13-001586PL Department Of Health, Board Of Dentistry vs. Miranda Whylly Smith, D.D.S. Status: Closed Recommended Order on Wednesday, March 5, 2014.

Summary: DOH charged dentist with multiple violations. All but 3 dropped before hearing. Two proven: unlawful delegation to dental assistants, and allowing sedation without DOH permit. Recommended 6-month suspension, probation and $10,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF DENTISTRY ,

Petitioner ,

vs. Case No. 13 - 1586PL

MIRANDA WHYLLY SMITH, D.D.S. ,

Respondent .

/

RECOMMENDED ORDER

On No vember 13 through 15, 2013, a final administrative

hearing was held in this case in Brooksville before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jack F. Wise, Esquire

Adrienne C. Rodgers, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: John E. Terrel, Esquire

Law Office of John E. Terrel

Suite 11 - 116

1700 North Monroe Street

Ta llahassee, Florida 32303 - 0501

STATEMENT OF THE ISSUE S

The issues in this case are whether the B oard of Dentistry

(Board) should discipline the Respondent on charges that she

violated section 466.028(1)(z), (ff), and (gg), Florida Statutes

(2009 - 2012), 1/ by: improperly delegating professional

responsibilities to persons not qualified to perform them;

operating her dental office below minimum acceptable standards;

and allowing the administration of anesthesia , in violation of

Board rules.

PRELIMINARY STATE MENT

The Petitioner, Department of Health (DOH), filed an

Administrative Complaint against the Respondent alleging: in

Count I , that she improperly delegated professional

responsibilities to persons not qualified to perform them, in

violation of section 4 66.028(1)(z); in Count II , that she aided

unlicensed activity, in violation of section 466.028(1)(g); in

Count III , that she operated her dental office below minimum

acceptable standards, in violation of section 466.028(1)(ff); in

Count IV , that she made d eceptive representations, in violation

of section 466.028(1)(x); in Count V , that she was incompetent or

negligent by failing to meet the standard of care in diagnosis

and treatment, in violation of section 466.028(1)(l); in

Count VI , that she allowed the administration of anesthesia , in

violation of Board rules and, therefore, section 466.028(1)(gg);

and, in Count VII , that she was guilty of fraud, deceit, or

misconduct, in violation of section 466.028(1)(t). The

Respondent disputed the charges and reques ted an administrative

hearing. By the final hearing, Counts II, IV, V and VII were

dropped, leaving Counts I, III, and VI.

The parties filed a Joint Pre - Hearing Stipulation. At the

hearing, the following exhibits were admitted in evidence: Joint

Exhib it 1; the Petitioner ' s Exhibits 1, 3, 4, 6, 7 , and 10; and

the Respondent ' s Exhibits 1, 10 through 14, 22, and 26. The

following witnesses testified: Kristina Plumadore, William

Hemme, and Lillian Torres, who are expanded - function dental

assistants emplo yed by the Respondent; Priscilla Davila, a dental

assistant formerly employed by the Respondent; V.S. and E.H., the

parents of patients of the Respondent; V.C., a patient of the

Respondent; William Robinson, D.D.S., a general dentist; Jonathan

Disbury, M.D ., an anesthesiologist; and Lori DePina, Kent Whylly,

and Lisa Mello, office employees of the Respondent. (The

t ranscript of the deposition of L.C., who was a patient of the

Respondent, was received as Petitioner ' s Exhibit 10 in lieu of

live testimony.)

The Petitioner ' s Exhibit 6, which was identified as the

Respondent ' s application for conscious sedation permits with

supporting documents, was received subject to appropriate

authentication by affidavit. The Respondent moved to strike the

exhibit provide d with the affidavit on the ground that it added

pages to the exhibit presented at the hearing. The Petitioner

responded that no pages were added, which the Respondent conceded

after a closer inspection. However, the Respondent maintained

that portions o f the exhibit should be stricken because it

contained pages (the ones initially alleged to be added) that

were not described in the name given to the exhibit.

