The Issue Whether Petitioner should receive a refund for an alleged overpayment of dental insurance premiums.
Findings Of Fact The Division of State Group Insurance (Division) is the executive agency within the Department of Management Services (Department) that is responsible for the administration of the State Group Insurance Program (Program). Isaacs was first employed with the State of Florida in 1993, and remained employed with the State until March 2011, when he retired. According to Isaacs, when he originally signed up for dental insurance, there were only two options available for employees; an employee could sign up either for “employee” coverage or for “employee plus family” coverage. Isaacs chose “employee plus family” dental coverage, so that he and his spouse would have coverage. During his tenure as a State employee, Isaacs was married and had no children. At all times material to the instant case, Isaacs resided, and received his mail, at 13021 S.W. 116th Street, Miami, Florida, 33186. On January 1, 2005, the State of Florida started using an online system called “People First” to manage State of Florida employee payroll and benefit packages. Every employee and retiree was given a username and password to access the online system. Each employee’s payroll information, leave balances, and benefits information could be seen online. Pursuant to section 110.123(3)(h), every year there is a finite period of time during which State employees can sign up for benefit plans, or change their existing benefit plans, for the upcoming calendar year. This period is called “open enrollment.” Prior to open enrollment every year, People First mails out, to every State employee, a package which contains a personalized benefits statement and a Benefits Guide, which contains information as to all the benefit plans that are being offered for the upcoming calendar year. The benefits statement informs employees of the benefits they currently have and will continue to have during the upcoming calendar year, unless they make changes to their insurance or coverage level. On September 7, 2007, the Division mailed each participant in the dental insurance program a letter explaining significant changes to the dental program. This letter was mailed by first class mail to the address of record for each employee who was then enrolled in the dental program. Isaacs' address of record in People First was his mailing address: 13021 S.W. 116th Street, Miami, Florida, 33186. Isaacs claims that he never received this letter. The undersigned finds this testimony to not be credible, given that Isaacs' address has not changed in 33 years, and he was unaware of any other problems with delivery to this address. The September 2007 letter advised employees that there would be new coverage levels offered in 2008. It stated, in pertinent part: There will be new coverage levels offered in 2008. You may currently be enrolled in a coverage level that will not be offered. The new coverage levels are: ° Employee Only ° Employee + Spouse ° Employee + Child(ren) ° Family You will have the opportunity during the upcoming Open Enrollment to cancel coverage, change your coverage level, or switch to another dental plan. Any change you make will be effective on January 1, 2008. If you take no action, your dental coverage may be changed automatically for 2008. If you are currently enrolled in a coverage level that will not be offered in 2008, you will be enrolled in Family coverage. People First sent Isaacs open enrollment packages in 2007, 2008, 2009, and 2010. The 2008 package, sent on September 17, 2007, included a Benefits Guide which contained all the information as to the change in the dental insurance program. Employees were placed on notice that except for employees who had previously been enrolled for “Employee” coverage, all coverage levels would be moved to “Family” coverage unless the employees made changes during open enrollment. The package included instructions on how to make the coverage changes, and how to verify that those changes had been properly made. Isaacs never changed his dental plan coverage; therefore, he was defaulted to the “Family” coverage as of January 1, 2008. Due to his failure to act, he remained in that coverage until he retired. The open enrollment packages sent to Isaacs for years 2009, 2010, and 2011 included information as to the dental coverage tiers, and a personalized Benefits Statement which indicated which benefit plans Isaacs was enrolled in, and his coverage level. Every year, he could have made changes to his dental insurance coverage, but failed to do so. As of People First going “live” in 2005, all State employees could review their benefits and coverage levels online. Thus, Isaacs, on his state-issued desktop computer, had access to People First, and could have reviewed his coverage levels and benefit plans. Isaacs admitted at hearing that he did not review the open enrollment packages he received every year because he was under the impression, based on advice he was given, that he need not review the information if he was not making any changes to his coverage levels or benefit plans. He added that he was not sure if he even opened all the open enrollment packages that were sent through the years. Isaacs had the responsibility to open, review, and carefully read the open enrollment packages and all correspondence sent to him by his employer. Isaacs was advised of the changes to the dental plan, but did not review the information sent to him. He had ample notice of the change to the dental plan coverage levels, but failed to review the information, and failed to avail himself of the many opportunities he had to adjust the coverage level. He paid for more coverage than he needed because he ignored all the information sent to him, which gave him specific instructions on how to avoid that exact circumstance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services enter an order denying Isaacs' request for a refund for his overpayment of dental insurance premiums. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2011.
