The Issue Whether or not Petitioner may be granted a passing grade upon her Dental Mannequin Examination dated June, 1986, a precursor to further examination for licensure. BACKGROUND AND PROCEDURE Petitioner is a post-1962 graduate of the University of Havana (Cuba) Dental School. At the commencement of formal hearing, Petitioner raised as a constitutional challenge, the bar existing in Section 466.006, Florida Statutes, to persons in her circumstances taking the Florida Dental Board Mannequin Examination an unlimited number of times whereas similar graduates prior to 1962 are permitted unlimited examination attempts. She also raised a further challenge to the recent amendment, effective 1991, barring any examination whatsoever of unaccredited dental school graduates. These challenges were treated by the undersigned as a single motion to hold a statute unconstitutional and denied as without jurisdiction and authority. The parties stipulated to the admission in evidence of 10 joint exhibits. Petitioner testified on her own behalf, presented the oral testimony of Lucinda Richards, and had one exhibit admitted in evidence. Respondent presented the oral testimony of Dr. Theodor Simkin, D.D.S., and had admitted one exhibit. The transcript was duly filed and each party has timely filed post-hearing proposals, the proposed findings of fact of which have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner, a 1978 graduate of the University of Havana, was an applicant for licensure by examination to practice dentistry in the State of Florida. As a foreign graduate of a non-accredited school, Petitioner had taken the Manual Skills, or Mannequin, portion of the examination on two previous occasions in 1982 and 1983, and failed on both occasions. After taking a remedial course, Petitioner was eligible under current law to take the examination for a third and final time. Petitioner took that examination for the third time in June 1986, and received a grade of 2.74. A grade of 3.0 is considered a minimum passing grade. Petitioner filed objections to the examination results, which were reviewed by Respondent and confirmed, and this proceeding followed. The Manual Skills, or Mannequin, portion of the dental examination, consists of nine procedures which are graded by three dental examiners who qualify under the requirements of Rule 21G-2.020, Florida Administrative Code. All examiners attend standardization courses, are evaluated, and are assigned randomly for the grading of applicants. In the instant case, the examiners for Petitioner were No. 6, Dr. Levy; No. 64, Dr. Robinson; and No. 150, Dr. Boyar, each of whom examined and graded all of Petitioner's nine procedures. The procedures are graded in a holistic manner and not as a numeric point deduction for errors or mistakes. Each examiner assigns a grade for the procedure and must document on the portion of the grade sheet any failing grade. The examiner then assigns one of the following grades for each procedure: - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimally acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Each procedure is graded by averaging the three examiners' scores to come up with a single average grade for each procedure. Procedure grades are then individually weighed and combined for an overall clinical grade, which grade must be 3.0 or above in order to achieve a passing score. All scores for examiners are reported and evaluated in Report For The State of Florida Dental Manual Skills Examination, June 1986, (Joint Exhibit F). At Page 3 of said Report, entitled "Histograms And Frequency Distribution", a set of graphs indicates that failing grades of "0", "1" or "2", should be given 18% of the time, and same would be considered a "realistic example of what might be considered ideal". A review of the 24 examiners assigned to the June 1986 Examination, however, further indicated that there was a range in the frequency of the rendering of failing grades from examiner 47, who gave a failing grade 19.4% of the time, to examiner 135, who gave a failing grade 70.7% of the time. The range for the Petitioner's three examiners, who rendered failing grades were examiner 6, 32.9% of the time; examiner 64, 51.6% of the time; and examiner 150, 29.9% of the time. All three examiners of Petitioner had given failing grades higher than the ideal curve, (51.6% to 29.9%), and all 24 examiners rendered failing grades substantially higher than the ideal curve (70.7% to 19.4%). It is Petitioner's contention that although Respondent has made efforts to standardize its examiners' techniques and grading, the admitted range for the specific examiners who rendered failing grades were from a high of 70.7% to a low of 19.4%, when the ideal rendering of such failing grades should have been only 18%, and conversely, the range for examiners who rendered passing grades, were from a low of 