The Issue Whether Respondent violated Sections 466.028(1)(j), (l), (m), (n), (u), and (y), Florida Statutes (1988 Supp.), and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (Agency), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.165 and Chapters 455 and 466, Florida Statutes. Respondent, Michael Freedman (Dr. Freedman), is and has been at all times material to this proceeding a licensed dentist in the state of Florida, having been issued license number DN0010221. From June, 1988 through February, 1989, Dr. Freedman billed Medicare and received compensation for dental treatment of three elderly patients, L.S., E.K., and K.K., who resided in a nursing home, Meadowbrook Manor of Boca Cove (Meadowbrook). Patient L.S. At all material times to this proceeding, L.S. was a 93- year-old female who suffered from Alzheimer's disease. At the time of Dr. Freedman's treatment of L.S., Ms. Aurelia DaPra acted as L.S.'s legal guardian. She was also L.S.'s close personal friend and visited L.S. on a daily basis. During these visits Ms. DaPra would attend to L.S.'s personal needs. On or about July 7, 1988, patient L.S. was presented to Dr. Freedman for a consultation at the nursing home where L.S. resided. Dr. Freedman's examination revealed edentulism and/or prosthetic related problems. His recommendations included further diagnostic investigations, surgical procedures, and rehabilitative measures. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for services rendered. The "Next Patient Appointment/Service Record" contained in Dr. Freedman's records indicate that dental X-rays were taken of L.S. on July 25, 1988. On July 25, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. On August 8, 1988, Dr. Freedman gave telephone orders to the staff at Meadowbrook to premedicate L.S. prior to Dr. Freedman's visit on the next day. On August 9, 1988, Dr. Freedman visited L.S. Other than rendering an X-ray report, the records do not indicate any other service performed by Dr. Freedman on that date. On August 9, 1988, Dr. Freedman billed $225.00 and was subsequently paid $108.80 by Medicare for X-rays and supplies for L.S. The Medicare category under which supplies are billed is entitled "supplies/prosthesis." Dr. Freedman's customary practice was to make the X-rays at the nursing home using a mobile X-ray machine and to develop the films in his office the next day. He rendered an X-ray report on the dental X-rays of L.S. on August 9, 1988. On August 17, 1988, Dr. Freedman visited L.S. and did a behavior adjustment evaluation. Premedication was given to L.S. on site. On August 17, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. On August 26, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. The dental records of L.S. do not indicate that any service was provided to L.S. on August 26, 1988. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on August 26, 1988. Dr. Freedman billed $70.00 for office services on September 2, 1988, and was subsequently paid $34.88 by Medicare for such services. The records of Dr. Freedman include a draft letter to Dr. Janotta, L.S.'s physician, stating that L.S. needed to have intrabony lesions removed and would require premedication to facilitate the procedure. Notes in his records indicate that by September 18, 1988, Dr. Freedman had not heard from Dr. Janotta. Dr. Freedman billed $72.70 for supplies for L.S. on November 1, 1988, and was subsequently paid $43.88 by Medicare. On November 1, 1988, Dr. Freedman billed $374.00 and was subsequently paid $160.00 by Medicare for surgery on L.S. On November 1, 1988, Dr. Freedman performed a debridement procedure on L.S., which was surgical in nature and was not a routine cleaning of the teeth. Another behavior management evaluation was done on L.S. on November 1, 1988. On January 13, 1989, Dr. Freedman billed $133.00 and was subsequently paid $69.60 by Medicare for X-rays and supplies for L.S. Dr. Freedman's records did not indicate that any services were provided to L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on January 13, 1989. Dr. Janotta's progress notes concerning L.S. indicate that he was contacted by Dr. Freedman on February 5, 1989. On the same date, Dr. Janotta ordered that L.S.'s legal guardian be contacted to get L.S.'s private dentist to look at L.S.'s dental problems. After Ms. DaPra was informed that Dr. Janotta had left orders that L.S. should see a dentist, she told the nurse that she did not want Dr. Freedman to be used as the dentist. On January 26, 1989, Dr. Freedman's office called Dr. Janotta's office and stated that Dr. Freedman intended to do some minor dental work on L.S. and inquired whether the dental work should be done and whether L.S. should be premedicated. On February 10, 1989, Dr. Freedman billed $52.00 and was subsequently paid $22.72 by Medicare for office services for L.S. Dr. Freedman's records do not indicate that any services were performed for L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were performed for L.S. by Dr. Freedman on February 10, 1989. On February 13, 1989, Dr. Hagquist, a dentist, did an oral exam of L.S. and concluded that several of her teeth needed to be extracted. On February 28, 1989, Dr. Hagquist extracted six of L.S.'s teeth. On December 13, 1990, L.S. was examined by Dr. Robert W. Williams, Petitioner's dental expert. Dr. Williams' examination revealed a completely mutilated dentition with serious carious breakdown and several teeth in poor repair. He further discovered gross calcus and debris present with chronic gingival irritation, inflammation, and periodontal breakdown. No evidence was presented as to what dental care L.S. received from February 14, 1989 to December 13, 1990. Patient E.K. At all times material to this proceeding, E.K. was an 84-year-old female who suffered from Alzheimer's disease. On June 6, 1988, patient E.K. was presented to Dr. Freedman for consultation at the nursing home where she resided. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for services rendered on June 6, 1988. On July 12, 1988, Dr. Freedman made dental X-rays of E.K. The dental records do not contain either the x-rays or a report on the findings of the x-rays. On July 12, 1988, Dr. Freedman billed $238.