The Issue The issue in this case is whether the Board of Dentistry should discipline the Respondent on charges set out in an Amended Administrative Complaint filed by the Petitioner.
Findings Of Fact The Respondent is a licensed dentist in the state of Florida, having been issued license DN 14819. The Respondent was employed by the Collier County Health Department (CCHD) from 2001 to February 10, 2010. She began her employment as a dental assistant, worked as a dentist when she became licensed in Florida, and eventually became the director of the CCHD’s dental clinic. Prior to June 2008, the Respondent received training in providing “pre-orthodontic appliance therapy.” This therapy used appliances to move teeth to create and maintain space in the mouths of pediatric patients to facilitate future orthodontic therapy. The Respondent provided pre-orthodontic appliance therapy, and the CCHD billed Medicaid for reimbursement. As Respondent was starting to provide these services, Medicaid notified the CCHD that Medicaid would pay for them only if provided by an orthodontist or pediatric dentist. The Respondent’s billings would not be paid. When the CCHD was told this, its administrator, Stephanie Vick, told the Respondent and instructed her not to provide pre-orthodontic appliance therapy because Medicaid would not pay for it. Ms. Vick allowed the Respondent to complete cases already begun but not to initiate any new pre-orthodontic appliance therapy. After the conversation between the Respondent and Ms. Vick, Ms. Vick was told that the Respondent was prescribing new orthodontic appliances for patients, contrary to her instructions to the Respondent. On July 15, 2008, Ms. Vick gave the Respondent a written reprimand for “[p]oor performance” and “[v]iolation of law or agency rules.” The reprimand cited the use of orthodontic appliances for the dual purposes of maintaining space and actively moving teeth and other dental structures. It also stated that these appliances were being billed to Medicaid improperly as space maintainers. Ms. Vick discussed the reprimand with the Respondent. After the reprimand, Ms. Vick thought the Respondent was complying with her instructions. Her quarterly reviews of CCHD documentation seemed to corroborate her beliefs. However, at some point, Ms. Vick was told by dental clinic employees that the Respondent persisted in the conduct described in the reprimand. Ms. Vick investigated by reviewing additional documentation, including invoices from the E.P. Orthodontic Laboratory (the lab), which filled the CCHD’s prescriptions for dental appliances, and by interviewing clinic employees. The lab’s invoices led Ms. Vick to believe that the Respondent was violating her instructions regarding pre- orthodontic care and treatment while attempting to conceal her actions. On February 10, 2010, Ms. Vick confronted the Respondent with the results of her investigation and discussed the matter. After the discussion, the Respondent resigned from her employment. She did not admit to wrongdoing. On February 12, 2010, Ms. Vick made a notation in the Respondent’s personnel file that included: “The results of this review [of dental patient records from July 2009] supported that Dr. Aranda has continued to engage in improper charting of services, incorrect/legal billing code use and practices regarding interceptive orthodontic treatment and the need for signed protocol structures.” The notation continued to say that the Respondent was disciplined for the same issues in July 2008 and was persisting in those practices; that these matters were discussed; and that the Respondent chose to resign. The notation mentioned nothing about improper delegation. However, it appears that Ms. Vick came to believe during the course of her investigation of the Respondent that the Respondent was having a dental assistant named Paul Beingolea scale teeth and cement appliances, which he was not qualified to do. Ms. Vick confronted Mr. Beingolea with her belief. He denied it but chose to resign his employment. After the Respondent and Mr. Beingolea resigned, Ms. Vick notified the Agency for Health Care Administration (AHCA), which runs Florida’s Medicaid program, that the CCHD improperly billed and collected payment for pre-orthodontic therapies. AHCA and CCHD agreed to repayment to Medicaid for the resulting overpayments. Count I Deceptive, Untrue or Fraudulent Representations Count I is based on the Respondent’s dental care and treatment for eight Medicaid patients: M.B.; J.C.; K.E.; D.G.; M.G.; M.M.; T.N.-D.; and P.M. Specifically, Count I alleges that the Respondent prescribed pre-orthodontic active appliances for patients, made impressions to be used to fabricate the appliances, ordered them, fit them, and adjusted them. These appliances included Schwartz appliances, rapid palate expanders (RPEs), and anterior bite/inclined planes. These appliances are considered to be “active” because they move teeth and dental structures when “activated” by turning a screw or expanding loops. After the desired space is obtained through use of the appliances, it is common to leave the appliance in temporarily to maintain the space until the bone fills in and solidifies. In this mode, the appliance becomes “passive” and functions as a temporary retainer, but it is still considered to be an “active” appliance. Count I alleges essentially that the Respondent made deceptive, untrue or fraudulent representations in the patient’s charts, and in documents used to bill Medicaid for their dental care and treatment, by disguising pre-orthodontic care and treatment using active appliances, which was not covered by Medicaid, as non-orthodontic care and treatment using passive retainers that