The Issue As to Case No. 89-5273, whether Respondent committed the offenses set forth in the Amended Administrative Complaint dated December 28, 1989, and, if so, the penalties that should be imposed. As to Case No. 89-6492, whether Respondent committed the offenses set forth in the Administrative Complaint dated October 31, 1989, and, if so, the penalties that should be imposed. As to Case No. 90-5801, whether Respondent committed the offenses set forth in the Administrative Complaint dated January 18, 1990, and, if so, the penalties that should be imposed. As to Case No. 90-5802, whether Respondent committed the offenses set forth in the Administrative Complaint dated March 9, 1990, and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to these proceedings, Respondent, Michael Albert, was engaged in the general practice of dentistry in the State of Florida. Respondent is the holder of license number DN0009815, which was issued by Petitioner and which authorizes him to engage in the practice of dentistry in the State of Florida. His office, known as "9 to 9 Family Dental Centre" 1/ , was located at 7015 Beracasa Way, Boca Raton, Florida 33433. CASE NO. 89-5273 - PATIENT S.D. Patient S.D. is a female who was born November 6, 1950. S.D. went to Respondent for the first time in May 1987, for a general examination and cleaning. S.D. had her four front upper teeth (teeth 7, 8, 9, and 10) capped when she was between 12 and 14 years of age. The cap on one of those teeth had been chipped and had begun to flake, and S.D. wanted that crown replaced. Respondent recommended to S.D. that she have those four caps replaced to maintain a match- up in color and also recommended that she have three other teeth (teeth 12, 14, and 31) capped because those teeth had open margins. S.D. knew that Respondent's recommendation to have teeth 7, 8, 9, and 10 recapped was based solely on aesthetic considerations. S.D. concurred with the recommendations as to teeth 7, 8, 9, and 10, and S.D. agreed to allow Respondent to perform the work that he had recommended on those teeth as well as the recommendations he made as to teeth 12, 14, and 31. Respondent took x-rays of S.D. and ultimately capped the seven teeth he had identified. S.D. was uncertain as to the order in which Respondent performed this work. Respondent's records reflect that S.D. visited Respondent on May 13, 1987, and on May 21, 1987, and that during those visits the Respondent capped teeth 7, 8, 14, and 31. Respondent's records further reflect that S.D. visited Respondent on May 28, 1987, and on June 15, 1987, and that during those visits the Respondent capped teeth 9, 10, and 12. S.D. had no complaints about the work performed by Respondent until she began to develop pain in a tooth that Respondent had capped. She returned to Respondent who replaced the crown on that tooth. The pain that S.D. had experienced went away after the crown was replaced, but S.D. had lost confidence in Respondent. Consequently, S.D. went to another dentist when it was time for her six month checkup. S.D. visited Dr. Clare Garner on March 28, 1988. Dr. Garner was of the opinion that S.D. needed a root canal and a new crown on tooth 31, that she needed a new post and core on tooth 7, and that she needed a root canal on tooth S.D. did not return to Dr. Garner for follow-up care. S.D. visited Dr. Michael Flax for the first time on April 4, 1988. During subsequent visits in April and May of 1988, Dr. Flax performed root canal therapy on teeth 7 and 31. S.D. later experienced pain in tooth 10. Dr. Flax performed an apicalectomy on tooth 10 and determined that tooth 10 had a fracture at the apex which he believed was caused by an oversized post being placed inside of the tooth. Dr. Flax did not know who placed the post. S.D.'s last visit with Dr. Flax was on September 8, 1988. Dr. Flax recommended a general dentist to "take care of her crowns". 2/ There was no competent, substantial evidence that the initial crowns done by Respondent had any open margins. Respondent used a panorex x-ray together with bite-wing x-rays in performing his work on S.D. There are some areas that one can see on a periapical x-ray that one cannot see on a panorex x-ray. Likewise, there are areas that one can see on a panorex x-ray that one cannot see on a periapical x- ray. There was dispute among the experts as to whether Respondent should have also used a periapical x-ray in performing his work on S.D. Petitioner's experts clearly preferred to use periapical x-rays. The greater weight of the evidence, however, is that a panorex x-ray can provide sufficient detail when used with the bite-wing x-rays. There was no evidence that the original panorex x-ray upon which Respondent based his diagnosis had insufficient detail. The record failed to establish by clear and convincing evidence that Respondent's use of the panorex x-rays and the bite-wing x-rays fell below minimum standards of care. Dr. Flax testified that Tooth #7 should have been pulp tested for vitality before any further prosthetics were placed onto the tooth. However, he did not testify that the failure to pulp test Tooth #7 for vitality fell below minimum standards. Dr. Flax also testified that another tooth (which was not identified by number) should have been retreated with a root canal before a crown was placed on top of it. Dr. Flax did not testify that the failure to perform this root canal prior to placing the crown fell below minimum standards. Dr. Flax also testified that there was a crack in the apex of tooth #10 due to an incorrectly placed or