The Issue The issue for consideration in this case is whether Petitioner should be awarded a passing grade on the clinical portion of the dental licensing examination given on December 12 through 14, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is a graduate of the University of Florida School of Dentistry and was eligible to sit for the examination for licensure as a dentist in Florida. Petitioner previously has taken and passed the written portion of the dental examination. He has taken the clinical portion of the examination twice and has received a failing grade each time. He is eligible to take the clinical portion alone for a third time, but must do so within a period of 13 months of taking it the second time or must take both the written and oral portions again. Dr. Scheutz first took the examination in June 1996. He received a passing grade in each of those examination portions which dealt with Florida laws and rules and with oral diagnosis. However, he received a grade of 2.31 on the clinical examination portion of the examination, and a passing grade was 3.0. Thereafter, in December 1996 he again took the clinical portion and this time received a grade of 2.71, still below the 3.0 passing grade. Dr. Theodor Simkin is a licensed dentist and consultant to the Board of Dentistry, who has been in the private practice of dentistry since 1950 and in Florida since 1975. He has been involved in the development, administration, and grading of the dental examination in Florida since 1979 and was a supervisor for the December 1996 examination. He is familiar with the standards applied in the clinical portion of the examination and how the examination is given and graded. Petitioner has challenged the grade he received on five separate procedures he performed during the December 1996 examination. The procedures chosen for accomplishment during the examination are not unusual procedures, but are common problems seen on a routine basis by a practicing dentist. Dr. Simkin reviewed the mannequin on which Petitioner did his work and which he presented to the examiners for grading. One of the grades challenged related to a "composite restoration" (Clinical D) for which Petitioner received a grade of 0. In this procedure the candidate is presented with a tooth on a mannequin. The candidate is instructed to cut off a corner of the tooth and then restore that corner with an amalgam restoration. The examiners are not present when the procedure is accomplished, but grade the procedure after completion. Instruction on the procedure is given to the candidate by a monitor who is present in the room but who does not grade the work done. The examination process is accomplished using the candidate number, not the candidate name, so that examiners do not know whose work at which they are looking. Once the procedure is done by the candidate, the mold is packed in the candidate's presence and is then held in the custody of the Board of Dentistry until examined independently by each of three examiners. Once graded, it is then shipped to Tallahassee and kept in a vault until needed, as here, for review by Dr. Simkin and others. Ordinarily, even if dropped, a model will not break. In the instant case, Petitioner performed the procedure on an upper right central incisor. The right corner of the tooth, approximately one-third of the tooth, was cut off and the candidate was instructed to rebuild it with a composite material. When the examiners evaluated Petitioner's work, they found that the filling was not bonded to the tooth and was loose. The loose restoration would be useless to the patient, whereas a properly done restoration should last for at least several years. On a human, the stresses applied to a tooth repair are significant, and the repair must be sufficient to withstand them. Notwithstanding Petitioner's claim that the tooth used was an artificial tooth to which the filling material does not easily bond, Dr. Simkin asserts that the bonding which occurs with a plastic tooth is different from that which occurs in a real tooth but the material can bond to the plastic tooth. He knows of no other complaints by other candidates at this examination of not being able to complete the restoration because the materials would not bond. Petitioner admits that when he did the procedure during the June 1996 examination, the tooth bonded correctly. In light of all the evidence regarding this point, it is found that Petitioner's claim is without merit. Petitioner also challenges his score of 2.0 received for his work on an "amalgam cavity preparation" (Clinical B). This composite score was based on a 2.0 awarded by each of the three examiners. An amalgam preparation is what is done to the tooth to get it ready for filling. In this case, an actual patient, supplied by the examines, had a cavity which was reviewed by the examiners. Once the patient was accepted by the examiners, the candidate then cleaned out the cavity and got it ready for filling. Dr. Simkin's review of the documentation prepared in regard to this candidate's performance of this procedure, in his opinion, supports the grades given by the examiners. Here, Petitioner sent the examiners a note as to what he proposed to do with his patient. Petitioner sought to deviate from a normal preparation due to the location of the caries, and the monitor agreed, as did the examiners. Thereafter, the candidate did the procedure. All three examiners graded his work against his proposal and gave him a failing grade. The examiners determined that his work on this patient merited only a grade of 2.0 because, according to two examiners, the margin of the filling was not separated from the next tooth as required. As to the "posterior endodonture procedure" (Clinical M), Petitioner received an overall score of 1.3. In this procedure, the candidate is required to bring in an extracted tooth which is mounted in an acrylic block. The candidate is to remove the nerve and diseased tissue, clean the cavity, file it, fill the canals, and seal the tooth. This is known as a root canal. In grading a candidate's work, the examiners look to see that the canal is properly cleaned out, is filled properly and sealed with a surface that is slightly shorter than the apex (highest point) of the tooth. On the x-ray taken of Petitioner's sample, it is obvious, according to Dr. Simkin, that one canal is at or short of the apex, but the other is long, and this is considered unacceptable treatment. Even Petitioner agrees. Petitioner received grades of 3.0, 2.0 and 1.0 for an overall failing grade of 2.0 on the "prep. cast restoration" (Clinical F). In this instance, the procedure called for the candidate to install a gold onlay. Normally the surface to which the onlay is to be placed is reduced slightly below the abutting face. Here, though one side was acceptable, Petitioner reduced too much on the other side without reason. Petitioner claims, however, that only one of the three examiners indicated excessive reduction. That determination calls for a very subjective opinion. He cannot understand how the propriety of reduction can be determined without looking into the mouth of a patient. However, Petitioner has presented no evidence in support of his opinion. The fifth challenge relates to the grade Petitioner received in the "pin amalgam pre. procedure" (Clinical G). This involves a situation where one cusp has been removed, and in order to hold a restoration, Repin must be placed in the solid portion of the tooth. The examiners determined that Petitioner's occlusal was too shallow at 1 mm, when it should have gone down 1~ to 2 mm. This, the examiners considered, would not give enough strength to hold the amalgam properly without risk of fracture. Dr. Simkins is of the opinion that Petitioner was subjected to a standardized test which was graded fairly. It would so appear and Petitioner introduced no evidence to the contrary. Ms. Carnes, a psychometrician and an expert in testing and test development who trains examiners to ensure they are consistent in their evaluations, agrees with Dr. Simkins' appraisal. The Department of Business and Professional