Findings Of Fact William N. Abood, D.D.S., is subject to the jurisdiction of the Florida State Board of Dentistry. William N. Abood, D.D.S., is a licensed dentist in the State of Florida, license number 1253, last renewal certificate issued September 3, 1975, practicing at 2324 Post Street, Jacksonville, Florida. That, during the period of time between approximately August, 1974, and November, 1975, Cynthia Roundtree was an employee of William N. Abood, D.D.S. While an employee of Dr. William N. Abood, and acting under his control and supervision, Cynthia Roundtree was permitted to perform adjustments to partials and dentures, cemented and adjusted the occlusion of temporary crowns, and cemented and replaced crowns which had fallen out. Cynthia Roundtree is not licensed by the Florida State Board of Dentistry to practice dentistry or dental hygiene. While an employee of Dr. Abood, and acting under his control and supervision, Shirley Barrie was permitted to perform the adjustment of partials and dentures, cemented and adjusted the occlusion of temporary crowns, and placed materials in the dentures for temporary reliner and and adjusted the occlusion. Shirley Barrie is not licensed by the Florida State Board of Dentistry to practice dentistry or dental hygiene. That both assistants when making adjustments to partials or dentures with or without Dr. Abood's inspection or instruction, would examine the appliance and mouth, make a diagnosis as to the problem, then Proceed to correct the problem by grinding on the appliance and adjusting the occlusion. Dr. Abood permitted both assistants to cement temporary crowns which they had prepared from preformed aluminum crowns, then cut and trim the crown, adjust the occlusion by using articulating paper and cement it to the tooth. Cynthia Roundtree would on occasion, re-cement permanent crowns which had fallen out by grinding the cement out, drying the Patient's tooth, cementing once again the permanent crown and finally placing it on the tooth. Shirley Barrie would on occasion, place temporary reliners in dentures or partials by mixing vista gel which was used for the reliner and placed in the appliance, then the appliance would be placed in the mouth and the occlusion adjusted if necessary. Dr. Abood testified that he believed the procedures he authorized his assistants to perform in his office was a common practice among the dental profession; that he was not affirmatively aware that it was contrary to the laws and rules administered by the Dental Board and that he no longer permits his staff to do the same.
The Issue In this proceeding pursuant to Section 120.56(4), Florida Statutes, Petitioners Florida Association of Insurance Agents (the "FAIA") and Professional Insurance Agents of Florida, Inc. (the "PIA") (collectively, the "Agents") allege that a process governing so-called "renewal keep-outs," which is set forth in a manual that was produced by Respondent Florida Windstorm Underwriting Association (the "Association") and approved by Respondent Department of Insurance (the "Department"), constitutes a rule-by-definition that was not adopted under, and therefore violates, Section 120.54, Florida Statutes. This case presents several issues. As a threshold matter, it must be determined whether the Agents have standing. If they do, the ultimate issue will be whether the challenged process constitutes a rule-by-definition in violation of Section 120.54(1)(a), Florida Statutes. Embedded in the ultimate issue, however, is the first-impression question whether the Association is an "agency" subject to the provisions of Chapter 120, Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Parties The FAIA. The FAIA is a nonprofit, voluntary trade association of independent insurance agencies. The FAIA has approximately 1100 member agencies that employ somewhere in the neighborhood of 12,000 insurance agents. ("Captive" insurance agents that represent a single company, such as agents for State Farm and Nationwide, and most Allstate agents, are not eligible for membership in the FAIA.) Generally speaking, the FAIA advocates on behalf of its members in all arenas, including the Department, in which it may protect and promote the business interests of independent insurance agents. The FAIA regularly represents its members' interests in regulatory matters involving the Department. Additionally, the FAIA lobbies, sponsors continuing education programs, publishes manuals, and sells products and services to its members, including errors and omissions coverage. The PIA. Like the FAIA, the PIA is a nonprofit trade association. Its membership is comprised of independent insurance agents. It provides many of the same services as the FAIA and regularly works with the FAIA to advance their common interests, including in matters involving the Department. The PIA has approximately 450 members. The Association. The Association is a nonprofit association that the Department organized in 1970 pursuant to authority delegated by the legislature. See Section 627.351(2), Florida Statutes. The statute that enabled the creation of the Association effectively mandates that each insurer holding a certificate of authority to transact property insurance on a direct basis in this state must be a "member" of the Association. As required by statute, the Association issues windstorm-only insurance policies to eligible beneficiaries. These policies provide coverage for losses from property damage due to windstorm, hail, and hurricane risks, but they do not cover other perils, such as fire and theft, that are commonly insured under a standard homeowners' policy. To be eligible for an Association policy, an applicant must live in an area (i.e. near the coast) where windstorm coverage is not available in the admitted voluntary market. Thus, the Association creates and serves what is known as a "residual market," meaning a market that makes coverage available for risks that admitted insurers, competing in the voluntary market, refuse to accept. A residual market is in essence a market of last resort for otherwise uninsurable risks. Because Association policies provide windstorm-only coverage, policyholders of the Association who desire multiperil homeowners' insurance must purchase a second policy from another insurer, either in the admitted voluntary market or, as a last resort, the Florida Residential Property and Casualty Joint Underwriting Association. The policy from the second insurer will exclude windstorm coverage. This type of policy is commonly called an "ex-wind" policy. The Association does not employ insurance agents. Every licensed agent in the state, however, is authorized to write policies for the Association. It was estimated by a representative of the FAIA who testified at hearing that approximately 60 to 70 percent of that association's member agencies place business in the Association——a figure that was not rebutted. Moreover, because nearly all of the coastal areas of Florida, including such major population centers as Miami- Dade, Broward, Palm Beach, and Pinellas Counties, are eligible for Association coverage, the trier has drawn the reasonable inference that a substantial number of licensed agents, and hence, correspondingly, a substantial number of the Agents' members, are involved in writing Association policies. The Association is funded not only through premiums and surcharges paid by its policyholders but also with assessments collected from "member" insurance companies and property policyholders throughout the State of Florida. The Association assesses "member" insurers based upon the proportion that an individual carrier's total written premiums in a given year bears to the overall premiums written statewide by all admitted property insurers in that year. In the event the Association receives insufficient revenues to pay losses in a given year, it has the power to levy emergency assessments against all "member" insurers to meet the deficit. The Association is governed by a 15-member board of directors (the "Board"). Twelve of the directors are representatives of the Association's insurer "members," one of the directors is appointed by the Governor, one is appointed by the Insurance Commissioner, and one is the Department's consumer advocate. The Association operates pursuant to a "plan of operation" that the legislature directed the Department to adopt. The Association's first Plan of Operation was adopted in 1970; it has since been amended and revised from time to time, most recently as of October 3, 2000. This latest version of the Amended and Restated Plan of Operation and Articles of Agreement (the "Plan"), which was in effect at all times material to this case, was adopted by the Department as a rule (Rule 4J-1.001, Florida Administrative Code), effective January 8, 2001. Any proposed amendment to the Plan must be approved by the Department through the adoption of such amendment as a rule. The Association must administer the Plan, through its Board, in compliance with Section 627.351(2), Florida Statutes, and in accordance with the provisions of the Plan and such other rules as the Department may adopt. The Board's administration of the Plan is supervised by the Department. In the exercise of its duty to oversee the Association, the Department, through its employees, attends and participates in meetings of the Board and various committees appointed thereby. The Department's authority