The Issue The primary issue in this case is whether the Petitioner should have been given a passing grade on the June 1983 Dental Mannequin examination. A secondary issue is whether the Petitioner should be permitted to take the regular State of Florida dental examination even if he is not entitled to a passing grade on the June 1983 Dental Mannequin examination.
Findings Of Fact On the basis of the testimony of the witnesses and the exhibits received into evidence at the hearing, I make the following findings of fact: The Petitioner, Dr. Angel N. Diaz-Norrman, is a graduate of a foreign dental school. Since his graduation from dental school he has engaged in three years of postgraduate training in the field of dentistry at the University of Miami and at the University of Florida. He has also completed all requirements for a teaching fellowship in the field of general dentistry. He is currently pursuing a program on postgraduate study in the specialty of periodontics at the University of Florida. His grade point average in his periodontic studies is 4.0 for both the didactic and the clinical portions of his studies. The Petitioner has twice taken the State of Florida Dental Mannequin Examination, once in December of 1982 and once in June of 1983. He was assigned a failing grade on both of those examinations. His December 1982 grade was slightly higher than his June 1983 grade. His June 1983 grade was 2.37. The minimum passing grade is 3.00. The State of Florida Dental Mannequin examination is a practical examination which tests several specified clinical skills. The examination consists of ten procedures, of which only nine are grades. Each of the nine graded procedures are graded separately. Each of the nine graded procedures on the examination is independently graded by three examiners. Each examiner assigns a grade of from 0 to 5 to the procedure and the final score for each procedure is determined by averaging the three grades given to that procedure. The final score on the entire examination is determined on the basis of a weighted average as provided in Rule 21G-2.19(1), Florida Administrative Code. 1/ The examiners who grade the State of Florida Dental Mannequin examination are all experienced Florida dentists who are selected by the Board of Dentistry. A person chosen as an examiner must have at least five years experience as a dentist. All persons who are selected to be examiners receive a full day of training in the examination process. They review the criteria by which each procedure is to be judged and they participate in a practice grading exercise. Proposed examiners who do not do a good job on the practice grading exercise are not selected as examiners, but are given other tasks at the examination such as serving as monitors. 2/ The application of the grading criteria is not a mathematically precise procedure. Although some shortcomings on the examination procedures require an automatic grade of 0, there is no mathematical formula for deducting any specific number of points or fractions of points for lesser shortcomings or deviations from an excellent procedure. Rather, the examiners use an holistic approach to the grading of each procedure. During the examination each examiner is required to record the grade assigned to each procedure on a written form. Whenever an examiner assigns a failing score to a procedure, the examiner is required to include on the grading form written comments sufficient to justify the failing grade. The written comments do not have to include everything the examiner thought was wrong with the procedure, but must include enough to justify the failing grade. An examiner is not required to justify a passing grade. When the Petitioner took the Dental Mannequin examination in June of 1983, the grades he received from each examiner on each graded procedure were as follows: Procedure Examiner Examiner Examiner Average No. No. 45 No. 48 No. 80 Grade 1. 1 0 0 0.33 2. 2 5 5 4.00 3. 1 3 3 2.33 4. 3 3 3 3.33 5. 2 1 3 2.00 6. 3 5 5 4.33 7. 1 2 3 2.00 8. 2 1 3 2.00 9. 1 1 1 1.00 8. The average grade given to the Petitioner for his performance on procedures number 1, 2, 5, 7, 8, and 9 was a fair and reasonable grade for his performance on each of those procedures. In other words, the average grades given to the Petitioner on those six procedures were fair and accurate measures of the skills demonstrated by the Petitioner on those procedures. The average grade given to Petitioner for procedure number 3 was higher than it should have been. The quality of the Petitioner's performance on procedure number 3 was such that he should have been given a grade of 1.00 instead of 2.33. The average grade given to Petitioner for procedure number 4 was lower than it should have been. The quality of the Petitioner's performance on procedure number 4 was such that he should have been given a grade of 4.00, instead of 3.33. The average grade given to Petitioner for procedure number 6 was lower than it should have been. The quality of the Petitioner's performance on procedure number 6 was such that he should have been given a grade of 5.00, instead of 4.33. With regard to procedure number 9, the Petitioner misunderstood the instructions and prepared a "wax-up" for a cast gold bridge of a type different than that required by the instructions. Between the time of the June 1983 examination and the time of the hearing the "wax-up" prepared by the Petitioner for procedure number 9 became partially damaged while in the custody of the Respondent.
