SOAH DOCKET NO. 504-15-0513 SBDE NOS. 2012-00291; 2012-01008; 2012-01011; 2012-01017; 2012-01019; and

2012-01034

TEXAS STATE BOARD of § DENTAL EXAMINERS, § BEFORE THE STATE OFFICE Petitioner § § v. § OF § JOSHUA E. FOREMAN, DDS § TEXAS DENTAL LICENSE § ADMINISTRATIVE HEARING NUMBER 23918, § Respondent §

ORDER OF THE BOARD

TO: JOSHUA E. FOREMAN, DDS c/o ROBERT ANDERTON, ATTORNEY 900 CONGRESS AVENUE, SUITE 250 AUSTIN, TX 78701

SUZANNE FORMBY MARSHALL ADMINISTRATIVE LAW JUDGE 300 WEST 15TH STREET, SUITE 504 AUSTIN, TX 78701

At the regularly scheduled public meeting on November 18, 2016, the State Board

of Dental Examiners considered the following items: (1) Proposal for Decision (PFD)

regarding the above cited matter; (2) Staff’s recommendation that the Board adopt the

present Order, regarding the Administrative Law Judge’s (ALJ) recommended sanction

of Texas dental license number 23918 belonging to Joshua E. Foreman, DDS; and (3)

Respondent’s recommendation, if any.

The State Board of Dental Examiners finds that after proper and timely notice was

given, the above styled case was heard by an ALJ who made and filed a PFD containing

the ALJ’s Findings of Fact and Conclusions of Law. The PFD was properly served on all

parties, and all parties were given an opportunity to file exceptions and replies as part of

the record herein.

The State Board of Dental Examiners, after review and due consideration of the

PFD and the parties’ recommendations, adopts all of the Findings of Fact and

Conclusions of Law of the ALJ contained in the PFD, as if fully set out and separately

stated herein. Further, all proposed findings of fact and conclusions of law filed by any

party not specifically adopted herein are herein denied.

The Board is changing the ALJ’s recommended sanction. A determination of the

appropriate sanction is reserved to the Board. Rule 100.20(c), Texas State Bd. Of Dental

Exam’rs v. Brown, 281 S.W.3d 692, 697 (Tex.App.—Corpus Christi 2009, pet. denied).

The Board has broad discretion when deciding what penalty to impose, Sears

v. Texas State Bd. Of Dental Exam’rs, 759 S.W.2d 748, 751 (Tex.App.—Austin 1988, no

writ), and the Board is not required to treat sanction recommendations as presumptively

binding in the way that agencies are required to treat findings of fact and conclusions of

law. Froemming v. Texas State Bd. Of Dental Exam’rs, 380 S.W.3d 787, 792

(Tex.App.—Austin 2012, no pet.).

The Board welcomes recommendations of administrative law judges as to the

sanctions to be imposed, but the Board is not bound by those recommendations. Rule

100.20(b). The Board has determined that the ALJ did not properly apply the Board’s

disciplinary matrix as urged by Board staff. Instead, Board staff recommends the

imposition of a five thousand dollar ($5,000.00) administrative fine, twenty-seven (27)

hours of continuing education, a prohibition on Respondent utilizing a papoose-style

restraint in his practice, a prohibition on Respondent treating patients under thirteen (13)

years of age for one (1) year after the adoption of the Order of the Board, and the

jurisprudence assessment, based upon the conclusions of law provided by the ALJ in the

PFD.

The ALJ found in conclusion of law (COL) number 5 that Respondent practiced

dentistry in a manner that constituted dishonorable conduct during the treatment of

Patients 1-3 and 5, in COL number 6 that Respondent failed to treat Patients 1-5

according to the standard of care, in COL number 7 that Respondent violated or refused

to comply with a law relating to the regulation of dentists, in COL number 8 that

Respondent misled Patients 1-5 as to the gravity of their dental needs, and in COL

number 9 that Respondent persistently over-diagnosed and over-treated Patients 1-5.

As second tier violations of the disciplinary sections associated with Tex. Occ.

Code § 263.003(a)(3), (4), and (10), Respondent’s violations justify the imposition of an

administrative fine and continuing education, as well as the prohibitions restricting the

scope and activities of Respondent’s practice. These violations taken together justify an

administrative fine of five thousand dollars pursuant to the Board’s disciplinary matrix.

Finally, all disciplinary actions taken by the Board should include a stipulation requiring

completion of the online jurisprudence assessment pursuant to the disciplinary matrix. No

mitigating factors exist to reduce or remove these suggested sanctions.

IT IS THEREFORE ORDERED THAT:

1. Respondent’s Texas Dental License No. 23918, issued to JOSHUA E. FOREMAN, in the State of Texas is hereby issued the sanction of a five-year PROBATED SUSPENSION.

2. Respondent SHALL pay an administrative monetary fine in the amount of five thousand dollars ($5,000.00) payable to the “Texas State Board of Dental Examiners” located at 333 Guadalupe, Tower 3, Suite 800, Austin, Texas 78701-3942. The administrative monetary fine SHALL be paid in

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