The Issue Whether or not on or before January 7, 1978, the Respondent, James P. Haas, was offering to practice dentistry, and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center, in violation of Sections 466.24(3)(n) and 466.36, Florida Statutes. Whether or not on or before January 7, 1978, the Respondent, James P. Haas, maintained a telephone listing whereby he offered to practice dentistry as D.A.D. Denture Center at 101 Palm Springs Drive, Longwood, Florida, and whether or not he continues to maintain said listing, in violation of Sections 466.24(3)(g) and 466.27(5), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, one Bernie Morlock has been employed by the Respondent, James P. Haas, to perform dental services at a time when the said Bernie Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida. Further, whether or not Bernie Morlock, while employed by the Respondent, practiced dentistry as defined in Section 466.04, Florida Statutes, to the extent of: Taking impressions of the human teeth and jaws. Placing dentures and dental appliances in patients' mouths and adjusting or attempting to adjust same. Diagnosing or professing to diagnose the physical condition of the teeth and jaws of patients. Finally, whether or not the Respondent knowingly allowed the practice of dentistry by Bernie Morlock in violation of Section 466.02, Florida Statutes, and in further violation of Section 466.24(3)(d) and (e), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, the Respondent, James P. Haas, has employed unlicensed personnel to perform dental services for patients, to-wit: orthodontic treatment, which services constitute the practice of dentistry under Section 466.04, Florida Statutes. Further, whether or not if these services were performed by unlicensed persons, were they performed with the full knowledge and consent of the Respondent, thereby constituting a violation on the part of the Respondent of Sections 466.24(3)(d) and (e), Florida Statutes. (The Amended Accusation which charges the Respondent contained a certain Count III; however, no testimony was offered in support of that allegation and at the conclusion of the formal hearing, the Petitioner, through its counsel, voluntarily withdrew that count from consideration. This voluntary dismissal was unopposed by the Respondent.)
Findings Of Fact The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Division of Professions, Board of Dentistry, is an agency of the state created for the purposes of protecting the public health, safety and welfare of the citizens of the State of Florida, to the extent that practice of dentistry in the state and dental hygiene are subject to the regulation and control of the Petitioner in the public interest. The authority for such regulation is set forth in Chapter 466, Florida Statutes, and those rules of the Florida Administrative Code related thereto. The Respondent, James P. Haas, is licensed by the Florida State Board of Dentistry to practice dentistry in the State of Florida. The Petitioner, by an Amended Accusation, has charged the Respondent, James P. Haas, with various violations of provisions of Chapter 466, Florida Statutes, and the Respondent has requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, which request has been granted and a hearing held on February 15 and 16, 1979. The first of the allegations states that on or before January 7, 1978, the Respondent was offering to practice dentistry and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center. The facts reveal that Dr. Haas made an arrangement with an organization known as Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky, wherein he agreed to coordinate the placement of advertisements for the benefit of that corporation and in turn the corporation agreed to refer patients to Dr. Haas for his treatment. The advertising spoken of consisted of an ad in the Winter Park, Florida, telephone directory yellow pages and certain newspaper advertising through the Orlando Sentinel of Orlando, Florida. The advertising in the telephone directory was placed in the fall of 1977 and a copy of that yellow page advertising may be found as Petitioner's Exhibit No. 2 admitted into evidence. The Petitioner's Exhibit No. 1 admitted into evidence contains a copy of the format for the telephone yellow page advertising, as contemplated by Dr. Haas through his agreement with Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky. The listing of the telephone number was of the number in Harredsberg, Kentucky, and those individuals at that number in turn made the referrals to Dr. Haas's office located at 101 Palm Springs Drive, Longwood, Florida. An example of the newspaper advertising may be found in the Petitioner's Exhibit No. 3 admitted into evidence at page 161-I, a copy of the Sentinal Star Progress Edition of December 18, 1977. In that advertising the same number is given as indicated in the aforementioned telephone telephone ad, with the difference being that Delivering Affordable Dentistry, Inc., is given as the trade name as opposed to D.A.D. Denture Center, which was found in the telephone advertisement. Dr. Haas maintained a separate checking account for D.A.D. Denture Center, the name of his affiliation with Delivering Affordable Dentistry, Inc. The payments for services made by those patients referred through the D.A.D. Denture Center process, were placed into the D.A.D. Denture Center operating account of Dr. Haas. Those persons authorized to make withdrawals from that account were Dr. Haas and his employee, Bernie Morlock, and checks were drawn from that account under the authority of Dr. Haas. The overall income and expanses of D.A.D. Denture Center, operated by Dr. Haas, and of his general practice in the name of James P. Haas-sole proprietor, were combined and were under the control and authority of Dr. Haas. The dental office located in Longwood, Florida, was identified as the office of James P. Haas, D.D.S., and also by a placard indicating the office to be a D.A.D. Denture Center. Finally, those patients who called for service under D.A.D. Denture Center were charged by different fee structure and were listed in a separate appointment book, than that appointment hook for the Respondent through his general practice, James P. Haas, D.D.S. The Respondent was knowledgeable of the arrangement to treat patients under the assumed name of D.A.D. Denture Center at the address in Longwood, Florida, and in fact practiced dentistry under that assumed name and at that location as alleged in Count I of the Amended Accusation. This constituted a violation of Section 466.36, Florida Statutes, which states: "Practicing dentistry under assumed name; penalties.-- On and after the passage of this chapter, it shall be unlawful for any person or persons to practice or offer to practice dentistry under any name except his or her own proper name, which shall be the name used in his or her license certificate granted to him or her as a dentist as provided in this chapter, and unlawful to use the name of any company, association, corporation, clinic, trade name, or business name in connection with the practice of dentistry as defined in this chapter, provided, nothing herein contained shall be so construed as to prevent two or more licensed dentists from associating to- gether for the practice of dentistry, each in his or her own proper name. The violation of any of the provisions of this section by any dentist shall subject such dentist to suspen- sion or revocation of his or her license." The advertisement placed in the Winter Park, Florida, telephone directory, which is sham as Petitioner's Exhibit No. 2 admitted into evidence, was placed with the knowledge of the Respondent and with the intention by the Respondent that the advertisement be made. This advertisement pertained to the 1978 telephone directory for Winter Park, Florida. Under these facts, the Petitioner has charged the Respondent with a violation of Section 466.27(5), Florida Statutes. That provision reads: "466.27(5) Telephone listings shall be con- fined to the local telephone directories. Such listings shall be limited to the den- tist's name, dental degree, 'D.D.S.' or 'D.M.D.,' using the abbreviation only, the word 'dentist,' 'dentistry,' or 'general dentistry,' any specialty as approved by the board to which the dentist confines his practice exclusively, office location, resi- dence and office telephone numbers, and residence address and may include his member- ship in a local dental society if in accord with local customs." A review of the language of this section, in view of the fact that the advertising in the telephone directory inured to the benefit of the Respondent by the process of the referral system spoken of above, demonstrates that the telephone listing was for the benefit of Dr. Haas and was not in keeping with the requirements of this subsection. This constituted advertising professional services and the practice of dentistry in a manner not expressly authorized by Chapter 466, Florida Statutes, and was therefore in violation of Section 466.24(3)(g), Florida Statutes. One of the employees of the Respondent who worked in the office at 101 Palm Springs Drive, Longwood, Florida, was Bernie Morlock. Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida at any time relevant to the allegations in the Amended Accusation. Nonetheless, Morlock practiced dentistry as defined by Section 466.04, Florida Statutes, and did so in the office of the Respondent in Longwood, Florida, with the knowledge and consent of the Respondent. The arrangement which was condoned by the Respondent allowed for Morlock to have patients scheduled for him for the purpose of the preparation of dentures through the referral system, D.A.D. Denture Center, which was part of Dr. Haas's Longwood, Florida, office. (An example of the written schedules may be found in the Petitioner's Exhibit No. 5 admitted into evidence.) Dr. Haas had instructed that these patients be scheduled to be seen by Bernie Morlock. Some of these patients were being seen by Dr. Haas's office for the first time and were attended by Bernie Morlock from this initial visit to the conclusion of the case, at which time the patients were given their dentures. Morlock's involvement with patients included diagnosis of the physical condition of the teeth and jaws of the patients; taking impressions of patients' teeth, both algenate and working model impressions; the placement of dentures and other dental appliances in the patients' mouths and the adjustment to those dentures and dental appliances, and the discussion of the case with the patient. Most of the work that Morlock did was done at a time when Dr. Haas was not in attendance in the aforementioned office and was done without supervision from any licensed dentist. This process undertaxen by Bernie Morlock happened on numerous occasions. The patients were considered to be Morlock's patients and the patients only saw licensed dentists for the purpose of extracting teeth or other dental procedures unconnected with the fabrication and try-in and adjustment to the dentures. These actions on the part of Bernie Morlock took place during the time period alleged in Count IV of the Amended Accusation. By allowing Bernie Morlock to attend patients in the fashion that Morlock did, the Respondent was willfully negligent in the practice of dentistry within the moaning of Section 466.24(3)(d), Florida Statutes, and in addition was guilty of a violation of Section 466.24(e), Florida Statutes, which states: "Employing or permitting any unlicensed per- son or persons to perform any work in his office which would constitute the practice of dentistry or dental hygiene, except a dental auxiliary pursuant to the provisions of this chapter." During the period of time alleged in Count V of the Amended Accusation, the Respondent employed dental hygienists Vic Simmons and Mary Simmons at his office in Longwood, Florida. Although they wore dental hygienists, these individuals were not licensed to practice dentistry or dental hygiene within the State of Florida. Notwithstanding this absence of a license, the Simmonses practiced dentistry in the Longwood office within the meaning of Section 466.04, Florida Statutes. This included having certain schedules set for them as indicated by Petitioner's Exhibit No. 5 admitted into evidence. This is an example of the schedule for the Simmonses under the title, "Ortho". This scheduling was with the knowledge of Dr. Haas, who had arranged for the Simmonses to come and treat orthodontic patients in his office. The Simmonses came to the location of the Respondent's office two days a month, of which Dr. Haas was in the Longwood office one of those days. These orthodontic patients would be seen initially by Dr. Haas and then treated for their condition by the Simmonses. Some of the patients first seen by the Simmonses arrived at the office without any form of braces in the mouth of the patient. The procedures that the Simmonses then performed were done without supervision by a licensed dentist. By that it is meant that the Simmonses were performing the dental services without the licensed dentist being in the room. The Simmonses, in the pursuit of orthodontic dental practice, placed bands and changed beads, cemented hands and placed arch wires; all with the knowledge and consent of the Respondent. Under the circumstances involved in the employment of the Simmonses, it has been demonstrated that the Respondent is guilty of willful negligence in the practice of dentistry as prescribed in Section 466.24(3)(d), Florida Statutes. The Respondent is also guilty of a violation of Section 466.24(3)(e), Florida Statutes, in that he employed and permitted unlicensed persons to perform work in his office which would constitute the practice of dentistry. The proposed findings of fact, conclusions of law and recommendation offered by the parties have been revied prior to the rendition of this Recommended Order. To the extent that the proposals conform to the findings herein, they have been utilized in developing the Recommended Order. To the extent that the proposals are inconsistent with the findings herein, they are rejected.
Findings Of Fact William Cecil Graham is licensed by the Florida State Board of Dentistry and at all times herein involved was so licensed. Dr. Graham began treating Mrs. Dover Stokes in August 1977, and during the time Mrs. Stokes was a patient, Respondent performed oral surgery, extractions and prepared upper and lower partial plates. All this work was done in Respondent's office located at 16580 Northwest 10th Avenue, Miami. For this work Mrs. Stokes paid Respondent approximately $500. Mrs. Stokes suffers from glaucoma and is nearly blind. She began going to Respondent for treatment upon the recommendation of one of Mrs. Stokes' roomers who is a cousin of Respondent. This roomer generally provided Mrs. Stokes transportation to and from Respondent's office for treatment. After the impressions for the plates had been taken and close to the time these plates were delivered to Respondent, he suddenly had to leave the Northwest Miami office. He advised Mrs. Stokes, and presumably his other patients, of his imminent departure and that he would contact her when relocated. Since he had by then received the partial dentures, Mrs. Stokes asked him to bring them to her. Respondent had been to Mrs. Stokes home on previous occasions to collect payments and he agreed to bring the plates to her. When Respondent took these plates to Mrs. Stokes, he brought along a portable hand grinder to adjust the plates. During this visit, Respondent tried the plates in Mrs. Stokes' mouth and she found them tight. After making some adjustments, Respondent left with the plates for additional adjustment. No instrument was used in Mrs. Stokes' mouth while the plates were being fitted at her home. Respondent returned to Mrs. Stokes' home in early November 1977, inserted the plates and made additional adjustments. Mrs. Stokes was happy with the plates at this time. Upon leaving, Respondent advised Mrs. Stokes that he would contact her as soon as he was relocated in an office. After not hearing from Respondent and experiencing discomfort with her plates, Mrs. Stokes began searching for Respondent. Mrs. Stokes testified that she called Graham's home and his wife couldn't tell her how to contact Graham. Respondent testified that Mrs. Stokes called his home, spoke to his wife who relayed Mrs. Stokes message to him, and that he called Mrs. Stokes in early January 1978. At this time, Graham was still without an office. During this conversation, Mrs. Stokes expressed her dissatisfaction with Respondent. When he offered to send her to another dentist, Mrs. Stokes said she didn't want another black dentist. At this point Respondent realized further communication with Mrs. Stokes was impossible and he suggested that she select a dentist and he, Graham, would pay for the treatment she needed. Mrs. Stokes doesn't recall this conversation; however, Respondent's testimony in this regard is accepted as the true version of what happened. Mrs. Stokes next contacted the State Dental Board with her complaint about Respondent. The matter was referred to a Board member in Miami, Marshall A. Brothers, who telephoned the number of the office in Northwest Miami where Stokes had previously worked and was advised the whereabouts of Graham was unknown. Dr. Brothers did not speak directly to one of the dentists in the Northwest Miami office when the call was made to locate Graham. No correspondence was sent to the office previously used by Respondent. When Brothers was unable to contact Graham, he did nothing further to investigate the treatment that had been provided Mrs. Stokes by Respondent. In July 1978, Respondent opened an office on Northwest 54th Street in Miami. Mrs. Stokes telephoned the office and Respondent returned her call. He offered to examine her teeth, but Mrs. Stokes said she didn't want him to work on her. Respondent then renewed his offer to Mrs. Stokes to select a dentist of her choice, have him do the necessary work, and he, Graham, would pay for it. Mrs. Stokes then visited a dentist close to her home and advised him that Respondent would pay for the treatment. This dentist, Dr. Efrom, called Respondent who confirmed that he would pay for the treatment Mrs. Stokes required. Dr. Efrom found some rough places on the plates which he polished, corrected some sore spots in Mrs. Stokes' mouth, filled a cavity, and his technician cleaned Mrs. Stokes' teeth. Respondent paid for this treatment, although he had not contracted to fill a tooth for Mrs. Stokes or to do the cleaning.