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient E.K. Dr. Freedman's records indicate that on August 9, 1988, Dr. Freedman gave some medication as part of a procedure performed on E.K. in the maxilla area. The records do not indicate exactly what the procedure was; however based on the testimony of Dr. Bayloff, Respondent's expert witness, the procedure was not a routine cleaning. On August 9, 1988, Dr. Freedman billed $33.75 and was subsequently paid $10.72 by Medicare for supplies for patient E.K. According to Dr. Freedman's "Tissue Repair/Debridement/ Treatment Report", on November 1, 1988, Dr. Freedman performed the following on E.K. in the mandible area: "brush", "dentifrice," and "dentition." No evidence was presented to establish whether this procedure would not qualify as surgery for purposes of payment from Medicare. On November 1, 1988, Dr. Freedman billed $33.75 and was subsequently paid $14.00 by Medicare for supplies for patient E.K. The procedure performed on November 1 did require the use of some supplies. On November 1, 1988, Dr. Freedman billed $200.00 and was subsequently paid $80.00 by Medicare for surgery on patient E.K. Patient K.K. K.K. is an 85-year-old male who has been described as mentally alert, physically impaired as to sight, and well aware of his surroundings. On June 13, 1988, patient K.K. was presented to Dr. Freedman for a consultation at the nursing home where K.K. resided. Dr. Freedman made a preliminary evaluation. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for consultation services rendered to K.K. on August 13, 1988. It appears that the date which appeared on the Medicare payment report was a scrivener's error and should have read June 13, 1988. On June 20, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for K.K. This billing was for a trip by one of Dr. Freedman's staff to Meadowbrook to copy parts of K.K.'s records. On July 12, 1988, Dr. Freedman made dental X-rays of K.K. and rendered an X-ray report. On July 12, 1988, Dr. Freedman billed $283.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient K.K. On July 29, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for patient K.K. Dr. Freedman's records indicate that his staff called Dr. McKay to inquire whether K.K. needed to have premedication prior to minor oral surgery and if so, what medication would be needed. MITIGATION Dr. Freedman had practiced dentistry at other nursing homes in the area and had not received any complaints concerning the services that he provided. Between 1985 and 1989, Dr. Freedman developed and maintained a practice exclusively limited to patients requiring special care. The majority of his patients resided in nursing homes or ACLF's and were frail and elderly. He was the Dental Director for 23 long-term care facilities and served 50 other facilities on a more limited basis. At any given time he was serving between 1000 to 2000 patients in a 150 mile area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Freedman did not violate Sections 466.028(1)(j)(l) and (u), Florida Statutes as alleged in Count I, finding that Dr. Freedman did violate Section 466.028(1)(m), Florida Statutes (1988 Supp.), in Count I as it related to the X-rays, dismissing Count II of the Administrative Complaint, dismissing the portions of Counts I and III alleging a violation of Section 466.028(1)(n), Florida Statutes (1988 Supp.), finding that Dr. Freedman did not violate Sections 466.028(1)(m) and (y), Florida Statutes (1988 Supp.), as alleged in Count III, finding that Dr. Freedman violated Section 466.028(1)(j) and (l), Florida Statutes (1988 Supp.), as alleged in Count III, imposing a $750 administrative fine and placing Dr. Freedman on probation for one year under the terms and conditions to be set forth by the Board of Dentistry. DONE AND ENTERED this 28th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 28th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3391 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-10: Accepted. Paragraph 11: Accepted except as to a prosthesis. The evidence showed that the Medicare category was supplies/prosthesis. Dr. Freedman was billing for supplies not for a prosthesis. Paragraph 12: Accepted. Paragraph 13: Rejected as to the amount billed. The evidence showed that Dr. Freedman billed $70.00. The remainder is accepted. Paragraph 14: Rejected that he billed for supplies and prosthesis. The records indicate that he billed for office services. Paragraph 15: Rejected that Dr. Freedman billed for a prosthesis. The remainder is accepted. Paragraph 16: Accepted. Paragraphs 17-18: Rejected as subordinate to the facts found. Paragraph 19: Rejected as subordinate to the facts found. There was no evidence presented to link the blank X-ray with the X-rays that were taken on July 25, 1988. Paragraphs 20-21: Rejected as subordinate to the facts found. Paragraph 22: Rejected as to billing for a prosthesis. The remaining is accepted. Paragraph 23: Accepted in substance. Paragraph 24: Accepted. Paragraphs 25-26: Accepted in substance. Paragraph 27: Accepted. Paragraphs 28-30: Rejected as unnecessary. Paragraphs 31-32: Accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Paragraph 34: Accepted in substance. Paragraph 35: Rejected. The evidence does not support such an opinion. Paragraphs 36-38: Rejected as subordinate to the facts found. Paragraph 39: Rejected as not supported by the evidence. Paragraphs 40-41: Accepted. Paragraphs 42-43: Rejected as not established by clear and convincing evidence. Paragraph 44: Accepted. Paragraph 45: Rejected as unnecessary. Paragraphs 46-47: Accepted in substance. Paragraphs 48-50: Rejected as to the prosthesis. The remainder is accepted. Paragraph 51: Accepted. Paragraph 52: Rejected as subordinate to the facts found. Paragraph 53: Rejected. His conclusion is not supported by the evidence presented. Paragraph 54: Rejected as unnecessary and repetitious. Paragraph 55: Rejected as unnecessary. Paragraphs 56-57: Rejected as based on hearsay. Paragraph 58: Rejected as not supported by the