Sunset Commission Releases Report Critical of State Board of Dental Examiners

State Board of Dental Examiners Staff ReportThe Sunset Advisory Commission today released its staff report on their observations and recommendations relating to the State Board of Dental Examiners.

Basically, they found it had too many board members who did too little and got mired in business- related activities rather than public safety issues.

Gov. Abbott just last week appointed a number of members to the SBDE including its chair.

Too big, too little to do, misdirected

The following comments in the summary show the report’s tenor:

“For a relatively small agency, the State Board of Dental Examiners has had more than its share of problems over the years.”

“In its last five years, the agency has been buffeted by high turnover among its leadership ranks, going through four executive directors and general counsels in that time.”

“In the current review, this situation of an oversized board has only continued. The board has even less to do because of legislation from 2013 eliminating its role in reviewing standard of care complaints, though dentist board members still find ways to get involved in such cases. Dentist board members have also pursued high-profile rule packages that appear more motivated by business interests than demonstrated concern for public safety; all the while other emerging problems like regulating the administration of anesthesia went largely unaddressed.”

The report lists five issues with recommendations which are published here in full.  A copy of the full report can be downloaded –State Board of Dental Examiners Staff Report 4-6-16-

Issues and Recommendations

Issue 1
The Unusually Large Dental Board Inappropriately Focuses on Issues Unrelated to Its Public Safety Mission.
A shift in responsibility for technical complaint reviews to a panel of contracted experts in 2013 significantly decreased the workload for dentist board members. With less to do, the board, at the behest of dentist members, pursued significant rule changes more related to business practices than demonstrated public safety problems and despite widespread concern by stakeholders and other interests and a lack of broad consensus. Dentist members also continue their involvement in case resolution, ultimately undermining those efforts. Better aligning the number of dentist board members with the amount of technical expertise needed by the agency will help focus the board squarely on issues of public protection and make better use of staff resources.

In addition, board processes for stakeholder input hold promise for improved involvement, eliminating the need for two statutorily created advisory committees, the Dental Hygiene Advisory Committee and the Dental Laboratory Certification Council. Removing advisory committees from statute will allow the board more flexibility to convene more diverse groups of stakeholders for input on an as needed basis.

Key Recommendations
• Reduce the size of the board from 15 to nine members and adjust its composition to consist of four dentists, two dental hygienists, and three public members.
• Allow the board’s statutory advisory groups to expire and direct the board to establish clearer processes for stakeholder input in rule.

Issue 2
State Regulation of Dental Assistants Is Unnecessary to Ensure Public Protection and Is an Inefficient Use of Resources.
The board’s regulation of dental assistants has expanded over the past 25 years to consist of four separate certificate programs for commonly delegated tasks, though assistants can legally perform some work without holding any certificate. In fiscal year 2015 the board issued 50,469 dental assistant certificates, more than all other board issued credentials combined.

State regulation of dental assistants is not needed to protect public safety. Dental assistants can only work under the delegated authority of the dentist, who remains responsible for patient care and safety. Because they can only perform reversible tasks, they have very low volume of meaningful complaint and
enforcement activity, little, if any, of which relates to standard of care. In addition, gaps in regulatory requirements undermine the very promise of public safety the regulations were supposed to provide. The regulatory program wastes licensing and legal resources and diverts board and staff focus from higher risk agency responsibilities. Ultimately, addressing deficiencies to fix these regulations is not an option without dramatically expanding the scope of their practice, because the risk to the public relating to the current practice is so low. National credentialing and private market forces can provide any training or oversight of dental assistants desired by employers or the public. Removing regulatory responsibility for dental assistants from the board will allow the agency to focus on licensees that pose a higher risk to patients and the public.

Key Recommendation
• Discontinue the board’s dental assistant certificate programs.

Issue 3
The Board Lacks Key Enforcement Tools to Ensure Dentists Are Prepared to Respond to Increasing Anesthesia Concerns.
Dentists administer anesthesia for a variety of dental procedures. In recent years, the board has seen an increase in related complaints involving serious patient harm and sometimes death. The board lacks the authority and resources to routinely inspect the offices of dentists providing some anesthesia services and does not require written emergency action plans for any dentist administering anesthesia to help ensure thoughtful planning and readiness for the unexpected. Dentists in other states and Texas doctors administering anesthesia in offices are subject to related routine inspections, and office-based Texas physicians providing anesthesia must maintain written emergency action plans. Allowing the board to conduct inspections of dentists administering anesthesia in office settings and requiring related written emergency management plans of dentists providing anesthesia will incentivize dentists to be prepared for anesthesia-related complications and train support staff accordingly.

Key Recommendations
• Authorize the board to conduct inspections for dentists administering parenteral anesthesia in office settings.
• Direct the board to revise rules to ensure dentists with one or more anesthesia permit and maintain related written emergency management plans.

Issue 4
Key Elements of the State Board of Dental Examiners’ Licensing and Regulatory Functions Do Not Conform to Common Licensing Standards.
In reviewing the board’s regulatory authority, Sunset staff found that certain licensing and enforcement processes do not match model standards or common practices observed through Sunset staff ’s experience reviewing regulatory agencies. Specifically, the board does not do enough to ensure licensees are free from disciplinary action in other states or have complied with past board orders before renewing their licenses. The board is also unable to require evaluations for licenses suspected of impairment due to substance abuse or mental illness, and cannot protect the confidentiality of licensees participating in assistance programs.

Key Recommendations
• Require the board to monitor licensees for adverse licensure actions in other states.
• Authorize the board to deny applications to renew a license if an applicant is noncompliant with a board order.
• 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.
• Direct the board to make data on the board’s enforcement activity information publically available on its website.

Issue 5
A Continuing Need Exists for the State Board of Dental Examiners.
Regulating the practice of dentistry and supporting functions continues to support the state’s interest in protecting the public. Alternative organizational structures, including the transfer of regulatory programs to other agencies, offer no substantiated benefit at this time. Continuing the board in its current form
will provide an independent agency responsible for ensuring quality, safe dental care.

Key Recommendation
• Continue the State Board of Dental Examiners for 12 years

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