15-006268PL Department Of Health, Board Of Dentistry vs. Haydee Aranda, D.D.S. Status: Closed Recommended Order on Tuesday, May 24, 2016.

Summary: DOH charged dentist with deceptive, untrue and fraudulent representations in dental records and delegating non-delegable tasks. The charges were not proven by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

DENTISTRY,

Petitioner,

vs. Case No. 15 - 6268PL

HAYDEE ARANDA, D.D.S.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On March 2 , 2 016, Administrative Law Judge J. Lawrence

Johnston held the final hearing in this case in Naples, Florida.

APPEARANCES

For Petitioner: Bridget Kelly McDonnell, Esquire

Candace A. Rochester, Esquire

Florida Department of H ealth

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: Sean Michael Ellsworth, Esquire

Ellsworth Law Firm, P.A.

Suite 601

420 Lincoln Road

Miami Beach, Florida 33139

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Dentistry

should discipline the Respondent on charges set out in an

Amended Administrative Compl aint filed by the Petitioner.

PRELIMINARY STATEMENT

The Amended Administrative Complaint in this case charges

the Respondent with: making deceptive, untrue, or fraudulent

representations in or related to the practice of dentistry in

violation of section 466.028(1)(l), Florida Statut es (2009), by

falsely characterizing ÐactiveÑ orthodontic appliances as

ÐpassiveÑ space maintainers (Count I); and delegating

irremediable tasks (hand - scaling and permanently cementing a

dental appliance) to a dental assistant not qualified to perform

thos e tasks, in violation of sections 466.028(1)(z) and

466.024(1), and Florida Administrative Code C hapter 64B5 - 16

(Count II) . 1/ The Respondent disputed the allegations and asked

for a disputed fact hearing under section 120.57(1). 2/

At the hearing, the Pe titioner called as witnesses

Stephanie Vick ; Dr. Edward F. Zapert , D.M.D. ; Frank Sierra,

D.M.D. ; Laurie A. Housworth, D.D.S. ; and Paul Beingolea. The

PetitionerÓs Exhibits 1 through 6, 8, 9, 12 through 17,

19 through 22, and 24 through 31 were admitted i n evidence.

Ruling was reserved on objections to the PetitionerÓs Exhibits

7, 10, 11, 18, and 23. Those objections are sustained, and the

exhibits are excluded. 3/ The Respondent testified, and offered

no exhibits in evidence.

A Transcript of the final h earing was filed on April 15,

2016. The parties filed proposed recommended orders that have

been considered in the preparation of this Recommended Order.

The Respondent also filed a motion for sanctions under

section 57.105, Florida Statutes, and the Pe titioner filed a

response in opposition.

FINDING S OF FACT

1. The Respondent is a licensed dentist in the state of

Florida, having been issued license DN 14819.

2. The Respondent was employed by the Collier County

Health Department (CCHD) from 2001 to Feb ruary 10, 2010. She

began her employment as a dental assistant, worked as a dentist

when she became licensed in Florida, and eventually became the

director of the CCHDÓs dental clinic.

3. Prior to June 2008, the Respondent received training in

providing Ðpre - orthodontic appliance therapy.Ñ This therapy

used appliances to move teeth to create and maintain space in

the mouths of pediatric patients to facilitate future

orthodontic therapy. The Respondent provided pre - orthodontic

appliance therapy, and the CCHD billed Medicaid for

reimbursement.

4. As Respondent was starting to provide these services,

Medicaid notified the CCHD that Medicaid would pay for them only

if provided by an orthodontist or pediatric dentist. The

RespondentÓs billings would not be paid.

5. When the CCHD was told this, its administrator,

Stephanie Vick, told the Respondent and instructed her not to

provide pre - orthodontic appliance therapy because Medicaid would

not pay for it. Ms. Vick allowed the Respondent to complete

cases alr eady begun but not to initiate any new pre - orthodontic

appliance therapy.

6. After the conversation between the Respondent and

Ms. Vick, Ms. Vick was told that the Respondent was prescribing

new orthodontic appliances for patients, contrary to her

instru ctions to the Respondent.