Medicaid would cover and pay. It is clear that the Respondent did not benefit financially from Medicaid’s payment of the care and treatment at issue. The Respondent was on a straight salary. She did not work overtime and got no bonuses. No actual Medicaid bills were in evidence. Instead, the Petitioner introduced documentation from the CCHD’s “HMS” system. The HMS system recorded patient demographics, personal information, insurance and billing information, and services provided. The HMS billing information was used by the clerical staff of the CCHD to bill Medicaid. The Respondent did not enter the billing information into the HMS system. This also was done by the clerical staff based on documentation referred to as a “super bill.” The CCHD’s dental practitioners, including the Respondent, created super bills based on their dental care and treatment of patients. After super bill information was entered into the HMS system, the super bill was discarded. None were in evidence. No member of the CCHD’s clerical staff testified, and there was no evidence about the Respondent’s actual entries on the super bill. There was no clear and convincing evidence as to what part the Respondent played in the generation of HMS billing information or the actual billing of Medicaid by the CCHD. Some of the entries in the patient’s charts probably could be attributed to the Respondent based on handwriting (although no witness identified the Respondent’s signature or handwriting). Some entries in the charts were followed by a stamp of a practitioner’s printed name and what appears to be her signature. Sometimes, a number of a day’s worth of charting (up to 30 or more patients) was done at one time in a collaborative fashion by several practitioners. Sometimes there was confusion and mix-ups. Sometimes, one practitioner mistakenly would stamp and/or sign an entry for another practitioner’s work. The charts in evidence included copies of prescriptions that appear to have been written by the Respondent for fabrication by the lab. At the CCHB, the prescription was written on a form called a “Retainers Prescription” that generated a carbonless copy when used. Typically, the white original (top) of the prescription form was sent to the lab, and the yellow carbonless copy was retained in the patient’s chart. Although the exhibits offered in evidence were copies, and all appeared to be white, the witnesses were able to tell the difference between the original (top) of the prescription forms and the bottom carbonless copies of the forms. As part of the investigation conducted by Ms. Vick, copies of what appear to be the lab’s invoices to the CCHD, and copies of what appear to be the original (top) of prescription forms, were obtained from the lab. Ms. Vick believed there were incriminating discrepancies between the documents she got from the lab and some of the carbonless copies of prescriptions in some of the patient charts. However, the documents obtained from the lab were excluded from evidence in this case and cannot support a finding that discrepancies existed. See Preliminary Statement and Endnote 3. The Respondent does not dispute that she prescribed Schwartz appliances, RPEs, and inclined planes for children who needed to regain a little space lost after baby teeth fell out and then maintain the lost space for permanent teeth that were coming in. She denies trying to hide what she was doing by making deceptive, untrue or fraudulent representations. The evidence as a whole supports the Respondent’s position. Patient M.B. The chart for M.B. indicates that the Respondent took upper and lower impressions on June 25, 2009, and wrote a prescription for a “Schwartz to regain space for # A. or space maintainer with loops.” M.B.’s chart referred to the appliance as a space maintainer. There also was an entry on August 21, 2009, indicating that the patient was instructed to “come back for adjustment” to alleviate discomfort and one on February 10, 2010, indicating that the appliance was checked and adjusted. There was HMS documentation indicating that the CCHD billed Medicaid for “diagnostic casts” on June 25, 2009. Patient J.C. The Respondent took upper and lower impressions and did a wax bite registration of the teeth of patient J.C. on May 14, 2009. The chart included two undated prescriptions. One was for a lower bilateral space maintainer. (The chart included two copies of this prescription.) The other was for an upper and lower Schwartz and included a notation that the upper Schwartz was to address “[r]ight side cross bite.” The patient chart referred to the delivery of a “lower bilateral space maintainer (modified)” on July 9, 2009, but there also were notes in the chart referring to orthodontic bands. There were two HMS entries dated July 9, 2009. One indicated “DEN SPACE MAINTAINER-FIX” was provided. The other indicated that a Medicaid bill was initiated. Patient K.E. The patient K.E. began receiving dental treatment at the CCHD dental clinic on September 8, 2005. On May 28, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant for upper and lower impressions, a bite registration, and orthodontic bands. Below the Respondent’s signature is an added entry by the Respondent stating, “note: B.S. Maintainer (RPE).” The Respondent also wrote and signed an undated prescription for an “upper RPE.” On August 18, 2009, the Respondent signed and stamped a dental assistant’s clinical notes in the patient’s chart indicating that a space maintainer was cemented using Fuji brand permanent cement. On September 30, 2009, the Respondent signed and stamped a dental assistant’s clinical notes in the patient’s chart indicating that the patient came to the clinic with a loose space