B : Agency Clerk

Final Order No. DOH- 12-2572,- -MA FILED DATE - I 2 - 3 • 1a

Department of Health

STATE OF FLORIDA BOARD OF DENTISTRY

DEPARTMENT OF HEALTH, Petitioner,

VS. Case No.: 2011-15833 License No.: DN 5966

ROY BARKOE, DDS Respondent.

FINAL ORDER COUNTER SETTLEMENT AGREEMENT

This matter appeared before the Board of Dentistry at a duly-noticed public meeting on

November 16, 2012, in Tampa, Florida, pursuant to Sections 120.569 and 120.57(4), Florida

Statutes for consideration of a Settlement Agreement (attached hereto as Exhibit "A"). Petitioner

was represented by Adrienne Rodgers, Assistant General Counsel. Respondent was present and

was represented by Edwin Bayo, Esquire. Upon consideration of the Settlement Agreement, the

documents submitted in support thereof, the arguments of the parties and otherwise being

advised, the Board rejected the settlement agreement and offered a counter settlement agreement

that incorporates the terms of the original settlement agreement with the following amendment:

1) Respondent shall complete a Level I Ethics course (3 semester hours) at an

accredited college or university within 12 months of entry of this Final Order;

2) Respondent shall complete a Level I Risk Management course (3 hours of

continuing education) at or through an accredited college of dentistry or through a

board approved course provider within 12 months of entry of this Final Order.

The counter settlement agreement was accepted by the Respondent on the record at the

board meeting.

WHEREFORE, it is hereby ORDERED AND ADJUDGED that the Counter

Settlement Agreement be and is hereby approved and adopted in toto and incorporated by

reference herein. Accordingly, the parties shall adhere to and abide by all the terms and

conditions of the Agreement. Costs are assessed in the amount of $2,000. This Final Order shall

take effect upon being filed with the Clerk of the Department of Health.

DONE AND ORDERED this 7 day of DECEMBER , 2012.

BOARD OF DENTISTRY

Sue Foster Executive Director on behalf of Wade Winker, DDS, CHAIR

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by electronic mail to Roy Barkoe, DDS c/o Edwin Bay() Esquire, e.bavogfblawfirm.com; David D. Flynn, Assistant Attorney General, david.flynn(&,mvfloridalegal.com; and Adrienne Rodgers, Assistant General Counsel, Depaiimannt of Health, Adrienne Rod2ers(aidoh.state.fl.us this nIThay of December , 2012.

a)4tdtth

Deputy Agency Clerk

STATE OF FLORIDA DEPARTMENT OF HEALTH

BOARD OF DENTISTRY

DEPARTMENT OF HEALTH,

Petitioner,

vs. CASE NO. 2011-15833

ROY BARKOE, DDS,

Respondent.

SETTLEMENT AGREEMENT

Pursuant to Section 120.57(4), Florida Statutes, the above named

parties hereby offer this Settlement Agreement to the Board of Dentistry as

disposition of the Administrative Complaint, attached hereto as Exhibit Al in

lieu of any other administrative proceedings. The terms herein become

effective only if and when a Final Order accepting the Settlement

Agreement is issued by the Board and filed. In considering this Settlement

Agreement, the Board may review all investigative materials regarding this

case. If this Settlement Agreement is rejected, it, and its presentation to

the Board, shall not be used against either party.

Page 1 of 10

Initial

STIPULATED FACTS

1. For all times pertinent herein, Respondent was a licensed

DENTIST in the State of Florida, having been issued license number DN

5966. Respondent's last known address is 7491 North Federal Highway,

Boca Raton, Florida 33487.

2. The Respondent was charged in a two-count Administrative

Complaint filed by the Board of Dentistry and was properly served upon

Respondent with violations of Chapters 456 and/or 466, Florida Statutes. A

true and correct copy of the Administrative Complaint is attached hereto

and incorporated by reference as Exhibit A.

3. Respondent admits the factual allegations contained in the

Complaint for the purposes of settlement in these administrative

proceedings only.

STIPULATED LAW

1. Respondent admits that he is subject to the provisions of

Chapters 456 and 466, Florida Statutes, and the jurisdiction of the Board

and the Department of Health.

2. Respondent admits that the stipulated facts, if proven true,

constitute violations of laws. Page 2 of 10

Initial

prosecution of this matter. Actual costs will be determined at the Page 3 of 10

3. Respondent admits that the stipulated disposition in this case is

fair, appropriate, and acceptable to Respondent.

PROPOSED DISPOSITION

1. The Respondent shall be present when this Settlement

Agreement is presented to the Board, and under oath shall answer questions

by the Board concerning this case and the disposition thereof.