7. On July 15, 2008, Ms. Vick gave the Respondent a

written reprimand for Ð[p]oor performanceÑ and Ð[v]iolation of

law or agency rules.Ñ The reprimand cited the use of

orthodontic appliances for the dual purposes of maintaining

space and actively moving teeth and other dental structures. It

also stated that these appliances were being billed to Medicaid

improperly as space maintainers. Ms. Vick discussed the

reprimand with the Respondent.

8. After the reprimand, Ms. Vick thoug ht the Respondent

was complying with her instructions. Her quarterly reviews of

CCHD documentation seemed to corroborate her beliefs. However,

at some point, Ms. Vick was told by dental clinic employees that

the Respondent persisted in the conduct descri bed in the

reprimand. Ms. Vick investigated by reviewing additional

documentation, including invoices from the E.P. Orthodontic

Laboratory (the lab), which filled the CCHDÓs prescriptions for

dental appliances, and by interviewing clinic employees.

9. Th e labÓs invoices led Ms. Vick to believe that the

Respondent was violating her instructions regarding pre -

orthodontic care and treatment while attempting to conceal her

actions.

10. On February 10, 2010, Ms. Vick confronted the

Respondent with the results of her investigation and discussed

the matter. After the discussion, the Respondent resigned from

her employment. She did not admit to wrongdoing. On

February 12, 2010, Ms. Vick made a notation in the RespondentÓs

personnel file that included: ÐThe r esults of this review [of

dental patient records from July 2009] supported that Dr. Aranda

has continued to engage in improper charting of services,

incorrect/legal billing code use and practices regarding

interceptive orthodontic treatment and the need fo r signed

protocol structures.Ñ The notation continued to say that the

Respondent was disciplined for the same issues in July 2008 and

was persisting in those practices; that these matters were

discussed; and that the Respondent chose to resign.

11. T he n otation mentioned nothing about improper

delegation. However, it appears that Ms. Vick came to believe

during the course of her investigation of the Respondent that

the Respondent was having a dental assistant named Paul

Beingolea scale teeth and cement a ppliances, which he was not

qualified to do. Ms. Vick confronted Mr. Beingolea with her

belief. He denied it but chose to resign his employment.

12. After the Respondent and Mr. Beingolea resigned,

Ms. Vick notified the Agency for Health Care Administra tion

(AHCA), which runs FloridaÓs Medicaid program, that the CCHD

improperly billed and collected payment for pre - orthodontic

therapies. AHCA and CCHD agreed to repayment to Medicaid for

the resulting overpayments.

Count I

Deceptive, Untrue or Fraudulent Representations

13. Count I is based on the RespondentÓs dental care and

treatment for eight Medicaid patients: M.B.; J.C.; K.E.; D.G.;

M.G.; M.M.; T.N. - D.; and P.M. Specifically, Count I alleges

that the Respondent prescribed pre - orthodontic active app liances

for patients, made impressions to be used to fabricate the

appliances, ordered them, fit them, and adjusted them.

14. These appliances included Schwartz appliances, rapid

palate expanders (RPEs), and anterior bite/inclined planes.

These applian ces are considered to be ÐactiveÑ because they move

teeth and dental structures when ÐactivatedÑ by turning a screw

or expanding loops. After the desired space is obtained through

use of the appliances, it is common to leave the appliance in

temporarily t o maintain the space until the bone fills in and

solidifies. In this mode, the appliance becomes ÐpassiveÑ and

functions as a temporary retainer, but it is still considered to

be an ÐactiveÑ appliance.

15. Count I alleges essentially that the Respondent made

deceptive, untrue or fraudulent representations in the patientÓs

charts, and in documents used to bill Medicaid for their dental

care and treatment, by disguising pre - orthodontic care and

treatment using active appliances, which was not covered by

Med icaid, as non - orthodontic care and treatment using passive

retainers that Medicaid would cover and pay.

16. It is clear that the Respondent did not benefit

financially from MedicaidÓs payment of the care and treatment at

issue. The Respondent was on a st raight salary. She did not

work overtime and got no bonuses.

17. No actual Medicaid bills were in evidence. Instead,

the Petitioner introduced documentation from the CCHDÓs ÐHMSÑ

system. The HMS system recorded patient demographics, personal

informati on, insurance and billing information, and services

provided. The HMS billing information was used by the clerical

staff of the CCHD to bill Medicaid.