The Issue Whether the Petitioner should receive on the the clinical portion of the examination additional credit, which is sufficient to receive a passing grade on the December 1997 dental licensure examination.
Findings Of Fact Petitioner, Neda Raeisian, was a candidate for the dental licensure examination administered by the State of Florida in December 1997. The dental examination administered in December 1997 consisted of three parts: a "Florida Laws & Rules" part, an "Oral Diagnosis" part, and a "Clinical" part. The Petitioner received passing scores on the "Florida Laws & Rules" and "Oral Diagnosis" parts of the examination. Petitioner received a score of 2.95 on the Clinical part of the examination. A score of 3.00 was required on the Clinical part of the examination. The Petitioner failed the Clinical portion by .05 of a point, and, therefore, she failed the overall dental examination. Three examiners grade each candidate's clinical portion of the dental examination. Three examiners are used because by averaging the scores of the three examiners, the Respondent is more likely to capture the candidate's true score than by using one or two examiners. Before an examiner may be used for an examination, he or she must be recommended by an existing examiner or by a member of the Board of Dentistry. The proposed examiner may not have any complaints against his or her license and he or she must have been actively practicing and licensed for at least five years in the State of Florida. The examiner must complete an application that is sent to the Board of Dentistry examination committee, where it is then reviewed by the committee, and if approved, the examiner is entered into the pool of examiners. Before every examination, the Respondent conducts a standardization session, which is a process by which examiners are trained to grade using the same internal criteria. The Respondent uses assistant examiner supervisors who are appointed by the Board to train examiners on the different criteria that are used during the examination. The assistant examination supervisors go through and describe what a score of five would be, all the way down to a zero, the different criteria for each of those particular grades, and under what circumstances those grades should be given. After the examiners go through a verbal training, they are shown slides of teeth and told what the score on that procedure should be. After the standardization, there is a post- standardization exercise where the examiners are required to grade five mannequin models to make sure they have been able to internalize the criteria. After the post-standardization exercise, the Respondent evaluates the examiners to determine whether they are acceptable to use during the examination. There are also post-examination checks on the examiner, whereby the Respondent decides whether or not to use the examiners again. The Respondent runs the post-examination statistical checks to make sure that the examiners grade with consistency and reliability. There is generally a very high agreement rate between the examiners. Typically if there is an inconsistency in grading, it is usually the examiner who gives the higher grade that is incorrect because he or she missed an error; any error found by an examiner must be documented. The examiners grade the examination independently of each other; that is, they do not confer with each other while scoring the examination. The examination is also double-blind graded. Double- blind grading is the process through which examiners have no contact with the candidates. The examination is conducted in such a way that there is one clinic that is monitored by a licensed dentist in which the candidates actually perform the procedures. When the candidates are finished a proctor walks the patient over to another clinic where the examiners are located, and the examiners grade the examination. The candidates perform the patient portion of the examination on human beings that they are responsible for bringing in. If the patient has the necessary characteristics, the patient could serve for two different candidates or on two different examinations. The examination is a minimum competency examination. The grading system used during the clinical portion of the examination is as follows: A zero is a complete failure, a one is unacceptable dental procedure; a two is below minimally acceptable dental procedure; a three is minimally acceptable procedure, which is the minimum required to pass the clinical portion; a four is better than minimally acceptable dental procedure; and a five is outstanding dental procedure. An overall score is determine by averaging the three examiners' scores on the eight clinical procedures, putting different weights into a formula, and calculating the final grade. It is required in Board rule that the scores of the examiners be averaged. The Petitioner challenges the score given to her for her performance on Procedure 03, "Amalgam Final Restoration," of the Clinical portion of the examination. The Petitioner performed Procedure 03, the "Amalgam Final Restoration," on a live patient, Ms. Desiree Peacock. The Petitioner's performance on Procedure 03 was graded by three examiners: examiner number 290, identified as Dr. Richard Tomlin, of Pinellas Park, Florida; examiner number 299, identified as Dr. Haychell Saraydar, of Pinellas Park, Florida; and examiner number 176, identified as Dr. Leonard Britten, of Lutz, Florida. The Petitioner received a grade of 4 on a scale of 0-5 for her performance on Procedure 03 by examiner number 290; and a grade of 3 on a scale of 0-5 for her performance on Procedure 3 by examiner number 299. However, she received a grade of 0 on a scale of 0-5 for her performance on Procedure 03 by examiner number 176. The reason the Petitioner was given a score of 0 on procedure 03 by examiner number 176 was that the examiner felt that there was a lack of contact at the amalgam restoration site. The Respondent's dental expert, Jorge H. Miyares, D.D.S., testified that a score of 4 is given on Procedure 3 when, in the judgment of the examiner, there are only minor errors present which will not jeopardize the procedure; that a score of 3 is given on Procedure 03 when, in the judgment of the examiner, the procedure is completed at entry level; and that a score of 0 on Procedure 03 is mandatory if there is a total lack of contact. The examiners are taught and trained to check for contact when grading a candidate's performance on Procedure 03, as a lack of contact is a very significant error that jeopardizes the integrity of the amalgam restoration. There are two different types of contact involved in a Class II Restoration. The type of contact that was referenced by Examiner 176 in his grade documentation sheet is proximal contact. Proximal contact is when a tooth is restored, the proximal tooth next to it must be touching the tooth that has been prepared. Contact is something that either does or does not exist between two teeth. Contact is checked visually and by running a piece of dental floss between the teeth to see if there is resistance. Examiners 290 and 299 would have been required to give the Petitioner a grade of 0 on Procedure 03 if they had found a lack of contact. The findings of examiners 290 and 299 during their review of the Petitioner's performance on Procedure 03 were inconsistent with the findings of examiner 176 (lack of contact) during his review of the Petitioner's performance on Procedure 03. The inconsistency between the findings of examiners 290 and 299 and the findings of examiner 176 during their review of the Petitioner's performance on Procedure 03 were statistically unusual. Respondent performed Procedure 03 on the patient Desiree Peacock. Following the exam, Peacock used dental floss on the affected area and she believed she felt resistance. Although the grading on Procedure 03 of the clinical portion of the examination is inconsistent, the Respondent followed its standard testing procedures for the December 1997 dental examination. The evidence is insufficient to prove that the Respondent's examiner acted arbitrarily or capriciously or with an abuse of discretion in refusing to give the Petitioner a passing grade on procedure 03 of the clinical examination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Petitioner's challenge to the grade assigned her for the clinical portion of the December 1997 dental licensure examination. DONE AND ENTERED this 22nd day of September, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of September, 1998. COPIES FURNISHED: Anne Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399 Dr. Neda Raeisian 2161 Lake Debra Drive Apartment 1726 Orlando, Florida 32835 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle Southeast Bin A-02 Tallahassee, Florida 32399-1703
The Issue Whether respondent should license petitioner as a dentist, despite the results of his manual skills examination, on account of the alleged unfairness of Examiner No. 170?
