The Issue The issue in this case is whether the Florida Insurance Commissioner should discipline the Respondent, Brian Craig Parker, for alleged violations of the Insurance Code.
Findings Of Fact The Respondent, Brian Craig Parker, is a licensed health and life insurance agent. He had a contract with Denticare appointing him to act as Denticare's agent in selling prepaid dental insurance. On or about March 19, 1992, the Respondent, acting as an insurance agent, met with Christine Gamse and accepted her application for Denticare coverage and her check in the amount of $75, representing a $60 premium, plus a $15 "policy fee." The Respondent never submitted Gamse's Denticare application or premium to the insurer. In May, 1992, Gamse complained to Denticare that she still was not covered. Denticare confirmed that Gamse was not covered and offered to telephone the Respondent. When contacted by Denticare, the Respondent stated that he thought he had sent the application and premium to Denticare but that he had been very busy and that his recall was sketchy. Denticare had Gamse reapply directly to Denticare. On or about April 3, 1992, the Respondent, acting as an insurance agent, met with Donald Naegele for the purpose of presenting two dental insurance policies. Naegele decided to apply for Denticare dental insurance. The Respondent advised Naegele to write the Respondent a check in the amount of $104 to accompany Naegele's insurance application, representing a $89 premium, plus a $15 "policy fee." The Respondent told Naegele that he would submit the application by April 20 and that Naegele's coverage would be effective on May 1, 1992. The Respondent negotiated Naegele's check on or about April 7, 1992, but he never submitted Naegele's Denticare application or premium to the insurer. On or about May 1, 1992, Naegele attempted to use Denticare to pay for dental services and was informed that he was not covered by Denticare. He telephoned the Respondent several times and left messages on an answering machine but none were returned. He then telephoned Denticare, and it was confirmed that Naegele was not covered. Denticare offered to telephone the Respondent to resolve the matter. Soon after telephoning Denticare, Naegele got a telephone call from the Respondent, who offered to refund Naegele's $104. Within a few days, Naegele received the Respondent's check for the refund. Under the Respondent's agency contract with Denticare, the Respondent was not authorized to charge a policy fee. The Respondent's commission for Denticare policies was to be paid by Denticare out of the initial premium. Although the contract allowed the agent to ask for additional compensation, the Respondent did not do so, and Denticare would not have allowed him to charge a $15 policy fee. Under the Respondent's contract with Denticare, the Respondent was to promptly submit applications and premiums received from insureds. If Denticare received an application and premium by the 20th of the month, coverage would be effective on the 1st of the following month. If the Respondent had timely submitted their applications and premiums, both Gamse and Naegele would have had coverage by May 1, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order revoking the license of the Respondent, Brian Craig Parker, to act as a health or life insurance agent in the State of Florida. RECOMMENDED this 23rd day of February, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 February, 1994. COPIES FURNISHED: Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Brian Craig Parker 4004 Bainwood Court Tampa, Florida 33614 Brian Craig Parker 15713 Woodcock Place Tampa, Florida 33624 Tom Gallagher State Treasurer & Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact The Parties stipulated to the fact that Dr. Moore was a dentist, licensed by the State Board, holding license number 1464, issued by the State Board. The Parties further stipulated that the facts alleged in the Board's complaint were accurate as of the date of filing. Dr. Ackel testified concerning professional practices. It is a part of the professional services of a dentist to fill out forms necessary for insurance coverage, although they may charge a fee for the time required to do so. The time required to fill out such forms, which are in the main prepared by clerical personnel in the dentist's office, varies from fifteen to forty-five minutes, to include the dentist's time taken to review the entries. The failure to prepare the forms results in nonpayment or delayed payment of insurance claims to the patient. Dr. Moore had delayed over a year the preparation and submission of the forms on the patients involved in this complaint. Dr. Ackel said this was the first such complaint that the Broward County Dental Association has had in his eight-year association with the Association's board which investigates patient complaints. Dr. Moore, having been cautioned about his rights in this case, took the stand and testified that he had had multiple personal problems beginning in 1973. These problems included within a two-year period a personal bankruptcy, a son who flunked out of medical school at the halfway point and subsequently was critically ill with ulcers, another son who suffered a mental depression which resulted in his hospitalization, a reduction in his office staff, and a separation from his wife who also worked in his office. While Dr. Moore acknowledged his ultimate responsibility for the failure to process the insurance forms involved, he did request the Board to consider the foregoing facts in mitigation. Dr. Moore's office is currently a one-man office with one receptionist who has been with the Doctor for twenty-two (22) years. There has been an increase recently in dental insurance claims; and Dr. Moore, who is an older dentist who had a good professional reputation in the community until these incidents, has apparently not adjusted his office administration to keep pace with the changes. This, together with his various personal problems, prevented him from attending to these important matters. Dr. Ackel stated that Dr. Moore had been suspended from the County Association for ninety (90) days as a result of its investigation and findings; however, that this suspension did not cause Dr. Moore to submit the forms. Dr. Moore apologized to all the parties concerned, indicated that he was acting immediately to hire additional personnel in his office, and that all the insurance forms in his office would be filled out and submitted immediately. The Hearing Officer notes, however, that the statements of Dr. Moore's patients indicate he had made similar assurances to his patients.