maintainer that was re-cemented. There was HMS documentation indicating that the CCHD provided “diagnostic casts” for the patient K.E. on May 28, 2009; provided “DEN SPACE MAINTAINER-FIX” on August 18, 2009; provided “DEN RE-CEMTATION [sic] OF SPACE” on September 30, 2009; and initiated billing of Medicaid on those dates (but indicates there was no charge to Medicaid for re-cementing the appliance on September 30, 2009. Patient D.G. The patient D.G. began receiving dental treatment at the CCHD dental clinic on May 17, 2005. On August 19, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating: that a bilateral space maintainer was fitted and delivered to the patient D.G.; that the patient’s father was instructed in how the patient should wear, clean, adjust and clean it; and that the adjustments were to be performed once a week. On October 7 and December 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the patient presented with a loose space maintainer. On both occasions, the parent was instructed in how to take care of the appliance. The patient chart for D.G. is missing the carbonless copy of the prescription for the appliance. There was no evidence as to why it was missing or what it said. There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on August 19, 2009; provided “DEN RE-CEMTATION [sic] OF SPACE” on October 7 and December 2, 2009; and initiated billing of Medicaid on those dates (but indicates there was no charge to Medicaid for any of those dates. Patient M.G. The patient M.G. began receiving dental treatment at the CCHD dental clinic on November 26, 2008. On April 23, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant for a diagnostic cast and a bite registration for an inclined plane. The chart also has the carbonless copy of the prescription written by the Respondent for an inclined plane. On June 25, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that a “space maintainer appliance” was delivered and that the family was given instruction on how to use it. On July 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the patient’s mother was adjusting the appliance (identified in the note as an “upper RPE”) once a week. On August 6, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the appliance (identified in the note as an “inclined plane”) was “working fine” and that the appliance was “trimmed today to improve the bite.” On October 20, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the patient’s teeth were “corrected of crossbite.” There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on June 25, 2009, and initiated billing of Medicaid on that date (but indicates there was no charge to Medicaid). Patient M.M. The patient M.M. began receiving dental treatment at the CCHD dental clinic on April 27, 2004. On March 17, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an existing space maintainer was removed, impressions were taken and bands, and bite separators were placed. The patient’s chart confirms that a space maintainer was provided for the patient about two years earlier, when the patient was six years old. No copy of a prescription for a new appliance is in the patient’s chart. On April 21, 2009, clinical notes were made by a dental assistant in the patient’s chart indicating that an appliance was received from the lab. On May 21, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an upper bilateral space maintainer was cemented and that the patient’s mother was explained how to adjust it. The Respondent struck the words “FAN appliance” and “use” and wrote the words “upper bilateral space maintainer” and “adjust” (respectively) above the stricken words. There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on May 21, 2009, and initiated billing of Medicaid on that date. Patient T.N-D. The patient T.N-D. began receiving dental treatment at the CCHD dental clinic on July 8, 2008. On August 27, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an upper and lower bilateral space maintainer was modified, fitted, and delivered. On September 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the upper and lower bilateral space maintainers were modified and adjusted and that the patient’s mother was instructed to open the appliance once a week and have the patient use it whenever not in school. Under the Respondent’s signature and stamp was a note in her handwriting: “modify space maintainer to regain lost space.” There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on August 27, 2009, and initiated billing of Medicaid on that date. Patient P.M. The patient P.M. began receiving dental treatment at the CCHD dental clinic on August 22, 2002. On July 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that upper and lower impressions were taken and bands were placed. The chart also has a copy of a prescription written by the Respondent for an upper RPE and a lower space maintainer. A clinical note signed by a dental assistant indicated that the clinic received an appliance for the patient on August 24, 2009. On October 28, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an upper space maintainer was cemented using Fuji cement. On February 5, 2010, there are notes in the patient’s chart signed by another dentist that seem to indicate that the patient’s occlusion was adjusted. There was no testimony to explain the meaning of this, or other notes made by the dentist regarding “optibands” and removal of “canes(?).” On February 10, 2010, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that a lower bilateral space maintainer was fitted and adjusted with Fuji cement. There also were notes regarding care for the appliance. One note, written by the dental assistant, said: “Aunt was taught how