Essentially, the exhibit was the application file, not just the

application and supporting docum ents. The Respondent ' s late

objection is overruled, and the motion to strike is denied.

Ruling was reserved on the Petitioner ' s objections to the

Respondent ' s Exhibits 4, 5, 8, 19, 25, and 29. The parties were

given an opportunity to address those obje ctions post - hearing,

which the Petitioner did. Upon further review of the exhibits

and the arguments, the objections are sustained.

The parties were given an opportunity , post - hearing , to

address the Respondent ' s objection and motion to strike the

testi mony of Dr. Robinson on the ground the Respondent had

contacted him about testifying on her behalf. The Respondent

objected and moved to strike representations made in the

Petitioner ' s post - hearing filing about telephone conversations

with Dr. Robinson af ter the hearing concerning his contact with

counsel for the Respondent. Upon consideration of all the

filings, the Respondent ' s objections are overruled, and her

motions to strike are denied.

The Transcript of the final hearing was filed, and the

partie s filed proposed recommended orders that have been

considered.

FINDING S OF FACT

1. The Respondent, Miranda Whylly Smith, D.D.S., holds

license DN15873, which authorizes her to practice dentistry in

the State of Florida. She has held this license since

Ja nuary 2002. No discipline has been imposed against her license

to date.

2. Since July 2009, the Respondent has owned and operated a

dental practice called " Smiles and Giggles " in Spring Hill,

Florida. Prior to May 2011, Smiles and Giggles was located on

Mariner Boulevard; in May 2011, it moved to County Line Road.

3. The Respondent is the only dentist practicing at Smiles

and Giggles. She employs dental assistants , no t dental

hygienists.

Count I -- Improper Delegation

4. Count I charges the Respo ndent with improperly

delegating professional responsibilities to her dental

assistants.

5. Expanded - function dental assistants employed by the

Respondent have included: Lillian Torres, who worked at Smiles

and Giggles from late 2009 to March 2012 and functioned as the

" head dental assistant " with responsibility for overseeing the

work of other dental assistant s working in the office; Kristina

Plumadore, who has worked there since 2009; and William Hemme,

who has worked there since late 2011 and now ser ves as head

dental assistant. Priscilla Davila worked there as a dental

assistant without an expanded - function certificate from May 2011

to August 2011.

6. Incorporated in that charge are specific factual

allegations regarding Ms. Torres and an unnamed male expanded -

function dental assistant (who, the evidence revealed, was

Mr. Hemme). (The Administrative Complaint includes other

specific allegations based on statements from other dental

assistants who did not testify, and those allegations are omitted

here, since there was no evidence to support them.) Also

incorporated in the charge are general factual allegations that

all dental assistants improperly performed many of the same tasks

at the direction of Ms. Torres and Mr. Hemme, with the

Respondent ' s knowledge and approval, including taking impressions

and bite registrations 2 / for dentures, delivering dentures,

adjusting dentures with grinding devices, using drills on

cavities, filling cavities, and other tasks for which they were

not qualified.

7. Count I charges that the Respondent delegated to dental

assistants the taking of final impressions for dentures and the

making of adjustments to dentures, including the use of

high - and/or low - speed drills, which made unalterable changes to

the teeth. 3 /

8 . As the factual basis for that charge, the Administrative

Complaint alleges that Ms. Torres took the final impressions for

dentures for a patient, L.C.; that Mr. Hemme adjusted dentures

for the patient L.C. by " grinding [them] down " ; and that both

Mr. He mme and Ms. Torres did " [a]ll denture fabrication and

adjustment procedures " for L.C. In some respects, L.C. ' s

testimony on this allegation was inconsistent with the dental

records introduced by the Respondent, which are more accurate in

those respects. L.C. presented to the Respondent in late 2009.

Initially, it was planned that a partial upper denture would be

made, and an immediate complete lower denture would be made for

use after her remaining lower teeth were extracted. In mid -

January 2010, the pl an changed, and an immediate complete upper

denture was made for use after her remaining upper teeth were

extracted. The upper teeth were extracted in mid - January 2010,

and the immediate upper denture was fitted. In July 2010,

attempts were made to adjus t the denture because it was

uncomfortable and also loose. In October 2011, L.C. returned to

Smiles and Giggles with more complaints that the upper denture

did not fit correctly and was loose. In late October and early

November 2011, the upper denture wa s relined in an attempt to

address the patient ' s complaints, but her complaints persisted.

