 11, 1981 treatment plan, there was no documentation or oral advisement that an abnormality, such as a retained root tip or abscess, existed at tooth #10. Later, the bridge work on teeth #6, 7, 8 became loose, and Whisman called for an appointment with the Delk Dental Center. On September 21, 1981, the crowns on teeth #6, 7, and 8 were re-cemented with a permanent cement, zinc phosphate, by technician Don Berman. Dr. John W. Delk did not supervise Don Berman when he used the permanent cement to seat the crowns on teeth #6, 7, and 8 for a second time. From February 8, 1982 through February 25, 1982, Dr. James Costello provided dental services to James Whisman, specifically preparing teeth #9-15 and teeth #1-5 for crowns and bridgework and seating the crowns and bridgework. Dr. Costello did not advise James Whisman that an abnormality, specifically a retained root tip or abscess, was present at tooth #10. The patient chart for James Whisman failed to document that tooth #10 had a retained root tip and abscess present. The failure to chart a retained root tip and abscess at tooth #10 is critical to diagnosis and treatment. Fourteen months later, James Whisman returned to the Delk Dental Center for continued dental work. Respondent on March 6, 1984, diagnosed the need, and had Berman prepare a treatment plan, for fixed bridge-splints on teeth #19-22 and #27- 30. On March 7, 1984, Dr. John W. Delk prepared teeth #19- 22 and #27-30 for crown and bridgework. On March 9, 1984, Don Berman cemented temporary crowns on teeth #27-30 without supervision from Dr. John W. Delk. On March 12, 1984, Don Berman re-cemented temporary crowns on teeth #27-30, using a permanent cement called Durelon, without supervision from Dr. John W. Delk. On April 19, 1984, Don Berman used a permanent cement, Durelon, to seat the crown and bridgework on teeth #19-22 and #27-30 without supervision from Dr. John W. Delk. On May 15, 1984, James Whisman returned to the Delk Dental Center complaining of loose teeth in the area of #7 and 8. On May 22, 1984, James Whisman returned to the Delk Dental Center continuing in his complaint that teeth #7 and 8 were loose. On May 22, 1984, Don Berman did an oral inspection of teeth #7 and 8 and with the aid of a dental instrument removed said teeth. Teeth #7 and 8 fractured off inside the crowns. On May 22, 1984, based on what Don Berman had reported to him, Respondent diagnosed the need, and had Berman prepare a treatment plan, for Mr. Whisman which encompassed an estimate for two crowns, one root canal filling and two pin and core build-ups for a total fee of $708.00. On May 22, 1984, Dr. John W. Delk did not examine Mr. Whisman nor did Dr. Delk supervise the actions of Don Berman. Don Berman re-cemented the crowns for teeth #7 and 8 using a permanent cement, Durelon, with no supervision from Dr. John W. Delk. James Whisman suffered from areas of sensitivity around the bridgework, poor dental work and an unnoticed abscess and retained root tip. James Whisman discontinued the dental work with the Delk Dental Center and sought a second opinion from Dr. Albert P. Hodges on June 7, 1984. After the services performed by Dr. Delk and/or his employees, an examination of James Whisman's teeth revealed dental work that fell below the standard of care as recognized by the prevailing peer community. The standard of care for crown and bridgework recognized by the prevailing dental peer community is as follows: No open or shy margins around the crowns; no active decay present; proper retention in multiple-unit splints; proper dowel lengths in crowns that are needed to support multiple unit bridges; proper occlusal contact and recognition; and treatment of any pathological condition prior to crown and bridge placement. Specifically, tooth #7 had margins that were open and shy, active decay was present and there was a distinct lack of retention to support the two-unit splint. The dental treatment provided on tooth #7 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #8 had margins that were open, active decay was present and the dowel length was totally inadequate for useful retentive support. The dental treatment provided on tooth #8 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically with tooth #10, Dr. Delk failed to diagnose and treat a retained root tip and a pathological condition which was visible and discoverable. The retained root tip and abscess were clearly visible radiographically as early as the July 14, 1981 visit to Dr. Delk's facility. James Whisman was not advised during the course of his treatment that a retained root tip existed and that the pathological condition should be treated prior to the placement of a crown over tooth #10. James Whisman's records, made at Dr. Delk's facility, failed to reflect the existence of the retained root tip and abscess at tooth #10. Failing to chart or notify the patient of the existence of a retained root tip and the accompanying cyst falls below the standard of care as recognized in the prevailing dental community. The dental treatment provided on tooth #10 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #20 had margins that were open and shy, it was sensitive to probing, and it was out of occlusion because it had no contact with the opposing tooth when the mouth was in the closed position. The dental treatment provided on tooth #20 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #21 had margins that were open and shy. The dental treatment provided on tooth #21 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #22 had margins that were shy. The dental treatment provided on tooth #22 fell below the minimum, acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #27 had margins that were shy and the crown was over-contoured causing potential gum irritation and food impaction. The dental treatment provided on tooth #27 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #29 had margins that were open and shy. The dental treatment provided on tooth #29 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Cementing crowns with permanent cement is an irremediable procedure. Cementing temporary crowns with permanent cement is justified on a short-term basis but only if the procedure is done by a licensed dentist. To be within acceptable dental standards, a dentist must do a physical oral examination of a patient before developing a treatment plan. Failure to do a physical oral examination in the development of a treatment plan falls below the minimum standards as recognized in the prevailing peer community. An assistant with an expanded duties certificate may use temporary cement only to seat temporary crowns provided a licensed dentist provides direct supervision.