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BOARD OF DENTISTRY vs. A. C. PORTERFIELD, 75-000047 (1975)
Division of Administrative Hearings, Florida Number: 75-000047 Latest Update: Oct. 30, 1975

Findings Of Fact A. C. Porterfield currently holds Dental Laboratory Registration Certificate No. 698 for the Edgewater Dental Laboratory, said certificate having been issued on December 5, 1974 by the Florida State Board of Dentistry. A. C. Porterfield is the owner of the Edgewater Dental Laboratory. A. C. Porter field obtained registration of Edgewater Dental Laboratory in accordance with an application for dental laboratory registration which was filed with the Florida State Board of Dentistry. In his application A. C. Porterfield gave the answer "no" to the following question: "Has any owner, partner, officer, director, stockholder, or employee ever been a party to any civil, criminal, or administrative proceeding involving any violation of any statute, rule, or regulation governing the practice of any profession, or of any violation involving the regulation of narcotics or other drugs?" In his application A. C. Porterfield gave the answer no to the following question: "Has any owner, partner, officer, director, stockholder, or employee ever been convicted of any offense involving moral turpitude?" On June 16, 1966, A. C. Porterfield pleaded guilty to an information charging him with the crime of illegal practice of dentistry. Porterfield was adjudged guilty of that offense, and was sentenced to serve one year in prison. On September 11, 1968, A. C. Porterfield was granted a full and complete pardon, and his full and complete civil rights were restored to him. Applications for dental laboratory registration are initially processed by the Executive Director of the Board of Dentistry. If no irregularities appear on an application, the Executive Director processes the application and issues a registration certificate. If irregularities do appear on the application, the Executive Director forwards the application to the members of the Board for further action. The application for registration filed by A. C. Porterfield was processed in this manner. No irregularities appeared on the face of the application, and the registration certificate was therefore issued by the Executive Director. If either of the questions set out above had been answered in the affirmative, the Executive Director would have forwarded the application to the members of the Board for further action. If the application had been forwarded to members of the Board it would have received careful consideration by them, and at least some members of the Board would have voted not to issue the registration certificate. There was not sufficient evidence adduced at the hearing to substantiate a finding that A. C. Porterfield intentionally misled the Board by answering the above questions in the negative. Porterfield apparently did not read the questions carefully, and may have been con fused about the effect of his pardon. It is evident that the answers to the questions were erroneous. If the questions had been answered affirmatively, the application would have been processed differently, and may have been denied.

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DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs EDWARD WALTERS, D.D.S., 06-002694PL (2006)
Division of Administrative Hearings, Florida Filed:Fort McCoy, Florida Jul. 26, 2006 Number: 06-002694PL Latest Update: Jan. 10, 2025
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BOARD OF DENTISTRY vs PHILLIP K. PARSONS, 91-003100 (1991)
Division of Administrative Hearings, Florida Filed:Keystone Heights, Florida May 17, 1991 Number: 91-003100 Latest Update: Feb. 19, 1993

The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

Findings Of Fact Respondent Phillip Kibbee Parsons holds a dentist's license issued by petitioner, No. DN 0003193, Petitioner's Exhibit No. 1, and has at all pertinent times. Also at all pertinent times, he has been engaged in the private practice of dentistry in Keystone Heights, Florida. In May of 1986, Bruce Robert McHollan made his first visit to Dr. Parsons' office, to "have [his] teeth checked and to see if [he] needed any work done." T.10. Dr. Parsons caused radiographs to be taken, and Mr. McHollan's teeth were cleaned on this initial visit. When Dr. Parsons suggested replacing his fillings with "non-mercury amalgam fillings," (T.11), Mr. McHollan rejected the idea, and told Dr. Parsons he "was only interested in having decay . . . [and] any cavities . . . repaired." T.11. During two visits in September of 1986 Dr. Parsons placed or replaced nine fillings in Mr. McHollan's teeth. At the time, Mr. McHollan assumed this work was necessary to repair damage done by tooth decay, and the evidence did not establish otherwise. The following year and again on June 8, 1989, Mr. McHollan returned. He had his teeth cleaned on both occasions and, on June 8, 1989, Dr. Parsons who caused a second set of radiographs to be taken that day, advised Mr. McHollan that he needed additional fillings. Under the impression that these fillings were needed on account of decay that had developed since the earlier fillings, Mr. McHollan authorized Dr. Parsons to proceed. He submitted to six fillings on June 13, 1989, and another ten fillings on July 25, 1989. Eventually he noticed that his original fillings had all been replaced. Dr. Parsons' testimony at hearing that the original fillings all leaked and required replacement was uncontroverted. When Mr. McHollan returned to Dr. Parsons' office on August 1, 1989, to discuss his dental health, Dr. Parsons told him "that there w[ere] at least nine [more] areas where there was decay and needed to be filled, but he [Dr. Parsons] couldn't be sure of the total amount until he installed a rubber dam." T.15. Estimating the cost of additional restorations, Dr. Parsons continued, "Let's be conservative and let's say there are 12 more," id., then jotted down the following: ESTIMATE: 8/1/89 BRUCE McHOLLAN 12 90 1080 Petitioner's Exhibit No. 4. He wrote this estimate on a piece of paper on which his name and address are printed. At the time, Dr. Parsons charged $90 per filling. Suspicious about the need for additional fillings, Mr. McHollan went to his mother's dentist, George W. Boring, for a second opinion. On September 8, 1989, Dr. Boring examined Mr. McHollan's teeth and two bite-wing radiographs he had taken of them that day. He found no decay nor any evidence of decalcification or other demineralization. Later asked to compare radiographs taken in his office on September 8, 1989, with copies of those taken in Dr. Parsons' office on June 13, 1989, Dr. Boring concluded that they "basically looked the same." T.47. Cavities or carious conditions do not always show up on x-rays; in fact, "as often as not," (T.4a) they cannot be detected in this fashion. On December 7, 1989, Mr. McHollan sent Dr. Parsons a letter, the body of which began, "Send me my complete dental office records and all of my x-rays as soon as possible." Petitioner's Exhibit No. 5. He received x-rays taken in Dr. Parsons' office on June 13, 1989, but obtained no other records directly from Dr. Parsons' office. Later a collection agency sent Mr. McHollan copies of some, but not all, of the records Dr. Parson had maintained on him. In performing the restorations in the summer of 1989, Dr. Parsons had used rubber dams. A rubber dam permits isolation of a tooth surface so that the dentist can dry it for work (or observation) free of a film of saliva. Both Dr. Parsons and his assistant of twelve years, Pamela Slocumb, saw "white spots" on dry surfaces of Mr. McHollan's teeth, but neither saw carious lesions penetrating to the dentin. Expert testimony established that white spots on dry teeth evince demineralization. "[A]ccording to dental textbooks," (T.168E) demineralization constitutes active decay. In the early stages, demineralization usually is not very visible to the eye on a wet tooth, and either isolation with a rubber dam or isolation with cotton rolls, and then drying the tooth, would demonstrate this, whereas to the naked eye and, for that matter, even to the little sharp explorer, . . . if they were wet, they probably wouldn't be observable. T.190. Demineralization can lead to further decay, but it can also be a transitory condition: [C]ertain of the chemicals that are in the enamel are also dissolved in the saliva, and under certain circumstances . . . the calcium and other products in the saliva, will redeposit in these areas, and will actually build it back up. T.192. Remineralization can occur very rapidly, (T.193) and easily be completed over a period as long as that which elapsed between Dr. Parsons' last examination and the examination Dr. Boring performed. On October 29, 1990, some fourteen months after Dr. Parsons told him he needed at least nine fillings, Mr. McHollan's teeth had "moderate plaque and some stain," but not the kind of stain sometimes incorporated into the structure of the teeth in the course of remineralization. On October 29, 1990, a third dentist, Hugh B. Avant, examined Mr. McHollan's mouth as well as roentgenograms taken that day, bite-wing views from either side and three periapical views. On the cheek side of the upper left wisdom tooth, one of the places on which Dr. Parsons had seen white spots, Dr. Avant found a carious lesion of moderate size, which had penetrated the enamel into the dentin. He found no other carious lesions. In keeping with the standard of care for a general dentist practicing in Keystone Heights and elsewhere in that part of Florida, teeth require restoration by a dentist once a carious lesion penetrates the enamel into the dentin. Both Doctors Avant and Boring adhere to this standard. Filling a tooth which has demineralized but has no carious lesion would "not generally" be in conformity with the standard, at least the standard DPR's expert is "accustomed to." T.110. DPR's expert testified: "I don't think it's the standard of practice to start filling all areas like that, just because you think they are susceptible and they have some decalcification." T.112. But the patient's history may have a bearing. Dr. Bliss, a former member of the Board of Dentistry, testified for respondent, specifically with reference to Mr. McHollan and in light of his particular history, that "in a patient like this . . . it would not be below the standard to recommend that these [white-spotted] areas be cleaned and restored." T.189. He further testified that he had "had patients where I have identified these areas, and in my extreme conservatism, didn't do something, and within a month's time, it had gone into the dentin." T.200.