29.3% to a high of 80.6%, thus establishing that "standardization" of grading has not been achieved, and that the June 1986 grades assigned to Petitioner were subjective and not reasonable and fair. Petitioner's contention, although correct in its arithmetic, is not sound in light of other mathematical principles enunciated by Lucinda Richards, an examination development specialist for the Department of Professional Regulation who was qualified and accepted as Petitioner's expert witness in testing and measurement. Petitioner's theory is a plausible inference but not a necessary one. It is not a necessary inference due to the holistic nature of the examination, because it cannot be ruled out that any three examiners were randomly assigned to grade those candidates who performed overly poorly or overly well, and because the examiner evaluation relied on by Petitioner is based on a very small number of evaluations and is for this single examination only and not for all examinations these examiners have done. Ms. Richards specifically testified that it was a possibility that on the June 1986 examination or any examination the three examiners assigned to Petitioner were randomly assigned to overly poor students and that Dr. Robinson, Petitioner's examiner whose failure rate was highest on this examination always does well on standardization testing and that, in fact, Dr. Robinson has deviated less than any other examiner in his several standardization tests over time. The undersigned accepts Ms. Richards' detailed factual evidence that the June 1986 Mannequin examination was conducted in accord with standard procedures and that Petitioner was not treated differently from other examination candidates. The undersigned further accepts Ms. Richards' expert opinion that the examination process is standardized and fair. Moreover, Dr. Theodor Simkin's testimony does not support Petitioner's analysis. Dr. Simkin, called by Respondent, has been a licensed Florida dentist since 1950. Until the last few years he has been actively engaged in dental practice. He has also been actively engaged in the training and standardization procedures for the dental examination continuously since 1979 and has served as an examiner seventeen times. For the 1986 examination in dispute, Dr. Simkin was an examination supervisor and reviewer. He is thoroughly acquainted with all the latest and accepted techniques involving the nine procedures in which Petitioner was tested in 1986. In the course of formal hearing, Dr. Simkin examined the mannequin prepared by Petitioner during her examination. Although Respondent did not tender Dr. Simkin as an expert, this formality is primarily for the purpose of permitting counsel to pose hypothetical questions, and the undersigned finds that even without the formality of tender and acceptance, Dr. Simkin's evidence is entitled to the weight and credibility accorded an expert dentist. Although he felt some examiners had individually given Petitioner better scores than she deserved, Dr. Simkin's opinion substantially supported and confirmed the individual grades assigned Petitioner by the regular examiners, and he determined that the average grade for each procedure complied with the objective criteria which examiners are required to apply. Utilizing his education, training, and experience, Dr. Simkin concurred that the appropriate overall clinical grade for Petitioner's mannequin portion of the examination should be less than the passing grade of 3.0. This evidence was not refuted. Together, Ms. Richards and Dr. Simkin established that the grading of Petitioner's examination was in accord with standard procedures.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the Board of Dentistry enter a Final Order affirming Petitioner's test scores and denying her a license to practice dentistry. DONE and RECOMMENDED this 8th day of February, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4839 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF) are hereby made in accord with Section 120.59(2), Florida Statutes. Petitioner's PFOF 1-7. Accepted in FOF 1-7 respectively. Respondent's PFOF Accepted except as cumulative and unnecessary in FOF 1-2. Covered in FOF 3. Except as unnecessary covered in FOF 3. 4-8. Accepted, but none of these matters is necessary to a resolution of the issues at bar as presented or argued by Petitioner. Covered in FOF 4. Covered in FOF 5. COPIES FURNISHED: Pat Guilford, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert Koltnow, Esquire One Datran Center, Suite 502 9100 South Dadeland Boulevard Miami, Florida 33156 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent regrade Petitioner's examination and give equal numerical value to each criterion; all other requests for relief should be DENIED. DONE and ENTERED this 9th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of December, 1982.