over the Association is plenary, or very nearly so, for ultimately the Association can do no more than what the Department, through a plan of operation, allows it to do. Indeed, the legislature has granted the Department broad authority to implement the windstorm insurance program required by Section 627.351(2), Florida Statutes, through any number of vehicles of the Department's choosing. Thus, if it wanted to, the Department could dissolve the Association and replace it with another plan for carrying out the legislature's mandate that otherwise uninsurable windstorm risks be equitably apportioned between and among all admitted property insurers. In sum, the Association performs a private sector function (the transaction of insurance), but it does so exclusively in an artificial, non-competitive market of the state's creation. Although the Department subjects the Association to essentially the same regulatory scrutiny as any private insurer doing business in Florida, the fact remains that the Association is fundamentally an instrumentality of the Department. Therefore, the Association is a unique entity that is materially different and readily distinguishable from its insurer "members." The Department. The Department is the executive branch agency charged with administering the Florida Insurance Code. Among other things, as mentioned above, the Department has been given the responsibility of executing the legislature's will as it relates to the apportionment of uninsurable windstorm risks. In furtherance of this particular duty, the Department has created, and exercises considerable control over, the Association. The Renewal Keep-Out Program Depopulation. In the wake of catastrophic losses caused by Hurricane Andrew, the Association and the Department, responding to legislative calls to action, have undertaken to "depopulate" the Association. "Depopulation" refers to the removal of risks from a residual market when market factors indicate that the residual market is not truly a market of last resort. Put simply, "depopulation" means reducing the number of policies underwritten by the Association, and transferring those risks to private insurers willing to underwrite the risks. "Renewal keep-out" is a particular method of depopulating the Association; it is the form of depopulation that has spawned the instant dispute. (Other means of depopulation, which are not directly in issue, include assumption of existing policies and "new application" keep-out.) Renewal keep-out, like other depopulation methods, follows from the statutorily-prescribed eligibility criterion that opens the door to Association coverage only for those who are unable to obtain an offer of coverage from an admitted insurer at approved rates. In this instance, if an admitted insurer tenders an offer of coverage to a policyholder of the Association under which the offeror would provide windstorm insurance to that policyholder upon the expiration of his or her Association policy, then that policyholder's eligibility is terminated, and the Association will not renew his or her policy——hence the term, renewal keep-out. A renewal keep-out program, then, is one which allows an insurer to select certain policies in a residual market and extend an offer of coverage to the chosen policyholders in order to remove those risks from the residual market at the time of renewal. The "take-out" or "keep-out" carrier, as it is called, selects policies according to the particular risk factors presented by a given set of policies, understandably looking to cherry-pick the best risks in the pool. The Alleged Rule-By-Definition. To implement the statutory mandates and provide for depopulation in an organized fashion with minimum disruption to policyholders, the Association and the Department collaborated to develop a detailed set of implementation procedures and rules governing the various depopulation methods, including renewal keep-out. These procedures, rules, and forms are compiled in a manual entitled FWUA Eligibility Procedures for Reviewing Offers of Coverage from Admitted Companies (the "Manual"). Though issued in the name of the Association, the Manual is a joint work product of the Association and the Department. The Department was intensely involved in the development of the depopulation and renewal keep-out procedures contained in the Manual. It provided extensive substantive and stylistic input, editing drafts of the document and proposing many revisions that were incorporated into the Manual. The Department's comments were not suggestions: Had the Association refused to incorporate the Department's proposed changes, the Department would not have approved the Manual for use. The Association initially submitted the Manual to the Department on September 20, 2000, for approval as a "rule and form" filing. After further revisions were made, the Department stamped the Manual "APPROVED FOR USE," effective January 1, 2001. Neither the Department nor the Association has attempted to promulgate the Manual as a rule pursuant to Section 120.54, Florida Statutes. The Department approved the Manual pursuant to a process that is normally used for the review and approval of private insurers' underwriting rules. Ordinarily, the Department's approval of an insurer's underwriting rules signifies that the rules may be used by the filing insurer——and no one else. Respondents argue that because the Department approved the Manual in this fashion, the Manual must be regarded as the equivalent of a private insurer's underwriting rules. The evidence shows, however, that the Manual does not, in fact, set forth underwriting rules like those of a private insurer. The general purpose of the Manual is described therein as being to assist an insurer seeking to make a qualified offer of coverage that would: Render an applicant ineligible for coverage in the [Association] (Keep Out); Render an expiring policy ineligible for coverage in the [Association] (Renewal Keep Out); Transfer [Association] policies to an authorized insurer (Assumption). Manual, at p. 2. The Manual further states that: In order for the [Association] to determine that a policyholder currently being written by the [Association] is ineligible for further coverage, an insurer must demonstrate: The company is an authorized insurer; It has made a qualifying offer of coverage pursuant to section 627.351(2)(b)5e.; It can comply with these procedures and provide for a smooth transition of policies. Id. In other words, in short, the Manual provides the procedures and criteria by which the Association will evaluate a keep-out carrier's coverage offer and determine whether such offer "qualifies" as an eligibility-terminating offer. All companies that want to remove business from the Association must comply with the procedures set forth in the Manual. Thus, the Manual purports to regulate private insurers, not as "members" of the Association, but as competitors in the admitted voluntary market (into which recipients of eligibility-terminating offers are thrust). This sort of sweeping regulation is not the stuff of a routine "rules and forms" filing by a private insurer; private insurers do not have the power to promulgate regulations of the sort prescribed in the Manual. A section of the Manual, under the heading, "PROCESS APPLICABLE TO RENEWAL KEEP OUTS," describes the procedures that govern the Association's Renewal Keep Out Program. These procedures——which, together with certain forms identified therein, comprise the "statement" that the Agents claim is a rule-by-definition——will hereinafter be referred to collectively as the "Program." The Program, minus the applicable forms, is reproduced in Appendix A attached to this Final Order. Implementation of the Program: Atlantic Preferred Pursuant to the Program, the Association has approved a plan, put forward by an insurer called Atlantic Preferred, to remove approximately 47,000 Association policies. The Atlantic Preferred coverage offer, which the Association has determined qualifies as an eligibility-terminating offer, proposes to insure existing Association policyholders under a multiperil homeowners' policy that includes windstorm coverage. According to the terms of the Program, each policyholder who receives the Atlantic Preferred offer will be ineligible for coverage with the Association for at least one year following the date his or her Association policy would have renewed. On or about March 27, 2001, the Association sent out the first notices of nonrenewal to policyholders selected by Atlantic Preferred. Recipients of these notices became ineligible for Association coverage as of, or around, July 3, 2001. Policyholders who receive a nonrenewal notice will be faced with the "choice" of either accepting Atlantic Preferred's offer or rejecting that offer and being without windstorm coverage for a minimum of one year unless a more attractive offer of windstorm insurance can be obtained in the admitted voluntary market, which is highly improbable. It is reasonable to infer, and so found, that few, if any, property owners living in Florida's hurricane-prone coastal areas will choose to go "bare" rather than accept Atlantic Preferred's offer. Most if not all of the recipients of Atlantic Preferred's offer carry ex-wind insurance policies that were written through an agent. A property owner who purchases Atlantic Preferred's multiperil policy in accordance with the eligibility-terminating offer will need to cancel his or her existing ex-wind policy to avoid overlapping insurance——which will sever not only a business relationship with the ex-wind insurer but also, possibly, ties to the agent that placed the ex-wind policy. At a minimum, an agent whose client receives an offer from Atlantic Preferred stands to lose some of that client's business unless he or she can obtain an appointment from Atlantic Preferred. It is estimated that approximately 32,000 of the polices that Atlantic Preferred has targeted for removal were written by independent agents. It is reasonable to infer, and so found, that a substantial number of these agents are members of the Agents and are likely to be affected by the Atlantic Preferred renewal keep-out plan.