Later in November 2011, impressions were done for the patient ' s

immediate complete lower denture. In January 2012, the patient ' s

remaining lower teeth were extract ed, and her immediate lower

denture was fitted and adjusted. L.C. continued to complain

about the fit of both dentures, and several attempts were made in

the spring of 2012 to adjust them, to no avail. The patient then

complained to Medicaid, and she ret urned to the Respondent to

have both dentures redone in January 2013.

9. L.C. testified that the Respondent took no impressions

for dentures and did not fit or adjust her dentures until after

the spring of 2012. She testified, prior to that all the wor k

was done by Ms. Torres and Mr. Hemme. Ms. Torres and Mr. Hemme

testified that they took impressions, but not final impressions

or bite registrations, which were done by the Respondent. The

dental records reflect that the provider of all these services

was the Respondent. However, in this instance, the patient ' s

testimony is credited, and the contrary testimony of Ms. Torres

and Mr. Hemme (as well as the possible contrary inference from

the dental records) is rejected.

10. On questioning by counsel fo r the Respondent, Mr. Hemme

appeared to take the position that the impressions were not final

because they were for immediate dentures, which sometimes are

replaced by permanent ones. However, it is clear from the

evidence that L.C. ' s immediate dentures w ere intended to be

permanent. It was not until after her complaints to Medicaid

that the Respondent agreed to make permanent dentures for her.

11. Most, if not all, dental assistants working at Smiles

and Giggles took impressions for dentures. It is no t clear from

the evidence whether these were all final impressions, ex cept in

the case of the patient L.C.

12. Another patient, V.C., 4 / testified that Ms. Torres also

took final impressions for her dentures. The testimony was

elicited , in part , as proof of what paragraph 72 of the

Administrative Complaint alleges Ms. Davila 5 / witnessed.

Ms. Davila ' s testimony gave no indication that she witnessed

dental care being provided to V.C., and it seems unlikely from

the evidence that Ms. Davila ' s short tenure wo rking for Smiles

and Giggles included the time when the care in question was

provided to V.C. No dental records were introduced regarding the

patient V.C. that could have helped answer that question. The

testimony of the patient V.C. also could have been elicited as

proof of a general allegation in paragraph 70 of the

Administrative Complaint that all Smiles and Giggles dental

assistants supervised by Ms. Torres performed various

unauthorized tasks, including making dentures. 6 /

13. According to Mr. Hemme, he adjusts patients ' dentures

by using a handpiece to polish or smooth down rough spots where

they come in contact with the gums to try to make them fit more

comfortably. This is what he says he attempted to do to L.C. ' s

dentures. According to Ms. Torre s, she uses an acrylic burr to

" bring down high spots " that are identified by the Respondent and

to make " minute adjustments " to dentures. These adjustments can

be remedied only by making a new set of dentures.

14. Although evidence was presented regard ing the taking of

bite registrations, t he Administrative Complaint does not allege

that the Respondent delegated this task to dental assistants. In

any event, t he evidence was not clear and convincing that dental

assistants at Smiles and Giggles took bite registrations for

dentures for patients other than L.C. To the contrary, there was

no evidence that they did, and several denied it.

15. Count I charges that the Respondent delegated to dental

assistants the placement of filling materials and the use o f

dental instruments, including high - and/or low - speed drills,

which made unalterable changes to the teeth.

