03-003689 Joseph M. Pelle vs. Board Of Dentistry Status: Closed Recommended Order on Monday, March 15, 2004.

Summary: Petitioner established that the dental school was sufficiently accredited to comply with the statute and rule regarding the issuance of the teaching permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH M. PELLE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3689

)

BOARD OF DENISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing, pursuant to

appropriate notice, before P. Michael Ruff, duly - designated

Administrative Law Judge of the Division of Administrative

Hearings. The hearing was conducted in Tallahassee, Florida, on

December 15, 2003, and the appearances were as fol lows::

APPEARANCES

For Petitioner: Lawrence Curtin, Esquire

Holland & Knight, LLP

315 South Calhoun Street, Suite 600

Post Office Box 810

Tallahassee, Florida 32302 - 0810

For Respondent: Ann Cocheu, Esquire

Office of th e Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether Joseph M. Pelle, the Petitioner should be issued a

dental teaching permit in conjunction with his duties as Dean of

the Jacksonville University Dental School of Orthodontists

(dental school) in accordance with the authority cited and

treated below.

PRELIMINARY STATEMENT

On May 16, 2003, the Board of Dentistry (Board) denied a

teac hing permit, applied for by the above - named Petitioner. On

July 18, 2003, Mr. Pelle filed a Petition for Formal

Administrative Hearing pursuant to Sections 120.569 and 120.57,

Florida Statutes (2003). The issue was placed on the Board's

agenda for recons ideration and, on September 26, 2003, the Board

declined to reconsider its prior decision. The matter was

therefore forwarded to the Division of Administrative Hearings

and the undersigned Administrative Law Judge.

On November 18, 2003, the Florida Asso ciation of

Orthodontists, Inc., filed a petition to intervene or in the

alternative petition for leave to appear as amicus curie . On

November 26, 2003, the Petitioner filed a written response to

the motion. On December 10, 2003, an order was entered by t he

undersigned denying the petition. The cause proceeded to formal

hearing on December 15, 2003, in Tallahassee, Florida.

Prior to taking testimony, the parties stipulated to seven

exhibits as follows: Petitioner's Exhibit One, the teaching

permit applic ation of Joseph Pelle; Petitioner's Exhibit Two,

the accreditation standards for advanced specialty education

programs in orthodontics from the Commission on Dental

Accreditation; Petitioner's Exhibit Three, an internal listing

from the American Dental Ass ociation Advance Education

Accredited Dental Programs in Florida; Petitioner's Exhibit

Four, an August 5, 2003, letter from Kathryn Horan of the

American Dental Association; Petitioner's Exhibit Five, an

October 23, 2003, letter from Ms. Horan; Respondent' s Exhibit

One, the agenda materials from the May 16, 2003, Board of

Dentistry meeting concerning Joseph Pelle's application; and

Respondent's Exhibit Two, the agenda materials from the

September 26, 2003, meeting concerning Joseph Pelle's request

for recon sideration. Additionally, the Respondent requested,

and the undersigned took official recognition of the Board's

booklet of its laws and rules.

The Petitioner testified on his own behalf. Irene Stavros,

a member of the Board of Dentistry, testified on be half of the

Respondent.

Upon conclusion of the hearing a transcript thereof was

ordered and the parties elected to submit Proposed Recommended

Orders. The Proposed Recommended Orders were timely filed and

have been considered in the rendition of this Re commended Order.

FINDINGS OF FACT

1. The Petitioner is Dr. Joseph M. Pelle. His business

address is 2800 University Boulevard North, Jacksonville

University, Jacksonville, Florida. The Petitioner is not

licensed to practice dentistry in Florida, but is licensed in

three other states. His licensure is current and in good

standing in those states.

2. The Respondent is the Florida Board of Dentistry

(Board). It is an agency of the State of Florida charged with

regulating the licensure standards and pract ice standards for

those engaged in the practice of dentistry in all its facets in

the State of Florida. Its authority includes the authority,

under the law cited below, to issue teaching permits in limited

circumstances for professionals engaged in the te aching of

clinical aspects of dentistry, at accredited institutions,

offering advanced education to post - graduate dentists in

Florida.

3. The Petitioner filed an application for a teaching

permit pursuant to Section 466.002, Florida Statutes, and

Florid a Administrative Code Rule 64B5 - 7.005, with the Respondent

Board. The application is dated March 25, 2003. The teaching

permit was proposed to be used at the Jacksonville University

Dental School of Orthodontists in Jacksonville, Florida (Dental

School). On June 25, 2003, the Board entered an order denying

the application for the teaching permit.

4. The Petitioner is the Dean of the Dental School of

Orthodontics. The Petitioner is not currently licensed as a

dentist in the State of Florida, but is lice nsed in Texas,

Pennsylvania, and Ohio with all those licenses being in good

standing. The Petitioner has practiced orthodontics since 1971,

and has been the chairman of dental programs at the University

of Pittsburgh and at West Virginia University. He h as a board

specialty from the American Board of Orthodontics.