Findings Of Fact The Petitioner, Bassette A. Cayasso, age 46, was born in Nicaragua, where he lived until April, 1983, when he came to the United States and settled in Miami, Florida. The Petitioner graduated from University Nationale de Nicaragua in 1966. He practiced dentistry in Nicaragua for 17 years, and was a resident on the hospital ship SS Hope where he practiced oral surgery. The Petitioner has taken the Florida Dental Mannequin Examination three times, the last time being in May, 1986. He failed this examination each time. The mannequin examination is a dental skills examination wherein the examinee demonstrates his ability to perform various dental procedures on a mannequin. The mannequin is a set of teeth. Graduates of dental colleges or schools which are not accredited by the American Dental Association are required to take and pass this mannequin examination prior to being permitted to take the regular dental examination. The school of dentistry from which the Petitioner graduated is not an accredited institution. On the nine procedures which constituted the May, 1986, mannequin examination, the Petitioner passed four, and failed five. His final composite score was 2.72. A score of 3.00 is necessary in order to pass the examination. The Petitioner presented no evidence from which it might be found that the grades he received on the mine dental procedures were erroneous. The examination was graded by three graders. One grader gave the Petitioner a passing score on all nine procedures, one passed him on five procedures, and one grader passed him on three procedures. All three grade independently, and their scores are averaged to produce one score for each procedure. The procedure scores are then weighed to produce a final overall score. When a review is requested, a reviewer goes over the scores for all procedures to see if the average grade is justified. In the review of the Petitioner's scores, there was found to be no irregularity in the balancing of the Petitioner's scores, and the overall grade was found to be fair and reasonable, thus not warranting a re- grade of any procedure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Petition of Bassette A. Cayasso for a review of his May, 1986, dental mannequin examination. THIS RECOMMENDED ORDER entered this 29th day of June, 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1987. COPIES FURNISHED: Mr. Bassette A. Cayasso 20236 Southwest 123rd Place Miami, Florida 33177 Chester G. Senf, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750
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.
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 15th day of August, 2001.
The Issue The primary issue in this case is whether the Petitioner should have been given a passing grade on the June 1983 Dental Mannequin examination. A secondary issue is whether the Petitioner should be permitted to take the regular State of Florida dental examination even if he is not entitled to a passing grade on the June 1983 Dental Mannequin examination.
Findings Of Fact On the basis of the testimony of the witnesses and the exhibits received into evidence at the hearing, I make the following findings of fact: The Petitioner, Dr. Angel N. Diaz-Norrman, is a graduate of a foreign dental school. Since his graduation from dental school he has engaged in three years of postgraduate training in the field of dentistry at the University of Miami and at the University of Florida. He has also completed all requirements for a teaching fellowship in the field of general dentistry. He is currently pursuing a program on postgraduate study in the specialty of periodontics at the University of Florida. His grade point average in his periodontic studies is 4.0 for both the didactic and the clinical portions of his studies. The Petitioner has twice taken the State of Florida Dental Mannequin Examination, once in December of 1982 and once in June of 1983. He was assigned a failing grade on both of those examinations. His December 1982 grade was slightly higher than his June 1983 grade. His June 1983 grade was 2.37. The minimum passing grade is 3.00. The State of Florida Dental Mannequin examination is a practical examination which tests several specified clinical skills. The examination consists of ten procedures, of which only nine are grades. Each of the nine graded procedures are graded separately. Each of the nine graded procedures on the examination is independently graded by three examiners. Each examiner assigns a grade of from 0 to 5 to the procedure and the final score for each procedure is determined by averaging the three grades given to that procedure. The final score on the entire examination is determined on the basis of a weighted average as provided in Rule 21G-2.19(1), Florida Administrative Code. 1/ The examiners who grade the State of Florida Dental Mannequin examination are all experienced Florida dentists who are selected by the Board of Dentistry. A person chosen as an examiner must have at least five years experience as a dentist. All persons who are selected to be examiners receive a full day of training in the examination process. They review the criteria by which each procedure is to be judged and they participate in a practice grading exercise. Proposed examiners who do not do a good job on the practice grading exercise are not selected as examiners, but are given other tasks at the examination such as serving as monitors. 2/ The application of the grading criteria is not a mathematically precise procedure. Although some shortcomings on the examination procedures require an automatic grade of 0, there is no mathematical formula for deducting any specific number of points or fractions of points for lesser shortcomings or deviations from an excellent procedure. Rather, the examiners use an holistic approach to the grading of each procedure. During the examination each examiner is required to record the grade assigned to each procedure on a written form. Whenever an examiner assigns a failing score to a procedure, the examiner is required to include on the grading form written comments sufficient to justify the failing grade. The written comments do not have to include everything the examiner thought was wrong with the procedure, but must include enough to justify the failing grade. An examiner is not required to justify a passing grade. When the Petitioner took the Dental Mannequin examination in June of 1983, the grades he received from each examiner on each graded procedure were as follows: Procedure Examiner Examiner Examiner Average No. No. 45 No. 48 No. 80 Grade 1. 1 0 0 0.33 2. 2 5 5 4.00 3. 1 3 3 2.33 4. 3 3 3 3.33 5. 2 1 3 2.00 6. 3 5 5 4.33 7. 1 2 3 2.00 8. 2 1 3 2.00 9. 1 1 1 1.00 8. The average grade given to the Petitioner for his performance on procedures number 1, 2, 5, 7, 8, and 9 was a fair and reasonable grade for his performance on each of those procedures. In other words, the average grades given to the Petitioner on those six procedures were fair and accurate measures of the skills demonstrated by the Petitioner on those procedures. The average grade given to Petitioner for procedure number 3 was higher than it should have been. The quality of the Petitioner's performance on procedure number 3 was such that he should have been given a grade of 1.00 instead of 2.33. The average grade given to Petitioner for procedure number 4 was lower than it should have been. The quality of the Petitioner's performance on procedure number 4 was such that he should have been given a grade of 4.00, instead of 3.33. The average grade given to Petitioner for procedure number 6 was lower than it should have been. The quality of the Petitioner's performance on procedure number 6 was such that he should have been given a grade of 5.00, instead of 4.33. With regard to procedure number 9, the Petitioner misunderstood the instructions and prepared a "wax-up" for a cast gold bridge of a type different than that required by the instructions. Between the time of the June 1983 examination and the time of the hearing the "wax-up" prepared by the Petitioner for procedure number 9 became partially damaged while in the custody of the Respondent.
