The Issue The issues in this case are framed by the Notice of Intent to Issue an Order to Cease and Desist, filed by the Florida Insurance Commissioner on August 18, 1992, Dept. of Insurance Case No. 92-CA-058EMM, as modified by the parties' Joint Prehearing Stipulation, filed on March 18, 1993. The Cease and Desist Order alleges in Count I essentially that the United Dental Program of America (UDP) 2/ is a dental service plan that has been operating in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 637, Part III, Fla. Stat. (1991). Count II alleges essentially that, in so operating, UDP and one or more of the other respondents were guilty of various deceptive acts or practices prohibited by either Chapter 637, Part III, or by Chapter 624, Fla. Stat. (1991). In the parties' Joint Prehearing Stipulation, the Department of Insurance dropped all of the alleged deceptive acts or practices except the allegation that sales solicitation materials falsely guaranteed savings of 60 percent or more under the UDP product. Count III alleges essentially that UDP has been transacting insurance in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 624, Fla. Stat. (1991). The Cease and Desist Order also seeks an administrative penalty against UDP in an amount not to exceed $1,000 per violation, and an administrative penalty of $10,000 against each of the other respondents for each dental service plan contract or insurance contract offered or effectuated in Florida.
Findings Of Fact At the time the Florida Insurance Commissioner filed the Notice of Intent to Issue an Order to Cease and Desist in this case, UDP was incorporated in the State of Delaware as United Dental Plan of America, Inc. On December 23, 1992, UDP filed a name change with the Secretary of State of Delaware, and the company has since been incorporated as United Dental Program of America, Inc. Before and after the name change, the company has been referred to as UDP, and the acronym "UDP," when used in this Recommended Order, may refer to the company either before or after the name change. The Department and UDP stipulated that, prior to August 18, 1992, Bob Rose, a/k/a Robert Rosenfeld, by a nationally accessible electronic telephone system, recorded a message of solicitation to subscribers, UDP sales associates, and potential sales associates, which was directed, in part, to Florida residents. They also stipulated that respondents Paul Sheldon, William C. Stinnett, Phillip Young, Richard A. Gilbert, John C. Sparks, Jean Joseph and Nick Virenza, a/k/a Nick Verrengia were UDP sales associates who sold UDP memberships in Florida prior to August 18, 1992. The individual named respondents did not enter into the stipulation referred to in the preceding paragraph. However, the UDP stipulation is viewed as evidence on which the findings in the preceding paragraph can be based. Prior to August 18, 1992, without Department approval, UDP sales associates in Florida, including the named respondents referred to in Finding 2, were active in selling subscriptions to UDP's Dental Program to Florida residents, and held meetings for the purpose of selling the Dental Program and recruiting sales associates. There are 1,981 subscribers in the State of Florida. There was no evidence as to which of the 1,981 subscriptions sold in the State of Florida were sold by which of the individuals identified in Finding 2. UDP is not, and has never been, licensed under the Florida Insurance Code. UDP sells an annual membership to its subscribers. There is an individual membership costing $85 a year and a family membership costing $150 a year. If UDP resumes operations in Florida, the annual fees will be $140 for senior couples, $155 for other couples, $170 for families, $80 for senior individuals, and $95 for other individuals. Subscribers are given a one year membership card. For one year from the subscription date, the subscriber receives an annual no-cost dental checkup and x-rays pursuant the UDP subscriber and provider agreements. Subscribers are provided a list of dentists in their geographic area (and elsewhere, if requested) (a "dental directory") who have entered into an agreement with UDP to be on the list. By agreeing with UDP to be on the list, dentists agree that, if they accept a subscriber who has not yet had his or her annual checkup and x-rays, they will do the checkup and x-rays at no cost. They also agree to charge the subscriber for other dental services performed during the subscription year in accordance with a schedule of presumptively reduced fees or, if a procedure is not scheduled, for a 25 percent discount from their usual and customary fees. UDP marketing materials assert that the scheduled fees are lower than the "typical costs." If participating dentists accept subscribers, they agree to abide by the agreement with UDP described in the preceding paragraph. The participating dentists are not obligated to accept subscribers as patients. They have "the right within the framework of professional ethics to reject any patient seeking [their] professional services." The