incorrectly sized post within the tooth. He did not testify that the placing of the post fell below minimum standards and he did not know whether Respondent placed the post. Symptomatic periapical abscesses can develop at any time. The record fails to establish by clear and convincing evidence that there was a periapical abscess that existed at the time Respondent treated S.D. or that the failure to either treat or diagnosis any abscess was below acceptable standards of care. The record fails to establish by clear and convincing evidence that the root canals performed by Dr. Flax were necessary because of substandard treatment by Respondent. There was no testimony that the records maintained by Respondent were inadequate. CASE NO. 89-6492 - PATIENT E.M. E.M. is a female who 73 years of age when she first visited Respondent on April 14, 1988. The initial visit was prompted by pain from an abscess. Respondent performed root canal therapy on E.M.'s teeth 18 and 26. Between April 14, 1988, and October 5, 1988, Respondent fitted E.M. with a complete denture on her upper arch and with a bridge on her lower. The upper denture placed by Respondent did not fit correctly. On a subsequent visit, Respondent did a chair side reline of E.M.'s upper denture. There was disagreement among the expert witnesses as to whether the chair side reline was appropriate since E.M. was an edentulous patient. This conflict is resolved by finding that the chair side reline performed by Respondent did not fall below minimum standards of care. There was a substantial and significant personality disagreement between E.M. and Respondent and his staff. E.M. was unhappy with the services performed by Respondent and complained that the upper plate did not fit correctly even after the chair reline. As a result of this disagreement, E.M. refused to return to Respondent for follow-up care to adjust her dentures. Although there was testimony that Respondent should have been able to better fit E.M.'s upper denture initially, the greater weight of the evidence and the more persuasive expert testimony is that follow-up care is important for the proper fitting of dentures. Dentures have to be adjusted on the average eight times before the fit is proper and the normal break-in period for dentures is between two and six months. E.M.'s refusal to submit to follow-up treatment contributed in large part to the dissatisfaction she had with the dentures fitted by Respondent. Although E.M. complained of pain, she had not seen any dentist for over two years. At the time she was examined by Dr. Martin Staub, Petitioner's expert, on February 17, 1989, she was still able to wear the dentures that Respondent had prepared for her. Dr. Staub found that the denture adaptation was poor in the post-dam area causing the denture to slip and to have insufficient suction. Dr. Staub found that the denture finish was rough and inconsistent due to excess pieces from the reline adhering to the buccal portion of the denture and being too thick in the palatal area. Despite these findings, Dr. Staub testified that he considered Respondent's performance as a dentist had fallen below minimum standards of care only in that he should have been more patient with E.M. and that he should have been more caring and compassionate. 3/ Dr. Staub's report reflected a finding that there were open margins on teeth 19, 27, and 31. During his cross examination, he admitted that the tooth he reported as being tooth 27 could have been another tooth since Respondent's records reflect that tooth 27 had been extracted. Consequently, there would not have been a margin on tooth 27. Respondent placed the crowns on E.M.'s teeth 19 and 31 with temporary cement because Respondent anticipated that she would require periodontal treatment due to her poor oral hygiene. There was a dispute among the expert witnesses as to whether the margins that Dr. Staub observed were caused by substandard treatment by Respondent. This conflict is resolved by finding that the evidence fails to clearly and convincingly establish that these margins were the result of substandard care by Respondent. These margins could have resulted from causes that should not be attributed to Respondent. For example, there was testimony that the margins could have resulted from the temporary cement washing out or by natural changes in E.M.'s mouth. Petitioner failed to establish that the dental care and treatment rendered E.M. by Respondent fell below minimum standards of care. CASE NO. 90-5801 - PATIENT H.F. H.F. is a female who was born April 6, 1970. H.F. resided in Atlanta, Georgia, at the time of the formal hearing, but she resided in Boca Raton, Florida, with her family when Respondent examined her. H.F. was examined for the first time by Respondent on August 20, 1987. On August 2, 1988, H.F. returned to Respondent for a checkup and cleaning. Respondent diagnosed cavities in H.F.'s teeth numbers 3, 14, 15, 18, 20, 29, and 31, and presented H.F. with a treatment plan requiring all seven teeth to be filled and called for amalgam restorations. In making his diagnosis, Respondent took x-rays of her teeth, visually inspected her mouth, and probed her teeth with the use of an explorer. H.F. did not return to Respondent to have her teeth filled. On August 19, 1988, H.F. went to Dr. Anders K. Finnvold, her mother's dentist, for a second opinion. Dr. Finnvold conducted a thorough examination of H.F. Dr. Finnvold examined a copy of the x-rays that Respondent had taken of H.F., visually inspected her mouth and probed her teeth with the use of