The Issue The basic issue in this case is whether the Petitioner, Maria I. Galarza, is eligible to take the dental mannequin exam. The Board proposes to deny the Petitioner's application to take the exam on the grounds that the Petitioner's dental degree from the Universidad Central del Este in the Dominican Republic is not the equivalent of four academic years of dental education. The Petitioner contends her degree is equivalent and meets the criteria for taking the dental mannequin exam.
Findings Of Fact Facts stipulated to by all parties Petitioner sought approval of the Board to take the manual skills (mannequin) examination as an avenue toward being certified for licensure as a dentist in Florida with an application dated September 17, 1991. 1/ With her application, Petitioner submitted sufficient evidence to establish that she graduated from high school in Puerto Rico; received a bachelor of arts degree from a college in Puerto Rico; graduated with a "titulo" or degree in dentistry from the Universidad Central del Este (UCE) in the Dominican Republic; has attained an age of more than 18 years; and had completed the National Dental Board Examination with passing scores within the ten years preceding her application. UCE is not a dental school accredited by the Commission on Accreditation of the American Dental Association or its successor agency or any other nationally recognized accrediting agency. UCE is a foreign dental school located in the Dominican Republic. It is a member of the Asociacion Latinoamericana de Facultades y Escuelas de Odontologia (ALAFO). Pursuant to statute and rules of the Board, Petitioner submitted her educational credentials to ECE for a determination as to whether she had completed the equivalent of five academic years of post secondary education including four years of dental education. The Board of Dentistry requires that all graduates of foreign dental schools have their degrees evaluated for equivalency to U.S. degrees by Educational Credential Evaluators, Inc. (hereafter ECE). ECE is headed by Dr. James Frey. ECE has evaluated numerous dental degrees for graduates of Universidad Central del Este. In August 1990 ECE changed its opinion of the degree. ECE believes its previous evaluations finding the degree equivalent are erroneous. The Petitioner attended the UCE dental program from September 1979 to September 30 ,1982. UCE awarded Petitioner credit for previously completed course work and did not require Petitioner to take or complete the following courses in UCE's dental curriculum: Mathematics (4 credits) Literature (9 credits) Philosophy (undetermined credits) Sociology (undetermined credits) Physics (8 credits) Biology (4 credits) UCE has a dental program consisting of three academic semesters per calendar year. Dr. Frey testified that a four year dental degree requires a minimum of 120 semester hour credits. He determined that Ms. Galarza achieved the equivalent of 101.5 semester hours of credit at Universidad Central del Este. Dr. Frey also determined that UCE granted her the equivalent of fourteen additional semester hours of credit for course work already taken at the University of Puerto Rico. The University of Florida has the only accredited dental program in the State of Florida. At the University of Florida, dental students attend courses for three academic semesters per calendar year and the dental curriculum lasts for 3.66 calendar years and a total of eleven semesters. The Board, based upon its review of the Petitioner's credentials and the report from ECE determined the Petitioner has not completed four academic years of post secondary dental education. The Petitioner disagrees with the Board's determination. Facts based on evidence submitted at hearing The dental mannequin examination is an examination given to graduates of dental schools that are not accredited by the American Dental Association. Successful completion of the dental mannequin examination is a statutory prerequisite to taking the licensure examination. The dental education program at UCE is planned as an eleven semester program and consists of approximately 63 courses, for which the university awards a total of approximately 230 credits. 2/ Eleven of the courses are described as being part of the "Curso Comina" the so-called "common courses." The eleven courses that comprise the so-called "common courses" are high school level pre-dentistry courses.3/ These pre-dentistry courses are planned as part of the first two semesters, but in actual practice are taken at random times during the program, sometimes as late as the last semester. The eleven courses that make up the so-called common courses" represent a total of approximately 39 credits 4/ as follows: Mathematics 011 (or 101) 4 Literature 011 (or 101) 5 Phylosophy [sic] 2 Sociology 2 Physics 011 (or 101) 4 Biology 4 Literature 102 4 Dom. Soc. History 2 Mathematics 012 (or 102) 4 General Chemistry 4 Physics 012 (or 102) 4 Total "common course" credits 39 The Universidad Central del Este awarded the Petitioner a total of approximately 233 credits, including the credits that were awarded for either successful completion of, or for exemption from, the so-called "common courses." When the credits for the so-called "common courses" (which as noted above are pre-dentistry courses) are subtracted from the total credits awarded, the Petitioner's transcript reflects a total of approximately 194 credits of dental education. One credit at the dental education program at UCE represents the equivalent of approximately one-half of a semester hour credit at a dental education program in the United States. Accordingly, the Petitioner's 194 credits of dental education at UCE are the equivalent of approximately 97 semester hours at a dental education program in the United States. 5/ A full four-year dental program in the United States consists of a minimum of 120 semester hours of credit, and usually consists of 128 semester hours of credit. The standard length of a semester in a United States dental education program consists of 15 or 16 teaching weeks. The standard length of a semester at the University of Florida dental program is 16 teaching weeks. The length of the typical semester at the Universidad Central del Este consists of 13 or 13.5 teaching weeks. The Petitioner completed all of her course work at UCE during a period of eight consecutive semesters. During her eighth semester the Petitioner began work on her thesis. During that same semester her transcript reflects that she was also taking at least eleven courses totaling 44 hours of credit. 6/ During her ninth semester at UCE, the Petitioner did not take any classes, but spent all of her time working on her thesis. Educational Credential Evaluators, Incorporated, is the only agency approved by the Board of Dentistry to review foreign educational credentials. No other agency has ever been denied approval by the Board. Although the Board's rules permit other organizations to be approved, no other entity has ever requested to be approved by the Board. Educational Credential Evaluators, Incorporated, provides an evaluation of credentials to determine the quantity of education obtained at a foreign school in terms of the United States educational system. At one time Educational Credential Evaluators, Incorporated, was of the opinion that the dental education program at the Universidad Central del Este was equivalent to four years of dental education in the United States. The educational credentials of one of the Petitioner's classmates who also graduated from the UCE dental program in 1982 were earlier evaluated by Educational Credential Evaluators, Incorporated, and determined to be equivalent to four years of dental education. In 1990, following receipt and review of additional information about the dental program at UCE, Educational Credential Evaluators, Incorporated, concluded that its prior opinion was incorrect. The additional information that formed the primary basis for the change of opinion was that UCE was regularly waiving the so-called "common courses" on the basis of students' prior high school work and that UCE semesters were comprised of only thirteen or thirteen and a half teaching weeks. Educational Credential Evaluators, Incorporated, is now of the opinion that the dental program at UCE is the equivalent of only 3.66 years of dental education. 7/ Upon review of the Petitioner's educational credentials from UCE, Educational Credential Evaluators, Incorporated, concluded that she had actually completed the equivalent of only three and one-quarter years of dental education. 8/ This conclusion did not allow any credit for courses that were waived by UCE based on courses taken by the Petitioner at the University of Puerto Rico. The Board of Dentistry has a Credentials Committee that evaluates all applications to take the dental licensure examination, the dental hygiene licensure examination and the dental mannequin examination. The Credentials Committee reviews the educational credentials of applicants who have graduated from foreign dental schools. In its evaluation of foreign credentials, the Board of Dentistry does not accept as part of the statutorily required dental education any credit for course work completed at an undergraduate institution. Since 1987, the Board of Dentistry has relied upon reports from Educational Credential Evaluators, Incorporated, along with its own review of dental school transcripts, licensure applications, and national board examination scores, to determine the eligibility of applicants to take the dental mannequin examination. The Board has always accepted the recommendation of Educational Credential Evaluators, Incorporated, as to the equivalency of dental education. Prior to 1990, the Board of Dentistry generally accepted a dental education from the Universidad Central del Este as meeting the requirement for dental education set forth in the statutes. In 1990, based upon a report from Educational Credential Evaluators, Incorporated, which tended to confirm some of the Board's suspicions regarding the dental program offered at UCE, the Board changed its position regarding the equivalency of a UCE dental education.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case concluding that the Petitioner has failed to prove by a preponderance of the evidence that she has received the equivalent of four academic years of dental education, concluding that the Petitioner is not eligible to take the dental mannequin examination, and dismissing the petition in this case. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 31st of March, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.
The Issue The issue in this case is whether Petitioner should receive a passing score on the December 2001 dental license examination.
