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.
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.
Findings Of Fact At all times material hereto, Respondent was licensed to practice dentistry in the State of Florida, having been issued license number DN-0000975. Respondent has been licensed to practice dentistry in this State since 1944, and there is no evidence in the record to indicate that he has previously been the subject of a complaint, investigation or license disciplinary action. Respondent was a participant in the Medicaid program, at all times material hereto. He executed a provider agreement with the Department of Health and Rehabilitative Services, under the terms of which Medicaid paid a total of $300 for a set of upper and lower dentures, and he was allowed to bill the patient for a 5% co-payment in addition to the amount paid by Medicaid. Participants in the program specifically agreed to accept the Medicaid-payment in lieu of their usual and customary charges, and not to bill or accept payments from patients, with the sole exception of the 5% co-payment for dentures. Billings to Medicaid could only be made after services were rendered. The Medicaid program reimbursed providers $8.00 for a single surface amalgam restoration, $16.00 for two surfaces, and $24.00 for three of more surfaces. The maximum allowable fee under the Medicaid program for a complete upper set of dentures was $150.00, and for a complete lower set, $150.00. Alveolectomies were reimbursed at $35.00 per quadrant. Between November 4, 1983 and December 15, 1983, Respondent rendered dental services to Geraldine Jones, for which he subsequently billed, and was paid by, Medicaid. The billings were for extracting fifteen teeth, performing three alveolectomies, and fitting the patient with complete upper and lower dentures. Respondent did not perform any of these services for Jones. Therefore, the $423 paid to him by Medicaid was an overpayment, and a payment for services not performed. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Velma Mondy between May 11, 1983 and June 16, 1983. The billings were for restoration of a total of eighteen tooth surfaces. On or about June, 1985, an examination of Mondy's teeth by Dr. Charles Kekich, dental consultant with the Department of Health and Rehabilitative Services, who was accepted as an expert in dentistry, revealed that she had a total of only six surfaces restored. Therefore, Respondent billed and received an overpayment from Medicaid in the amount of $96.00 for services not rendered to this patient. Dental services which were allegedly rendered to Bridget Bryant by Respondent between September 12 and 26, 1983, were billed to Medicaid, and Respondent received payment for restoring twelve teeth, with a total of thirty surfaces. On or about June, 1985, an examination of Bryant by Dr. Kekich revealed that no more than fifteen restorations had been performed, resulting in an overpayment from Medicaid to Respondent of at least $120.00. Respondent billed and was subsequently paid by Medicaid for services rendered to Joyce Johnson between December 22, 1983 and January 1, 1984. These billings were for extracting three teeth and restoring ten, with a total of twenty surfaces. During June, 1985, Dr. Kekich examined Johnson and found that none of the work billed by Respondent had been performed. Therefore, an overpayment of $184.00 was made by Medicaid for services billed, but not rendered by the Respondent. Between January 25, 1984 and March 21, 1984, Respondent performed certain dental work on Ernest Macon, for which he billed and was paid by Medicaid for extracting two teeth and restoring nine teeth, with a total of twenty-three surfaces. Dr. Kekich's examination of Macon during June, 1985, revealed that only one tooth had been extracted and no more than four surfaces had been restored. Therefore, Respondent over billed and received payment from Medicaid for services not rendered to Macon in the amount of $159.00 Respondent billed and was subsequently paid by Medicaid for dental services rendered to Derrick Ealy between March 15 and 27, 1984. These billings were for restoring four teeth, with a total of eleven surfaces. An examination of Derrick Ealy by Dr. Kekich in June, 1985, revealed that only two surfaces had been restored, resulting in an overpayment by Medicaid of $72.00 for services billed, but not rendered. An examination of Kimberly Ealy in June, 1985, revealed that none of the dental services for which Respondent had billed and been paid by Medicaid had, in fact, been performed. Respondent had billed Medicaid for extracting one tooth and restoring a total of thirteen surfaces on five teeth between March 13 and 22, 1984. Therefore, an overpayment of $114 was made by Medicaid for services billed, but not rendered to Kimberly Ealy. Respondent performed dental services for Corey Oliver between March 27, 1984 and May 6, 1984, and in connection therewith, he billed Medicaid for extracting one tooth and restoring seven teeth with a total of seventeen surfaces. An examination of Oliver by Dr. Kekich in June, 1985, revealed that roots of the tooth supposedly extracted by Respondent remained, and that eleven of the surfaces for which bills had been submitted had not been restored. Therefore, an overpayment of at least $95.00 was made by Medicaid for services billed, but not rendered to this patient. From April 16, 1984 to August 7, 1984, Respondent extracted twenty- seven teeth from Lillian Corouthers, and fitted her for a full set of dentures. He billed Medicaid for a total of $1,215 for these services, and received payment from Medicaid of $620.35. In addition thereto, he billed and received from this patient a total of $269. This co-payment exceeds the allowable 5% co- payment under the Medicaid program by $236.35. There is no evidence that Respondent ever refunded any portion of this overpayment to Corouthers. Although Respondent billed and was paid by Medicaid for services performed on Shawn Smith between July 11 and 24, 1984, which allegedly consisted of restoring eight teeth with a total of twenty-one surfaces, an examination of this patient by Dr. Kekich in May, 1985, revealed that none of this work had been performed. Therefore, an overpayment of $168 was made by Medicaid for services not rendered by Respondent. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Allan Smith between July 6 and 23, 1984. The billings were for extracting two teeth and restoring a total of seventeen surfaces. Dr. Kekich's examination in May, 1985, revealed that only one extraction had been performed, and no restorations. As a result, an overpayment of $146 was made by Medicaid for services not rendered to Allan Smith. Respondent pulled one tooth and provided a complete set of dentures to Mose Tobias in July, 1984. For these services Respondent billed Medicaid for a total of $490, and received payment from Medicaid in the amount of $321.10. He also billed and received payment from this patient in the amount of $119, which exceeds the co-payment allowable under the Medicaid program by $112.11. Between July 6 and August 14, 1984, Respondent performed dental services for Angela Pleas, and in connection therewith, he billed and was subsequently paid by Medicaid for two extractions and sixteen surface restorations. During a June, 1985, examination of Pleas, it was revealed that no more than one extraction and nine restorations had been performed, resulting in an overpayment by Medicaid of $82.00 for services billed but not rendered to Pleas by the Respondent. Callie Wilson was treated by the Respondent between August 2 and 23, 1984, and in connection therewith, he billed Medicaid a total of $470.00 for an examination, x-rays, and a complete set of dentures. Respondent received payment from Medicaid in the amount of $162.45 for these services. In addition thereto, Respondent billed and received from Wilson an amount that exceeds the allowable 5% co-payment under the Medicaid program. The exact amount of this overpayment, however, cannot be determined, but it appears to have been an overpayment of between $45.00 and $95.00. Respondent billed and was subsequently paid by Medicaid for extracting one tooth and restoring twenty-two surfaces for Maruise Woods between September 4 and 25, 1984. An examination of Woods by Dr. Kekich in May, 1985, revealed that no surface restorations had been performed. Therefore, an overpayment of $172 was made by Medicaid for services not rendered. Between September 21 and 27, 1984, Respondent claims to have performed dental services for Sharon Woods, for which he then billed and subsequently received payment from Medicaid for the restoration of four teeth, with a total of twelve surfaces. In May, 1985, Dr. Kekich examined Sharon Woods, and found that none of this work had been performed. Therefore, Respondent overbilled Medicaid $96 for services not rendered to this patient. Respondent billed and was subsequently paid by Medicaid for dental services rendered to John Aberdeen between September 27 and November 21, 1984. These billings were for extracting fifteen teeth, and providing a complete set of dentures. A June, 1985 examination of this patient by Dr. Kekich revealed that only one tooth had been extracted. Respondent received an overpayment from Medicaid in the amount of $389.85 for services not rendered to Aberdeen. Bills were submitted to Medicaid and payment received for services Respondent claims to have performed on Mercedia Lanier between October 1 and 19, 1984. These billings were for restoring seven teeth, with a total of eighteen surfaces. Dr. Kekich's examination of Lanier in May, 1985, revealed that none of the work billed by Respondent had been performed. Therefore, an overpayment of $144.00 was made by Medicaid for services not rendered to Lanier by Respondent. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Patricia Hall between November 20 and December 7, 1984. These billings were for seven extractions, and the restoration of five teeth with twelve surfaces. In June, 1985, Dr. Kekich examined Hall and found that no more than four extractions, and five surface restorations had been done. Medicaid made an overpayment of $83.00 in connection with services billed, but not rendered to Hall. Claims were submitted to Medicaid by Respondent in connection with services allegedly performed on Eugenie Perry between January 17 and February 11, 1985. These billing were for the restoration of twenty-two surfaces, but Dr. Kekich found in May, 1985, that none of these restorations had been performed. As a result, Medicaid made an overpayment to Respondent of $176.00 for services not rendered. Tessie McRae was a patient of Respondent's in 1985, and claims were filed with Medicaid by Respondent for services between February 5 and March 28, 1985, consisting of ten extractions, four alveolectomies, and a complete set of dentures. When Albert Ravenna, special agent for Medicaid fraud with the Auditor General's Office interviewed McRae in