Recommendation On the basis of all of the foregoing, I recommend that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the June 1983 Dental Mannequin examination is 2.37, a failing grade, and that the Petitioner is not eligible to retake the Dental Mannequin examination or to take the regular dental license examination. DONE AND ENTERED this 4th day of April 1985 at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985.
The Issue The issue presented is whether Petitioner achieved a passing score on the June 1999 Florida dental licensure examination.
Findings Of Fact Petitioner is licensed to practice dentistry in California and was also licensed in Georgia until he permitted his Georgia license to become inactive. He has been engaged in the active practice of dentistry for thirteen years. He has never been sued. Petitioner took the June 1999 clinical portion of the Florida dental licensure examination. He was subsequently advised that he had not achieved a passing score. Petitioner challenges the score he received on two portions of the clinical examination: his amalgam cavity preparation on the patient and his endodontic procedure on an extracted tooth. Petitioner's patient had a cavity between two teeth, although it was much lower than the contact point. The patient also had a large non-contiguous cavity in the front of the same tooth. Petitioner determined that he wished to save as much of the tooth as possible knowing that the large cavity in the front of the tooth would need to be filled. Because of the manner in which it was necessary to prepare the tooth to preserve the maximum amount of structure, he generated a monitor note explaining his approach. When he located the monitor to whom he would turn in his note, that monitor was busy viewing another patient and motioned for Petitioner to place the note at the monitor's station. Petitioner placed the note in the monitor's chair and returned to his patient. Petitioner completed the preparation procedure. While doing so, he noticed that his patient's tooth had a dead tract, a rare dental defect that would not interfere with the process. This was only the second time that Petitioner had seen a dead tract in a tooth despite his many years of practice. The first time had been while Petitioner was in dental school When his patient was graded, two of the three graders gave Petitioner a score of "0," noting that caries remained. The third grader saw no caries but noted debris remained. What the two examiners mistook for further decay was the dead tract. No debris remained. The other comments of the graders suggested that they had not seen the monitor note generated by Petitioner explaining the manner in which he was preparing the tooth and why. Despite the alleged presence of decay, Petitioner was instructed to proceed to fill the cavity. The extracted tooth on which Petitioner performed his endodontic procedure was an "easy" tooth with large canals. One grader gave Petitioner a "5," which is a perfect score. One grader gave him a "3," and the other gave him a "0." Only the grader who gave Petitioner the "0" noted that the tooth was perforated. The tooth Petitioner worked on had no perforation on the inside, and the x-rays taken during the process revealed no file or gutta percha filling off to the side of the canals. Petitioner did not perforate the tooth during his endodontic procedure. Petitioner properly performed both the amalgam cavity preparation on his patient and the endodontic procedure on the extracted tooth. He should be awarded full points on both procedures. The additional points are sufficient to give Petitioner a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner achieved a passing score on the June 1999 dental licensure examination. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 26th day of January, 2000. COPIES FURNISHED: Bill Buckhalt, Executive Director Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Gregory K. Barfield 2555 Collins Road, Penthouse 114 Miami Beach, Florida 33140 Gregory K. Barfield Post Office Box 102 Rancho Sante Fe, California 92067 Adam Keith Ehrlich, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