Regulation tries to insure through its standardization efforts that the approach to grading of each examiner is consistent and that all examiners are grading with the same set of criteria. This was done in preparation for the December 1996 dental examination and a check done after the examination showed it was graded this way. Petitioner cites by way of explanation, if not excuse, that during his senior year in dental school, he was badly injured in an automobile accident and required stitches and several weeks of physical therapy for, among other injuries, a herniated disc. When he recovered sufficiently, he finished his course work and sat for the dental examination in June 1996, passing two of three sections, but not the clinical portion. Dr. Scheutz took the clinical portion of the examination again in December 1996 and again failed to earn a passing score. In his opinion, his knowledge has improved over time, but his procedural skills have diminished over the months due to his injuries. He contends he has work in dentistry he can do which will make accommodations for his physical condition, but does not believe he should have to wait another six months to take the examination again, especially since he would have to again take the entire examination, including those portions he has already passed since at that time more than 13 months from his last examination would have passed. Petitioner contends the clinical testing portion of the examination is too subjective to be valid. He wants to close this chapter in his life, but does not want to deal any more with the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a Final Order denying Petitioner's challenge and sustaining the award of a failing grade on the clinical portion of the dental examination taken by the Petitioner on December 12 through 14, 1996. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Dr. Eric J. Scheutz, pro se 332 Whispering Oaks Court Sarasota, Florida 34232 Karel Baarelag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33906-0127 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this matter is whether Petitioner, Cecelia Diaz, is qualified for licensure as a dentist in Florida.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was the state agency in Florida responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is not licensed as a dentist in Florida. Petitioner was awarded a degree in General Dentistry at the University of Santiago de Cuba in October 1973. Thereafter, for almost fifteen years, she practiced dentistry in Cuba. In 1981 her husband was forced to leave Cuba for political reasons but, because of her advanced schooling, she was denied permission by the Cuban government to leave with him. In 1987, Petitioner was permitted to leave Cuba for the United States with her two daughters. In February 1991, for reasons not relevant to the issues here, Petitioner and her husband were divorced. She was forced to provide for her two daughters with no financial help from their father. At the time she was both working and studying to prepare for her dental licensing examinations. In May 1991, Petitioner sat for and passed Parts I and II of the National Examination. The following November, she presented her documents for the mannequin examination, the third part of the examination and the last one to be offered in Florida. Initially, Petitioner was denied permission to take the mannequin examination because, it was alleged, she did not have the requisite educational credentials. However, one week before the mannequin examination was to be given, she appeared before the Board of Dentistry and convinced the members to allow her to take the mannequin examination with the understanding her results would be withheld pending receipt of appropriate documentation from Cuba. Petitioner did not pass the mannequin examination, and, she contends, between 1991 and 1995, there was no way for a foreign dentist to be licensed as a dentist in Florida, upon testing by a mannequin examination. Only New York and California administered a mannequin examination, and Petitioner went to California to take a course to prepare herself for taking the mannequin examination in California. After taking the course, she returned to Florida to prepare to take the examination, and in March 1994, in furtherance of that aim, searched for patients who met the criteria needed for the examination to practice on. She admits this was a mistake. As a result of her actions, on April 1, 1994, she was charged in Circuit Court in Hillsborough County with practicing dentistry without a license. Her attorney recommended she accept a plea bargain with pre-trial intervention. Based on her successful completion of the pre- trial intervention program, the matter was closed without Petitioner having a conviction on her record. In 1995, Florida initiated a program for the licensing of foreign dentists and Petitioner was selected to participate in January 1996. She was in the program for two years at the University of Florida, assisting full time. In June 1998, Petitioner took the State of Florida Dentistry examination. She passed the written part of the examination and was given high passing grades on the clinical portion by two of the three examiners. The third clinical examiner, however, gave her a grade low enough to cause her to fail the clinical portion. Petitioner went to appear before a review panel in Tallahassee where, she claims, the examiner who did the review agreed with her on the discrepancy. The review examiner recommended, however, that though she could request a hearing, the hearing would be held after the next examination, and he felt, from looking at her work, that she could pass the examination. Therefore, she did not request a rehearing. Petitioner took the clinical portion of the dental examination in December 1998. She did not pass, though she feels she did well on all questions except that relating to what she referred to as the RCT, not otherwise defined. This one question caused her to fail the examination by .007 of a point. Petitioner considers it unusual that in the past, everyone who took the review course for foreign dentists at the University of Florida, the one she took, passed the exam. She did not. Ms. Diaz requested a review of the procedure for which she did not obtain a passing grade and found that the reviewer assigned to her was the same individual who had conducted the review of her prior effort. The reviewer began examining her work in a way which she did not consider fair, and when she tried to explain her procedure, he accused her of screaming at him. She requested the review be terminated and she left the office in tears. After that review, Petitioner filed an application for formal hearing, but before the hearing could be held, in May 1999 she received notification from the Board that she had passed and the hearing was not necessary. However, before a license was issued, in August 1999, Petitioner was again arrested in Hillsborough County and charged with practicing dentistry without a license. Petitioner admits that at the time alleged in 1999 she practiced dentistry without a license, and that in 1994 she also practiced dentistry without a license. Petitioner contends that she only began seeing patients in both instances when people from Cuba, who knew she was a dentist and who had no money for dental care, asked her for help. She claims to have taken little money for the work she did - only a small amount to pay for the supplies it was necessary for her to buy. A search of Petitioner’s home was conducted on July 28, 1999, pursuant to a search warrant. The investigator conducting the search found an appointment book, dental records, books and papers, in addition to a dental chair with a basin, as well as an x-ray machine and cabinets of dental equipment and supplies. Taped to some cabinets were before and after pictures of patients. Petitioner contends that at the time of the search she had all that equipment, which she had been given without pay by the custodian of a mall in which a dentist’s office had closed. The custodian was told by the landlord to get rid of the