Recommendation It is, accordingly, in keeping with Rule 21G-13.005(3)(v), Florida Administrative Code, RECOMMENDED: That the Board of Dentistry impose a fine of five hundred dollars ($500), reprimand respondent, and place him on probation for a period of three years. DONE and ENTERED this 28th day of October, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1992. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 17, 18, 19, 20, 24, 27, 28, 29, 30, 31, 32, 37, 38, 39, 40, 41, 42 and 44 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 13, whether Dr. Parsons had a recollection concerning the use of an explorer was not established. With respect to petitioner's proposed finding of fact No. 15, Dr. Parsons testified that he filled teeth when there was a history of severe decay and decalcification, and he felt further decay was likely, but he did not testify to any standard on page 180. Petitioner's proposed findings of fact Nos. 16 and 26 pertain to immaterial matters. Petitioner's proposed findings of fact Nos. 21, 22, 23, 33, 34, 35 and 36 pertain to subordinate matters. Petitioner's proposed findings of fact Nos. 25 and 43 have been rejected as unsupported by the evidence cited. Respondent's proposed findings of fact Nos. 1, 2, 3, 6, 7, 9, 10, 13, 14 and 16 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, the testimony was that "these decalcified areas" would not have been visible if wet. Respondent's proposed findings of fact Nos. 5 and 11 were not convincingly disproven. With respect to respondent's proposed finding of fact No. 8, there were nine, not twelve, surfaces. With respect to respondent's proposed finding of fact No. 12, there are other ways to dry teeth for observation. Respondent's proposed finding of fact No. 15 relates to a subordinate matter. COPIES FURNISHED: Anna Cam Fentriss, Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, FL 32303-6313 Salvatore A. Carpino, Esquire One North Dale Mabry, Suite 1010 Tampa, FL 33609 William Buckhalt, Executive Director Board of Dentistry 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792

Florida Laws (2) 120.57466.028
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NEDA RAEISIAN vs BOARD OF DENTISTRY, 98-001324 (1998)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Mar. 19, 1998 Number: 98-001324 Latest Update: Jul. 06, 2004

The Issue Whether the Petitioner should receive on the the clinical portion of the examination additional credit, which is sufficient to receive a passing grade on the December 1997 dental licensure examination.

Findings Of Fact Petitioner, Neda Raeisian, was a candidate for the dental licensure examination administered by the State of Florida in December 1997. The dental examination administered in December 1997 consisted of three parts: a "Florida Laws & Rules" part, an "Oral Diagnosis" part, and a "Clinical" part. The Petitioner received passing scores on the "Florida Laws & Rules" and "Oral Diagnosis" parts of the examination. Petitioner received a score of 2.95 on the Clinical part of the examination. A score of 3.00 was required on the Clinical part of the examination. The Petitioner failed the Clinical portion by .05 of a point, and, therefore, she failed the overall dental examination. Three examiners grade each candidate's clinical portion of the dental examination. Three examiners are used because by averaging the scores of the three examiners, the Respondent is more likely to capture the candidate's true score than by using one or two examiners. Before an examiner may be used for an examination, he or she must be recommended by an existing examiner or by a member of the Board of Dentistry. The proposed examiner may not have any complaints against his or her license and he or she must have been actively practicing and licensed for at least five years in the State of Florida. The examiner must complete an application that is sent to the Board of Dentistry examination committee, where it is then reviewed by the committee, and if approved, the examiner is entered into the pool of examiners. Before every examination, the Respondent conducts a standardization session, which is a process by which examiners are trained to grade using the same internal criteria. The Respondent uses assistant examiner supervisors who are appointed by the Board to train examiners on the different criteria that are used during the examination. The assistant examination supervisors go through and describe what a score of five would be, all the way down to a zero, the different criteria for each of those particular grades, and under what circumstances those grades should be given. After the examiners go through a verbal training, they are shown slides of teeth and told what the score on that procedure should be. After the standardization, there is a post- standardization exercise where the examiners are required to grade five mannequin models to make sure they have been able to internalize the criteria. After the post-standardization exercise, the Respondent evaluates the examiners to determine whether they are acceptable to use during the examination. There are also post-examination checks on the examiner, whereby the Respondent decides whether or not to use the examiners again. The Respondent runs the post-examination statistical checks to make sure that the examiners grade with consistency and reliability. There is generally a very high agreement rate between the examiners. Typically if there is an inconsistency in grading, it is usually the examiner who gives the higher grade that is incorrect because he or she missed an error; any error found by an examiner must be documented. The examiners grade the examination independently of each other; that is, they do not confer with each other while scoring the examination. The examination is also double-blind graded. Double- blind grading is the process through which examiners have no contact with the candidates. The examination is conducted in such a way that there is one clinic that is monitored by a licensed dentist in which the candidates actually perform the procedures. When the candidates are finished a proctor walks the patient over to another clinic where the examiners are located, and the examiners grade the examination. The candidates perform the patient portion of the examination on human beings that they are responsible for bringing in. If the patient has the necessary characteristics, the patient could serve for two different candidates or on two different examinations. The examination is a minimum competency examination. The grading system used during the clinical portion of the examination is as follows: A zero is a complete failure, a one is unacceptable dental procedure; a two is below minimally acceptable dental procedure; a three is minimally acceptable procedure, which is the minimum required to pass the clinical portion; a four is better than minimally acceptable dental procedure; and a five is outstanding dental procedure. An overall score is determine by averaging the three examiners' scores on the eight clinical procedures, putting different weights into a formula, and calculating the final grade. It is required in Board rule that the scores of the examiners be averaged. The Petitioner challenges the score given to her for her performance on Procedure 03, "Amalgam Final Restoration," of the Clinical portion of the examination. The Petitioner performed Procedure 03, the "Amalgam Final Restoration," on a live patient, Ms. Desiree Peacock. The Petitioner's performance on Procedure 03 was graded by three examiners: examiner number 290, identified as Dr. Richard Tomlin, of Pinellas Park, Florida; examiner number 299, identified as Dr. Haychell Saraydar, of Pinellas Park, Florida; and examiner number 176, identified as Dr. Leonard Britten, of Lutz, Florida. The Petitioner received a grade of 4 on a scale of 0-5 for her performance on Procedure 03 by examiner number 290; and a grade of 3 on a scale of 0-5 for her performance on Procedure 3 by examiner number 299. However, she received a grade of 0 on a scale of 0-5 for her performance on Procedure 03 by examiner number 176. The reason the Petitioner was given a score of 0 on procedure 03 by examiner number 176 was that the examiner felt that there was a lack of contact at the amalgam restoration site. The Respondent's dental expert, Jorge H. Miyares, D.D.S., testified that a score of 4 is given on Procedure 3 when, in the judgment of the examiner, there are only minor errors present which will not jeopardize the procedure; that a score of 3 is given on Procedure 03 when, in the judgment of the examiner, the procedure is completed at entry level; and that a score of 0 on Procedure 03 is mandatory if there is a total lack of contact. The examiners are taught and trained to check for contact when grading a candidate's performance on Procedure 03, as a lack of contact is a very significant error that jeopardizes the integrity of the amalgam restoration. There are two different types of contact involved in a Class II Restoration. The type of contact that was referenced by Examiner 176 in his grade documentation sheet is proximal contact. Proximal contact is when a tooth is restored, the proximal tooth next to it must be touching the tooth that has been prepared. Contact is something that either does or does not exist between two teeth. Contact is checked visually and by running a piece of dental floss between the teeth to see if there is resistance. Examiners 290 and 299 would have been required to give the Petitioner a grade of 0 on Procedure 03 if they had found a lack of contact. The findings of examiners 290 and 299 during their review of the Petitioner's performance on Procedure 03 were inconsistent with the findings of examiner 176 (lack of contact) during his review of the Petitioner's performance on Procedure 03. The inconsistency between the findings of examiners 290 and 299 and the findings of examiner 176 during their review of the Petitioner's performance on Procedure 03 were statistically unusual. Respondent performed Procedure 03 on the patient Desiree Peacock. Following the exam, Peacock used dental floss on the affected area and she believed she felt resistance. Although the grading on Procedure 03 of the clinical portion of the examination is inconsistent, the Respondent followed its standard testing procedures for the December 1997 dental examination. The evidence is insufficient to prove that the Respondent's examiner acted arbitrarily or capriciously or with an abuse of discretion in refusing to give the Petitioner a passing grade on procedure 03 of the clinical examination.

Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Petitioner's challenge to the grade assigned her for the clinical portion of the December 1997 dental licensure examination. DONE AND ENTERED this 22nd day of September, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1998. COPIES FURNISHED: Anne Williamson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399 Dr. Neda Raeisian 2161 Lake Debra Drive Apartment 1726 Orlando, Florida 32835 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle Southeast Bin A-02 Tallahassee, Florida 32399-1703

Florida Laws (2) 120.569120.57
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AGENCY FOR HEALTH CARE ADMINISTRATION vs RONALD M. MARINI, D.M.D., P.A., 16-005641MPI (2016)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Sep. 27, 2016 Number: 16-005641MPI Latest Update: May 23, 2019

The Issue Whether Ronald M. Marini, D.M.D., P.A. (Respondent), received Medicaid overpayments that the Agency for Health Care Administration is entitled to recover; and whether sanctions and costs should be imposed against Respondent.

Findings Of Fact The Medicaid program (Medicaid) is a federal and state partnership that funds health care services for qualified individuals. Petitioner is the state agency charged with administering Medicaid in Florida. Petitioner is legally authorized to monitor the activities of Medicaid providers and to recover “overpayments.” Overpayments include reimbursement for services that are not medically necessary, as verified by records existing at the time of service. Petitioner is also empowered to impose sanctions and recover costs against offending providers. During all times relevant hereto, Respondent was a Florida Medicaid provider authorized to provide dental care to Medicaid beneficiaries and to receive reimbursement for covered services. The dental practice of Ronald M. Marini, D.M.D., P.A., is owned by Ronald M. Marini, D.M.D. Dr. Marini has continuously practiced dentistry since graduating in 1967 from the University of Pittsburgh School of Dental Medicine. Dr. Marini’s practice focuses primarily on the treatment of children who have dental coverage through Medicaid. Dr. Marini is not board-certified in any specialty. Pursuant to what is commonly referred to as the “pay- and-chase” system, Petitioner pays Medicaid providers under an honor system for services rendered to Medicaid recipients. If Petitioner subsequently determines that the provider was paid for services rendered which were not in compliance with Medicaid requirements, then Petitioner seeks reimbursement from the provider. The Medicaid Provider Agreement is a voluntary contract between Petitioner and a Medicaid provider. Paragraph 3 of the Medicaid Provider Agreement states that “[t]he provider agrees to comply with local, state, and federal laws, as well as rules, regulations, and statements of policy applicable to the Medicaid program, including the Medicaid Provider Handbooks issued by AHCA.” During the audit period, Respondent was an enrolled Medicaid provider and had a valid Medicaid Provider Agreement with Petitioner. By correspondence to Respondent dated February 27, 2014, Petitioner requested records related to claims billed to Medicaid by Respondent for the audit period March 1, 2010, through August 31, 2012. Respondent provided documents in response to Petitioner’s request for records. Petitioner completed a review of the records that Respondent submitted, and on July 9, 2014, issued a Preliminary Audit Report (PAR). Petitioner advised in the PAR that it believed Respondent was overpaid in the amount of $590,008.15. In response to the PAR, Respondent submitted additional information to the Agency. After receipt and evaluation of Respondent’s additional information, Petitioner issued its FAR finding that Respondent was overpaid $590,008.15 during the audit period (later reduced to $513,246.91). The FAR also informed Respondent that Petitioner was imposing a fine of $118,001.63 as a sanction for violation of Florida Administrative Code Rule 59G-9.070(7)(e), and was seeking reimbursement of costs in the amount of $2,223.64. The FAR states six grounds on which Petitioner seeks to recoup monies paid to Respondent, and provides as follows: The 2007 and 2011 Dental Services Coverage and Limitations Handbooks, page 2-2, specify that Medicaid reimburses for services that are individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, not in excess of the recipient's needs, and reflect the level of services that can be safely furnished. A review of your records by a peer consultant 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. The 2008 Florida Medicaid Provider General Handbook, pages 5-8 and 2-57, defines incomplete records as records that lack documentation that all requirements or conditions for service provision have been met. A review of your records revealed that documentation for some services for which you billed and received payment was incomplete or not provided. Payments made to you for these services are considered an overpayment. The 2008 Florida Medicaid Provider General Handbook, page 5-4, states 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 records 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. The 2008 Florida Medicaid Provider General Handbook, page 5-4, requires 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 records revealed that some services were double billed. Payments made to you for these services are considered an overpayment. The 2008 Florida Medicaid Provider General Handbook, page 5-4, requires 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 records revealed that some services rendered were erroneously coded. The appropriate code was applied and the payment adjusted, if applicable. Payments made to you for these services, in excess of the adjusted amount, are considered an overpayment. The 2007 and 2011 Dental Services Coverage and Limitations Handbooks, pages 2- 34 and 2-35 respectively, limit reimbursement for restorative services to essential services necessary to restore and maintain dental health; one restoration per tooth surface except for the occlusal surface of permanent maxillary 1st and 2nd molars; one resin restoration for a mesial or distal lesion; and one posterior one-surface resin restoration every three years per tooth number or letter per tooth surface. A review of your dental records revealed that you billed and received payment for a restoration in excess of the maximum. Payment made to you for this service is considered an overpayment. Mark Kuhl, D.M.D., was offered and accepted as Petitioner's expert in the areas of rendering dental care and dental medical necessity with respect to Medicaid overpayment cases. Dr. Kuhl was also offered and accepted as a peer reviewer pursuant to section 409.9131, Florida Statutes. Since 1985, Dr. Kuhl has been continuously licensed to practice dentistry in the State of Florida. Dr. Kuhl is not board-certified in any specialty and operates a general dentistry practice where he treats pediatric patients. W. Michael Ingalls, D.D.S., was offered and accepted as Respondent's “expert in dentistry with a focus on pediatric dentistry.” Dr. Ingalls was not, however, recognized as an expert as to matters pertaining to Medicaid coding for services rendered. Dr. Ingalls has practiced dentistry continuously since graduating from the University of Washington School of Dentistry in 1984. Dr. Ingalls has been board-certified by the American Board of Pediatric Dentistry since 1997. Dr. Ingalls has owned and operated his own pediatric dental practice in Lake Mary, Florida, since 1987. During the audit period, there were two versions of the Florida Medicaid Provider General Handbook in effect. As applied to the instant dispute, there are no material differences between the two General Handbooks so, unless otherwise indicated, they will collectively be referred to as the General Handbook. During the audit period, there were also two versions of The Florida Medicaid Provider Dental Services Coverage and Limitations Handbook in effect. As applied to the instant dispute, there are no material differences between the two Dental Handbooks so, unless otherwise indicated, they will collectively be referred to as the Dental Handbook. Missing or Incomplete Documentation The General Handbook provides, in part, as follows: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to . . . present a claim . . . that is for goods and services that . . . [a]re documented by records made at the time the goods or services were provided demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The General Handbook also provides that “[m]edical records must state the necessity for and the extent of services provided [and] the following requirements may vary according to the service rendered: Description of what was done during the visit; History; Physical assessment; Chief Complaint on each visit; Diagnostic tests and results; Diagnosis; Treatment plan, including prescription; Medications, supplies, scheduling frequency for follow-up or other services; Progress reports, treatment rendered; The author of each (medical record) entry must be identified and must authenticate his entry by signature, written initials or computer entry; Dates of service; and Referrals to other services. The General Handbook does not define what constitutes a medical record. The General Handbook further provides that a Medicaid provider has an affirmative duty to provide services “in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state and local