Findings Of Fact In December 2001, Petitioner took the dental licensure examination and failed to pass the clinical portion of the exam. The examination is a three-day process involving two days of clinical examination. Those two days of clinical examination consist of nine procedures. Four of the nine procedures were challenged by Petitioner. The clinical portion is where the candidate is required to perform certain patient procedures. The work product of the student, or candidate, is evaluated following the performance of those procedures by three examiners. Each examiner grades the candidate independently of whatever score the other examiners may award on a particular procedure. Then the average grade for each procedure is weighted in accordance with requirements of Rule 64B5-2.013, Florida Administrative Code. This produces the overall score for the entire clinical exam. The Department uses three examiners' scores because this provides a more reliable indication of the candidate's competency and true score. Further, each examiner must be a licensed dentist for a minimum of five years and have no complaints or disciplinary actions against their license. Examiners have no contact with the candidate taking the examination and, accordingly, have no idea of who they are grading. To further ensure fairness, each examiner must attend and successfully complete a standardization session. The purpose of these sessions is to ensure that each examiner is trained to use the same internal grading criteria. In standardization, each examiner is thoroughly taught specific grading criteria with the result that examiners are instructed on how to evaluate the work of the candidates. The examiners who graded Petitioner’s examination had successfully completed the foregoing standardization session. Also, the Department’s post-exam check found these examiners’ grading to be reliable. Petitioner contested the score he received on Procedure 4, the Endodontic procedure, a root canal. The Endodontic procedure required removal of infected nerve tissue and blood vessels pulp from the tooth. Petitioner was required to access the canal and pulp tissue from the outside. Then, Petitioner was required to remove the bad nerve and cleanse the canal. Finally, Petitioner was required to seal the canal to prevent recurring bacteria. Petitioner failed to observe a fracture in the tooth. He claimed that a fracture to the root of the tooth was caused by the Department after he reviewed his examination and that no one advised him the root was fractured. Petitioner requested a score of 3.00 for this procedure. However, the Department's witness, Dr. William F. Robinson, a licensed dentist for 32 years who examined the tooth and X-ray prepared by Petitioner, testified that the fracture to the root was noticed in both the X-ray and on the tooth when he examined the same. Additionally, two of the three re-graders also noted the fracture of the root. With regard to Petitioner's preparation of the X-ray at the conclusion of the examination, Dr. Robinson opined that Petitioner caused the fracture to the root during the examination and not the Department, as alleged by Petitioner. Dr. Robinson further opined that even without a fracture to the root of the tooth, Petitioner failed the procedure and the failing grade he received was fair. Dr. Robinson would not recommend that Petitioner receive a passing score of 3.00 on the procedure. The examiners' comments and grades and the testimony of Dr. William F. Robinson establish that Petitioner failed to properly perform this procedure. The grade Petitioner received was fair. Petitioner challenged the grade he received on Procedure 5, the Class IV Composite Restoration of the front tooth, but did not offer any testimony at the hearing as to why the score was not correct for the procedure. Petitioner requested that the score of 1.00 given by one of the examiners be thrown out, thus giving him a passing grade on this procedure. Procedure 5 of the dental licensure examination is a procedure that involves the candidate’s ability to replace the edge of the front tooth with a composite resin material, which is a tooth-colored filling. As established by the examiners’ comments and grades and the testimony of Dr. William F. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Specifically, the examiners found that the tooth was abraded and the re-grader noted, as did the examiners, the excessive “flash” on the tooth. Dr. Robinson also noted both deficiencies in the procedure. Petitioner contested the score he received on Procedure 6, the Class II Composite Restoration procedure in his original petition, but offered no testimony at the hearing concerning this procedure. Dr. Robinson reviewed the examiners' grades and the tooth prepared by Petitioner and opined that Petitioner’s grade of 2.66 for this procedure is fair. Based on the examiners’ comments and grades and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Petitioner contested the score he received on Procedure 7, the preparation for a 3-unit Fixed Partial Denture, claiming that on the re-grade one of the examiners reviewed the wrong procedure. The Preparation for a 3-unit Fixed Partial Denture procedure of the dental licensure examination is a procedure that involves the candidate’s ability to provide preparations of two (2) teeth in order to replace a missing tooth with a fixed bridge. Dr. Robinson established that Petitioner’s work on this procedure resulted in one tooth, No. 29, being grossly over reduced and tooth No. 31 was insufficiently reduced. The result of such work is that it is impossible to place a bridge on such an improper preparation. As established by testimony of Dr. Robinson, Petitioner's problem with this procedure resulted from Petitioner’s undercut. This undercut indicated that Petitioner’s preparations were not properly aligned to accept a bridge. Based on the examiners’ comments and grades, and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. The Department's “re-grade” process was utilized in this case. Used to give all candidates who timely request a hearing another chance at passing, the re-grade process allows the Department to go back and determine whether any grades rendered were inconsistent. The Department selects the top three examiners who had the highest reliability from that examination to participate in the re-grade process. The Department maintains post-standardization statistics of the examiners’ performance. In this case, those statistics indicated that Petitioner’s examiners graded reliably. In addition, the Department calculates post- examination statistics for the examiners, which are as follows for the examiners who graded Petitioner’s challenged procedures: Examiner Accuracy Index & Rating #206 95.8-Excellent #375 98.8-Excellent #380 92.1-Good #334 97.8-Excellent #298 95.9-Excellent #375 98.8-Excellent-was an original and a re-grader. All of Petitioner's examiners exhibited a reliability significantly above the minimum acceptable accuracy index of 85.0.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the December 2001 dental licensure examination. DONE AND ENTERED this 9th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2002. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Jason S. Baker, D.M.D. Westchester Medical Center 95 Grasslands Road, Box 572 Valhalla, New York 10595 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the Agency for Health Care Administration (Petitioner or AHCA) is entitled to recover: certain Medicaid payments made to Respondent, Ason Maxillofacial Surgery, P.A., pursuant to section 409.913(11), Florida Statutes (2016); an amount of sanctions imposed pursuant to section 409.913(15); and the amount of any investigative, legal, and expert witness costs that AHCA incurred pursuant to section 409.913(23).