Findings Of Fact Petitioner Mohammed Hossein Teimourijam, who has practiced dentistry for five years and once taught dentistry at the National University of Iran, took the dental manual skills examination respondent administered in November of 1987. The examination consisted of nine procedures which each examinee performed on "dental mannequins." By reference to the number with which each applicant identified all of his procedures, examiners recorded their evaluations. Petitioner's Exhibit No. 1. Petitioner's original score was arrived at, as follows: PROCEDURE 006 154 170 AVERAGE 1 2 2 2 2.0 2 2 2 1 1.66 3 2 2 1 1.66 4 5 5 3 4.33 5 3 3 2 2.66 6 5 4 4 4.33 7 2 3 3 2.66 8 4 4 1 3.0 9 3 3 1 2.33 Respondent's Exhibit No. 3; Petitioner's Exhibit No. 3. Anonymous examiners, who did not see petitioner or any other examinee at work, began grading only after the applicants had finished the assigned procedures. The Board preserved the physical product of each procedure, along with the standardized rating sheets three examiners (Nos. 006, 154 and 170, in petitioner's case), filled out in evaluating each procedure. When respondent Board apprised Dr. Teimourijam that he had scored 2.71, below the 3.0 "necessary to achieve a passing status," Petitioner's Exhibit No. 3, he requested reconsideration. As a result, a consultant to respondent, who had attended the same standardization session as the original graders, reviewed the grading sheets and the procedures. With respect to procedures 8 and 9, the consultant concluded either that one of the original graders' comments was not physically verifiable or that one of the original grades was indefensible. Accordingly, three new graders evaluated petitioner's procedures 8 and 9. The results of the regrading were 3, 3 and 4 for each procedure, which brought petitioner's final grade to 2.84.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that the Respondent has violated several statutory provisions by repairing dentures in a licensed dental lab without having obtained the required work order from a licensed dentist.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: At all times relevant and material to this case, the Respondent, Magnolia Iole, held license number DL 0002153 issued by the Department of Professional Regulation, which licensed her to operate as a dental laboratory in the State of Florida. At all times relevant and material to this case, the Respondent's dental laboratory was operated at 201 East Oakland Park Boulevard, Fort Lauderdale, Florida, under the business name of All Emergency Denture Service. On April 11, 1990, an investigator with the Department of Professional Regulation took a broken denture to the Respondent's dental laboratory and asked to have it repaired. The broken denture was a woman's denture that had been obtained by one of the other Department investigators from a local dentist's office. The investigator who presented the broken denture for repair had not seen any dentist regarding the broken denture, nor did the investigator have any work order from a dentist for the repair. On April 11, 1990, an employee of the Respondent's dental laboratory agreed to repair the broken denture that was brought in by the Department investigator. The employee said that the repair would cost $50.00, and that the denture would be ready later than same day. Later that same day two Department investigators returned to the Respondent's dental laboratory, where they met the same employee who had agreed to repair the broken denture. The employee told the investigator who had brought the denture that it would be ready in a few minutes. A few minutes later the employee of Respondent's dental laboratory handed the repaired denture to the investigator who had brought it in earlier the same day. At that time the previously broken denture was completely repaired. Although the Respondent, Magnolia Iole, was not observed on the dental laboratory premises during the events of April 11, 1990, described above, she was aware that such events were taking place, because during a telephone conversation on April 12, 1990, Magnolia Iole admitted to a Department investigator that she had been taking repair work without work orders because she needed the money. A work order for denture repair is an order from a licensed dentist to a dental laboratory directing that certain repair services be performed. The work order is, essentially, a prescription for the performance of specific services. A dental laboratory is not permitted to perform a repair of an intra- oral dental appliance without a work order signed by a licensed dentist. A dental laboratory that repairs a denture without a work order issued by a licensed dentist is engaged in the unauthorized practice of dentistry. Denture repair under such circumstances also constitutes the acceptance and performance of professional responsibilities which the dental laboratory licensee is not competent to perform. Denture repair without a work order issued by a licensed dentist, even when the repairs are excellently accomplished, can prevent the discovery of emerging dental problems and cause them to go untreated to the harm of the patient.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Dentistry enter a final order in this case concluding that the Respondent has violated Sections 466.028(1)(z) and 466.028(1)(bb), Florida Statutes, and imposing an administrative penalty consisting of a six month suspension of the Respondent's license, to be followed by a one year period of probation during which the Respondent shall be required to advise the Board quarterly of all work performed by the Respondent's dental laboratory and shall comply with all statutory and rule provisions governing the activities of dental laboratories. DONE AND ENTERED at Tallahassee, Leon Coun~y, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1991. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Ms. Magnolia T. Iole 531 Northwest 39th Street Oakland Park, Florida 33309 Mr. William Buckhalt, Executive Director Florida Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue At issue in this case are: (1) the Petitioner's standing; (2) the validity of the Respondent's proposed amendment to F.A.C. Rule 21G-8.004(2) (the so- called designation rule), which would designate the Alabama Dental Hygiene Program (ADHP) as a dental hygiene college or school under Section 466.007, Fla. Stat. (1989); and (3) the validity of the Respondent's proposed amendment to Rule 21G-8.004(3) (the so-called criteria rule), which would establish criteria for approval of a dental hygiene college or school under Section 466.007, Fla. Stat. (1989).