to take care of appliance, she’ll be doing it twice a week.” That note was stricken and under the Respondent’s signature was a note in her handwriting: “Space maintainer needs to only observe for the properly works [sic].” See Finding 73, infra. There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on October 28, 2009, and February 10, 2010, and initiated billing of Medicaid on those dates. Summary The Petitioner did not prove by clear and convincing evidence that the Respondent made deceptive, untrue or fraudulent representations in the charts for these patients. The charts would suggest that, to the contrary, the Respondent was not disguising the nature of her care and treatment of these patients (or was doing a poor job of it if she was trying to). The documentary evidence used to support the charges generally was unclear, confusing, and not well explained. The Respondent may have been insubordinate in providing pre-orthodontic care and treatment to patients against the instructions of her supervisor, which may have been grounds to terminate her employment, and the clinical notes in the patient charts may have been subject to criticism for being less than clear and completeness, but those were not the charges against the Respondent in this case, and no such charges were tried or proven in this case. Count II Improper Delegation Count II alleges that the Respondent delegated tasks to her dental assistant, Paul Beingolea, that he was not qualified to do. Patient F.C. On January 15, 2010, the Respondent signed and stamped a clinical note made in the chart of the patient F.C. It appears that some of the notes were made by a dental assistant named Irma Pineros and indicated that the patient received an examination and “prophy (Hygienist).” It appears that someone else wrote some of the notes in F.C.’s chart for that day, including notes saying “soft tissue inflamed,” “calculus present,” “localized gingivitis,” and “hand scaling.” From the handwriting, it appears that the Respondent may have written some, if not all of the notes that do not appear to be written by Irma Pineros. However, there was no testimony from her, the Respondent, or anyone else as to who wrote what part of the notes. Another dentist at the clinic named Laurie Housworth testified that she saw the Respondent examine the patient F.C. on January 15, 2010, and call in a dental assistant, named Paul Beingolea, who performed work on the patient for another 30 minutes or so. However, Dr. Housworth testified that she could not see exactly what Mr. Beingolea was doing at the time, and she did not observe the patient continuously for the full 30 minutes. It is possible that the Respondent returned to the examination room unbeknownst to Dr. Housworth. Dr. Housworth later pulled the chart to review the clinical notes and interpreted the chart to be indicating that hand-scaling was performed by a hygienist. Since there was no hygienist available at the clinic on that day, she believed the work was done by Mr. Beingolea. The Respondent and Mr. Beingolea denied that he performed hand-scaling on the patient F.C. on January 15, 2010. The Respondent testified that she never instructed a dental assistant to perform hand-scaling. Dr. Housworth did not confront the Respondent or either dental assistant at the time with her suspicion that hand-scaling was performed by Paul Beingolea. Nor did she report any improprieties to Ms. Vick at the time. During the investigation of the Respondent by Ms. Vick, Dr. Housworth related to her the incident concerning the patient F.C. on January 15, 2010. Patient P.M. On February 10, 2010, Dr. Housworth came to work early and observed Mr. Beingolea seating patient P.M. while the Respondent was working in another room with a different patient. Dr. Housworth testified that she saw that Mr. Beingolea had Fuji permanent cement and looked to her like he was placing something in the patient’s mouth. After that, she saw Mr. Beingolea release the patient. Later, she checked the chart and saw that Mr. Beingolea had made a clinical note saying: “Lower bi- lateral space maintainer fitted, and adjusted with fuji L.” He had then written: “Aunt was taught how to take care of appliance, she’ll be doing it twice a week (unreadable). Follow up 2 weeks.” The second part of the note was stricken, and it appears that the Respondent wrote: “Space maintainer needs to only observe for the properly works [sic].” Mr. Beingolea’s signature appears after the first two entries; the Respondent’s stamp and signature appears under the amendment to the notes. From what she had observed and these entries in the patient chart, Dr. Housworth believed that Mr. Beingolea was cementing a space maintainer in the patient’s mouth. Mr. Beingolea and the Respondent denied that he cemented the space maintainer. He testified that he placed the cement in the bands for the Respondent, she placed the space maintainer in the patient’s mouth and left, and he removed excess cement from the space maintainer. The Respondent testified that she never instructed a dental assistant to perform cement space maintainers or any appliances in a patient’s mouth using permanent cement. Dr. Housworth did not confront the Respondent or Mr. Beingolea at the time with her suspicion that Mr. Beingolea cemented a space maintainer in P.M.’s mouth using permanent cement. Instead, she reported it to Ms. Vick because she thought it was relevant to Ms. Vick’s investigation of the Respondent and Mr. Beingolea. Summary The Petitioner did not prove by clear and convincing evidence that the Respondent delegated to Mr. Beingolea the tasks of hand-scaling F.C.’s teeth or cementing a space maintainer in P.M.’s mouth using permanent cement.