an explorer. Dr. Finnvold found no cavities. On October 12, 1989, Dr. Finnvold examined H.F. for the second time and again found no cavities. On August 2 or 3, 1990, Dr. George C. Karr, one of Petitioner's expert witnesses, examined H.F. and found clinical decay on teeth numbers 2, 3, 14, 15, and 18. Dr. Karr did not find any cavity on H.F.'s teeth numbers 20, 29, and Dr. Karr considered H.F. to have poor oral hygiene. Dr. Karr was of the opinion that Respondent had misrepresented H.F.'s condition and that his treatment plan was over-zealous and below minimum standards. A caries is a technical term for a cavity or a hole in the tooth and results from acid dissolution of the enamel and/or dentin structure of a tooth. Poor oral hygiene contributes to the development of caries. H.F. had poor oral hygiene. A caries may be diagnosed by use of an x-ray, by visually inspecting the mouth, by probing the teeth with an explorer, or by a combination of those diagnostic means. In diagnosing caries by use of an explorer, the dentist is making an educated assumption based on the resistance the dentist feels in probing a pit or fissure. In making this educated assumption, the dentist should consider the patient's oral hygiene and the patient's susceptibility to developing cavities. A catch or resistance when using an explorer indicates that either a fissure has become carious or has the probability of becoming carious. If a sharp explorer is used and it hangs on the teeth, that is indicative that there is either decay present or a situation of pre-decay. It is within acceptable standards of care to recommend filling those areas. The evidence was clear that the detection of cavities by use of an explorer is a difficult task, and that legitimate differences of opinion can occur. The disagreements between Respondent, Dr. Finnvold, and Dr. Karr illustrate that difficulty. Respondent used a sharp explorer to examine H.F.'s teeth. The explorer grabbed or stuck on teeth 3, 14, 15, 18, 20, 29, and 31, and he believed that each of those teeth should be treated in the manner he recommended. It is dentally improper to deliberately misrepresent the existence of decay and the need for treatment. However, the fact that Respondent was of the opinion that there existed cavities that Dr. Finnvold and Dr. Karr did not detect does not establish, clearly and convincingly, that Respondent deliberately misrepresented H.F.'s condition or that he failed to practice within acceptable standards of care. CASE NO. 90-5802 - PATIENT L.M. During the summer of 1987, L.M. presented to the Respondent for routine dental care. This was L.M.'s initial visit. Respondent examined L.M., took x-rays, and then advised L.M. that he suspected that she had a little problem with her gums. Respondent directed her to Dr. Rosa, 4/ a periodontist who worked in the same dental office as Respondent. Respondent advised Dr. Rosa that he felt that L.M. had a problem with her gums and asked Dr. Rosa to examine her. Dr. Rosa diagnosed periodontal breakdown and recommended an extensive treatment plan for L.M., which included root planing, dental wedge procedures, and osseous surgery. The estimate for the work to be performed was given to L.M. on a form which reflected that it was from "9 to 9 Dental Centre". Although it was established that "9 to 9 Dental Centre" was the name of the dental office in which Respondent practiced, and that L.M. associated that name with that of Respondent, there was no showing as to how or why Respondent should be held responsible for acts of Dr. Rosa. The evidence clearly establishes that Respondent was not acting below accepted standards merely in recommending that a periodontist with whom he worked examine a patient he thought may have a periodontal problem. The record does not establish that Respondent misrepresented L.M.'s condition when he asked Dr. Rosa to examine her. Petitioner's experts who later examined L.M. established that L.M. did not have periodontal problems that would justify the recommended treatment plan proposed by Dr. Rosa.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of fact contained herein and which dismisses all charges brought against Respondent in Case No. 89-5273, which dismisses all charges brought against Respondent in Case No. 89-6492, which dismisses all charges brought against Respondent in Case No. 90-5801, and which dismisses all charges brought against Respondent in Case No. 90-5802. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of November, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1991.
The Issue Whether or not on or before January 7, 1978, the Respondent, James P. Haas, was offering to practice dentistry, and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center, in violation of Sections 466.24(3)(n) and 466.36, Florida Statutes. Whether or not on or before January 7, 1978, the Respondent, James P. Haas, maintained a telephone listing whereby he offered to practice dentistry as D.A.D. Denture Center at 101 Palm Springs Drive, Longwood, Florida, and whether or not he continues to maintain said listing, in violation of Sections 466.24(3)(g) and 466.27(5), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, one Bernie Morlock has been employed by the Respondent, James P. Haas, to perform dental services at a time when the said Bernie Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida. Further, whether or not Bernie Morlock, while employed by the Respondent, practiced dentistry as defined in Section 466.04, Florida Statutes, to the extent of: Taking impressions of the