Findings Of Fact The Petitioner, the Florida Dental Hygienist Association, Inc., is a state association whose members are dental hygienists licensed to practice dental hygiene under Chapter 466, Fla. Stat. (1989). The Petitioner contends that the effect of the designation rule will be to allow inadequately educated dental hygienists to sit for examination for licensure in Florida with a resultant dilution of the quality of licensed dental hygienists available to practice dental hygiene in Florida. It is the purpose of the Florida Dental Hygienists Association to insure that the quality of dental hygiene practice is maintained and to insure that the persons licensed as dental hygienists in this state meet minimum education and training requirements. The Challenged Rules The proposed rule under challenge in Case No. 89 designation rule) would amend F.A.C. Rule 21G-8.004(2) by adding the language: The Alabama Dental Hygiene Program sponsored by the Alabama Board of Dental Examiners is determined to be a dental hygiene college or school within the meaning of Section 466.007, F.S., and is hereby approved by the Board. The proposed rule under challenge in Case No. 90 criteria rule) would renumber what is now (3) of F.A.C. Rule 21G-8.004 as (4) and would insert as (3) the new language: Colleges or schools whose program meets the following criteria shall be approved by the Board for the purposes of Section 466.007(2)(b), F.S., upon submission of evidence which establishes compliance with the following requirements: The educational program provides at least 50 hours of formal preclinical training and one year of clinical training which shall include performance of a minimum of 75 prophylaxes. The educational program provides instruction in the following subject areas as they relate to dental hygiene practice. The program shall consist of at least 260 total hours, at least 160 hours of which shall be provided through formal classroom instruction. Students shall be required to successfully complete examinations testing the subject matter presented through formal classroom instruction. Anatomy; Physiology; Biochemistry; General Chemistry; Microbiology; Pathology; Nutrition; Pharmacology; Pain Control; Tooth Morphology; Head, Neck and Oral Anatomy; Oral Embryoloty and Histology; Oral Pathology; Dental Materials; Periodontology; Radiography; Clinical Dental Hygiene (clinical and didactic instruction); Oral Health Education; Community Dental Health; Patient Management; and Medical and Dental Emergencies (including basic life support). Accredited Programs Dental hygiene in Florida is taught in the community college system. There are nine community colleges that have dental hygiene programs, all of which are accredited by the Commission on Dental Accreditation of the American Dental Association. Course work requirements for a dental hygiene degree range from 70 to 95 academic credit hours over a two year plus time period. Florida dental hygiene programs require in excess of 70 credit hours (60 credits being the minimum that a student can have in order to receive an associate of arts degree). Typical of the dental hygiene programs are the dental hygiene programs at the Valencia Community College and the Pensacola Junior College Dental Hygiene Program, each of which requires a minimum of 84 credit hours for a degree. The program includes general education and science courses as well as dental hygiene courses. The curriculum is comprehensive and includes general education, basic sciences, and didactic and clinical dental hygiene education. Education by Florida community colleges is offered at a minimum competency level reflected in standardized "curriculum frameworks" for each program. The frameworks establish a standardized guide for development of education programs and are required by state and federal law. The curriculum frameworks are adopted by the State Board of Education. The curriculum framework for dental hygiene education makes clear that it is to meet the standards for accreditation by the Commission on Dental Accreditation of the American Dental Association. The dental hygiene curriculum frameworks are built on national standards to achieve "leveling," reasonable standardization of education allowing educational credit to be transferred from one school to another. The Accreditation Standards for Dental Hygiene Educational Programs and the Procedures for Evaluation of Dental Hygiene Programs show that dental hygiene education at programs accredited by the Commission on Dental Accreditation is comprehensive. The Commission on Dental Accreditation requires both didactic and clinical dental hygiene education to: (1) be offered at the college level in post-secondary schools or colleges accredited by a regional accrediting agency recognized by the Counsel on Post-Secondary Accreditation; (2) award an associate or baccalaureate degree; and (3) prepare students to continue their education. Regional accrediting agencies require general and liberal arts education as part of the basic studies for each student. A basic science background in dental hygiene education helps students understand the transmission of diseases, such as AIDS. Liberal arts education helps prepare the dental hygienist for effective patient communication relating to dental hygiene. Neither the curriculum frameworks nor the Commission's accreditation standards for dental hygiene education programs establish the number of hours of formal education for each of the components of the curriculum. Some of these components include the maintenance of patient financial records, the collection of fees, the maintenance of dental office inventory controls, the demonstration of public relations responsibilities, the demonstration of skills on office equipment, and the demonstration of employability skills including job interviews and appropriate job changes. Florida's community college programs must also be accredited by the Southern Association of Colleges and Schools. This accrediting body requires all vocational programs at the associate level to offer a minimum of 25% of credit hours in general education and liberal arts which can include subjects such as sociology, government, humanities, art history, music appreciation, etc. In some of Florida's programs, liberal arts and general education may comprise as much as 50% of the dental hygiene curriculum. The dental hygiene curriculum requirements in Florida's community colleges go beyond the Commission on Dental Education minimum requirements in terms of the core dental hygiene instruction. In post-secondary academia, the term "college" means an established institution of higher learning; the term "school" means an organized body that leads to a post-secondary degree. A school is usually organized within a college. A "program" is a term of art in academia that means an identified, organized course of study leading to a degree. Programs are offered within academic schools or colleges. In practice, in dental hygiene academia, the terms "dental hygiene college," "dental hygiene school" and "dental hygiene program" are synonymous. The Commission on Dental Accreditation has accredited Florida's nine dental hygiene programs as opposed to the schools in which they reside. The Commission on Dental Accreditation of the American Dental Association accredits those organized courses of study that lead to a degree in dental hygiene, regardless of whether the course of study is labeled a "dental hygiene college," "dental hygiene school" or "dental hygiene program." The Alabama Dental Hygiene Program The Alabama Dental Hygiene Program (ADHP) is not accredited by, nor does it have status toward accreditation by, the Commission on Dental Accreditation of the American Dental Association. The Alabama Dental Hygiene Program began in 1959 as a system of non- academic preceptorship training. Under the ADHP, any licensed dentist is approved by the state licensing board to provide on-the-job training in dental hygiene to dental assistants with at least one year experience as a dental assistant. 