Recommendation On the basis of all of the foregoing, I recommend that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the June 1983 Dental Mannequin examination is 2.37, a failing grade, and that the Petitioner is not eligible to retake the Dental Mannequin examination or to take the regular dental license examination. DONE AND ENTERED this 4th day of April 1985 at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that the Respondent has violated several statutory provisions by repairing dentures in a licensed dental lab without having obtained the required work order from a licensed dentist.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: At all times relevant and material to this case, the Respondent, Magnolia Iole, held license number DL 0002153 issued by the Department of Professional Regulation, which licensed her to operate as a dental laboratory in the State of Florida. At all times relevant and material to this case, the Respondent's dental laboratory was operated at 201 East Oakland Park Boulevard, Fort Lauderdale, Florida, under the business name of All Emergency Denture Service. On April 11, 1990, an investigator with the Department of Professional Regulation took a broken denture to the Respondent's dental laboratory and asked to have it repaired. The broken denture was a woman's denture that had been obtained by one of the other Department investigators from a local dentist's office. The investigator who presented the broken denture for repair had not seen any dentist regarding the broken denture, nor did the investigator have any work order from a dentist for the repair. On April 11, 1990, an employee of the Respondent's dental laboratory agreed to repair the broken denture that was brought in by the Department investigator. The employee said that the repair would cost $50.00, and that the denture would be ready later than same day. Later that same day two Department investigators returned to the Respondent's dental laboratory, where they met the same employee who had agreed to repair the broken denture. The employee told the investigator who had brought the denture that it would be ready in a few minutes. A few minutes later the employee of Respondent's dental laboratory handed the repaired denture to the investigator who had brought it in earlier the same day. At that time the previously broken denture was completely repaired. Although the Respondent, Magnolia Iole, was not observed on the dental laboratory premises during the events of April 11, 1990, described above, she was aware that such events were taking place, because during a telephone conversation on April 12, 1990, Magnolia Iole admitted to a Department investigator that she had been taking repair work without work orders because she needed the money. A work order for denture repair is an order from a licensed dentist to a dental laboratory directing that certain repair services be performed. The work order is, essentially, a prescription for the performance of specific services. A dental laboratory is not permitted to perform a repair of an intra- oral dental appliance without a work order signed by a licensed dentist. A dental laboratory that repairs a denture without a work order issued by a licensed dentist is engaged in the unauthorized practice of dentistry. Denture repair under such circumstances also constitutes the acceptance and performance of professional responsibilities which the dental laboratory licensee is not competent to perform. Denture repair without a work order issued by a licensed dentist, even when the repairs are excellently accomplished, can prevent the discovery of emerging dental problems and cause them to go untreated to the harm of the patient.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Dentistry enter a final order in this case concluding that the Respondent has violated Sections 466.028(1)(z) and 466.028(1)(bb), Florida Statutes, and imposing an administrative penalty consisting of a six month suspension of the Respondent's license, to be followed by a one year period of probation during which the Respondent shall be required to advise the Board quarterly of all work performed by the Respondent's dental laboratory and shall comply with all statutory and rule provisions governing the activities of dental laboratories. DONE AND ENTERED at Tallahassee, Leon Coun~y, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1991. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Ms. Magnolia T. Iole 531 Northwest 39th Street Oakland Park, Florida 33309 Mr. William Buckhalt, Executive Director Florida Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issue in this case is whether Petitioner should have received a passing score on the June 2001 Florida Dental Licensure Examination, notwithstanding Respondent’s determination that he failed the test.