Recommendation The Dental Board's interest in this case is apparently twofold: To rectify the existing situation and enable Dr. Moore's patients to obtain reimbursement, and To prevent any further failures of this type by Dr. Moore. The Hearing Officer would recommend the following Board action based upon the Findings of Fact and Conclusions of Law: Dr. Moore's license be suspended for three to six months, said suspension or a portion thereof to be held in abeyance or suspended upon Dr. Moore's doing the following: Immediately filing the insurance forms involved here, with copies to the Board, and Permitting and reimbursing, if necessary, a representative or designee of the Dental Board with a reputation for effective office management within the profession to inspect Dr. Moore's office and make a written report to Dr. Moore and the Board suggested ways of improving his office management to prevent a recurrence of this type of failure. DONE and ORDERED this 4th day of September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 605 Florida Theatre Building 128 East Forsyth Street Jacksonville, Florida 32202 Castles W. Moore, D.D.S. 852 N. E. 20th Avenue Fort Lauderdale, Florida 33304
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation and Periodontal sections of the clinical part of Petitioner's June 2003 Florida Dental License Examination taken was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.94, so he failed the clinical part of the examination. Petitioner has challenged the grades of 2.0 that he received on the Patient Amalgam Preparation and Periodontal sections of the clinical part of the examination. In both sections, the score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. For both procedures, Petitioner challenges only the scores of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The two sections that are the subject of this case require the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For each section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communication between examiners and candidates is exclusively through monitor notes. For each section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Periodontal section of the clinical part of the dental examination required Petitioner to debride five teeth. Removing calculus from teeth, especially below the gums, is an important procedure because the build-up of tartar and plaque may cause pockets to form between the tooth and gum. Eventually, the gum tissue may deteriorate, ultimately resulting in the loss of the tooth. Prior to the examination, written materials explain to the candidates and examiners that the debridement is to remove all supragingival and subgingival foreign deposits. For the Periodontal procedure, Examiners 207 and 296 each gave Petitioner a 3, and Examiner 394 gave him a 0. The scoring sheets provide a space for preprinted notes relevant to the procedure. All three examiners noted root roughness. However, Examiner 394 detected "heavy" subgingival calculus on four teeth and documented his findings, as required to do when scoring a 0. Petitioner contends that two examiners and he correctly detected no calculus, and Examiner 394 incorrectly detected calculus. As an explanation, Petitioner showed that Examiner 394 knows Petitioner in an employment setting, and their relationship may have been tense at times. However, Petitioner never proved that Examiner 394 associated Petitioner's candidate number with Petitioner. Thus, personal bias does not explain Examiner 394's score. On the other hand, Examiners 296 and 207 are extremely experienced dental examiners. Examiner 296 has served nine years in this capacity, and Examiner 207 has served ten years, conducting 15-20 dental examinations during this period of time. By contrast, Examiner 394 has been licensed in Florida only since 1995 and has been serving as a dental examiner for only three years. However, the most likely explanation for this scoring discrepancy is that Examiner 394 explored more deeply the subgingival area than did Examiners 207 and 296 or Petitioner. Examiner 394 testified with certainty that he found the calculus at 5-6 mm beneath the gums. This is likely deeper than the others penetrated, but not unreasonably deep. For the Periodontal procedure, an examiner who found calculus on four teeth would be entitled to award the candidate 0 points. Examiners may deduct two points per tooth that has been incompletely cleaned, although the lowest score is 0. Examiner 394's score of 0 is therefore legitimate and at least as reliable as the other scores of 3. The Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 417 each assigned Petitioner a 3 for this procedure, but Examiner 420 assigned him a 0. Examiners 207 and 417 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 420 detected caries and documented his finding, as required to do when scoring a 0. As noted above, Examiner 207 is a highly experienced evaluator, but the other two evaluators are experienced dentists. Examiner 417 graduated from dental school in 1979, and Examiner 420 has been licensed in Florida since 1981. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Examiner 420 testified definitively that he detected caries tactilely, not visually, in Petitioner's patient. This testimony is credited. It is difficult to reconcile Examiner 420's finding of caries with the contrary finding by the highly experienced Examiner 207. It does not seem especially likely that an experienced dentist would miss decay, especially in the artificial setting of a dental examination, in which everyone's attention is focused on one tooth. Examiner 207's finding of no caries is corroborated by the same finding of Examiner 417. However, Examiner 417's finding is given little weight. She readily suggested that she must have missed the caries. What at first appeared to be no more than a gracious gesture by a witness willing to aid Respondent's case took on different meaning when Examiner 417 testified, in DOAH Case No. 03-3955, first that she had detected visually and then retreated to testifying that she did not know if she had detected caries visually or tactilely--a significant concession because examiners were instructed explicitly not to rely on visual findings of caries. Returning, then, to the conflict between the findings of Examiner 420 and Examiner 207, substantially unaided by the corroborating findings of Examiner 417, either an experienced, credible dentist has found caries where none exists, or an experienced credible dentist has missed caries. The specificity of Examiner 420's testimony makes it more likely, as logic would suggest, that he did not imagine the existence of caries, and Examiner 207 somehow missed the caries. It is thus slightly more likely than not that Petitioner failed to remove the caries prior to presenting the patient. More importantly, though, for reasons stated in the Conclusions of Law, Examiner 420, in finding caries, adhered strictly to Respondent's rules and policies for evaluating candidates' work, and his finding was not arbitrary or capricious.
Recommendation It is RECOMMENDED that the Department of Health enter a final order dismissing Petitioner's challenge to the scoring of the clinical part of the June 2003 Florida Dental License Examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
Findings Of Fact Dr. Donald P. Austin freely, intelligently, and voluntarily admitted to violation of the provisions of Florida Statutes, 466.24(3)(e), and the Regulations of the Florida State Board of Dentistry, Chapter 21-G-9, Florida Administrative Code, by permitting Carmella Carney, an unlicensed person acting under his supervision and control, to perform work constituting the practice of dental hygiene, in that on Decumber 12, 1974 he permitted said Carmella Carney to remove calculus from the teeth of a patient, Barbara Dubrian. (TR 3-7) Similar Charges were filed against two licensed dentists who had practiced with Dr. Austin, and the proceedings were informally disposed of by the admissions of the dentists as to the accuracy of facts contained in the Accusation. Each dentist received a public reprimand in connection with those charges. The incident resulting in charges being filed against Dr. Austin was an isolated incident, and was the only occasion upon which Dr. Austin permitted any unlicensed person acting under his supervision to remove calculus from the teeth of a patient. (TR 9, 14, 15, 25). Dr. Austin's reputation among his colleagues for professional competence and integrity is excellent. (TR 23 - 25, 28, 29). The patient involved in this incident had very light calculus, only slightly heavier than heavy stains. Dr. Austin examined the work performed by Ms. Carney, and the teeth were clean. The patient did not complain about the work, and in fact, complemented Ms. Carney for it. Dr. Austin did not charge the patient for the work. (Th 9, 13-15).