equipment, and he remembered Petitioner who had come into the mall earlier in search of a site for a dental office when she opened. At the time, the space had been rented to another tenant. However, the custodian remembered Petitioner and called her to ask if she wanted the equipment. She did, and he helped her transport it to her home. At no time did he take any money from Petitioner, nor did she do any dental work for him. Nonetheless, Petitioner was again convicted of practicing dentistry without a license. At its meeting in Tampa on January 8, 2000, the Board of Dentistry considered Petitioner’s application for licensure and voted to deny it based on her implication in two incidents of practicing dentistry without a license. Even though no adjudication of guilt was entered in either case, it was the official action which constituted being found guilty of those offenses regardless of adjudication which supported the Board action. Petitioner is currently working as a receptionist in an office making $300 per week working nine-hour days. Her current financial obligations for school loans and other debt exceeds $42,000. No evidence of any malpractice or inappropriate treatment was forthcoming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry issue a license to practice dentistry in Florida to the Petitioner, Cecelia C. Diaz, such license being placed on probation for a period of five years under such conditions as the Board may specify. DONE AND ENTERED this 23rd day of June, 2000. In Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2000. COPIES FURNISHED: Edwin A. Bayo, Esquire Office of the Attorney General Department of Legal Affairs, The Capital, Plaza Level 01 Tallahassee, Florida 32399-1050 Dominic J. Baccarella, Esquire Baccarella & Baccarella, P.A. 4144 North Armenia Avenue Suite 300 Tampa, Florida 33607 William H. Buckhalt, Executive Director Board of Dentistry 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 A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue is whether Michael Germaine should be granted additional credit for Procedure 03-Amalgam preparation on the December 1988, dentistry examination or should be permitted to retake that portion of the examination at no additional cost.
Findings Of Fact Dr. Michael Germaine is a licensed dentist in the State of New York and has sought to be licensed as a dentist in the State of Florida. He has taken the Florida examination three times and has not passed the clinical examination. The last time Dr. Germaine took the Florida dental examination was in December 1988. The clinical portion involves the actual performance of various dental procedures on mannequin teeth and on live patients. On the December 1988, clinical examination, Germaine received an overall score of 2.97. The minimum passing score is 3.00. On Procedure 03- Amalgam preparation, Germaine received a score of 2.66. This score is the result of averaging the grades of 3, 2, and 3 given by three different examiners. During the clinical portion of the examination, a procedure is available to candidates for writing a "monitor's note." This procedure is the sole means by which a candidate may communicate with the examiners who will grade the procedures. The candidate could use this vehicle to advise the examiners about any problems or special circumstances encountered in the procedure in order to give the examiners all the information necessary to fairly and accurately grade the procedure. The process calls for the candidate to have a proctor summon a monitor who will oversee the preparation of the note and will deliver the note to the examiners. Procedure 03-Amalgam restoration involved filling a tooth with an amalgam filling after removal of a cavity. The procedure was timed. Within the allotted time, the candidate was to take an x-ray of the completed restoration. The x-ray was reviewed by the examiners. When Germaine looked at the x-ray for Procedure 03, he noticed what appeared to be excess loose amalgam lodged next to the tooth. He wanted to write a monitor's note to let the examiners know that he was aware of the excess amalgam that would be removed in the ordinary office setting. He was also concerned that the amalgam looked attached to the tooth, which would be a defect known as a gingival overhang. Dr. Germaine asked the proctor to send a monitor and then waited for the few minutes that remained of the time allotted for the procedure. When the monitor finally arrived, the time for the procedure had elapsed and for that reason the monitor did not allow Germaine to write a note. Procedure 03 was graded by three examiners. Examiner 195 gave a grade of 3, but noted on the grade sheet that there "may be loose [amalgam] at gingival margin (obvious on x-ray)." There is a place on the grader's sheet for certain "comments" to be marked if applicable to the procedure. Examiner 195 marked comments for Functional Anatomy and for Gingival Overhang. Examiner 131 awarded 2 points for the procedure and marked comments for Contact and for Gingival Overhang. Examiner 133 awarded 3 points and marked comments for Functional Anatomy and Margin. Dr. Theodore Simkin, accepted as an expert in dentistry, is an experienced examiner and has served DPR as a consultant doing grade reviews. Dr. Simkin acknowledges that Germaine should have been able to write a monitor's note, but such a note should not have changed the grading. Procedure 03 is a patient procedure and as such, examiners are only permitted to grade on what they see in the patient's mouth. The x-rays would only have served to alert the examiners to check the interproximal to see if the amalgam shown on the x-ray was gingival overhang or excess, loose amalgam. If the x-rays had been relied on for grading purposes, the grade would have been zero (0) because the x-rays show excess gingival overhang. Any gingival overhang which was as excessive as appeared on the x-ray would have mandated a grade of zero (0) as explained on the grading sheets of each examiner. Since a grade of zero was not given, it is apparent that the examiners thought the excessive amalgam shown on the x-ray was neither gross nor attached. That Examiner 195 was aware of the loose amalgam between the teeth is obvious from the grade sheet and from an Examiner to Monitor Instruction which went back to Germaine after grading. The instruction was to have the candidate remove the amalgam interproximal (between the teeth). Gross gingival overhang cannot be simply removed like loose amalgam can be removed. Even being aware of the loose amalgam, Examiner 195 still gave Germaine a passing grade of 3. Dr. Germaine maintains that the examiners were biased because they looked at the x-ray without having the benefit of the monitor's note which he was not allowed to write. The assertion is not supported by the competent, substantial evidence, but is instead based on speculation and assumption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Professional Regulation enter a Final Order dismissing the petition filed by Michael Germaine and denying him licensure as a dentist in the State of Florida. DONE and ENTERED this 28th day of September, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3899 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Michael Germaine Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3(2); 4-6(4-6); 7 first sentence (7); and 9(8). Proposed findings of fact 2 and 11 are unnecessary. Proposed findings of fact 7 second sentence, 12, 16, 17, and 20 are unsupported by the competent, substantial evidence. Proposed findings of fact 8, 13, and 14 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 10, 15, 18, and 19 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3). Proposed finding of fact 2 is unnecessary. Proposed finding of fact 3 is a mere summary of testimony and is not a proposed finding of fact. Copies furnished: Michael J. Cherniga Attorney at Law Post Office Drawer 1838 Tallahassee, FL 32301 Vytas J. Urba Staff Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Petitioner should receive a passing grade on the clinical portion of the dentistry examination administered in December 1996.