contractual documentation does not further clarify whether, once a participating dentist begins a procedure for a subscriber, the dentist is obligated to complete it or whether, once a procedure is completed for a patient, the dentist is required to accept the patient if the patient returns for additional procedures or services. Notwithstanding the unclear contractual provisions, UDP professes a desire to effectuate an understanding with participating dentists that they will accept UDP patients "on an equal basis" with their other patients. It is not clear how UDP would propose to reach or enforce this understanding. Subscribers are free to use, or attempt to use, any dentist on the list, or directory, and are free to change dentists as often as they choose. (They also remain free to use any dentist not on the list, or directory, under any financial arrangements to which the patient and dentist might agree, but they would not be entitled to benefits under the UDP program.) Except for the annual checkup and x-rays, they are obligated to pay the discounted fees directly to the dentist. Under the UDP program, they expect, and are entitled to, no payment from UDP, either to them or to the dentist. Dentists who agree to participate in the UDP program are also free to maintain their own private practice and to participate in any other dental insurance or plan or program that they wish. Under the UDP program, they expect, and are entitled to, no payment of any kind from UDP. If they perform the free annual checkup and x-rays for a subscriber, they receive no payment from any source for those services. If they perform no other services for a subscriber, the dentists have no recourse against either the patient or UDP. If they perform other services for a subscriber, they are entitled to look only to the subscriber for payment, and only in accordance with the UDP fee schedule, or 25 percent discount, whichever applies. UDP is not liable to the dentists for payment of any part of a subscriber's fees. If the subscriber does not pay, the dentists have no claim against UDP. Under the UDP program, the dentists who agree to participate in the UDP program are solely responsible for dental advice and treatment. UDP has no control over the dentist's practice, rates charged (except insofar as the UDP fee schedule applies, or 25 percent UDP discount is necessary), the dentist- patient relationship, or the dentist's personnel or facilities. UDP and the dentists who agree to participate in the UDP program also agree that the dentists will maintain malpractice insurance coverage for their practices in an amount not less than $300,000 per incident. The dentists must provide UDP with a copy of the malpractice insurance. There was evidence that an early brochure developed by UDP before 1992 contained an untrue guarantee of savings of at least 60 percent. But there was no evidence on which a finding of fact can be based that UDP, through any representative, whether or not named as a respondent to this proceeding, ever delivered a copy of the brochure, or made the misrepresentation, to anyone, much less someone in Florida. In addition, other information also was developed contemporaneously from which it could be determined that savings of at least 60 percent were not guaranteed. The Department first notified UDP that the Department believed UDP and the other named respondents were in violation of the Florida Insurance Code by letter dated March 5, 1992. Between March 5, and August 18, 1992, UDP and the Department engaged in numerous informal telephone and written communications through which UDP attempted in good faith to persuade the Department that UDP was not subject to regulation under either Chapter 637, 624 or 626 and that UDP was not in violation. It was not established how many, if any, of the 1,981 subscriptions UDP sold in Florida occurred after March 5, 1992. According to the Joint Stipulation between the Department and UDP, none of the subscriptions were sold after August 18, 1992, the date of the Cease and Desist Order issued against UDP and the other named respondents. There was no evidence contrary to this stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order: (1) finding that United Dental Program, Inc. (UDP) is a dental service plan corporation subject to regulation under Part III, Chapter 637, Fla. Stat. (1991); (2) finding that individuals who represent UDP are subject to regulation under Section 637.415, Fla. Stat. (1991); (3) finding that UDP and some of its representatives sold 1,981 subscriptions in Florida without having the authorization required under Part III, Chapter 637, Fla. Stat. (1991); (4) requiring UDP and the individual respondents named in Finding 2 to cease and desist from operating the UDP dental service plan corporation in Florida without having the authorizations required under Part III, Chapter 637, Fla. Stat. (1991); and (5) assessing against UDP an administrative penalty in the amount of $5,000. RECOMMENDED this 23rd day of April, 1993, 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 April, 1993.