evidence. Paragraphs 59-61: Rejected as not established by clear and convincing evidence. Paragraphs 62-66: Accepted. Paragraph 67: Rejected as to prosthesis. The remaining is accepted. Paragraph 68: Accepted. Paragraph 69: Rejected. The evidence established that K.K. was actually seen twice by Dr. Freedman. Paragraph 70: Rejected as not established by clear and convincing evidence. Respondent's Proposed Findings of Fact. Paragraph 1: The third sentence is rejected as unnecessary. The remaining sentences are rejected as constituting argument. Paragraph 2: The first sentence is accepted. The remaining sentences are rejected as subordinate to the facts found. Paragraphs 3-10: Rejected as subordinate to the facts found. Paragraph 11: The first sentence is rejected as constituting argument. The remaining is rejected as subordinate to the facts found. Paragraphs 12-13: Rejected as subordinate to the facts found. Paragraph 14: The first two sentences are rejected as constituting argument. The remaining is rejected as subordinate to the facts found. Paragraph 15: The third sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. There was no paragraph 16. Paragraph 17: Rejected as subordinate to the facts found. Paragraph 18: Rejected as constituting argument. Paragraph 19: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraphs 20-22: Rejected as subordinate to the facts found. Paragraph 23: The first sentence is rejected as constituting argument. The last sentence is rejected as immaterial. Paragraph 24: The first two sentences and the last sentence are rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraph 25: The first and last sentences are rejected as constituting argument. Paragraph 26: Rejected as unnecessary. Paragraph 27: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. Sentences 4-13 and 42 are rejected as immaterial to the issues. Sentences 14, 29, 31, 38, and 40 are rejected as constituting argument. Sentence 15 is accepted in substance. Sentence 16 is rejected as not supported by the evidence presented. Sentences 17-28, 30, 32-37, 39, and 41 are rejected as subordinate to the facts found. Paragraph 28: Rejected as constituting argument. Paragraph 29(1): The first sentence is rejected as unnecessary. The second sentence is accepted. Sentences 3-8 are rejected as subordinate to the facts found that Dr. Williams was an expert. Sentence 9 is rejected as constituting argument. Sentences 10-13 and 15-18, are accepted in substance. Sentence 14 is rejected as subordinate to the facts found. The remaining sentences are rejected as constituting argument. Paragraph 29(2): Rejected as mere recitation of testimony. Paragraph 29(3): Sentences 1-11 are rejected as mere recitation of testimony. The remaining is rejected as constituting argument. Paragraph 30: Rejected as subordinate to the facts found and as constituting argument. Paragraph 31: Rejected as constituting argument. Paragraph 32: The last two sentences are rejected as constituting argument. The remainder is rejected as mere recitation of testimony and subordinate to the facts found. Paragraph 33: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraph 34: Rejected as constituting argument. Paragraph 35: Sentences 1, 2 6, 7, 12, 13, 56 are rejected as unnecessary. Sentences 3-5, 10, 23, 24, 32, 35, 36, 37, 52, 55, 58 and 59 are rejected as subordinate to the facts found. Sentences 8, 9, 11, 28, 30, 51, 71, 72 are rejected as constituting argument. Sentences 14-22, 25-27, 29, 31, 33, 34, 39-50, 53, 54, 60-63 are accepted in substance. Sentence 38 is rejected as not supported by the evidence. Sentence 57 is not a complete sentence. Sentences 64-70 are rejected as irrelevant. Paragraph 29 (Keene pg. 15 of PRO): The first sentence is rejected as unnecessary. Sentence 2(1) is accepted in substance. Sentence 2(2) is rejected as based on hearsay. Sentence 2(3) is accepted in substance. Sentence 2(4) is rejected to the extent that the opinion was not supported by the evidence. Sentence 3 is rejected to the extent the opinion is not supported by the record. Paragraph 30 (pg. 15 PRO): Sentences 1-3, 5, and 6 are rejected as based on hearsay. Sentences 4 and 27 are rejected as constituting argument. Sentences 7-10, 15, 23, and 24,are accepted in substance. Sentences 11-13 and 16 are rejected as subordinate to the facts found. Sentences 14, 17, 41, 42, are rejected as unnecessary. Sentences 18-22, 28-40, and 43 are accepted in substance to the extent that X-rays were made. Sentences 25 and 26 are rejected as not credible given that Dr. Freedman was able to produce the records of the patients at issue. The testimony at the hearing dealt with his inablity to produce copies of the Medicare forms that he received from Medicare. Paragraph 31 (pg. 16 PRO): The first two sentences are rejected as subordinate to the facts found. The remaining is rejected as constituting argument. Paragraph 32 (pg. 17 PRO): Sentences 1-10 and 17-19 are rejected as irrelevant. The remaining is accepted in substance. Paragraph 33 (pg. 17 PRO): Rejected as subordinate to the facts found. Paragraph 34 (pg. 18 PRO): Sentences 1-10 are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 35 (pg. 18 PRO): The last three sentences are rejected as irrelevant. The remainder is accepted in substance to the extent that Dr. Bayloff was qualified as an expert witness. Paragraphs 36 (pg. 19 PRO): Rejected as irrelevant. Paragraph 37 (pg. 19 PRO): Sentences 1-2 are rejected as unnecessary. Sentences 3-7 are rejected as irrelevant. Sentences 8-10 are accepted in substance to the extent that L.S.'s file did contain adequate records. Sentences 11-14 are accepted to the extent that they apply to the records of L.S. and K.K. but not as to the records of E.K. as it relates to the X- rays. There were no X-rays or X-ray report in E.K.'s file. Paragraph 38 (pg. 19 PRO): Sentences 1-2 are accepted in substance as it pertains to L.S. Sentences 3-4 are rejected as irrelevant. Sentences 5-6 are accepted to the extent that the expert reviewed records which were present. There were no records for treatment of L.S. on August 26, 1988, January 13, 1989, and February 10, 