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Siegel, who graduated from dental school in 1999, took the June 2001 Florida Dental Licensure Examination (the “Exam”), which was administered by the Department on June 2 through June 5, 2001. The Exam had two parts, a Clinical Part and a Laws and Rules Part. The Clinical Part was further divided into ten sections, each of which consisted of a separate clinical procedure. The minimum passing score on the Laws and Rules Part was 75.00; on the Clinical Part, a minimum score of 3.00 was required to pass. As calculated by The Department, Siegel scored 70.00 and 1.49, respectively, on the two parts. Thus, according to The Department, Siegel failed both parts of the Exam. Each candidate’s performance on the Clinical Part of the Exam was scored independently by three examiners chosen by the Department.1 These examiners were not informed of any candidate’s identity, nor were the candidates told the examiners’ names; they were not permitted to speak directly to one another while the Exam was being administered. The examiners who graded Siegel’s clinical performance had successfully completed standardization training.2 Additionally, the Department determined, as part of a routine post-Exam statistical review of examiner performance, that these particular examiners were reliable in terms of their consistency in applying the proper grading criteria.3 To determine a candidate’s overall score on the Clinical Part of the Exam, the Department first computed the average of the three examiners’ raw scores for each individual procedure. Each average score was then adjusted using the percentages prescribed in Rule 64B5-2.013, Florida Administrative Code, to arrive at a weighted mean score. A candidate’s overall score on the Clinical Part was equal to the sum of his or her weighted mean scores for each section. At hearing, Siegel challenged just one clinical procedure, the Patient Amalgam Restoration.4 An amalgam restoration is a dental procedure that involves filling a cavity so that the affected tooth is restored to proper form and function. After this procedure, the treated tooth should closely resemble its original size and shape. Siegel’s raw scores on this procedure were very low. One of the examiners who testified at the hearing, a dentist with some 40 years’ experience, had awarded Siegel no points for the Patient Amalgam Restoration procedure because, after completion of the work, the restoration was fractured and the patient’s gingival margin was open. Another examiner, a dentist with 35 years of experience, explained at hearing that Siegel's work on the amalgam restoration was a failure; in this examiner’s opinion, the patient's tooth was actually in worse condition after Siegel had finished the procedure. The testimony of these examiners was credible and is accepted as being truthful and accurate. Accordingly, it is found that Siegel failed to perform the amalgam restoration with the minimum degree of skill and competence required for licensure as a dentist in this state. For his part, Siegel contended that one of the examiners (presumably the one who did not testify at hearing) had caused the restoration to fracture. Siegel based this theory on the account of his patient, Scott Graham, who testified that one of the examiners had "picked" at his tooth with a sharp instrument.5 (Mr. Graham is not a dentist.) Mr. Graham, however, had not complained about any alleged examiner misconduct at the time of the examination. Likewise, no examiner ever reported any such irregularity. In the absence of contemporaneous corroborating evidence, created before it became known that Siegel had failed the Exam, Mr. Graham’s testimony is simply not persuasive evidence of examiner misconduct. To be sure, it is theoretically possible that an examiner might damage a candidate’s work and then attempt to cover up his error by blaming the candidate. The evidence in this case, however, is not nearly sufficient to support such a finding. To underscore the point: Siegel’s theory is speculative at best. As for the remaining clinical procedures, while Siegel complained that his scores were not a reliable or accurate measure of his performance, he failed to introduce any persuasive evidence in support of this allegation. At bottom, the trier is not persuaded that the scores Siegel received were arbitrary, capricious, unfair, inconsistent, or otherwise objectionable. To the contrary, the evidence in the record demonstrates convincingly that the scores Siegel received on this Exam were reliable, correct, impartially rendered, and consistent with the grading practices used in scoring other candidates’ work.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Department advise the Board Of Dentistry to enter a Final Order (a) holding that Siegel's administrative challenge to the scores he received on the June 2001 Florida Dental Licensure Examination is without factual and legal merit and (b) declaring that Siegel failed said examination. DONE AND ENTERED this 19th day of February, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2002.