Findings Of Fact Dr. Swerdzewski, a general dentist in practice in Tallahassee, has been Petitioner's family dentist since 1982. At some time in the latter part of 1983, he saw Petitioner's minor son, Rhett, whom he had seen on various dental problems since 1982 for some minor orthodontic problem. He referred Rhett to an orthodontist but the conclusion drawn was that any work done would be a matter of preference rather than necessity since the mouth was pretty well aligned and it was elective as to whether to do the cosmetic orthodonture or not. Consequently, no orthodontic work was accomplished or planned. On January 28, 1984, Rhett was riding his bicycle near Petitioner's home when he lost control and fell off the bike, over the handlebars, landing face first on the curb. A neighbor who saw the accident picked Rhett up and carried him to Petitioner's home. At this time, Rhett was bleeding heavily from the mouth. Fifteen to twenty minutes after the accident took place, Petitioner phoned the dentist. At that time, the dentist was out. When the call was returned an additional fifteen to twenty minutes later, the dentist instructed Petitioner to bring Rhett to the office immediately. Petitioner did not realize at that time that one tooth had been knocked out of Rhett's mouth. When they arrived at the dentist's office and the wound area was cleaned, it was first discovered that one of Rhett's teeth was missing and it was concluded that the tooth was probably still at the site of the accident. With that in mind, Petitioner went back to where Rhett had fallen and after a short period of time, located the tooth in the gravel near the side of the road. He returned the tooth to the dentist's office, where it was cleaned and reimplanted in Rhett's mouth. After this work was done, the dentist recommended that Petitioner bring Rhett back a week later and also recommended that Petitioner seek or consult with an orthodontist. This consult was held with Dr. Cummings on February 8, 1984. Dr. Cummings recommended orthodontic work to correct the problem and that the tooth in question be extracted because in his opinion, the long term prognosis for it was poor. Petitioner did not want to accept that diagnosis and sought a consultation with another orthodontist, Dr. Campbell, on February 21, 1984. This second orthodontist also recommended extraction and orthodonture indicating that in addition to the reimplanted tooth, the corresponding tooth on the opposite side of the mouth would also have to be extracted to maintain the mouth's midline balance. Petitioner was still reluctant to have this procedure followed. As a result, Dr. Campbell recommended that Petitioner also discuss the matter with Dr. King, Chairman of the Department of Orthodontics at the University of Florida Dental School. On April 3, 1984, the Petitioner saw Dr. King, who reviewed the case and recommended extraction of the bad tooth and its matching tooth and installation of an orthodontic device. After the meeting with Dr. King, Petitioner and his wife agreed that the orthodontic work was required and in order that the work could be done, requested an extension from the Blue Cross agency administering the state self health insurance plan in which Petitioner was enrolled. Blue Cross granted an additional 90 days for filing on May 17, 1984. Once that extension was granted, Petitioner decided to proceed with the treatment not expecting any problem with the insurance coverage. The work was accomplished after school was dismissed for the summer in June, 1984. The two teeth in question ware extracted upon the recommendation of all three orthodontists and braces were installed as appropriate. In August, 1984, the installing orthodontist and Petitioner were notified by Blue Cross/Blue Shield that the work being done would not be covered under the policy. Under paragraph VIII B of the Benefit Document, dental work "medically necessary" for the alleviation or repair of damage to an insured (including eligible dependents) is covered by the plan only if the work is (1) the result of an accident sustained while the insured is covered, and (2) rendered within 120 days of the accident unless a written explanation is submitted within that period stating extenuating circumstances. At the time of the accident and all times pertinent hereto, Petitioner was a bona fide member of the plan and Rhett was an eligible dependent. The term "medically necessary" means, in the opinion of the administrator of the program, the service received is required to identify or treat the illness or injury which a physician has diagnosed or reasonably suspects. The service must be (1) consistent with the diagnosis and treatment of the patient's condition, (2) in accordance with standards of good medical practice, and (3) required for reasons other than convenience of the patient or the physician. The fact that a service is prescribed by a practitioner does not necessarily mean that the service is medically necessary. A licensed dentist who performs a procedure covered by the plan is included in the definition of the term "physician." According to Dr. Swerdzewski, there were three accepted procedures for the treatment of Rhett's condition. The first would be to do nothing at all in which case the reimplanted tooth would ultimately be rejected by the body and lost from the mouth. In this case a space would remain on the gum where the lost tooth was that would allow the remaining teeth to spread to fill the void. In light of the fact that Rhett is still a child, whose jaw is still growing and developing, it would be impossible at this point to determine whether the remaining teeth would stay properly aligned or not. The second alternative would be to remove the tooth and replace it with a spacer to keep the void open until such time as the jaw was fully grown. At that point, the two teeth adjoining the hole on either side would be prepared for the affixing of a bridge consisting of a false tooth to be inserted in the vacant spot. Since a false tooth or bridge has an effective life span of from 15 to 20 years, given Rhett's current age, it is likely that the bridge would have to be replaced 2 or 3 times during his lifetime. The third alternative would be to follow that procedure followed here. The evulsed tooth, along with its symmetrical pairing on the other side of the mouth, would be removed and an orthodontic device (a brace) installed in the mouth to bring the remaining teeth together to fill the voids. Thereafter, the remaining canine teeth would be modified so that they would appear to be incisors from a cosmetic standpoint. Once this was done it is likely that no further treatment would be required throughout the course of the young man's life except to replace the cosmetic build attached to the modified incisors every so often. This replacement is not a major procedure. The tooth which was lost in the accident, tooth number 7, was subjected to a root canal by Dr. Swerdzewski prior to being reimplanted in Rhett's mouth. Since the root canal was done, this tooth would no longer discolor. However, subsequent examination of Rhett's mouth showed that tooth number 8 which is located immediately next to number 7, and which was loosened in the accident, shows some evidence of discoloration and may itself need some root canal work done on it. Though the evulsed tooth was treated and reimplanted, its prognosis at the time was poor. The longer a tooth is out of the mouth, the less chance of successful reimplantation there is when it is done. Dr. Swerdzewski reimplanted the tooth anyway because, in his opinion, individuals heal differently and he thought there was some chance this tooth would reaffix itself in the mouth and be satisfactory. In this case, however, the evulsed tooth was rejected. When the decision was made to follow the extraction/brace course of treatment and the evulsed tooth and its symmetrical match were pulled, the implanted tooth was seen not to have attached well. It had begun to deteriorate and was at that time in the process of rejection. In Dr. Swerdzewski's opinion, it would have had to come out anyway within the next year even if it did not break prior to that time. In fact, x-rays taken immediately before the tooth was pulled showed some loss of tooth structure and when the tooth was pulled and looked at clearly, the dentist was convinced it would not have stayed in. When Dr. Swerdzerdski took x-rays in March, 1984 there was no evidence of resorption. In discussing the two reasonable alternatives here, bridgework or orthodonture, Dr. Swerdzewski was of the opinion that while a bridge and caps could be done, this is not normally