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Board of Dentistry enter a final order: (1) holding the Respondent guilty on both counts of the Administrative Complaint; (2) fining Respondent $1000 for each count, said amount to be paid within 30 days from the signing of the final order or Respondent's license automatically to be suspended until the fine is paid; (3) suspending Respondent's license to practice dentistry for 6 months for each count of the Administrative Complaint, to run consecutively; (4) placing Respondent on probation for 12 months subsequent to the expiration of the suspension period; and (5) conditioning reinstatement of Respondent's license to practice dentistry on successful completion of 100 hours of university credit course work in crown and bridge restorations by the end of the probation period and on an appearance by Respondent before the Board to provide evidence of compliance with the final order. RECOMMENDED this 3rd day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1987. COPIES FURNISHED: Nancy M. Snurkowski, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Michael T. Hand, Esq. 230 East Marks Street Orlando, F1 32803 John W. Delk, D.D.S. 2918 North Pine Hills Drive Orlando, F1 32808 Pat Guilford Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Wings T. Benton, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 APPENDIX To comply with Section 120.59(2), Florida Statutes (1985), the following rulings are made on Petitioner's proposed findings of fact (Respondent did not submit proposed findings of fact): 1.-3. Accepted and incorporated. 4. Accepted but unnecessary. 5.-8. Accepted and incorporated. Accepted but unnecessary. Rejected as not proved. The evidence suggested that Respondent examined the patient and instructed Berman how to prepare the plan. 11.-15. Accepted and incorporated. 16. Rejected as not proved. Dr. Costello testified he seated the crowns and bridgework, and the office notes do not reflect that Berman was involved at all. Whisman's memory probably was in error on this point. 17.-20. Accepted and incorporated. 21. Rejected. See 10 above. 22.-29. Accepted and incorporated except the correct date in 24 is March 12, 1984, and the correct teeth in 25 are #19-22, not #19-20. 30. Rejected. See 10 above. 31.-56. Accepted and incorporated. Accepted but cumulative. Accepted and incorporated. Rejected as conclusion of law. 60.-61. Accepted but unnecessary. Accepted and incorporated. Accepted but cumulative. 64.-65. Accepted and incorporated.
Findings Of Fact The Parties stipulated to the fact that Dr. Moore was a dentist, licensed by the State Board, holding license number 1464, issued by the State Board. The Parties further stipulated that the facts alleged in the Board's complaint were accurate as of the date of filing. Dr. Ackel testified concerning professional practices. It is a part of the professional services of a dentist to fill out forms necessary for insurance coverage, although they may charge a fee for the time required to do so. The time required to fill out such forms, which are in the main prepared by clerical personnel in the dentist's office, varies from fifteen to forty-five minutes, to include the dentist's time taken to review the entries. The failure to prepare the forms results in nonpayment or delayed payment of insurance claims to the patient. Dr. Moore had delayed over a year the preparation and submission of the forms on the patients involved in this complaint. Dr. Ackel said this was the first such complaint that the Broward County Dental Association has had in his eight-year association with the Association's board which investigates patient complaints. Dr. Moore, having been cautioned about his rights in this case, took the stand and testified that he had had multiple personal problems beginning in 1973. These problems included within a two-year period a personal bankruptcy, a son who flunked out of medical school at the halfway point and subsequently was critically ill with ulcers, another son who suffered a mental depression which resulted in his hospitalization, a reduction in his office staff, and a separation from his wife who also worked in his office. While Dr. Moore acknowledged his ultimate responsibility for the failure to process the insurance forms involved, he did request the Board to consider the foregoing facts in mitigation. Dr. Moore's office is currently a one-man office with one receptionist who has been with the Doctor for twenty-two (22) years. There has been an increase recently in dental insurance claims; and Dr. Moore, who is an older dentist who had a good professional reputation in the community until these incidents, has apparently not adjusted his office administration to keep pace with the changes. This, together with his various personal problems, prevented him from attending to these important matters. Dr. Ackel stated that Dr. Moore had been suspended from the County Association for ninety (90) days as a result of its investigation and findings; however, that this suspension did not cause Dr. Moore to submit the forms. Dr. Moore apologized to all the parties concerned, indicated that he was acting immediately to hire additional personnel in his office, and that all the insurance forms in his office would be filled out and submitted immediately. The Hearing Officer notes, however, that the statements of Dr. Moore's patients indicate he had made similar assurances to his patients.
Recommendation The Dental Board's interest in this case is apparently twofold: To rectify the existing situation and enable Dr. Moore's patients to obtain reimbursement, and To prevent any further failures of this type by Dr. Moore. The Hearing Officer would recommend the following Board action based upon the Findings of Fact and Conclusions of Law: Dr. Moore's license be suspended for three to six months, said suspension or a portion thereof to be held in abeyance or suspended upon Dr. Moore's doing the following: Immediately filing the insurance forms involved here, with copies to the Board, and Permitting and reimbursing, if necessary, a representative or designee of the Dental Board with a reputation for effective office management within the profession to inspect Dr. Moore's office and make a written report to Dr. Moore and the Board suggested ways of improving his office management to prevent a recurrence of this type of failure. DONE and ORDERED this 4th day of September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 605 Florida Theatre Building 128 East Forsyth Street Jacksonville, Florida 32202 Castles W. Moore, D.D.S. 852 N. E. 20th Avenue Fort Lauderdale, Florida 33304