Findings Of Fact In June 1996, Petitioner, Arthur A. Gage (Gage), took the dentistry examination for licensure as a dentist in Florida. He was unsuccessful on the clinical part. In December 1996, Gage retook the clinical portion of the examination. He was notified by an examination grade report, mailed on January 13, 1997, that he had again failed the clinical portion of the examination. He achieved a general average score of 2.75. A final grade of 3 or better as a general average on the clinical portion is a passing score. Gage complains that there was inconsistency among the examiners in grading the examination. In particular, he submits that if you average the grades by each examiner on the mannequin portion of the examination that the averages are 3.25, 3.08, and 1.08. Gage averaged all the grades for each examiner and did not average by procedure. Consequently, Gage's approach did not produce a statistically meaningful result. Marsha Carnes, a psychometrician with the Department of Business and Professional Regulation (DBPR), testified for the Respondent. A psychometrician is an expert in testing and measurement. Ms. Carnes' responsibility is to ensure the validity and reliability of the examinations, including the dentistry examination. Ms. Carnes outlined the procedure used for selecting the examiners and the grading of the dentistry examinations. The examiners are selected by the Florida Board of Dentistry (Board) and must have five years of experience as a licensed, active dentist in Florida. The examiner must be recommended by a current examiner or member of the Board. Examiners must submit an application and have no complaints against their dentistry license. After the examiners are selected, they are trained by DBPR. Approximately one month prior to the dentistry examination, the examiners are sent the details of the examination, the clinic monitor, and an examiner instruction package. The examiner package outlines the grading criteria, the procedures for the examination, and the necessary paper work. The day before the examination, the examiners go through a standardization process conducted by the psychometrician and three assistant examiner supervisors from DBPR. The process takes approximately eight hours. There are nine clinical procedures in the dentistry examination. Three of the procedures are performed on a patient, five on a mannequin, and one is written. As part of the standardization process, the assistant examiner supervisors outline the criteria for each procedure that is on the examination and explain what is and is not minimally acceptable. The examiners are shown slides, and the supervisors explain what grade should be awarded for each procedure shown on the slides. The examiners are given a post standardization examination to make sure that they have internalized the criteria explained during the standardization process. The examination consists of the examiners actually grading models created by applicants in past examinations. Twenty-five different procedures are graded, and DBPR staff evaluate the grading of the examiners to ensure that they are grading consistently. Scores of zero through five are possible on each examination procedure. Five is considered to be an outstanding dental procedure. Four is better than minimally acceptable. Three is minimally acceptable. Two is below minimally acceptable. One is unacceptable, and zero is a complete failure. Rule 64B5-2.013, Florida Administrative Code. Three examiners independently grade each procedure. The dentistry examination is double-blind graded. The applicant has no contact with the examiners, and the examiners do not consult one another. This procedure was followed for the dentistry examination taken by Gage. The overall percentage score is determined by averaging and weighting the grades of the three examiners for each procedure. Statistically, averaging three grades is more accurate than using one grade alone. Gage complains about the inconsistency of the grading of the procedures on the mannequin. The examiners were identified by number as 080, 320, and 321. These examiners successfully completed the standardization process. Gage complains that Examiner 321 gave disproportionately low grades for the procedures performed on the mannequin. It is, however, more common for an examiner to give an inappropriately high grade than an inappropriately low grade. The higher grade can be a result of an examiner missing something, but the low grade must be justified in documentation and then actually verified on the mannequin. The three examiners for the mannequin procedures, when examined in the examiner's performance report, all had statistically acceptable measures of consistency and reliability. Gage complained that the patient on whom he performed the patient procedures had to make several trips to the restroom during the examination and that he did not have time to properly perform all the procedures. During the examination, Gage did not submit monitor to examiner notes, indicating there were any problems encountered during the examination or anything that he wanted the examiners to take into consideration in the grading. Prior to the perio and amalgam sections of the examination, the applicants are read a script that gives instructions as to what is to be done and how much time is allotted. The script provides that the applicants need to plan their usage of time in order to finish the procedures within the allotted four hours. Near the end of the examination, the applicants are advised of the time remaining until the end of the examination. Time management is important in the practice of dentistry because patients do not like to be kept waiting and because certain dental procedures must be executed within certain time frames. Applicants are advised before the examination how much time is allotted. Applicants are responsible for obtaining a patient for the examination. Gage received grades of four, four, and one on the class four composite filling portion of the examination. Examiner 321 gave the grade of one and documented that there was a margin open on the incisal. Dr. Thomas Shields III, who was qualified as an expert witness for the Respondent, reviewed the procedure and found that there was a definite click or catch on the incisal margin of the tooth, which was consistent with the grade of one. On the endo portion of the examination, Gage received grades of two, three, and zero. Dr. Shields reviewed the X-rays of the procedure, which showed that the final fill on the root canal had voids and was unacceptable and one of the tooth canals was not completely filled. On the prosthetic written portion of the examination, Gage scored 70 percent. In order to pass that portion of the examination, the applicant must achieve at least 75 percent, which equates to a 3.75 on a scale of zero to five. Rule 64B5- 2.013(2)(c), Florida Administrative Code. Gage complained that some of the pictures in the booklet were not very good and it was difficult to see which teeth were touching. He went to Tallahassee and reviewed the written portion of the test and made some comments concerning the test. Gage did not present his comments at the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Arthur A. Gage failed to achieve a passing score for the clinical portion of the dentistry examination administered December 1996. DONE AND ENTERED this 7th day of January, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1998. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Janine B. Myrick, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102 Tallahassee, Florida 32399-0700 Arthur A. Gage, pro se 12688 Tucano Circle Boca Raton, Florida 33428
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.
