PDF copy: ALJDEC decisions subject to certification as final

15F-201400004-DEN · Board of Dental Examiners · 2015-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of: No. 15F-[number redacted]-DEN No. 15F-[number redacted]-DEN Rosalyn D. Keith, D.D.S. ADMINISTRATIVE Holder of License No. D 4190 LAW JUDGE DECISION For the Practice of Dentistry In the State of Arizona.

HEARING: July 21, 2014, with the record held open until August 4, 2014 APPEARANCES: Rosalyn D. Keith, D.D.S. appeared on her own behalf. The Arizona State Board of Dental Examiners was represented by Assistant Attorney General Mary DeLaat Williams. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________

FINDINGS OF FACT

1. The Arizona Board of Dental Examiners (“Board”) has authority to

regulate and control the practice of dentistry in the State of Arizona. The Board is

charged with enforcing the provisions of the Dental Practice Act, A.R.S. § 32-1201 et

seq.

2. Rosalyn D. Keith, D.M.D. (“Respondent”) holds Dental License No. D

4190 issued by the Board.

3. On October 14, 2009, the Board issued a Board Order in Case No. 09F-

270098-DEN in which the Board revoked Respondent’s dental license. The revocation

was stayed for a period of five years during which time Respondent was on disciplinary

probation. Exhibit 1.

4. On November 1, 2013, Respondent entered into a Disciplinary Consent Agreement and Order (“First Consent Agreement”) in Case No. [number redacted]. According to its terms, Respondent was required to pay restitution of $10,847.00 to a patient within 30 days of the effective date of the First Consent Agreement. Respondent was to submit the restitution payment to the Board via certified funds. Respondent was also

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 required to complete four hours of continuing dental education in the area of ethics within six months of the effective date of the First Consent Agreement. Exhibit 2. 5. On November 27, 2013, Respondent sent a letter to the Board

referencing a car accident she had experienced on November 8, 2012. Respondent

stated she was unable to work for periods of time due to severe pain since the

accident. Respondent indicated she had not been able to work full-time since October

2013 and had been working “only 4-6 hours a week at this time.” Respondent

requested an extension of the deadline to the end of February 2014 to pay the

restitution ordered in the First Consent Agreement. Exhibit 4.

6. On December 3, 2013, Elaine Hugunin, the Board’s Executive Director,

sent Respondent an email advising her that the requested extension would not be

granted and that if Respondent did not pay the restitution in full by December 6, 2013,

she would be in non-compliance with the First Consent Agreement. Exhibit 5.

7. Respondent did not pay the restitution in full by December 6, 2013.

8. On December 11, 2013, the Board opened an investigation against

Respondent based on her failure to comply with the First Consent Agreement. Exhibit

6. 9. On December 5, 2013, Respondent entered into a Disciplinary Consent Agreement and Order (“Second Consent Agreement”) in Case No. 290363. According to its terms, Respondent was required to pay restitution of $4000.00 to a second patient within 30 days of the effective date of the Second Consent Agreement. Respondent was to submit the restitution payment to the Board via certified funds. Respondent was also required to complete four hours of continuing dental education in the area of risk management within six months of the effective date of the Second Consent Agreement. Respondent was further required to pay an administrative penalty of $2000.00 to the Board via certified funds. Exhibit 7. 10. On January 22, 2014, the Board opened an investigation against Respondent based on her failure to comply with the Second Consent Agreement. Exhibit 9.

11. On February 9, 2014, Respondent sent a letter to the Board with a payment for $2150.00 in payment for the Second Consent Agreement. Respondent detailed that due to an oversight three years earlier, the second patient was entitled to

collect $850.00 from the State of Arizona for unclaimed property. Respondent

acknowledged she still owed the patient $1000.00 in restitution and the Board

$2000.00 in administrative penalties. Respondent indicated she hoped to have the

entire amount paid by the end of February. Exhibit 8.