1/ (Candidates also must be at least 18 years of age and must be a high school graduate.) The sponsoring dentist is responsible for the clinical adequacy and thoroughness of training. The program is administered by the Alabama Board of Dental Examiners, which has final authority over it, in concert with the Alabama Dental Association. A candidate cannot enter the program without sponsorship by a dentist. The Alabama Dental Hygiene Program now is a one year course of study that combines formal classroom education with hands-on clinical training. Participants receive approximately 165 hours of didactic lectures in 2 separate week-long sessions and 4 weekend sessions concurrent with the one year of preceptor training. Accredited programs generally include a minimum of approximately 1,000 classroom hours. Faculty and facilities for didactic lectures are provided by the University of Alabama College of Dentistry in Birmingham, Alabama, on a contractual basis. With the exception of one dental hygienist from North Carolina, all of the faculty members for the current ADHP class are on the UAB dental faculty. But it is not a program within or sponsored by the university, nor does the university give academic credit for it. It does not lead to a post-secondary degree. The Alabama Dental Hygiene Program includes significantly less formal classroom education in all of the areas of general education and basic sciences and significantly fewer lectures in the clinical practice of dental hygiene than do accredited programs. The Alabama Dental Hygiene Program does not include the following courses required in an accredited program: chemistry, head and neck anatomy, histology, periodontology, nutrition, public health, pharmacology, pathology, dental materials, law and ethics, sociology, psychology and English. A course in disease control, which is of particular importance since the onset of AIDS, and which requires a strong basic science and biology background, also is absent from the ADHP. Examples of some of the differences are: ADHP ACCREDITED MODEL LECTURE LAB TOTAL HRS. ANATOMY & PHYSIOLOGY 8 88 66 134 MICROBIOLOGY 8 40 40 80 ORAL PATHOLOGY 8 34 0 34 RADIOLOGY 12.5 27 30 57 PREVENTIVE DENTISTRY 12.5 36 6 42 A person trained in the Alabama Dental Hygiene Program would not receive academic credit at Pensacola Junior College or Valencia Community College for the training because it does not meet minimum standards. Clinical training in the office of the sponsoring dentist is done by means of a series of modules which serve, in effect, as building blocks in imparting dental hygiene skills. Each module identifies a number of specific skills that the student must master and requires the sponsoring dentist to evaluate performance for each such skill. The sponsoring dentist must verify in writing that a module has been completed, and the successful completion of all modules is a prerequisite to graduation from the Program. The use of the modules is an attempt to insure that all ADHP students are learning essentially the same skills over the same general period of time. However, the ADHP clinical training is less standardized than under accredited programs. An ADHP student is likely to see more actual patients over the course of the clinical training than a student in a community college program. ADHP clinical training is administered to a one-to-one basis as opposed to the higher student-to-dentist ratio found in community college programs. A great deal of quality control is inherent in the ADHP clinical training in that the student is learning on the sponsoring dentist's patients and he has a professional duty to make sure that a good job is done. However, the dental hygiene exam is the ultimate quality control device for ADHP in that a student must pass the exam in order to become licensed as a dental hygienist. The clinical portion of the Alabama Dental Hygiene Examination is equivalent to the Florida Dental Hygiene Exam in content and in administration. A person who passes the Alabama exam would be expected to pass the Florida exam and vice versa. A six-year comparison of scores on the Alabama clinical exam achieved by ADHP graduates with the scores of graduates of traditional two- or four-year programs reveal that ADHP graduates do just as well as their college- trained counterparts. This is a strong indication of equivalency in terms of clinical abilities. Data from the Alabama Dental Hygiene Licensing Exam also show that the Alabama Dental Hygiene Program graduates perform as well or better as candidates who take the National Board of Dental Hygiene examination. However, comparison of the two examinations is not valid because the National Board Examination is a "norm referenced test" whereas the Alabama Dental Hygiene Examination and the Florida license examination are "criterion referenced tests." There is no valid comparison of examination scores of graduates from the Alabama Dental Hygiene Program with graduates from accredited programs because the Alabama Dental Hygiene Program "graduates" are not eligible to sit for the National Board exam, the only standardized examination. The Proposed Criteria Proposed Rule 21G-8.004(3) provides that a college or school whose dental hygiene program meets the proposed rule criteria shall be approved by the Board of Dentistry. There are 21 subjects listed in the rule, but it is unclear whether those subjects are to be included in the 160 hours of formal classroom instruction or under another setting. There are no minimum number of hours that are attendant to any of the listed subjects. It is not clear whether the hours referenced are academic or actual clock hours. The rule is silent as to the method by which the clinical training is to be provided. The proposed rule is unclear as to its academic requirements and the hours of instruction required. The proposed rule seems to be approving a preceptor or apprenticeship type of dental hygiene training which is similar in structure to the Alabama Dental Hygiene Program. Comparison of ADHP and Criteria with Accreditation Standards The Board of Dentistry bases the proposed rules on a finding that dental hygienists who are trained by the ADHP, or who would be trained in a similar program meeting the requirements of the proposed criteria rule, would by adequately trained to safely and competently perform dental hygiene in dental practices in Florida. Based on the evidence presented, such a finding would be neither arbitrary nor capricious. But the evidence also shows that the training given in the ADHP, and training that would be given in a similar program meeting the requirements of the proposed criteria rule, is not the equivalent of the training given in accredited programs.
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 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.