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following factual findings are made: Petitioner is the state agency authorized to administer and make payments for medical and related services under Title XIX of the Social Security Act, the Medicaid Program, relevant to this proceeding. At all times pertinent to this case, Respondent, an oral and maxillofacial surgery practice operated by Dr. Ason, was enrolled in the Florida Medicaid Program as a Medicaid dental provider. Respondent’s Medicaid provider number was 007294600. Petitioner engaged the services of Dr. Hardeman as its expert and peer reviewer. Dr. Hardeman is a Florida-licensed medical doctor and dentist, who is board-certified in oral and maxillofacial surgery. He practices in the same specialty or subspecialty as Respondent’s provider, Dr. Ason. Respondent stipulated and agreed that Dr. Hardeman meets the requirements and qualifications of a “peer” as defined in section 409.9131, Florida Statutes. Dr. Hardeman’s testimony is credible. Petitioner offered the testimony of AHCA Administrator Olmstead to describe the process by which the audit was conducted. Administrator Olmstead has years of experience in this process, and her testimony is credible. Nurse Kinser holds a Bachelor of Science degree in nursing and is a Florida-licensed registered nurse. She is employed as a registered nurse-consultant for Petitioner. Nurse Kinser is a certified professional coder, having received her credentials from the American Academy of Professional Coders. Her testimony is credible. Respondent offered the testimony of Dr. Fonseca, of North Carolina, as an expert in the field of oral and maxillofacial surgery to opine on the medical necessity of the services provided by Respondent. Respondent offered the testimony of Mr. Dicksen as a coding expert. Mr. Dicksen holds a degree in health information management and is licensed as a registered health information administrator. Mr. Dicksen is not licensed as a medical doctor, oral surgeon or dentist in Florida, and is not trained to read a panorex, X-ray or CT scan in his scope of work. Mr. Dicksen’s lack of medical or dental training in reading medical/dental records seriously detracted from his testimony regarding the proper coding of services. Respondent’s representative, Dr. Ason is a well-educated, board-certified oral and maxillofacial surgeon. His lack of understanding in the various aspects of his coding for services rendered is a disservice to his practice, as it is apparent from his testimony that he cares for his patients. Dr. Ason does not watch the clock during a procedure, but instead he “takes care of [his] patients.” Title XIX of the Social Security Act establishes Medicaid as a collaborative federal-state program in which the state receives federal funding for services provided to Medicaid- eligible recipients in accordance with federal law. The Florida Statutes and rules relevant to this proceeding essentially incorporate federal Medicaid standards. In order to receive payment, a provider must enter a Medicaid provider agreement, which is a voluntary contract between AHCA and the provider. Respondent, as an enrolled Medicaid provider must comply fully with all state and federal laws pertaining to the Medicaid Program, including Medicaid Provider Handbooks incorporated by reference into rules which were in effect during the audit period. AHCA’s Bureau of Medicaid Program Integrity (MPI) is required to identify and recover overpayments to ensure that Medicaid funds are appropriately utilized and to reduce fraud and abuse to the Medicaid Program. Pursuant to section 409.913, MPI conducted an audit of Respondent’s paid Medicaid claims for services rendered to Medicaid recipients between January 1, 2013, and June 30, 2014. The Florida Medicaid Dental Program (Dental Program) covers all medically necessary and dental services to eligible children. The Dental Program is limited in the services and treatments available to persons over 21 years of age. These limited services include relief of pain, suffering, and trauma, and preparation for dentures. The Dental Program does not cover preventive dental care for adults. Administrator Olmstead provided the framework by which this audit was opened, investigated, reviewed and reported. The investigation followed all the required procedures and the audit was properly conducted. On July 6, 2016, AHCA issued a FAR2/ alleging that Medicaid overpaid Respondent $654,485.81 for services that were not covered, in whole or in part, by Medicaid. Additionally, pursuant to section 409.913(23), AHCA sought to assess a sanction of $118,000.00 for the alleged violations. In the FAR, the following “Findings” were set forth (and will be discussed in this Order below): The 2008 and 2012 Florida Medicaid Provider General Handbooks, page 5-4, state that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim for goods and services that are medically necessary. A review of your medical records by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. revealed that the medical necessity for some claims submitted was not supported by the documentation. Payments made to you for these services are considered an overpayment. (NMN) The 2008 and 2012 Florida Medicaid Provider General Handbooks, page 5-4, require that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim that is true and accurate and is for goods and services that have actually been furnished to the recipient. A review of your medical records revealed that some services rendered were erroneously coded on the submitted claim. The appropriate dental code was applied. These dental services are not reimbursable by Medicaid. Payments made to you for these services are considered an overpayment. (ERROR IN CODING) The 2008 Florida Medicaid Provider General Handbook, pages 2-57 and 5-8 and the 2012 Florida Medicaid Provider General Handbook, pages 2-60 and 5-9, define incomplete records as records that lack documentation that all requirements or conditions for service provision have been met. A review of your medical records revealed that the documentation for some services for which you billed and received payment was incomplete or was not provided. Payments made to you for these services are considered an overpayment. (INSUFFICIENT/NO DOC) The 2011 Dental Services Coverage and Limitations Handbook, page 2-40, states use of Evaluation and Management Services must follow guidelines set by the Physicians’ Current Procedural Terminology (CPT) for E&M code levels. A review of your medical records by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. revealed that the level of service for some claims submitted was not supported by the documentation. The appropriate code was applied and the payment adjusted. Payments made to you for these services, in excess of the adjusted amount, are considered an overpayment. (LOS) The 2011 Dental Services Coverage and Limitations Handbook, pages 2-38 and 2-39, defines a consultation as a type of service provided by an accredited dental specialist whose opinion or advice regarding the evaluation or management of the specific problem is request by another dentist. The following components must be recorded in the recipient’s dental records: a request and need for consultation from the attending or requesting provider; the consultant’s opinion and any services ordered or performed; and a written report of the findings and recommendations provided to the attending or requesting provider. If the referring provider will not participate in the on-going care of the recipient for this problem, this is not a consultation, but is instead a referral, and should be billed as an examination or appropriate evaluation and management code. The documentation you provided did not meet the criteria for a consultation service. The appropriate code was applied and the payment adjusted. Payments made to you for these services, in excess of the adjusted amount, are considered an overpayment. (NOT A CONSULT) The 2008 and 2012 Florida Medicaid Provider General Handbooks, page 1-3, define global reimbursement as a method of payment where the provider is paid one fee for a service that consists of multiple procedure codes that are rendered on the same date of service or over a span of time rather than paid individually for each procedure code. A review of your medical records revealed that some services, for which you billed and received payment, were covered under a global procedure code. Payments made to you for these services are considered an overpayment. (GLOBAL) The 2011 Dental Services Coverage and Limitations Handbook, page 2-1, states that only those services designated in the applicable provider handbook and fee schedule are reimbursed by Medicaid. You billed and received payment for services that are not covered by Medicaid after the correct code was assigned. Payments made to you for these services are considered overpayments. (NOT A COVERED SERVICE) (emphasis added). AHCA used a statistical analysis to review claims. AHCA obtained a list of claims for 35 randomly selected recipients from the cluster sample program. Petitioner then requested the medical records for those 35 recipients from Respondent. Respondent provided the medical records, and throughout the process has provided additional records when requested. Further, Respondent has not contested the process of the statistical sampling or the statistical methods utilized to establish the validity of the overpayment calculation. Following the issuance of the FAR, and after receiving and reviewing additional documentation, AHCA amended Respondent’s overpayment downward to $640,493.77 and the sanction amount to $106,000.00. Teeth are numbered 1 through 16 from right to left on the upper jaw, and 17 through 32 from left to right on the lower jaw. The wisdom teeth are numbered 1, 16, 17, and 32, and are also called the 3rd molars. Additionally, the mouth is divided into four quadrants: upper jaw left and right, and lower jaw left and right. Not Medically Necessary (NMN) Recipient 7 had seven claims labeled as NMN. Of claims 3, 4, 5, 6, 9, and 12,3/ Dr. Hardeman agreed that the bone grafts were necessary and medically appropriate; however, other causes for disallowance of the claims shall be addressed below. Recipient 23 had two claims labeled as NMN regarding lower jaw bone grafts on teeth 17 and 32. Recipient 23 was a 22-year-old male with impacted wisdom teeth. Dr. Ason extracted the wisdom teeth and then completed bone grafts on the areas. Dr. Hardeman opined that bone grafts were not indicated in this young patient as he would heal without the grafts.4/ Recipient 24 had one claim