Findings Of Fact Respondents Respondent, John A. Rowe, D.D.S., received his license to practice dentistry in the State of Florida on or about July 30, 1982 and has been so licensed continuing to the present under license #DN 009364. Since 1977, Dr. Rowe has been board-certified in oral and maxillofacial surgery and he practices in that specialty. Dr. Rowe's license to practice dentistry in the State of Tennessee was suspended on or about October 3, 1983, and was reinstated on or about September 28, 1984. He neglected to inform the State of Florida Board of Dentistry of that disciplinary action, although he did provide to the Board a copy of the civil complaint when he applied for licensure in Florida. In early 1985, Dr. Rowe moved his practice from Tennessee to central Florida and began working with Dr. Frank Murray. During the time that he treated the patients at issue in this proceeding, Dr. Rowe was a salaried employee and part owner of a clinic, Central Florida Dental Association, in Kissimmee, Florida. He now has his own practice in Kissimmee. Ralph E. Toombs, D.D.S., has at all times relevant to this proceeding been licensed to practice dentistry in the State of Florida under license #DN 007026. During the period in question, 1988, Dr. Toombs was an associate at Central Florida Dental Association. The Clinic and its Procedures During the relevant period, 1988-89, Central Florida Dental Association, P.A., was owned by a group of dentists who actively practiced at the clinic. Dr. Frank Murray was the majority shareholder and President. Dr. Rowe was a shareholder; Dr. Toombs owned no interest and was an associate. The dentist/owners were under employment contracts and received salaries. By all accounts, Dr. Murray made the operational decisions affecting the clinic and its patients. He admitted that shareholders' votes were based on percentage of ownership. (Tr.-p.114) Dr. Murray set the fees for billing and reviewed patients' files. The procedures for billing were computerized. Clerical staff in the insurance department filled out claim forms that were signed in blank by the dentists, or they signed the dentists' names to the forms. Around 1987 or 1988, Dr. Murray acquired computerized diagnostic equipment for the clinic. At first Dr. Toombs, who was trained and familiar with the equipment, performed the testing. Later, Dr. Murray hired Maggie Collins to operate the equipment. Maggie Collins administered the diagnostic tests to the patients at issue in this proceeding. By the time Dr. Rowe left Central Florida Dental Association in 1989, his relationship with Dr. Murray had deteriorated, giving rise to acrimonious litigation. Patient Records After Dr. Rowe left, he had no further access to, or control over the dental records for the eight patients at issue in this proceeding. These Central Florida Dental Association records were at all times maintained under the case, custody and control of Dr. Murray and his employees. When the records were subpoenaed by the Department of Professional Regulation, copies of the records were provided and the clinic employees certified that the records provided were complete. They were, in fact, not complete, as approximately 426 additional pages were included in the originals subpoenaed by counsel for Dr. Rowe, which pages had not been provided to DPR. Many of the documents not copied for DPR related to billings. In some instances Dr. Rowe's daily reports or consultations were missing from the original records and from the copies. And, in at least one case the original record contains an entirely different version of a specific radiology consultation conducted by Dr. Rowe on 5/3/89. (Compare Rowe Exhibit #2 with Pet. Exh. #5-1). No evidence was provided to conclusively explain the discrepancies, and the records themselves are an unreliable source of evidence with regard to the allegations that Dr. Toombs failed to maintain adequate records for patient J.T. Her file contains only one X-ray from Central Florida Dental Association, and no explanation of tests, diagnoses or the continuing contacts she remembers with Dr. Toombs. The patient specifically remembers more than one X-ray being done at the clinic. The Patients At various times during 1987, 1988 and 1989, Dr. Rowe was consulted by these patients: H.W., E.M., M.Z., R.P.V., H.D., R.M. and S.R. Each had been involved in an automobile accident or other traumatic injury and each complained of headaches, pain, dizziness, and other symptoms. After examination and throughout a course of testing and treatment, these various diagnoses of TMJ disorders by Dr. Rowe were commonly found in the above patients: trismus, closed lock, and mandibular atrophy. While other diagnoses were made in the individual cases, the evidence at hearing and Petitioner's proposed recommended order address only these. Patient J.T. first consulted Dr. Toombs in August 1988, after suffering headaches which she understood from her regular dentist and her physician might be caused by dental overbite. She had a friend who had some work done by Dr. Toombs, so she looked him up in the yellow pages under "orthodontics" and made an appointment. After testing and X-rays and a brief consultation with Dr. Rowe, J.T. understood that Drs. Toombs and Rowe were suggesting jaw joint replacement, removal of some teeth and braces. She was advised to get another opinion and she returned to a prior treating physician. She did not follow up with treatment from Dr. Toombs or Rowe. Testing In addition to being administered X-rays, the above patients were tested on myotronics equipment at Central Florida Dental Association by Maggie Collins, a trained diagnostic testing operator hired by Dr. Frank Murray. Myotronics is electronic equipment developed by a Seattle, Washington company over the last twenty years. The equipment is used in diagnosis and sometimes treatment of TMJ functions, and includes sonography, which records the vibration of sound; electromyography (EMG), which measures the electrical activities of the muscles of the face; and computerized mandibular scanning (CMS), which measures a range and velocity of mandibular movement, i.e., the opening and closing of the jaw. Myotronics can also include a device like a TENS unit used for pulsating. The machines produce printouts which are available for interpretation later by the appropriate professional. On each occasion of administering the myotronics tests to the patients at issue, Maggie Collins was alone, undirected by Dr. Toombs, Dr. Rowe or other clinic staff. She utilized testing procedures she