5. Jacksonville University is a private, non - profit,

accredited, liberal arts university in Jacksonville, Florida,

that confers degrees at the undergraduate and graduate levels.

It also offe rs advanced professional education programs.

6. The Dental School of Orthodontics offers advanced

education in orthodontics to post - graduate dentists that have

already completed their dental program to receive the DMD or DDS

degree. The dental school cur rently has four full - time faculty,

eleven part - time faculty, and adjuncts, both outside and inside

the Jacksonville University. There are fourteen students

currently enrolled in the program. The advanced program offered

consists of approximately 3700 hou rs of formal intense

instruction over a twenty - four month period. The program

results in conferring a certificate of advanced education in

orthodontics on successful students.

7. The Petitioner's duties as Dean of the Dental School of

Orthodontics, are d ivided between administrative and teaching

duties. Approximately 75 percent of his duties are attributable

to administrative matters and 25 percent to teaching. If the

teaching permit is issued, the Petitioner will participate in

clinical instruction at the Dental School of Orthodontics.

8. The accreditation body for dental programs in the

United States is the Commission on Dental Accreditation of the

American Dental Association (the Commission). The Commission is

a specialized programmatic accreditin g agency recognized by the

United States Department of Education. It conducts all aspects

of the accreditation process for the more than 1300 programs for

dental, allied dental, and advanced dental education in the

Untied States. The accreditation is for the program itself, and

not for the sponsoring institution. The Petitioner, on behalf

of the Dental School of Orthodontics, applied to the Commission

for accreditation and personally participated in the

accreditation review process.

9. The Commission's accreditation standards are set forth

in a document entitled "Accreditation Standards for Advanced

Specialty Education Programs in Orthodontics and Dentofacial

Orthopedics" that was introduced in Petitioner's Exhibit Two in

evidence. The accreditation pro cess requires compliance with

six standards contained in that document. The standards address

institutional commitment and program effectiveness, the program

director and teaching staff, the facilities and resources, the

curriculum and program duration, t he advanced education student

selection, and research. The Commission concluded that the

Dental School of Orthodontics is in compliance with all

accreditation standards. See Petitioner's Exhibit Four in

evidence.

10. The curriculum for the Dental School was developed in

accordance with the self - study guide of the Commission on Dental

Accreditation of the American Dental Association.

11. As a result of the accreditation process and

evaluation, the Commission sent a letter dated August 5, 2003,

to David L . Harlow, President of Jacksonville University,

containing the following passage:

The program in orthodontics and dentofacial

orthopedics is accredited by the Commission

on Dental Accreditation [and has been

granted the accreditation status of 'initial

acc reditation.'] The Commission is a

specialized accrediting body recognized by

the United States Department of Education.

That letter from the Commission also contains the following

passage:

Based upon all the information presented,

the Commission conclude d that the program is

in compliance with the Accreditation

Standards, including Standard 1 - 1 regarding

financial support from entities outside of

the institution. Accordingly, the

Commission adopted a resolution changing the

accreditation classification o f the

educational program from 'preliminary

provisional approval' to 'initial

accreditation.' No additional information

is requested at this time.

See Petitioner's Exhibit Four in evidence.

12. Petitioner's Exhibit Three consists of the listing of

from the American Dental Association of all Florida programs

currently accredited by the Commission. The School of

Orthodontics is included on that list.

13. The Petitioner has never failed the Florida Dental

Licensure Examination. The Petitioner is also a f ull - time

faculty member at the Dental School of Orthodontics at

Jacksonville University. The Petitioner has agreed not to

engage in the practice of dentistry pursuant to the teaching

permit if it is issued, except under the programs of the Dental

School o f Orthodontics.

14. The Petitioner has also agreed that if the teaching

permit is issued, all records pertaining to the teaching

practice shall be subject to review and available to the Board

of Dentistry. The Petitioner has also agreed that if the

teach ing permit is issued, information requested by the Board of

Dentistry will be submitted for the purpose of allowing the

Board to evaluate compliance with applicable laws regulating the

practice of dentistry.

15. The Petitioner has provided proof of curren t CPR

certification to the Board of Dentistry. The Board of Dentistry

does not issue or grant accreditation to dental programs in the

State of Florida. Rather, the Board defers to the Commission as

to its accreditation decisions.

16. As shown by Respond ent's Composite Exhibit One in

evidence (letter of May 12, 2003, from attorney Bruce D. Lamb to

the Executive Director of the Board of Dentistry) the Commission

voted to discontinue awarding preliminary provisional approval

status as to accreditation. Acc ording to that letter the United

States Department of Education does not consider preliminary

provisional approval to constitute accreditation. In fact, the

Commission Communications Update of Fall 2002 indicates that the

Commission has a firm policy that a program is strongly

encouraged not to enroll students/residents until "initial

accreditation" status has been obtained. If a program enrolled

students or residents without first having been granted "initial

accreditation" status, the Commission will no tify all students

or residents enrolled of the possible ramifications of

enrollment in a program operating without accreditation. Thus,

at least implicitly, the Commission and the U.S. Department of

Education considers "initial accreditation" status, conv ersely,

to constitute accreditation, at least for purposes of admission

of students and residents to such a program.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties hereto.