18. The Respondent did not enter the billing information

into the HMS system. This also was done by t he clerical staff

based on documentation referred to as a Ðsuper bill . Ñ The

CCHDÓs dental practitioners, including the Respondent, created

super bills based on their dental care and treatment of

patients.

19. After super bill information was entered into the HMS

system, the super bill was discarded. None were in evidence.

No member of the CCHDÓs clerical staff testified, and there was

no evidence about the RespondentÓs actual entries on the super

bill. There was no clear and convincing evidence as to w hat

part the Respondent played in the generation of HMS billing

information or the actual billing of Medicaid by the CCHD.

20. Some of the entries in the patientÓs charts probably

could be attributed to the Respondent based on handwriting

(although no wit ness identified the RespondentÓs signature or

handwriting). Some entries in the charts were followed by a

stamp of a practitionerÓs printed name and what appears to be

her signature. Sometimes, a number of a dayÓs worth of charting

(up to 30 or more pati ents) was done at one time in a

collaborative fashion by several practitioners. Sometimes there

was confusion and mix - ups. Sometimes, one practitioner

mistakenly would stamp and/or sign an entry for another

practitionerÓs work.

21. The charts in evidenc e included copies of

prescriptions that appear to have been written by the Respondent

for fabrication by the lab. At the CCHB, the prescription was

written on a form called a ÐRetainers PrescriptionÑ that

generated a carbonless copy when used. Typically, the white

original (top) of the prescription form was sent to the lab, and

the yellow carbonless copy was retained in the patientÓs chart.

Although the exhibits offered in evidence were copies, and all

appeared to be white, the witnesses were able to tel l the

difference between the original (top) of the prescription forms

and the bottom carbonless copies of the forms.

22. As part of the investigation conducted by Ms. Vick,

copies of what appear to be the labÓs invoices to the CCHD, and

copies of what app ear to be the original (top) of prescription

forms, were obtained from the lab. Ms. Vick believed there were

incriminating discrepancies between the documents she got from

the lab and some of the carbonless copies of prescriptions in

some of the patient c harts. However, the documents obtained

from the lab were excluded from evidence in this case and cannot

support a finding that discrepancies existed. See Preliminary

Statement and Endnote 3 .

23. The Respondent does not dispute that she prescribed

Schw artz appliances, RPEs, and inclined planes for children who

needed to regain a little space lost after baby teeth fell out

and then maintain the lost space for permanent teeth that were

coming in. She denies trying to hide what she was doing by

making dec eptive, untrue or fraudulent representations. The

evidence as a whole supports the RespondentÓs position.

Patient M.B.

24. The chart for M.B. indicates that the Respondent took

upper and lower impressions on June 25, 2009, and wrote a

prescription for a ÐSchwartz to regain space for # A. or space

maintainer with loops.Ñ

25. M.B.Ós chart referred to the appliance as a space

maintainer. There also was an entry on August 21, 2009,

indicating that the patient was instructed to Ðcome back for

adjustmentÑ to alleviate discomfort and one on February 10,

2010, indicating that the appliance was checked and adjusted.

26. There was HMS documentation indicating that the CCHD

billed Medicaid for Ðdiagnostic castsÑ on June 25, 2009.

Patient J.C.

27. The Respond ent took upper and lower impressions and

did a wax bite registration of the teeth of patient J.C. on

May 14, 2009. The chart included two undated prescriptions.

One was for a lower bilateral space maintainer. (The chart

included two copies of this pres cription.) The other was for an

upper and lower Schwartz and included a notation that the upper

Schwartz was to address Ð[r]ight side cross bite.Ñ

28. The patient chart referred to the delivery of a Ðlower

bilateral space maintainer (modified)Ñ on Jul y 9, 2009, but

there also were notes in the chart referring to orthodontic

bands.

29. There were two HMS entries dated July 9, 2009. One

indicated ÐDEN SPACE MAINTAINER - FIXÑ was provided. The other

indicated that a Medicaid bill was initiated.

Patient K .E.