June, 1985, she still had her own teeth and did not have dentures. Respondent did provide her with dentures subsequent to payment for these services by Medicaid. However, an overpayment of $401.55 was made by Medicaid since the services for which billings were submitted by the Respondent had not been performed prior to the filing of these claims. Respondent billed Medicaid for a total of $600 in connection with services he provided to Cora Griffin between February 3 and 11, 1985. Specifically, these bills were for an exam, x-rays and a complete set of dentures. Medicaid paid Respondent $311.60 for these services, and in addition thereto, he billed and collected from Griffin a total of $180. This amount paid by the patient exceeds the allowable co-payment under the Medicaid program. Respondent billed and subsequently received payment from Medicaid for services rendered to Kenneth Gainer between January 25 and March 22, 1985. The billings were for restoring ten teeth with a total of twenty-six surfaces. An examination of Gainer by Dr. Kekich in June, 1985, revealed that none of this work had been performed. Therefore, an overpayment of $208.00 was made by Medicaid for services not rendered. Billings were submitted to Medicaid by Respondent for services allegedly performed on Lawrence Harvey between March 14 and 19, 1985, and consisting of two extractions and eight surface restorations. Dr. Kekich found, upon examining the patient in June, 1985, that none of this work had been performed. Therefore, an overpayment of $84.00 was made by Medicaid for services not rendered. Respondent billed and was subsequently paid by Medicaid for services rendered to Brian Harvey between March 13 and 29, 1985. These billings were for restoring six teeth with a total of twelve surfaces. Respondent did not perform these services, and, therefore, the payment of $96.00 which he received for these services from Medicaid represents an overpayment for services not rendered. According to billings submitted by Respondent to Medicaid, he treated Felicia Harvey between March 21 and 29, 1985. These billings were for restoring four teeth, with a total of eight surfaces. An examination of this patient by Dr. Kekich in June, 1985, revealed that none of this work had been performed, and, therefore, an overpayment of $64.00 was made by Medicaid for services not rendered. On or about December 19, 1986, Respondent plead nolo contendere to seventeen counts of grand theft and five felony counts of public assistance fraud in violation of Sections 812.014 and 409.325, Florida Statutes, and was adjudicated guilty. The billings that Respondent signed and submitted to Medicaid, which are referenced in the above findings of fact, were prepared by his office receptionist, Ida Roundtree, who has been employed by him for twenty-two years, and who is responsible for the preparation and filing of all insurance claims based upon patient dental charts prepared by Respondent or his dental hygienist. Respondent testified that he does not consider it to be his responsibility to familiarize himself with the various requirements for insurance or Medicaid reimbursement. He relies entirely on Roundtree for this, and clearly does not consider the preparation of reimbursement or billing "paperwork" to be within the practice of dentistry. Roundtree admitted that she prepared Medicaid billings for work which was yet to be done in some cases. She would just fill in dates when the work supposedly had been done so that Medicaid would pay the claim. She testified she was unaware that Medicaid allowed a 5% co-payment only for dentures, and that no co-payment could be made for any other dental services under the program. Further, she admitted that she falsified billings by including services not performed so that Respondent would receive more money under the Medicaid program. The evidence does not establish that she was directed to falsify Medicaid billings by the Respondent or that she informed him of her practices, but it was established that he did not check, or in any way attempt to verify, the billings which she prepared before he signed them.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondent's license for a period of THREE months, and imposing an administrative fine against Respondent in the amount of $6,000.00. DONE AND ENTERED this 24th day of February, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX (DOAH Case No. 88-2961) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-5. Rejected as unnecessary. 6-8 Adopted in Finding of Fact 2. 9-16. Rejected as unnecessary. Adopted in Findings of Fact 30 and 31. Rejected as unnecessary and as legal argument. 19-25. Adopted in Findings of Fact 30 and 31, but otherwise rejected as simply a summation of testimony. 26. Rejected as unnecessary. 27-30. Adopted in part in Finding of Fact 4. 31-34. Adopted in part in Finding of Fact 5. 35-39. Adopted in part in Finding of Fact 3. 40-42. Adopted in part in Finding of Fact 6. 43-45. Adopted in part in Finding of Fact 7. 46-48. Adopted in part in Finding of Fact 8. 49-51. Adopted in part in Finding of Fact 9. 52-55. Adopted in part in Finding of Fact 10. 56-62. Adopted in part in Finding of Fact 11. 63-65. Adopted in part in Finding of Fact 12. 66-68. Adopted in part in Finding of Fact 13. 69-72. Adopted in part in Finding of Fact 14. 73-76. Adopted in part in Finding of Fact 15. 77-82. Adopted in part in Finding of Fact 16. 83-86. Adopted in part in Finding of Fact 17. 87-90. Adopted in part in Finding of Fact 18. 