human teeth and jaws. Placing dentures and dental appliances in patients' mouths and adjusting or attempting to adjust same. Diagnosing or professing to diagnose the physical condition of the teeth and jaws of patients. Finally, whether or not the Respondent knowingly allowed the practice of dentistry by Bernie Morlock in violation of Section 466.02, Florida Statutes, and in further violation of Section 466.24(3)(d) and (e), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, the Respondent, James P. Haas, has employed unlicensed personnel to perform dental services for patients, to-wit: orthodontic treatment, which services constitute the practice of dentistry under Section 466.04, Florida Statutes. Further, whether or not if these services were performed by unlicensed persons, were they performed with the full knowledge and consent of the Respondent, thereby constituting a violation on the part of the Respondent of Sections 466.24(3)(d) and (e), Florida Statutes. (The Amended Accusation which charges the Respondent contained a certain Count III; however, no testimony was offered in support of that allegation and at the conclusion of the formal hearing, the Petitioner, through its counsel, voluntarily withdrew that count from consideration. This voluntary dismissal was unopposed by the Respondent.)
Findings Of Fact The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Division of Professions, Board of Dentistry, is an agency of the state created for the purposes of protecting the public health, safety and welfare of the citizens of the State of Florida, to the extent that practice of dentistry in the state and dental hygiene are subject to the regulation and control of the Petitioner in the public interest. The authority for such regulation is set forth in Chapter 466, Florida Statutes, and those rules of the Florida Administrative Code related thereto. The Respondent, James P. Haas, is licensed by the Florida State Board of Dentistry to practice dentistry in the State of Florida. The Petitioner, by an Amended Accusation, has charged the Respondent, James P. Haas, with various violations of provisions of Chapter 466, Florida Statutes, and the Respondent has requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, which request has been granted and a hearing held on February 15 and 16, 1979. The first of the allegations states that on or before January 7, 1978, the Respondent was offering to practice dentistry and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center. The facts reveal that Dr. Haas made an arrangement with an organization known as Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky, wherein he agreed to coordinate the placement of advertisements for the benefit of that corporation and in turn the corporation agreed to refer patients to Dr. Haas for his treatment. The advertising spoken of consisted of an ad in the Winter Park, Florida, telephone directory yellow pages and certain newspaper advertising through the Orlando Sentinel of Orlando, Florida. The advertising in the telephone directory was placed in the fall of 1977 and a copy of that yellow page advertising may be found as Petitioner's Exhibit No. 2 admitted into evidence. The Petitioner's Exhibit No. 1 admitted into evidence contains a copy of the format for the telephone yellow page advertising, as contemplated by Dr. Haas through his agreement with Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky. The listing of the telephone number was of the number in Harredsberg, Kentucky, and those individuals at that number in turn made the referrals to Dr. Haas's office located at 101 Palm Springs Drive, Longwood, Florida. An example of the newspaper advertising may be found in the Petitioner's Exhibit No. 3 admitted into evidence at page 161-I, a copy of the Sentinal Star Progress Edition of December 18, 1977. In that advertising the same number is given as indicated in the aforementioned telephone telephone ad, with the difference being that Delivering Affordable Dentistry, Inc., is given as the trade name as opposed to D.A.D. Denture Center, which was found in the telephone advertisement. Dr. Haas maintained a separate checking account for D.A.D. Denture Center, the name of his affiliation with Delivering Affordable Dentistry, Inc. The payments for services made by those patients referred through the D.A.D. Denture Center process, were placed into the D.A.D. Denture Center operating account of Dr. Haas. Those persons authorized to make withdrawals from that account were Dr. Haas and his employee, Bernie Morlock, and checks were drawn from that account under the authority of Dr. Haas. The overall income and expanses of D.A.D. Denture Center, operated by Dr. Haas, and of his general practice in the name of James P. Haas-sole proprietor, were combined and were under the control and authority of Dr. Haas. The dental office located in Longwood, Florida, was identified as the office of James P. Haas, D.D.S., and also by a placard indicating the office to be a D.A.D. Denture Center. Finally, those patients who called for service under D.A.D. Denture Center were charged by different fee structure and were listed in a separate appointment book, than that appointment hook for the Respondent through his general practice, James P. Haas, D.D.S. The Respondent was knowledgeable of the arrangement to treat patients under the assumed name of D.A.D. Denture Center at the address in Longwood, Florida, and in fact practiced dentistry under that assumed name and at that location as alleged in Count I of the Amended Accusation. This constituted a violation of Section 466.36, Florida Statutes, which states: "Practicing dentistry under assumed name; penalties.