30. The patient K.E. began receiving dental treatment at

the CCHD dental clinic on September 8, 2005.

31. On May 28, 2009, the Respondent signed and stamped

clinical notes made in the patientÓs chart by a dental assistant

for upper and lower impress ions, a bite registration, and

orthodontic bands. Below the RespondentÓs signature is an added

entry by the Respondent stating, Ðnote: B.S. Maintainer (RPE).Ñ

The Respondent also wrote and signed an undated prescription for

an Ðupper RPE.Ñ

32. On Augus t 18, 2009, the Respondent signed and stamped

a dental assistantÓs clinical notes in the patientÓs chart

indicating that a space maintainer was cemented using Fuji brand

permanent cement.

33. On September 30, 2009, the Respondent signed and

stamped a dent al assistantÓs clinical notes in the patientÓs

chart indicating that the patient came to the clinic with a

loose space maintainer that was re - cemented.

34. There was HMS documentation indicating that the CCHD

provided Ðdiagnostic castsÑ for the patient K. E. on May 28,

2009; provided ÐDEN SPACE MAINTAINER - FIXÑ on August 18, 2009;

provided ÐDEN RE - CEMTATION [ sic ] OF SPACEÑ on September 30,

2009; and initiated billing of Medicaid on those dates (but

indicates there was no charge to Medicaid for re - cementing t he

appliance on September 30, 2009.

Patient D.G.

35. The patient D.G. began receiving dental treatment at

the CCHD dental clinic on May 17, 2005.

36. On August 19, 2009, the Respondent signed and stamped

clinical notes made in the patientÓs chart by a dental assistant

indicating: that a bilateral space maintainer was fitted and

delivered to the patient D.G.; that the patientÓs father was

instructed in how the patient should wear, clean, adjust and

clean it; and that the adjustments were to be performed once a

week.

37. On October 7 and December 2, 2009, the Respondent

signed and stamped clinical notes made in the patientÓs chart by

a dental assistant indicating that the patient presented with a

loose space maintainer. On both occasions, the parent was

instructed in how to take care of the appliance.

38. The patient chart for D.G. is missing the carbonless

copy of the prescription for the appliance. There was no

evidence as to why it was missing or what it said.

39. There was HMS documentation indica ting that the CCHD

provided ÐDEN SPACE MAINTAINER - FIXÑ on August 19, 2009; provided

ÐDEN RE - CEMTATION [ sic ] OF SPACEÑ on October 7 and December 2,

2009; and initiated billing of Medicaid on those dates (but

indicates there was no charge to Medicaid for any of those

dates.

Patient M.G.

40. The patient M.G. began receiving dental treatment at

the CCHD dental clinic on November 26, 2008.

41. On April 23, 2009, the Respondent signed and stamped

clinical notes made in the patientÓs chart by a dental assistant

for a diagnostic cast and a bite registration for an inclined

plane. The chart also has the carbonless copy of the

prescription written by the Respondent for an inclined plane.

42. On June 25, 2009, the Respondent signed and stamped

clinical notes mad e in the patientÓs chart by a dental assistant

indicating that a Ðspace maintainer applianceÑ was delivered and

that the family was given instruction on how to use it.

43. On July 2, 2009, the Respondent signed and stamped

clinical notes made in the patie ntÓs chart by a dental assistant

indicating that the patientÓs mother was adjusting the appliance

(identified in the note as an Ðupper RPEÑ) once a week.

44. On August 6, 2009, the Respondent signed and stamped

clinical notes made in the patientÓs chart b y a dental assistant

indicating that the appliance (identified in the note as an

Ðinclined planeÑ) was Ðworking fineÑ and that the appliance was

Ðtrimmed today to improve the bite.Ñ

45. On October 20, 2009, the Respondent signed and stamped

clinical note s made in the patientÓs chart by a dental assistant

indicating that the patientÓs teeth were Ðcorrected of

crossbite.Ñ

46. There was HMS documentation indicating that the CCHD

provided ÐDEN SPACE MAINTAINER - FIXÑ on June 25, 2009, and

initiated billing of Medicaid on that date (but indicates there

was no charge to Medicaid).

Patient M.M.