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation section of the clinical part of Petitioner's June 2003 Florida Dental License Examination was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.9, so he failed the clinical part of the examination. Petitioner has challenged the grade of 2.0 that he received on the Patient Amalgam Preparation of the clinical part of the examination. The score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. Petitioner challenges only the score of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The section that is the subject of this case requires the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For the section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communications between examiners and candidates are exclusively through monitor notes. For the section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Patient Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Patient Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 394 each assigned Petitioner a 3 for this procedure, but Examiner 417 assigned him a 0. Examiners 207 and 394 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 417 detected caries and documented her finding, as required to do when scoring a 0. Examiner 207 has served as an examiner for 10 years and has conducted 15-20 evaluation examinations during this time. Examiner 417 graduated from dental school in 1979. Examiner 394 has been licensed in Florida since 1995 and has served as an examiner only three years. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Despite the requirement to detect caries by touch, not sight, Examiner 417 initially testified that she detected the caries by sight. Later in her testimony, she backtracked and stated that she was not sure if she felt it or saw it. Her earlier, more definitive testimony is credited; Examiner 417 never found caries by touch, only by sight. In DOAH Case No. 03-3998, Examiner 417 readily conceded that she must have missed the caries that another examiner had detected, inspiring little confidence in her caries-detection ability. In that case, her value as one of two dentists in the majority was insignificant, even though the majority finding prevailed. In this case, Examiner 417's role as the lone dentist who found caries is too great an evidentiary burden for her to bear. The vagueness of her testimony and her reliance upon visual caries-detection preclude a finding of caries in this patient. Three other additional factors undermine Examiner 417's finding of caries. First, Examiners 207 and 394 found no caries. Examiner 207 has considerable experience. Examiner 394 has less experience, but he was the lone evaluator in DOAH Case No. 03-3998 to detect calculus deep below the gums, proving that he is both meticulous and a demanding grader. Together, then, the findings of Examiners 207 and 394 of no caries carry much greater weight than the contrary finding of Examiner 417. Nor was it likely that Examiner 417 accidentally dislodged the caries. No evidence suggest that she was the first examiner to examine the patient, and her means of detecting caries was visual, not tactile. Second, the location of the caries in this case was directly in the center of the tooth. So located, it was difficult for Petitioner and Examiners 207 and 394 to miss. Third, by two monitors' notes, Petitioner twice obtained the evaluators' permission to expand the drilled area, due to the extensiveness of the caries, suggesting that Petitioner was devoting careful attention to the removal of all caries, even if it meant an atypical site preparation.
Recommendation It is RECOMMENDED that the Department of Health enter a final order granting Petitioner an additional two points on the clinical part of the June 2003 Florida Dental License Examination and determining that he has passed this part of the dental examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue The issue to be resolved in this proceeding concerns whether Joseph M. Pelle, the Petitioner should be issued a dental teaching permit in conjunction with his duties as Dean of the Jacksonville University Dental School of Orthodontists (dental school) in accordance with the authority cited and treated below.