16. As the factual basis for that charge, the

Administrative Complaint alleges: that Ms. Torres has admitted

to placing amalgam and composite fil lings, using low - and high -

speed drills, and using a spoon excavator to take out the upper

part of a cavity during the time she worked at Smiles and

Giggles; and that all assistants working at Smiles and Giggles ,

while Ms. Torres worked there , used low - spe ed drills, all with

the Respondent ' s knowledge or direction. The Administrative

Complaint also alleges that Ms. Davila saw dental assistants use

high - speed drills and complete fillings on patients during the

time she worked at Smiles and Giggles, all with the Respondent ' s

knowledge or direction. The Administrative Complaint also

alleges that Ms. Torres " placed fillings " for a patient, T.F.,

when she had dental work done at Smiles and Giggles in the summer

of 2011. 7 /

17. The evidence was clear that denta l assistants at Smiles

and Giggles were using flowable resin to fill cavities. This is

a composite material that hardens when cured and can only be

removed by being drilled out by the dentist using a high - speed

handpiece. Dental assistants at Smiles and Giggles also were

packing amalgam filling material to fill cavities. The

Respondent would then review the restoration. If adjustments

were needed, the Respondent or , sometimes , a dental assistant

would use a slow - speed handpiece to try to bring down roug h or

high spots.

18. After the patient T.F. was diagnosed with cavities in

the summer of 2011, she returned to have those teeth restored.

The Respondent used a drill to prepare the cavities for filling,

and Ms. Torres placed composite material. The Res pondent then

left the room, and Ms. Torres used a slow - speed handpiece , with a

burr attached , to grind down the filling to correct the bite.

The Respondent did not return to re - examine T.F. before she left

the office that day.

19. The Respondent seems t o take the position that fillings

done by dental assistants were temporary fillings, to be followed

by permanent restorations at a later date. But sometimes they

were intended to be permanent. Even if intended initially to be

temporary, if the patient di d not return to have the temporary

filling replaced by a permanent restoration, the temporary

filling became de facto permanent. In either case, once placed,

the filling material could be removed only by being drilled out

with a high - speed drill.

20. At some point in 2013, the dental assistants at Smiles

and Giggles were told not to place filling material or bring down

high spots any more. The source of this directive was not clear

from the evidence, but it can be inferred that it came from the

Responde nt. By mid - October 2013, those tasks were being

performed by dental assistants only " every once in a while " and

are not being performed by them any longer, according to

Ms. Plumadore.

21. Count I charges that the Respondent delegated to dental

assistant s the performance of full - mouth debridement.

22. As the factual basis for that charge, the

Administrative Complaint alleges generally that the Respondent

delegated to dental assistants at Smile s and Giggles the task of

performing full - mouth debridement. No specifics are alleged.

23. A cavitron is a device that uses ultrasound and water

to remove plaque. It is used in the subgingival area, i.e., on

the parts of teeth at the gum line and under the gums, as part of

a full - mouth debridement.

24. At the hearing, the patient T.F. testified that

Ms. Torres used a cavitron to clean plaque from her teeth,

including in the subgingival area. Ms. Torres admitted using the

cavitron , but denied using it in the subgingival area. The

patient was numbed by a local anesthetic, which would have made

it difficult for the patient to sense precisely where the

cavitron was being used. The evidence was not clear and

convincing that Ms. Torres used the cavitron in the subgingival

area.

25. Ms. Davila testified that she s aw Ms. Torres and other

dental assistants use the cavitron for deep cleaning, which would

include in the subgingival area. However, it is not clear how

she would have been in a position to ascertain where a cavitron

was being used in a patient ' s mouth. D uring the relatively short

time she worked at Smiles and Giggles, she usually was not in the

part of the office where patients ' teeth were being cleaned.

Even if she was in that area of the office, the patient ' s chair

would have been facing away from wher e Ms. Davila probably would

have been standing, so that she would not have been able to

observe exactly where the cavitron was being used in the

patient ' s mouth.

26. There was no evidence that the Respondent knew of , or

condoned the use of , the cavitron by her dental assistants for

full - mouth debridement, including in the subgingival area.

27. Count I charges that the Respondent delegated to dental

assistants the initiation of a nitrous oxide mask and the

administration of nitrous oxide without direct s upervision.

28. As the factual basis for that charge, the

Administrative Complaint alleges that Ms. Torres placed a nitrous

oxide mask on a minor patient, O.S., and administered nitrous

oxide to the patient in August 2010.