-- On and after the passage of this chapter, it shall be unlawful for any person or persons to practice or offer to practice dentistry under any name except his or her own proper name, which shall be the name used in his or her license certificate granted to him or her as a dentist as provided in this chapter, and unlawful to use the name of any company, association, corporation, clinic, trade name, or business name in connection with the practice of dentistry as defined in this chapter, provided, nothing herein contained shall be so construed as to prevent two or more licensed dentists from associating to- gether for the practice of dentistry, each in his or her own proper name. The violation of any of the provisions of this section by any dentist shall subject such dentist to suspen- sion or revocation of his or her license." The advertisement placed in the Winter Park, Florida, telephone directory, which is sham as Petitioner's Exhibit No. 2 admitted into evidence, was placed with the knowledge of the Respondent and with the intention by the Respondent that the advertisement be made. This advertisement pertained to the 1978 telephone directory for Winter Park, Florida. Under these facts, the Petitioner has charged the Respondent with a violation of Section 466.27(5), Florida Statutes. That provision reads: "466.27(5) Telephone listings shall be con- fined to the local telephone directories. Such listings shall be limited to the den- tist's name, dental degree, 'D.D.S.' or 'D.M.D.,' using the abbreviation only, the word 'dentist,' 'dentistry,' or 'general dentistry,' any specialty as approved by the board to which the dentist confines his practice exclusively, office location, resi- dence and office telephone numbers, and residence address and may include his member- ship in a local dental society if in accord with local customs." A review of the language of this section, in view of the fact that the advertising in the telephone directory inured to the benefit of the Respondent by the process of the referral system spoken of above, demonstrates that the telephone listing was for the benefit of Dr. Haas and was not in keeping with the requirements of this subsection. This constituted advertising professional services and the practice of dentistry in a manner not expressly authorized by Chapter 466, Florida Statutes, and was therefore in violation of Section 466.24(3)(g), Florida Statutes. One of the employees of the Respondent who worked in the office at 101 Palm Springs Drive, Longwood, Florida, was Bernie Morlock. Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida at any time relevant to the allegations in the Amended Accusation. Nonetheless, Morlock practiced dentistry as defined by Section 466.04, Florida Statutes, and did so in the office of the Respondent in Longwood, Florida, with the knowledge and consent of the Respondent. The arrangement which was condoned by the Respondent allowed for Morlock to have patients scheduled for him for the purpose of the preparation of dentures through the referral system, D.A.D. Denture Center, which was part of Dr. Haas's Longwood, Florida, office. (An example of the written schedules may be found in the Petitioner's Exhibit No. 5 admitted into evidence.) Dr. Haas had instructed that these patients be scheduled to be seen by Bernie Morlock. Some of these patients were being seen by Dr. Haas's office for the first time and were attended by Bernie Morlock from this initial visit to the conclusion of the case, at which time the patients were given their dentures. Morlock's involvement with patients included diagnosis of the physical condition of the teeth and jaws of the patients; taking impressions of patients' teeth, both algenate and working model impressions; the placement of dentures and other dental appliances in the patients' mouths and the adjustment to those dentures and dental appliances, and the discussion of the case with the patient. Most of the work that Morlock did was done at a time when Dr. Haas was not in attendance in the aforementioned office and was done without supervision from any licensed dentist. This process undertaxen by Bernie Morlock happened on numerous occasions. The patients were considered to be Morlock's patients and the patients only saw licensed dentists for the purpose of extracting teeth or other dental procedures unconnected with the fabrication and try-in and adjustment to the dentures. These actions on the part of Bernie Morlock took place during the time period alleged in Count IV of the Amended Accusation. By allowing Bernie Morlock to attend patients in the fashion that Morlock did, the Respondent was willfully negligent in the practice of dentistry within the moaning of Section 466.24(3)(d), Florida Statutes, and in addition was guilty of a violation of Section 466.24(e), Florida Statutes, which states: "Employing or permitting any unlicensed per- son or persons to perform any work in his office which would constitute the practice of dentistry or dental hygiene, except a dental auxiliary pursuant to the provisions of this chapter." During the period of time alleged in Count V of the Amended Accusation, the Respondent employed dental hygienists Vic Simmons and Mary Simmons at his office in Longwood, Florida. Although they wore dental hygienists, these individuals were not licensed to practice dentistry or dental hygiene within the State of Florida. Notwithstanding this absence of a