law.” For the applicable audit period, section 466.018(3), Florida Statutes (2011), required, in part, that “[e]very dentist shall maintain written dental records and medical history records which justify the course of treatment of the patient.” Additionally, section 466.028(1)(m) subjects a dentist to disciplinary action for “[f]ailing to keep written dental records and medical history records justifying the course of treatment of the patient.” Section 466.018(3) makes clear that dental records and medical history records must justify, or explain why, a particular course of treatment was undertaken by a dental care provider. Respondent utilizes software to capture the services provided to his patients. The software has a “patient notes master” section, which allows the user to post narrative information about a patient, including information related to patient evaluation and insurance claims status. The software also has a “patient chart” section which reflects information such as dates of service, a description of services provided (with Current Dental Terminology codes, hereinafter CDT code(s)), the tooth and surface involved, and the treatment status of the affected tooth. The patient chart section also has a colorized tooth chart that visually depicts information found in the description, tooth, and surface sections of the patient chart. The “patient notes master” section and all parts of the “patient chart,” collectively and substantively, comprise the patient medical record contemplated by the General and Dental Handbooks, respectively. There is nothing in Petitioner’s rules, regulations, General or Dental Handbooks, or section 466.018(3), that requires patient treatment information to be gleaned only from the patient notes section of a patient’s dental record. Recipient 1 (Not in Patient Notes) On January 14, 2011, patient K.A., who at the time was an existing patient, was treated by Respondent. According to the dental records, Respondent performed a “periodic oral evaluation [CDT code 0120],” took several x-rays, and removed “plaque, calculus and stains from the tooth structures in the primary and transitional dentition [CDT code 1120].” The results of the evaluation revealed that K.A. had “decay” in teeth “S” and “A.” K.A. was given a topical fluoride treatment (CDT code 1203) and oral hygiene instructions (CDT code 1330). Petitioner denied treatment related to CDT codes 1203 and 1330 on the basis that there is no documentation in the “patient notes” to warrant payment for these services. While it is true that the “patient notes” portion of Respondent’s dental record for K.A. offers no justification or otherwise documents the need for CDT codes 1203 and 1330, the “patient chart” portion of K.A.’s dental record clearly documents that these services were provided to K.A. Payment for these services should be allowed. On February 15, 2012, K.A. was treated by Respondent. According to the dental record, Respondent performed a “periodic oral evaluation [CDT code 0120],” took several X-rays, and removed “plaque, calculus and stains from the tooth structures in the primary and transitional dentition [CDT code 1120].” The results of the evaluation revealed that K.A. had “decay” in teeth 14, 19 and 30. K.A. was given a topical fluoride treatment (CDT code 1203) and oral hygiene instructions (CDT code 1330). Petitioner denied treatment related to CDT codes 0120, 1203 and 1330 on the basis that there is no documentation in the “patient notes” to warrant payment for these services. While it is true that the “patient notes” portion of Respondent’s dental record for K.A. offers no justification or otherwise documents the need for CDT codes 0120, 1203 and 1330, the “patient chart” portion of K.A.’s dental record clearly documents that these services were provided by Respondent to K.A. Payment for these services should be allowed. On March 9, 2012, K.A. was treated by Respondent. According to the patient chart, Respondent applied a resin-based composite to K.A.’s teeth 14, 19 and 30 (CDT codes 2391 and 2392). Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the “patient notes” to warrant payment. While it is true that the “patient notes” portion of Respondent’s dental record for K.A. fails to mention that these services were provided, the “patient chart” portion of K.A.’s dental record clearly documents that these services were provided by Respondent to K.A. and payment for these services should be allowed. Recipient 2 (Not in Patient Notes) On April 5, 2011, E.B. was treated by Respondent. According to the dental record, Respondent performed a “comprehensive oral evaluation [CDT code 0145]” and removed “plaque, calculus and stains from the tooth structures in the primary and transitional dentition [CDT code 1120].” E.B. was given a topical fluoride treatment (CDT code 1203) and oral hygiene instructions (CDT code 1330). Petitioner denied payment for the fluoride treatment on the basis that there is no documentation in the “patient notes” for these services. While it is true that the “patient notes” portion of Respondent’s dental record for E.B. fails to mention the fluoride treatment, the “patient chart” portion of E.B.’s dental record clearly documents that these services were provided by Respondent to E.B. and payment for these services should be allowed. Recipient 11 (Not in Patient Notes) On April 26 and May 23, 2012, P.D. was treated by Respondent. According to the dental record, Respondent, during these visits, applied “resin-based composite – two surface, posterior [CDT code 2393],” to the distal and occlusal surfaces of teeth 4 and 5, and the mesial and occlusal surfaces of tooth 3. Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the “patient notes” to warrant payment. While it is true that the “patient notes” portion of Respondent’s dental record for P.D. fails to mention that these services were provided, the “patient chart” portion of P.D.’s dental record clearly documents that these services were provided and payment for these services should be allowed. Recipient 20 (Not in Record) On February 7, 2012, M.J. was treated by Respondent. According to the dental record, Respondent performed an “extraction, erupted tooth or exposed root [CDT code 7140]” for teeth D and E. Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the patient record to warrant payment. The “patient chart” portion of M.J.’s dental record clearly documents that these services were provided and payment for the same should be allowed. Recipient 23 (Not in Patient Notes) On July 5, 2012, M.M. was treated by Respondent. According to the dental record, Respondent applied a “resin-based composite – three surfaces, anterior [CDT code 2393]” to teeth E and F. The dental record also reflects that behavior management techniques (CDT code 9920) were applied during the procedure. Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the “patient notes” to warrant payment. While it is true that the “patient notes” portion of Respondent’s dental record for M.M. fails to mention that these services were provided, the “patient chart” portion of M.M.’s dental record clearly documents that these services were provided and payment for these services should therefore be allowed. Recipient 24 (Not in Patient Notes) On October 19, 2010, A.M. was treated by Respondent. According to the dental record, Respondent applied a “resin-based composite – two surfaces, posterior [CDT code 2392],” to teeth A and J. The dental record also shows that a “pulp cap – indirect [CDT code 3120]” was applied to tooth A. Petitioner denied payment for treatment related to the application of the pulp cap on the basis that there is no documentation of the same in the patient “notes.” While it is true that the “patient notes” portion of Respondent’s dental record for A.M. fails to mention the application of a pulp cap, the “patient chart” portion of A.M.’s dental record clearly documents that this service was provided and payment for should therefore be allowed. Recipient 25 (Not in Patient Notes) On February 16, 2011, I.O. was treated by Respondent. According to the dental record, Respondent applied a “resin-based composite – two surfaces, posterior [CDT code 2392],” to the occlusal/lingual and distal/buccal surfaces of tooth A. Petitioner denied payment for these services on the basis that there is no documentation of the same in the “patient notes.” While it is true that the “patient notes” portion of Respondent’s dental record for I.O. fails to mention that these services were provided, the “patient chart” portion of I.O.’s dental record clearly documents that these services were provided and payment for the same should be allowed. Recipient 26 (Not in Patient Notes) On November 1, 2010, C.R. was treated by Respondent. According to the dental record, Respondent, during these visits, applied “resin-based composite – one surface, posterior [CDT code 2391],” to the occlusal surfaces of teeth L and S, and both the occlusal and buccal surfaces of teeth K and T. Petitioner denied payment for treatment related to the application of the resin- based composite to the occlusal surface for tooth S on the basis that there is no documentation of this service in the “patient notes.” While it is true that the “patient notes” portion of Respondent’s dental record for C.R. fails to mention that this service was provided, the “patient chart” portion of C.R.’s dental record clearly documents that this service was provided and payment for the same should be allowed. Services Billed at Lower Level The Dental Handbook provides in