2. Respondent's license shall receive a Letter of Concern from the

Board of Dentistry.

3. The Board of Dentistry shall impose an administrative fine of

seven thousand ($6,750) dollars against the Respondent's license, to be

paid by the Respondent to the Executive Director of the Board of Dentistry,

within eighteen (18) months of filing of the Final Order accepting this

Settlement Agreement. All fines shall be paid by cashiers check or

money order. Please remit payment to: Department of Health, Division of

MQA, Compliance Management Unit, Post Office Box 6320, Tallahassee,

Florida 32314-6320.

4. Pursuant to Section 456.072(4), Florida Statutes,

Respondent shall pay all actual costs associated with the investigation and

his

Initial

Settlement Agreement is presented to the Board, but shall not exceed

$2,000 if this Agreement is accepted by Respondent no later than

August 24, 2012. Respondent shall pay all costs by either check or

money order made payable to the Board of Dentistry within eighteen (18)

months of the filing of the Final Order issued in this matter. Respondent

shall send payment(s) to the address provided in paragraph three (3)

above pertaining to the payment of fines.

5. Within twelve (12) months of the filing of the Board's Final

Order in this cause, the Respondent shall successfully complete continuing

education courses as they relate to the practice of dentistry within the

State of Florida as follows: Level I (3 to 6 hours) with verified

competency achieved in record keeping to be taken at or through

an accredited college of dentistry or Board-approved course

provider whose course is specifically approved to satisfy the final

order; Level I (3 hours) with verified competency achieved in

Periodontics to be taken in person at or through an accredited

college of dentistry; Level I (3 to 6 hours) with verified

competency achieved in Crown & Bridge to be taken in person at

or through an accredited college of dentistry; Level I (3 to 6

Page 4 of 10

hours) with verified competency achieved in Diagnosis &

Treatment Planning to be taken in person at or through an

accredited college of dentistry. Within thirty (30) days of completion

of each course, the Respondent shall submit proof of course content and

successful completion to Department of Health, Compliance Management

Unit, 4052 Bald Cypress Way, Bin C-76, Tallahassee, Florida 32399-3251,

Attention: Dental Compliance Officer. These continuing education courses

are in ADDITION to those continuing education credits normally required

for renewal of the Respondent's license. Home study courses WILL NOT

be accepted to satisfy this condition unless specifically authorized by the

Board of Dentistry.

6. Respondent shall refund the patient in the amount of the

"out-of-pocket" fees and costs for the treatment involved in the

Administrative Complaint that the Respondent provided. Respondent shall

refund third-party insurance company, if applicable, in the amount of any

fees paid on behalf of the patient for the treatment that the Respondent

provided in this cause. Proof of payment must be made available to the

Department's prosecuting attorney prior to presenting before the Board.

Page 5 of 10

Initial

7. The Respondent's continuing education courses may be audited

for the next biennium.

8. Respondent shall pass the Laws & Rules Examination

governing the practice of dentistry in the State of Florida within twelve

(12) months of the filing of the Final Order.

9. It is expressly understood that violation of the terms of the Final

Order as set forth in the Proposed Disposition above will result in an Informal

Hearing.

10. Respondent shall not in the future violate Chapter 456 and 466,

Florida Statutes, the rules promulgated pursuant thereto, or any other

state or federal law, rule, or regulation relating to the practice or to the

ability to practice dentistry.

11. It is expressly understood that a violation of the terms of this

Settlement Agreement shall be considered a violation of a Final Order of

the Board of Dentistry, for which disciplinary action may be initiated

pursuant to Chapter 456 or 466, Florida Statutes.

12. It is expressly understood that this Settlement Agreement is

subject to approval of the Board and has no force or effect until an Order is

entered adopting the Settlement Agreement. Page 6 of 10

13. This Settlement Agreement is executed by the Respondent for

the purpose of avoiding further administrative action by the Board of

Dentistry regarding the acts or omissions specifically set forth in the

complaint. In this regard, Respondent authorizes the Board to review and

examine all investigative file materials concerning the Respondent prior to

or in conjunction with consideration of the Settlement Agreement.

Respondent agrees to support this Settlement Agreement at the time it is

presented to the Board, and shall offer no evidence, testimony, or

argument that disputes or contravenes any stipulated fact or conclusion of

law. Furthermore, should this Settlement Agreement not be accepted by

the Board, it is agreed that the presentation and consideration of this

Settlement Agreement and other documents and matters by the Board

shall not unfairly or illegally prejudice the Board or any of its members

from further participation, consideration or resolution of these proceedings.