Findings Of Fact The parties stipulated to certain facts as follows: Dr. Emory T. Cain is currently licensed as a dentist in Florida holding License No. 4260. Dr. Cain is subject to the juris- diction of the Florida State Board of Dentistry under Chapter 466, Florida Statutes, and the rules and regulations promulgated thereunder. Dr. Cain was served a copy of the Accusation filed by the Florida State Board of Dentistry and the Explanation of Rights and Election of Rights form in accordance with Chapters 120 and 466, Florida Statutes. Dr. Cain answered the allegations contained in the Accusation by indicating on the Election of Rights form that the alle- gations contained disputed issues of material fact and that he elected to have a formal hearing before a hearing officer appointed by the Division of Administrative Hearings. Dr. Cain does not wish to contest the allegations set forth in the Accusation and for the purposes of this hearing, said allegations shall be deemed as true. Additionally, there are further facts which are relevant to this proceeding. On or about October, 1975, Dr. Cain had in his employ, Ms. Charlotte Reavis, whose duties were to serve the normal function of a dental hygienist in the office. Ms. Reavis was not a dental hygienist and Dr. Cain was aware of this fact, having utilized Ms. Reavis as a dental assistant for some time prior to October, 1975. Ms. Reavis, in the performance of her duties, frequently scaled patients' teeth although she performed no deep scaling. The scaling included the re- moval of calculus deposits, accretions and stains from the exposed surfaces of the teeth and the gingival sulcus of patients. This practice continued from approximately October, 1975, until the date of receipt of the Accusation by Dr. Cain, except as noted below. This work was performed under the supervision and control of Dr. Cain who had knowledge of same and allowed sane to be per- formed in violation of Sections 466.02 and 466.24, Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry. On or about November, 1975, Dr. Cain was notified by Harold Ritter, D.D.S. of Tallahassee, that there was some concern re- garding Dr. Cain's use of unauthorized per- sonnel to scale teeth in his office. Dr. Cain discussed this telephone conversation with his associate, Tom Delopez, D.D.S. and for approximately a month the manner in which Ms. Reavis performed her duties was altered. Also, Dr. Cain initiated efforts to locate a dental hygienist during this time. However, Ms. Reavis thereafter began scaling patients' teeth again. In January, 1976, Dr. Delopez initiated a discussion with Dr. Cain regarding the con- tinued use of Ms. Reavis to scale teeth. Dr. Delopez informed Dr. Cain that this practice was prohibited by law and expressed his opinion that it should be discontinued. Dr. Cain informed Dr. Delopez that Dr. Delopez could scale the teeth of the patients he treated but that Ms. Reavis would continue to clean and scale the teeth of other patients. After approximately one month, Ms. Reavis resumed scaling the teeth of patients treated by Dr. Delopez. Dr. Delopez's association with Dr. Cain terminated during September, 1976. On or about September, 1976, Carl Daffin, D.D.S. became employed by Dr. Cain as an associate. Dr. Cain did not disclose to Dr. Daffin that Ms. Reavis was not a dental hygienist and Ms. Reavis continued to perform the same duties, including the scaling of the teeth of patients, until Dr. Cain's receipt of the Accusation filed in this cause. The facts set forth above do show a vio- lation of Sections 466.02(4) and 466.24(e), Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry. The Hearing Officer further finds: The Respondent Dr. Emory Cain enjoys a good reputation among his colleagues and among the medical community in Tallahassee. The consensus of the numerous witnesses produced by the Respondent is that Dr. Cain enjoys a high professional reputation. Dr. Cain also enjoys a reputation as an unselfish contributor to the civic well being of the community. There has been no complaint from the patients of the Respondent that the work done by Charlotte Reavis, a dental assistant employed by the Respondent, that Charlotte Reavis caused injury to a patient. The work done by a dental assistant and the training received by a dental assistant does not equal the work licensed to be done by a dental hygienist and does not equal the amount of training required of a dental hygienist. A deposition of Louis Pesce, D.D.S., taken on behalf of the Florida State Board of Dentistry was received and considered by the Hearing Officer subsequent to the hearing and depositions of Shelley Register, Jo Ann Barnes, and Elizabeth Barber taken at the incident of the Respondent Dr. Emory T. Cain were received subsequent to the hearing. The Respondent Dr. Cain made a minimum effort to find a dental hygienist to work in his office but was satisfied with the work done by the dental assistant, Charlotte Reavis, and continued to use her to perform a procedure lawfully relegated to a dental hygienist, that is the scaling of teeth. The proposed orders of the Petitioner and of the Respondent have been examined and considered in this Recommended Order.