1989. Dr. Bayloff did not render an opinion on whether services were provided on those dates. The remaining is rejected as constituting argument. COPIES FURNISHED: Natalie Duguid, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Freedman 421 Lakeview Drive, Suite 201 Fort Lauderdale, Florida 33326 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue Whether Petitioner's application for license to practice medicine by endorsement pursuant to Chapter 458, Florida Statutes, should be approved. Petitioner appeared at the hearing unaccompanied by legal counsel and was advised of her rights and applicable procedures in administrative proceedings under Chapter 120, Florida Statutes. She elected to represent herself in this matter. This case arises from the provisional denial of Petitioner's application for licensure by endorsement to practice medicine, pursuant to Chapter 458, Florida Statutes. By Respondent's Order, dated January 29, 1982, the application was denied pursuant to subsection 458.313(1)(d), Florida Statutes, on the ground that Petitioner had not been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc., and is not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement. In its Order, Respondent advised Petitioner-of her right to petition for a hearing. Petitioner so requested a hearing under Section 120.57, Florida Statutes, by letter to Respondent, dated May 2, 1982.
Findings Of Fact On October 1, 1981, Petitioner Elda Giannantonio filed an endorsement application with Respondent on a standard form provided by the agency, together with supporting documents and the standard application fee. (Exhibit 1) By "Final Order" of the Board of Medical Examiners, dated January 29, 1982,which recited action taken by the Board on December 4, 1981, it was found that Petitioner had not been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc., and is not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement. It was therefore concluded by the Board that Petitioner had not met the statutory requirements for licensure by endorsement pursuant to Section 458.313(d), Florida Statutes. In all other respects, Petitioner has met the necessary requirements for licensure by endorsement. (Testimony of Faircloth, Exhibit 1, Stipulation) Petitioner was born and educated in Italy where she received her Medical degree in 1953. To be licensed by endorsement in Florida, a foreign graduate must have received a standard certificate after passing an examination given by the Educational Commission for Foreign Medical Graduates. Petitioner received such a certificate on March 28, 1962. (Testimony of Faircloth, Petitioner, Exhibit 1) A statutory requirement of all applicants for licensure by endorsement is that the applicant must have been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or certified by the National Board of Medical Examiners as having completed its examination; provided that said examination required shall have been so certified within the ten years immediately preceding the filing of the application for licensure. The National Board of Medical Examiners examination is administered only to students at Medical schools in the United States. Petitioner has not been certified by either licensure examination. All states, including Florida, recognize the FLEX examination as the standard test for licensure. (Testimony of Petitioner, Faircloth, Exhibit 1) Petitioner was of the mistaken opinion that the fact she had Practiced medicine in New York and had been certified by the Educational Commission for Foreign Medical Graduates was sufficient to qualify her for licensure by endorsement, without the need for either National Board or FLEX certification. However, the instructions provided applicants by Respondent clearly showed that both requirements must be met by foreign graduates. (Testimony of Petitioner, Faircloth, Exhibit 2)
Recommendation That the application of Petitioner Elda Giannantonio for licensure by endorsement pursuant to Section 458.313, Florida Statutes, be denied. DONE and ENTERED this 24th day of August, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 24th day of August, 1982. COPIES FURNISHED: Elda Giannantonio, M.D. 27 Kohr Road Kings Park, NY 11754 Chris D. Rolle, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Dorothy J. Faircloth Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On November 16, 1990, Petitioner sat for the Dental Manual Skills Examination administered by Respondent as part of its regulatory duties pertaining to the practice of dentistry in the State of Florida. This examination consisted of nine separate procedures. Each procedure was graded by three dentists, each of whom had been trained by Respondent to grade this type of an examination. Procedures 1-5 have a weighted value of 12 while Procedures 6-9 have a weighted value of 10. Following the initial scoring of Petitioner's performance, Petitioner received a final grade of 2.78. A final grade of 3 was the minimum passing grade. Petitioner challenged the scoring of her performance on Procedure 5 "Completed Endondontic Therapy" and on Procedure 6 "Class II Amalgam Restoration". Following receipt of Petitioner's challenge, Respondent caused the scoring of her performance to be reviewed by Theodore Simpkin, D.D.S., a consultant employed by Respondent. At the recommendation of Dr. Simpkin, Petitioner's performance on Procedure 5 and Procedure 6 was re-scored by three new scorers. As a result of the re-scoring, Petitioner received slightly lower total scores on each of these two procedures and, consequently, a slightly lower final grade. The final grade was still below that required for passage of the examination. At the formal hearing, Petitioner established that she was entitled to have Procedure 5 re-scored. On Procedure 5 the first examiner scored Petitioner's performance as a 2, the second examiner a 0, and the third a 3. Petitioner was entitled to have her performance re-scored because the second examiner neglected to completely fill out the score sheet. Petitioner's performance on Procedure 5 was re-scored by three other dentists used by Respondent as scorers