The Issue The issue for determination is whether Petitioner successfully completed the clinical portion of the December 1997 dental hygiene examination.
Findings Of Fact In December 1997, Brandy Kern was a candidate for the dental hygiene examination (Examination). Ms. Kern had completed her dental hygiene studies at the University of Pittsburgh on or about April 29, 1995. She was an excellent student. Prior to making application for the Examination, Ms. Kern had obtained experience in dental hygiene by working as a dental hygienist in at least three dental offices over at least a two-year period in the State of Pennsylvania. Her employers, who were dentists, gave Ms. Kern very positive recommendations. Ms. Kern successfully completed all portions of the Examination, except for the scaling/calculus removal portion of the clinical part of the Examination. As a result, Ms. Kern did not successfully complete the overall Examination. The clinical examination consists of three parts: scaling and calculus removal, polishing, and root planing. The overall score for the clinical examination is determined from all three portions. Scaling and calculus removal counts as 70 per cent of the clinical examination; polishing as 10 percent; and root planing as 20 per cent. Each dental hygiene candidate is graded by three examiners. The clinical portion of Ms. Kern's examination was scored by three examiners. The examiners were 197, 243, and 320. Each examiner is a dental hygienist licensed in the State of Florida and is an experienced dental hygienist. An examiner must be recommended by an existing examiner or by a member of the Board of Dentistry (Board), have no complaints against their license, and be actively practicing. To become an examiner, an application must be completed and submitted to an examination committee of the Board. The committee reviews the application and, if approved, the applicant is placed in a pool of examiners. Before every examination, each examiner is trained in evaluating a procedure to make sure that it is properly performed. The Department of Health (Department) conducts a training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida and are appointed by the Board of Dentistry (Board). To further their training, after the examiners receive their verbal training, the examiners are shown slides of teeth which do not meet the clinical criteria of the examination. To make sure that the examiners have been able to internalize the criteria, following the standardization, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where mannequins are used and the examiners check for errors on the mannequins. After the examiners complete their examination, the Bureau of Testing evaluates the examiners to determine whether the examiners are acceptable to use for the Examination. Subsequent to the Examination, the examiners are scored by the Bureau of Testing. The scoring is based on an examiner's performance wherein the Bureau of Testing examines how every examiner grades with every other examiner to make sure that the examiners are grading with reliability. This review is based on corroborated errors found by an examiner, not on the average errors found by an examiner. The average errors found by an examiner are irrelevant to the examiner's performance in that one examiner may have graded candidates who made numerous errors, while another examiner may have graded candidates who made very few errors. For the Examination, candidates are required to bring human patients on whom the candidates perform the dental procedures. Each examiner grades the Examination independently. The examiners do not confer with each other while scoring the Examination. Furthermore, the Examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored by a licensed dental hygienist. When the candidate completes the procedures, a proctor accompanies the patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. For the scaling/calculus removal portion of the Examination, the grading criteria is that complete removal of all supra and sub-marginal calculus from each tooth, without laceration to the surrounding tissue, is required. If the tooth is not clean and/or if there is damage to the surrounding tissue, the candidate is considered to have made one (1) error. Pursuant to Board rule, each tooth is judged as a whole. Even if a candidate makes three mistakes in performing the procedure on each tooth, e.g., calculus could be above the gum, calculus could be below the gum, and/or the gum could be lacerated, only one (1) error is counted against the candidate. The examiners do not document what error was committed by the candidate, i.e., whether the error is a calculus error or a laceration error. In grading the scaling/calculus removal portion of the Examination, a grade of five is the highest grade that a candidate can receive. A five is given if there are zero to three errors found. A grade of four is given if there are four errors found. A grade of three, which is considered to be minimally competent, is given if there are five errors found. A grade of two is given if there are six errors found. A grade of one is given if there are seven errors found, and a grade of zero is given if eight or more errors are found. For an error to be counted against a candidate, at least two of the three examiners must corroborate the error, i.e., at least two of the examiners must find the error. For Ms. Kern's clinical examination, she was scored by examiners 197, 243, and 320. All three examiners participated in the standardization training and were considered qualified to act as examiners for the Examination. Ms. Kern's examination was double-blind graded. Each examiner independently graded her examination. Examiner 197 found one error. Both examiners 243 and 320 found seven errors each. Examiners 243 and 320 agreed on six of seven teeth on which errors were found. Consequently, Ms. Kern was considered to have committed six errors. A post-examination review of the examiners was conducted. Examiners 243 and 320 were found to be reliable in their scoring. However, examiner 197 was found to be unreliable in his scoring. Examiner 197 was not used again for the Examination. The scoring of six errors made by Ms. Kern on the scaling/calculus removal portion of the Examination is not arbitrary or capricious or an abuse of discretion. The scoring process is not devoid of logic and reason. However, because examiners do not document the type of error committed by a candidate, a candidate has no way of knowing what detail of a procedure was improperly performed. The candidate only knows that a procedure, as a whole, was improperly performed. Consequently, a candidate who desires to re-take the Examination has no idea what procedure needs improvement by the candidate in order to prepare for a re-taking of the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry enter a final order dismissing Brandy Kern's examination challenge to the clinical portion of the dental hygienist licensure examination administered in December 1997. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998.