Findings Of Fact At all times relevant hereto, Respondent, Harold I. Odle, held dental license number DN 0004379 issued by Petitioner, Department of Professional Regulation, Board of Dentistry. Respondent is engaged in the practice of dentistry at 3900 South Broadway, Fort Myers, Florida. On or about August 13, 1980, Wilfred H. Bauer went to Respondent's dental office where Respondent extracted Bauer's tooth number 17. On or about August 21, 1980, Bauer returned to Odle's office for removal of sutures placed in his mouth in connection with the extraction performed on August 13. The removal procedure was performed by Julia Hover, an employee in Respondent's office. It was not disclosed whether Hover was licensed as a dentist or dental hygienist in the State of Florida. The complainant in this case (Bauer) died in August, 1982 and accordingly did not appear and testify at the final hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the motion for directed verdict be GRANTED and the administrative complaint against Respondent be DISMISSED. DONE and ENTERED this 29th day of September, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1982.
The Issue The issue for determination is whether Petitioner successfully completed the clinical portion of the December 1997 dental hygiene examination.
Findings Of Fact In December 1997, Brandy Kern was a candidate for the dental hygiene examination (Examination). Ms. Kern had completed her dental hygiene studies at the University of Pittsburgh on or about April 29, 1995. She was an excellent student. Prior to making application for the Examination, Ms. Kern had obtained experience in dental hygiene by working as a dental hygienist in at least three dental offices over at least a two-year period in the State of Pennsylvania. Her employers, who were dentists, gave Ms. Kern very positive recommendations. Ms. Kern successfully completed all portions of the Examination, except for the scaling/calculus removal portion of the clinical part of the Examination. As a result, Ms. Kern did not successfully complete the overall Examination. The clinical examination consists of three parts: scaling and calculus removal, polishing, and root planing. The overall score for the clinical examination is determined from all three portions. Scaling and calculus removal counts as 70 per cent of the clinical examination; polishing as 10 percent; and root planing as 20 per cent. Each dental hygiene candidate is graded by three examiners. The clinical portion of Ms. Kern's examination was scored by three examiners. The examiners were 197, 243, and 320. Each examiner is a dental hygienist licensed in the State of Florida and is an experienced dental hygienist. An examiner must be recommended by an existing examiner or by a member of the Board of Dentistry (Board), have no complaints against their license, and be actively practicing. To become an examiner, an application must be completed and submitted to an examination committee of the Board. The committee reviews the application and, if approved, the applicant is placed in a pool of examiners. Before every examination, each examiner is trained in evaluating a procedure to make sure that it is properly performed. The Department of Health (Department) conducts a training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida and are appointed by the Board of Dentistry (Board). To further their training, after the examiners receive their verbal training, the examiners are shown slides of teeth which do not meet the clinical criteria of the examination. To make sure that the examiners have been able to internalize the criteria, following the standardization, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where mannequins are used and the examiners check for errors on the mannequins. After the examiners complete their examination, the Bureau of Testing evaluates the examiners to determine whether the examiners are acceptable to use for the Examination. Subsequent to the Examination, the examiners are scored by the Bureau of Testing. The scoring is based on an examiner's performance wherein the Bureau of Testing examines how every examiner grades with every other examiner to make sure that the examiners are grading with reliability. This review is based on corroborated errors found by an examiner, not on the average