29. At the hearing, DOH prese nted the testimony of the

child ' s mother, who was in the examination room when Ms. Torres

placed the mask on her child ' s face and left. Neither she nor

any other staff returned for about 20 minutes, during which the

child began to act very calm, relaxed, and groggy, slump in the

chair, wave his arms up and down, and act silly. The child was

autistic, but this was unusual behavior for him. The mother

became concerned and called for help. Ms. Torres returned, took

the mask off, and dental work was perform ed on the patient.

30. Ms. Torres denies that she did anything but put the

mask on the patient ' s face and claims that no nitrous oxide was

initiated. This testimony is rejected. It is found that

Ms. Torres initiated the flow of nitrous oxide on the chi ld

before she left the examination room. The dental records

indicate that nitrous oxide was administered, which is consistent

with the patient ' s behavior.

31. There was no clear and convincing evidence that it was

normal procedure for the dental assista nts to initiate nitrous

oxide without the Respondent being present. All the dental

assistants who testified indicated that they only monitor the

flow of nitrous oxide or, at most, adjust the flow at the

Respondent ' s explicit direction during a procedure.

32. Although there were no specific factual allegations

about it in the Administrative Complaint, the patient L.C.

testified that a dental assistant placed a gas mask on her face

when her teeth were being extracted. There was no evidence as

to how the f low of nitrous oxide was initiated or administered

to L.C.

Count III -- Dental Office Standards

33. Count III charges the Respondent with operating an

inadequately staffed dental office for the number and types of

treatments performed for her patients and scheduling too many

patients, so that unrealistic time limitations had to be placed

on her and her staff, resulting in the office being operated

below minimum acceptable standards of performance for the

community.

34. At most, the evidence showed that th e Respondent

operated a dental office that was very busy at times; that full

schedules sometimes were exacerbated by emergencies that had to

be worked around; that this sometimes resulted in office hours

having to be extended into the evening; that the off ice ' s

function would have benefited from an additional dentist; and

that dental assistants at times voiced that the patient load was

too high.

35. There also was evidence that the office would have

benefited from an experienced office manager/appointment

scheduler; that the office eventually did benefit when one was

hired; and that the office suffered from the lack of dedication

and hard work from some of the dental assistants on staff. Some

of them not only slacked off , but also even tried to sabotage t he

office out of personal animosity towards the Respondent and some

of her staff. One of these former dental assistant was fired

after she stole drugs from the office.

36. There was no clear and convincing evidence that the

Respondent had so many patien ts that she placed unrealistic time

limitations on herself and her staff, or that the result was an

office being operated below minimum acceptable standards of

performance for the community.

Count VI -- Sedation

37. Count VI charges the Respondent with adm inistering

anesthesia in a manner th at violated the rules of the Board.

38. The factual basis for this charge included allegations

that the Respondent did not have a sedation permit from the

Board; that the Respondent provided nitrous oxide sedation; tha t

the Respondent had an unsupervised assistant provide nitrous

oxide; that the Respondent had dental assistants start nitrous

oxide; that children would be placed on nitrous oxide before she

was present; that the Respondent had a licensed anesthesiologist

provide I.V. sedation with propofol; and that the Respondent ' s

dental office was not equipped, and her staff was not properly

trained, as required by statute and Board rules for the

administration of I.V. sedation with propofol.

39. The factual basis reg arding nitrous oxide refers to the

administration of nitrous oxide in the presence of a licensed

anesthesiologist. For approximately one year, between 2010 and

2011, the Respondent contracted with Anesthesiology Associates to

provide an anesthesiologist t o administer anesthesiology to

patients who would benefit from it, since the Respondent herself

was not authorized to do so. Sometimes, before the Respondent ' s

arrival in the room to perform dental work, the anesthesiologist

would direct one of the Respon dent ' s dental assistants to place a

gas mask on the patient and initiate nitrous oxide to relax the

patient prior to sedation. These allegations are distinct from

the previously discussed allegations that the Respondent herself

delegated this task to her dental assistants without her direct

supervision.