Recommendation Based upon 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 the charges against the Respondent. DONE AND ENTERED this 24th day of May, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 24th day of May, 2016.
The Issue Whether Petitioner should receive a passing grade on the clinical portion of the dentistry examination administered in December 1996.
Findings Of Fact In June 1996, Petitioner, Arthur A. Gage (Gage), took the dentistry examination for licensure as a dentist in Florida. He was unsuccessful on the clinical part. In December 1996, Gage retook the clinical portion of the examination. He was notified by an examination grade report, mailed on January 13, 1997, that he had again failed the clinical portion of the examination. He achieved a general average score of 2.75. A final grade of 3 or better as a general average on the clinical portion is a passing score. Gage complains that there was inconsistency among the examiners in grading the examination. In particular, he submits that if you average the grades by each examiner on the mannequin portion of the examination that the averages are 3.25, 3.08, and 1.08. Gage averaged all the grades for each examiner and did not average by procedure. Consequently, Gage's approach did not produce a statistically meaningful result. Marsha Carnes, a psychometrician with the Department of Business and Professional Regulation (DBPR), testified for the Respondent. A psychometrician is an expert in testing and measurement. Ms. Carnes' responsibility is to ensure the validity and reliability of the examinations, including the dentistry examination. Ms. Carnes outlined the procedure used for selecting the examiners and the grading of the dentistry examinations. The examiners are selected by the Florida Board of Dentistry (Board) and must have five years of experience as a licensed, active dentist in Florida. The examiner must be recommended by a current examiner or member of the Board. Examiners must submit an application and have no complaints against their dentistry license. After the examiners are selected, they are trained by DBPR. Approximately one month prior to the dentistry examination, the examiners are sent the details of the examination, the clinic monitor, and an examiner instruction package. The examiner package outlines the grading criteria, the procedures for the examination, and the necessary paper work. The day before the examination, the examiners go through a standardization process conducted by the psychometrician and three assistant examiner supervisors from DBPR. The process takes approximately eight hours. There are nine clinical procedures in the dentistry examination. Three of the procedures are performed on a patient, five on a mannequin, and one is written. As part of the standardization process, the assistant examiner supervisors outline the criteria for each procedure that is on the examination and explain what is and is not minimally acceptable. The examiners are shown slides, and the supervisors explain what grade should be awarded for each procedure shown on the slides. The examiners are given a post standardization examination to make sure that they have internalized the criteria explained during the standardization process. The examination consists of the examiners actually grading models created by applicants in past examinations. Twenty-five different procedures are graded, and DBPR staff evaluate the grading of the examiners to ensure that they are grading consistently. Scores of zero through five are possible on each examination procedure. Five is considered to be an outstanding dental procedure. Four is better than minimally acceptable. Three is minimally acceptable. Two is below minimally acceptable. One is unacceptable, and zero is a complete failure. Rule 64B5-2.013, Florida Administrative Code. Three examiners independently grade each procedure. The dentistry examination is double-blind graded. The applicant has no contact with the examiners, and the examiners do not consult one another. This procedure was followed for the dentistry examination taken by Gage. The overall percentage score is determined by averaging and weighting the grades of the three examiners for each procedure. Statistically, averaging three grades is more accurate than using one grade alone. Gage complains about the inconsistency of the grading of the procedures on the mannequin. The examiners were identified by number as 080, 320, and 321. These examiners successfully completed the standardization process. Gage complains that Examiner 321 gave disproportionately low grades for the procedures performed on the mannequin. It is, however, more common for an examiner to give an inappropriately high grade than an inappropriately low grade. The higher grade can be a result of an examiner missing something, but the low grade must be justified in documentation and then actually verified on the mannequin. The three examiners for the mannequin procedures, when examined in the examiner's performance report, all had statistically acceptable measures of consistency and reliability. Gage complained that the patient on whom he performed the