labeled as NMN regarding a lower jaw bone graft on tooth 17. Tooth 17 is the lower left wisdom tooth. Dr. Ason extracted the wisdom tooth and then completed a bone graft on the area. Dr. Hardeman opined that the graft was not medically necessary because following the extraction, the site should have granulated and healed naturally. Error in Coding CPT code “21210 Graft, bone; nasal, maxillary or malar areas (includes obtaining graft)” is explained with a coding tip as follows: The physician reconstructs the nasal, maxillary, or malar area bones with a bone graft to correct defects due to injury, infection, or tumor resection. The procedure may also be performed to augment atrophic or thin bone, or to aid in healing fractures. The physician harvests bone from the patient’s hip, rib, or skull. Incisions are made overlying the harvest site. Tissues are dissected away to the desired bone. The physician removes the bone as needed for grafting to the defect area. After the bone is harvested, the donor site is repaired in layers. Access incisions are made to the recipient site and the area of bony defect is exposed. The graft is placed to repair the defect and may be held in place with wires, plates, or screws. The access sites are irrigated and sutured closed. Harvesting of the bone graft is not reported separately. If bone graft is not harvested from the patient, modifier 52 Reduced services, should be appended. For harvest of graft by another physician, append modifier 62 Two surgeons, to the applicable bone graft code. CPT code “21215 Graft, bone; mandible (includes obtaining graft)” is explained with a coding tip as follows: The physician reconstructs the mandible with a bone graft to correct defects due to injury, infection, or tumor resection. The procedure may also be performed to augment atrophic or thin mandibles, or to aid in healing fractures. The physician harvests bone from another site on the patient’s body, most commonly the rib, hip, or skull, and repairs the surgically created wound. The physician makes facial skin incisions to expose the mandible and place the graft from the donor site. Occasionally, intraoral incisions are used. The graft is held firmly positioned with wires, plates or screws. The incisions are sutured with a layered closure. Harvesting of the bone graft is not reported separately. If bone graft is not harvested from the patient, modifier 52 Reduced services, should be appended. For harvest of graft by another physician, append modifier 62 Two surgeons, to the applicable bone graft code. For interdental wiring, see code 21497. For application, including removal of an interdental fixation device for conditions other than fracture or dislocation, see code 21110. Because this procedure may be performed for cosmetic purposes, verify coverage with insurance carrier. Supplies used when providing this procedure may be reported with appropriate HCPCS Level II code. Check with specific payer to determine coverage. CPT code 41823 is for the “Excision of osseous tuberosities, dentoalveolar structures.” CDT code D7140 is explained as follows: [E]xtraction, erupted tooth or exposed root (elevation and/or forceps removal) Includes routine removal of tooth structure, minor smoothing of socket bone, and closure, as necessary. Surgical Extractions (Includes Local Anesthesia, Suturing, If Needed, and Routine Postoperative Care) CDT code D7210 is explained as follows: [S]urgical removal of erupted tooth requiring removal of bone and/or sectioning of tooth, and including elevation of mucoperiosteal flap if indicated Includes related cutting of gingiva and bone, removal of tooth structure, minor smoothing of socket bone and closure. CDT code D7220 is explained as follows: [R]emoval of impacted tooth – soft tissue Occlusal surface of tooth covered by soft tissue; requires mucoperiosteal flap elevation. CDT code D7230 is explained as follows: [R]emoval of impacted tooth – partially bony Part of crown covered by bone; requires mucoperiosteal flap elevation and bone removal. CDT code D7240 is explained as follows: [R]emoval of impacted tooth –completely bony Most or all of crown covered by bone; requires mucoperiosteal flap elevation and bone removal. CDT code D7250 is explained as follows: Surgical removal of residual roots (cutting procedure), includes cutting of soft tissue and bone, removal of tooth structure and closure. CDT code D7310 is explained as follows: lveoloplasty in conjunction with extractions – four or more teeth or tooth spaces, per quadrant The alveoloplasty is distinct (separate procedure) from extractions and/or surgical extractions. Usually in preparation for a prosthesis or other treatments such as radiation therapy and transplant surgery. CDT code D7953 is explained as follows: one replacement graft for ridge preservation – per site Graft is placed in an extraction or implant removal site at the time of the extraction or removal to preserve ridge integrity (e.g., clinically indicated in preparation for implant reconstruction or where alveolar contour is critical to planned prosthetic reconstruction). Does not include obtaining graft material. Membrane, if used should be reported separately. Recipient 2’s claim 3, coded as 21210, related to a face bone graft for tooth 15. Following the extraction of tooth 15, Dr. Ason used a bone graft to close the opening in the sinus. Dr. Hardeman opined there was “a hole in the alveolus, the socket.” Dr. Hardeman further opined that “This fee (using code 21210) would be applicable for augmentation of an atrophic ridge, but not for a small graft used in conjunction with the treatment of a sinus exposure.” Dr. Ason testified that when he extracted the tooth “a part of the floor of the sinus . . . came with the root, leaving a defect.” He then saw the Schneiderian Membrane,5/ placed the bone graft, and closed the site. There was no break in the membrane, and a small graft closure was more appropriate. For Recipient 2’s claim at issue, the appropriate code should be D7953. Recipient 4’s claims 3 and 4, both coded as 21215, related to the lower jaw bone grafts for teeth 17 and 18. Dr. Hardeman reviewed the operative note that provided “a large periodontal defect in the area adjacent to Tooth No. 19. It was therefore grafted.” Dr. Hardeman did not find tooth 19 on the panorex, and the reasoning for a graft was “invalid.” Dr. Hardeman opined the grafting was a socket preservation. For Recipient 4’s claims at issue, the appropriate code is D7953. Dr. Ason qualified his operative note, which discussed the “area of teeth #’s 17, 18 where a sulcular incision was made. . . . There was a large defect of bone distal to tooth #19,” with a comment that when he referred to “Area 19” that does not mean that tooth 19 was there, just that he was referring to the area. Dr. Ason’s attempt to re-write the operative note to reflect his current testimony is not persuasive. Recipient 6’s claims 3, 4, 6, and 7, coded as 21215, related to lower jaw bone grafts for teeth 21, 22, 27, and 28; and claim 5, coded as 21210, related to a face bone graft for tooth 12. Recipient 6 had multiple teeth extracted from the lower jaw, and one removed from the upper jaw. Dr. Ason grafted both the bottom and the top where the extractions were completed. Dr. Hardeman opined that these “were merely socket preservation grafts,” and the appropriate code for all the claims should be D7953. Recipient 7’s claims 3, 4, 5, and 6, coded as 21210, related to face bone grafts for teeth 1, 2, 15 and 16. Recipient 7 had teeth 1, 2, 15, and 16 surgically extracted,6/ and Dr. Ason used allograft bone to preserve the alveolar ridge in all four locations. Dr. Hardeman reviewed the panorex, and teeth 1 and 16 were not present on it. Dr. Hardeman could not find a “clear-cut” clinical indication for the grafting done on Recipient 7. For Recipient 7’s claims at issue, the appropriate code should be D7953. Recipient 8’s claims 3 and 4, both coded as 21215, related to the lower jaw bone grafts for teeth 17 and 32. Recipient 8 had multiple wisdom teeth and a supernumerary wisdom tooth removed. Dr. Ason testified that there were “wide-rooted molars with chronic infection” and because of the infection, “it spreads throughout the bone and you can’t predictably take out a root and leave a socket.” Dr. Hardeman found nothing remarkable about these extractions, and opined that these were socket preservation grafts. Dr. Hardeman agreed that it was reasonable to put a graft distal to teeth 18 and 31, but did not alter his opinion that these were socket preservations. For Recipient 8’s claims at issue, the appropriate code should be D7953. Recipient 13’s claim 3, coded as 21215, related to the lower jaw bone graft for tooth 32. Recipient 13 had multiple decayed teeth which were extracted; however, only claim 3 is at issue here. Dr. Hardeman opined the bone graft was not warranted because the distal bone was at the appropriate height. For this claim, the appropriate code should be D7953. Recipient 14’s claim 2, coded as 21210, related to the face bone graft for tooth 1. Recipient 14 had one wisdom tooth extracted. Dr. Hardeman agreed there was a “good defect on the back side of” the tooth and agreed that a graft “could be medically appropriate.” Dr. Hardeman further stated that he would have “tried to do something for that,” however this involved socket preservation grafting, not the higher medical grafting code. The appropriate code should be D7953. Recipient 17’s claims 5 through 8, coded as D41823, related to excision of gum lesions for teeth 2, 3, 4, and 5. These four teeth are in the upper right quadrant; however, Dr. Ason billed for alveoloplasties in four quadrants. AHCA allowed claims 1 through 4, but denied claims 5 through 8 because that would have been double-billing for the same procedure, which is not allowed. Recipient 21’s claim 6 was coded as 21210 for a face bone graft for tooth 16, and claim 8 was coded as 21215 for a lower jaw bone graft for tooth 32. Recipient 21 had four wisdom teeth extracted, and a repair of a sinus exposure on tooth 16. Initially, there was no documentation for a peer review of the procedures billed. After receiving the documentation, Dr. Hardeman opined that these “were socket preservation grafts.” The appropriate code should be D7953. Recipient 23’s claims 3 and 4 were coded as 21215 for lower jaw bone grafts to teeth 17 and 32, and claims 7 and 8 were coded as D7230 for impacted teeth removed for teeth 1 and 16. Recipient 23 had four wisdom teeth removed. Dr. Hardeman opined that bone grafts were not indicated to preserve the integrity of the bone adjacent to the second molars in this young patient. The