Findings Of Fact The Petitioner is Dr. Joseph M. Pelle. His business address is 2800 University Boulevard North, Jacksonville University, Jacksonville, Florida. The Petitioner is not licensed to practice dentistry in Florida, but is licensed in three other states. His licensure is current and in good standing in those states. The Respondent is the Florida Board of Dentistry (Board). It is an agency of the State of Florida charged with regulating the licensure standards and practice standards for those engaged in the practice of dentistry in all its facets in the State of Florida. Its authority includes the authority, under the law cited below, to issue teaching permits in limited circumstances for professionals engaged in the teaching of clinical aspects of dentistry, at accredited institutions, offering advanced education to post-graduate dentists in Florida. The Petitioner filed an application for a teaching permit pursuant to Section 466.002, Florida Statutes, and Florida Administrative Code Rule 64B5-7.005, with the Respondent Board. The application is dated March 25, 2003. The teaching permit was proposed to be used at the Jacksonville University Dental School of Orthodontists in Jacksonville, Florida (Dental School). On June 25, 2003, the Board entered an order denying the application for the teaching permit. The Petitioner is the Dean of the Dental School of Orthodontics. The Petitioner is not currently licensed as a dentist in the State of Florida, but is licensed in Texas, Pennsylvania, and Ohio with all those licenses being in good standing. The Petitioner has practiced orthodontics since 1971, and has been the chairman of dental programs at the University of Pittsburgh and at West Virginia University. He has a board specialty from the American Board of Orthodontics. Jacksonville University is a private, non-profit, accredited, liberal arts university in Jacksonville, Florida, that confers degrees at the undergraduate and graduate levels. It also offers advanced professional education programs. The Dental School of Orthodontics offers advanced education in orthodontics to post-graduate dentists that have already completed their dental program to receive the DMD or DDS degree. The dental school currently has four full-time faculty, eleven part-time faculty, and adjuncts, both outside and inside the Jacksonville University. There are fourteen students currently enrolled in the program. The advanced program offered consists of approximately 3700 hours of formal intense instruction over a twenty-four month period. The program results in conferring a certificate of advanced education in orthodontics on successful students. The Petitioner's duties as Dean of the Dental School of Orthodontics, are divided between administrative and teaching duties. Approximately 75 percent of his duties are attributable to administrative matters and 25 percent to teaching. If the teaching permit is issued, the Petitioner will participate in clinical instruction at the Dental School of Orthodontics. The accreditation body for dental programs in the United States is the Commission on Dental Accreditation of the American Dental Association (the Commission). The Commission is a specialized programmatic accrediting agency recognized by the United States Department of Education. It conducts all aspects of the accreditation process for the more than 1300 programs for dental, allied dental, and advanced dental education in the Untied States. The accreditation is for the program itself, and not for the sponsoring institution. The Petitioner, on behalf of the Dental School of Orthodontics, applied to the Commission for accreditation and personally participated in the accreditation review process. The Commission's accreditation standards are set forth in a document entitled "Accreditation Standards for Advanced Specialty Education Programs in Orthodontics and Dentofacial Orthopedics" that was introduced in Petitioner's Exhibit Two in evidence. The accreditation process requires compliance with six standards contained in that document. The standards address institutional commitment and program effectiveness, the program director and teaching staff, the facilities and resources, the curriculum and program duration, the advanced education student selection, and research. The Commission concluded that the Dental School of Orthodontics is in compliance with all accreditation standards. See Petitioner's Exhibit Four in evidence. The curriculum for the Dental School was developed in accordance with the self-study guide of the Commission on Dental Accreditation of the American Dental Association. As a result of the accreditation process and evaluation, the Commission sent a letter dated August 5, 2003, to David L. Harlow, President of Jacksonville University, containing the following passage: The program in orthodontics and dentofacial orthopedics is accredited by the Commission on Dental Accreditation [and has been granted the accreditation status of 'initial accreditation.'] The Commission is a specialized accrediting body recognized by the United States Department of Education. That letter from the Commission also contains the following passage: Based upon all the information presented, the Commission concluded that the program is in compliance with the Accreditation Standards, including Standard 1-1 regarding financial support from entities outside of the institution. Accordingly, the Commission adopted a resolution changing the accreditation classification of the educational program from 'preliminary provisional approval' to 'initial accreditation.' No additional information is requested at this time. See Petitioner's Exhibit Four in evidence. Petitioner's Exhibit Three consists of the listing of from the American Dental Association of all Florida programs currently accredited by the Commission. The School of Orthodontics is included on that list. The Petitioner has never failed the Florida Dental Licensure Examination. The Petitioner is also a full-time faculty member at the Dental School of Orthodontics at Jacksonville University. The Petitioner has agreed not to engage in