for the manual skills examination. Petitioner failed to establish that the re-scoring of her performance on Procedure 5 was in error or that she was entitled to more credit than she received. Petitioner received the relief to which she was entitled when Respondent caused her performance to be re-scored. At the formal hearing, Petitioner also established that she was entitled to have Procedure 6 re-scored. On Procedure 6 the first examiner scored Petitioner's performance as a 0, the second examiner a 4, and the third a Dr. Simpkin recommended that Petitioner's performance on Procedure 6 be re- scored because he was of the opinion that her performance should not have received a grade of zero from the first examiner and he was also of the opinion that her performance should not have received a four from the other two examiners. Petitioner's performance on Procedure 6 was re-scored by three other dentists used by Respondent as scorers for the manual skills examination. Petitioner failed to establish that the re-scoring of her performance on Procedure 6 was in error or that she was entitled to more credit than she received. Petitioner received the relief to which she was entitled when Respondent caused her performance to be re-scored.
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 scoring of her performance on Procedures 5 and 6 of the November 1990 Dental Manual Skills Examination. DONE AND ENTERED this 30th day of January, 1992, in Tallahassee, Leon County, Florida. 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 30th day of January, 1992. Copies furnished: Tracey S. Hartman, Esquire Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Department of Professional Regulation/Board of Dentistry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Salvatore Carpino, Esquire 1 Urban Center Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Victoria Grimes, D.D.S. 223 Summa Street West Palm Beach, Florida 33405
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Carl L. Altchiler holds licenses to practice dentistry in the States of New York (1957) and New Jersey (1973). From 1974 through 1977, petitioner was employed in Florida as an institutional dentist at the Sunland Center in Orlando and the Sumter Correctional Institution in Bushnell. He has not practiced dentistry since 1978. In June of 1980, petitioner was a candidate for Florida licensure and took the clinical or practical portion of the dentistry examination. A prerequisite for licensure is that a candidate receive a final total clinical grade of 3.0. Petitioner received a grade below 3.0 on six of the eleven procedures tested, giving him an overall grade of 2.70 on the clinical portion of the exam. A candidate for licensure with the Board of Dentistry must take both a written examination and a pracatical or clinical examination. The clinical exam consists of six parts and requires that eleven procedures be completed. These include the following: Amalgam preparation on a patient Amalgam restoration on a patient Periodontal exercise on a patient Occlusal registration and transfer Final impression Pin amalgam preparation Pin amalgam final restoration Endodontic anterior Endodontic posterior Cast gold preparation Cast gold restoration Prior to the June, 1980, clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each area, the procedures the candidates were to follow in taking each procedure and the grading system. The candidates also participated in a three to four hour orientation program prior to the exam, where protocol was discussed and questions regarding procedure were answered. Florida dentists who have practiced for at least five years are preselected to be examiners for the clinical portion of the dentistry exam. Approximately 23 examiners were utilized during the June, 1980, exam. Prior to arriving at the examination site, each examiner is sent the grade sheets to be utilized and the instructions to candidates. They also receive examiner and monitor instructions and forms. On the day prior to the exam, the examiners are given an 8-hour "standardization" course where the grading guidelines and procedures are discussed. This is to promote consistency and objectivity in grading. Examiners are instructed to independently grade each procedure assigned to them by awarding a grade of from 0 to 5 and indicating the appropriate number on the comment portion of the grading sheet to justify the grade assigned. They may also provide additional comments if they so desire. The grades of 0 to 5 represent the following: 0 = complete failure 1 = unacceptable dental procedure 2 = below minimal acceptable dental procedure 3 = minimal acceptable dental procedure 4 = better than minimally acceptable dental procedure 5 = outstanding dental procedure Each clinical procedure performed by a candidate is independently graded by three different examiners, and the three grades are then averaged to determine the total grade for that procedure. Among the forms which the examination monitors are instructed to utilize is a "Report of Equipment Failure." If utilized during the exam, this form is to be placed in the candidate's file containing the examiner's grade sheets. Four witnesses who were qualified and accepted as experts in the field of dentistry testified in this proceeding. Thomas Gerald Ford, Jr., D.D.S. and Allen M. Guy, D.D.S. were called on behalf of the petitioner. Dr. Ford has practiced general dentistry since 1972, is a member of various dental associations, is a dental consultant for various agencies and private organizations and has given testimony in all phases of forensic dentistry. Dr. Guy has practiced general dentistry since 1971 and is a member of various dental associations. Neither Dr. Ford nor Dr. Guy has served as a monitor or examiner for the Florida dentistry examination. Testifying on behalf of the respondent were Rupert Q. Bliss, D.D.S. and Louis Vodila, D.D.S. Dr. Bliss has practiced general dentistry since 1956, specializing in restorative dentistry, is a member of various dental associations, has taught dentistry, is currently a member of the,Florida Board of Dentistry and has served as an