40. In addition to nitrous oxide, which typically was

administered by the anesthesiologist to relax a patient before

the administration of other sedatives, the anesthesiologist used

propofol, versed, and ketamine. Ketamine is an analgesic and

sedative that typically was administered by injection to an

uncooperative patient, usually a child, prior to the initiation

of other sedation. Versed and propofol were administered

intravenously. Propofol provided conscious sedation. Patients

would be sedated for as long as necessary to complete the

procedure, according to the Respondent ' s estimate. If the

procedure was long enough to require too much propofol, versed

would be started to complete the procedure. V ersed reduces

anxiety and relaxes the patient , but does not provide conscious

sedation.

41. During this time period, the anesthesiologist typically

would go to the Respondent ' s office two days a week and provide

services for six to ten patients a day. H e would bring the

required drugs and I.V. and other equipment. Later, the

equipment was left in a closet at the Respondent ' s office and any

unused drugs sometimes were left in a locked storage closet in

the Respondent ' s office for use the next time. The next time the

anesthesiologist came to the Respondent ' s office, he would get a

key from the Respondent or her staff to access the locked storage

closet and would inventory and inspect the drugs and equipment to

be sure he had what was needed before beginni ng the day ' s work.

42. The Respondent or the anesthesiologist provided a crash

cart with a heart monitor and oxygen, which was needed to support

the breathing of a sedated patient. There was a defibrillator in

the Respondent ' s office, and the anesthesio logist was certified

to provide cardiopulmonary resuscitation, if needed. The

anesthesiologist testified that he met all the requirements of

his license to provide anesthesiology services at the

Respondent ' s office and had everything he needed to provide those

services safely.

43. At some point, the Respondent became aware that the

Board required her to have a sedation permit to do what she was

doing through Anesthesiology Associates. She applied for the

permit. For some time after applying, she contin ued to contract

with Anesthesiology Associates to provide these services , but

later terminated the contract because she became aware that her

sedation permit had not been issued.

CONCLUSIONS OF LAW

44. Since this is a license discipline case, the Divisio n

must prove its allegations by clear and convincing evidence.

Dep ' t of Banking & Fin. v. Osborne Stern & Co . , 670 So. 2d 932

Fla. 1996); Ferris v. Turlingto n , 510 So. 2d 292 (Fla. 1987).

The Supreme Court has stated:

Clear and convincing evidence requir es that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produ ces in the mind of the

trier of fact a firm belief or convicti o n,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

45. In Count I, DOH charged the Respondent with improperly

delegating professional responsibilities to persons not qualified

to perform them, in vio lation of section 466.028(1)(z) .

46. Section 466.024(1) provides that a dentist " may not

delegate irremediable tasks to a dental hygienist or dental

assistant, except as provided by law. " "' Irremediable tasks ' are

those intraoral treatment tasks which, when performed, are

irreversible and create unalterable changes within the oral

cavity or the conti guous structures or which cause an increased

risk to the patient. " § 466.024(11) , Fla. Stat . " The

administration of anesthetics other than topical anesthesia is

considered to be an ' irremediable task ' for purposes of this

chapter. " Id.

47. "' Remediab le tasks ' are those intraoral treatment tasks

which are reversible and do not create unalterable changes within

the oral cavity or the contiguous structures and which do not

cause an increased risk to the patient. " § 466.024(12) , Fla.

Stat . Remediable ta sks that pose no risk to the patient and are

defined by law or rule of the Board can be delegated to dental

assistants. Id. By statute, the following tasks are remediable

and delegable:

(a) Taking impressions for study casts but

not for the purpose of fabricating any

intraoral restorations or orthodontic

appliance.

* * *

(g) Placing or removing temporary

restorations.

(h) Applying cavity liners, varnishes, or

bases.

(i) Polishing amalgam restorations.

(j) Polishing clinical crowns of the t eeth

for the purpose of removing stains but not

changing the existing contour of the tooth.