an acceptable treatment for a child of Rhett's age because of continued growth and mouth development. In addition, one of the adjacent teeth was loose, the area was traumatized, and it "'as likely that there could not be found a good base for attachment of the bridge. Consequently, over the long term, any bridge inserted would have to be replaced and the damage done to good teeth by the preparation for bridgework was not, in his opinion, justified in this case. The long term effect of the use of a bridge on this individual in these circumstances would be more traumatic than would be the course of treatment followed. It is, also, in the opinion of Dr. Swerdzewski, not good dental practice to do bridgework on patients under the age of 17 or 18 because even if the tooth to which the bridge is attached is fully erupted (grown out) the nerve and root structure of that tooth is not sufficiently developed to support the trauma of the preparation for bridgework. Consequently, Dr. Swerdzewski believes, while it would be dentally acceptable to utilize a space maintainer for the evulsed tooth area until the patient had matured sufficiently to support bridgework, it is not the most appropriate way. Instead, he chose, consistent with the recommendations of three orthodontists, to take out not only the injured tooth but also a perfectly good tooth which matched it symmetrically on the opposite side of the mouth in order to do the orthodonture. This was done to pull the tooth line together and in the opinion of all four experts, was the best result for the patient, Rhett. In the opinion of Dr. Swerdzewski, it is always better if possible to insert permanent artificialities in the mouth. Also, in Rhett's case, the teeth were pure and in his opinion it is too drastic a measure to damage pure teeth if not absolutely necessary. Dr. Swerdzewski's testimony is afforded great weight here because his practice includes the formulation and insertion of bridgework, not orthodonture. Having taken the position here that orthodonture was appropriate, he was referring business away from himself to his financial detriment. It was his confirmed opinion, and he acted in accord with it, that bridgework was not appropriate and dentally indicated for this case. No evidence to refute this was presented by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petitioner herein, ROBERT A. BRYMER, be afforded plan benefits under Respondent's Group Health Self Insurance Plan for treatment rendered his son as a result of the accident which took place on January 28, 1984. Recommended in Tallahassee, Florida, this 6th day of February, 1985. ARNOLD H. POLLOCK 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 6th day of February, 1985. COPIES FURNISHED: Dr. Robert A. Brymer 2805 Shamrock North Tallahassee, Florida 32308 Daniel C. Brown, Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
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.
The Issue Whether or not on or before January 7, 1978, the Respondent, James P. Haas, was offering to practice dentistry, and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center, in violation of Sections 466.24(3)(n) and 466.36, Florida Statutes. Whether or not on or before January 7, 1978, the Respondent, James P. Haas, maintained a telephone listing whereby he offered to practice dentistry as D.A.D. Denture Center at 101 Palm Springs Drive, Longwood, Florida, and whether or not he continues to maintain said listing, in violation of Sections 466.24(3)(g) and 466.27(5), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, one Bernie Morlock has been employed by the Respondent, James P. Haas, to perform dental services at a time when the said Bernie Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida. Further, whether or not Bernie Morlock, while employed by the Respondent, practiced dentistry as defined in Section 466.04, Florida Statutes, to the extent of: Taking impressions of the human teeth and jaws. Placing dentures and dental appliances in patients' mouths and adjusting or attempting to adjust same. Diagnosing or professing to diagnose the physical condition of the teeth and jaws of patients. Finally, whether or not the Respondent knowingly allowed the practice of dentistry by Bernie Morlock in violation of Section 466.02, Florida Statutes, and in further violation of Section 466.24(3)(d) and (e), Florida Statutes. Whether or not since January 1, 1978, or prior to that date, the Respondent, James P. Haas, has employed unlicensed personnel to perform dental services for patients, to-wit: orthodontic treatment, which services constitute the practice of dentistry under Section 466.04, Florida Statutes. Further, whether or not if these services were performed by unlicensed persons, were they performed with the full knowledge and consent of the Respondent, thereby constituting a violation on the part of the Respondent of Sections 466.24(3)(d) and (e), Florida Statutes. (The Amended Accusation which charges the Respondent contained a certain Count III; however, no testimony was offered in support of that allegation and at the conclusion of the formal hearing, the Petitioner, through its counsel, voluntarily withdrew that count from consideration. This voluntary dismissal was unopposed by the Respondent.)
Findings Of Fact The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Division of Professions, Board of Dentistry, is an agency of the state created for the purposes of protecting the public health, safety and welfare of the citizens of the State of Florida, to the extent that practice of dentistry in the state and dental hygiene are subject to the regulation and control of the Petitioner in the public interest. The authority for such regulation is set forth in Chapter 466, Florida Statutes, and those rules of the Florida Administrative Code related thereto. The Respondent, James P. Haas, is licensed by the Florida State Board of Dentistry to practice dentistry in the State of Florida. The Petitioner, by an Amended Accusation, has charged the Respondent, James P. Haas, with various violations of provisions of Chapter 466, Florida Statutes, and the Respondent has requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, which request has been granted and a hearing held on February 15 and 16, 1979. The first of the allegations states that on or before January 7, 1978, the Respondent was offering to practice dentistry and indeed practicing dentistry at 101 Palm Springs Drive, Longwood, Florida, under the assumed name of D.A.D. Denture Center. The facts reveal that Dr. Haas made an arrangement with an organization known as Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky, wherein he agreed to coordinate the placement of advertisements for the benefit of that corporation and in turn the corporation agreed to refer patients to Dr. Haas for his treatment. The advertising spoken of consisted of an ad in the Winter Park, Florida, telephone directory yellow pages and certain newspaper advertising through the Orlando Sentinel of Orlando, Florida. The advertising in the telephone directory was placed in the fall of 1977 and a copy of that yellow page advertising may be found as Petitioner's Exhibit No. 2 admitted into evidence. The Petitioner's Exhibit No. 1 admitted into evidence contains a copy of the format for the telephone yellow page advertising, as contemplated by Dr. Haas through his agreement with Delivering Affordable Dentistry, Inc., of Harredsberg, Kentucky. The listing of the telephone number was of the number in Harredsberg, Kentucky, and those individuals at that number in turn made the referrals to Dr. Haas's office located at 101 Palm Springs Drive, Longwood, Florida. An example of the newspaper advertising may be found in the Petitioner's Exhibit No. 3 admitted into evidence at page 161-I, a copy of the Sentinal Star Progress Edition of December 18, 1977. In that advertising the same number is given as indicated in the aforementioned telephone telephone ad, with the difference being that Delivering Affordable Dentistry, Inc., is given as the trade name as opposed to D.A.D. Denture Center, which was found in the telephone advertisement. Dr. Haas maintained a separate checking account for D.A.D. Denture Center, the name of his affiliation with Delivering Affordable Dentistry, Inc. The payments for services made by those patients referred through the D.A.D. Denture Center process, were placed into the D.A.D. Denture Center operating account of Dr. Haas. Those persons authorized to make withdrawals from that account were Dr. Haas and his employee, Bernie Morlock, and checks were drawn from that account under the authority of Dr. Haas. The overall income and expanses of D.A.D. Denture Center, operated by Dr. Haas, and of his general practice in the name of James P. Haas-sole proprietor, were combined and were under the control and authority of Dr. Haas. The dental office located in Longwood, Florida, was identified as the office of James P. Haas, D.D.S., and also by a placard indicating the office to be a D.A.D. Denture Center. Finally, those patients who called for service under D.A.D. Denture Center were charged by different fee structure and were listed in a separate appointment book, than that appointment hook for the Respondent through his general practice, James P. Haas, D.D.S. The Respondent was knowledgeable of the arrangement to treat patients under the assumed name of D.A.D. Denture Center at the address in Longwood, Florida, and in fact practiced dentistry under that assumed name and at that location as alleged in Count I of the Amended Accusation. This constituted a violation of Section 466.36, Florida Statutes, which states: "Practicing dentistry under assumed name; penalties.