errors found by an examiner. The average errors found by an examiner are irrelevant to the examiner's performance in that one examiner may have graded candidates who made numerous errors, while another examiner may have graded candidates who made very few errors. For the Examination, candidates are required to bring human patients on whom the candidates perform the dental procedures. Each examiner grades the Examination independently. The examiners do not confer with each other while scoring the Examination. Furthermore, the Examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored by a licensed dental hygienist. When the candidate completes the procedures, a proctor accompanies the patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. For the scaling/calculus removal portion of the Examination, the grading criteria is that complete removal of all supra and sub-marginal calculus from each tooth, without laceration to the surrounding tissue, is required. If the tooth is not clean and/or if there is damage to the surrounding tissue, the candidate is considered to have made one (1) error. Pursuant to Board rule, each tooth is judged as a whole. Even if a candidate makes three mistakes in performing the procedure on each tooth, e.g., calculus could be above the gum, calculus could be below the gum, and/or the gum could be lacerated, only one (1) error is counted against the candidate. The examiners do not document what error was committed by the candidate, i.e., whether the error is a calculus error or a laceration error. In grading the scaling/calculus removal portion of the Examination, a grade of five is the highest grade that a candidate can receive. A five is given if there are zero to three errors found. A grade of four is given if there are four errors found. A grade of three, which is considered to be minimally competent, is given if there are five errors found. A grade of two is given if there are six errors found. A grade of one is given if there are seven errors found, and a grade of zero is given if eight or more errors are found. For an error to be counted against a candidate, at least two of the three examiners must corroborate the error, i.e., at least two of the examiners must find the error. For Ms. Kern's clinical examination, she was scored by examiners 197, 243, and 320. All three examiners participated in the standardization training and were considered qualified to act as examiners for the Examination. Ms. Kern's examination was double-blind graded. Each examiner independently graded her examination. Examiner 197 found one error. Both examiners 243 and 320 found seven errors each. Examiners 243 and 320 agreed on six of seven teeth on which errors were found. Consequently, Ms. Kern was considered to have committed six errors. A post-examination review of the examiners was conducted. Examiners 243 and 320 were found to be reliable in their scoring. However, examiner 197 was found to be unreliable in his scoring. Examiner 197 was not used again for the Examination. The scoring of six errors made by Ms. Kern on the scaling/calculus removal portion of the Examination is not arbitrary or capricious or an abuse of discretion. The scoring process is not devoid of logic and reason. However, because examiners do not document the type of error committed by a candidate, a candidate has no way of knowing what detail of a procedure was improperly performed. The candidate only knows that a procedure, as a whole, was improperly performed. Consequently, a candidate who desires to re-take the Examination has no idea what procedure needs improvement by the candidate in order to prepare for a re-taking of the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry enter a final order dismissing Brandy Kern's examination challenge to the clinical portion of the dental hygienist licensure examination administered in December 1997. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998.
The Issue The issue is whether Ms. Gioia is eligible for re-examination of her clinical dental skills after having failed the clinical dental examination three times. She seeks to be re-examined without completing either a one year general practice residency or a minimum of one academic year of undergraduate clinical course work in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation.