§ 466.024(1) , Fla. Stat . However, a dental assistant cannot be

delegated the tasks of gingival curettage or root planing and

cannot perform an intraoral procedure " except after such formal

or on - the - job training as the board by rule shall prescribe. "

§ 466.024(6) and (10) , Fla. Stat .

48. By rule, remediable tasks also are referred to as

expanded functions of dental assistants and " are those intra - oral

tasks whic h do not create unalterable changes in the oral cavity

or contiguous structures, are reversible and do not expose a

patient to increased risks. " Fla. Admin. Code R. 64B5 - 16.001(1).

The required formal training in expanded functions is specified

in rule 6 4B5 - 16.002. For certain remediable tasks, on - the - job

training also is required. Fla. Admin. Code R. 64B5 - 16.001(4).

49. Rule 64B5 - 16.005(1) specifies which remediable tasks

(i.e., expanded functions) can be performed under the direct

supervision of a den tist by a dental assistant who has received

formal training. These include:

(a) Placing or removing temporary

restorations with non - mechanical hand

instruments only;

(b) Polishing dental restorations of the

teeth when not for the purpose of changing

the existing contour of the tooth and only

with the following instruments used with

appropriate polishing materials -- burnishers,

slow - speed hand pieces, rubber cups, and

bristle brushes;

* * *

(e) Cementing temporary crowns and bridges

with tempora ry cement;

(f) Monitor the administration of the

nitrous - oxide oxygen making adjustments only

during this administration and turning it off

at the completion of the dental procedure;

* * *

(k) Using appropriate implements for

preliminary charting of existing restorations

and missing teeth and a visual assessment of

existing oral conditions;

* * *

(p) Making impressions for study casts which

are being made for the purpose of fabricating

orthodontic retainers . . . .

" Direct supervision req uires that a licensed dentist examine the

patient, diagnose a condition to be treated, authorize the

procedure to be performed, be on the premises while the procedure

is performed, and approve the work performed prior to the

patient ' s departure from the pr emises. " Fla. Admin. Code R. 64B5 -

16.001(4).

50. Rule 64B5 - 16.005(2) specifies which remediable tasks

(i.e., expanded functions) can be performed under the indirect

supervision of a dentist by a dental assistant who has received

formal training. These include:

(a) Making impressions for study casts

which are not being made for the purpose of

fabricating any intra - oral appliances,

restorations or orthodontic appliances;

(b) Making impressions to be used for

creating opposing models or the fabricatio n

of bleaching stents and surgical stents to

be used for the purpose of providing palatal

coverage as well as impressions used for

fabrication of topical fluoride trays for

home application;

* * *

(j) Applying sealants;

* * *

(m) Removing sut ures.

" Indirect supervision requires that a licensed dentist examine

the patient, diagnose a condition to be treated, authorize the

procedure to be performed, and be on the premises while the

procedure is performed. " Fla. Admin. Code R. 64B5 - 16.001(5).

51. The evidence in this case was clear and convincing that

the Respondent delegated tasks to her dental assistants in

violation of these statutes and rules.

52. Count III charged the Respondent with operating her

dental office below minimum acceptable s tandards for the

community, in violation of section 466.028(1)(ff). " This

includes, but is not limited to, the use of substandard materials

or equipment, the imposition of time limitations within which

dental procedures are to be performed, or the failure to maintain

patient records as required by this chapter. " Id.

53. The evidence in this case was not clear and convincing

that the Respondent violated section 466.028(1)(ff), except to

the extent of the Count I violations.

54. Count VI charged the Respo ndent with violating section

466.028(1)(gg) by allowing the administration of anesthesia , in

violation of Board rules adopted pursuant to section 466.017.

55. Rule 64B5 - 14.005(1), a rule adopted by the Board

pursuant to section 466.017, states:

No den tist shall administer, supervise or

permit another health care practitioner, as

defined in Section 456.001, F.S., to perform

the administration of general anesthesia,

deep sedation, conscious sedation or

pediatric conscious sedation in a dental

office for dental patients, unless such

dentist possesses a permit issued by the

Board. A permit is required even when

another health care practitioner, as defined

in Section 456.001, F.S., administers general

anesthesia, deep sedation, conscious

sedation, or pediat ric conscious sedation in

a dental office for a dental patient.