had been taught and had used in her prior dental clinic experience and which she continues to use in the clinic where she now works. In some cases, Ms. Collins administered the same tests twice on a single visit. In those cases, after the first series, the patient was pulsated with a TENS before the series was administered again to measure the effectiveness of the pulsating. This is a standard practice. The full testing takes two and a half to three hours. Diagnoses The TMJ, or temporomandibular joint of the jaw, is between the temporo bone and the mandible. A disc is between the condyle (bone) and the fossa (socket). As the mouth is opened, the bone moves and the disc moves slightly at first, until the mouth is opened wider and the disc rotates around the axis of the condyle. According to Respondent Rowe's TMJ expert witness, John Biggs, D.D.S., and as evidenced by the testimony of all of the experts in this proceeding, terminology in TMJ is open to interpretation and there is not a complete union of agreement on every single thing in the field of TMJ. (tr.-p.790) "Closed lock" can legitimately mean that the disc is out of place and is not recaptured as the mouth is closed. The term, "closed lock", can also be applied to the mandible, meaning the jaw does not open normally because it meets resistance from muscle spasm or tissue impediment from the disc. An acute closed lock would impede the opening more than a chronic condition, as the mandible may, over time, stretch the ligaments. An acute closed lock could limit the mandibular opening to 21, 25 or even 27 mm; whereas a chronic closed lock might allow an opening of up to 40 mm, and sometimes more, according to Petitioner's expert, Dr. Abdel-Fattah (rebuttal deposition, 12/2/92, p.71). The patients' files in evidence reveal findings of limited mandibular openings from a variety of sources, including manual and electronic measurement. Those openings are well within the ranges described above for closed lock and most are within the "acute closed lock" range. Another term for "closed lock" is "anterior displacement of the disc without reduction". This means the disc is not recaptured on the condyle. When a sonogram reflects sounds or clicking in the joint, analysis of those sounds is helpful in diagnosing TMJ disorders. Literature appended by Petitioner to the rebuttal deposition of its expert supports Dr. Moretti's opinion that the presence of clicks can still mean that a closed lock exists. (Pet. #3 to deposition of Reba A.Abdel-Fattah, pp. 1 and 3, figure 5 Rowe Ex. #10, p.18) Trismus is more appropriately designated a symptom rather than a diagnosis. It means spasm of the muscles of mastication. The pain of the symptom often interferes with the opening of the mandible, and for that reason, trismus is sometimes used to also denote "limited opening". It is apparent from the patient records that Dr. Rowe used the term interchangeably, and for that reason, findings of trismus where a patient is able to open to 40 mm are not inconsistent. Moreover, trismus as a symptom may be more or less pronounced under a variety of circumstances on different occasions with the same patient. For example, the patient may experience severe trismus upon rising in the morning and find that it subsides later. Mandibular atrophy is indicated by bone loss. Reviewing the same X- rays for patient E.M., Petitioner's and Respondent Rowe's experts came to opposite conclusive opinions as to whether Dr. Rowe's diagnosis of this condition in E.M. was proper. Mandibular atrophy was also diagnosed in patient S.R., but Dr. Fattah did not find a problem with that diagnosis. Treatment Dr. Rowe's treatment of the patients in issue included closed manipulation and the insertion of orthodic splints. Both are noninvasive, conservative procedures. Petitioner alleges that closed manipulation was unnecessary in the absence of closed lock, and that the method of insertion of the splints by Dr. Rowe was improper. Closed manipulation of the mandible, sometimes called "closed reduction", is manual manipulation to attempt to recapture the disc. The procedure can be done several ways, one of which is to approach the patient from the back, place the hands on the mandible and relax the mandible to where it can be opened, moving the disc into place. The patient is in a supine, or reclined, position in the dental chair. Once the disc is manually repositioned, it is important to keep the patient from closing back on his posterior teeth and losing the disc again. To avoid this, an orthodic splint is inserted and fitted in the patient's mouth. Even when manipulation does not unlock the mandible, the practitioner might want to place the splint for support. The splint can be placed with the patient sitting erect or reclined. Dr. Rowe generally places the splint while the patient is reclined in the dental chair. Adjustments may be made after the splint is initially placed and the patient is sometimes seen twice on the same day or on a weekly basis. Because it is important for the patient to be relaxed, the supine or reclining position is preferred. Insurance Claims Insurance claims at Central Florida Dental Association were handled by clerical staff in a separate department. Claim forms were commonly signed by those staff for the treating dentist, but there is no evidence that the signatures were authorized for any specific claim. Another wholly inappropriate practice at the clinic was to have the dentists sign blank forms to be filled out later. Dr. Rowe testified that Dr. Murray required that they do this, and that he did sign blank forms. Those forms include this printed statement over the signature line: NOTICE: Under penalty of perjury, I declare that I have read the foregoing, that the facts alleged are true, to the best of my knowledge and belief, and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained. (Pet. Ex. 12) There is no evidence that Dr. Rowe or Dr. Toombs filled out the claim forms in issue, or were involved in the ultimate decisions as to how much and when to bill an insurance company. In several instances, the forms reflect that tests were billed twice on the same day. As found above, tests were commonly administered twice in one day, for valid reasons. Whether the billing for such was proper was simply not addressed by any competent testimony in this proceeding. Patients' insurance companies were also billed for TENS units. H.W. was given this equipment at the clinic and he testified that he still has it. There is no evidence that any billing for TENS units was fraudulent