§§ 120 .569 and 120.57, Fla. Stat. (2003).

18. The statutory basis for the Respondent's authority to

issue teaching permits is found in Section 466.002(6), Florida

Statutes, which provides in pertinent part as follows:

A full - time dental instructor at a denta l

school approved by the board may be allowed

to practice dentistry at the teaching

facilities of such school, upon receiving a

teaching permit issued by the board, in

strict compliance with such rules as are

adopted by the board pertaining to the

teaching permit and with the established

rules and procedures of the dental school.

19. The applicable rule for teaching permits is Florida

Administrative Code Rule 64B5 - 7.005. That Rule provides as

follows:

(1) A teaching permit may be issued by the

Board of Dentistry to a faculty member of a

dental school accredited by the Commission

on Dental Accreditation of the American

Dental Association or a medical school

accredited by the American Medical

Association's Liaison Committee for Medical

Education upon the request of the dean of

the school if the faculty member:

(a) Has not failed the Florida dental

licensure examination; and

(b) Is a full - time faculty member; and

(c) Does not engage in the practice of

dentistry except under the programs of the

dental or medical school described in

subsection 64B5 - 7.005(1), F.A.C.

The Rule proceeds on to set forth the conditions under which the

permit authorizes the holder to practice dentistry. These

conditions include the following:

(a) All records pertaining to th e teaching

practice shall be subject to review and

available to the Board.

(b) Upon the Board's request, the permit

holder shall submit any information the

Board deems necessary to evaluate compliance

with Chapters 456 and 466, Florida Statutes,

and Chap ter 64B5, F.A.C.

(c) Permits shall be in effect only as long

as the holder is a full - time faculty member

of the College of Dentistry or School of

Medicine and shall be automatically

cancelled and nullified by termination of

the holder as a faculty member of the

teaching facility or failure of the Florida

dental licensure examination.

(d) Teaching permits are subject to

cancellation or revocation by the Board for

failure to comply with Chapters 456 and 466,

F.S. and Chapter 64B5, F.A.C.

Fla. Admin. Code . R. 64B5 - 7.005(3). In addition to the

foregoing conditions and requirements, proof of current CPR

certification must be obtained and maintained while the teaching

permit is in effect. Fla. Admin. Code. R. 64B5 - 7.005(4).

20. The disputed issue concerns whether the Dental School

of Orthodontics is accredited by the Commission as required by

the applicable rules quoted above. There is no dispute that the

Petitioner has met all of the other requirements for issuance of

the teaching permit. He has agreed to use the teaching permit

in accordance with the terms and conditions of the Board's

rules, and has further agreed to make available and provide the

information required under those rules.

21. The rules do not define what is meant by the term

"accredite d." The Respondent did not present any testimony or

evidence concerning this term or definition. Rather the

testimony presented by the Respondent makes clear that the Board

is not an accrediting body and that it accepts the

determinations of the Commissi on. The evidence adduced by the

Respondent in testimony, does not establish a policy basis by

the Board for any definition of what is meant by the term

"accredited."

22. Based upon the evidence submitted by the Petitioner,

the Dental School of Orthodont ics has met all of the

requirements of the Commission for accreditation. It is listed

on the master list of accredited programs in the State of

Florida. The Commission has unequivocally stated that the

Dental School of Orthodontics is in compliance with

accreditation standards and is an accredited program. The

preponderant weight of the evidence, culminating in the above

Findings of Fact demonstrates that indeed the status "initial

accreditation" constitutes accreditation for purposes of the

Commission's accreditation standards, and the acceptance of

students and/or residents in such programs as being acceptance

into an accredited program. The Dental School is thus

established to be an accredited program for purposes of the

application of Section 466.002 (6), Florida Statutes, and Florida

Administrative Code Rule 64B5 - 7.005. Inasmuch, as all

requirements for issuance of a teaching permit by the Board have

been met, the teaching permit should be granted to the

Petitioner.

RECOMMENDATION

Having considered t he foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties it is, therefore,

RECOMMENDED that the Respondent enter a Final Order

determining that the Petitioner is in compliance with the above -

referenced statute and Rule, relating to the issuance of a

teaching permit and that the application of the Petitioner for

the teaching permit at issue be granted.

DONE AND ENTERED this 15th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 15th day of March, 2004.

COPIES FURNISHED :

Lawrence Curtin, Esquire

Hol land & Knight, LLP

315 South Calhoun Street, Suite 600

Post Office Box 810

Tallahassee, Florida 32302 - 0810

Ann Cocheu, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

William H. Buckhalt, Executive Dir ector

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C06

Tallahassee, Florida 32399 - 1701

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTI ONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.