Recommendation Suspend the license of Respondent Cain for a period not to exceed thirty (30) days. DONE and ORDERED this 30th day of June, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Michael Huey, Esquire Post Office Box 1794 Tallahassee, Florida 32302 Thomas F. Woods, Esquire Felix A. Johnston, Jr., Esquire 1030 East Lafayette Street, Suite 112 Tallahassee, Florida 32301
The Issue The issue presented is whether Petitioner achieved a passing score on the June 1999 Florida dental licensure examination.
Findings Of Fact Petitioner is licensed to practice dentistry in California and was also licensed in Georgia until he permitted his Georgia license to become inactive. He has been engaged in the active practice of dentistry for thirteen years. He has never been sued. Petitioner took the June 1999 clinical portion of the Florida dental licensure examination. He was subsequently advised that he had not achieved a passing score. Petitioner challenges the score he received on two portions of the clinical examination: his amalgam cavity preparation on the patient and his endodontic procedure on an extracted tooth. Petitioner's patient had a cavity between two teeth, although it was much lower than the contact point. The patient also had a large non-contiguous cavity in the front of the same tooth. Petitioner determined that he wished to save as much of the tooth as possible knowing that the large cavity in the front of the tooth would need to be filled. Because of the manner in which it was necessary to prepare the tooth to preserve the maximum amount of structure, he generated a monitor note explaining his approach. When he located the monitor to whom he would turn in his note, that monitor was busy viewing another patient and motioned for Petitioner to place the note at the monitor's station. Petitioner placed the note in the monitor's chair and returned to his patient. Petitioner completed the preparation procedure. While doing so, he noticed that his patient's tooth had a dead tract, a rare dental defect that would not interfere with the process. This was only the second time that Petitioner had seen a dead tract in a tooth despite his many years of practice. The first time had been while Petitioner was in dental school When his patient was graded, two of the three graders gave Petitioner a score of "0," noting that caries remained. The third grader saw no caries but noted debris remained. What the two examiners mistook for further decay was the dead tract. No debris remained. The other comments of the graders suggested that they had not seen the monitor note generated by Petitioner explaining the manner in which he was preparing the tooth and why. Despite the alleged presence of decay, Petitioner was instructed to proceed to fill the cavity. The extracted tooth on which Petitioner performed his endodontic procedure was an "easy" tooth with large canals. One grader gave Petitioner a "5," which is a perfect score. One grader gave him a "3," and the other gave him a "0." Only the grader who gave Petitioner the "0" noted that the tooth was perforated. The tooth Petitioner worked on had no perforation on the inside, and the x-rays taken during the process revealed no file or gutta percha filling off to the side of the canals. Petitioner did not perforate the tooth during his endodontic procedure. Petitioner properly performed both the amalgam cavity preparation on his patient and the endodontic procedure on the extracted tooth. He should be awarded full points on both procedures. The additional points are sufficient to give Petitioner a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner achieved a passing score on the June 1999 dental licensure examination. DONE AND ENTERED this 26th day of January, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 26th day of January, 2000. COPIES FURNISHED: Bill Buckhalt, Executive Director Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Gregory K. Barfield 2555 Collins Road, Penthouse 114 Miami Beach, Florida 33140 Gregory K. Barfield Post Office Box 102 Rancho Sante Fe, California 92067 Adam Keith Ehrlich, Esquire Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue The issue for determination is whether Petitioner successfully completed the clinical portion of the December 1997 dental hygiene examination.