examiner for the Florida dental examination. Dr. Vodila has practiced general dentistry since 1956, is a former member of the Board of Dentistry and has served as Chairman of the Dental Examination for two or three exams. He presently serves, as he did in June of 1980, as the consultant and Chief Dental Examiner for the Department of Professional Regulation, Office of Examination Services. PROCEDURE NUMBER 5 Procedure Number 5, entitled "Complete Denture Evaluation" was a test of the candidate's ability to transfer the centric relation of a live patient's jaw to an articulator. The accurate transfer from the human jaw to the articulator is crucial since the denture will be constructed on the articulator and not in the patient's mouth. If the transfer is not accurate, the denture will not fit or function properly. Wax bite registrations were utilized for this procedure and the test was whether the candidate could accurately duplicate the patient's jaw relationship on an articulator. Hand articulation is not an acceptable means of determining the accuracy of the transfer and cannot simulate the articulation observed by the three examiners who graded this procedure. Petitioner received the grades of 3, 2 and 2, for an overall score of 2.33 on Procedure Number 5. The two examiners who assigned a grade of 2 noted that the centric relation was unacceptable. Other comments listed by the three examiners were that the appearance of the wax was overcontoured and that the interocclusal distance (space) was too little. Petitioner's live patient for this procedure, Beatrice King, testified that the wax bite registrations fit and felt comfortable during the June, 1980, examination. She felt that two of the three examiners were very rough with her. She noted that the one gentle examiner had no trouble placing the rims in her mouth, and that she had to blow to enable their removal. During the administrative hearing, Mrs. King inserted the wax registrations in her mouth and felt that they were still comfortable and that her bite was normal. The expert witnesses testifying for both petitioner and respondent observed the registrations inside Mrs. King's mouth during the hearing. Petitioner's two expert witnesses agreed that the wax bite registrations lacked in appearance and were overcontoured. However, they both felt from observing the registrations in Mrs. King's mouth, that the centric relation was acceptable and repeatable and that, if inserted properly, a full seating could be obtained on Mrs. King. They would have assigned a grade of 3 and 4, respectively. Respondent's expert witness observed that the rims of the wax did not match and that the back sides of the rims were touching, thus providing an obstruction to proper closing. It was also his observation that the inserted bite rims in Mrs.King's mouth had lateral movement. He felt that a grade of 2 was "very generous." PROCEDURE NUMBER 6 Procedure Number 6, entitled "(Final) Complete Denture Evaluation," consisted of the preparation of an impression of the mouth. of a completely endentulous patient. On this procedure, petitioner received grades of 1, 2 and 4, for an overall grade of 2.33. All of the examiners noted voids in the impression tray. Other comments made by the examiners included pressure areas, inablility to observe a post-dam area, the tray not being built u high enough into the vestibule and lack of retention and stability. The actual impression tray used by petitioner during the examination has been distorted by improper storage while in the custody of respondent. It therefore could not be inserted into the mouth of Mrs. King for observation by the expert witnesses who testified at the hearing. Nevertheless, upon observation of the impression tray, petitioner's two witnesses, while noting the voids and pressure areas, would assign grades of 3.5 and 4, respectively. Respondent's expert witness did not feel that the impression submitted by petitioner constituted good dentistry. Voids and pressure areas in the impression tray can cause distortions and inaccuracies in the final denture. Respondent's witness felt that the grades of 1 or 2 were "very generous." PROCEDURE NUMBER 8 Procedure Number 8, entitled "Cast Gold Cavity Preparation," was conducted on a mannequin and required candidates to complete a cavity preparation to receive a cast gold onlay. The instructions called for the preparation of an MOD onlay replacing the buccal and lingual cusps. Petitioner received grades of 2, 2 and 1 on this procedure, for an overall grade of 1.67. The comments noted on the grading sheets included a rough marginal finish, no gingival bevel, debris, the scarring of adjacent teeth, unsupported enamel and unacceptable outline form and depth preparation. Petitioner agrees that the marginal finish was rough and that the adjacent teeth were scarred. According to petitioner, this latter defect occurred when the head of the mannequin suddenly moved as a result of a loose neck screw causing the drill to slip and go through the metal bands on the adjacent teeth. Petitioner's expert witnesses observed the rough marginal finish, but found the remaining criteria satisfactory. They would assign grades of 3 and 4, respectively. Respondent's witness felt that the outline form did not match what was called for on the examination. Rather than the MOD onlay required, the outline form more resembled one for a three-quarter crown. He noted the other deficiencies marked by the examiners on the comment section of the grading sheet. He felt that the grades of 1 and 2 were consistent with what he observed. PROCEDURE NUMBER 9 Procedure Number 9, entitled "Final Gold Restoration," consisted of the candidate fabricating an onlay casting for an ivorine tooth from a dentoform in a mannequin. The procedure was graded with the gold onlay placed on the tooth within the mannequin jaw and with regard to the relationship of the onlay to the other teeth in the jaw. Petitioner received grades of 0, 1 and 2 for this procedure, for an overall grade of 1.00. The examiner who assigned a grade of 0 noted that the casting was not seated and rocked. The other two examiners