91-93. Adopted in part in Finding of Fact 19. 94-97. Adopted in part in Finding of Fact 20 98-100. Adopted in part in Finding of Fact 21. 101-103. Adopted in part in Finding of Fact 22. 104-109. Adopted in part in Finding of Fact 23. 110-116. Adopted in part in Finding of Fact 24. 117-119. Adopted in part in Finding of Fact 25. 120-122. Adopted in part in Finding of Fact 26. 123-127. Adopted in part in Finding of Fact 27. 128-130. Adopted in part in Finding of Fact 28. Rejected as unnecessary and duplicative. Adopted in Finding of Fact 29. (Note: In addition to adopting, in part, proposed findings of fact 27-130, as shown above, these proposed findings are otherwise rejected as unnecessary or as not based on competent substantial evidence.) Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as irrelevant. Adopted in Finding of Fact 2. Rejected as irrelevant. 5-7. Adopted in Finding of Fact 30. 8. Rejected as irrelevant. 9-10. Adopted in Finding of Fact 30. 11-17. Adopted in Findings of Fact 30 and 31. 18-19. Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 31. Rejected as not based on competent substantial evidence and otherwise as irrelevant. 22-23. Adopted in Finding of Fact 31. 24. Rejected as irrelevant. 25-28. Adopted in Finding of Fact 31. 29-30. Adopted in Finding of Fact 30 and 31. 31. Rejected as not based on competent substantial evidence and otherwise as irrelevant. 32-36. Rejected as irrelevant. 37. Adopted in Finding of Fact 29, but otherwise rejected as irrelevant. 38-47. Rejected as irrelevant. 48-49. Adopted in Finding of Fact 4, but otherwise rejected as irrelevant. 50-55. Rejected as irrelevant. 56-60. Adopted and Rejected in Finding of Fact 21, but otherwise rejected as irrelevant. Rejected as argument on the evidence, not a finding of fact. Rejected in Finding of Fact 3. Rejected in Finding of Fact 6. Rejected in Finding of Fact 9. Rejected in Finding of Fact 14. Rejected in Finding of Fact 16. COPIES FURNISHED: Bruce D. Lamb, Esquire 730 South Sterling Street, #313 Tampa, Florida 33609-4582 John A. Powell, Esquire Florida Federal Building One Fourth Street, North Suite 800 St. Petersburg, Florida 33701 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue in this case is whether Petitioner is entitled to health insurance coverage for installation of temporary and permanent dental crowns under Florida’s State Employees’ Group Health Self Insurance Plan.
Findings Of Fact Petitioner claims to suffer from temporomandibular joint dysfunction ("TMJ"). Petitioner is a member of the State Employees’ Group Health Self Insurance Plan (the "Plan"). Respondent is responsible for administering the Plan. Blue Cross and Blue Shield ("Blue Cross") services the Plan for Respondent. The Plan covers medical expenses incurred for the treatment of TMJ. The Plan paid for treatment of Petitioner’s TMJ symptoms on March 25, 1996, and on December 2, 1997. That treatment did not include crowns. Dr. Michael Vallilo is one of Petitioner’s dentists. On May 28, 1998, Dr. Vallilo placed temporary crowns on 14 of Respondent’s teeth and bonded two of her teeth. On May 29, 1998, Dr. Vallilo wrote Blue Cross and requested payment for the temporary crowns. Dr. Vallilo also requested prior approval for permanent crowns at an approximate cost of $14,000 for both sets. Dr. Vallilo requested payment and prior approval based on his opinion that the crowns are reasonably necessary for the treatment of TMJ. The temporary and permanent crowns were necessary for the treatment of occlusion dysfunction. Occlusion dysfunction relates to the fit of the teeth when brought together. Occlusion dysfunction has no correlation to TMJ. Petitioner’s symptoms and medical records are not consistent with TMJ. The diagnosis in Petitioner’s medical records describes oral dyskinesia. Oral dyskinesia involves muscle spasm, limited muscle function, the body’s reaction to the way teeth fit together, and an inability to keep the jaws closed. The diagnosis did not state a cause for the symptoms. Even if oral dyskinesia were caused by TMJ, crowns are not covered by the Plan. Medical reimbursement under the Plan does not cover crowns, bridges, inlays, on-lays, fillings, equilibration of the teeth, or any other procedure that alters the tooth itself and can be performed only by a licensed dentist. The Plan covers only specified treatment for TMJ. Covered treatment includes X-rays, clinical exams, splint therapy, physical therapy, surgical procedures of the joint itself, and other procedures not performed on the teeth. The Plan covers repositioning devices necessary in the treatment of TMJ. Crowns are not repositioning devices. Petitioner had separate dental insurance at the time the crowns were installed in her mouth. Her dental insurance may, or may not, have covered the temporary and permanent crowns. Even if the Plan did not exclude crowns as dental treatment, the placement of crowns for TMJ or occlusion disorder is not covered. Such services are not consistent with applicable standards of good medical practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's claim. DONE AND ENTERED this 6th day of December 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1999. COPIES FURNISHED: Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Carole A. Clark 6325 Highland Gardens Court Lakeland, Florida 33813 Joan Van Arsdall, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue Whether Petitioner should receive a refund for an alleged overpayment of dental insurance premiums.