Findings Of Fact In December 1997, Brandy Kern was a candidate for the dental hygiene examination (Examination). Ms. Kern had completed her dental hygiene studies at the University of Pittsburgh on or about April 29, 1995. She was an excellent student. Prior to making application for the Examination, Ms. Kern had obtained experience in dental hygiene by working as a dental hygienist in at least three dental offices over at least a two-year period in the State of Pennsylvania. Her employers, who were dentists, gave Ms. Kern very positive recommendations. Ms. Kern successfully completed all portions of the Examination, except for the scaling/calculus removal portion of the clinical part of the Examination. As a result, Ms. Kern did not successfully complete the overall Examination. The clinical examination consists of three parts: scaling and calculus removal, polishing, and root planing. The overall score for the clinical examination is determined from all three portions. Scaling and calculus removal counts as 70 per cent of the clinical examination; polishing as 10 percent; and root planing as 20 per cent. Each dental hygiene candidate is graded by three examiners. The clinical portion of Ms. Kern's examination was scored by three examiners. The examiners were 197, 243, and 320. Each examiner is a dental hygienist licensed in the State of Florida and is an experienced dental hygienist. An examiner must be recommended by an existing examiner or by a member of the Board of Dentistry (Board), have no complaints against their license, and be actively practicing. To become an examiner, an application must be completed and submitted to an examination committee of the Board. The committee reviews the application and, if approved, the applicant is placed in a pool of examiners. Before every examination, each examiner is trained in evaluating a procedure to make sure that it is properly performed. The Department of Health (Department) conducts a training in which each examiner is trained to grade using the same internal criteria. Such training results in a standardization of grading criteria. In this training process, the examiners are trained by assistant examiner supervisors on the different criteria that are used during the examination. The assistant examiner supervisors are dentists licensed in the State of Florida and are appointed by the Board of Dentistry (Board). To further their training, after the examiners receive their verbal training, the examiners are shown slides of teeth which do not meet the clinical criteria of the examination. To make sure that the examiners have been able to internalize the criteria, following the standardization, the examiners, themselves, are given an examination. Included in the examination is a hands-on clinical, where mannequins are used and the examiners check for errors on the mannequins. After the examiners complete their examination, the Bureau of Testing evaluates the examiners to determine whether the examiners are acceptable to use for the Examination. Subsequent to the Examination, the examiners are scored by the Bureau of Testing. The scoring is based on an examiner's performance wherein the Bureau of Testing examines how every examiner grades with every other examiner to make sure that the examiners are grading with reliability. This review is based on corroborated errors found by an examiner, not on the average errors found by an examiner. The average errors found by an examiner are irrelevant to the examiner's performance in that one examiner may have graded candidates who made numerous errors, while another examiner may have graded candidates who made very few errors. For the Examination, candidates are required to bring human patients on whom the candidates perform the dental procedures. Each examiner grades the Examination independently. The examiners do not confer with each other while scoring the Examination. Furthermore, the Examination is double-blind graded, which is a grading process in which the candidates have no contact with the examiners. The candidates are located in one clinic and perform the dental procedures on their human patient. The clinic is monitored by a licensed dental hygienist. When the candidate completes the procedures, a proctor accompanies the patient to another clinic where the examiners are located, and the examiners grade the procedures performed by the candidates. For the scaling/calculus removal portion of the Examination, the grading criteria is that complete removal of all supra and sub-marginal calculus from each tooth, without laceration to the surrounding tissue, is required. If the tooth is not clean and/or if there is damage to the surrounding tissue, the candidate is considered to have made one (1) error. Pursuant to Board rule, each tooth is judged as a whole. Even if a candidate makes three mistakes in performing the procedure on each tooth, e.g., calculus could be above the gum, calculus could be below the gum, and/or the gum could be lacerated, only one (1) error is counted against the candidate. The examiners do not document what error was committed by the candidate, i.e., whether the error is a calculus error or a laceration error. In grading the scaling/calculus removal portion of the Examination, a grade of five is the highest grade that a candidate can receive. A five is given if there are zero to three errors found. A grade of four is given if there are four errors found. A grade of three, which is considered to be minimally competent, is given if there are five errors found. A grade of two is given if there are six errors found. A grade of one is given if there are seven errors found, and a grade of zero is given if eight or more errors are found. For an error to be counted against a candidate, at least two of the three examiners must corroborate the error, i.e., at least two of the examiners must find the error. For Ms. Kern's clinical examination, she was scored by examiners 197, 243, and 320. All three examiners participated in the standardization training and were considered qualified to act as examiners for the Examination. Ms. Kern's examination was double-blind graded. Each examiner independently graded her examination. Examiner 197 found one error. Both examiners 243 and 320 found seven errors each. Examiners 243 and 320 agreed on six of seven teeth on which errors were found. Consequently, Ms. Kern was considered to have committed six errors. A post-examination review of the examiners was conducted. Examiners 243 and 320 were found to be reliable in their scoring. However, examiner 197 was found to be unreliable in his scoring. Examiner 197 was not used again for the Examination. The scoring of six errors made by Ms. Kern on the scaling/calculus removal portion of the Examination is not arbitrary or capricious or an abuse of discretion. The scoring process is not devoid of logic and reason. However, because examiners do not document the type of error committed by a candidate, a candidate has no way of knowing what detail of a procedure was improperly performed. The candidate only knows that a procedure, as a whole, was improperly performed. Consequently, a candidate who desires to re-take the Examination has no idea what procedure needs improvement by the candidate in order to prepare for a re-taking of the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry enter a final order dismissing Brandy Kern's examination challenge to the clinical portion of the dental hygienist licensure examination administered in December 1997. DONE AND ENTERED this 6th day of August, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1998.