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 Respondent violated Sections 466.028(1)(j), (l), (m), (n), (u), and (y), Florida Statutes (1988 Supp.), and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (Agency), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.165 and Chapters 455 and 466, Florida Statutes. Respondent, Michael Freedman (Dr. Freedman), is and has been at all times material to this proceeding a licensed dentist in the state of Florida, having been issued license number DN0010221. From June, 1988 through February, 1989, Dr. Freedman billed Medicare and received compensation for dental treatment of three elderly patients, L.S., E.K., and K.K., who resided in a nursing home, Meadowbrook Manor of Boca Cove (Meadowbrook). Patient L.S. At all material times to this proceeding, L.S. was a 93- year-old female who suffered from Alzheimer's disease. At the time of Dr. Freedman's treatment of L.S., Ms. Aurelia DaPra acted as L.S.'s legal guardian. She was also L.S.'s close personal friend and visited L.S. on a daily basis. During these visits Ms. DaPra would attend to L.S.'s personal needs. On or about July 7, 1988, patient L.S. was presented to Dr. Freedman for a consultation at the nursing home where L.S. resided. Dr. Freedman's examination revealed edentulism and/or prosthetic related problems. His recommendations included further diagnostic investigations, surgical procedures, and rehabilitative measures. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for services rendered. The "Next Patient Appointment/Service Record" contained in Dr. Freedman's records indicate that dental X-rays were taken of L.S. on July 25, 1988. On July 25, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. On August 8, 1988, Dr. Freedman gave telephone orders to the staff at Meadowbrook to premedicate L.S. prior to Dr. Freedman's visit on the next day. On August 9, 1988, Dr. Freedman visited L.S. Other than rendering an X-ray report, the records do not indicate any other service performed by Dr. Freedman on that date. On August 9, 1988, Dr. Freedman billed $225.00 and was subsequently paid $108.80 by Medicare for X-rays and supplies for L.S. The Medicare category under which supplies are billed is entitled "supplies/prosthesis." Dr. Freedman's customary practice was to make the X-rays at the nursing home using a mobile X-ray machine and to develop the films in his office the next day. He rendered an X-ray report on the dental X-rays of L.S. on August 9, 1988. On August 17, 1988, Dr. Freedman visited L.S. and did a behavior adjustment evaluation. Premedication was given to L.S. on site. On August 17, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. On August 26, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. The dental records of L.S. do not indicate that any service was provided to L.S. on August 26, 1988. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on August 26, 1988. Dr. Freedman billed $70.00 for office services on September 2, 1988, and was subsequently paid $34.88 by Medicare for such services. The records of Dr. Freedman include a draft letter to Dr. Janotta, L.S.'s physician, stating that L.S. needed to have intrabony lesions removed and would require premedication to facilitate the procedure. Notes in his records indicate that by September 18, 1988, Dr. Freedman had not heard from Dr. Janotta. Dr. Freedman billed $72.70 for supplies for L.S. on November 1, 1988, and was subsequently paid $43.88 by Medicare. On November 1, 1988, Dr. Freedman billed $374.00 and was subsequently paid $160.00 by Medicare for surgery on L.S. On November 1, 1988, Dr. Freedman performed a debridement procedure on L.S., which was surgical in nature and was not a routine cleaning of the teeth. Another behavior management evaluation was done on L.S. on November 1, 1988. On January 13, 1989, Dr. Freedman billed $133.00 and was subsequently paid $69.60 by Medicare for X-rays and supplies for L.S. Dr. Freedman's records did not indicate that any services were provided to L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on January 13, 1989. Dr. Janotta's progress notes concerning L.S. indicate that he was contacted by Dr. Freedman on February 5, 1989. On the same date, Dr. Janotta ordered that L.S.'s legal guardian be contacted to get L.S.'s private dentist to look at L.S.'s dental problems. After Ms. DaPra was informed that Dr. Janotta had left orders that L.S. should see a dentist, she told the nurse that she did not want Dr. Freedman to be used as the dentist. On January 26, 1989, Dr. Freedman's office called Dr. Janotta's office and stated that Dr. Freedman intended to do some minor dental work on L.S. and inquired whether the dental work should be done and whether L.S. should be premedicated. On February 10, 1989, Dr. Freedman billed $52.00 and was subsequently paid $22.72 by Medicare for office services for L.S. Dr. Freedman's records do not indicate that any services were performed for L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were