appropriate codes for claims 3 and 4 are D7953, and the appropriate codes for claims 7 and 8 are D7220 and D7210, respectively. Recipient 25’s claims 4 and 5 were coded as 21215 for a lower jaw bone graft for teeth 19 and 30, and claims 6 and 7 were coded as 21210 for a face bone graft for teeth 1 and 16. Recipient 25 had five teeth surgically removed (1, 16, 17, 19 and 30), and bone grafts placed at sites 1, 16, 19 and 30. Dr. Hardeman opined that some bone grafting may have been medically necessary, but that he would have coded these claims as D7953. The appropriate code for all these claims is D7953. Recipient 26’s claims 3 and 4 were coded as 21215 for a lower jaw bone graft for teeth 22 and 27, and claims 5, 6, 7, and 8 were coded as 21210 for a face bone graft for teeth 2, 3, 14, and 15. Recipient 26, a 30-year-old male had all the teeth in the maxilla removed and all the teeth present in the mandible removed. Bone grafts were placed at sites 2, 3, 14, 15, 22, and 27. Dr. Ason testified that there were a few sinus exposures (of the upper jaw) in “common locations” and he used bone graft to those areas. Dr. Ason also testified that for teeth 22 and 27, these teeth were infected, and when he extracted them, he placed bone graft at those sites. Dr. Ason did not testify that he saw infection in the vacated sites. Dr. Hardeman opined that the procedures may have been medically necessary, but were not properly coded. The appropriate code for all of these claims is D7953. Recipient 28’s claim 7 was coded as D7240 for removal of an impacted tooth 16. Dr. Hardeman reviewed the panoramic X-ray and determined that this tooth was just a partially impacted tooth, as opposed to a completely bone-impacted tooth. The appropriate code for this claim is D7230. Recipient 29’s claim 8 was coded 20680 for the removal of support for tooth 3. Dr. Hardeman candidly admitted that he made an error in determining that Dr. Ason had simply put a screwdriver on hardware in Recipient 29’s mouth to remove screws and plates. Upon an additional review of the operative report, Dr. Hardeman opined that Dr. Ason did make an incision to remove the screws and plates.7/ Recipient 31’s claims 3 and 4 were coded as 21215 for a lower jaw bone graft for teeth 22 and 27, and claims 5, 6, 7, and 8 were coded as 21210 for a face bone graft for teeth 5, 6, 11, and 12. There was no direct testimony on the bone grafts performed on this Recipient. The documentation (Exhibit 18-31: Bates-stamped pages 1031 through 1062) reflected Dr. Hardeman wrote “socket graft” at each claim. However, this is insufficient to support a finding of fact. Insufficient or No Documentation Recipient 3’s claims 2, 3 and 4 included a panoramic image, a primary closure of a sinus perforation at tooth 1, and a primary closure of a sinus perforation at tooth 16, respectively. Initially claim 2 was denied because of a lack of documentation, however, additional documentation was received and claim 2 was allowed. As to claims 3 and 4, Dr. Hardeman opined there was insufficient documentation to support the claims as he could find “no sinus exposure was noted” in the “op [operation] note.” Dr. Ason’s testified that he had “to get a primary closure for this patient on both sides,” and his operative note provides: The roots were in the radiograph close to or into the sinus. As a precaution, a primary sinus closure was performed on both sites #1 and #16 by using chromic gut 3-0 to get a watertight seal. Dr. Ason’s operative note did not document that there was sinus exposure during the operation. There is insufficient documentation to support these two claims. The claims should not be allowed. Recipient 5’s claim 3 involved insufficient documentation to support a “Repair Tooth Socket” for an unknown tooth. Dr. Hardeman agreed that an alveoloplasty was appropriate in this case; however, there was no documentation for the site at which it was performed. Dr. Ason recited four sentences from his operative note; however, he did not provide a tooth number for the procedure. There is insufficient documentation to support this claim, and the claim should not be allowed. Recipient 7’s claim 2 involved a missing panoramic image, claims 7 and 8 involved no documentation for the “Repair Tooth Socket” for unknown teeth, and claims 9 and 12 involved the removal of impacted teeth 1 and 16. During the hearing, Petitioner’s counsel affirmed that “claim 7, page 2” was paid,8/ and claims 2, 9, and 129/ were paid. No testimony was received regarding claims 7 and 8. The claims (7 and 8) are allowed. Recipient 10’s claim 4 involved the lack of documentation for the “Excision Of Gum Flap” for tooth 32. Dr. Hardeman opined there was no documentation of this procedure. The claim should be disallowed. Recipient 13’s claim 9 involved insufficient documentation to support a “Repair Tooth Socket” for an unknown tooth. The documentation (Exhibit 18-13: Bates-stamped page 600) reflected Dr. Hardeman wrote “What socket was repaired? I would allow if site was #30, that is what is in the op note. But the cover sheet does not indicate tooth#.” Dr. Hardeman adopted his written notations as his testimony. This claim should not be allowed. Recipient 22’s claim 1 involved the lack of documentation to support an office consultation claim. Dr. Hardeman did not find any documentation to support an office consultation visit. The claim should be disallowed. Recipient 29’s claim 2 involved the lack of documentation to support an inpatient consultation claim, and claim 6 involved the lack documentation of a “CT” scan of the maxillofacial region without dye. Dr. Hardeman did not find any documentation to support an in-patient consultation on the date specified, nor could he find a CT scan for this recipient in any of the records. These claims should be disallowed. Recipient 34’s claim 1 lacks documentation of a “CT” scan of the maxillofacial region without dye. Dr. Hardeman did not see a CT scan for this recipient in any of the records. This claim should be disallowed. Level of Service and Not a Consult As provided in paragraph 15.5. above, the description for an office consultation is clear. The Dental Handbook details the components of a consultation. The Dental Handbook provides guidance between a “Consultation Versus Referral” as: If a provider sends a recipient to another provider for specialized care that is not in the referring provider’s domain, and the referring provider will not participate in the on-going care of the recipient for this problem, this is not a consultation. This is a referral and should be billed as an examination or appropriate evaluation and management code. The distinguishing feature between a consultation and an established or new patient visit will depend on whether the referring provider is going to continue to care for the patient for that particular problem. If this condition can be met, then the referral should be billed as a consultation. If this condition cannot be met, then the referral should be billed as a new or established patient. Respondent billed an office consultation for the vast majority of the 35 recipients.10/ Respondent consistently billed CPT codes 99424, 99243 or 99244. AHCA adjusted the codes downward, uses CPT codes 99202, 99203, or 99204 as warranted, and AHCA seeks to recover the difference as overpayment. Respondent did not provide a written report of the findings and recommendations to the attending or requesting provider, but instead provided treatment to each of the 35 recipients in this sample. For Recipient 22, there was no documentation to support an office visit. For Recipient 29, the consultation was covered within a global surgery code, and will be discussed below. Respondent’s surgeon, Dr. Ason, mistakenly thought that he was providing a consult because the “patients were receiving care for their oral health by a general dentist. . . . So they [general dentists] sent the patient to me to consult on the area and confirm that the extraction or whatever procedure was needed, and after I was done with the procedure, I would then hand the patient right back to the dentist.” Dr. Ason’s explanation does not justify coding as a consult. Global Codes 21462, 21453, and 13132 involve the surgical procedures in the treatment of a fractured jaw with the insertion of hardware or an oral splint. Code 20680 involves the removal of support, i.e., the hardware that was used in the surgical procedure to treat a fractured jaw. The Florida Medicaid Provider General Handbook provides the following regarding global reimbursements: Global reimbursement is a method of payment where the provider is paid one fee for a service that consists of multiple procedure codes that are rendered on the same date of service or over a span of time rather than paid individually for each procedure code. If a provider bills for several individual procedure codes that are covered under a global procedure code, which is referred to as “unbundling,” Medicaid Program Integrity will audit the provider’s billing. The Florida Medicaid Dental Services Coverage and Limitations Handbook provides the following description regarding surgery services: Surgical services are manual and operative procedures for correction of deformities and defects repair of injuries, and diagnosis and cure of certain diseases. The following services are included in the payment amount for a global surgery: The preoperative visit on day one (the day of surgery); Intraoperative Services – Intraoperative services area usual and necessary part of a surgical procedure; examples are local anesthesia and topical anesthesia; Complications Following Surgery – All additional medical or surgical services required of the surgeon during the postoperative period of the surgery, because of complications that do not require additional trips to the operating room; Post Surgical Pain Management – By the surgeon; Miscellaneous Services and Supplies – Items such as dressing changes; local incisional care; removal of operative pack; removal of cutaneous sutures and staples, lines, wires, tubes, drains, splints; routing peripheral intravenous lines, nasogastric tubes; and changes and removal of tracheostomy tubes; and Postoperative Visits – Follow-up visits within the postoperative period of the surgery that are related to recovery from the surgery. Note: See the Florida Medicaid Provider Reimbursement Schedule for the number of follow-up days that are included in the surgical fee. The reimbursement schedule is available on the Medicaid fiscal agent’s Web site at: www.mymedicaid-florida.com. Select Public Information for Providers, then Provider support, then Fee Schedules. The