14. The Respondent and the Department fully understand that this

Settlement Agreement and subsequent Final Order incorporating same, will

in no way preclude additional proceedings by the Department or Board

against the Respondent for acts or omissions which are not the subject of

the Complaint, attached hereto as Exhibit A, issued in this cauMhis Page 7 of 10

ni al

Settlement Agreement relates solely to the current disciplinary proceedings

arising from the aforementioned complaint and does not preclude further

action by other divisions, departments, and/or sections of the Department

of Health or the Agency for Health Care Administration's Medicaid Program

Integrity Office.

15. The Respondent waives the right to seek attorney's fees and/or

costs from the Board or Department of Health in connection with this

disciplinary proceeding.

16. Upon the Board's adoption of this Agreement, Respondent

expressly waives all further procedural steps, and expressly waives all rights

to seek judicial review of or otherwise challenge or contest the validity of the

Agreement and the Final Order of the Board incorporating said Agreement.

WHEREFORE, the parties hereby request the Board to enter a Final

Order accepting and implementing the terms contained herein.

SIGNED this ..3` day of A%xn--k , 2012.

ROY ARKOE, DDS CAS NO. 2011-15833

46:46111? I itial

Page 8 of 10

Before me personally appeared C<c..\c6.0.\Ae_

whose identity is known to me by (type of

identification), and who, under oath, acknowledges that his/her signature

appears above.

Sworn to and subscribed by Respondent before me this 43"- day of

t..A- (Y- 2012.

/7 N a ublic

My Commission Expires: ..... ,,,,,

AO" t l -= JEFFREY J. GALVAN 3,*: :4 MY COMMISSION # EE 172642

EXPIRES: Februaly A 3, 2016 v Bonded Tin Notary 2

Pubic Uncierwnters

Page 9 of 10

Initial

APPROVED this day of 0 (---4-°6 -̀-(-- 2012.

John H. Armstrong, MD State Surgeon General

By: Ge ge Black Assistant General Counsel Prosecution Services Unit Department of Health

COUNSEL FOR PETITIONER:

George Black Assistant General Counsel Florida Bar # 0061639 Department of Health Division of MQA Prosecution Services Unit 4052 Bald Cypress Way Bin C-65 Tallahassee, Florida 32399-3265 Phone 850.245.4640 Fax 850.245.4683

GB/cm

Date: 5-8-2012

(Modified 8-23-2012)

ROY BARKOE, DDS 2011-15833

Page 10 of 10

Initial

STATE OF FLORIDA BOARD OF DENTISTRY

DEPARTMENT OF HEALTH,

PETITIONER,

v. CASE NO.: 2011-15833

ROY BARKOE, D.D.S.,

RESPONDENT. /

ADMINISTRATIVE COMPLAINT

COMES NOW Petitioner, Department of Health, by and through its

undersigned counsel, and files this Administrative Complaint before the

Board of Dentistry against Respondent, ROY BARKOE, D.D.S., and in

support thereof alleges:

1. Petitioner is the state department charged with regulating the

practice of dentistry pursuant to Section 20.43, Florida Statutes; Chapter

456, Florida Statutes; and Chapter 466, Florida Statutes.

2. At all times material to this Complaint, Respondent was a

licensed dentist within the State of Florida, having been issued license

number DN 5966.

3. Respondent's address of record is 7491 North Federal Highway,

Boca Raton, Florida, 33487.

4. From on or about April 14, 2008, through on or about September

19, 2011, the Respondent provided dental care to Patient F.D.

5. On or about April 14, 2008, Patient F.D. first presented to the

Respondent according to a letter from the Respondent. The Respondent

states that he performed a dental prophylaxis and examination on this

date. The records provided to the Department of Health by the

Respondent do not have any treatment records for this date. The records

provided by Patient F.D. do not have any treatment records for this date.

6. The Respondent did not inquire regarding and/or record a

medical and dental history at any point during his treatment of Patient F.D.

The dental charts provided in the treatment records are not completed.

The Respondent did not perform/record a charting of the condition of the

hard tissues, including teeth, restorations, missing teeth, and/or decay.

The Respondent did not perform/record a periodontal charting, including,

but not limited to periodontal probings. The Respondent did not record a

soft tissue examination, including but not limited to an oral cancer

screening.

7. The minimum standards of performance in diagnosis and

treatment when measured against generally prevailing peer performance

require that when receiving a new patient, a dentist performs a "new

- 2 -

patient" examination. A "new patient" examination should include, at a

minimum, taking of a health history, a charting of the existing teeth and

restorations, a periodontal charting, and an examination of the soft tissues,

including, but not limited to an oral cancer screening.