or improper. Advertising In 1988, the Osceola County telephone directory Yellow Pages listed Dr. Toombs under "Dentists-Orthodontics". There is no evidence that anyone other than Dr. Murray was involved with the placement of that listing. Dr. Toombs is a general dentist who practices orthodontics. He is a member of various orthodontic societies. Petitioner's expert witness, Dr. Lilly, confirmed that a general practitioner of dentistry may practice some orthodontics. There is no evidence that Dr. Toombs has held himself out or limited his practice to being an orthodontist. Weighing the Evidence and Summary of Findings Competent reasonable experts testified on behalf of both Petitioner and Respondent Rowe. It is clear that, as Dr. Biggs observed, terminology in the field of TMJ is not as precise and uniform as Dr. Fattah would suggest. Some of the differences in opinion are attributed to that imprecision, and perhaps to quirks in Dr. Rowe's narratives which portray a surgical setting for a nonsurgical procedure, for example, "draping the patient" or "surgical splint". Dr. Rowe, as an oral surgeon, nonetheless, proceeded reasonably in his sequence of diagnosis and treatment; that is, he attempted conservative, noninvasive modalities before going to more invasive procedures such as arthoscopy and surgery. Other differences in opinion and in the way the computerized test results are interpreted are more difficult to resolve. Dr. Rowe contends that Dr. Fattah misread the printed data, confusing vertical with horizontal readings. Dr. Fattah uses myotronic equipment, but not the older model that was used for the tests at issue. The greater weight of evidence supports Respondent Rowe's diagnoses of the patients at issue. Since the allegations of inappropriate and unnecessary treatment are based on allegations of misdiagnosis, Petitioner's proof fails here as well. The further testing, the closed manipulation and insertion of the splints were appropriate follow up for the findings of TMJ disorders by Dr. Rowe. With one exception, it was the insurance companies and not the patients who complained. The records from Central Florida Dental Association reflect substantial billings and insurance form submittals for Dr. Rowe's and Dr. Toombs' patients, but no evidence of these Respondents' responsibility or involvement in the process. The clinic functions were performed in discrete departments under the overall management and control of Dr. Murray. There was no evidence that either Dr. Rowe or Dr. Toombs exercised influence over any patient so as to exploit the patient for personal financial gain.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Respondent Rowe be found guilty of violating Section 466.028(1)(b), (1983), and a fine of $250.00 be imposed; and that the remaining charges as to Respondents Rowe and Toombs be dismissed. DONE AND RECOMMENDED this 2nd day of April, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 2nd day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-3213, 91-6022 AND 91-5362 The following constitute specific rulings on the findings of fact proposed by the parties. Adopted in paragraph 1. 2.-3. Adopted in paragraph 2. 4. Rejected as unnecessary. The statute is addressed in the Conclusions of Law. 5.-6. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 9.-13. Rejected as contrary to the weight of evidence. 14.-15. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 18.-23. Rejected as contrary to the weight of evidence. 24.-25. Adopted in summary in paragraph 13. 26. Adopted in summary in paragraphs 16 and 26. 27.-30. Rejected as contrary to the weight of evidence. 31. Adopted in paragraph 27. The referenced exhibit #33 is Dr. Lilly's resume and does not support the proposed finding. 32.-34. Rejected as contrary to the weight of evidence. 35.-36. Adopted in summary in paragraph 13. 37. Adopted in summary in paragraphs 16 and 26. 38.-42. Rejected as contrary to the weight of evidence. 43.-44. Adopted in summary in paragraph 13. 45. Adopted in summary in paragraphs 16 and 26. 46.-49. Rejected as contrary to the weight of evidence. 50.-51. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 54.-58. Rejected as contrary to the weight of evidence. The reference to exhibit #33 is incorrect. 59.-60. Adopted in summary in paragraph 13. Rejected as contrary to the weight of evidence. Adopted in summary in paragraphs 16 and 26. 63.-67. Rejected as contrary to the weight of evidence. 68. Adopted in paragraph 4. 69.-70. Adopted in paragraph 14. Adopted in part in paragraph 34, otherwise rejected as to Respondent's involvement in the advertisement. Adopted in paragraph 35. 73.-74. Rejected as unnecessary. 75.-77. Rejected as unnecessary or unsupported by competent evidence as the absence of these records does not support the finding of a violation under the circumstances. Findings Proposed by Respondent Rowe Adopted in paragraph 1. Adopted in paragraph 3. 3.-4. Adopted in paragraph 9. 5.-7. Adopted in paragraph 10. 8.-9. Adopted in paragraph 11. Adopted in paragraph 10. Rejected. The testimony of J.T. is inconclusive in this regard. Adopted in paragraph 8. Rejected as unnecessary. Rejected as overbroad. The records received were reliable for a limited purpose. 15.-16. Rejected as unnecessary. Rejected as immaterial. Respondent admitted the violation. Adopted in part in paragraph 2, otherwise rejected as immaterial (see paragraph 17, above) Adopted in paragraph 32, in substance. Adopted in substance in paragraph 6. Rejected as unnecessary. Rejected in part as unsubstantiated by the record (as to whether Rowe received any benefit other than salary), otherwise adopted in paragraph 6. 23.-24. Adopted in paragraph 6. 25. Adopted in paragraph 41. 26.-27. Adopted in paragraph 37. Adopted in paragraph 41. Adopted in paragraph 29. Adopted in substance in paragraph 21. Adopted in paragraph 23. Adopted in paragraph 20. Adopted in paragraph 24. 34.-37. Rejected as unsupported by conclusive evidence. The witness was at times confused in his haste. He does not know this particular equipment but it is not clear from the record that he was reading the data wrong. Adopted in paragraph 24. Adopted in paragraph 23. Adopted in paragraphs 37 and 38. Adopted in paragraph 33. Rejected in part, adopted in part (see conclusions of law). Finding of Fact Recommended by Respondent Toombs Rejected as unnecessary. Adopted in paragraph 4. Adopted in paragraph 14. 4.-5. Rejected as unnecessary. Adopted in paragraph 36. Adopted in paragraph 34. Adopted in paragraph 35. 9.-11. Rejected as unnecessary. 12. Adopted in paragraph 5. 13.-18. Rejected as unnecessary. 19. Adopted in paragraph 12. 20.-26. Rejected as unnecessary. 27. Adopted in paragraph 41. COPIES FURNISHED: William Buckhalt, Executive Director Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Albert Peacock, Sr. Atty. Dept. of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Kenneth Brooten, Jr. 660 W. Fairbanks Avenue Winter Park, FL 32789 Ronald Hand 241 E. Ruby Ave., Ste. A Kissimmee, FL 34741