The Issue The issue 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
The Issue The primary issue in this case is whether the Petitioner should have been given a passing grade on the June 1983 Dental Mannequin examination. A secondary issue is whether the Petitioner should be permitted to take the regular State of Florida dental examination even if he is not entitled to a passing grade on the June 1983 Dental Mannequin examination.
Findings Of Fact On the basis of the testimony of the witnesses and the exhibits received into evidence at the hearing, I make the following findings of fact: The Petitioner, Dr. Angel N. Diaz-Norrman, is a graduate of a foreign dental school. Since his graduation from dental school he has engaged in three years of postgraduate training in the field of dentistry at the University of Miami and at the University of Florida. He has also completed all requirements for a teaching fellowship in the field of general dentistry. He is currently pursuing a program on postgraduate study in the specialty of periodontics at the University of Florida. His grade point average in his periodontic studies is 4.0 for both the didactic and the clinical portions of his studies. The Petitioner has twice taken the State of Florida Dental Mannequin Examination, once in December of 1982 and once in June of 1983. He was assigned a failing grade on both of those examinations. His December 1982 grade was slightly higher than his June 1983 grade. His June 1983 grade was 2.37. The minimum passing grade is 3.00. The State of Florida Dental Mannequin examination is a practical examination which tests several specified clinical skills. The examination consists of ten procedures, of which only nine are grades. Each of the nine graded procedures are graded separately. Each of the nine graded procedures on the examination is independently graded by three examiners. Each examiner assigns a grade of from 0 to 5 to the procedure and the final score for each procedure is determined by averaging the three grades given to that procedure. The final score on the entire examination is determined on the basis of a weighted average as provided in Rule 21G-2.19(1), Florida Administrative Code. 1/ The examiners who grade the State of Florida Dental Mannequin examination are all experienced Florida dentists who are selected by the Board of Dentistry. A person chosen as an examiner must have at least five years experience as a dentist. All persons who are selected to be examiners receive a full day of training in the examination process. They review the criteria by which each procedure is to be judged and they participate in a practice grading exercise. Proposed examiners who do not do a good job on the practice grading exercise are not selected as examiners, but are given other tasks at the examination such as serving as monitors. 2/ The application of the grading criteria is not a mathematically precise procedure. Although some shortcomings on the examination procedures require an automatic grade of 0, there is no mathematical formula for deducting any specific number of points or fractions of points for lesser shortcomings or deviations from an excellent procedure. Rather, the examiners use an holistic approach to the grading of each procedure. During the examination each examiner is required to record the grade assigned to each procedure on a written form. Whenever an examiner assigns a failing score to a procedure, the examiner is required to include on the grading form written comments sufficient to justify the failing grade. The written comments do not have to include everything the examiner thought was wrong with the procedure, but must include enough to justify the failing grade. An examiner is not required to justify a passing grade. When the Petitioner took the Dental Mannequin examination in June of 1983, the grades he received from each examiner on each graded procedure were as follows: Procedure Examiner Examiner Examiner Average No. No. 45 No. 48 No. 80 Grade 1. 1 0 0 0.33 2. 2 5 5 4.00 3. 1 3 3 2.33 4. 3 3 3 3.33 5. 2 1 3 2.00 6. 3 5 5 4.33 7. 1 2 3 2.00 8. 2 1 3 2.00 9. 1 1 1 1.00 8. The average grade given to the Petitioner for his performance on procedures number 1, 2, 5, 7, 8, and 9 was a fair and reasonable grade for his performance on each of those procedures. In other words, the average grades given to the Petitioner on those six procedures were fair and accurate measures of the skills demonstrated by the Petitioner on those procedures. The average grade given to Petitioner for procedure number 3 was higher than it should have been. The quality of the Petitioner's performance on procedure number 3 was such that he should have been given a grade of 1.00 instead of 2.33. The average grade given to Petitioner for procedure number 4 was lower than it should have been. The quality of the Petitioner's performance on procedure number 4 was such that he should have been given a grade of 4.00, instead of 3.33. The average grade given to Petitioner for procedure number 6 was lower than it should have been. The quality of the Petitioner's performance on procedure number 6 was such that he should have been given a grade of 5.00, instead of 4.33. With regard to procedure number 9, the Petitioner misunderstood the instructions and prepared a "wax-up" for a cast gold bridge of a type different than that required by the instructions. Between the time of the June 1983 examination and the time of the hearing the "wax-up" prepared by the Petitioner for procedure number 9 became partially damaged while in the custody of the Respondent.