performed for L.S. by Dr. Freedman on February 10, 1989. On February 13, 1989, Dr. Hagquist, a dentist, did an oral exam of L.S. and concluded that several of her teeth needed to be extracted. On February 28, 1989, Dr. Hagquist extracted six of L.S.'s teeth. On December 13, 1990, L.S. was examined by Dr. Robert W. Williams, Petitioner's dental expert. Dr. Williams' examination revealed a completely mutilated dentition with serious carious breakdown and several teeth in poor repair. He further discovered gross calcus and debris present with chronic gingival irritation, inflammation, and periodontal breakdown. No evidence was presented as to what dental care L.S. received from February 14, 1989 to December 13, 1990. Patient E.K. At all times material to this proceeding, E.K. was an 84-year-old female who suffered from Alzheimer's disease. On June 6, 1988, patient E.K. was presented to Dr. Freedman for consultation at the nursing home where she resided. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for services rendered on June 6, 1988. On July 12, 1988, Dr. Freedman made dental X-rays of E.K. The dental records do not contain either the x-rays or a report on the findings of the x-rays. On July 12, 1988, Dr. Freedman billed $238.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient E.K. Dr. Freedman's records indicate that on August 9, 1988, Dr. Freedman gave some medication as part of a procedure performed on E.K. in the maxilla area. The records do not indicate exactly what the procedure was; however based on the testimony of Dr. Bayloff, Respondent's expert witness, the procedure was not a routine cleaning. On August 9, 1988, Dr. Freedman billed $33.75 and was subsequently paid $10.72 by Medicare for supplies for patient E.K. According to Dr. Freedman's "Tissue Repair/Debridement/ Treatment Report", on November 1, 1988, Dr. Freedman performed the following on E.K. in the mandible area: "brush", "dentifrice," and "dentition." No evidence was presented to establish whether this procedure would not qualify as surgery for purposes of payment from Medicare. On November 1, 1988, Dr. Freedman billed $33.75 and was subsequently paid $14.00 by Medicare for supplies for patient E.K. The procedure performed on November 1 did require the use of some supplies. On November 1, 1988, Dr. Freedman billed $200.00 and was subsequently paid $80.00 by Medicare for surgery on patient E.K. Patient K.K. K.K. is an 85-year-old male who has been described as mentally alert, physically impaired as to sight, and well aware of his surroundings. On June 13, 1988, patient K.K. was presented to Dr. Freedman for a consultation at the nursing home where K.K. resided. Dr. Freedman made a preliminary evaluation. Dr. Freedman billed $173.00 and was subsequently paid $107.84 by Medicare for consultation services rendered to K.K. on August 13, 1988. It appears that the date which appeared on the Medicare payment report was a scrivener's error and should have read June 13, 1988. On June 20, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for K.K. This billing was for a trip by one of Dr. Freedman's staff to Meadowbrook to copy parts of K.K.'s records. On July 12, 1988, Dr. Freedman made dental X-rays of K.K. and rendered an X-ray report. On July 12, 1988, Dr. Freedman billed $283.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient K.K. On July 29, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for patient K.K. Dr. Freedman's records indicate that his staff called Dr. McKay to inquire whether K.K. needed to have premedication prior to minor oral surgery and if so, what medication would be needed. MITIGATION Dr. Freedman had practiced dentistry at other nursing homes in the area and had not received any complaints concerning the services that he provided. Between 1985 and 1989, Dr. Freedman developed and maintained a practice exclusively limited to patients requiring special care. The majority of his patients resided in nursing homes or ACLF's and were frail and elderly. He was the Dental Director for 23 long-term care facilities and served 50 other facilities on a more limited basis. At any given time he was serving between 1000 to 2000 patients in a 150 mile area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Freedman did not violate Sections 466.028(1)(j)(l) and (u), Florida Statutes as alleged in Count I, finding that Dr. Freedman did violate Section 466.028(1)(m), Florida Statutes (1988 Supp.), in Count I as it related to the X-rays, dismissing Count II of the Administrative Complaint, dismissing the portions of Counts I and III alleging a