47. The patient M.M. began receiving dental treatment at

the CCHD dental clinic on April 27, 2004.

48. On March 17, 2009, the Respondent signed and stamped

clinical note s made in the patientÓs chart by a dental assistant

indicating that an existing space maintainer was removed,

impressions were taken and bands, and bite separators were

placed. The patientÓs chart confirms that a space maintainer

was provided for the pati ent about two years earlier, when the

patient was six years old.

49. No copy of a prescription for a new appliance is in

the patientÓs chart.

50. On April 21, 2009, clinical notes were made by a

dental assistant in the patientÓs chart indicating that an

appliance was received from the lab.

51. On May 21, 2009, the Respondent signed and stamped

clinical notes made in the patientÓs chart by a dental assistant

indicating that an upper bilateral space maintainer was cemented

and that the patientÓs mother was explained how to adjust it.

The Respondent struck the words ÐFAN applianceÑ and ÐuseÑ and

wrote the words Ðupper bilateral space maintainerÑ and ÐadjustÑ

(respectively) above the stricken words.

52. There was HMS documentation indicating that the CCHD

p rovided ÐDEN SPACE MAINTAINER - FIXÑ on May 21, 2009, and

initiated billing of Medicaid on that date.

Patient T.N - D.

53. The patient T.N - D. began receiving dental treatment at

the CCHD dental clinic on July 8, 2008.

54. On August 27, 2009, the Respondent signed and stamped

clinical notes made in the patientÓs chart by a dental assistant

indicating that an upper and lower bilateral space maintainer

was modified, fitted, and delivered.

55. On September 2, 2009, the Respondent signed and

stamped clinical no tes made in the patientÓs chart by a dental

assistant indicating that the upper and lower bilateral space

maintainers were modified and adjusted and that the patientÓs

mother was instructed to open the appliance once a week and have

the patient use it when ever not in school. Under the

RespondentÓs signature and stamp was a note in her handwriting:

Ðmodify space maintainer to regain lost space.Ñ

56. There was HMS documentation indicating that the CCHD

provided ÐDEN SPACE MAINTAINER - FIXÑ on August 27, 2009 , and

initiated billing of Medicaid on that date.

Patient P.M.

57. The patient P.M. began receiving dental treatment at

the CCHD dental clinic on August 22, 2002.

58. On July 2, 2009, the Respondent signed and stamped

clinical notes made in the patientÓ s chart by a dental assistant

indicating that upper and lower impressions were taken and bands

were placed. The chart also has a copy of a prescription

written by the Respondent for an upper RPE and a lower space

maintainer.

59. A clinical note signed b y a dental assistant indicated

that the clinic received an appliance for the patient on

August 24, 2009.

60. On October 28, 2009, the Respondent signed and stamped

clinical notes made in the patientÓs chart by a dental assistant

indicating that an upper space maintainer was cemented using

Fuji cement.

61. On February 5, 2010, there are notes in the patientÓs

chart signed by another dentist that seem to indicate that the

patientÓs occlusion was adjusted. There was no testimony to

explain the meaning of this, or other notes made by the dentist

regarding ÐoptibandsÑ and removal of Ðcanes(?).Ñ

62. On February 10, 2010, the Respondent signed and

stamped clinical notes made in the patientÓs chart by a dental

assistant indicating that a lower bilateral space maintainer was

fitted and adjusted with Fuji cement. There also were notes

regarding care for the appliance. One note, written by the

dental assistant, said: ÐAunt was taught how to take care of

appliance, sheÓll be doing it twice a week.Ñ That note w as

stricken and under the RespondentÓs signature was a note in her

handwriting: ÐSpace maintainer needs to only observe for the

properly works [sic].Ñ See Finding 73, infra.

63. There was HMS documentation indicating that the CCHD

provided ÐDEN SPACE M AINTAINER - FIXÑ on October 28, 2009, and

February 10, 2010, and initiated billing of Medicaid on those

dates.

Summary

64. The Petitioner did not prove by clear and convincing

evidence that the Respondent made deceptive, untrue or

fraudulent representatio ns in the charts for these patients.

The charts would suggest that, to the contrary, the Respondent

was not disguising the nature of her care and treatment of these

patients (or was doing a poor job of it if she was trying to).