did not check this comment, but did make comments pertaining to functional anatomy, proximal contour, contact and surface finish. Petitioner's expert witnesses did not observe the ivorine tooth with the gold on lay in the dentoform in the mannequin jaw. They did observe the ivorine tooth with the gold onlay and found that the onlay did not rock on the tooth. Dr. Ford, while noting a few rough edges on the casting and a little problem in the margin, found the gold to be an exact match of the tooth. He would assign a grade of 4 to this procedure. Dr. Guy, noting a rough surface finish, would assign a grade of 3.6. The ivorine tooth and the gold onlay were in the possession of the respondent until several weeks prior to the administrative hearing. Respondent's two witnesses observed the tooth and onlay prior to the last part of April, 1981, and found that the gold onlay had a slight rock to it at that time. They both admitted that the on lay now seated better on the tooth than when they first observed it, though Dr. Bliss still detected a slight rock. Dr. Vodila felt that the procedure still deserved a failing grade because of the deficiencies in the margins. Dr. Bliss, noting that the procedure could not be accurately graded outside the dentoform in the mannequin's mouth, as well as the lack of seating when he first observed it, felt that the grade of 0 was accurate and that the product failed to meet minimal standards for the practice of dentistry. PROCEDURE NUMBER 10 Procedure Number 10, entitled "Pin Amalgam Preparation," was conducted on a dentoform in a mannequin and consisted of the preparation of a tooth for amalgam restoration. Petitioner did not complete this procedure and received a grade of 0 from each of the three examiners. According to petitioner, during this procedure the head on his mannequin often made sudden movements due to a loose screw on the back of the mannequin's neck. He attempted to tighten the screw to fixate the head on several occasions, but the screw would not hold. He testified that he called the monitor over on several occasions and was told, at first, to do the best he could, and eventually, to go on to another procedure. This testimony was corroborated by the testimony of Suzette Rogers, who assisted petitioner during this procedure. A steady, stable working station is important in this type of procedure for an accurate preparation. A competent dentist is trained to and should be able to steady his work area and complete the procedure even with a loose mannequin head. As noted above, the monitors are instructed to complete a form when equipment failure is demonstrated and to insert that form into the candidate's file. No such form was found in petitioner's file. The lead examiner for the dental exam, Dr. Vodila, was never notified of any mannequin failure during the June, 1980, exam. The same mannequin head used by petitioner was also used by four other candidates before and after petitioner used it. PROCEDURE NUMBER 11 Procedure Number 11, entitled "Pin Amalgam Final Restoration," required the candidate to complete an amalgam restoration in an ivorine tooth with a pin. This procedure was to be accomplished on a prepared tooth placed in a mannequin by the monitor after the candidate turned on a light to indicate his readiness for this procedure. Petitioner apparently did not understand the directions for this procedure, no prepared tooth was placed in the mannequin, and no work product was turned in by the petitioner. A grade of 0 was assigned by all three examiners for Procedure Number 11.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the grades awarded to petitioner on Procedures Number 5, 6, 8, 9, 10 and 11 of the clinical portion of the dentistry examination held in June of 1980 be upheld. Respectfully submitted and entered this 29th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 29th day of October, 1981. COPIES FURNISHED: Robert Dyer, Esquire Duckworth, Allen, Dyer and Pettis, P.A. 400 West Colonial Post Office Box 3791 Orlando, Florida 32802 Carol L. Gregg, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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
The Issue The issue for consideration in this matter is whether Petitioner, Cecelia Diaz, is qualified for licensure as a dentist in Florida.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was the state agency in Florida responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is not licensed as a dentist in Florida. Petitioner was awarded a degree in General Dentistry at the University of Santiago de Cuba in October 1973. Thereafter, for almost fifteen years, she practiced dentistry in Cuba. In 1981 her husband was forced to leave Cuba for political reasons but, because of her advanced schooling, she was denied permission by the Cuban government to leave with him. In 1987, Petitioner was permitted to leave Cuba for the United States with her two daughters. In February 1991, for reasons not relevant to the issues here, Petitioner and her husband were divorced. She was forced to provide for her two daughters with no financial help from their father. At the time she was both working and studying to prepare for her dental licensing examinations. In May 1991, Petitioner sat for and passed Parts I and II of the National Examination. The following November, she presented her documents for the mannequin examination, the third part of the examination and the last one to be offered in Florida. Initially, Petitioner was denied permission to take the mannequin examination because, it was alleged, she did not have the requisite educational credentials. However, one week before the mannequin examination was to be given, she appeared before the Board of Dentistry and convinced the members to allow her to take the mannequin examination with the understanding her results would be withheld pending receipt of appropriate documentation from Cuba. Petitioner did not pass the mannequin examination, and, she contends, between 1991 and 1995, there was no way for a foreign dentist to be licensed as a dentist in Florida, upon testing by a mannequin examination. Only New