Recommendation On the basis of all of the foregoing, I recommend that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the June 1983 Dental Mannequin examination is 2.37, a failing grade, and that the Petitioner is not eligible to retake the Dental Mannequin examination or to take the regular dental license examination. DONE AND ENTERED this 4th day of April 1985 at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1985.
Findings Of Fact The Petitioner, Bassette A. Cayasso, age 46, was born in Nicaragua, where he lived until April, 1983, when he came to the United States and settled in Miami, Florida. The Petitioner graduated from University Nationale de Nicaragua in 1966. He practiced dentistry in Nicaragua for 17 years, and was a resident on the hospital ship SS Hope where he practiced oral surgery. The Petitioner has taken the Florida Dental Mannequin Examination three times, the last time being in May, 1986. He failed this examination each time. The mannequin examination is a dental skills examination wherein the examinee demonstrates his ability to perform various dental procedures on a mannequin. The mannequin is a set of teeth. Graduates of dental colleges or schools which are not accredited by the American Dental Association are required to take and pass this mannequin examination prior to being permitted to take the regular dental examination. The school of dentistry from which the Petitioner graduated is not an accredited institution. On the nine procedures which constituted the May, 1986, mannequin examination, the Petitioner passed four, and failed five. His final composite score was 2.72. A score of 3.00 is necessary in order to pass the examination. The Petitioner presented no evidence from which it might be found that the grades he received on the mine dental procedures were erroneous. The examination was graded by three graders. One grader gave the Petitioner a passing score on all nine procedures, one passed him on five procedures, and one grader passed him on three procedures. All three grade independently, and their scores are averaged to produce one score for each procedure. The procedure scores are then weighed to produce a final overall score. When a review is requested, a reviewer goes over the scores for all procedures to see if the average grade is justified. In the review of the Petitioner's scores, there was found to be no irregularity in the balancing of the Petitioner's scores, and the overall grade was found to be fair and reasonable, thus not warranting a re- grade of any procedure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the Petition of Bassette A. Cayasso for a review of his May, 1986, dental mannequin examination. THIS RECOMMENDED ORDER entered this 29th day of June, 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1987. COPIES FURNISHED: Mr. Bassette A. Cayasso 20236 Southwest 123rd Place Miami, Florida 33177 Chester G. Senf, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue to be determined concerns whether the Board of Dentistry was justified in cancelling the Petitioner'S dental hygienist license for failure to timely renew it. This necessitates resolution of the question of whether the Petitioner received the required notification of impending license expiration and whether such notification was actually sent to the last known address.