patient procedures had to make several trips to the restroom during the examination and that he did not have time to properly perform all the procedures. During the examination, Gage did not submit monitor to examiner notes, indicating there were any problems encountered during the examination or anything that he wanted the examiners to take into consideration in the grading. Prior to the perio and amalgam sections of the examination, the applicants are read a script that gives instructions as to what is to be done and how much time is allotted. The script provides that the applicants need to plan their usage of time in order to finish the procedures within the allotted four hours. Near the end of the examination, the applicants are advised of the time remaining until the end of the examination. Time management is important in the practice of dentistry because patients do not like to be kept waiting and because certain dental procedures must be executed within certain time frames. Applicants are advised before the examination how much time is allotted. Applicants are responsible for obtaining a patient for the examination. Gage received grades of four, four, and one on the class four composite filling portion of the examination. Examiner 321 gave the grade of one and documented that there was a margin open on the incisal. Dr. Thomas Shields III, who was qualified as an expert witness for the Respondent, reviewed the procedure and found that there was a definite click or catch on the incisal margin of the tooth, which was consistent with the grade of one. On the endo portion of the examination, Gage received grades of two, three, and zero. Dr. Shields reviewed the X-rays of the procedure, which showed that the final fill on the root canal had voids and was unacceptable and one of the tooth canals was not completely filled. On the prosthetic written portion of the examination, Gage scored 70 percent. In order to pass that portion of the examination, the applicant must achieve at least 75 percent, which equates to a 3.75 on a scale of zero to five. Rule 64B5- 2.013(2)(c), Florida Administrative Code. Gage complained that some of the pictures in the booklet were not very good and it was difficult to see which teeth were touching. He went to Tallahassee and reviewed the written portion of the test and made some comments concerning the test. Gage did not present his comments at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Arthur A. Gage failed to achieve a passing score for the clinical portion of the dentistry examination administered December 1996. DONE AND ENTERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 7th day of January, 1998. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Janine B. Myrick, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102 Tallahassee, Florida 32399-0700 Arthur A. Gage, pro se 12688 Tucano Circle Boca Raton, Florida 33428
The Issue The issue for determination is whether Petitioner successfully completed the December 1999 dental licensure examination.
Findings Of Fact Petitioner has been given a temporary permit to practice dentistry due to his being a resident in training. In December 1999, Petitioner took the dental licensure Examination. He successfully completed the Laws and Rules part of the Examination having received a score of 78.00, where a minimum score of 75.00 was required to pass that part. Petitioner failed to successfully complete the Clinical part of the Examination having received a score of 2.89, where a minimum score of 3.00 was required to pass the Clinical part. As a result, Petitioner failed to successfully complete the overall Examination. On the Periodontal section of the Clinical part, Petitioner received a score of 1.66. He challenges this score. Each candidate is graded by three examiners. Each examiner is a dentist who is licensed in the State of Florida, with a minimum of five active years' experience, and who, among other things, has no complaints or negative actions against his/her license. Before every examination, each examiner is trained in evaluating a procedure to make sure that the procedure is properly performed. The Department of Health (Department) conducts 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. To further their training, the examiners after receiving verbal training are shown slides of teeth which do not meet the clinical criteria of the examination. Following the standardization, to make sure that the examiners have been able to internalize the criteria, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where models are used and the examiners check for errors on the models. The examiners are evaluated on how they perform when they grade the models, to make sure that the examiners are grading the candidates the same, using the same criteria, and with reliability. Each examiner grades the examination independently. The examiners do not confer with each other while scoring the examination. The examiners do not have contact with the candidates. As to grading, the average of the three grades from the examiners produces the overall grade for the exercise performed by the candidate. Having three examiners grading provides a more reliable indication of the candidate's competency and true grade. 