Sunset Commission Makes Decisions on State Board of Dental Examiners

sunset commission2The Sunset Advisory Commission has made public its decisions regarding its sunset review of the State Board of Dental Examiners based on its staff report and hearings held.   These have been available since August on the Commission website and reflect the changes to legislation that are expected to be made in the upcoming legislative session.

Commission staff had identified five issues with the Board and the Commission itself from its hearings added two more relating to anesthesia and prescription monitoring.

Major changes

Major changes include:

  1. Sweep the board and reduce the size of the board from 15 to 11, including six dentists, three hygienists, and two public members.
  2. Create a state Dental Review Committee consisting of nine governor-appointed members, including six dentists and three dental hygienists, to serve at informal settlement conferences on a rotating basis.
  3. Strike language in the Dental Practice Act regarding informal settlement conferences and replace with more detailed language on structure and conduct of informal proceedings.
  4. Authorize the board to conduct inspections of dentists administering parenteral anesthesia in office settings. Provide four levels of anesthesia permits and require the board to establish minimum standards, education, and training for dentists administering anesthesia. Allow additional limitations on anesthesia administration for high-risk or pediatric patients.
  5. As a management action, direct the board to establish in an expedited rule an independent five to 10-member blue ribbon panel that would review de-identified data, including confidential investigative information, related to dental anesthesia deaths and mishaps over the last five years, as well as evaluate emergency protocols. The Committee should make recommendations to the Legislature by the Sunset Commission’s January 11, 2016 meeting
  6. Require the board to monitor licensees for adverse licensure actions.
  7. Authorize the board to deny applications to renew a license if an applicant is not compliant with a board order.
  8. Authorize the board to require evaluations of licensees suspected of being impaired and require confidentiality for information relating to the evaluation and participation in treatment programs.
  9. Remove unnecessary qualifications required of applicants for licensure or registration.
  10. Direct the board to make data on the board’s enforcement activity information publicly available on its website.
  11. Require the board to develop rules establishing minimum emergency preparedness standards necessary prior to administering sedation/anesthesia, including requirements regarding supplies of necessary drugs, defibrillators, inspections, and maintenance logs.
  12. Define portability, methods to obtain a portability permit, and establish advanced didactic and clinical training requirements.
  13. Beginning September 1, 2018, require dentists to search the Prescription Monitoring Program and review a patient’s prescription history before prescribing opioids, benzodiazepines, barbiturates, or carisoprodol. A dentist who does not check the program before prescribing these drugs would be subject to disciplinary action by the Dental Board.

Informal hearing process

The informal hearing process will be changed to the following:

The board by rule shall adopt procedures governing informal disposition of a contested case. Rules must require that:

(1) not later than the 180th day after the date the board’s official investigation of the complaint is commenced, the board shall determine a future date on which to hold an informal settlement conference to consider disposition of the complaint or allegation, unless good cause is shown by the board for scheduling the informal settlement conference after that date;(2) the board give notice to the licensee of the time and place of the meeting not later than the 45th day before the date the informal settlement conference is held;

(2) the board give notice to the licensee of the time and place of the meeting not later than the 45th day before the date the informal settlement conference is held;

(3) the complainant and the licensee be provided an opportunity to be heard;

(4) the board’s legal counsel or a representative of the attorney general be present to advise the board or the board’s staff; and

(5) a member of the board’s staff be at the meeting to present to the Informal Settlement Conference Panel the facts the staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing.

• An affected licensee is entitled to:

(1) reply to the staff’s presentation; and

(2) present the facts the licensee reasonably believes the licensee could prove by competent evidence or qualified witnesses at a hearing.

• After ample time is given for the presentations, the Informal Settlement Conference Panel shall recommend that the investigation be closed or shall make a recommendation regarding the disposition of the case, unless applicable concerning contested cases requires a hearing.

• If the license holder has previously been the subject of disciplinary action by the board, the board shall schedule the informal settlement conference as soon as practicable but not later than the 180th day after the date the board’s official investigation of the complaint is commenced.

• Notice must be accompanied by a written statement of the nature of the allegations and the information the board intends to use at the meeting. If the board does not provide the statement or information at that time, the license holder may use that failure as grounds for rescheduling the informal meeting. If the complaint includes an allegation that the license holder has violated the standard of care, the notice must include a copy of the report by the expert dentist reviewer. The licensee must provide to the board the licensee’s rebuttal at least 15 business days before the date of the meeting in order for the information to be considered at the meeting.