Findings Of Fact The Petitioner, a candidate for licensure as a dentist, was administered the state Dental Examination in June 1988. A part of the exam, the clinical portion, requires that each candidate perform specified procedures on a human patient. The exam procedures are performed in a clinical setting. A floor monitor is present during the examination. After each procedure is performed, the monitor escorts the patient to a grading room. In the grading room, three examiners separately and independently review each candidate's performance. The examiners generally do not discuss or otherwise communicate their opinions or the grades awarded other than to note such on the grading sheet completed by each examiner. The examiners are Florida-licensed practicing dentists. Prior to the examination, the examiners participate in a training session designed to provide a standardized, uniform reference for grading the results of a candidate's performance on the clinical exam. Each examiner awards a numerical grade between 0 and 5 for each procedure. The grade for each procedure reflects an evaluation of the whole of a candidate's performance. Comments are made by each examiner on the grading sheet, either through marking in a computer-scored portion on the sheet, or by written notes outside the computer-scored area. The criteria for each possible grade is as follows: 0--complete failure 1--unacceptable dental procedure 2--below minimal acceptable dental procedure 3--minimal acceptable dental procedure 4--better than minimal acceptable dental procedure 5--outstanding dental procedure The three scores awarded by the examiners are averaged to provide the grade for each procedure. Each candidate is identified on the grading sheet by number so as to prevent an examiner from knowing the identity of the individual candidate being reviewed. Each examiner is also identified by number. Examiners are assigned to grade a candidate through a random selection process. The test monitor is responsible for collecting the grading sheets after each examiner has completed the review. After the grading process is complete, the patient is returned to the clinic for performance of the next procedure. The grading process is repeated for each step. The Petitioner challenges the scores awarded to two of the ten procedures performed as part of the clinical exam. Procedure number two on the exam, the amalgam cavity prep, provides for the preparation of a decayed tooth for filling. Procedure number three, the final amalgam restoration, provides for the filling of the prepared cavity. The two procedures account for 20% of the total points on the clinical examination, divided between procedure two (two-thirds) and procedure three (one-third). On procedure number two, the Petitioner received a grade of 3 from examiner 133, a grade of 4 from examiner 194, and a grade of 0 from examiner 192. Examiner 192 noted that caries remained present in the prepared tooth cavity. Neither examiner 133 nor examiner 194 noted remaining caries, although both identified other areas of concern regarding the candidate's performance. According to the examination rules of the Department, a grade of 0 is mandatory if caries remain after completion of the procedure. There was no evidence to indicate that the review and scoring by examiner 192 was erroneous, beyond the fact that other examiners did not note remaining caries. It is possible, according to expert testimony, for one examiner to identify remaining caries which other examiners fail to discover. The remaining decay can be dislodged by one examiner in reviewing the procedure and therefore not visible to subsequent examiners, or the decay, loosened by the procedure, can be otherwise displaced within the patient's mouth between examinations. On procedure number three, the candidate received a grade of 3 from examiner 101, a grade of 4 from examiner 052, and a 0 from examiner 192. Examiner 192 noted that the functional anatomy, proximal contour, and margin of the amalgam restoration were deficient, further noting that a cervical shoulder existed and that the prepared area was not filled. The evidence did not indicate that the grade awarded by examiner 192 for procedure number three was erroneous or mistaken. According to the evidence, including expert testimony based upon a review of x-rays taken subsequent to completion of the procedure, the grade awarded by examiner 192 was appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Board of dentistry enter a Final Order dismissing the Petitioner's challenge to the grading of the two clinical procedures on the June 1988 dental examination. DONE and RECOMMENDED this 7th day of July, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 7th day of July, APPENDIX CASE NO. 89-0588 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: Rejected. The evidence did not establish that procedure number two is weighted more than all other procedures, but did indicate that procedures performed within the oral cavity are more heavily weighted that procedures performed outside the cavity. Procedures two and three are both performed within the oral cavity. Procedure two is, and, totaled, constitute 20% of the clinical examination. Procedure two provides two-thirds of the 20%, with procedure three providing one-third of the 20%. Rejected, restatement of testimony. The appropriate criteria for the 0-5 grade scale is as stated in Rule 21G-2.013 Florida Administrative Code. Rejected, not supported by weight of evidence. Both examiners noted comments on the grading sheet, either through marking within computer-scored area or by writing additional comments on the grading sheet. Rejected. The evidence did not indicate that it was "customary" for examiners to pass notes through monitors to the candidate. The witness testified that, on occasion, he had passed notes to monitors when he gave a score below three on the referenced procedures. However, there is apparently no requirement that examiners inform candidates, through monitors, of problems which are found during the grading of the candidate's work. Rejected, irrelevant. There is no requirement that the candidate should have been informed of the acceptability of his work or of his scores during the procedure. Rejected, not supported by weight of the evidence. The fact that one examiner identifies specific problem areas which are not identified by other examiners does not indicate that the scores are erroneous or that the standardization process undergone by the examiners was deficient. Rejected, conclusion of law. 14-15. Rejected, goes to weight accorded testimony of referenced witnesses. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 4. Rejected, irrelevant. 9. Rejected, as to characterization of Petitioner's testimony. COPIES FURNISHED: James Sweeting, III, Esquire 2111 East Michigan Street, Suite 210 Orlando, Florida 32806 E. Harper Field, Deputy General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0729
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2001.
Findings Of Fact Petitioner is a graduate of a dental college in India, which is not accredited by the American Dental Association, and has had postgraduate training in New York and Ireland. Petitioner was a candidate for licensure by examination to practice dentistry in the State of Florida. The dental mannequin examination, which is at issue here, consists of nine (9) procedures, each of which is graded separately. Petitioner took the dental mannequin examination at the December, 1983, administration, which was his second attempt, and obtained a total overall grade for the dental mannequin examination of 2.06. An overall grade average of 3.0 is required to pass the mannequin examination. The grading scale as established by Rule 21G-2.13, Florida Administrative Code (F.A.C.) is as follow: O - Complete failure - Unacceptable dental procedure - Below minimal acceptable dental procedure - Minimal acceptable dental procedure - Better than minimally acceptable dental procedure - Outstanding dental procedure Examiners for the dental examination are currently licensed dentists in the State of Florida who have been trained and standardized by Respondent, with training sessions taking place prior to each administration of the examination. During the standardization exercise, the examiners grade identical procedures and then discuss any grade variance and attempt to eliminate any discrepancies and interpretations of the grading criteria. Each examination is graded on the above scale by three separate examiners. They are identified only by examiner number on the grade sheet and do not confer with each other or the candidate regarding the score given on any of the graded procedures. Petitioner has challenged the overall examination which he believes was unfairly graded. In support of his argument, he relies mainly on differences in the scores assigned by the three examiners as well as their varying comments on the grade sheets. Specifically, Petitioner challenged procedures 02 through 08. In addition to the grades assigned by the three examiners who are licensed Florida dentists, Respondent presented the testimony of its consultant, Dr. Simkin, who is also a licensed Florida dentist and an experienced examiner. Petitioner presented his own testimony on each procedure and that of Dr. Lee and Dr. Rosen, who are both experienced dentists. Dr. Lee is licensed in Florida, but Dr. Rosen is not. The testimony of Doctors Simkin and Lee supported the evaluations given by the examiners, with the exception of the one high grade given on procedure 02 (discussed below) which was an error in Petitioner's favor. Dr. Muskar and Dr. Rosen generally conceded the deficiencies noted by the examiners and the other witnesses, but felt these deficiencies were not sufficiently serious to warrant the failing or minimum passing scores assigned. Procedure 02 is the distal occlusal amalgam preparation on a maxillary second bicuspid. The prepared was found to have the sides drilled too deeply, the top was too shallow, and the break in contact between the teeth was too wide, so that there was some doubt as to whether the filling would be retained. The examiners gave the candidate a 3, 3, and 2, and correctly determined that there were problems with the outline form, the depth, retention and a failure to cut the preparation into the dentin. On procedure 03, which is the distal class III preparation for a complete restoration on a maxillary central incisor, the evaluation of two of the examiners that there was no contact made between the teeth involved was correct. This is required of the candidate in the preparation of the denture form for this procedure. The examiner who assigned a grade of 5 was mistaken, but this grade was included in Respondent's overall score. On procedure 04, which is the class III composite restoration of the distal of a maxillary lateral incisor, the examiners awarded 2, 2, and 1 (all failing grades). The restorative material did not duplicate the anatomy of the natural tooth, there not being a flush finish of all margins with the natural tooth structure and the final finish not showing high polish and correct anatomical contour. On procedure 05, completed endodontic therapy using gutta percha in a maxillary lateral incisor, the x-ray (Respondent's Exhibit #3) revealed that the apex of the tooth root was not sealed against fluids in the bone and that there was approximately a one millimeter over-extension of the filling material. The examiners awarded failing grades of 2, 1, and 1, and found there