Findings Of Fact Ms. Gioia first attempted the clinical dental licensure examination in June, 1987. On June 11, 1987, during the periodontal portion of the examination, Ms. Gioia was found to be in possession of a periodontal chart, which a monitor regarded as unauthorized written material for an examination candidate to have. The monitor made a report of an irregularity during the examination. On September 3, 1987, Ms. Gioia received from the Board of Dentistry a notice that she had failed to obtain a passing score on the June, 1987, clinical dental licensure examination, and that the Board had been presented with evidence that during the examination she had unauthorized written material in her possession, viz., a periodontal chart, which constituted a violation of Section 466.028(1)(bb), Florida Statutes, and Rule 21-11.007(1)(e), Florida Administrative Code, and that she would not be permitted to be re- examined until she completed a two credit hour college level course in ethics. The letter also notified her that: You may seek review of the above, by filing a petition with the Executive Director of the Board within twenty-one (21) days of your receipt of this notice. You may request a formal proceeding pursuant to Section 120.57(1), Florida Statutes, or informal proceedings pursuant to Section 120.57(2), Florida Statutes. If you request formal proceedings, the petition must contain the information required by Rule 28-5.201, Florida Administrative Code. Ms. Gioia then retained counsel, Kenneth Muszynski, and requested an informal hearing on September 28, 1987. The matter came before the Board of Dentistry on July 23, 1988, at its meeting in Tallahassee. According to the Final Order entered by the Board on October 14, 1988, (Board Exhibit 3) the Board found: . . . based upon [Ms. Gioia's] testimony relating to her possession of the periodontal chart, the Board determines that [her] possession of the periodontal chart did not constitute any intentional violation of examination rules or an attempt to obtain a license by fraud and ordered that she: . . . be certified for licensure without restriction upon her successful completion of the licensure examination. That Final Order effectively rescinded the requirement that she take an ethics course before she could be examined a second time. No appeal from that Final Order was ever taken. There is no indication in the evidence that Ms. Gioia ever challenged the finding made in the Board's September 3, 1987, letter that she had failed to obtain a passing score on the clinical dental examination given in June, 1987. Rather, she had challenged the allegation of misconduct which had resulted in a restriction on her ability to take the examination again. Ms. Gioia took the clinical dental examination for a second time in December of 1987, and did not obtain a passing score. She took the clinical dental examination for a third time in June of 1988, and again failed to receive a passing score. As a result, she received a letter on August 5, 1988, from the Board of Dentistry which states, in pertinent part: Pursuant to Florida Statutes 466.006(4)(b)5., . . . "If [an] applicant fails to pass the clinical examination in three attempts, he shall not be eligible for re-examination unless he completes additional education requirements established by the Board." Therefore, you are not eligible to sit for the Florida Dental Examination until you complete a one year general practice residency or a minimum of one academic year of undergraduate clinical coursework in dentistry at a dental school approved by the American Dental Association, Commission on Dental Accreditation. This letter prompted Ms. Gioia to request a review of her score on the June, 1988, clinical dental examination. After the review, Ms. Gioia was informed that the review did not result in an alteration of her grade, and if she wished to initiate a formal administrative hearing to challenge her grade she must do so within 30 days from the date of that October 4, 1988, letter. A petition for formal administrative hearing was filed, again by Kenneth Muszynski, on her behalf on November 14, 1988, which instituted this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the petition for formal hearing filed by Ms. Gioia which contended that her score on the clinical dental examination in June, 1987, should not be counted due to monitoring misconduct which unsettled her, and ordering that she not be certified to re-take the clinical dental examination until she completes the education requirements imposed in Rule 21G-2.021(2), Florida Administrative Code. DONE and ENTERED this 23rd day of August, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1990. Copies furnished: Vytas Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 D. Carlton Enfinger, Esquire Barrett, Bajoczky, Hoffman and Harper 131 North Gadsden Street Post Office Box 1501 Tallahassee, Florida 32301-1501 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is a graduate of a dental college in India, which is not accredited by the American Dental Association, and has had postgraduate training in New York and Ireland. Petitioner was a candidate for licensure by examination to practice dentistry in the State of Florida. The dental mannequin examination, which is at issue here, consists of nine (9) procedures, each of which is graded separately. Petitioner took the dental mannequin examination at the December, 1983, administration, which was his second attempt, and obtained a total overall grade for the dental mannequin examination of 2.06. An overall grade average of 3.0 is required to pass the mannequin examination. The grading scale as established by Rule 21G-2.13, Florida Administrative Code (F.A.C.) is as follow: O - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimal acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Examiners for the dental examination are currently licensed dentists in the State of Florida who have been trained and standardized by Respondent, with training sessions taking place prior to each administration of the examination. During the standardization exercise, the examiners grade identical procedures and then discuss any grade variance and attempt to eliminate any discrepancies and interpretations of the grading criteria. Each examination is graded on the above scale by three separate examiners. They are identified only by examiner number on the grade sheet and do not confer with each other or the candidate regarding the score given on any of the graded procedures. Petitioner has challenged the overall examination which he believes was unfairly graded. In support of his argument, he relies mainly on differences in the scores assigned by the three examiners as well as their varying comments on the grade sheets. Specifically, Petitioner challenged procedures 02 through 08. In addition to the grades assigned by the three examiners who are licensed Florida dentists, Respondent presented the testimony of its consultant, Dr. Simkin, who is also a licensed Florida dentist and an experienced examiner. Petitioner presented his own testimony on each procedure and that of Dr. Lee and Dr. Rosen, who are both experienced dentists. Dr. Lee is licensed in Florida, but Dr. Rosen is not. The testimony of Doctors Simkin and Lee supported the evaluations given by the examiners, with the exception of the one high grade given on procedure 02 (discussed below) which was an error in Petitioner's favor. Dr. Muskar and Dr. Rosen generally conceded the deficiencies noted by the examiners and the other witnesses, but felt these deficiencies were not sufficiently serious to warrant the failing or minimum passing scores assigned. Procedure 02 is the distal occlusal amalgam preparation on a maxillary second bicuspid. The prepared was found to have the sides drilled too deeply, the top was too shallow, and the break in contact between the teeth was too wide, so that there was some doubt as to whether the filling would be retained. The examiners gave the candidate a 3, 3, and 2, and correctly determined that there were problems with the outline form, the depth, retention and a failure to cut the preparation into the dentin. On procedure 03, which is the distal class III preparation for a complete restoration on a maxillary central incisor, the evaluation of two of the examiners that there was no contact made between the teeth involved was correct. This is required of the candidate in the preparation of the denture form for this procedure. The examiner who assigned a grade of 5 was mistaken, but this grade was included in Respondent's overall score. On procedure 04, which is the class III composite restoration of the distal of a maxillary lateral incisor, the examiners awarded 2, 2, and 1 (all failing grades). The restorative material did not duplicate the anatomy of the natural tooth, there not being a flush finish of all margins with the natural tooth structure and the final finish not showing high polish and correct anatomical contour. On procedure 05, completed endodontic therapy using gutta percha in a maxillary lateral incisor, the x-ray (Respondent's Exhibit #3) revealed that the apex of the tooth root was not sealed against fluids in the bone and that there was approximately a one millimeter over-extension of the filling material. The examiners awarded failing grades of 2, 1, and 1, and found there was not proper apical extension in all canals, the gutta percha was not well condensed and adequate filling was not demonstrated by canal width. On procedure 06, distal occlusal restoration on a tooth previously prepared and provided by Respondent, the examiners awarded grades of 1, 2, and 3, noting that there were problems with the functional anatomy, the proximal contour contact and the margin flush with cavo-surface margin. On procedure 07, 3/4 crown preparation on a maxillary second bicuspid, grades of 3, 3, and 4 were awarded which are consistent, and the written comments supported the passing grades awarded. On procedure 08, full crown preparation on a maxillary second molar, failing grades of 1, 1, and 1, were awarded with problems noted in the occlusal reduction, the axial reduction, and the ability of the crown to draw from the gingival margin. The grades awarded for this procedure were identical, the comments supported those grades and inspection of the exhibits confirmed comments and the grades.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ORDERED this 21st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1984.
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2001.
The Issue 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.