The Issue The issue for consideration in this case is whether Petitioner should be awarded a passing grade on the clinical portion of the dental licensing examination given on December 12 through 14, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is a graduate of the University of Florida School of Dentistry and was eligible to sit for the examination for licensure as a dentist in Florida. Petitioner previously has taken and passed the written portion of the dental examination. He has taken the clinical portion of the examination twice and has received a failing grade each time. He is eligible to take the clinical portion alone for a third time, but must do so within a period of 13 months of taking it the second time or must take both the written and oral portions again. Dr. Scheutz first took the examination in June 1996. He received a passing grade in each of those examination portions which dealt with Florida laws and rules and with oral diagnosis. However, he received a grade of 2.31 on the clinical examination portion of the examination, and a passing grade was 3.0. Thereafter, in December 1996 he again took the clinical portion and this time received a grade of 2.71, still below the 3.0 passing grade. Dr. Theodor Simkin is a licensed dentist and consultant to the Board of Dentistry, who has been in the private practice of dentistry since 1950 and in Florida since 1975. He has been involved in the development, administration, and grading of the dental examination in Florida since 1979 and was a supervisor for the December 1996 examination. He is familiar with the standards applied in the clinical portion of the examination and how the examination is given and graded. Petitioner has challenged the grade he received on five separate procedures he performed during the December 1996 examination. The procedures chosen for accomplishment during the examination are not unusual procedures, but are common problems seen on a routine basis by a practicing dentist. Dr. Simkin reviewed the mannequin on which Petitioner did his work and which he presented to the examiners for grading. One of the grades challenged related to a "composite restoration" (Clinical D) for which Petitioner received a grade of 0. In this procedure the candidate is presented with a tooth on a mannequin. The candidate is instructed to cut off a corner of the tooth and then restore that corner with an amalgam restoration. The examiners are not present when the procedure is accomplished, but grade the procedure after completion. Instruction on the procedure is given to the candidate by a monitor who is present in the room but who does not grade the work done. The examination process is accomplished using the candidate number, not the candidate name, so that examiners do not know whose work at which they are looking. Once the procedure is done by the candidate, the mold is packed in the candidate's presence and is then held in the custody of the Board of Dentistry until examined independently by each of three examiners. Once graded, it is then shipped to Tallahassee and kept in a vault until needed, as here, for review by Dr. Simkin and others. Ordinarily, even if dropped, a model will not break. In the instant case, Petitioner performed the procedure on an upper right central incisor. The right corner of the tooth, approximately one-third of the tooth, was cut off and the candidate was instructed to rebuild it with a composite material. When the examiners evaluated Petitioner's work, they found that the filling was not bonded to the tooth and was loose. The loose restoration would be useless to the patient, whereas a properly done restoration should last for at least several years. On a human, the stresses applied to a tooth repair are significant, and the repair must be sufficient to withstand them. Notwithstanding Petitioner's claim that the tooth used was an artificial tooth to which the filling material does not easily bond, Dr. Simkin asserts that the bonding which occurs with a plastic tooth is different from that which occurs in a real tooth but the material can bond to the plastic tooth. He knows of no other complaints by other candidates at this examination of not being able to complete the restoration because the materials would not bond. Petitioner admits that when he did the procedure during the June 1996 examination, the tooth bonded correctly. In light of all the evidence regarding this point, it is found that Petitioner's claim is without merit. Petitioner also challenges his score of 2.0 received for his work on an "amalgam cavity preparation" (Clinical B). This composite score was based on a 2.0 awarded by each of the three examiners. An amalgam preparation is what is done to the tooth to get it ready for filling. In this case, an actual patient, supplied by the examines, had a cavity which was reviewed by the examiners. Once the patient was accepted by the examiners, the candidate then cleaned out the cavity and got it ready for filling. Dr. Simkin's review of the documentation prepared in regard to this candidate's performance of this procedure, in his opinion, supports the grades given by the examiners. Here, Petitioner sent the examiners a note as to what he proposed to do with his patient. Petitioner sought to deviate from a normal preparation due to the location of the caries, and the monitor agreed, as did the examiners. Thereafter, the candidate did the procedure. All three examiners graded his work against his proposal and gave him a failing grade. The examiners determined that his work on this patient merited only a grade of 2.0 because, according to two examiners, the margin of the filling was not separated from the next tooth as required. As to the "posterior endodonture procedure" (Clinical M), Petitioner received an overall score of 1.3. In this procedure, the candidate is required to bring in an extracted tooth which is mounted in an acrylic block. The candidate is to remove the nerve and diseased tissue, clean the cavity, file it, fill the canals, and seal the tooth. This is known as a root canal. In grading a candidate's work, the examiners look to see that the canal is properly cleaned out, is filled properly and sealed with a surface that is slightly shorter than the apex (highest point) of the tooth. On the x-ray taken of Petitioner's sample, it is obvious, according to Dr. Simkin, that one canal is at or short of the apex, but the other is long, and this is considered unacceptable treatment. Even Petitioner agrees. Petitioner received grades of 3.0, 2.0 and 1.0 for an overall failing grade of 2.0 on the "prep. cast restoration" (Clinical F). In this instance, the procedure called for the candidate to install a gold onlay. Normally the surface to which the onlay is to be placed is reduced slightly below the abutting face. Here, though one side was acceptable, Petitioner reduced too much on the other side without reason. Petitioner claims, however, that only one of the three examiners indicated excessive reduction. That determination calls for a very subjective opinion. He cannot understand how the propriety of reduction can be determined without looking into the mouth of a patient. However, Petitioner has presented no evidence in support of his opinion. The fifth challenge relates to the grade Petitioner received in the "pin amalgam pre. procedure" (Clinical G). This involves a situation where one cusp has been removed, and in order to hold a restoration, Repin must be placed in the solid portion of the tooth. The examiners determined that Petitioner's occlusal was too shallow at 1 mm, when it should have gone down 1~ to 2 mm. This, the examiners considered, would not give enough strength to hold the amalgam properly without risk of fracture. Dr. Simkins is of the opinion that Petitioner was subjected to a standardized test which was graded fairly. It would so appear and Petitioner introduced no evidence to the contrary. Ms. Carnes, a psychometrician and an expert in testing and test development who trains examiners to ensure they are consistent in their evaluations, agrees with Dr. Simkins' appraisal. The Department of Business and Professional Regulation tries to insure through its standardization efforts that the approach to grading of each examiner is consistent and that all examiners are grading with the same set of criteria. This was done in preparation for the December 1996 dental examination and a check done after the examination showed it was graded this way. Petitioner cites by way of explanation, if not excuse, that during his senior year in dental school, he was badly injured in an automobile accident and required stitches and several weeks of physical therapy for, among other injuries, a herniated disc. When he recovered sufficiently, he finished his course work and sat for the dental examination in June 1996, passing two of three sections, but not the clinical portion. Dr. Scheutz took the clinical portion of the examination again in December 1996 and again failed to earn a passing score. In his opinion, his knowledge has improved over time, but his procedural skills have diminished over the months due to his injuries. He contends he has work in dentistry he can do which will make accommodations for his physical condition, but does not believe he should have to wait another six months to take the examination again, especially since he would have to again take the entire examination, including those portions he has already passed since at that time more than 13 months from his last examination would