12. On June 16, 2014, the Board issued a Complaint and Notice of Hearing to

Respondent alleging Respondent had engaged in unprofessional conduct pursuant to

A.R.S. § 32-1201(21)(v).

13. A hearing was held at the Office of Administrative Hearings on July 21,

2014.

14. Respondent testified that at the time she entered into the First Consent

Agreement, she had saved approximately $7000.00 toward the restitution that she

knew she owed. Respondent stated that during the month of November 2013, she was

forced to reduce her work hours due to her medical condition and that she had to

access some of the funds she had saved to meet her living expenses. Respondent testified that in addition to her recovery from the November 2012 car accident, she had new medical issues that resulted in a diagnosis of multiple sclerosis. 15. Respondent acknowledged she had not complied with the terms of the First Consent Agreement when she entered into the Second Consent Agreement. Respondent indicated she signed the Second Consent Agreement on the advice of her attorney who told her to focus on complying with the Second Consent Agreement because she had already failed to comply with the First Consent Agreement. Respondent testified that she had completed the continuing dental education required under the Second Consent Agreement, but had failed to provide the Board with documentation establishing her compliance. 16. Respondent’s testimony was inconsistent as to when her hours changed from part-time, to full-time, and back to part-time following the November 2012 car accident. 17. Ms. Hugunin testified that communication was an issue with Respondent as numerous mailings were returned to the Board. Ms. Hugunin also stated that Respondent did not mention any financial difficulties at the time she entered into the

First Consent Agreement.

18. Respondent has a long history of discipline with the Board including

failure to respond to Board orders and subpoenas.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent and the subject matter in this

case.

2. Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the

Board has the burden of proof in this matter. The standard of proof is by a

preponderance of the evidence. A.A.C. R2-19-119(A).

3. “A preponderance of the evidence is such proof as convinces the trier of

fact that the contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1120 (8th ed. 2004). 4. A.R.S. § 32-1201(21)(v) defines unprofessional conduct to include, “[f]ailing to comply with a final board order, including an order of censure or probation.” 5. Respondent’s admitted failure to fully comply with the terms of the First Consent Agreement and Second Consent Agreement constitutes repeated instances of unprofessional conduct as defined by A.R.S. § 32-1201(21)(v). Such conduct is grounds for discipline under A.R.S. § 32-1263(A)(1).1 6. A.R.S. § 32-1263.01 provides as follows: A. The board may take any one or a combination of the following disciplinary actions against any person licensed under this chapter: 1. Revocation of license to practice. A.R.S. § 32-1263 provides as follows: A. The board may invoke disciplinary action against any person licensed under this chapter for any of the following reasons: 1. Unprofessional conduct, as defined in section 32-1201. 2. Suspension of license to practice. 3. Entering a decree of censure, which may require that restitution be made to an aggrieved party. 4. Issuance of an order fixing a period and terms of probation best adapted to protect the public health and safety and to rehabilitate the licensed person. The order fixing a period and terms of probation may require that restitution be made to the aggrieved party. 5. Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter. 6. Imposition of a requirement for restitution of fees to the aggrieved party. 7. Imposition of restrictions on the scope of practice. 8. Imposition of peer review and professional education requirements. 9. Imposition of community service. 7. The Administrative Law Judge finds it significant that Respondent entered into the Second Consent Agreement knowing that she had not and could not comply with the terms of the First Consent Agreement. Further, as of the time of the hearing, more than eight months after she entered into the First Consent Agreement, Respondent had not complied with any of the terms of either consent agreement. While Respondent testified she had completed the continuing dental education required under the Second Consent Agreement, she did not provide any documentation to establish such compliance. 8. Respondent’s ongoing disciplinary issues with the Board and her failure to comply with any of the terms of the consent agreements at issue in this case establish that Respondent is not regulatable at this time. RECOMMENDED ORDER Respondent’s License No. D 4190 shall be revoked on the effective date of the Order entered by the Board. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, August 25, 2014.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to: Elaine Hugunin, Executive Director Board of Dental Examiners