license, the Simmonses practiced dentistry in the Longwood office within the meaning of Section 466.04, Florida Statutes. This included having certain schedules set for them as indicated by Petitioner's Exhibit No. 5 admitted into evidence. This is an example of the schedule for the Simmonses under the title, "Ortho". This scheduling was with the knowledge of Dr. Haas, who had arranged for the Simmonses to come and treat orthodontic patients in his office. The Simmonses came to the location of the Respondent's office two days a month, of which Dr. Haas was in the Longwood office one of those days. These orthodontic patients would be seen initially by Dr. Haas and then treated for their condition by the Simmonses. Some of the patients first seen by the Simmonses arrived at the office without any form of braces in the mouth of the patient. The procedures that the Simmonses then performed were done without supervision by a licensed dentist. By that it is meant that the Simmonses were performing the dental services without the licensed dentist being in the room. The Simmonses, in the pursuit of orthodontic dental practice, placed bands and changed beads, cemented hands and placed arch wires; all with the knowledge and consent of the Respondent. Under the circumstances involved in the employment of the Simmonses, it has been demonstrated that the Respondent is guilty of willful negligence in the practice of dentistry as prescribed in Section 466.24(3)(d), Florida Statutes. The Respondent is also guilty of a violation of Section 466.24(3)(e), Florida Statutes, in that he employed and permitted unlicensed persons to perform work in his office which would constitute the practice of dentistry. The proposed findings of fact, conclusions of law and recommendation offered by the parties have been revied prior to the rendition of this Recommended Order. To the extent that the proposals conform to the findings herein, they have been utilized in developing the Recommended Order. To the extent that the proposals are inconsistent with the findings herein, they are rejected.
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 point value to each criterion; it should also regrade procedure 3 giving consideration only to the grades of examiners 038, 02 and 048; all other requests for relief should be DENIED. DONE and ORDERED this 10th day of January, 1983, 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 10th day of January, 1983.
Findings Of Fact Petitioner was an applicant for licensure by examination to practice dentistry in the State of Florida. The practical examination, which is the portion here contested, consisted of 11 procedures, each of which is graded separately by three examiners. Petitioner took the dental examination in December, 1983, and obtained a total overall grade of 2.93 (Exhibit 3). A grade of 3.0 is required to pass the examination. He is here contesting only procedures No. 01 in which he received grades from the three examiners of 3, 3, and 0 (Exhibit 1); and procedure No. 05 in which he received grades of 2, 3, and 0 from three different examiners. Examiners for the dental examination are all currently licensed dentists in the State of Florida who have been extensively trained and standardized by the Department of Professional Regulation. A standardization exercise takes place immediately prior to each examination during which the examiners grade identical procedures and discuss any grade variances to eliminate, as far as possible, any discrepancies in interpretation of the grading criteria. Examiners are selected based on their experience as examiners and their ability to grade without extremes of harshness or leniency. Candidates are informed of the grading criteria prior to the examination through the notice to appear (Exhibit 4) and the applicable laws and rules which are sent by the Office of Examiner Services to all candidates prior to the administration of the examination. In procedure No. 01 (Exhibit 1) one of the examiners found caries not removed in the preparation process, noted on the grade sheet where the caries was located, and gave a mandatory zero for this procedure. Although the other examiners did not see this caries, and gave grades of 3, it was in a difficult place to see and feel with the explorer. The examiner who found the caries submitted a note to the monitor (Exhibit 7) to have all decay removed before the tooth was filled and the monitor's notation on Exhibit 7 indicates this was done. In procedure No. 05 (Exhibit 2) which involved cleaning a specified number of teeth, one examiner found stain and root roughness and gave a grade of 2; a second examiner found root roughness and gave a grade of 3; while the third examiner found supra-gingival calculus, root roughness and subgingival calculus, and gave a grade of 0. One of the expert witnesses who testified was the examiner who graded Petitioner a failing grade of 2 on this procedure. Since he did not actually see subgingival calculus but saw stain and felt the rough tooth, he did not give a zero mark which he would have given had he also seen the subgingival calculus. The Notice to Appear (Exhibit 4) and the rules sent to the candidates are clear that all subgingival and supra-gingival foreign particles must be removed and a grade of zero is mandatory if the procedure is not completed, which would include removal of all calculus. The comments on the grade sheets support the grades awarded. Here, two of the three examiners gave Petitioner a failing grade on procedure No. 05 and the fact that only one of the examiners saw the subgingival calculus does not indicate this grade is erroneous. These grades were not very different but merely reflect different degrees of similar conditions as they were observed by the examiners.