-- On and after the passage of this chapter, it shall be unlawful for any person or persons to practice or offer to practice dentistry under any name except his or her own proper name, which shall be the name used in his or her license certificate granted to him or her as a dentist as provided in this chapter, and unlawful to use the name of any company, association, corporation, clinic, trade name, or business name in connection with the practice of dentistry as defined in this chapter, provided, nothing herein contained shall be so construed as to prevent two or more licensed dentists from associating to- gether for the practice of dentistry, each in his or her own proper name. The violation of any of the provisions of this section by any dentist shall subject such dentist to suspen- sion or revocation of his or her license." The advertisement placed in the Winter Park, Florida, telephone directory, which is sham as Petitioner's Exhibit No. 2 admitted into evidence, was placed with the knowledge of the Respondent and with the intention by the Respondent that the advertisement be made. This advertisement pertained to the 1978 telephone directory for Winter Park, Florida. Under these facts, the Petitioner has charged the Respondent with a violation of Section 466.27(5), Florida Statutes. That provision reads: "466.27(5) Telephone listings shall be con- fined to the local telephone directories. Such listings shall be limited to the den- tist's name, dental degree, 'D.D.S.' or 'D.M.D.,' using the abbreviation only, the word 'dentist,' 'dentistry,' or 'general dentistry,' any specialty as approved by the board to which the dentist confines his practice exclusively, office location, resi- dence and office telephone numbers, and residence address and may include his member- ship in a local dental society if in accord with local customs." A review of the language of this section, in view of the fact that the advertising in the telephone directory inured to the benefit of the Respondent by the process of the referral system spoken of above, demonstrates that the telephone listing was for the benefit of Dr. Haas and was not in keeping with the requirements of this subsection. This constituted advertising professional services and the practice of dentistry in a manner not expressly authorized by Chapter 466, Florida Statutes, and was therefore in violation of Section 466.24(3)(g), Florida Statutes. One of the employees of the Respondent who worked in the office at 101 Palm Springs Drive, Longwood, Florida, was Bernie Morlock. Morlock was not licensed to practice dentistry or dental hygiene in the State of Florida at any time relevant to the allegations in the Amended Accusation. Nonetheless, Morlock practiced dentistry as defined by Section 466.04, Florida Statutes, and did so in the office of the Respondent in Longwood, Florida, with the knowledge and consent of the Respondent. The arrangement which was condoned by the Respondent allowed for Morlock to have patients scheduled for him for the purpose of the preparation of dentures through the referral system, D.A.D. Denture Center, which was part of Dr. Haas's Longwood, Florida, office. (An example of the written schedules may be found in the Petitioner's Exhibit No. 5 admitted into evidence.) Dr. Haas had instructed that these patients be scheduled to be seen by Bernie Morlock. Some of these patients were being seen by Dr. Haas's office for the first time and were attended by Bernie Morlock from this initial visit to the conclusion of the case, at which time the patients were given their dentures. Morlock's involvement with patients included diagnosis of the physical condition of the teeth and jaws of the patients; taking impressions of patients' teeth, both algenate and working model impressions; the placement of dentures and other dental appliances in the patients' mouths and the adjustment to those dentures and dental appliances, and the discussion of the case with the patient. Most of the work that Morlock did was done at a time when Dr. Haas was not in attendance in the aforementioned office and was done without supervision from any licensed dentist. This process undertaxen by Bernie Morlock happened on numerous occasions. The patients were considered to be Morlock's patients and the patients only saw licensed dentists for the purpose of extracting teeth or other dental procedures unconnected with the fabrication and try-in and adjustment to the dentures. These actions on the part of Bernie Morlock took place during the time period alleged in Count IV of the Amended Accusation. By allowing Bernie Morlock to attend patients in the fashion that Morlock did, the Respondent was willfully negligent in the practice of dentistry within the moaning of Section 466.24(3)(d), Florida Statutes, and in addition was guilty of a violation of Section 466.24(e), Florida Statutes, which states: "Employing or permitting any unlicensed per- son or persons to perform any work in his office which would constitute the practice of dentistry or dental hygiene, except a dental auxiliary pursuant to the provisions of this chapter." During the period of time alleged in Count V of the Amended Accusation, the Respondent employed dental hygienists Vic Simmons and Mary Simmons at his office in Longwood, Florida. Although they wore dental hygienists, these individuals were not licensed to practice dentistry or dental hygiene within the State of Florida. Notwithstanding this absence of a license, the Simmonses practiced dentistry in the Longwood office within the meaning of Section 466.04, Florida Statutes. This included having certain schedules set for them as indicated by Petitioner's Exhibit No. 5 admitted into evidence. This is an example of the schedule for the Simmonses under the title, "Ortho". This scheduling was with the knowledge of Dr. Haas, who had arranged for the Simmonses to come and treat orthodontic patients in his office. The Simmonses came to the location of the Respondent's office two days a month, of which Dr. Haas was in the Longwood office one of those days. These orthodontic patients would be seen initially by Dr. Haas and then treated for their condition by the Simmonses. Some of the patients first seen by the Simmonses arrived at the office without any form of braces in the mouth of the patient. The procedures that the Simmonses then performed were done without supervision by a licensed dentist. By that it is meant that the Simmonses were performing the dental services without the licensed dentist being in the room. The Simmonses, in the pursuit of orthodontic dental practice, placed bands and changed beads, cemented hands and placed arch wires; all with the knowledge and consent of the Respondent. Under the circumstances involved in the employment of the Simmonses, it has been demonstrated that the Respondent is guilty of willful negligence in the practice of dentistry as prescribed in Section 466.24(3)(d), Florida Statutes. The Respondent is also guilty of a violation of Section 466.24(3)(e), Florida Statutes, in that he employed and permitted unlicensed persons to perform work in his office which would constitute the practice of dentistry. The proposed findings of fact, conclusions of law and recommendation offered by the parties have been revied prior to the rendition of this Recommended Order. To the extent that the proposals conform to the findings herein, they have been utilized in developing the Recommended Order. To the extent that the proposals are inconsistent with the findings herein, they are rejected.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Board of Dentistry, (Board) was the state agency responsible for the licensing of dentists and the regulation of the dental profession in Florida. Respondent, Carl T. Panzarella, was licensed as a dentist in Florida holding license No. DN 0008948, and was in practice in Palm Beach County. Dr. Panzarella graduated from the University of Maryland Dental School in 1981 and practiced in Baltimore, Maryland for approximately 1 year after graduation. In the Spring of 1982 he moved to Florida and for several years, up through the Autumn of 1983, worked for other dentists. At that time, however, he decided to open his own office and, in the course of preparing to do this, met with a dental supplier who advised him as to the relative merits of the locations for dental offices he was considering in various areas within Palm Beach County. After consideration of several vacant offices, he ultimately opened his practice in an office building where he was the only dentist. Within a year, however, 5 or 6 other dentists had opened in competition, primarily in retail locations in the area, where they could advertise by large signs affixed to or adjacent to their buildings. Because Respondent's practice was located in a discrete office building, he was unable to do this and he found his practice was not growing as he had desired because of that inability to attract patients. As a result, he decided to advertise. In the Spring of 1989, some 5 years after he opened his practice, and being dissatisfied with the speed with which it was