York and California administered a mannequin examination, and Petitioner went to California to take a course to prepare herself for taking the mannequin examination in California. After taking the course, she returned to Florida to prepare to take the examination, and in March 1994, in furtherance of that aim, searched for patients who met the criteria needed for the examination to practice on. She admits this was a mistake. As a result of her actions, on April 1, 1994, she was charged in Circuit Court in Hillsborough County with practicing dentistry without a license. Her attorney recommended she accept a plea bargain with pre-trial intervention. Based on her successful completion of the pre- trial intervention program, the matter was closed without Petitioner having a conviction on her record. In 1995, Florida initiated a program for the licensing of foreign dentists and Petitioner was selected to participate in January 1996. She was in the program for two years at the University of Florida, assisting full time. In June 1998, Petitioner took the State of Florida Dentistry examination. She passed the written part of the examination and was given high passing grades on the clinical portion by two of the three examiners. The third clinical examiner, however, gave her a grade low enough to cause her to fail the clinical portion. Petitioner went to appear before a review panel in Tallahassee where, she claims, the examiner who did the review agreed with her on the discrepancy. The review examiner recommended, however, that though she could request a hearing, the hearing would be held after the next examination, and he felt, from looking at her work, that she could pass the examination. Therefore, she did not request a rehearing. Petitioner took the clinical portion of the dental examination in December 1998. She did not pass, though she feels she did well on all questions except that relating to what she referred to as the RCT, not otherwise defined. This one question caused her to fail the examination by .007 of a point. Petitioner considers it unusual that in the past, everyone who took the review course for foreign dentists at the University of Florida, the one she took, passed the exam. She did not. Ms. Diaz requested a review of the procedure for which she did not obtain a passing grade and found that the reviewer assigned to her was the same individual who had conducted the review of her prior effort. The reviewer began examining her work in a way which she did not consider fair, and when she tried to explain her procedure, he accused her of screaming at him. She requested the review be terminated and she left the office in tears. After that review, Petitioner filed an application for formal hearing, but before the hearing could be held, in May 1999 she received notification from the Board that she had passed and the hearing was not necessary. However, before a license was issued, in August 1999, Petitioner was again arrested in Hillsborough County and charged with practicing dentistry without a license. Petitioner admits that at the time alleged in 1999 she practiced dentistry without a license, and that in 1994 she also practiced dentistry without a license. Petitioner contends that she only began seeing patients in both instances when people from Cuba, who knew she was a dentist and who had no money for dental care, asked her for help. She claims to have taken little money for the work she did - only a small amount to pay for the supplies it was necessary for her to buy. A search of Petitioner’s home was conducted on July 28, 1999, pursuant to a search warrant. The investigator conducting the search found an appointment book, dental records, books and papers, in addition to a dental chair with a basin, as well as an x-ray machine and cabinets of dental equipment and supplies. Taped to some cabinets were before and after pictures of patients. Petitioner contends that at the time of the search she had all that equipment, which she had been given without pay by the custodian of a mall in which a dentist’s office had closed. The custodian was told by the landlord to get rid of the equipment, and he remembered Petitioner who had come into the mall earlier in search of a site for a dental office when she opened. At the time, the space had been rented to another tenant. However, the custodian remembered Petitioner and called her to ask if she wanted the equipment. She did, and he helped her transport it to her home. At no time did he take any money from Petitioner, nor did she do any dental work for him. Nonetheless, Petitioner was again convicted of practicing dentistry without a license. At its meeting in Tampa on January 8, 2000, the Board of Dentistry considered Petitioner’s application for licensure and voted to deny it based on her implication in two incidents of practicing dentistry without a license. Even though no adjudication of guilt was entered in either case, it was the official action which constituted being found guilty of those offenses regardless of adjudication which supported the Board action. Petitioner is currently working as a receptionist in an office making $300 per week working nine-hour days. Her current financial obligations for school loans and other debt exceeds $42,000. No evidence of any malpractice or inappropriate treatment was forthcoming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry issue a license to practice dentistry in Florida to the Petitioner, Cecelia C. Diaz, such license being placed on probation for a period of five years under such conditions as the Board may specify. DONE AND ENTERED this 23rd day of June, 2000. In Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2000. COPIES FURNISHED: Edwin A. Bayo, Esquire Office of the Attorney General Department of Legal Affairs, The Capital, Plaza Level 01 Tallahassee, Florida 32399-1050 Dominic J. Baccarella, Esquire Baccarella & Baccarella, P.A. 4144 North Armenia Avenue Suite 300 Tampa, Florida 33607 William H. Buckhalt, Executive Director Board of Dentistry 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 A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