the practice of dentistry pursuant to the teaching permit if it is issued, except under the programs of the Dental School of Orthodontics. The Petitioner has also agreed that if the teaching permit is issued, all records pertaining to the teaching practice shall be subject to review and available to the Board of Dentistry. The Petitioner has also agreed that if the teaching permit is issued, information requested by the Board of Dentistry will be submitted for the purpose of allowing the Board to evaluate compliance with applicable laws regulating the practice of dentistry. The Petitioner has provided proof of current CPR certification to the Board of Dentistry. The Board of Dentistry does not issue or grant accreditation to dental programs in the State of Florida. Rather, the Board defers to the Commission as to its accreditation decisions. As shown by Respondent's Composite Exhibit One in evidence (letter of May 12, 2003, from attorney Bruce D. Lamb to the Executive Director of the Board of Dentistry) the Commission voted to discontinue awarding preliminary provisional approval status as to accreditation. According to that letter the United States Department of Education does not consider preliminary provisional approval to constitute accreditation. In fact, the Commission Communications Update of Fall 2002 indicates that the Commission has a firm policy that a program is strongly encouraged not to enroll students/residents until "initial accreditation" status has been obtained. If a program enrolled students or residents without first having been granted "initial accreditation" status, the Commission will notify all students or residents enrolled of the possible ramifications of enrollment in a program operating without accreditation. Thus, at least implicitly, the Commission and the U.S. Department of Education considers "initial accreditation" status, conversely, to constitute accreditation, at least for purposes of admission of students and residents to such a program.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that the Respondent enter a Final Order determining that the Petitioner is in compliance with the above- referenced statute and Rule, relating to the issuance of a teaching permit and that the application of the Petitioner for the teaching permit at issue be granted. DONE AND ENTERED this 15th day of March, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 15th day of March, 2004. COPIES FURNISHED: Lawrence Curtin, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Post Office Box 810 Tallahassee, Florida 32302-0810 Ann Cocheu, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Board of Dentistry, (Board) was the state agency responsible for the licensing of dentists and the regulation of the dental profession in Florida. Respondent, Carl T. Panzarella, was licensed as a dentist in Florida holding license No. DN 0008948, and was in practice in Palm Beach County. Dr. Panzarella graduated from the University of Maryland Dental School in 1981 and practiced in Baltimore, Maryland for approximately 1 year after graduation. In the Spring of 1982 he moved to Florida and for several years, up through the Autumn of 1983, worked for other dentists. At that time, however, he decided to open his own office and, in the course of preparing to do this, met with a dental supplier who advised him as to the relative merits of the locations for dental offices he was considering in various areas within Palm Beach County. After consideration of several vacant offices, he ultimately opened his practice in an office building where he was the only dentist. Within a year, however, 5 or 6 other dentists had opened in competition, primarily in retail locations in the area, where they could advertise by large signs affixed to or adjacent to their buildings. Because Respondent's practice was located in a discrete office building, he was unable to do this and he found his practice was not growing as he had desired because of that inability to attract patients. As a result, he decided to advertise. In the Spring of 1989, some 5 years after he opened his practice, and being dissatisfied with the speed with which it was growing, he attended a practice-building seminar at which one of the presentations recommended starting a dental referral service after a check was first made with the Department to see what type of activity could be approved. Considering that a good idea, Dr. Panzarella contacted 2 other dentists who shared office space and who agreed to go in with him if the proposal could be approved by both the Department and their attorney. Dr. Panzarella then called the Department's office in Tallahassee at an information number listed in one of its brochures. He was advised by an unidentified individual that there were no laws in Florida which regulated dental referral services. His lawyer and the lawyer for the other 2 dentists with whom he was considering opening the service agreed. Based on what he believed was a clear path toward the opening of such a service, Dr. Panzarella then went back to the practice-building firm and retained it to design the advertisement which he then placed in the October, 1989 edition of the telephone yellow pages in his area. As soon as the advertisement came out, Dr. Panzarella began getting a number of phone calls from dentists practicing in the local area objecting to it. Some were reasonable and some were quite vituperative in nature. At his own request Dr. Panzarella subsequently went to a meeting of the North County Dental Society at which he described his service and answered all the questions put to him by the members about it. Dr. Peter A. Pullon, President of the Central County Dental Society but not a member of the North County Society, was also present at that meeting and was most aggressive in his questioning of Respondent about the advertisement. After asking numerous pointed questions and apparently not getting the answers he wanted, Dr. Pullon left the meeting before it was terminated. In substance, however, Dr. Panzarella was told, at or after the meeting, that in the opinion of the members of the