Findings Of Fact The Petitioner, Alice Kay Wynne has been licensed as a dental hygienist by the Board of Dentistry of the State of Florida. She was licensed in Florida in 1974 and practiced in Georgia and in Montana since that time. In 1975 she moved to Montana to establish a rural, dental public health preventive program. She resided from that time until approximately 1985 in Glendive, Montana. Between December 1984 and January 1988, her license was in inactive status. Pursuant to Section 466.015(1), Florida Statutes, this inactive status can be of up to four years duration. When the Petitioner renewed her license with the Board she presumably thereby notified the Board of her Glendive, Montana address. This address was maintained in the Board's records, apparently until sometime in May of 1987. In the meantime, in 1985, the Petitioner moved from Montana to Albany, Georgia. She never actually submitted a change of address notification to the Board of Dentistry, however. No statutory provision nor rule of that agency requires that such be done (although it would seem a wise course of action). The Petitioner began working as a clinical hygienist in the Navy Branch Dental Clinic of the Marine Corps Logistics Base in Albany, Georgia. During her professional tenure in Albany, Georgia, in October 1986, a notice regarding the necessity for her to renew her license and place it on active status once again before the expiration of the four year period mentioned above was sent to her then-record address in Glendive, Montana. The Petitioner never received this notice. The above statutory subsection requires that the Department of Professional Regulation give notice to an inactive licensee one year prior to the expiration of that inactive license, that is, the notice must be sent at the end of three years of inactive status. This notice is required to be sent to the licensee's last address of record. One year prior to the expiration of Petitioner's license would have been on or about December 31 or January 1 of 1986-1987. Rule 21G- 10.009, Florida Administrative Code, regarding reactivation of inactive licenses took effect December 31, 1986, containing a requirement that the above-mentioned, one year advance notice of expiration of licensure be sent by Certified United States Mail. The notice that was apparently sent to the Petitioner, however, was sent more than one year prior to the impending expiration of her license and therefore prior to the enactment of this rule requiring that notice be sent by certified mail. The notice was not sent by certified mail. There is no direct proof that it was sent by the Department or received by Petitioner. The only proof that it was sent, which the Hearing Officer accepts, is the record notation, in evidence, that it was sent to the Glendive, Montana address. It was never received by the Petitioner, however. In any event, in early 1988, knowing that she had an employment position in the Orlando, Florida area as a dental hygienist, the Petitioner inquired of the Board regarding the manner in which she should restore her license to active status. By phone call to the Board on March 28, 1988, she learned that her license had been rendered "null and void" as of January 1, 1988. She was greatly distressed by this turn of events and the following day wrote the Executive Director of the Board of Dentistry, Mr. Buckhalt, to request that her license be renewed. She informed him that she had never received notice of the impending nullification of her license, although she had filed a change of address with the post office when she moved from Montana to Georgia. Thereafter, by letter of May 11, 1988, Mr. Buckhalt informed Ms. Wynne that, at a regularly scheduled meeting of the Board, her licensure status had been considered and that the Board determined that the notice had been mailed to her last known address and that the Board concurred with the Department that Ms. Wynne's license was null and void. This letter also informed her of an opportunity to request a formal hearing concerning the issue pursuant to Chapter 120, Florida Statutes. She, of course, availed herself of that right. The above-cited statutory provision also contains a requirement that a certain minimum number of hours of continuing education shall be imposed by the Board as a condition for re- activating a license. The Petitioner received the appropriate number of continuing education credits for the years 1986, 1987 and 1988 and supplied that information to the Board. She did not formally provide the Board or the Department with a change of address notification, however. On May 6, 1987 there is an entry on the computer record of her licensure with the Board which shows that the address was then 810 Johnson Road, #6, Albany, Georgia 31705-3432. This record, Petitioner'S Exhibit 4 in evidence, appears to show that that change occurred on May 6, 1987, possibly as a result of the receipt by the Board of CLE credits mailed in, reflecting the Georgia address, although the record does not reflect this definitely. In any event, in its letter of May 11, 1988, the Board took the position that Petitioner's license was null and void and provided that notification to the Petitioner. That notification was sent by certified mail, return receipt requested.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a Final Order be entered by the Department of Professional Regulation, Board of Dentistry, according the Petitioner, Alice Kay Wynne, the opportunity to reactivate her Florida Dental Hygienist license upon demonstration of compliance with pertinent continuing education requirements and payment of all appropriate fees. DONE and ORDERED this 31st day of May, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 5th day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4012 Petitioner's Proposed Findings of Fact: Accepted. Rejected as contrary to Hearing Officer's findings on this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings. Rejected as irrelevant. Respondent's Proposed Findings of Fact: Respondent did not submit proposed findings of fact. COPIES FURNISHED: Alice Kay Wynne Post Office Box 50921 Albany, Georgia 31705 Reynolds Sampson, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726 William Buckhalt, Executive Director Florida Board of Dentistry 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726 Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0726 =================================================================