was not proper apical extension in all canals, the gutta percha was not well condensed and adequate filling was not demonstrated by canal width. On procedure 06, distal occlusal restoration on a tooth previously prepared and provided by Respondent, the examiners awarded grades of 1, 2, and 3, noting that there were problems with the functional anatomy, the proximal contour contact and the margin flush with cavo-surface margin. On procedure 07, 3/4 crown preparation on a maxillary second bicuspid, grades of 3, 3, and 4 were awarded which are consistent, and the written comments supported the passing grades awarded. On procedure 08, full crown preparation on a maxillary second molar, failing grades of 1, 1, and 1, were awarded with problems noted in the occlusal reduction, the axial reduction, and the ability of the crown to draw from the gingival margin. The grades awarded for this procedure were identical, the comments supported those grades and inspection of the exhibits confirmed comments and the grades.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ORDERED this 21st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1984.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that the Respondent has violated several statutory provisions by repairing dentures in a licensed dental lab without having obtained the required work order from a licensed dentist.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: At all times relevant and material to this case, the Respondent, Magnolia Iole, held license number DL 0002153 issued by the Department of Professional Regulation, which licensed her to operate as a dental laboratory in the State of Florida. At all times relevant and material to this case, the Respondent's dental laboratory was operated at 201 East Oakland Park Boulevard, Fort Lauderdale, Florida, under the business name of All Emergency Denture Service. On April 11, 1990, an investigator with the Department of Professional Regulation took a broken denture to the Respondent's dental laboratory and asked to have it repaired. The broken denture was a woman's denture that had been obtained by one of the other Department investigators from a local dentist's office. The investigator who presented the broken denture for repair had not seen any dentist regarding the broken denture, nor did the investigator have any work order from a dentist for the repair. On April 11, 1990, an employee of the Respondent's dental laboratory agreed to repair the broken denture that was brought in by the Department investigator. The employee said that the repair would cost $50.00, and that the denture would be ready later than same day. Later that same day two Department investigators returned to the Respondent's dental laboratory, where they met the same employee who had agreed to repair the broken denture. The employee told the investigator who had brought the denture that it would be ready in a few minutes. A few minutes later the employee of Respondent's dental laboratory handed the repaired denture to the investigator who had brought it in earlier the same day. At that time the previously broken denture was completely repaired. Although the Respondent, Magnolia Iole, was not observed on the dental laboratory premises during the events of April 11, 1990, described above, she was aware that such events were taking place, because during a telephone conversation on April 12, 1990, Magnolia Iole admitted to a Department investigator that she had been taking repair work without work orders because she needed the money. A work order for denture repair is an order from a licensed dentist to a dental laboratory directing that certain repair services be performed. The work order is, essentially, a prescription for the performance of specific services. A dental laboratory is not permitted to perform a repair of an intra- oral dental appliance without a work order signed by a licensed dentist. A dental laboratory that repairs a denture without a work order issued by a licensed dentist is engaged in the unauthorized practice of dentistry. Denture repair under such circumstances also constitutes the acceptance and performance of professional responsibilities which the dental laboratory licensee is not competent to perform. Denture repair without a work order issued by a licensed dentist, even when the repairs are excellently accomplished, can prevent the discovery of emerging dental problems and cause them to go untreated to the harm of the patient.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Dentistry enter a final order in this case concluding that the Respondent has violated Sections 466.028(1)(z) and 466.028(1)(bb), Florida Statutes, and imposing an administrative penalty consisting of a six month suspension of the Respondent's license, to be followed by a one year period of probation during which the Respondent shall be required to advise the Board quarterly of all work performed by the Respondent's dental laboratory and shall comply with all statutory and rule provisions governing the activities of dental laboratories. DONE AND ENTERED at Tallahassee, Leon Coun~y, Florida, this 21st day of May, 1991. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1991. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Ms. Magnolia T. Iole 531 Northwest 39th Street Oakland Park, Florida 33309 Mr. William Buckhalt, Executive Director Florida Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent regrade Petitioner's examination and give equal numerical point value to each criterion; it should also regrade procedure 3 giving consideration only to the grades of examiners 038, 02 and 048; all other requests for relief should be DENIED. DONE and ORDERED this 10th day of January, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1983.