part that “[a] comprehensive oral evaluation is used by a dentist when evaluating a patient comprehensively. This applies to new patients and to established patients who have a significant change in health conditions or who have been absent from treatment for three or more years.” The Dental handbook also states that “[a] provider may only be reimbursed for a comprehensive oral evaluation once every three years for the same recipient.” Respondent contends that Petitioner erroneously adjusted payment for this service because the comprehensive evaluations were conducted more than three years apart. Recipient 20 – J.M. On February 2, 2012, Respondent treated J.M. For this service date, Respondent billed for a comprehensive oral evaluation (CDT code 0150). According to J.M.’s dental record, Respondent previously performed a comprehensive evaluation on January 5, 2009. J.M.’s dental record also indicates that between these dates, Respondent treated her on seven different occasions. While it is true that the time between comprehensive evaluations is more than three years, Petitioner properly adjusted payment for the February 2, 2012, service because J.M. was not absent from treatment during this interval. Recipient 22 – S.M. On July 18, 2011, Respondent treated S.M. For this service date, Respondent billed for a comprehensive oral evaluation (CDT code 0150). According to S.M.’s dental record, Respondent previously performed a comprehensive evaluation on January 14, 2011. Petitioner adjusted the July 18, 2011, service to a “periodic oral evaluation [CDT code 0120],” which reimburses at a lower rate. Respondent does not dispute that Petitioner properly adjusted the reimbursement rate for this service. Not Medically Necessary Applicable Medicaid regulations require that “medical necessity” be documented by specific records made at the time the services were provided, and that the records fully identify the medical basis and the need for the services. In other words, a provider must document the rationale for conducting a particular service at the time of making the decision to perform the same. Petitioner asserts that Respondent failed to submit sufficient documentation to establish that the disputed charges were for "medically necessary" services. FAR Finding No. 3 involves CDT codes 0240, 0250 and 0260. These codes reflect services for radiograph/diagnostic imaging procedures that “[s]hould be taken only for clinical reasons as determined by the patient’s dentist.” According to the Dental Handbook, these radiographs will not, however, be reimbursed for caries (decay) detection. The Dental Handbook also states that “[r]eimbursement for a complete series of intraoral radiographs is limited to once in a three (3) year period, per recipient.” Petitioner asserts that Respondent failed to establish that the use of CDT codes 0240, 0250, and 0260 was medically necessary for certain claims related to patients 1, 5, 8, 9, 10, 14, 20, 22, 26, 31, and 32. Respondent contends that services related to the disputed charges were necessary to monitor growth and development and screen for oral pathology because children’s dentition is rapidly changing during early adolescence. In other words, Respondent suggests that medical necessity exists for the radiographs essentially for no other reason than because the child is of a particular age. According to Dr. Kuhl, the ADA Guidelines, which are authoritative and instructive, provide that for radiographs to be medically necessary there should be sufficient documentation in the dental record to indicate the specific, individualized indication for why Respondent billed for the radiograph procedure and any results that were obtained pursuant to that procedure. Dr. Kuhl testified that Respondent’s dental records for each of the disputed claims provide no indication for or need as to why the X-rays were taken. According to Respondent’s expert, Dr. Ingalls, the standard of care for taking occlusal X-rays is that they are to be taken “when there was decay present or trauma had occurred” and that they are not taken simply as screening X-rays. The following testimony from Dr. Ingalls is instructive: Q: Okay. If you were to take an intraoral occlusal radiograph, would you document why you took it? A: I would have a description of what was found from taking it, which would say why you took it. You’d have a reason to take it to begin with and then you write a comment of what was found. Q: And do you write that in the narrative form? A: I have it in the narrative form. Sometimes, again, if I gave you an example, a child comes who’s fallen and hit their front teeth on the floor at home and displaced or broken a tooth or even the parent was concerned with bleeding from the gumline, I would take an occlusal radiograph to record what was there, partly to assure that there was nothing that required treatment and also to provide a baseline for future comparison where I would take future occlusal radiographs to monitor any changes over time. And I would have a record of that traumatic incident, every part of it; where it occurred, how it occurred, all of the examination findings around it on a trauma evaluation and the outcome of the findings in the x-ray and any treatment plan and instructions given to the parent. Q: Would you say that approach to medical records is standard? A: Within my specialty, that is the guideline that is taught to us that we follow so that we do not miss anything. Hearing Transcript pp. 411-413. The opinions of Dr. Kuhl and Dr. Inglass are consistent and provide that a medical basis and need for the X-rays at issue must be established and documented, and that the X-rays in question are not to be used as a screening device as suggested by Respondent. Recipient 1 Recipient 1, K.A., had four claims that were denied as to CDT codes 0240, 0250, and 0260. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 5 Recipient 5, S.C., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Recipient 8 Recipient 8, D.C., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Recipient 9 Recipient 9, D.D., had two claims that were denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 10 Recipient 10, G.D., had two claims that were denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 14 Recipient 14, E.E., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Recipient 20 Recipient 20, M.J., had six claims that were denied as to CDT codes 0240, 0250, and 0260. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 22 Recipient 22, K.A., had two claims that were denied. Each claim was billed using CDT code 0250. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 26 Recipient 26, C.R., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Recipient 31 Recipient 31, J.R., had two claims that were denied. Each claim was billed using CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 32 Recipient 32, J.R., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Erroneous Coding According to the Dental Handbook, “[s]ealants are applied to pits and fissures of permanent teeth to prevent caries [and] [t]he enamel surface of the tooth may be mechanically or chemically[,] or mechanically and chemically prepared.” The Dental Handbook also states that “[s]ealants applied to deciduous (primary) teeth will not be reimbursed by Medicaid.” CDT code D1351 (sealant – per tooth) describes this service as “[mechanically and/or chemically prepared enamel surface sealed to prevent decay.” As for resin restorations, the Dental Handbook provides that “Medicaid may reimburse for . . . [r]esin restorations . . . [and that] [t]he fee for resin restorations includes local anesthesia, tooth preparation, routine lining and base, polishing, and the use of any adhesive, such as amalgam bonding agents.” As a restriction on the use of resin restorations, the Handbook provides that “[r]esin restorations may be used to restore carious lesions that extend into the dentin or areas that are deeply eroded into dentin.” CDT codes 2391/2392 provide that the resin composite is “[u]sed to restore a carious lesion into the dentin or a deeply eroded area into the dentin.” In comparing sealant and resin restoration services, it is evident that sealants are for the enamel surface of the tooth whereas restorations, when undertaken to eliminate carious lesions, are appropriate only when the lesions extend into the dentin. In understanding the sealant and restoration provisions of the Dental Handbook, it is also evident that in order to be reimbursed for either CDT code 2391 or 2392 there must be sufficient justification of carious intrusion into the dentin and in the absence of such justification it may be appropriate to adjust the service to CDT code 1351, unless, of course, the service relates to a deciduous tooth. FAR finding No. 5 involves CDT codes 2391, 2392 and 1351 and applies to recipients 8, 13, 19, 22, 23, 24, 26, 28, 29, and 32. Petitioner, based on Dr. Kuhl’s analysis, adjusted reimbursement for CDT codes D2391 and D2392 downward to CDT code D1351 when the following criteria were present: X-rays did not show any decay, Respondent’s dental record for the recipient did not specifically indicate that any decay was removed, Respondent’s dental record for the recipient stated that only a “flowable” resin was used, and Respondent’s dental record for the recipient did not indicate that anesthesia was used. Dr. Kuhl evaluated the criteria and, when all four were met, he concluded that it was very likely that any decay present did not extend into the dentin as required for CDT code descriptions and applicable Florida Medicaid Handbooks. Dr. Kuhl’s protocol for identifying claims that do not meet the requirements for codes 2391 and 2392 is consistent with the requirements of Florida Medicaid Handbooks and is credited. There are, however, instances where Dr. Kuhl made downward adjustments for claims when, according to the requirements of the Dental Handbook, the claims should not have been paid. Recipient 8 For recipient 8, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 6 through 11. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved in these claims (A, J, K, L, S, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. Recipient 13 For recipient 13, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 8 through 13, 18, 20, 21, and 24 through 26. This opinion is credited. Dr. Kuhl erred, however, in adjusting claims 8, 9, 12, 13, and 24 through 26 to CDT code 1351 because the teeth involved in these claims (A, I, J, K, S, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claims 10, 11, 18, 20, and 21, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims are eligible for reimbursement when sealants are applied under appropriate circumstances. Recipient 19 For recipient 19, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 1 through 5. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved in these claims (A, B, J, K, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. Recipient 22 For recipient 22, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code D2391 or D2392 for claims 10, 11, 13, 15, and 16. This opinion is credited. As for claims 10, 11, 13, and 16, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims are eligible for reimbursement when sealants are applied under appropriate circumstances. Claim 15 involved tooth 20, which is not identified in the Dental Handbook as a tooth that is eligible for reimbursement when a sealant is applied. Accordingly, claim 15 should be denied. Recipient 23 For recipient 23, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code D2391 or D2392 for claims 13 through 15, and 17. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved in these claims (K, L, S, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. Recipient 24 For recipient 24, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 13, 17, and 21. This opinion is credited. Dr. Kuhl erred, however, in adjusting claims 13 and 17 to CDT code 1351 because the teeth involved in these claims (A and J) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claim 21, Dr. Kuhl correctly adjusted this claim downward from CDT code 2392 to CDT code D2940 because the patient record reflects that a sedative filling was applied and not a resin-based composite restoration as billed. Recipient 26 For recipient 26, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 9 through 11. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved (K, L, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. Recipient 28 For recipient 28, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 8, 9, and 11. This opinion is credited. Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved (3, 14, and 30) are eligible for reimbursement when sealants are applied under appropriate circumstances. Recipient 29 For recipient 29, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 4, 5, 8, and 10. This opinion is credited. Dr. Kuhl erred, however, in adjusting claims 8 and 10 to CDT code 1351 because the teeth involved in these claims (K and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claims 4 and 5, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims (3 and 19) are eligible for reimbursement when sealants are applied under appropriate circumstances. Recipient 32 For recipient 32, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 9 through 12, 28, 30, and 32. This opinion is credited. Dr. Kuhl erred however in adjusting claims 11 and 32 to CDT code 1351 because the teeth involved in these claims (J and S) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claims 12 and 28, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims (14 and 30) are eligible for reimbursement when sealants are applied under appropriate circumstances. As for claim 30, Dr. Kuhl erred in adjusting this claim downward to CDT code 1351 because it involves tooth 30 which was addressed in claim 12. The Handbook provides that “[s]ealants may be reimbursed once per three years, per tooth.” The date of service for claim 12 is October 19, 2010, and the date of service for claim 30 is March 28, 2012. Claim 30 was not submitted more than three years after claim 12, and it should therefore be denied. Duplicate Claims Certain claims were denied by Petitioner as being duplicates of other claims. These claims relate to FAR finding No. 4, which involves CDT Codes 2391, 2392, and 1351. Recipient 8 For recipient 8, claims 12 and 13 were billed and reimbursed under CDT code 2391 for teeth K and T. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because tooth K was addressed in claim 8 (as previously discussed) and tooth T was addressed in claim 11 (as previously discussed), Dr. Kuhl correctly opined that claims 12 and 13 are duplicate claims that should be denied. Recipient 13 For recipient 13, claims 14 through 17, and 19, were billed and reimbursed under CDT code 2391 for teeth K, T, 3 and 30. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because tooth K was addressed in claim 12 (as previously discussed), tooth T was addressed in claim 13 (as previously discussed), tooth 3 was addressed in claim 18 (as previously discussed), and tooth 30 was addressed in claim 11 (as previously discussed), Dr. Kuhl correctly opined that claims 14 through 17, and 19 are duplicate claims that should be denied. Recipient 19 For recipient 19, claim 6 was billed and reimbursed under CDT code 2391 for tooth K. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to this tooth. Because tooth K was addressed in claim 8 (as previously discussed), Dr. Kuhl correctly opined that this claim is a duplicate claim that should be denied. Recipient 22 For recipient 22, claims 12 and 14 were billed and reimbursed under CDT code 2392 for teeth 14 and 15. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because the patient record does not support the use of code 2391, it also does not support the use of code 2392. Because tooth 14 was addressed in claim 11 (as previously discussed) and tooth 15 was addressed in claim 13 (as previously discussed), Dr. Kuhl correctly opined that claims 12 and 14 are duplicates that should be denied. Recipient 23 For recipient 23, claim 16 was billed and reimbursed under CDT code 2391 for tooth T. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to this tooth. Because tooth T was addressed in claim 15 (as previously discussed), Dr. Kuhl correctly opined that this claim is a duplicate that should be denied. Recipient 26 For recipient 26, claims 13 and 14 were billed and reimbursed under CDT code 2391 for teeth K and T. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because tooth K was addressed in claim 9 (as previously discussed) and tooth T was addressed in claim 10 (as previously discussed), Dr. Kuhl correctly opined that claims 13 and 14 are duplicates that should be denied. Recipient 28 For recipient 28, claim 10 was billed and reimbursed under CDT code 2391 for tooth 3. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to this tooth. Because tooth 3 was addressed in claim 8 (as previously discussed), Dr. Kuhl correctly opined that this claim is a duplicate that should be denied. Recipient 29 For recipient 29, claims 6 and 7 were billed and reimbursed under CDT code 2392 for teeth 3 and 14. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because the patient record does not support the use of CDT code 2391, it also does not support the use of CDT code 2392. Because tooth 3 was addressed in claim 4 (as previously discussed) and tooth 14 was addressed in claim 15 (as previously discussed), Dr. Kuhl correctly opined that claims 6 and 7 are duplicates that should be denied. Recipient 32 For recipient 32, claims 13 and 31 were billed and reimbursed under CDT code 2391 for teeth 19 and 30, and claim 29 was billed and reimbursed under CDT code 2392 for tooth 14. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 and 2392 for services related to these teeth. Because tooth 14 was addressed in claim 28 (as previously discussed) tooth 19 was addressed in claim 10 (as previously discussed), and tooth 30 was addressed in claims 12 and 30 (as previously discussed), Dr. Kuhl correctly opined that claims 13, 29, and 31 are duplicates that should be denied.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order that: Revises the Final Audit Report consistent with the Findings of Fact and Conclusions of Law set forth herein; Recalculates the total overpayment consistent with the Findings of Fact and Conclusions of Law set forth herein; Requires Respondent to pay interest at the statutorily mandated rate on the recalculated overpayment; and Requires Respondent to pay a fine in the amount of 20 percent of the recalculated overpayment. Pursuant to section 409.913(23)(a), Petitioner is entitled to recover all investigative, legal and expert witness costs. Petitioner has documented costs of $2,223.64, but advises that “[a]dditional costs have been incurred in preparing for and attending the final hearing.” 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 29th day of August, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 29th day of August, 2017.