• The board by rule shall define circumstances constituting good cause for not meeting the 180-day deadline, including an expert dentist reviewer’s delinquency in reviewing and submitting a report to the board.

• The board by rule shall define circumstances constituting good cause to grant a licensee’s request for a continuance of the informal settlement conference.

• Information presented by the board or board staff in an informal settlement conference is confidential.

• On request by a licensee under review, the board shall make a recording of the informal settlement conference proceeding. The recording is a part of the investigative file and may not be released to a third party unless authorized. The board may charge the licensee a fee to cover the cost of recording the proceeding. The board shall provide a copy of the recording to the licensee on the licensee’s request.

Board Representation in Informal Proceedings:
• Define the following term to apply to the sections related to Informal Settlement Conferences: Informal Settlement Conference Panel: includes members of the Board and the Dental Review Committee.

• In an informal settlement conference, at least two Informal Settlement Conference Panel members shall be appointed to determine whether an informal disposition is appropriate. At least one of the panelists must be a dentist.

• Pursuant to Board rules, one panelist must be physically present at the ISC, but one panelist may appear by video conference.

• An informal settlement conference may be conducted by one panelist if the affected licensee waives the requirement that at least two panelists conduct the informal proceeding. If the licensee waives that requirement, the panelist may be either a dentist, dental hygienist, or a member who represents the public.

• Only one panel member is required in an informal settlement conference proceeding conducted by the board to show compliance with an order or remedial plan of the board.

Roles and Responsibilities of Participants in Informal Proceedings:
• An Informal Settlement Conference Panel member that serves as a panelist at an informal settlement conference shall make recommendations for the disposition of a complaint or allegation. The member may request the assistance of a board employee at any time.

• Board employees shall present a summary of the allegations against the affected licensee and of the facts pertaining to the allegation that the employees reasonably believe may be proven by competent evidence at a formal hearing.

• A board attorney shall act as counsel to the panel members and shall be present during the informal settlement conference and the panel’s deliberations to advise the panel on legal issues that arise during the proceeding. The attorney may ask questions of participants in the informal settlement conference to clarify any statement made by the participant. The attorney shall provide to the panel a historical perspective on comparable cases that have appeared before the board, keep the proceedings focused on the case being discussed, and ensure that the board’s employees and the affected licensee have an opportunity to present information related to the case. During the panel’s deliberations, the attorney may be present only to advise the panel on legal issues and to provide information on comparable cases that have appeared before the board.

• The panel and board employees shall provide an opportunity for the affected licensee and the licensee’s authorized representative to reply to the board employees’ presentation and to present oral and written statements and facts that the licensee and representative reasonably believe could be proven by competent evidence at a formal hearing.• An employee of the board who participated in the presentation of the allegation or information gathered in the investigation of the complaint, the affected licensee, the licensee’s authorized representative, the complainant, the witnesses, and members of the public may not be present during the deliberations of the panel. Only the members of the panel and the board attorney serving as counsel to the panel may be present during the deliberations.

• The panel shall recommend the dismissal of the complaint or allegations or, if the panel determines that the affected licensee has violated a statute or board rule, and that violation supports action by the board, the panel may recommend board action and terms for an informal settlement of the case.

• The panel’s recommendations must be made in writing and presented to the affected licensee and the licensee’s authorized representative. The licensee may accept the proposed settlement within the time established by the panel at the informal meeting. If the licensee rejects the proposed settlement or does not act within the required time, the board may proceed with the filing of a formal complaint with the State Office of Administrative Hearings request for a continuance of the informal settlement conference.

• Information presented by the board or board staff in an informal settlement conference is confidential.

• On request by a licensee under review, the board shall make a recording of the informal settlement conference proceeding. The recording is a part of the investigative file and may not be released to a third party unless authorized. The board may charge the licensee a fee to cover the cost of recording the proceeding. The board shall provide a copy of the recording to the licensee on the licensee’s request.

Full details

The full details of the decisions are contained in the PDF file below and can be downloaded here.

dental-examiners-commission-decisions_8-22-16_0

Leave a Reply

Your email address will not be published.