8. The insurance paperwork for Patient F.D. had a "D0150"

comprehensive oral examination listed on November 6, 2008. November 7,

2008, appears to be the earliest entry in the treatment records for Patient

F.D. There is no record of a new patient exam or appropriate charting in

the treatment records at this time.

9. On or about April 23, 2009, Patient F.D. is noted to have a poor

periodontal condition. Again, no record of a full periodontal examination

exists.

10. On or about July 14, 2009, Patient F.D. presents again to the

Respondent. A bridge from tooth number 27-31 is treatment planned with

only two abutments, and according to the treatment record Patient F.D. is

told that it is "risky" and that Patient F.D. is "willing to take the risk."

11. The Respondent's statement that the placement of the bridge

at 27-31 is risky indicates that the Respondent was aware of, but chose to

ignore "Ante's law." 'Ante's Law' states that "the pericemental surface area

of the abutment teeth to be used for a fixed partial denture must be equal

- 3 -

to or exceed the pericemental surface area of the teeth being replaced."

Significantly lower success rates can be expected if Ante's Law is not taken

into consideration. Respondent proposed a bridge that supports three

pontics on two abutments. One of the abutments was a cuspid, generally

smaller than the posterior teeth it was meant to support. Generally, the

greater the violation of Ante's Law, the greater the likelihood for failure.

The bridge placed by the Respondent was doomed to failure and the

Respondent should have refused to do bridgework that would inevitably

and prematurely fail. A Respondent cannot perform care below the

minimum standards simply by having a patient "accept the risk," and there

is no indication in the record of to what degree Patient F.D. was made

aware of this risk.

12. The Respondent did not perform/record a periodontal

evaluation sufficient to insure that the proposed bridgework had a proper

foundation.

13. The minimum standard of care for bridgework includes a

periodontal evaluation of the planned abutments, including, but not limited

to, measurement of mobility, attached gingival, and pocket depths along

with evaluation of bone support displayed in radiographs. Periodontal care

should be addressed before the placement of bridgework, to insure that

the bridge has a proper foundation.

14. From on or about July 17, 2009, until on or about November

11, 2009, Patient F.D. had the bridge from tooth number 27-31 placed.

15. On or about January 29, 2010, Patient F.D. received periodontal

maintenance from the office of the Respondent. His periodontium was

noted to be average to poor. The Respondent did not perform/record a full

periodontal examination.

16. On or about May 7, 2010, Patient F.D. received a periodontal

prophylactic treatment. The Respondent did not perform/record a full

periodontal examination. At this visit the bridge at tooth numbers 27-31

came loose.

17. On or about December 20, 2011, Patient F.D. requested his

money back from the Respondent.

18. At no point in the patient record did the Respondent document

the type or amount of anesthetic used, despite performing an extraction

and bridge preparations.

19. The Respondent did not maintain in the treatment record any

of the laboratory authorization forms and invoices.

20. The Respondent's radiographs for Patient F.D. are insufficient to

properly check for decay, broken or missing teeth, abscesses, suspicious

growths, extra or impacted teeth, and the health of the bony supports of

the existing teeth.

COUNT I: DEFICIENT RECORDKEEPING

21. Petitioner re-alleges the allegations contained in paragraphs one

(1) through twenty (20) as if fully incorporated herein.

22. Section 466.028(1)(m), Florida Statutes (2008-2011), provides

that failing to keep written dental records and medical history records

justifying the course of treatment of the patient including, but not limited

to, patient histories, examination results, test results, and X rays, if taken,

constitutes grounds for disciplinary action by the Board of Dentistry.

23. Rule 64B5-17.002(b), Florida Administrative Code, provides that

for the purpose of implementing the provisions of Section 466.028(1)(m),

Florida Statutes, a dentist shall maintain written records on each patient

which written records shall contain the results of clinical examination of the

patient and tests conducted, including the identification, or lack thereof, of

any oral pathology or diseases, radiographs used for the diagnosis or

treatment of the patient, treatment plan proposed by the dentist, and

treatment rendered to the patient.

-6-

24. Respondent failed to keep written dental records and medical

history records, properly justifying the course of treatment or the results of

treatment of Patient F.D. in one or more of the following ways:

a) The Respondent did not document or update a

medical/dental history of Patient F.D.;

b) The Respondent failed to document an examination of the

hard tissues on one or more occasions on which it was

necessary and/or the Respondent has indicated a

comprehensive oral examination occurred;

c) The Respondent failed to document a periodontal

examination performed on one or more occasions on

which it was necessary and/or the Respondent has

indicated a comprehensive oral examination occurred.