Florida Laws (7) 120.56920.42409.901409.902409.913466.018466.028
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BOARD OF DENTISTRY vs. JAMES P. HAAS, 78-001032 (1978)
Division of Administrative Hearings, Florida Number: 78-001032 Latest Update: Jul. 16, 1979

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.

Florida Laws (1) 120.57
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ERIC J. SCHUETZ vs AGENCY FOR HEALTH CARE ADMINISTRATION, 97-001759 (1997)
Division of Administrative Hearings, Florida Filed:Sarasota, Florida Mar. 27, 1997 Number: 97-001759 Latest Update: Dec. 04, 1997

The Issue The issue for consideration in this case is whether Petitioner should be awarded a passing grade on the clinical portion of the dental licensing examination given on December 12 through 14, 1996.

Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is a graduate of the University of Florida School of Dentistry and was eligible to sit for the examination for licensure as a dentist in Florida. Petitioner previously has taken and passed the written portion of the dental examination. He has taken the clinical portion of the examination twice and has received a failing grade each time. He is eligible to take the clinical portion alone for a third time, but must do so within a period of 13 months of taking it the second time or must take both the written and oral portions again. Dr. Scheutz first took the examination in June 1996. He received a passing grade in each of those examination portions which dealt with Florida laws and rules and with oral diagnosis. However, he received a grade of 2.31 on the clinical examination portion of the examination, and a passing grade was 3.0. Thereafter, in December 1996 he again took the clinical portion and this time received a grade of 2.71, still below the 3.0 passing grade. Dr. Theodor Simkin is a licensed dentist and consultant to the Board of Dentistry, who has been in the private practice of dentistry since 1950 and in Florida since 1975. He has been involved in the development, administration, and grading of the dental examination in Florida since 1979 and was a supervisor for the December 1996 examination. He is familiar with the standards applied in the clinical portion of the examination and how the examination is given and graded. Petitioner has challenged the grade he received on five separate procedures he performed during the December 1996 examination. The procedures chosen for accomplishment during the examination are not unusual procedures, but are common problems seen on a routine basis by a practicing dentist. Dr. Simkin reviewed the mannequin on which Petitioner did his work and which he presented to the examiners for grading. One of the grades challenged related to a "composite restoration" (Clinical D) for which Petitioner received a grade of 0. In this procedure the candidate is presented with a tooth on a mannequin. The candidate is instructed to cut off a corner of the tooth and then restore that corner with an amalgam restoration. The examiners are not present when the procedure is accomplished, but grade the procedure after completion. Instruction on the procedure is given to the candidate by a monitor who is present in the room but who does not grade the work done. The examination process is accomplished using the candidate number, not the candidate name, so that examiners do not know whose work at which they are looking. Once the procedure is done by the candidate, the mold is packed in the candidate's presence and is then held in the custody of the Board of Dentistry until examined independently by each of three examiners. Once graded, it is then shipped to Tallahassee and kept in a vault until needed, as here, for review by Dr. Simkin and others. Ordinarily, even if dropped, a model will not break. In the instant case, Petitioner performed the procedure on an upper right central incisor. The right corner of the tooth, approximately one-third of the tooth, was cut off and the candidate was instructed to rebuild it with a composite material. When the examiners evaluated Petitioner's work, they found that the filling was not bonded to the tooth and was loose. The loose restoration would be useless to the patient, whereas a properly done restoration should last for at least several years. On a human, the stresses applied to a tooth repair are significant, and the repair must be sufficient to withstand them. Notwithstanding Petitioner's claim that the tooth used was an artificial tooth to which the filling material does not easily bond, Dr. Simkin asserts that the bonding which occurs with a plastic tooth is different from that which occurs in a real tooth but the material can bond to the plastic tooth. He knows of no other complaints by other candidates at this examination of not being able to complete the restoration because the materials would not bond. Petitioner admits that when he did the procedure during the June 1996 examination, the tooth bonded correctly. In light of all the evidence regarding this point, it is found that Petitioner's claim is without merit. Petitioner also challenges his score of 2.0 received for his work on an "amalgam cavity preparation" (Clinical B). This composite score was based on a 2.0 awarded by each of the three examiners. An amalgam preparation is what is done to the tooth to get it ready for filling. In this case, an actual patient, supplied by the examines, had a cavity which was reviewed by the examiners. Once the patient was accepted by the examiners, the candidate then cleaned out the cavity and got it ready for filling. Dr. Simkin's review of the documentation prepared in regard to this candidate's performance of this procedure, in his opinion, supports the grades given by the examiners. Here, Petitioner sent the examiners a note as to what he proposed to do with his patient. Petitioner sought to deviate from a normal preparation due to the location of the caries, and the monitor agreed, as did the examiners. Thereafter, the candidate did the procedure. All three examiners graded his work against his proposal and gave him a failing grade. The examiners determined that his work on this patient merited only a grade of 2.0 because, according to two examiners, the margin of the filling was not separated from the next tooth as required. As to the "posterior endodonture procedure" (Clinical M), Petitioner received an overall score of 1.3. In this procedure, the candidate is required to bring in an extracted tooth which is mounted in an acrylic block. The candidate is to remove the nerve and diseased tissue, clean the cavity, file it, fill the canals, and seal the tooth. This is known as a root canal. In grading a candidate's work, the examiners look to see that the canal is properly cleaned out, is filled properly and sealed with a surface that is slightly shorter than the apex (highest point) of the tooth. On the x-ray taken of Petitioner's sample, it is obvious, according to Dr. Simkin, that one canal is at or short of the apex, but the other is long, and this is considered unacceptable treatment. Even Petitioner agrees. Petitioner received grades of 3.0, 2.0 and 1.0 for an overall failing grade of 2.0 on the "prep. cast restoration" (Clinical F). In this instance, the procedure called for the candidate to install a gold onlay. Normally the surface to which the onlay is to be placed is reduced slightly below the abutting face. Here, though one side was acceptable, Petitioner reduced too much on the other side without reason. Petitioner claims, however, that only one of the three examiners indicated excessive reduction. That determination calls for a very subjective opinion. He cannot understand how the propriety of reduction can be determined without looking into the mouth of a patient. However, Petitioner has presented no evidence in support of his opinion. The fifth challenge relates to the grade Petitioner received in the "pin amalgam pre. procedure" (Clinical G). This involves a situation where one cusp has been removed, and in order to hold a restoration, Repin must be placed in the solid portion of the tooth. The examiners determined that Petitioner's occlusal was too shallow at 1 mm, when it should have gone down 1~ to 2 mm. This, the examiners considered, would not give enough strength to hold the amalgam properly without risk of fracture. Dr. Simkins is of the opinion that Petitioner was subjected to a standardized test which was graded fairly. It would so appear and Petitioner introduced no evidence to the contrary. Ms. Carnes, a psychometrician and an expert in testing and test development who trains examiners to ensure they are consistent in their evaluations, agrees with Dr. Simkins' appraisal. The Department of Business and Professional Regulation tries to insure through its standardization efforts that the approach to grading of each examiner is consistent and that all examiners are grading with the same set of criteria. This was done in preparation for the December 1996 dental examination and a check done after the examination showed it was graded this way. Petitioner cites by way of explanation, if not excuse, that during his senior year in dental school, he was badly injured in an automobile accident and required stitches and several weeks of physical therapy for, among other injuries, a herniated disc. When he recovered sufficiently, he finished his course work and sat for the dental examination in June 1996, passing two of three sections, but not the clinical portion. Dr. Scheutz took the clinical portion of the examination again in December 1996 and again failed to earn a passing score. In his opinion, his knowledge has improved over time, but his procedural skills have diminished over the months due to his injuries. He contends he has work in dentistry he can do which will make accommodations for his physical condition, but does not believe he should have to wait another six months to take the examination again, especially since he would have to again take the entire examination, including those portions he has already passed since at that time more than 13 months from his last examination would have passed. Petitioner contends the clinical testing portion of the examination is too subjective to be valid. He wants to close this chapter in his life, but does not want to deal any more with the Board.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a Final Order denying Petitioner's challenge and sustaining the award of a failing grade on the clinical portion of the dental examination taken by the Petitioner on December 12 through 14, 1996. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Dr. Eric J. Scheutz, pro se 332 Whispering Oaks Court Sarasota, Florida 34232 Karel Baarelag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906-0127 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (3) 120.57466.001466.006
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BRANDY KERN vs BOARD OF DENTISTRY, 98-001067 (1998)
Division of Administrative Hearings, Florida Filed:Vero Beach, Florida Mar. 04, 1998 Number: 98-001067 Latest Update: Jul. 06, 2004