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. When the candidate completes the procedures, a proctor accompanies the human patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. Monitors are used by the Department at the examination. The role of a monitor is to preserve and secure the integrity of the examination. The monitor, among other things, gives instructions to the candidates, answers questions of the candidates, and acts as a messenger between the candidate and the examiner. Monitors also ensure that candidates do not have contact with the examiners. For the Periodontal section, a candidate, as Petitioner, performs a periodontal exercise on a human patient who is chosen by the candidate. The human patient must also be approved by the Department in accordance with criteria specified by rule.2 The criteria includes a requirement that the human patient must have a minimum of five teeth, each of which must have pockets of a minimum of four mm in depth with sub-gingival calculus. Petitioner chose his human patient. The Department approved Petitioner's human patient. Petitioner's human patient was a periodontally involved patient. Petitioner performed the periodontal exercise on his human patient. Petitioner's exercise was graded by three examiners, i.e., Examiners 131, 346, and 264. All three examiners participated in and successfully completed the standardization training, and it is inferred that they were considered qualified to act as examiners for the Examination. Petitioner's examination was double-blind graded. Each examiner independently graded Petitioner's examination. Examiner 131 found no errors and awarded Petitioner a grade of five (5). Examiner 346 found gross mutilation of the human patient's soft tissue of areas 26, 27, and 28, and awarded Petitioner a grade of zero (0). Examiner 264 also found gross mutilation of the human patient's soft tissue of areas 26, 27, and 28, and awarded Petitioner a grade of zero (0). The criteria for the Periodontal exercise mandates a grade of zero (0) where there is gross mutilation of gingival tissue.3 Consequently, Examiners 346 and 264 had no choice but to award Petitioner a grade of zero (0). After the grading, both graders who found gross mutilation of gingival tissue made written comments, regarding the tissue mutilation, on the Examiner-To-Monitor Instructions form. Examiner 264's comment was "Please have candidate place perio pak, area 26, 27, 28" and was not intended to be instructions to Petitioner but was directed to follow-up work or to attention that the human patient may need afterwards. The Examiner-To-Monitor Instructions form, with the written comments, was provided to the monitor who related the comments to Petitioner. The monitor did not allow Petitioner to view the written comments. The monitor informed Petitioner that further work needed to be done as to the human patient. The monitor indicated on the Examiner-To-Monitor Instructions form that Examiner 264's comment was related to Petitioner by the monitor writing "Candidate complied with" and writing and circling his assigned monitor number. The monitor writing "Candidate complied with" meant only that the monitor informed Petitioner that further work needed to be done, not that the Petitioner correctly performed the procedure. No evidence was presented that Petitioner sutured the human patient or that he placed a perio pak on the affected tissue of areas 26, 27, and 28. The evidence shows that the monitor only related to Petitioner that further work needed to be done without the monitor specifying what needed to be done. Moreover, the evidence shows that the monitor did not indicate that Petitioner had done what was requested of him. A candidate is not informed of his/her performance by the examiner because there is no contact between the examiner and the candidate. Additionally, such notification at the Examination site is not done because it is believed to have the effect of alarming the candidate and raising the candidate's anxiety level. The human patient was not informed that there was mutilation of soft tissue as a result of the periodontal exercise. Before an individual is accepted by the Department as a patient, the individual must complete and sign a "Patient Disclosure Statement and Express Assumption of Risk" form. This form, among other things, relieves the Department of any responsibility for poor work done by a candidate or for notifying the human patient of any poor work done by the candidate and places the responsibility on the human patient to have a licensed dentist check the work done by the candidate. The grading of Petitioner's Periodontal exercise is not arbitrary or capricious or an abuse of discretion. The grading process is not devoid of logic and reason.
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 Rami Ghurani's examination challenge to the periodontal section of the clinical part of the dental licensure examination administered in December 1999. DONE AND ENTERED this 15th day of December, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2000.