following services are not included in the payment amount for a global surgery: Diagnostic tests and procedures, including diagnostic radiological procedures; or Treatment for postoperative complications, which requires a return trip to the operating room (OR). An OR for this purpose is defined as a place of service specifically equipped and staffed for the sole purpose of performing surgical procedures. It does not include a patient’s room, a minor treatment room, a post-anesthesia care unit, or an intensive care unit (unless the patient’s condition was so critical there would be insufficient time for transportation to an OR. The Physician Surgical Fee Schedule in the Florida Medicaid Provider Reimbursement Schedule provides the global treatment period (also known as follow-up days, FUD) for codes 21453, 21454, 21461, and 21462, as 90 days. Recipient 29 had a fractured jaw. On March 18, 2014, Dr. Ason performed a “closed reduction of bilateral condylar fracture of the mandible,” and an “open reduction and internal fixation of symphysis fracture of the mandible” on Recipient 29. On March 26, 2014, this recipient presented to Respondent’s practice for an office follow-up visit. On May 15, 2014, another surgical procedure was performed on Recipient 29 to remove the hardware that had been inserted into Recipient 29’s mouth during the March surgery. The March 26 office follow-up visit was eight days after the surgery, and within the 90 FUD. Claim 7 was coded as an office consultation on March 26, 2014. Claim 7 should not be allowed as the office visit occurred eight days after the surgery and was included with the global billing code. Recipient 29’s claims 8 through 13 involved the removal of support implants from teeth 3, 8, 14, 19, 24, and 30, dated May 15, 2014. Claims 9 through 13 were appropriately denied as occurring within the 90 FUD period, and were excluded because they were covered under the global billing code. Nurse Kinser adjusted claim 8 downward, but admitted that claim 8 should have been denied as it occurred within the 90 FUD period. Nurse Kinser testified that when an error is made to the provider’s benefit, the benefit stays. However, if an error was made that was not to the provider’s benefit, it would be appropriately adjusted. Not a Covered Service The Florida Medicaid Dental services coverage and limitations handbook provides the following overview introduction of dental services: This chapter defines the services covered by the dental services programs, the services that are limited and excluded, services that must be prior authorized, and the services that are specialty specific. Those claims that were not initially coded appropriately fall under “Not a Covered Service” finding. Now that the correct codes have been assigned, the claims are not allowed per Medicaid guidelines. Other Findings Administrative sanctions shall be imposed for failure to comply with the provision of Medicaid law. For the first offense, Florida Administrative Code Rule 59G-9.070(7)(e) authorizes AHCA to impose a penalty in the amount of $1,000.00 per violation. AHCA is seeking to impose a fine of $106,000.00 for 106 separate offenses. The sanction should be imposed for the claims that have been sustained; however, the actual sanction amount is unknown at this time due to the adjustments that must be made based on the findings of fact above. Section 409.913(23) provides that AHCA is entitled to recover all investigative, legal, and expert witness costs if the agency ultimately prevails. At this time, the total costs are unknown. Dr. Fonesca is not licensed to practice either medicine or dentistry in Florida. Dr. Fonesca testified he has an “expert witness certificate as it relates to” Florida. However, this matter is not a medical negligence litigation action, or a criminal child abuse or neglect case. This case revolves around whether Respondent coded certain services appropriately for Medicaid reimbursement. Dr. Fonseca is not a qualified Florida peer, and his testimony, while informative, is not competent in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Respondent was overpaid, and is liable for reimbursement to AHCA for the claims detailed above (AHCA shall rework the claims detailed above to determine the overpayment); finding that an administrative fine should be imposed based on each violation; and finding that Petitioner is entitled to recover all investigative, legal, and expert witness costs. Jurisdiction is retained to determine the amount of appropriate costs if the parties are unable to agree. Within 30 days after entry of the final order, either party may file a request for a hearing on the amount. Failure to request a hearing within 30 days after entry of the final order shall be deemed to indicate that the issue of costs has been resolved. DONE AND ENTERED this 23rd day of March, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 23rd day of March, 2017.
Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
Findings Of Fact At all times relevant, Respondent, John W. Delk, held a license to practice dentistry, number DN 0005106, issued by the State of Florida, Department of Professional Regulation's Board of Dentistry. James Whisman was a patient at the Delk Dental Center from July 14, 1981 until May 22, 1984. Dr. John W. Delk was the dentist of record for James Whisman. On July 14, 1981, Dr. John W. Delk prepared teeth #6, 7, and 8 for crown and bridgework which included the placement of a post in tooth #8. On July 29, 1981, James Whisman returned to the Delk Dental Center to have the crowns on #6, 7, and 8 seated. On July 29, 1981, Don Berman seated permanent crowns on teeth #6, 7, and 8 for James Whisman using a permanent cement. Don Berman was a technician (dental assistant) for the Delk Dental Center and was not a licensed dentist or dental hygienist. He did not have an expanded duties certificate. On August 11, 1981, Respondent diagnosed a need, and had Berman prepare a treatment plan, for future dental work for James Whisman. During the establishment of Mr. Whisman's August 11, 1981 treatment plan, there was no documentation or oral advisement that an abnormality, such as a retained root tip or abscess, existed at tooth #10. Later, the bridge work on teeth #6, 7, 8 became loose, and Whisman called for an appointment with the Delk Dental Center. On September 21, 1981, the crowns on teeth #6, 7, and 8 were re-cemented with a permanent cement, zinc phosphate, by technician Don Berman. Dr. John W. Delk did not supervise Don Berman when he used the permanent cement to seat the crowns on teeth #6, 7, and 8 for a second time. From February 8, 1982 through February 25, 1982, Dr. James Costello provided dental services to James Whisman, specifically preparing teeth #9-15 and teeth #1-5 for crowns and bridgework and seating the crowns and bridgework. Dr. Costello did not advise James Whisman that an abnormality, specifically a retained root tip or abscess, was present at tooth #10. The patient chart for James Whisman failed to document that tooth #10 had a retained root tip and abscess present. The failure to chart a retained root tip and abscess at tooth #10 is critical to diagnosis and treatment. Fourteen months later, James Whisman returned to the Delk Dental Center for continued dental work. Respondent on March 6, 1984, diagnosed the need, and had Berman prepare a treatment plan, for fixed bridge-splints on teeth #19-22 and #27- 30. On March 7, 1984, Dr. John W. Delk prepared teeth #19- 22 and #27-30 for crown and bridgework. On March 9, 1984, Don Berman cemented temporary crowns on teeth #27-30 without supervision from Dr. John W. Delk. On March 12, 1984, Don Berman re-cemented temporary crowns on teeth #27-30, using a permanent cement called Durelon, without supervision from Dr. John W. Delk. On April 19, 1984, Don Berman used a permanent cement, Durelon, to seat the crown and bridgework on teeth #19-22 and #27-30 without supervision from Dr. John W. Delk. On May 15, 1984, James Whisman returned to the Delk Dental Center complaining of loose teeth in the area of #7 and 8. On May 22, 1984, James Whisman returned to the Delk Dental Center continuing in his complaint that teeth #7 and 8 were loose. On May 22, 1984, Don Berman did an oral inspection of teeth #7 and 8 and with the aid of a dental instrument removed said teeth. Teeth #7 and 8 fractured off inside the crowns. On May 22, 1984, based on what Don Berman had reported to him, Respondent diagnosed the need, and had Berman prepare a treatment plan, for Mr. Whisman which encompassed an estimate for two crowns, one root canal filling and two pin and core build-ups for a total fee of $708.00. On May 22, 1984, Dr. John W. Delk did not examine Mr. Whisman nor did Dr. Delk supervise the actions of Don Berman. Don Berman re-cemented the crowns for teeth #7 and 8 using a permanent cement, Durelon, with no supervision from Dr. John W. Delk. James Whisman suffered from areas of sensitivity around the bridgework, poor dental work and an unnoticed abscess and retained root tip. James Whisman discontinued the dental work with the Delk Dental Center and sought a second opinion from Dr. Albert P. Hodges on June 7, 1984. After the services performed by Dr. Delk and/or his employees, an examination of James Whisman's teeth revealed dental work that fell below the standard of care as recognized by the prevailing peer community. The standard of care for crown and bridgework recognized by the prevailing dental peer community is as follows: No open or shy margins around the crowns; no active decay present; proper retention in multiple-unit splints; proper dowel lengths in crowns that are needed to support multiple unit bridges; proper occlusal contact and recognition; and treatment of any pathological condition prior to crown and bridge placement. Specifically, tooth #7 had margins that were open and shy, active decay was present and there was a distinct lack of retention to support the two-unit splint. The dental treatment provided on tooth #7 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #8 had margins that were open, active decay was present and the dowel length was totally inadequate for useful retentive support. The dental treatment provided on tooth #8 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically with tooth #10, Dr. Delk failed to diagnose and treat a retained root tip and a pathological condition which was visible and discoverable. The retained root tip and abscess were clearly visible radiographically as early as the July 14, 1981 visit to Dr. Delk's facility. James Whisman was not advised during the course of his treatment that a retained root tip existed