Findings Of Fact The Division of State Group Insurance (Division) is the executive agency within the Department of Management Services (Department) that is responsible for the administration of the State Group Insurance Program (Program). Isaacs was first employed with the State of Florida in 1993, and remained employed with the State until March 2011, when he retired. According to Isaacs, when he originally signed up for dental insurance, there were only two options available for employees; an employee could sign up either for “employee” coverage or for “employee plus family” coverage. Isaacs chose “employee plus family” dental coverage, so that he and his spouse would have coverage. During his tenure as a State employee, Isaacs was married and had no children. At all times material to the instant case, Isaacs resided, and received his mail, at 13021 S.W. 116th Street, Miami, Florida, 33186. On January 1, 2005, the State of Florida started using an online system called “People First” to manage State of Florida employee payroll and benefit packages. Every employee and retiree was given a username and password to access the online system. Each employee’s payroll information, leave balances, and benefits information could be seen online. Pursuant to section 110.123(3)(h), every year there is a finite period of time during which State employees can sign up for benefit plans, or change their existing benefit plans, for the upcoming calendar year. This period is called “open enrollment.” Prior to open enrollment every year, People First mails out, to every State employee, a package which contains a personalized benefits statement and a Benefits Guide, which contains information as to all the benefit plans that are being offered for the upcoming calendar year. The benefits statement informs employees of the benefits they currently have and will continue to have during the upcoming calendar year, unless they make changes to their insurance or coverage level. On September 7, 2007, the Division mailed each participant in the dental insurance program a letter explaining significant changes to the dental program. This letter was mailed by first class mail to the address of record for each employee who was then enrolled in the dental program. Isaacs' address of record in People First was his mailing address: 13021 S.W. 116th Street, Miami, Florida, 33186. Isaacs claims that he never received this letter. The undersigned finds this testimony to not be credible, given that Isaacs' address has not changed in 33 years, and he was unaware of any other problems with delivery to this address. The September 2007 letter advised employees that there would be new coverage levels offered in 2008. It stated, in pertinent part: There will be new coverage levels offered in 2008. You may currently be enrolled in a coverage level that will not be offered. The new coverage levels are: ° Employee Only ° Employee + Spouse ° Employee + Child(ren) ° Family You will have the opportunity during the upcoming Open Enrollment to cancel coverage, change your coverage level, or switch to another dental plan. Any change you make will be effective on January 1, 2008. If you take no action, your dental coverage may be changed automatically for 2008. If you are currently enrolled in a coverage level that will not be offered in 2008, you will be enrolled in Family coverage. People First sent Isaacs open enrollment packages in 2007, 2008, 2009, and 2010. The 2008 package, sent on September 17, 2007, included a Benefits Guide which contained all the information as to the change in the dental insurance program. Employees were placed on notice that except for employees who had previously been enrolled for “Employee” coverage, all coverage levels would be moved to “Family” coverage unless the employees made changes during open enrollment. The package included instructions on how to make the coverage changes, and how to verify that those changes had been properly made. Isaacs never changed his dental plan coverage; therefore, he was defaulted to the “Family” coverage as of January 1, 2008. Due to his failure to act, he remained in that coverage until he retired. The open enrollment packages sent to Isaacs for years 2009, 2010, and 2011 included information as to the dental coverage tiers, and a personalized Benefits Statement which indicated which benefit plans Isaacs was enrolled in, and his coverage level. Every year, he could have made changes to his dental insurance coverage, but failed to do so. As of People First going “live” in 2005, all State employees could review their benefits and coverage levels online. Thus, Isaacs, on his state-issued desktop computer, had access to People First, and could have reviewed his coverage levels and benefit plans. Isaacs admitted at hearing that he did not review the open enrollment packages he received every year because he was under the impression, based on advice he was given, that he need not review the information if he was not making any changes to his coverage levels or benefit plans. He added that he was not sure if he even opened all the open enrollment packages that were sent through the years. Isaacs had the responsibility to open, review, and carefully read the open enrollment packages and all correspondence sent to him by his employer. Isaacs was advised of the changes to the dental plan, but did not review the information sent to him. He had ample notice of the change to the dental plan coverage levels, but failed to review the information, and failed to avail himself of the many opportunities he had to adjust the coverage level. He paid for more coverage than he needed because he ignored all the information sent to him, which gave him specific instructions on how to avoid that exact circumstance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services enter an order denying Isaacs' request for a refund for his overpayment of dental insurance premiums. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2011.