Findings Of Fact The Board had charged the Petitioner, Dr. Jules Klein, with violations of Sections 466.27(2) and 466.24(3)(g)(k) and (m), Florida Statutes. Dr. Alvin H. Savage was called by the Board to testify that he had seen Dr. Klein in the early spring of 1974. At that time Dr. Savage mentioned to Dr. Klein a sign on the side of the building in which Dr. Klein maintained his professional office. Dr. Savage identified Exhibits 1, 2, and 3 as photographs of said building and the signs at the building as they existed at the time. Dr. Savage testified that the sign bearing Dr. Klein's name was not objectionable and that he had received no complaints regarding said sign. Dr. Savage testified that he had received complaints about the sign as it existed on Dr. Klein's building at that time. The wording of that sign was "Longwood Dental Arts Center". Dr. Savage, on cross-examination, testified that Dr. Klein had invited him to his office to discuss Dr. Klein's status in the local professional association. During their discussion Dr. Savage testified that he had suggested to Dr. Klein that as Jews the community probably held them to a higher standard than other members of their profession, and that Dr. Klein should attempt to avoid even the appearance of anything questionable. Although it was suggested that Dr. Savage's comment was evidence of antisemitic discrimination, in the context of discussion as revealed by both Dr. Savage's and Dr. Klein's testimony, it would appear general advice from an older professional man who had practiced in the community for some time to a younger colleague. During this visit Dr. Savage raised the question of the sign on Dr. Klein's building and was advised by Dr. Klein that he would see the landlord of the building about altering the sign. Thereafter, Dr. Savage testified that the sign was changed, and identified Exhibit 5 and 6 as photographs of the building in which Dr. Klein's professional office was located and the amended sign which read, "Longwood Dental Bldg." Dr. Savage testified that he had received only two complaints regarding the amended sign during the preceding year and that one of the two complaints had been received shortly before the date of final hearing. On cross-examination, Dr. Savage opined that Dr. Klein's sign violated the statute by calling attention to the practice of dentistry by an individual, indicating further that if more than one dentist were practicing at Dr. Klein's office that it would not, in his opinion, be in violation of the statute. Dr. Savage based his opinion upon the Code of Ethics of the Florida Dental Association, Bearing Officer's Exhibit 10. Mr. John F. Plumb testified that he had taken the photographs introduced as Exhibits 5 and 6 on the morning of the hearing. He further testified that he visited Dr. Klein's office on March 12, 1975, April 29, 1975, and July 28, 1975. On both the March and April visits he had spoken with Dr. Klein and had found him very cooperative, although quite concerned about why his sign was an apparent violation while some of the signs in the locality, one of which was immediately across the street from his office, were not in violation. Mr. Plumb testified that he had discussed with Dr. Klein the provisions of Section 466.27(2), Florida Statutes, and the sign's apparent violation of its provisions. Mr. Plumb testified that during the March 12, 1975 visit with Dr. Klein that Dr. Klein indicated that he would modify the sign; however, during the April 29, 1975 visit, Dr. Klein indicated that he would not alter the sign on the advice of his attorney. Dr. Klein then testified in his own behalf. Dr. Klein testified that the sign, "Longwood Dental Arts Center" had been chosen originally because patients had indicated that they could not find his office. Dr. Klein testified that he had become truly concerned about the ability of persons to find his offices when dental supply salesmen reported difficulty in finding his offices. At that time Dr. Klein was practicing with his brother-in-law, Dr. Guy. Dr. Klein testified that having determined the need for a sign on the building, that he looked at the building signs on other buildings in the vicinity. Together with Dr. Guy, he determined that the building be named "Longwood Dental Arts Center" because he and Dr. Guy eventually intended to have am orthodontist in association with then. On cross- examination Dr. Klein testified that "medical arts" was not used because they had had no intention of having doctors of medicine practice there. Dr. Klein testified that he then contacted a sign maker who had dome other similar signs, who suggested the layout and size of the sign used on the building. Dr. Klein testified that after Dr. Savage's visit that he had received a visit from Dr. Franklin. Dr. Klein testified that he had the impression that the removal of the words "Arts Center" would eliminate the objection to the sign, and the sign was so modified. After the sign was changed, Dr. Klein testified that he was again contacted but that he had been unable to determine what was acceptable wording for the sign. He testified that in am effort to obtain guidance as to what was "professionally" acceptable he had contacted the American Dental Association and received a copy of their ethic advisory opinions. See Exhibit 16. This exhibit provides: "1. A building may be identified as the '...Dental Building,' except that the full name of the building cannot include the name of a participating dentist. The mane selected should not imply the practice of superior or more artful dentistry, imply any connection with any institutional or governmental unit or organization, or imply or specify the practice of any special area of dentistry. The full name selected shall be limited to the function of helping the patient locate the building. 2. A component society may determine community custom to prohibit dentists from using floodlights to draw attention to their nameplates on the outside of their private practice facilities. Component societies should be aware, futhermore, that the state dental practice acts ordinarily establish regulations on the use of office door lettering and signs." The Florida Dental Association rules would also allow the use of "Dental Building", but only where two or more dentists practice within the professional building. The basis for this distinction was explained by Dr. Savage, who stated that the provisions of Subsection k of Section 466.24(3) relating to".. calling the attention of the public to any person engaged in the practice of dentistry..." were not violated if two or more persons practiced in a building identified as a "Dental Building."