The Issue At issue is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the 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 provide consumer complaint, investigative and prosecutorial services by the Division of Medical Quality Assurance, councils, or boards. Respondent is and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN0006759. Respondent's dental license has been delinquent since March 1, 2000. Respondent's last known address is 8081 Park Villa Circle, Cupertino, California 95014. On or about December 16, 1993, Respondent was convicted in a jury trial of one count of soliciting prostitution, five counts of sexual battery and two counts of false imprisonment in the County of Santa Clara, California. Respondent was sentenced to three years in prison. The sentence was suspended and Respondent was placed on felony probation for five years subject to the following conditions: that he serve one year in the county jail; that he pay fines and penalties; that he undergo psychiatric counseling; that he report his conviction to future employers; that he report to the California Dental Board; that he treat male patients only; and that he have no contact with the victims. The circumstances underlying Respondent's criminal convictions involved sexual battery of female employees in the dental office and of female patients during dental treatments in his office while he was engaged in the practice of dentistry. In or around January 1996, the California Board of Dentistry accepted Respondent's surrender of his California license to practice dentistry in case number AGN 1994-18, and allowing Respondent to apply for reinstatement after one year, subject to the terms and conditions of Respondent's criminal probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Board of Dentistry enter a final order adopting the foregoing findings of fact and conclusions of law and which revokes Respondent's license. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 February, 2001. COPIES FURNISHED: Rosanna M. Catalano, Esquire Agency for Health Care Administration Post Office Box 14229 Mail Stop 39 Tallahassee, Florida 32317-4229 Houshang J. Dayan, D.D.S. 8081 Park Villa Circle Cupertino, California 95014 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
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 =================================================================
Findings Of Fact On November 16, 1990, Petitioner sat for the Dental Manual Skills Examination administered by Respondent as part of its regulatory duties pertaining to the practice of dentistry in the State of Florida. This examination consisted of nine separate procedures. Each procedure was graded by three dentists, each of whom had been trained by Respondent to grade this type of an examination. Procedures 1-5 have a weighted value of 12 while Procedures 6-9 have a weighted value of 10. Following the initial scoring of Petitioner's performance, Petitioner received a final grade of 2.78. A final grade of 3 was the minimum passing grade. Petitioner challenged the scoring of her performance on Procedure 5 "Completed Endondontic Therapy" and on Procedure 6 "Class II Amalgam Restoration". Following receipt of Petitioner's challenge, Respondent caused the scoring of her performance to be reviewed by Theodore Simpkin, D.D.S., a consultant employed by Respondent. At the recommendation of Dr. Simpkin, Petitioner's performance on Procedure 5 and Procedure 6 was re-scored by three new scorers. As a result of the re-scoring, Petitioner received slightly lower total scores on each of these two procedures and, consequently, a slightly lower final grade. The final grade was still below that required for passage of the examination. At the formal hearing, Petitioner established that she was entitled to have Procedure 5 re-scored. On Procedure 5 the first examiner scored Petitioner's performance as a 2, the second examiner a 0, and the third a 3. Petitioner was entitled to have her performance re-scored because the second examiner neglected to completely fill out the score sheet. Petitioner's performance on Procedure 5 was re-scored by three other dentists used by Respondent as scorers for the manual skills examination. Petitioner failed to establish that the re-scoring of her performance on Procedure 5 was in error or that she was entitled to more credit than she received. Petitioner received the relief to which she was entitled when Respondent caused her performance to be re-scored. At the formal hearing, Petitioner also established that she was entitled to have Procedure 6 re-scored. On Procedure 6 the first examiner scored Petitioner's performance as a 0, the second examiner a 4, and the third a Dr. Simpkin recommended that Petitioner's performance on Procedure 6 be re- scored because he was of the opinion that her performance should not have received a grade of zero from the first examiner and he was also of the opinion that her performance should not have received a four from the other two examiners. Petitioner's performance on Procedure 6 was re-scored by three other dentists used by Respondent as scorers for the manual skills examination. Petitioner failed to establish that the re-scoring of her performance on Procedure 6 was in error or that she was entitled to more credit than she received. Petitioner received the relief to which she was entitled when Respondent caused her performance to be re-scored.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which denies Petitioner's challenge to the scoring of her performance on Procedures 5 and 6 of the November 1990 Dental Manual Skills Examination. DONE AND ENTERED this 30th day of January, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 30th day of January, 1992. Copies furnished: Tracey S. Hartman, Esquire Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Department of Professional Regulation/Board of Dentistry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Salvatore Carpino, Esquire 1 Urban Center Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Victoria Grimes, D.D.S. 223 Summa Street West Palm Beach, Florida 33405