The Issue Whether Petitioner’s disabled dependent child is entitled to have his dental benefits continued after he has reached the age of 26.
Findings Of Fact Respondent contracts with Humana/CompBenefits Company to provide dental benefits to employees of the State of Florida. In 2014, Petitioner, his spouse, and his dependent child were members of Humana/CompBenefits Company’s Network Plus Dental Plan (Humana Plan). The Humana Plan provides coverage for a subscriber’s dependent child through the calendar year in which the child reaches the maximum age of attainment. Respondent handles eligibility issues regarding the Humana Plan and allows dependent child coverage to continue through the end of the year in which the dependent turns 26 years of age (the maximum age of attainment). The dental coverage for Petitioner’s dependent terminated on January 1, 2015, due to the fact that the dependent turned 26 years of age in 2014. According to the Humana Plan, dental coverage for a dependent older than 26 years of age may, under certain circumstances, continue if the dependent is disabled. In order for dependent coverage to continue, proof of the dependent’s disability must be submitted within 31 days of the dependent’s maximum age of attainment, or by the end of the year in which the dependent turns 26 years of age. Petitioner did not submit any documentation regarding his dependent’s disability until August 2015, which was approximately 10 months after his child’s 26th birthday. Petitioner claims that he was unaware of the fact that his dependent’s coverage terminated on January 1, 2015, and if he had known of the termination, he would have timely provided to Respondent documentation demonstrating his son’s disability. Employee health insurance benefits are administered by a private contractor, Northgate/Arinso, through an online system called People First. The People First computer system automatically identifies which dependents will be ineligible for coverage during the upcoming policy year and mails notifications to members advising them that their benefits will be changing. From October through November 2014, Northgate/Arinso sent Petitioner the following three notifications that his dependent child would not be enrolled in dental insurance beginning January 1, 2015: the annual enrollment benefits statement; a COBRA package; and an annual enrollment confirmation. The annual enrollment benefits statement is mailed before Open Enrollment and informs members what benefits they will have beginning January 1 of the upcoming year should they not make any benefit changes during open enrollment. Northgate/Arinso mailed the annual enrollment benefits statement to Petitioner on October 4, 2014. A copy of the actual notice mailed to Petitioner was not produced, and Petitioner claimed he never received the annual enrollment benefits statement. Respondent offered no proof to the contrary. By correspondence dated October 3, 2014, and mailed to Petitioner at his address of record on November 8, 2014, Respondent provided Petitioner with his annual enrollment confirmation. The annual enrollment confirmation notice shows that only Petitioner’s wife, and not his dependent child, would be enrolled in dental coverage beginning January 1, 2015. On or about October 6, 2014, Northgate/Arinso also provided written notification to Petitioner of his rights to continue his dependent’s dental coverage pursuant to the federal Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The COBRA package explains the process and costs associated with Petitioner’s dependent child continuing dental coverage through this option, and also informed Petitioner that his son’s dental benefits would terminate on January 1, 2015. Petitioner did not elect COBRA coverage for his dependent. The COBRA package was additional notice to Petitioner that there was a change happening to his existing dependent dental coverage. The People First system tracks all interaction with members, including notes of telephone conversations with members, any documents submitted by the member, and mail that has been returned as undeliverable. When mail is returned as undeliverable, an entry is made in the People First notes. Neither the annual enrollment benefits statement, nor the annual enrollment confirmation statement or the COBRA package, were returned as undeliverable. Respondent allows members to enroll in insurance benefits within 31 days of a QSC event and during open enrollment. At the time Petitioner sought to enroll his dependent child in August 2015, Petitioner did not experience a QSC event that would allow enrollment in the Humana Plan. Furthermore, because Petitioner’s dependent reached the age of attainment in 2014, dependent coverage was no longer available during periods of open enrollment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Management Services, enter a final order denying Petitioner, Angel Ortiz's, request to have his dependent added to Petitioner’s dental plan. DONE AND ENTERED this 9th day of May, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 2016.
The Issue This is a license discipline case in which the Respondent is charged in a two count Administrative Complaint with violations of subsections (j), (l), and (u), of Section 466.028(1), Florida Statutes (1987). The cited subsections authorize the Board of Dentistry to take disciplinary action against a licensee who files a report the licensee knows to be false, who makes deceptive, untrue, or fraudulent representations in the practice of dentistry, or who commits fraud, deceit, or misconduct in the practice of dentistry.