56. Rule 64B5 - 14.005(1), another rule adopted by the Board

pursuant to section 466.017, defines general anesthesia as:

A controlled state of unconsciousness,

produced by a pharmacologic age nt,

accompanied by a partial or complete loss

of protective reflexes, including inability

to independently maintain an airway and

respond purposefully to physical stimulation

or verbal command. This modality includes

administration of medications via

pare nteral routes; that is: intravenous,

intramuscular, subcutaneous, submucosal, or

inhalation . . . .

57. The evidence was clear and convincing that the

Respondent violated section 466.28(1)(gg).

58. Through rule 64B5 - 13.005(1), the Board adopted

discipli nary guidelines that establish a range of penalties for

violations. For a violation of section 466.028(1)(z), first

offense, the penalty range is from a $5,000 fine to a $10,000

fine and probation with conditions, and a minimum six - month

suspension. For a violation of section 466.028(1)(gg), first

offense, the penalty range is from a $5,000 fine to a $10,000

fine and probation with conditions.

59. Rule 64B5 - 13.005(1) sets out aggravating and mitigating

factors to be considered to determine whether the di scipline

imposed should be outside the guideline ' s ranges. These include

efforts by the licensee to rehabilitate, actual knowledge of the

licensee, attempts by the licensee to correct or stop the

violation, and refusal by the license e to correct or stop t he

violations. These factors do not warrant a penalty outside the

guideline ' s range , but warrant a penalty towards the top of the

range.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of D entistry enter a final

order: finding the Respondent guilty of violations under Counts I

and VI of the Administrative Complaint; imposing a $10,000 fine;

suspending her license for six months; placing her on probation

with appropriate conditions for six m onths after the suspension is

lifted.

DONE AND ENTERED this 5th day of March , 2014 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 5th day of March , 2014 .

ENDNOTE S

1/ Unless otherwise noted , all statutory references are to

Florida Statutes (20 13 ), which reflects the statutes in effect

during the relevant conduct of the Respondent. Likewise, all rule

references are to the version of the rule in effect during the

relevant time period.

2 / Ho wever, taking bite registrations is not included in the list

of delegations in the Count I charges in paragraph 102 of the

Administrative Complaint.

3 / The charge in paragraph 102 of the Administrative Complaint

refers to " unalterable changes to the te eth. " With regard to

dentures, the factual allegations referred to adjustments to the

denture.

4 / In the T ranscript, this witness twice was referred to

erroneously by the initials L.C. (Tr. 381)

5 / The Administrative Complaint refers to Ms. Davila by the

initials P.D. and, erroneously, as a male. In the T ranscript,

Ms. Davila once was referred to erroneously by the initials V.D.

(Tr. 390)

6 / In argument on the Respondent ' s objection to this witness ' s

testimony, paragraph 70 was not cited by the Department, but it

was cited earlier in the hearing in the Department ' s argument for

the admission of the testimony of another witness. The argument

based on paragraph 70 is better than the argument based on

paragraph 72.

7 / The Administrative Compla int also alleges that Ms. Torres

performed the oral examination on this patient, that the

Respondent only looked at radiographs and that Ms. Torres used a

high - speed drill on the patient. Those allegations were not

proven by clear and convincing evidence. The patient and

Ms. Torres were acquaintances, and the patient was an orthodontic

assistant. The two discussed what Ms. Torres observed and the

probable diagnosis and treatment plan, which corresponded with

the Respondent ' s diagnosis and proposed treatm ent plan. There

was no evidence that Ms. Torres used a high - speed drill on T.F.

COPIES FURNISHED:

Susan Foster, Executive Directory

Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin C - 08

Tallahassee, Florida 32399 - 3258

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

J ohn E. Terrel, Esquire

Law Office of John E. Terrel

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Florida 32303 - 0501

Jack F. Wise, Esq uire

Adrienne C. Rodgers, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Re commended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.