The Issue The issue in this case is whether Petitioner should receive a passing score on the December 2001 dental license examination.
Findings Of Fact In December 2001, Petitioner took the dental licensure examination and failed to pass the clinical portion of the exam. The examination is a three-day process involving two days of clinical examination. Those two days of clinical examination consist of nine procedures. Four of the nine procedures were challenged by Petitioner. The clinical portion is where the candidate is required to perform certain patient procedures. The work product of the student, or candidate, is evaluated following the performance of those procedures by three examiners. Each examiner grades the candidate independently of whatever score the other examiners may award on a particular procedure. Then the average grade for each procedure is weighted in accordance with requirements of Rule 64B5-2.013, Florida Administrative Code. This produces the overall score for the entire clinical exam. The Department uses three examiners' scores because this provides a more reliable indication of the candidate's competency and true score. Further, each examiner must be a licensed dentist for a minimum of five years and have no complaints or disciplinary actions against their license. Examiners have no contact with the candidate taking the examination and, accordingly, have no idea of who they are grading. To further ensure fairness, each examiner must attend and successfully complete a standardization session. The purpose of these sessions is to ensure that each examiner is trained to use the same internal grading criteria. In standardization, each examiner is thoroughly taught specific grading criteria with the result that examiners are instructed on how to evaluate the work of the candidates. The examiners who graded Petitioner’s examination had successfully completed the foregoing standardization session. Also, the Department’s post-exam check found these examiners’ grading to be reliable. Petitioner contested the score he received on Procedure 4, the Endodontic procedure, a root canal. The Endodontic procedure required removal of infected nerve tissue and blood vessels pulp from the tooth. Petitioner was required to access the canal and pulp tissue from the outside. Then, Petitioner was required to remove the bad nerve and cleanse the canal. Finally, Petitioner was required to seal the canal to prevent recurring bacteria. Petitioner failed to observe a fracture in the tooth. He claimed that a fracture to the root of the tooth was caused by the Department after he reviewed his examination and that no one advised him the root was fractured. Petitioner requested a score of 3.00 for this procedure. However, the Department's witness, Dr. William F. Robinson, a licensed dentist for 32 years who examined the tooth and X-ray prepared by Petitioner, testified that the fracture to the root was noticed in both the X-ray and on the tooth when he examined the same. Additionally, two of the three re-graders also noted the fracture of the root. With regard to Petitioner's preparation of the X-ray at the conclusion of the examination, Dr. Robinson opined that Petitioner caused the fracture to the root during the examination and not the Department, as alleged by Petitioner. Dr. Robinson further opined that even without a fracture to the root of the tooth, Petitioner failed the procedure and the failing grade he received was fair. Dr. Robinson would not recommend that Petitioner receive a passing score of 3.00 on the procedure. The examiners' comments and grades and the testimony of Dr. William F. Robinson establish that Petitioner failed to properly perform this procedure. The grade Petitioner received was fair. Petitioner challenged the grade he received on Procedure 5, the Class IV Composite Restoration of the front tooth, but did not offer any testimony at the hearing as to why the score was not correct for the procedure. Petitioner requested that the score of 1.00 given by one of the examiners be thrown out, thus giving him a passing grade on this procedure. Procedure 5 of the dental licensure examination is a procedure that involves the candidate’s ability to replace the edge of the front tooth with a composite resin material, which is a tooth-colored filling. As established by the examiners’ comments and grades and the testimony of Dr. William F. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Specifically, the examiners found that the tooth was abraded and the re-grader noted, as did the examiners, the excessive “flash” on the tooth. Dr. Robinson also noted both deficiencies in the procedure. Petitioner contested the score he received on Procedure 6, the Class II Composite Restoration procedure in his original petition, but offered no testimony at the hearing concerning this procedure. Dr. Robinson reviewed the examiners' grades and the tooth prepared by Petitioner and opined that Petitioner’s grade of 2.66 for this procedure is fair. Based on the examiners’ comments and grades and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. Petitioner contested the score he received on Procedure 7, the preparation for a 3-unit Fixed Partial Denture, claiming that on the re-grade one of the examiners reviewed the wrong procedure. The Preparation for a 3-unit Fixed Partial Denture procedure of the dental licensure examination is a procedure that involves the candidate’s ability to provide preparations of two (2) teeth in order to replace a missing tooth with a fixed bridge. Dr. Robinson established that Petitioner’s work on this procedure resulted in one tooth, No. 29, being grossly over reduced and tooth No. 31 was insufficiently reduced. The result of such work is that it is impossible to place a bridge on such an improper preparation. As established by testimony of Dr. Robinson, Petitioner's problem with this procedure resulted from Petitioner’s undercut. This undercut indicated that Petitioner’s preparations were not properly aligned to accept a bridge. Based on the examiners’ comments and grades, and the testimony of Dr. Robinson, Petitioner failed to properly perform this procedure and the grade Petitioner received was fair. The Department's “re-grade” process was utilized in this case. Used to give all candidates who timely request a hearing another chance at passing, the re-grade process allows the Department to go back and determine whether any grades rendered were inconsistent. The Department selects the top three examiners who had the highest reliability from that examination to participate in the re-grade process. The Department maintains post-standardization statistics of the examiners’ performance. In this case, those statistics indicated that Petitioner’s examiners graded reliably. In addition, the Department calculates post- examination statistics for the examiners, which are as follows for the examiners who graded Petitioner’s challenged procedures: Examiner Accuracy Index & Rating #206 95.8-Excellent #375 98.8-Excellent #380 92.1-Good #334 97.8-Excellent #298 95.9-Excellent #375 98.8-Excellent-was an original and a re-grader. All of Petitioner's examiners exhibited a reliability significantly above the minimum acceptable accuracy index of 85.0.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the December 2001 dental licensure examination. DONE AND ENTERED this 9th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 9th day of October, 2002. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Jason S. Baker, D.M.D. Westchester Medical Center 95 Grasslands Road, Box 572 Valhalla, New York 10595 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
The Issue Whether Respondent violated Subsections 456.057(4) and 466.028(1)(n), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of Dentistry pursuant to Chapters 456 and 466 and Section 20.43. Dr. Kashlak is and has been at all material times hereto a licensed dentist in the State of Florida, having been issued license number DN 0011469. Dr. Kashlak has been practicing dentistry since 1985. She and her husband, Dr. Anthony Oswick, have had a small general dentistry practice in Orlando since at least 1990. On August 8, 2001, Dr. Kashlak first saw patient D.B. X-rays were taken on that date, and D.B.'s teeth were cleaned. D.B. next presented on August 21, 2001, at which time the cleaning of her teeth was completed. D.B. was scheduled for a one-hour appointment at 1 p.m. on September 19, 2001. D.B. called Dr. Kashlak's office at 10 a.m. on the morning of her appointment and advised that she had a conflict with her 1 p.m. appointment. She was advised that she would be charged a $50 cancellation fee if she did not make her appointment. D.B. advised that she would be coming, but that she would be late. D.B. arrived at 1:25 p.m. for her appointment. She was advised by the receptionist that she was too late for her appointment and that she would be charged the $50 cancellation fee. D.B. was unhappy with the situation. The receptionist told D.B. that she would have the dentist call her. It is the policy of Dr. Kashlak's office that she will deal with Dr. Oswick's patients on fee matters and that he will deal with her patients on fee matters. On the evening of September 19, 2001, Dr. Oswick called D.B. to discuss her concerns about the cancellation fee. D.B. and Dr. Oswick argued about the cancellation fee. D.B. advised him that she was not happy with the way that she had been treated and that she would be going to another dentist. D.B. told Dr. Oswick that she wanted her dental records, and he advised her to put her request in writing and send a check for $35 to cover the costs of copying the records. In a letter dated September 25, 2001, D.B. sent a letter to Dr. Kashlak stating the following: As per your instructions, I have enclosed a check for $35 to cover the cost of duplicating my dental records--x-rays, treatment plan, and