Findings Of Fact At all times material to this proceeding, the Respondent, Pierre Michael Smith, has been licensed as a dentist in the State of Florida. His license number is DN 009323. On or about December 1, 1987, the Respondent provided dental treatment and services to two patients, C.F. and R.F. C.F. and R.F. are married to each other. Shortly before December 1, 1987, C.F. called several dentists' offices to inquire about the cost of getting teeth cleaned and about the availability of the dentist to give her and her husband an appointment in the near future. Among the dentists' offices she called was the office of the Respondent. CF spoke to an assistant or a receptionist at the Respondent's office and was told that the Respondent's charge for cleaning teeth was $25.00. After some conversation, CF ultimately made appointments for herself and her husband to have their teeth cleaned by the Respondent on December 1, 1987. Their appointments were scheduled for 10:00 a.m. and 10:15 a.m., respectively. On December 1, 1987, CF and RF arrived at the Respondent's office at about 9:45 a.m. They were both given some forms to fill out and were told that the Respondent would be late because he was having problems with his automobile. The Respondent did not arrive until approximately 11:35 a.m. Upon arriving, the Respondent promptly took CF and RF to separate treatment rooms and then began attending to CF. The Respondent examined, cleaned, and polished CF's teeth, which procedures took about 15 or 20 minutes. Once he had finished his procedures on CF, the Respondent gave CF a strip of floss and a cup of water and directed her to the restroom after inquiring whether she knew how to floss. The Respondent then went to the other treatment room where he began attending to RF. The Respondent examined, cleaned, and polished RF's teeth, which procedures took about 15 or 20 minutes. The Respondent also had his assistant take x-rays of both CF and RF as soon as the Respondent had completed his procedures on each patient. Two x-rays were taken of CF. One of those two x-rays was void of diagnostic quality. Five x-rays were taken of RF. Two of those five x-rays were void of diagnostic quality. Based on his examinations of CF and RF, the Respondent noted that both patients had "scanty" calculus and that they both had "good" oral hygiene. Such being the case, neither CF nor RF required scaling of the entire mouth, nor did either require oral hygiene instruction. On December 1, 1987, the Respondent did not scale the entire mouth of either CF or RF. On December 1, 1987, the Respondent did not provide oral hygiene instruction to either CF or RF. Complete oral hygiene instruction requires a minimum of ten minutes per patient. The dental procedure which is referred to by lay persons as "having one's teeth cleaned," is known in the dental profession as a prophylaxis. A prophylaxis is a normal cleaning of the coronal parts of the teeth (the parts of the teeth that can be seen under normal conditions) and the subgingival parts of the teeth down to about 3 millimeters, including the removal of a mild amount of calculus and stain, followed by a polishing of the coronal parts of the teeth. The dental procedure known as "scaling of the entire mouth" is also known as "root planing." Scaling of the entire mouth is not normally done unless there is extensive calculus or extensive deep pocketing. Scaling of the entire mouth is a much more extensive procedure than a prophylaxis; it involves going much deeper subgingivally and it requires a great deal more time than a prophylaxis. Scaling of the entire mouth involves using a metal instrument around each tooth on all surfaces of the teeth to remove hard calculus or tartar from the teeth both supragingivally and subgingivally. It is not possible to do a scaling of the entire mouth in twenty minutes. On December 1, 1987, the Respondent submitted claim forms to an insurance company for payment for services provided to CF and RF. On those claim forms he claimed to have provided the following services to CF: Complete oral exam 30.00 2 X-rays intraoral B.W. 20.00 Scaling entire mouth 100.00 Polishing 60.00 Oral Hygiene instruction 20.00 Total Fee 230.00 The Respondent claimed on the insurance form to have provided the following services to RF: Complete oral exam 30.00 X-ray Intraoral p.A. 10.00 4 X-rays intraoral B.W. 40.00 Oral Hygiene instruction 20.00 Scaling entire mouth 100.00 Polishing 60.00 Total fee 260.00 The Respondent did not attempt to contact CF or RF to advise them that some of their x-rays were void of diagnostic quality and that those x-rays needed to be retaken. X-rays that are void of diagnostic quality do not serve any useful purpose for either the dentist or the patient. It is misrepresentation for a dentist to list on an insurance claim form procedures or services that were not in fact performed by the dentist.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Dentistry enter a Final Order in this case to the following effect: (a) Dismissing the charges that the Respondent has violated subsections (l) and (u) of Section 466.028(1), Florida Statutes (1987); Concluding that the Respondent has violated subsection (j) of Section 466.028(1), Florida Statutes (1987), by making and filing a report he knew to be false; and Taking disciplinary action consisting of all of the following: (1) Imposing an administrative fine in the amount of $3,000.00, (2) issuing a reprimand to the Respondent, and (3) placing the Respondent on probation for a period of one year with a special condition that during the period of probation the Respondent's billing practices will be supervised by another licensed dentist. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 14th day of November, 1991. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1991.