violation of Section 466.028(1)(n), Florida Statutes (1988 Supp.), finding that Dr. Freedman did not violate Sections 466.028(1)(m) and (y), Florida Statutes (1988 Supp.), as alleged in Count III, finding that Dr. Freedman violated Section 466.028(1)(j) and (l), Florida Statutes (1988 Supp.), as alleged in Count III, imposing a $750 administrative fine and placing Dr. Freedman on probation for one year under the terms and conditions to be set forth by the Board of Dentistry. DONE AND ENTERED this 28th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3391 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-10: Accepted. Paragraph 11: Accepted except as to a prosthesis. The evidence showed that the Medicare category was supplies/prosthesis. Dr. Freedman was billing for supplies not for a prosthesis. Paragraph 12: Accepted. Paragraph 13: Rejected as to the amount billed. The evidence showed that Dr. Freedman billed $70.00. The remainder is accepted. Paragraph 14: Rejected that he billed for supplies and prosthesis. The records indicate that he billed for office services. Paragraph 15: Rejected that Dr. Freedman billed for a prosthesis. The remainder is accepted. Paragraph 16: Accepted. Paragraphs 17-18: Rejected as subordinate to the facts found. Paragraph 19: Rejected as subordinate to the facts found. There was no evidence presented to link the blank X-ray with the X-rays that were taken on July 25, 1988. Paragraphs 20-21: Rejected as subordinate to the facts found. Paragraph 22: Rejected as to billing for a prosthesis. The remaining is accepted. Paragraph 23: Accepted in substance. Paragraph 24: Accepted. Paragraphs 25-26: Accepted in substance. Paragraph 27: Accepted. Paragraphs 28-30: Rejected as unnecessary. Paragraphs 31-32: Accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Paragraph 34: Accepted in substance. Paragraph 35: Rejected. The evidence does not support such an opinion. Paragraphs 36-38: Rejected as subordinate to the facts found. Paragraph 39: Rejected as not supported by the evidence. Paragraphs 40-41: Accepted. Paragraphs 42-43: Rejected as not established by clear and convincing evidence. Paragraph 44: Accepted. Paragraph 45: Rejected as unnecessary. Paragraphs 46-47: Accepted in substance. Paragraphs 48-50: Rejected as to the prosthesis. The remainder is accepted. Paragraph 51: Accepted. Paragraph 52: Rejected as subordinate to the facts found. Paragraph 53: Rejected. His conclusion is not supported by the evidence presented. Paragraph 54: Rejected as unnecessary and repetitious. Paragraph 55: Rejected as unnecessary. Paragraphs 56-57: Rejected as based on hearsay. Paragraph 58: Rejected as not supported by the evidence. Paragraphs 59-61: Rejected as not established by clear and convincing evidence. Paragraphs 62-66: Accepted. Paragraph 67: Rejected as to prosthesis. The remaining is accepted. Paragraph 68: Accepted. Paragraph 69: Rejected. The evidence established that K.K. was actually seen twice by Dr. Freedman. Paragraph 70: Rejected as not established by clear and convincing evidence. Respondent's Proposed Findings of Fact. Paragraph 1: The third sentence is rejected as unnecessary. The remaining sentences are rejected as constituting argument. Paragraph 2: The first sentence is accepted. The remaining sentences are rejected as subordinate to the facts found. Paragraphs 3-10: Rejected as subordinate to the facts found. Paragraph 11: The first sentence is rejected as constituting argument. The remaining is rejected as subordinate to the facts found. Paragraphs 12-13: Rejected as subordinate to the facts found. Paragraph 14: The first two sentences are rejected as constituting argument. The remaining is rejected as subordinate to the facts found. Paragraph 15: The third sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. There was no paragraph 16. Paragraph 17: Rejected as subordinate to the facts found. Paragraph 18: Rejected as constituting argument. Paragraph 19: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraphs 20-22: Rejected as subordinate to the facts found. Paragraph 23: The first sentence is rejected as constituting argument. The last sentence is rejected as immaterial. Paragraph 24: The first two sentences and the last sentence are rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraph 25: The first and last sentences are rejected as constituting argument. Paragraph 26: Rejected as unnecessary. Paragraph 27: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. Sentences 4-13 and 42 are rejected as immaterial to the issues. Sentences 14, 29, 31, 38, and 40 are rejected as