Findings Of Fact During the summer of 1982, Petitioner, Habib H. Ghahremannezhad, of Thibodaux, Louisiana, sent a letter to the Respondent requesting information on the requirements to take the Florida dental examination. He had been advised by a representative of the American Dental Association that foreign dentists could take the examination. 1/ In response to his letter, the Respondent sent him the required application forms, which had a submission deadline in late September, 1982. Petitioner submitted them on time as required; and just a few weeks before the examination, in November, 1982, he received further instructions from Respondent which included the requirement that he, the candidate, bring with him to the examination a stipulated number of real human teeth in what could be described as perfect shape. Teeth of this nature are difficult to get; and though Petitioner called many practicing dentists in the area where he lived and also contacted the local dental school, he was unable to procure the appropriately preserved teeth within the short period of time between his receipt of notification of the requirement and the test. As a result, he was required to purchase a human skull from a medical supply house, from which he extracted the required teeth. These skulls are prepared for use by medical students and are dried out. The teeth in them, therefore, are brittle and fragile. Though he stored them in a glycerine/water solution up to the examination, this could not and did not restore already dehydrated, dead, brittle teeth to their former condition. The appropriate teeth would have been freshly extracted and thereafter stored in a mixture of glycerine and water which would have preserved their resiliency and rendered them not brittle and subject to easy breakage. There was no evidence presented, however, to show that Petitioner received his instructions any later than other candidates who suffered under the same handicaps as he in procuring appropriate teeth. In fact, he admits he was not singled out for late instructions, and the other candidates had the same problems. The mannequin examination consisted of at least nine different procedures. Each procedure was performed by the candidate with a monitor in the area. When the procedures were completed, they were thereafter graded anonymously (each procedure model was marked only with the candidate's examination number, not the name) by three separate examiners who independently, out of the presence of each other (and who were also identified only by a number), assigned a numerical grade to each procedure based on criteria set out on a prepared grading sheet. Under the rules for this examination, a grade of 3.0 out of a range from 0 to 5 is required to achieve a passing score. Respondent achieved a grade of 2.71, which was a failing grade and which was arrived at by averaging the three grades for each procedure, adding these nine averages and dividing by nine. Petitioner scored, as follows: (a) Procedure 01 Examiner 003 - 2 Examiner 071 - 3 average 2.67 Examiner 072 - 3 (b) Procedure 02 Examiner 072 - 3 Examiner 071 - 3 average 3.0 Examiner 008 - 3 (c) Procedure 03 Examiner 072 - 1 Examiner 071 - 1 average 0.67 Examiner 008 - 0 (d) Procedure 04 Examiner 008 - 2 Examiner 071 - 1 average 2.0 Examiner 072 - 3 (e) Procedure 05 Examiner 072 - 4 Examiner ,071 - 4 average 4.0 Examiner 008 - 4 (f) Procedure 06 Examiner 059 - 5 Examiner 066 - 3 average 4.33 Examiner 037 - 5 (g) Procedure 07 Examiner 059 - 3 Examiner 066 - 3 average 3.67 Examiner 037 - 5 (h) Procedure 08 Examiner 059 - 3 Examiner 066 - 4 average 4.0 Examiner 037 - 5 (i) Procedure 09 Examiner 059 - 0 Examiner 066 - 0 average 0.33 Examiner 037 - 1 Petitioner makes numerous allegations regarding the fairness of the examination and what he considers to be discrimination against foreign dental students. He produced, however, no evidence save his own opinion to support these claims except in the case of the instructions (Petitioner's Exhibit 1), which, on Page 3 at Paragraph 7, state that a candidate who fails this examination two times will not be eligible to take the remaining examinations for licensure "except for a candidate who graduated from the University of Havana prior to 1962, who may take [this] examination an unlimited number of times." Petitioner claims this provision discriminates against foreign dentists. If any discrimination is shown, it is clearly reverse discrimination in favor of older Cuban dentists, a decision which is an approved policy of the Respondent. Consequently, there is no showing whatever that Petitioner was in any way discriminated against. Petitioner also contests, however, the grades given him on Procedures 3 and 9. Procedure 3 was a "Dental Class III preparation for a composite restoration on a maxillary central incisor." Here, the tooth Petitioner had for preparation was one of those fragile teeth which had dried out and was brittle. As a result, the tooth broke as he was working on it. At this point, he showed his problem to the monitor, who advised him to include that area in the preparation. He did that, as instructed, and received a low grade on his procedure, which he contends was the fault of the instructions given him by the examiner. Procedure 3 was designed to test the candidate's ability to demonstrate an acceptable preparation to