The documentary evidence u sed to support the charges generally

was unclear, confusing, and not well explained.

65. The Respondent may have been insubordinate in

providing pre - orthodontic care and treatment to patients against

the instructions of her supervisor, which may have been ground s

to terminate her employment, and the clinical notes in the

patient charts may have been subject to criticism for being less

than clear and completeness, but those were not the charges

against the Respondent in this case, and no such charges were

t ried or proven in this case.

Count II

Improper Delegation

66. Count II alleges that the Respondent delegated tasks

to her dental assistant, Paul Beingolea, that he was not

qualified to do.

Patient F.C.

67. On January 15, 2010, the Respondent signed a nd stamped

a clinical note made in the chart of the patient F.C. It

appears that some of the notes were made by a dental assistant

named Irma Pineros and indicated that the patient received an

examination and Ðprophy (Hygienist).Ñ

68. It appears that so meone else wrote some of the notes

in F.C.Ós chart for that day, including notes saying Ðsoft

tissue inflamed,Ñ Ðcalculus present,Ñ Ðlocalized gingivitis,Ñ

and Ðhand scaling.Ñ From the handwriting, it appears that the

Respondent may have written some, if not all of the notes that

do not appear to be written by Irma Pineros. However, there was

no testimony from her, the Respondent, or anyone else as to who

wrote what part of the notes.

69. Another dentist at the clinic named Laurie Housworth

testified th at she saw the Respondent examine the patient F.C.

on January 15, 2010, and call in a dental assistant, named Paul

Beingolea, who performed work on the patient for another 30

minutes or so. However, Dr. Housworth testified that she could

not see exactly w hat Mr. Beingolea was doing at the time, and

she did not observe the patient continuously for the full 30

minutes. It is possible that the Respondent returned to the

examination room unbeknownst to Dr. Housworth.

70. Dr. Housworth later pulled the chart to review the

clinical notes and interpreted the chart to be indicating that

hand - scaling was performed by a hygienist. Since there was no

hygienist available at the clinic on that day, she believed the

work was done by Mr. Beingolea.

71. The Respondent and Mr. Beingolea denied that he

performed hand - scaling on the patient F.C. on January 15, 2010.

The Respondent testified that she never instructed a dental

assistant to perform hand - scaling.

72. Dr. Housworth did not confront the Respondent or

either de ntal assistant at the time with her suspicion that

hand - scaling was performed by Paul Beingolea. Nor did she

report any improprieties to Ms. Vick at the time. During the

investigation of the Respondent by Ms. Vick, Dr. Housworth

related to her the incide nt concerning the patient F.C. on

January 15, 2010.

Patient P.M.

73. On February 10, 2010, Dr. Housworth came to work early

and observed Mr. Beingolea seating patient P.M. while the

Respondent was working in another room with a different patient.

Dr. Ho usworth testified that she saw that Mr. Beingolea had Fuji

permanent cement and looked to her like he was placing something

in the patientÓs mouth. After that, she saw Mr. Beingolea

release the patient. Later, she checked the chart and saw that

Mr. Being olea had made a clinical note saying: ÐLower bi -

lateral space maintainer fitted, and adjusted with fuji L.Ñ He

had then written: ÐAunt was taught how to take care of

appliance, sheÓll be doing it twice a week (unreadable). Follow

up 2 weeks.Ñ The seco nd part of the note was stricken, and it

appears that the Respondent wrote: ÐSpace maintainer needs to

only observe for the properly works [sic].Ñ Mr. BeingoleaÓs

signature appears after the first two entries; the RespondentÓs

stamp and signature appears under the amendment to the notes.

74. From what she had observed and these entries in the

patient chart, Dr. Housworth believed that Mr. Beingolea was

cementing a space maintainer in the patientÓs mouth.

75. Mr. Beingolea and the Respondent denied tha t he

cemented the space maintainer. He testified that he placed the

cement in the bands for the Respondent, she placed the space

maintainer in the patientÓs mouth and left, and he removed

excess cem e nt from the space maintainer. The Respondent

testified that she never instructed a dental assistant to

perform cement space maintainers or any appliances in a

patientÓs mouth using permanent cement.