The Issue The issue for determination is whether Petitioner successfully completed the clinical portion of the December 1997 dental hygiene examination.

Findings Of Fact In December 1997, Brandy Kern was a candidate for the dental hygiene examination (Examination). Ms. Kern had completed her dental hygiene studies at the University of Pittsburgh on or about April 29, 1995. She was an excellent student. Prior to making application for the Examination, Ms. Kern had obtained experience in dental hygiene by working as a dental hygienist in at least three dental offices over at least a two-year period in the State of Pennsylvania. Her employers, who were dentists, gave Ms. Kern very positive recommendations. Ms. Kern successfully completed all portions of the Examination, except for the scaling/calculus removal portion of the clinical part of the Examination. As a result, Ms. Kern did not successfully complete the overall Examination. The clinical examination consists of three parts: scaling and calculus removal, polishing, and root planing. The overall score for the clinical examination is determined from all three portions. Scaling and calculus removal counts as 70 per cent of the clinical examination; polishing as 10 percent; and root planing as 20 per cent. Each dental hygiene candidate is graded by three examiners. The clinical portion of Ms. Kern's examination was scored by three examiners. The examiners were 197, 243, and 320. Each examiner is a dental hygienist licensed in the State of Florida and is an experienced dental hygienist. An examiner must be recommended by an existing examiner or by a member of the Board of Dentistry (Board), have no complaints against their license, and be actively practicing. To become an examiner, an application must be completed and submitted to an examination committee of the Board. The committee reviews the application and, if approved, the applicant is placed in a pool of examiners. Before every examination, each examiner is trained in evaluating a procedure to make sure that it is properly performed. The Department of Health (Department) conducts a training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida and are appointed by the Board of Dentistry (Board). To further their training, after the examiners receive their verbal training, the examiners are shown slides of teeth which do not meet the clinical criteria of the examination. To make sure that the examiners have been able to internalize the criteria, following the standardization, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where mannequins are used and the examiners check for errors on the mannequins. After the examiners complete their examination, the Bureau of Testing evaluates the examiners to determine whether the examiners are acceptable to use for the Examination. Subsequent to the Examination, the examiners are scored by the Bureau of Testing. The scoring is based on an examiner's performance wherein the Bureau of Testing examines how every examiner grades with every other examiner to make sure that the examiners are grading with reliability. This review is based on corroborated errors found by an examiner, not on the average errors found by an examiner. The average errors found by an examiner are irrelevant to the examiner's performance in that one examiner may have graded candidates who made numerous errors, while another examiner may have graded candidates who made very few errors. For the Examination, candidates are required to bring human patients on whom the candidates perform the dental procedures. Each examiner grades the Examination independently. The examiners do not confer with each other while scoring the Examination. Furthermore, the Examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored by a licensed dental hygienist. When the candidate completes the procedures, a proctor accompanies the patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. For the scaling/calculus removal portion of the Examination, the grading criteria is that complete removal of all supra and sub-marginal calculus from each tooth, without laceration to the surrounding tissue, is required. If the tooth is not clean and/or if there is damage to the surrounding tissue, the candidate is considered to have made one (1) error. Pursuant to Board rule, each tooth is judged as a whole. Even if a candidate makes three mistakes in performing the procedure on each tooth, e.g., calculus could be above the gum, calculus could be below the gum, and/or the gum could be lacerated, only one (1) error is counted against the candidate. The examiners do not document what error was committed by the candidate, i.e., whether the error is a calculus error or a laceration error. In grading the scaling/calculus removal portion of the Examination, a grade of five is the highest grade that a candidate can receive. A five is given if there are zero to three errors found. A grade of four is given if there are four errors found. A grade of three, which is considered to be minimally competent, is given if there are five errors found. A grade of two is given if there are six errors found. A grade of one is given if there are seven errors found, and a grade of zero is given if eight or more errors are found. For an error to be counted against a candidate, at least two of the three examiners must corroborate the error, i.e., at least two of the examiners must find the error. For Ms. Kern's clinical examination, she was scored by examiners 197, 243, and 320. All three examiners participated in the standardization training and were considered qualified to act as examiners for the Examination. Ms. Kern's examination was double-blind graded. Each examiner independently graded her examination. Examiner 197 found one error. Both examiners 243 and 320 found seven errors each. Examiners 243 and 320 agreed on six of seven teeth on which errors were found. Consequently, Ms. Kern was considered to have committed six errors. A post-examination review of the examiners was conducted. Examiners 243 and 320 were found to be reliable in their scoring. However, examiner 197 was found to be unreliable in his scoring. Examiner 197 was not used again for the Examination. The scoring of six errors made by Ms. Kern on the scaling/calculus removal portion of the Examination is not arbitrary or capricious or an abuse of discretion. The scoring process is not devoid of logic and reason. However, because examiners do not document the type of error committed by a candidate, a candidate has no way of knowing what detail of a procedure was improperly performed. The candidate only knows that a procedure, as a whole, was improperly performed. Consequently, a candidate who desires to re-take the Examination has no idea what procedure needs improvement by the candidate in order to prepare for a re-taking of the Examination.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry enter a final order dismissing Brandy Kern's examination challenge to the clinical portion of the dental hygienist licensure examination administered in December 1997. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998.

Florida Laws (4) 120.569120.57455.217466.007
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