growing, he attended a practice-building seminar at which one of the presentations recommended starting a dental referral service after a check was first made with the Department to see what type of activity could be approved. Considering that a good idea, Dr. Panzarella contacted 2 other dentists who shared office space and who agreed to go in with him if the proposal could be approved by both the Department and their attorney. Dr. Panzarella then called the Department's office in Tallahassee at an information number listed in one of its brochures. He was advised by an unidentified individual that there were no laws in Florida which regulated dental referral services. His lawyer and the lawyer for the other 2 dentists with whom he was considering opening the service agreed. Based on what he believed was a clear path toward the opening of such a service, Dr. Panzarella then went back to the practice-building firm and retained it to design the advertisement which he then placed in the October, 1989 edition of the telephone yellow pages in his area. As soon as the advertisement came out, Dr. Panzarella began getting a number of phone calls from dentists practicing in the local area objecting to it. Some were reasonable and some were quite vituperative in nature. At his own request Dr. Panzarella subsequently went to a meeting of the North County Dental Society at which he described his service and answered all the questions put to him by the members about it. Dr. Peter A. Pullon, President of the Central County Dental Society but not a member of the North County Society, was also present at that meeting and was most aggressive in his questioning of Respondent about the advertisement. After asking numerous pointed questions and apparently not getting the answers he wanted, Dr. Pullon left the meeting before it was terminated. In substance, however, Dr. Panzarella was told, at or after the meeting, that in the opinion of the members of the North County Society, he was in violation of the Board's advertising rules and he would either have to cancel the advertisement or let all dentists practicing in the area join his referral service. After Dr. Pullon left the meeting, the members agreed to query the Department for guidance on the issue and be bound by the Board's response, but before that could be done, Dr. Pullon, on behalf of the Central County Society, filed the Complaint which culminated in this hearing. In the interim period between the North County Society's meeting and the filing of the Administrative Complaint, Dr. Panzarella and his associates attempted to get additional dentists to sign up with their service. No one wanted to do so, however, especially in light of the complaints about it that had been raised. Once the Complaint was filed, Respondent called the Department and spoke with Mr. Audie Wilson, asking him about the propriety of a dental referral service, and again was informed there were no rules of the Board of Dentistry governing dental referral services. The advertisement in issue here was placed by Dr. Panzarella and 2 other dentists who were practicing together. The telephone number listed in the advertisement rang in one of the two offices; in Respondent's office several days a week and in his associates' office several days a week. That procedure was followed for a period of time until they were able to determine the volume of the business, at which time the referrals were turned over to a commercial answering service to handle. The referral service was not organized as a separate legal entity. The 3 dentists in question got together as a group to do it, and all calls which came in were referred either to Respondent's office or to the office of the other two dentists. All three were general dentists, and if anyone called with a specialized problem beyond their degree of competence, they did not refer that person to another dentist but, instead, directed that person to call another referral service. Respondent and his associates had written procedures under which the referrals to their practices were regulated, such as: how the calls were to be answered; who was to get the referral; and how questions asked were to be answered. Nonetheless, no one was hired by Respondent or his associates to operate the service. Any calls were answered by the regular receptionist in the office which was receiving the calls on that day. They did, however, keep records as to from whom and when the calls were received and to which office of the participants they were referred. From this, it becomes clear that the service organized by Respondent and his associates was no more than an avenue to funnel patients to their respective dental practices and was not, in fact, a bona fide referral service such as is operated by the Palm Beach County Dental Association and by others who also advertise in the phone book. The advertisement complained of here indicates that all members of the referral service had been checked on through the American Dental Association, insurance carriers, dental schools, and had a number of years in practice. In reality, these checks were done by the Respondent's wife who merely verified that the participants had the credentials claimed. The inspections of offices and equipment referred to were done by Respondent visiting his associates' office and their visiting his, and references were provided to each other. Dr. Pullon attended the North County Society's meeting where Respondent explained his service and spoke with him and his associates. Dr. Pullon has been in practice in Florida for 11 years and is licensed in Florida and other states. He is a member of and accredited by numerous accrediting agencies and organizations. In his 11 years of practice he has become familiar with referral services and it is his understanding there are only two bona fide referral organization types. One charges the client for referral to any one of several dentists in various specialties who are signed up with it. The other is operated by a dental society which refers on the basis of membership in the society. Those societies are, however, open to membership by all licensed dentists in the community. One must belong to the society to be eligible for the society's referral service. The instant situation, in Pullon's opinion, was not a bona fide referral service but more an advertisement for the participants' practices. It has been so found. Dr. Pullon filed his complaint with the Department in his capacity as President of the Central County Dental Society. On the complaint form he listed several witnesses to the operation of the service, none of whom are members of the Central County Society. After attending the pertinent meeting of the North County Society, Dr. Pullon advised Dr. Krauser, the president of that society, that he intended to advise the Respondent of the problem and would ask for an opinion from the Department before asking Respondents to pull their advertisement if it was determined to be inappropriate. He noted that if they were so advised and thereafter refused to pull the advertisement, he would then file a complaint with the Department. However, after briefing the executive committee of the Central County Society after the North County Society meeting, the committee voted to report the matter to the Department immediately. This is the second complaint Dr. Pullon has filed with the Department concerning another dentist. The former was not related to dental advertising or to this Respondent. It resulted in no action being taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case imposing on the Respondent, Carl T. Panzarella, a reprimand and an administrative fine of $1,000.00. RECOMMENDED this 12th day of October, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1992. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 George P. Bailey, Esquire The Raquet Club Plaza 5160 Sanderlin, Suite 5 Memphis, Tennessee 38117 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation/Board of Dentistry 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues presented concern the question of whether the Petitioner is entitled to receive dental services to be paid for by the State of Florida, Department of Health and Rehabilitative Services. Through this action the Petitioner questions the Respondent's adherence to Chapter 393, Florida Statutes, especially as it relates to pertinent provisions of Development Services Manual, HRSM 160-2. Petitioner believes the substance of the policy manual and the interpretation given to that document by Respondent constitute arbitrary and capricious denial of Petitioner's entitlement to the provision of dental services. Moreover, Petitioner claims that this manual and the characterization of its application to the present case is contrary to Chapter 393, Florida Statutes, entitled "Retardation Prevention and Community Services Act."1