notes. Please call me at the number noted below as soon as they are available and I will come by to pick them up. On October 8, 2001, D.B. received a copy of her dental x-rays and a letter enclosing a check for $99, which represented a refund of an insurance claim payment for D.B. No mention was made in the letter why all D.B.'s dental records had not been sent, and no mention was made that Dr. Kashlak or Dr. Oswick would contact D.B. concerning the remaining dental records. D.B. called Dr. Kashlak's office on October 8, 2001, and spoke to Dr. Oswick. Dr. Kashlak was with Dr. Oswick during the telephone conversation with D.B. D.B. asked why she had not received all of her dental records. He told her that the diagrams of her teeth would not copy well and that there was nothing else that she needed in her records. D.B. did not indicate to Dr. Oswick that she was withdrawing her request for the records. D.B. went to another dentist on October 17, 2001. She gave the x-rays to the dentist and told the dentist that she was unable to get the remaining records from Dr. Kashlak. Upon being advised by the new dentist that Dr. Kashlak was required to provide her with a copy of the records, D.B. went by Dr. Kashlak's office after her dental appointment in an attempt to get her dental records. The receptionist at Dr. Kashlak's office would not give D.B. her records. After her October 17 visit to Dr. Kashlak's office, D.B. never attempted to contact Dr. Kashlak again concerning her dental records. On October 17, 2001, Dr. Kashlak and Dr. Oswick were on vacation and were not in the office. They were not advised that D.B. had stopped by the office requesting her records. In April 2002, D.B. filed a complaint with the Department concerning Dr. Kashlak's treatment and the failure to provide the requested dental records. The Department investigated the complaint and contacted Dr. Kashlak by letter dated June 24, 2002, advising her of the complaint. By a Verification of Completeness of Records form dated July 15, 2002, Dr. Kashlak sent D.B.'s records, consisting of 14 pages, to the Department. One page of D.B.'s dental records, which the Department received, contained the following in the upper right- hand corner: Personal Notes: 9-19-01 Pt. showed up @ 125 pm -- caused disruptive scene in reception area/slanderous stmts. demanding refund. mk 9-19-01 called pt per request, became argumentative Re: broken appt. fee !! Also requested copy of x-rays afo 10-8-01 spoke to pt Re. Tx notes argumentative Re: BA Fee of $50 Pt's next dentist to contact us mk After receiving notice from the Department of D.B.'s complaint, Dr. Kashlak also sent D.B. a copy of D.B.'s dental records, which D.B. received on July 20, 2002. D.B.'s copy did not contain the personal notes set forth above. Dr. Kashlak has never had her license to practice dentistry disciplined.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Kashlak violated Subsections 456.057(4) and 466.028(1)(n), imposing an administrative fine of $750, issuing a reprimand, and requiring Dr. Kashlak to complete 30 hours of continuing dental education in record keeping or risk management. DONE AND ENTERED this 11th day of September, 2003, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2003. COPIES FURNISHED: Wayne Mitchell, Esquire Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Brian D. Stokes, Esquire Unger, Acree, Weinstein, Marcus, Merrill, Kast & Metz, P.L. 701 Peachtree Road Orlando, Florida 32804 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 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue This is a license discipline case in which the Respondent has been charged in a Corrected Administrative Complaint with a violation of Section 466.028(1)(m), Florida Statutes.
Findings Of Fact At all times material to this proceeding, the Respondent, Dr. Merle N. Jacobs, has been licensed to practice dentistry in the State of Florida. He currently holds license number DN 0005940. During the period from January 22, 1993, through March 27, 1995, T. C. was a patient of the Respondent. During that period of time, the Respondent performed various dental services for T. C., including the making and fitting of a partial denture. The Respondent prepared and kept dental records and medical history records of his care of patient T. C. The Respondent's records of such care are sufficient to comply with all relevant statutory requirements. The Respondent's records of such care do not include any notations specifically identified or captioned as a treatment plan. The records do, however, include marginal notes of the course of treatment the Respondent intended to follow in his care of patient T. C. Those marginal notes describe the treatment the Respondent planned to provide to patient T. C.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 29th day of May, 1998.
The Issue Whether Petitioner should receive a refund for an alleged overpayment of dental insurance premiums.