constituting argument. Sentence 15 is accepted in substance. Sentence 16 is rejected as not supported by the evidence presented. Sentences 17-28, 30, 32-37, 39, and 41 are rejected as subordinate to the facts found. Paragraph 28: Rejected as constituting argument. Paragraph 29(1): The first sentence is rejected as unnecessary. The second sentence is accepted. Sentences 3-8 are rejected as subordinate to the facts found that Dr. Williams was an expert. Sentence 9 is rejected as constituting argument. Sentences 10-13 and 15-18, are accepted in substance. Sentence 14 is rejected as subordinate to the facts found. The remaining sentences are rejected as constituting argument. Paragraph 29(2): Rejected as mere recitation of testimony. Paragraph 29(3): Sentences 1-11 are rejected as mere recitation of testimony. The remaining is rejected as constituting argument. Paragraph 30: Rejected as subordinate to the facts found and as constituting argument. Paragraph 31: Rejected as constituting argument. Paragraph 32: The last two sentences are rejected as constituting argument. The remainder is rejected as mere recitation of testimony and subordinate to the facts found. Paragraph 33: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found. Paragraph 34: Rejected as constituting argument. Paragraph 35: Sentences 1, 2 6, 7, 12, 13, 56 are rejected as unnecessary. Sentences 3-5, 10, 23, 24, 32, 35, 36, 37, 52, 55, 58 and 59 are rejected as subordinate to the facts found. Sentences 8, 9, 11, 28, 30, 51, 71, 72 are rejected as constituting argument. Sentences 14-22, 25-27, 29, 31, 33, 34, 39-50, 53, 54, 60-63 are accepted in substance. Sentence 38 is rejected as not supported by the evidence. Sentence 57 is not a complete sentence. Sentences 64-70 are rejected as irrelevant. Paragraph 29 (Keene pg. 15 of PRO): The first sentence is rejected as unnecessary. Sentence 2(1) is accepted in substance. Sentence 2(2) is rejected as based on hearsay. Sentence 2(3) is accepted in substance. Sentence 2(4) is rejected to the extent that the opinion was not supported by the evidence. Sentence 3 is rejected to the extent the opinion is not supported by the record. Paragraph 30 (pg. 15 PRO): Sentences 1-3, 5, and 6 are rejected as based on hearsay. Sentences 4 and 27 are rejected as constituting argument. Sentences 7-10, 15, 23, and 24,are accepted in substance. Sentences 11-13 and 16 are rejected as subordinate to the facts found. Sentences 14, 17, 41, 42, are rejected as unnecessary. Sentences 18-22, 28-40, and 43 are accepted in substance to the extent that X-rays were made. Sentences 25 and 26 are rejected as not credible given that Dr. Freedman was able to produce the records of the patients at issue. The testimony at the hearing dealt with his inablity to produce copies of the Medicare forms that he received from Medicare. Paragraph 31 (pg. 16 PRO): The first two sentences are rejected as subordinate to the facts found. The remaining is rejected as constituting argument. Paragraph 32 (pg. 17 PRO): Sentences 1-10 and 17-19 are rejected as irrelevant. The remaining is accepted in substance. Paragraph 33 (pg. 17 PRO): Rejected as subordinate to the facts found. Paragraph 34 (pg. 18 PRO): Sentences 1-10 are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 35 (pg. 18 PRO): The last three sentences are rejected as irrelevant. The remainder is accepted in substance to the extent that Dr. Bayloff was qualified as an expert witness. Paragraphs 36 (pg. 19 PRO): Rejected as irrelevant. Paragraph 37 (pg. 19 PRO): Sentences 1-2 are rejected as unnecessary. Sentences 3-7 are rejected as irrelevant. Sentences 8-10 are accepted in substance to the extent that L.S.'s file did contain adequate records. Sentences 11-14 are accepted to the extent that they apply to the records of L.S. and K.K. but not as to the records of E.K. as it relates to the X- rays. There were no X-rays or X-ray report in E.K.'s file. Paragraph 38 (pg. 19 PRO): Sentences 1-2 are accepted in substance as it pertains to L.S. Sentences 3-4 are rejected as irrelevant. Sentences 5-6 are accepted to the extent that the expert reviewed records which were present. There were no records for treatment of L.S. on August 26, 1988, January 13, 1989, and February 10, 1989. Dr. Bayloff did not render an opinion on whether services were provided on those dates. The remaining is rejected as constituting argument. COPIES FURNISHED: Natalie Duguid, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Freedman 421 Lakeview Drive, Suite 201 Fort Lauderdale, Florida 33326 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