Findings Of Fact Petitioner is a thirty-one-year-old profoundly mentally retarded male who engages in a variety of self-stimulating behaviors, such as body-rocking and swaying, head-rolling, finger-play, and giggling and mumbling to himself. Some of the behavioral patterns were in evidence in the course of the final hearing in this cause. In addition to his problems with retardation, Petitioner is blind. Petitioner resides in the home of his mother, who has assumed the responsibility of his care notwithstanding his majority. Petitioner's income for dealing with his personal needs, to include medical care, is constituted of SSI/Medicaid benefits and SSA/Medicare benefits. The total payments are $336.00 a month. Mrs. Rini receives $325.00 a month. Among other obligations, the family must pay $250.00 in rent, $100.00 in utilities, and a $15.00 phone charge. Although it is apparent that the Petitioner is not capable of making judgments about his own affairs, the court has not made a declaration of incompetency, as it would relate to the guardianship of the Petitioner or his property. The last training program which Petitioner was involved in to address his mental and physical difficulty took place when he was around the age of fifteen. In the fall of 1983 a further evaluation and assessment was made of his condition through the Developmental Services Program of the Respondent. A copy of the habilitation plan which was prepared following this evaluation and assessment process may be found as Petitioner's Exhibit 1, admitted into evidence. In the course of the evaluation Petitioner was found to need developmental training in all areas of basic self-care and to need mobility training. The provision of home-training services was discussed with Mrs. Rini, the Petitioner's mother. At that time Mrs. Rini was not interested in having those services provided. In this same evaluation session in November, 1983, the suggestion was made that the Petitioner be referred to the Division of Blind Services. At the point of final hearing, this coordination with the Division of Blind Services had not occurred. Mrs. Rini is still interested in having the Petitioner referred to the Division of Blind Services to provide materials to be used in the home and to arrange for any ophthalmological follow-up that might be necessary. On the date of November 17, 1983, when the evaluation and assessment was made of the Petitioner's condition and habilitative goals established, Petitioner's dental condition was found to be in a poor state. Some four years before this time Petitioner had been taken to a dentist and had had five teeth pulled in two different visits. He had not returned to the dentist since that time and had not had his teeth brushed on a regular basis following those visits. The habilitative plan in its comments section at page 6 of 14, Petitioner's Exhibit 1, described the Petitioner's teeth as appearing in a dismal condition, which was borne out by the examination of health care professionals. His teeth were found to be decayed at the base of the gum line, with thick and heavy plaque along the inside of all teeth. Mrs. Rini was made aware that the examiner felt that there was some danger of infection because of the extent of the amount of decay. Mrs. Rini responded to this observation by indicating that she would take the Petitioner to a dentist when Petitioner indicated that he was ready to go to a dentist. It was recommended that the Petitioner receive professional dental services to be paid for from his personal resources. The neglect, which was found by observation of the Petitioner's teeth and gums, was not a circumstance which the Petitioner was capable of responding to. At the point of the November 17, 1983, evaluation Petitioner was not capable of brushing his teeth and had not been trained to allow others to do so. That deficit in his abilities still exists. Even though the habilitation plan of November 17, 1983,contemplated that the dental care of the Petitioner should be paid for from his personal resources, it was decided on November 16, 1984, that some dental care would be afforded the Petitioner to be paid for by the Respondent. Respondent, through its employees, considered the circumstance in November 1984 to be an emergency. In effectuating this arrangement an addendum was made to the November 17, 1983, habilitation plan. A copy of that addendum may be found as Petitioner's Exhibit 3, admitted into evidence. An examination by a Dr. Nissen had revealed that Petitioner was experiencing pain from at least two infected teeth and an arrangement was made to have the Petitioner treated on an emergency basis. The treatment involved the use of general anesthesia, the employment of X-rays, and the correction of the condition. This episode was considered by the Respondent, in the person of its employees who were responsible for Petitioner's case, to be an exception to the Respondent's policy of not providing dental care to retarded clients who reside at home. Approval was given in view of the "severity of the problem" and "depressed level of function" on the part of the Petitioner. Dr. Craig Gassett had referred the Petitioner to Dr. Nissen, in that the Petitioner could not be treated without the use of a general anesthesia, a procedure which Dr. Gassett could not perform in his dental office. The treatment was done at Tallahassee Memorial Regional Medical Center on November 20, 1984, and involved the extraction of ten teeth under general anesthesia, of which one or more were abscessed or infected. The Petitioner's teeth were cleaned at that time. Treatment was done in the hospital due to the uncooperative, unmanageable nature of the patient. In November 1984, at the time of final hearing, Petitioner would not allow for the treatment of his dental needs in a dental office. This is evidenced by the fact that a week before the final hearing the Petitioner had been examined in Dr. Gassett's office and would not sit still for more than about thirty seconds. Obviously, this was not sufficient time to allow even the most routine dental treatment. Petitioner is also unreceptive to provision of daily oral hygiene. When Petitioner was seen most recently, Dr. Gassett observed that he had ten to fifteen teeth remaining and that they appeared decayed and would become abscessed eventually. Dr. Gassett felt that the teeth that are remaining need to be restored. In particular, periodontal treatment is needed in addition to the restoration of decayed teeth. Dr. Gassett feels it would also be helpful to replace some of the missing teeth with a prosthesis. At the time of the most recent Gassett examination, the Petitioner was found to have a limited chewing efficiency. Given the nature of Petitioner's condition, he is not a candidate for removable dentures or implants. Petitioner might possibly be trained to allow for the provision of oral hygiene in his home and to allow dental care to be provided in a dental office, without the need to employ general anesthesia, as described by Dr. Gassett and Dawn Hoffman, who has taught the severe and profoundly mentally handicapped. Per Hoffman, this process of teaching Petitioner to accept daily oral hygiene could take as little as a year or as much as thirty years, or Petitioner might never learn to accept this arrangement. The same kinds of problems that would be associated with daily oral hygiene would be inherent in trying to teach the Petitioner to cooperate in dental treatment in a dental office, according to Ms. Hoffman. It is not reasonable to expect the Petitioner to ever be taught to take care of his own oral hygiene needs. The ability to instruct the Petitioner in daily oral hygiene and having him cooperate with the treatment given by dental care professionals is compounded by his blindness. The condition of the Petitioner's teeth and gums at the time of the most recent examination by Dr. Gassett was a matter occasioned by the neglect of necessary daily care. In Petitioner's present dental condition, he has a problem with continuing infection and the occurrence of more abscessed teeth leading to the removal of the remaining teeth. If he lost his teeth he would have to live on a soft diet. A soft diet is not preferable when compared to Petitioner's present diet. At present, given the inability of the Petitioner to cooperate with dental treatment that can be done in a dental office in the typical case, the approach to Petitioner's dental treatment cannot be considered routine. It is not routine because of the setting in which the dental treatment takes place, that is, in a hospital with the use of general anesthesia. On the other hand, the type of care that is being received is considered to be routine in the typical patient. The other distinction compared to a typical patient relates to the degree of dental problems being suffered by Petitioner when contrasted with the typical dental patient. The magnitude of Petitioner's dental problems are enhanced by lack of daily care. On November 29, 1984, a further evaluation and assessment was made of the Petitioner's condition. Again, this assessment was made by the Development Services Program. A copy of the habilitation plan that came out of that session may be found as Petitioner's Exhibit 2, admitted into evidence. On this occasion Mrs. Rini, Petitioner's mother, was receptive to the idea of assistance in home training for the Petitioner, although she still expressed some reservation about the success of those efforts at home training. It was determined that home training should be implemented on a trial basis. Thus far, that home training has not been given. It was pointed out in the session of November 29, 1984, that the Petitioner's mother had applied for services from the Division of Blind Services in October, 1984, and had not received acknowledgment from that organization. As indicated before, this application is still pending and has yet to be followed up by the Respondent. Another