and that the pathological condition should be treated prior to the placement of a crown over tooth #10. James Whisman's records, made at Dr. Delk's facility, failed to reflect the existence of the retained root tip and abscess at tooth #10. Failing to chart or notify the patient of the existence of a retained root tip and the accompanying cyst falls below the standard of care as recognized in the prevailing dental community. The dental treatment provided on tooth #10 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #20 had margins that were open and shy, it was sensitive to probing, and it was out of occlusion because it had no contact with the opposing tooth when the mouth was in the closed position. The dental treatment provided on tooth #20 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #21 had margins that were open and shy. The dental treatment provided on tooth #21 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #22 had margins that were shy. The dental treatment provided on tooth #22 fell below the minimum, acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #27 had margins that were shy and the crown was over-contoured causing potential gum irritation and food impaction. The dental treatment provided on tooth #27 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Specifically, tooth #29 had margins that were open and shy. The dental treatment provided on tooth #29 fell below the minimum acceptable standards of care as recognized by the prevailing peer community. Cementing crowns with permanent cement is an irremediable procedure. Cementing temporary crowns with permanent cement is justified on a short-term basis but only if the procedure is done by a licensed dentist. To be within acceptable dental standards, a dentist must do a physical oral examination of a patient before developing a treatment plan. Failure to do a physical oral examination in the development of a treatment plan falls below the minimum standards as recognized in the prevailing peer community. An assistant with an expanded duties certificate may use temporary cement only to seat temporary crowns provided a licensed dentist provides direct supervision.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Board of Dentistry enter a final order: (1) holding the Respondent guilty on both counts of the Administrative Complaint; (2) fining Respondent $1000 for each count, said amount to be paid within 30 days from the signing of the final order or Respondent's license automatically to be suspended until the fine is paid; (3) suspending Respondent's license to practice dentistry for 6 months for each count of the Administrative Complaint, to run consecutively; (4) placing Respondent on probation for 12 months subsequent to the expiration of the suspension period; and (5) conditioning reinstatement of Respondent's license to practice dentistry on successful completion of 100 hours of university credit course work in crown and bridge restorations by the end of the probation period and on an appearance by Respondent before the Board to provide evidence of compliance with the final order. RECOMMENDED this 3rd day of March, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1987. COPIES FURNISHED: Nancy M. Snurkowski, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Michael T. Hand, Esq. 230 East Marks Street Orlando, F1 32803 John W. Delk, D.D.S. 2918 North Pine Hills Drive Orlando, F1 32808 Pat Guilford Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 Wings T. Benton, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, F1 32399-0750 APPENDIX To comply with Section 120.59(2), Florida Statutes (1985), the following rulings are made on Petitioner's proposed findings of fact (Respondent did not submit proposed findings of fact): 1.-3. Accepted and incorporated. 4. Accepted but unnecessary. 5.-8. Accepted and incorporated. Accepted but unnecessary. Rejected as not proved. The evidence suggested that Respondent examined the patient and instructed Berman how to prepare the plan. 11.-15. Accepted and incorporated. 16. Rejected as not proved. Dr. Costello testified he seated the crowns and bridgework, and the office notes do not reflect that Berman was involved at all. Whisman's memory probably was in error on this point. 17.-20. Accepted and incorporated. 21. Rejected. See 10 above. 22.-29. Accepted and incorporated except the correct date in 24 is March 12, 1984, and the correct teeth in 25 are #19-22, not #19-20. 30. Rejected. See 10 above. 31.-56. Accepted and incorporated. Accepted but cumulative. Accepted and incorporated. Rejected as conclusion of law. 60.-61. Accepted but unnecessary. Accepted and incorporated. Accepted but cumulative. 64.-65. Accepted and incorporated.
Findings Of Fact Arnaldo Odio, D.D.S. received his education and dental training in Cuba, completing dental school there in 1942. Thereafter he was in private practice with his uncle in Havana, Cuba for about 5 years following which he worked at a government tuberculosis hospital until he came to the United States in 1965. At the time of Dr. Odio's arrival in the United States, Florida, as well as most of the other states, did not allow applicants for dental licensure to qualify based upon graduation from a foreign dental school. Upon his arrival in the United States Odio operated a dental laboratory in the Miami area. He applied for admission to various U.S. dental schools but apparently was not accepted. In 1970-71 New York changed its law to permit foreign graduates to qualify for licensure and Odio made application, took the necessary tests, and was admitted to practice in New York. He is currently practicing dentistry in New York. Chapter 72-185 Laws of Florida, 1972, deleted the requirement that graduates of foreign dental schools must, prior to examination, graduate from a United States school and substituted the provision that an applicant graduating from a foreign dental school may qualify for the examination for licensure by passing the National Board of Dental Examiners' examination and exhibiting manual skills on a laboratory model to the satisfaction of the Board. The exhibition of manual skills is called the mannequin examination and consists of work done on extracted human teeth inserted in a model upon which the applicant performs dental work without risk of harm to a patient. Having passed the National Board in 1970 or 1971 Odio applied to take the mannequin examination in Florida. Only after successfully completing the mannequin examination is an applicant deemed qualified to sit for the licensure examination which is comprised of a written portion as well as a clinical portion where work is performed on live patients. There is currently no limit on the number of times an applicant may take the mannequin examination. Dr. Odio took the mannequin examinations in December 1974, March 1975, and December 1975 and was informed after each examination that he had failed to attain the minimum qualifying score. It is these failures Dr. Odio is here contesting. The examiners for the mannequin examination are selected from the eight members of the Board of Dental Examiners. Before instituting these mannequin examinations the Board consulted professionals in the field of examining procedures and followed the recommendations so received. The evening before each examination is given the examiners go through a training session in which they are shown dental work and each assigns a grade which they later defend at a group meeting against the grades assigned by other examiners. This process is repeated several times, after which the grades become more uniform. By this procedure divergences in examining techniques are minimized. Before the examination each applicant is given an instruction sheet in which the procedures to be followed, the work that must be performed, and the grading procedures are explained. Dr. Odio testified that he fully understood the steps he was required to complete, and which dental procedures were expected for each grade assigned. During the course of the examination, at the times taken by Odio, the applicant performed three basic procedures and received seven grades. The range of scores on each step graded is from 0 to 5, with a score of 3 representing a passing grade of 75 percentile. This scoring system was adopted as a result of the recommendations of the examining professionals employed to help set up the examination scoring procedures. Two examiners assign a grade for each procedure completed by an applicant. The mannequin examinations are conducted in a room similar to a teaching dental laboratory with work space for each applicant and the examiners at the front of the room. No time limit is set for each procedure, but the applicant is given the full working day from 8:30 A.M. to 6:00 P.M. with one hour off for lunch to complete the examination. As each of the steps upon which the applicant is graded is completed, he takes his mannequin to an examiner who, after examining the work done, assigns a grade. The applicant then must have the procedure graded by a second examiner. After the examinations are completed the original examination score sheets are forwarded to a grading service where the scores are totaled and the applicant advised of his score. Before the originals are sent the Board makes a xerox copy of each examination sheet in case the originals are subsequently lost or misplaced. This copy is retained by the Board. The examiners' scores for each procedure are averaged to obtain the applicant's grade on that procedure. A failing grade of 2 on one procedure could be offset by a grade of 4 on another procedure to attain a passing grade of 3. Since one score is assigned for the preparation of the tooth for filling and a second score assigned after the tooth has been filled, the filling would preclude reevaluation of the score assigned for preparation. Accordingly retention of the mannequins after the work was graded would serve no useful purpose. Following two of Dr. Odio's mannequin examinations he met with a member of the Board who went over the grade sheet with Dr. Odio to show how the final score was computed. Odio's testimony that these members could not advise specifically why he received a failing score would not be unexpected. The examiners occupy positions similar to judges in a talent show or in a figure skating competition where marks are assigned on observed performance. Certain performances would be expected to be found substandard and others excellent and a third party could not look at a score sheet and say why. On each grade sheet the various factors that are to be considered by the examiner are listed alongside each