have passed. Petitioner contends the clinical testing portion of the examination is too subjective to be valid. He wants to close this chapter in his life, but does not want to deal any more with the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a Final Order denying Petitioner's challenge and sustaining the award of a failing grade on the clinical portion of the dental examination taken by the Petitioner on December 12 through 14, 1996. DONE AND ENTERED this 27th day of June, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Dr. Eric J. Scheutz, pro se 332 Whispering Oaks Court Sarasota, Florida 34232 Karel Baarelag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906-0127 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Dade Dental Laboratories was opened in 1973-74 by a nonprofit corporation which leased dental facilities contiguous and internally connected thereto to dentists. One of the original organizers of the laboratory, Samuel Kushner, was a laboratory technician who had so worked in New York for many years. Respondent was employed on a salary (hourly) basis in 1978 to work as a dentist at the dental facility located at 1225 Washington Avenue, Miami Beach, Florida and known as Dade Dental Associates (hereinafter referred to as Dade Dental). At this time, Dade Dental Laboratories was owned by the wives of Samuel Kushner and Frank Schiller. Schiller was employed as office administrator. Dade Dental Laboratories owned the lease of the premises and equipment located therein. In 1978, the dental office spaces were leased to Frederick Stang, D.D.S., who employed Respondent and other dentists on a salary basis. Effective 1 July 1979, Respondent's wife purchased the fifty percent interest in the laboratory previously owned by Mrs. Kushner and the sub1ease of the dental offices was given to Respondent. Stang continued as an employee of Respondent until September 1979. Frank Schiller spoke Yiddish and was often used as a translator for some of the older Jewish clients who came to Dade Dental. After the sublease was given to Respondent, Schiller continued as administrator until September 1979. The ownership of the fifty percent interest in the laboratory owned by Mrs. Schiller, if not still held by Mrs. Schiller, was not shown. Inspections of the premises at 1225 Washington Avenue were conducted in August, September and October 1979 and again in January 1980. The inspection conducted by the Department of Health and Rehabilitative Services on September 24, 1979 revealed X-ray equipment that was defective by reason of not being properly shielded and having a timer operating erratically (Exhibits 4 and 5); the inspections conducted September 6 and 13 revealed old equipment, improper sterilization of instruments, a very dirty laboratory, dirty impression trays, bite blocks with teeth marks indicating prior use, rusted instruments where chrome had chipped off the underlying steel, no sterile sutures, and a cold dry-heat sterilizer. Following these inspections, Respondent ordered a new X-ray machine and new instruments. No evidence was presented that the rusty instruments found in the dental operatories were ever used on a patient. Respondent's testimony, which was not rebutted, was that he didn't like the instruments located in the operatories when he started working there and he brought his own instruments which he used. The charges of allowing unauthorized persons to perform acts constituting the practice of dentistry, malpractice, misconduct in business or personal affairs of a nature to bring the dental profession into disrepute, and failing to exercise proper care in the treatment of patients involved Joseph Cedar and Hilda Hirschman. After receiving a high estimate of the cost for needed dental work from his dentist, Joseph Cedar, at the recommendation of a friend, went to Dade Dental for a second estimate. He first saw Frank Schiller, who took Cedar to Seymour Rickles, D.D.S., one of the dentists employed at the facility. Cedar described Schiller as the "boss" who gave orders and who looked into his mouth. No evidence was presented that Schiller ever put his hands or any instrument in Cedar's mouth while Cedar was being treated by Respondent or any other dentist at Dade Dental. After examination and impression, Rickles prepared crowns and a partial denture. Although Cedar testified that Rickles performed all the work done on him, the dental record (Exhibit 14) shows 5 dentists worked on Cedar at this office. However, most of the work appears to have been done by Rickles and Stang. After the work on Cedar had been completed, he complained of pain from the partial dentures which had been prepared for him and was referred to Respondent, who first saw Cedar on June 28, 1979 when he adjusted the partial plates. Exhibit 14 indicates Respondent again saw Cedar on July 3, 19, 24, 25 and August 7 for adjustments. Cedar testified he told Respondent about a sore spot near the partial denture on the upper left side of his mouth but Respondent only told him it was not caused by the dentures. Respondent's version was that he X-rayed the lower right side of Cedars' mouth where the partial had been fitted and found an abscess which could cause the pain described by Cedar, and that Cedar never complained of soreness in the upper left area of his mouth. On August 15 or 16, 1979 Cedar went to the dental clinic at Mount Sinai Medical Center complaining of a soreness in the upper left area of his mouth. He was examined by several dentists because the affected area looked suspicious, and a biopsy was done. This showed the lesion to be squalus cell carcinoma, which was subsequently excised. The lesion removed from Cedar's mouth was well-differentiated in mid- August when he was seen at Mt. Sinai. It is unlikely that a well-differentiated lesion will develop in a week to ten days, but could develop in a period of two or more weeks. A competent dentist should recognize a well-differentiated lesion and refer the patient to an oral surgeon. Failure to do so constitutes practice below minimum accepted community standards. Respondent has referred other patients to oral surgeons when suspicious conditions were observed in patients' mouths. (Exhibit 18). Hilda Hirschman first visited Dade Dental in December 1978 and was referred to Respondent. She had several teeth extracted by Respondent, partial dentures made and two crowns installed. Mrs. Hirschman testified that Schiller escorted her into Respondent's office on her first visit and wrote down and quoted to her prices for work as he and Grebin talked. She thought Schiller was the head dentist. She also testified that one time Schiller ground down one of her teeth. When told periodontal treatment was indicated, Mrs. Hirschman told Respondent she did not want root canals done. After her teeth had been extracted and partials made, the partials were inserted by Respondent, but neither of the partials fit. The upper was adjusted to fit and a second impression was taken for the lower. Mrs. Hirschman was later examined by Dr. Leonard Sakris at the request of the Dental Board. From his study of the X-rays taken in November 1978 and August 1979 and his examination of the patient, Dr. Sakris opined that the teeth extracted by Respondent could have been saved if root canal therapy had been used and crowns installed. This examination also revealed the condition of Mrs. Hirschman's mouth to be bad, with two ill-fitting partial dentures and restoration placed over decay. The conclusion this decay existed when Respondent treated Mrs. Hirschman was reached from the X-rays. On cross- examination, Dr. Sakris acknowledged that decay was not always discernible on X- rays and could be misdiagnosed absent a visual examination and probe by the dentist. Dr. Sakris' examination did not confirm Mrs. Hirschman's testimony that Schiller had ground down her tooth. He found no evidence of grinding, except possibly on Lower Left Canine 3. This is also the tooth with decay found on Sakris' examination. The crown on Lower Right 5 placed by Respondent had a bad margin and decay when Mrs. Hirschman was examined by Sakris. Unless margin of crown makes solid contact with tooth, decay can occur. It is below acceptable minimum standards to leave open margins between crown and tooth. Respondent's testimony that he suggested Mrs. Hirschman go to a periodontist for root canal treatment and she refused is corroborated by Mrs. Hirschman's testimony that she didn't want the expense of root canals. Without periodontal treatment for Mrs. Hirschman's dental condition, extraction is the standard practice. Respondent's testimony that both he and Stang worked on Mrs. Hirschman is supported by Exhibit 13 and lends credence to his testimony that he did not prepare the crowns he installed on this patient. Further, Exhibit 13 contains the notation that Mrs. Hirschman "refuses pero" (presumably periodontal treatment) and confirms Respondent's testimony that the patient's refusal to have root canals left him no choice but extraction. The parties stipulated that the advertising which forms the basis for Counts XVI II through XXI was ordered and paid for by Stang, although it continued for some two months after Respondent took over the operation of the dental clinic before it was stopped. Respondent's testimony that he neither ordered nor paid for the advertising which appeared after July 1, 1979 was not disputed. No evidence was presented regarding the character of this advertising, other than the examples thereof shown in Exhibit 8.