Said exam would include, but not be limited to, the health

of the gingival, tooth mobility and/or detailed periodontal

pocket depth charting;

d) The Respondent has failed to document an examination

of the soft tissues, including, but not limited to an oral

cancer screening on one or more occasions when it was

necessary;

- 7 -

e) The Respondent failed to document a full periodontal

charting for Patient F.D. during his time of treatment;

f) The Respondent failed to document a periodontal

examination sufficient to justify his course of fixed

bridgework;

g) The Respondent failed to document the amount and/or

type of anesthetic used on one or more occasions during

his course of treatment;

h) The Respondent failed to make a record of the April 14,

2008, appointment that Respondent has stated occurred;

i) The Respondent failed to maintain in the treatment

record one or more of the laboratory authorization forms

and Invoices; and/or,

j) The Respondent failed to take and/or maintain adequate

diagnostic comprehensive radiographs necessary to justify

the course of treatment.

25. Based on the foregoing, Respondent has violated Section

466.028(1)(m), Florida Statutes (2008-2011), by failing to keep written

dental records and medical history records justifying the course of

treatment of Patient F.D.

-8-

COUNT II: STANDARD OF CARE

26. Petitioner re-alleges the allegations contained in paragraphs one

(1) through twenty (20) as If fully incorporated herein.

27. Section 466.028(1)(x), Florida Statutes (2008-2011), states that

u[b]eing guilty of incompetence or negligence by failing to meet the

minimum standards of performance in diagnosis and treatment when

measured against generally prevailing peer performance, including, but not

limited to, the undertaking of diagnosis and treatment for which the dentist

is not qualified by training or experience or being guilty of dental

malpractice[,]" shall constitute grounds for disciplinary action by the Board

of Dentistry.

28. The Respondent was negligent and failed to meet minimum

standards of dental performance in diagnosing and treating Patient F.D. in

one or more of the following ways:

a) The Respondent created a bridge at teeth sites 27-31 that

did not have sufficient support and compromised teeth

numbers 27 and 31 for a bridge that had an unacceptable

probability of failure;

b) The Respondent failed to take a medical/dental history

before and/or during his treatment of Patient F.D. in order

-9-

to prevent adverse incidents resulting from drug

interactions and/or other treatment complications;

c) The Respondent failed to perform an examination of the

hard tissues on one or more occasions on which it was

necessary;

d) The Respondent failed to perform a periodontal

examination on one or more occasions on which it was

necessary. Said exam would include, but not be limited

to, the health of the gingival, tooth mobility and/or

detailed periodontal pocket depth charting;

e) The Respondent failed to perform an examination of the

soft tissues, including, but not limited to an oral cancer

screening;

f) The Respondent provided insufficient periodontal care for

Patient F.D., particularly in light of the bridgework

placements performed, including, but not limited to, a

failure to perform a complete periodontal charting;

and/or,

g) The Respondent failed to take adequate diagnostic

comprehensive radiographs necessary to properly

-10-

diagnose, treatment plan and/or perform the necessary

treatments.

29. Based on the foregoing, the Respondent has violated Section

466.028(1)(x), Florida Statutes (2008-2011), by being guilty of

incompetence or negligence by failing to meet the minimum standards of

performance in diagnosis and treatment when measured against generally

prevailing peer performance, including, but not limited to, the undertaking of

diagnosis and treatment for which the dentist is not qualified by training or

experience or being guilty of dental malpractice.

WHEREFORE, Petitioner respectfully requests that the Board of

Dentistry enter an order imposing one or more of the following penalties:

permanent revocation or suspension of Respondent's license, restriction of

practice, imposition of an administrative fine, issuance of a reprimand,

placement of Respondent on probation, corrective action, refund of fees

billed or collected, remedial education and/or any other relief that the

Board deems appropriate.

SIGNED this 74-kDay of May, 2012.

STEVEN L. HARRIS, M.D., M.Sc. Interim State Surgeon General Florida Department of Health

JENNIFER A. TSCHE1TER Interim General Counsel Florida Department of Health

KARIN BYRNE Attorney Supervisor Prosecution Services Unit

FILED DEPARTMENT OF HEALTH

DEPUTY CLERK CLERK Angel Sanders DATE MAY 0 8 2012

PCP: 05-0412

Georg B ck Assistant eneral Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Florida Bar # 0061639 850.245.4640 850.245.4683 FAX

PCP Members: J.T.M. & C.M.

DOH tr. Roy Barko4 DDS Case # 2011-15833