item discussed in the course of the November, 1984, assessment and evaluation conference concerns care for the Petitioner should his mother be unable to keep the Petitioner in her home. Petitioner is on a waiting list for placement in a residence other than his home, should this placement become necessary due to an inability of his mother to continue the care. This is an ICF/MR referral. In the course of the preparation of the habilitation plan in the November, 1984, session it was determined that the Petitioner would continue to need dental care under sedation or general anesthesia. The payment of these services was contemplated by the Respondent to be through resources available to Petitioner or through Medicare or Medicaid. In this connection, the Developmental Services Manual, HRSM 160-2, at page 6-6, paragraph 6-8 contemplates that Respondent's social worker assigned with the Petitioner's case shall assist Petitioner's family in gaining access to any available resources from Medicare or Medicaid which might pay for the dental treatment; however, in preparation for the hearing Roger Greentanner, a Human Services Counselor Administrator employed by Respondent, inquired of the local Medicaid office and found that Medicaid would not be willing to pay for the cost of dental works ought by the Petitioner. This same witness, Greentanner, indicated that he was unaware of any follow-up by Respondent on the possibility that the Division of Blind Services could assist in the payment of the dental care at issue. Greentanner also indicated in his testimony that he was uncertain about the scope of home training contemplated in the 1984 habilitation plan, particularly as it related to training for the oral hygiene needs of Petitioner. In summary, Greentanner points out that the Petitioner's services received from Developmental Services is constituted of the availability of respite care; the possible future residential placement outside the home, and pendency of referral to Division of Blind Services for assistance. In addition, home training is contemplated, but it has not yet been provided. At the point of hearing a caseworker had yet to be assigned by Respondent to assist Petitioner. Greentanner indicates that the reason the Petitioner has not received any follow-up assistance from Developmental Services is due to staff shortages. In contrast to the circumstances of Petitioner, who resides in the home of his mother, those clients of the Developmental Services who reside in foster homes or group homes receive dental care pursuant to Developmental Services funding in those instances where they are unable to defray the expense. Richard Herring, Assistant Director, Developmental Services Program, offered testimony. His responsibilities include training and budget. In his remarks he identified the point of view of the Respondent in its policy choice not to provide payment for Petitioner's dental care. This policy choice is grounded in the Developmental Services Manual, HRSM 160-2, according to Herring. Herring identified that this is a policy choice with universal application but not a product of a duly promulgated rule. This policy choice does not take into account the availability of family resources to pay for dental care. As Herring described it, payment for the dental services would only occur if those needs were "directly related to the developmental disability." This pertains to a phenomenon associated with what can be described as side effects of the client's medication which adversely influences the medical circumstances of a retarded client. The example given by the witness Herring describes the epileptic who is receiving anti- convulsant medication which causes dental problems. Accordingly, Respondent would pay for treatment of that problem. On the other hand, the provision of dental treatment in other circumstances is not contemplated for payment by the Respondent for live-at-home clients, even though it involves the extraordinary arrangement of placing a patient under anesthesia to achieve treatment that could be afforded in the typical case in a dental office without the use of general anesthesia. Continuing Herring's remarks, his description of "routine dental services" implies things that are ". . . not sudden in nature." Herring's description of the meaning of the policy, which is further discussed in the conclusions of law to this recommended order, is based upon utilization of the Developmental Services Manual, HRSM 160-2. Herring did not author this document and is unaware whether the author consulted a dentist before drafting the provisions which related to dental care. Herring confirmed that clients who are placed in foster homes or group homes who have similar needs to that of the Petitioner would have their dental needs provided for by Developmental Services. This includes the payment of what is described as routine services, assuming the inability of that person or other organizations than Developmental Services to pay for the cost of those services. In the group and foster home setting, the parents of adults are not called upon to pay for the care of the adult retarded client. Herring identifies the fact that there are some nine to ten thousand clients of Developmental Services who live at home, of the roughly twenty-two thousand clients served. Under examination Herring acknowledges the anomalous situation of the Petitioner's losing the balance of his teeth and having to be placed in a setting which makes the Petitioner more dependent on resources of Developmental Services. Herring concedes that, given the nature of the way the present policy of the Respondent is employed, to include the funding arrangement, the agency is not as much in the business of preventing problems-as it would choose to be. If funds were available, Herring believes that Petitioner's condition might not deteriorate to the same extent that it potentially will and would not end up costing as much money in the future. The arrangement for the payment of services to those retarded clients who reside in their own homes and those retarded clients who live in group or foster homes or other facilities known as rehabilitation facilities, is by two separate line items in the Respondent's budget. Routine medical and dental care is provided for the group or foster home clients and not for those in their own homes in view of this budget arrangement. The choice not to provide for routine medical and dental care for the home resident is a policy choice by the Respondent, given the difference in the amount of money provided in the budget line item for retarded clients who live at home, which is much less than money provided for retarded clients who reside in group or foster homes or rehabilitation facilities. If the Respondent pursued a different policy, it would cause the Respondent to request an increase in its budget for the benefit of retarded clients who live at home, which Herring does not feel would be granted by the Legislature. There is a possibility under Chapter 216, Florida Statutes, to move five percent of the money from the group and foster home budget line item over to the home-residence line item and in HRS District II Herring indicated that seventy or eighty thousand dollars worth of funds had been transferred over from the group or foster home clients' budget to the clients living at home. No distinction is drawn between clients who are children living at home as opposed to those who have reached their majority and live at home, on the subject of provision to pay for the dental care of those clients who live at home. Herring agrees that the result of the present arrangement in which those parents who choose to have their children reside at home, whether those children are of majority or minority, is a financial penalty against those families when contrasted with the families who choose to have their children live in a group or foster home setting. The transfer of funds between budget line items would tend to penalize those retarded clients who live in foster or group homes. Moreover, Respondent, due to the funding limitations, has approximately two thousand clients who are on the waiting list for services, in addition to a thousand client who are on a waiting list for placement in group homes. The budget situation at the time of the hearing, as described by Herring, was a situation in which $3,500 a year was available for each retarded client who lived at home. By contrast, $10,000 is available per year for group home clients, to include the payment of room and board and other services. In intermediate care facilities for the mentally retarded, known as ICF/MR, the cost is approximately $30,000 per client per year for room and board and other services. Deborah Susan Atkinson, a speech therapist, was the chairperson in the habilitation planning sessions for November,1984. She identified the fact that the payment of the emergency care for the Petitioner in 1984 was an extraordinary arrangement. In Greentanner's experience, no other profoundly retarded client of the Developmental Services Program has ever received dental care when the client resided at home. Atkinson also verged that the traditional payment of dental treatment for those retarded clients who live at home has occurred only when the treatment was related to the treatment of any side effects of anti-convulsant drugs taken for the underlying condition of the client.