score box. Occasionally the examiner will place a check mark alongside the factor wherein he considered the applicant's work to be deficient. Petitioner presented a summary of the grades assigned at the mannequin examinations in March and December, 1975. These show that of the 25 examination scores of the 7 procedures graded (March 1975) the two examiners assigned different grades a total of 74 times. These grades varied by more than one point only 10 times. Similarly on the December 1975 mannequin examination, the examiners differed by 1 point or more 78 times, but on only 6 grades did they differ by more than one point. No particular significance to the variance of these scores was established. A quick perusal of Exhibit 2, the test sheets for the December 1975 examination indicates that approximately half of the applicants passed the examination. Once the examination grades are assigned and turned in by the examiner, no changes are made to these scores. The originals of the test scores for the December 1974 and March 1975 mannequin examinations could not be located by Respondent; however, the copies made before the exams were delivered for grading, were produced. The originals of the December 1975 exam sheet except for that of Dr. Odio were produced and a copy of Odio's December 1975 exam was admitted as Exhibit 3. Although Petitioner contends that Respondent erred in failing to maintain these originals for two years as required by the statutes, no prejudice to Petitioner resulting from this error was shown or that this contributed in any manner toward Petitioner's failure to pass these mannequin examinations. No evidence was presented to indicate that different standards were applied in grading Petitioner than were applied to all other applicants. Petitioner was approved to take the December 1976 mannequin exam but did not appear. He had received a stab wound in the hand shortly before the exam and did not have the dexterity needed to complete the exam at that time. Petitioner's proposed findings of fact are generally in agreement with the findings above except that some of Petitioner's proposed findings were not included in the Findings of Fact because they were not deemed material. In the Proposed Findings Petitioner emphasized the discrepancies in the grades assigned by the two examiners and showed that the two examiners grading each step of a mannequin exam were in agreement only some 55 percent of the time and not the 85 percent agreement sought by the board. A review of Dr. Leo Foster's testimony (Exhibit 8) reveals his testimony on p. 12 to be that the grading consistency sought was that the grade given by the two examiners be within one point of each other 85 percent of the time. In the exam in March 1975 where there were 10 differences of more than one point on 175 grades in exam scores given by the two examiners this equals approximately 94 percent agreement. On the December 1975 exam where there were only 6 grades assigned by the two examiners which were more than one point apart the agreement between examiners exceeded 96 percent.
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation section of the clinical part of Petitioner's June 2003 Florida Dental License Examination was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.9, so he failed the clinical part of the examination. Petitioner has challenged the grade of 2.0 that he received on the Patient Amalgam Preparation of the clinical part of the examination. The score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. Petitioner challenges only the score of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The section that is the subject of this case requires the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For the section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communications between examiners and candidates are exclusively through monitor notes. For the section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Patient Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Patient Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 394 each assigned Petitioner a 3 for this procedure, but Examiner 417 assigned him a 0. Examiners 207 and 394 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 417 detected caries and documented her finding, as required to do when scoring a 0. Examiner 207 has served as an examiner for 10 years and has conducted 15-20 evaluation examinations during this time. Examiner 417 graduated from dental school in 1979. Examiner 394 has been licensed in Florida since 1995 and has served as an examiner only three years. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Despite the requirement to detect caries by touch, not sight, Examiner 417 initially testified that she detected the caries by sight. Later in her testimony, she backtracked and stated that she was not sure if she felt it or saw it. Her earlier, more definitive testimony is credited; Examiner 417 never found caries by touch, only by sight. In DOAH Case No. 03-3998, Examiner 417 readily conceded that she must have missed the caries that another examiner had detected, inspiring little confidence in her caries-detection ability. In that case, her value as one of two dentists in the majority was insignificant, even though the majority finding prevailed. In this case, Examiner 417's role as the lone dentist who found caries is too great an evidentiary burden for her to bear. The vagueness of her testimony and her reliance upon visual caries-detection preclude a finding of caries in this patient. Three other additional factors undermine Examiner 417's finding of caries. First, Examiners 207 and 394 found no caries. Examiner 207 has considerable experience. Examiner 394 has less experience, but he was the lone evaluator in DOAH Case No. 03-3998 to detect calculus deep below the gums, proving that he is both meticulous and a demanding grader. Together, then, the findings of Examiners 207 and 394 of no caries carry much greater weight than the contrary finding of Examiner 417. Nor was it likely that Examiner 417 accidentally dislodged the caries. No evidence suggest that she was the first examiner to examine the patient, and her means of detecting caries was visual, not tactile. Second, the location of the caries in this case was directly in the center of the tooth. So located, it was difficult for Petitioner and Examiners 207 and 394 to miss. Third, by two monitors' notes, Petitioner twice obtained the evaluators' permission to expand the drilled area, due to the extensiveness of the caries, suggesting that Petitioner was devoting careful attention to the removal of all caries, even if it meant an atypical site preparation.
Recommendation It is RECOMMENDED that the Department of Health enter a final order granting Petitioner an additional two points on the clinical part of the June 2003 Florida Dental License Examination and determining that he has passed this part of the dental examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact The Respondent, Prince Edward Denton, D.D.S., is now, and has been at all times material to this proceeding, a licensed dentist in the State of Florida, having previously been issued license number DN 0006762. Carol Hepp has been a dental assistant for twenty-seven years. She received her initial training as a dental assistant after graduation from high school when she went to work for Dr. Seth Rhodes in North Miami Beach. Since that time she has attended many training courses in her career as a dental assistant, including expanded duties courses at Emory University and the University of Florida. Ms. Hepp was employed by the Respondent as a dental assistant for a total of approximately four and one-half years. Ms. Hepp was so employed on February 2, 1988. On February 2, 1988, patient C.H. went to the Respondent's office to obtain treatment for a cracked tooth. The cracked tooth was tooth number 18, which was the last tooth in the patient's left lower jaw. During that visit, the patient C.H. was examined by the Respondent and by his dental assistant, Carol Hepp. Ms. Hepp explained the tooth crowning procedure to the patient. Ms. Hepp took a preliminary impression of the lower jaw by placing a two-part putty-like substance called "citrocon" in a tray, placing a plastic sheet over the top, and placing the tray into the patient's mouth. She held the tray in place for approximately six minutes and then removed it. This procedure yielded an approximate image of the patient's lower teeth. The Respondent took the final impression by applying a viscous substance around tooth number 18, and then inserting the preliminary impression into the patient's mouth. The Respondent held the impression in place until it was set or non-moveable, at which time Ms. Hepp took over the task of holding the impression in place for the balance of the approximately four-minute period during which the final impression material completely set up. After the impression was finished, Ms. Hepp took it to the Respondent who examined it and approved the finished final impression. After the final impression had been taken, Ms. Hepp made a wax form for purposes of fabricating a temporary crown for C.H.`s tooth number 18. This was done prior to the "preparation" of the tooth. The "preparation" of a tooth for crowning is the actual grinding down of the tooth that is to be crowned. The Respondent, and not Ms. Hepp, ground down the patient C.H.`s tooth number 18 in preparation for crowning. Following the Respondent's "preparation" of the subject tooth, Ms. Hepp packed a cord around the tooth. 1/ The grinding down, or "preparation," of a tooth for crowning is an irremediable task, which under no circumstances should be delegated to a dental assistant. Following the Respondent's "preparation" of the tooth, Ms. Hepp then fabricated and installed a temporary crown on the patient's tooth number 18. This was done by utilizing the wax form she had previously made, filling the form with a self-curing jet material, adding tooth color, and then placing the temporary crown over the prepared tooth. At all times during the treatment of the patient C.H., the Respondent was aware of, and had authorized, each step performed by Ms. Hepp, and was available to assistt Ms. Hepp had she requested his assistance. Accordingly, Ms. Hepp was working under the direct supervision of the Respondent at all times material to this proceeding.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing all charges in the Administrative Complaint. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 31st day of July, 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 31st day of July, 1991.