The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation and Periodontal sections of the clinical part of Petitioner's June 2003 Florida Dental License Examination taken was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.94, so he failed the clinical part of the examination. Petitioner has challenged the grades of 2.0 that he received on the Patient Amalgam Preparation and Periodontal sections of the clinical part of the examination. In both sections, the score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. For both procedures, Petitioner challenges only the scores of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The two sections that are the subject of this case require the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For each section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communication between examiners and candidates is exclusively through monitor notes. For each section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Periodontal section of the clinical part of the dental examination required Petitioner to debride five teeth. Removing calculus from teeth, especially below the gums, is an important procedure because the build-up of tartar and plaque may cause pockets to form between the tooth and gum. Eventually, the gum tissue may deteriorate, ultimately resulting in the loss of the tooth. Prior to the examination, written materials explain to the candidates and examiners that the debridement is to remove all supragingival and subgingival foreign deposits. For the Periodontal procedure, Examiners 207 and 296 each gave Petitioner a 3, and Examiner 394 gave him a 0. The scoring sheets provide a space for preprinted notes relevant to the procedure. All three examiners noted root roughness. However, Examiner 394 detected "heavy" subgingival calculus on four teeth and documented his findings, as required to do when scoring a 0. Petitioner contends that two examiners and he correctly detected no calculus, and Examiner 394 incorrectly detected calculus. As an explanation, Petitioner showed that Examiner 394 knows Petitioner in an employment setting, and their relationship may have been tense at times. However, Petitioner never proved that Examiner 394 associated Petitioner's candidate number with Petitioner. Thus, personal bias does not explain Examiner 394's score. On the other hand, Examiners 296 and 207 are extremely experienced dental examiners. Examiner 296 has served nine years in this capacity, and Examiner 207 has served ten years, conducting 15-20 dental examinations during this period of time. By contrast, Examiner 394 has been licensed in Florida only since 1995 and has been serving as a dental examiner for only three years. However, the most likely explanation for this scoring discrepancy is that Examiner 394 explored more deeply the subgingival area than did Examiners 207 and 296 or Petitioner. Examiner 394 testified with certainty that he found the calculus at 5-6 mm beneath the gums. This is likely deeper than the others penetrated, but not unreasonably deep. For the Periodontal procedure, an examiner who found calculus on four teeth would be entitled to award the candidate 0 points. Examiners may deduct two points per tooth that has been incompletely cleaned, although the lowest score is 0. Examiner 394's score of 0 is therefore legitimate and at least as reliable as the other scores of 3. The Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 417 each assigned Petitioner a 3 for this procedure, but Examiner 420 assigned him a 0. Examiners 207 and 417 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 420 detected caries and documented his finding, as required to do when scoring a 0. As noted above, Examiner 207 is a highly experienced evaluator, but the other two evaluators are experienced dentists. Examiner 417 graduated from dental school in 1979, and Examiner 420 has been licensed in Florida since 1981. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Examiner 420 testified definitively that he detected caries tactilely, not visually, in Petitioner's patient. This testimony is credited. It is difficult to reconcile Examiner 420's finding of caries with the contrary finding by the highly experienced Examiner 207. It does not seem especially likely that an experienced dentist would miss decay, especially in the artificial setting of a dental examination, in which everyone's attention is focused on one tooth. Examiner 207's finding of no caries is corroborated by the same finding of Examiner 417. However, Examiner 417's finding is given little weight. She readily suggested that she must have missed the caries. What at first appeared to be no more than a gracious gesture by a witness willing to aid Respondent's case took on different meaning when Examiner 417 testified, in DOAH Case No. 03-3955, first that she had detected visually and then retreated to testifying that she did not know if she had detected caries visually or tactilely--a significant concession because examiners were instructed explicitly not to rely on visual findings of caries. Returning, then, to the conflict between the findings of Examiner 420 and Examiner 207, substantially unaided by the corroborating findings of Examiner 417, either an experienced, credible dentist has found caries where none exists, or an experienced credible dentist has missed caries. The specificity of Examiner 420's testimony makes it more likely, as logic would suggest, that he did not imagine the existence of caries, and Examiner 207 somehow missed the caries. It is thus slightly more likely than not that Petitioner failed to remove the caries prior to presenting the patient. More importantly, though, for reasons stated in the Conclusions of Law, Examiner 420, in finding caries, adhered strictly to Respondent's rules and policies for evaluating candidates' work, and his finding was not arbitrary or capricious.
Recommendation It is RECOMMENDED that the Department of Health enter a final order dismissing Petitioner's challenge to the scoring of the clinical part of the June 2003 Florida Dental License Examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