Findings Of Fact The Division of State Group Insurance (Division) is the executive agency within the Department of Management Services (Department) that is responsible for the administration of the State Group Insurance Program (Program). Isaacs was first employed with the State of Florida in 1993, and remained employed with the State until March 2011, when he retired. According to Isaacs, when he originally signed up for dental insurance, there were only two options available for employees; an employee could sign up either for “employee” coverage or for “employee plus family” coverage. Isaacs chose “employee plus family” dental coverage, so that he and his spouse would have coverage. During his tenure as a State employee, Isaacs was married and had no children. At all times material to the instant case, Isaacs resided, and received his mail, at 13021 S.W. 116th Street, Miami, Florida, 33186. On January 1, 2005, the State of Florida started using an online system called “People First” to manage State of Florida employee payroll and benefit packages. Every employee and retiree was given a username and password to access the online system. Each employee’s payroll information, leave balances, and benefits information could be seen online. Pursuant to section 110.123(3)(h), every year there is a finite period of time during which State employees can sign up for benefit plans, or change their existing benefit plans, for the upcoming calendar year. This period is called “open enrollment.” Prior to open enrollment every year, People First mails out, to every State employee, a package which contains a personalized benefits statement and a Benefits Guide, which contains information as to all the benefit plans that are being offered for the upcoming calendar year. The benefits statement informs employees of the benefits they currently have and will continue to have during the upcoming calendar year, unless they make changes to their insurance or coverage level. On September 7, 2007, the Division mailed each participant in the dental insurance program a letter explaining significant changes to the dental program. This letter was mailed by first class mail to the address of record for each employee who was then enrolled in the dental program. Isaacs' address of record in People First was his mailing address: 13021 S.W. 116th Street, Miami, Florida, 33186. Isaacs claims that he never received this letter. The undersigned finds this testimony to not be credible, given that Isaacs' address has not changed in 33 years, and he was unaware of any other problems with delivery to this address. The September 2007 letter advised employees that there would be new coverage levels offered in 2008. It stated, in pertinent part: There will be new coverage levels offered in 2008. You may currently be enrolled in a coverage level that will not be offered. The new coverage levels are: ° Employee Only ° Employee + Spouse ° Employee + Child(ren) ° Family You will have the opportunity during the upcoming Open Enrollment to cancel coverage, change your coverage level, or switch to another dental plan. Any change you make will be effective on January 1, 2008. If you take no action, your dental coverage may be changed automatically for 2008. If you are currently enrolled in a coverage level that will not be offered in 2008, you will be enrolled in Family coverage. People First sent Isaacs open enrollment packages in 2007, 2008, 2009, and 2010. The 2008 package, sent on September 17, 2007, included a Benefits Guide which contained all the information as to the change in the dental insurance program. Employees were placed on notice that except for employees who had previously been enrolled for “Employee” coverage, all coverage levels would be moved to “Family” coverage unless the employees made changes during open enrollment. The package included instructions on how to make the coverage changes, and how to verify that those changes had been properly made. Isaacs never changed his dental plan coverage; therefore, he was defaulted to the “Family” coverage as of January 1, 2008. Due to his failure to act, he remained in that coverage until he retired. The open enrollment packages sent to Isaacs for years 2009, 2010, and 2011 included information as to the dental coverage tiers, and a personalized Benefits Statement which indicated which benefit plans Isaacs was enrolled in, and his coverage level. Every year, he could have made changes to his dental insurance coverage, but failed to do so. As of People First going “live” in 2005, all State employees could review their benefits and coverage levels online. Thus, Isaacs, on his state-issued desktop computer, had access to People First, and could have reviewed his coverage levels and benefit plans. Isaacs admitted at hearing that he did not review the open enrollment packages he received every year because he was under the impression, based on advice he was given, that he need not review the information if he was not making any changes to his coverage levels or benefit plans. He added that he was not sure if he even opened all the open enrollment packages that were sent through the years. Isaacs had the responsibility to open, review, and carefully read the open enrollment packages and all correspondence sent to him by his employer. Isaacs was advised of the changes to the dental plan, but did not review the information sent to him. He had ample notice of the change to the dental plan coverage levels, but failed to review the information, and failed to avail himself of the many opportunities he had to adjust the coverage level. He paid for more coverage than he needed because he ignored all the information sent to him, which gave him specific instructions on how to avoid that exact circumstance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services enter an order denying Isaacs' request for a refund for his overpayment of dental insurance premiums. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2011.