North County Society, he was in violation of the Board's advertising rules and he would either have to cancel the advertisement or let all dentists practicing in the area join his referral service. After Dr. Pullon left the meeting, the members agreed to query the Department for guidance on the issue and be bound by the Board's response, but before that could be done, Dr. Pullon, on behalf of the Central County Society, filed the Complaint which culminated in this hearing. In the interim period between the North County Society's meeting and the filing of the Administrative Complaint, Dr. Panzarella and his associates attempted to get additional dentists to sign up with their service. No one wanted to do so, however, especially in light of the complaints about it that had been raised. Once the Complaint was filed, Respondent called the Department and spoke with Mr. Audie Wilson, asking him about the propriety of a dental referral service, and again was informed there were no rules of the Board of Dentistry governing dental referral services. The advertisement in issue here was placed by Dr. Panzarella and 2 other dentists who were practicing together. The telephone number listed in the advertisement rang in one of the two offices; in Respondent's office several days a week and in his associates' office several days a week. That procedure was followed for a period of time until they were able to determine the volume of the business, at which time the referrals were turned over to a commercial answering service to handle. The referral service was not organized as a separate legal entity. The 3 dentists in question got together as a group to do it, and all calls which came in were referred either to Respondent's office or to the office of the other two dentists. All three were general dentists, and if anyone called with a specialized problem beyond their degree of competence, they did not refer that person to another dentist but, instead, directed that person to call another referral service. Respondent and his associates had written procedures under which the referrals to their practices were regulated, such as: how the calls were to be answered; who was to get the referral; and how questions asked were to be answered. Nonetheless, no one was hired by Respondent or his associates to operate the service. Any calls were answered by the regular receptionist in the office which was receiving the calls on that day. They did, however, keep records as to from whom and when the calls were received and to which office of the participants they were referred. From this, it becomes clear that the service organized by Respondent and his associates was no more than an avenue to funnel patients to their respective dental practices and was not, in fact, a bona fide referral service such as is operated by the Palm Beach County Dental Association and by others who also advertise in the phone book. The advertisement complained of here indicates that all members of the referral service had been checked on through the American Dental Association, insurance carriers, dental schools, and had a number of years in practice. In reality, these checks were done by the Respondent's wife who merely verified that the participants had the credentials claimed. The inspections of offices and equipment referred to were done by Respondent visiting his associates' office and their visiting his, and references were provided to each other. Dr. Pullon attended the North County Society's meeting where Respondent explained his service and spoke with him and his associates. Dr. Pullon has been in practice in Florida for 11 years and is licensed in Florida and other states. He is a member of and accredited by numerous accrediting agencies and organizations. In his 11 years of practice he has become familiar with referral services and it is his understanding there are only two bona fide referral organization types. One charges the client for referral to any one of several dentists in various specialties who are signed up with it. The other is operated by a dental society which refers on the basis of membership in the society. Those societies are, however, open to membership by all licensed dentists in the community. One must belong to the society to be eligible for the society's referral service. The instant situation, in Pullon's opinion, was not a bona fide referral service but more an advertisement for the participants' practices. It has been so found. Dr. Pullon filed his complaint with the Department in his capacity as President of the Central County Dental Society. On the complaint form he listed several witnesses to the operation of the service, none of whom are members of the Central County Society. After attending the pertinent meeting of the North County Society, Dr. Pullon advised Dr. Krauser, the president of that society, that he intended to advise the Respondent of the problem and would ask for an opinion from the Department before asking Respondents to pull their advertisement if it was determined to be inappropriate. He noted that if they were so advised and thereafter refused to pull the advertisement, he would then file a complaint with the Department. However, after briefing the executive committee of the Central County Society after the North County Society meeting, the committee voted to report the matter to the Department immediately. This is the second complaint Dr. Pullon has filed with the Department concerning another dentist. The former was not related to dental advertising or to this Respondent. It resulted in no action being taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case imposing on the Respondent, Carl T. Panzarella, a reprimand and an administrative fine of $1,000.00. RECOMMENDED this 12th day of October, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of October, 1992. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 George P. Bailey, Esquire The Raquet Club Plaza 5160 Sanderlin, Suite 5 Memphis, Tennessee 38117 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation/Board of Dentistry 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