76. Dr. Housworth did not confront the Respondent or

Mr. Beingolea at the time with her suspicion that Mr. Bei ngolea

cemented a space maintainer in P.M.Ós mouth using permanent

cement. Instead, she reported it to Ms. Vick because she

thought it was relevant to Ms. VickÓs investigation of the

Respondent and Mr. Beingolea.

Summary

77. The Petitioner did not prove by clear and convincing

evidence that the Respondent delegated to Mr. Beingolea the

tasks of hand - scaling F.C.Ós teeth or cementing a space

maintainer in P.M.Ós mouth using permanent cement.

CONCLUSIONS OF LAW

78. The Department of Health, Board of Deni stry , regulates

the dental professions in Florida.

79. The Amended Administrative Complaint in this case

charges the Respondent with: making deceptive, untrue, or

fraudulent representations in or related to the practice of

dentistry in violation of secti on 466.028(1)(l), Florida

Statutes (2009), by falsely characterizing ÐactiveÑ orthodontic

appliances as ÐpassiveÑ space maintainers (Count I); and

delegating irremediable tasks (hand - scaling and permanently

cementing a dental appliance) to a dental assista nt not

qualified to perform those tasks, in violation of sections

466.028(1)(z) and 466.024(1), and Florida Administrative Code

C hapter 64B5 - 16 (Count II).

80. Disciplinary proceedings are considered to be penal in

nature. In prosecuting a disciplinary action, the prosecutor is

limited to proving the allegations and charges pled in the

administrative complaint. Cf. Trevisani v. Dep't of Health , 908

So. 2d 1108 (Fla. 1st DCA 2005); Aldrete v. Dep't of Health, Bd.

of Med. , 879 So. 2d 1244 (Fla. 1st DCA 2 004); Ghani v. Dep't of

Health , 714 So. 2d 1113 (Fla. 1st DCA 1998); Willner v. Dep't of

Prof'l Reg., Bd. of Med. , 563 So. 2d 805 (Fla. 1st DCA 1990).

81. In a penal proceeding, the prosecutor must prove the

allegations and charges by clear and convinc ing evidence. See

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

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

82. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'b eyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme

Court, the standard:

[E]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memorie s of the witnesses must

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (citing with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous." Westinghouse Elec. Corp . v. Shuler Bros. , 590 So.

2d 986, 989 (Fla. 1991).

83. Using these standards, the charges in the Amended

Administrative Complaint against the Respondent were not proven

by clear and convincing evidence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Health, Board

of Dentistry , enter a final order dismissing the charges against

the Respondent.

DONE AND ENTERED this 24th day of May , 2016 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative H earings

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 24th day of May , 2016 .

ENDNOTE S

1/ The statutes alleged to have been violated are in the 2009

Florida Statutes. The rules are those in effect at the times of

the alleged violations in 20 09 and 2010.

2/ Citations the Administrative Procedure Act are to the 2015

version of the Florida Statutes, which was in effect at the time

of the final hearing.

3/ Even if the objections were overruled and the exhibits

admitted in evidence, they would be hearsay, which may be used

for the purpose of supplementing or explaining other evidence,

but would not be sufficient, alone, to support a finding unless

they would be admissible over objection in a civil action.

§ 120.57(1)(c), Fla. Stat. The proff ered hearsay exception was

the business record exception under section 90.803(6), but the

requirements for that hearsay exception were not met.

COPIES FURNISHED:

Bridget Kelly McDonnell, Esquire

Florida Department of Health

Bin C - 65

4052 Bald Cypress Wa y

Tallahassee, Florida 32399

(eServed)

Candace A. Rochester, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Sean Michael Ellsworth, Esquire

Ellsworth Law Firm, P.A.

Suite 601

420 Lincoln Road

Miami Beac h, Florida 33139

(eServed)

Jennifer Wenhold, Executive Director

Board of Den tistry

Department of Health

Bin C - 08

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3258

(eServed)

Nichole C. Geary, General Counsel

Department of Health

Bin A - 0 2

4052 Ba ld Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 sh ould be filed with the agency that

will issue the Final Order in this case.