Respondent's standards. This preparation would be a minimal preparation which would be for a very small cavity. Petitioner was graded low on this procedure by all three examiners, who each made additional handwritten comments on the form. All comments related to excessive depth of the preparation, which is not related to the width and size of the preparation. These latter conditions could, indeed, be related to the instructions of the monitor and, if they were the only comments, might justify adjustment. However, Petitioner made his preparation too deep, in fact exposing the pulp (nerve) of the tooth. This defect is not related to the size of the preparation as increased by the instructions of the monitor to include the area in the preparation. By itself, pulpal exposure is sufficient to cause a grade of 0 for this procedure. Here, the groove was so deep and so grossly oversized it went beyond any tolerance which might be given for a situation where, like here, the examinee has no idea, because of the dead tooth and no X rays, how close to the surface the pulp is. Further, two of the three grade sheets bear the notation "SMN," which means "saw monitor's notes." This indicates that before awarding a grade, these two examiners were aware of the problem that Petitioner had and that the monitor had advised him to include the break area in the procedure. Even after making allowances for that, two of the examiners graded Petitioner's work as "1," and the other gave him "0." These grades are consistent and within normal deviation, and all are failing grades. In light of this, one cannot conclude the rating for this procedure was improper so as to merit upward adjustment. As to Procedure 9, this was to prepare a "wax-up for a cast-gold bridge on the above [formerly] prepared teeth. . ." Petitioner contends he did as directed, completed the procedure, and turned it in. In an actual clinical situation, this work would not be done in the mouth of the patient, but for examination purposes, the candidates were directed to make the wax pattern directly in the model-- a far more difficult and rarely done procedure. However, the grading criteria take into consideration the conditions under which the examinee has to work in determining a pass or fail grade. This procedure has been changed with the 1983 examination. Candidates will no longer be required to work under this previous, more difficult method. After Petitioner completed the procedure, he turned it in and left. When the first examiner looked at the device prepared by Petitioner and attempted to take it apart, he broke it. Petitioner was awarded a grade of 0 by two examiners and a "1" by the third. He contends that since his wax model was broken by the first examiner, this was not his fault, and he should not have been given failing grades. He states that when he handed the pattern in, it was intact and, contra to claims of the examiner, he does not believe the pattern broke as a result of the area of cohesion being too small, as this item was graded as passing in the prior procedure. In addition, Petitioner contends that even if the wax cohesion was insufficient, this still does not justify a "0," since there were at least three other major areas which should be considered. However, review of the grading sheets, at least for Examiners 059 and 037, shows that numerous other deficiencies were found in Petitioner's procedure here, aliunde the wax cohesion and breakage, and these other deficiencies would justify a failing grade--even a "0." In the area of the broken wax pattern, however, examiners are indoctrinated as to all procedures to be tested the day before the examination and go over them thoroughly in advance. As to wax patterns, they are told at this time that the pattern may be removed, but only using "utmost care." Here, the candidate is asked to make a wax pattern for a 3/4 crown for one tooth, the back attachment to be waxed to a full crown. The stability of the pattern to withstand withdrawal is related to how well the procedure is waxed. In the opinion of Dr. Agnini, the Respondent's expert, sufficient wax could have been inserted to strengthen the wax pattern as it was being built under exam conditions. The examiner's (059) comments were that he broke the pattern and that the attachment was poor. It was the poor attachment that caused the device to break. Review showed that it was insufficiently waxed (See sheet for 059, Comment 5d.), and this did not meet the criteria. Respondent's witness concedes the possibility that the wax pattern breaking influenced in a negative fashion the judgment of the graders. However, as previously found, there were several other identified deficiencies on this procedure, and the low grades awarded rate to the procedure in its entirety--not solely to the fracture. There is no showing this procedure was unfairly or improperly graded. Although the examiners are not told how to withdraw the pattern during the standardization briefing other than to do it carefully, all examiners are licensed dentists and should know how to remove a wax pattern.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That a final order be entered by the Board of Dentistry finding that Petitioner has failed to achieve a passing score on the December, 1982, Dental Mannequin Examination and upholding the grade awarded to him on that examination. RECOMMENDED this 8th day of November, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1983.
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 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
