Yesterday, the Sunset Advisory Commission introduced both a House and Senate bill to adopt their proposed changes to legislation affecting the State Board of Dental Examiners. HB 2990 was introduced as authored by Sunset member state Rep. Cindy Burkett while SB 313 was introduced as authored by Senators Schwertner, Hinojosa, Nichols, Van Taylor and Watson.
The Commission had finalized its report and recommendations on the board in January which provides the basis for the legislation. We have republished the executive summary and issues covered by the report here. An actual copy of the report follows as well and can be downloaded.
Summary
The following material summarizes the Sunset Commission’s decisions on the staff recommendations for the State Board of Dental Examiners, as well as modifications and new issues raised during the public hearing.
For a relatively small agency, the dental board has been buffeted by more than its share of problems due to high turnover among its leadership ranks. At 15 members, the dental board itself is oversized compared to its shrinking duties, leading to board involvement in operational matters well beyond its proper role and the agency’s needs. Dentist board members have 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.
In light of high-profile media cases exposing gaps in the board’s regulation of dental anesthesia, the commission’s recommendations aim to strengthen anesthesia regulation through clear enforcement tools, improved training and education requirements for permit holders, and broader avenues for stakeholder input. These recommendations are consistent with the findings of a blue ribbon panel commissioned by Sunset to assess the dental anesthesia problems. Other changes would address deficiencies in the agency’s regulation of dental assistants and update licensing and enforcement processes that have not kept up with best practices. The Sunset Commission recommends continuing the agency for 12 years.
Issue 1
The Unusually Large Dental Board Inappropriately Focuses on Issues Unrelated to Its Public Safety Mission.
Recommendation 1.1, Modified — In lieu of the staff recommendation, sweep the board and reduce the size of the board from 15 to 11 members, including six dentists, three hygienists, and two public members. To allow for staggering of terms, the recommendation would provide that all current board member terms expire on September 1, 2017, with the governor making initial appointments as specified below. Current members would be eligible for re-appointment if so determined by the governor to maintain needed expertise. Board members serving on August 31, 2017 would continue to serve until a majority of new appointments are made.
• Two dentists and one dental hygienist to initial terms expiring February 1, 2019.
• Two dentists, one dental hygienist, and one public member to initial terms expiring February 1, 2021.
• Two dentists, one dental hygienist, and one public member to initial terms expiring February 1, 2023.
Recommendation 1.2, Adopted — Allow the board’s statutory advisory groups to expire and direct the board to establish clearer processes for stakeholder input in rule.
Recommendation 1.3, Modified — Clarify the use and role of board members at informal settlement conferences and strike language in the Dental Practice Act regarding informal settlement conferences (Texas Occupations Code, sections 263.007, 263.0075, and 263.0076) and replace with more detailed language on structure and conduct of informal proceedings. (See Adopted Language, page A7)
• Dental review committee. 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.
Issue 2
State Regulation of Dental Assistants Is Unnecessary to Ensure Public Protection and Is an Inefficient Use of Resources.
Recommendation 2.1, Modified — In lieu of the staff recommendation, combine the board’s four dental assistant certificate programs into one registration for dental assistants. (See Adopted Language, page A9)
Issue 3
The Board Lacks Key Enforcement Tools to Ensure Dentists Are Prepared to Respond to Increasing Anesthesia Concerns.
Recommendation 3.1, Modified — 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. (See Adopted Language, page A10)
• Blue ribbon panel. As a management action, Sunset directed the board to quickly establish an independent 5- to 10-member blue ribbon panel that reviewed 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 made recommendations to the Legislature and the Sunset Commission at its January 11, 2017 meeting.
Recommendation 3.2, Modified — As a statutory instead of a management recommendation, direct the board to revise rules to ensure dentists with one or more anesthesia permits maintain related written emergency management plans. Also provide that level 2–4 sedation/anesthesia permit holders’ emergency plans must include current Advanced Cardiac Life Support (ACLS) rescue protocols and advanced airway management techniques. For level 2–4 sedation/anesthesia permit holders treating pediatric patients emergency management plans must include current Pediatric Advanced Cardiac Life Support (PALS) rescue protocols and advanced airway management techniques.
Issue 4
Key Elements of the State Board of Dental Examiners’ Licensing and Regulatory Functions Do Not Conform to Common Licensing Standards.
Recommendation 4.1, Adopted — Require the board to monitor licensees for adverse licensure actions.
Recommendation 4.2, Adopted — Authorize the board to deny applications to renew a license if an applicant is not compliant with a board order.
Recommendation 4.3, Adopted — 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.
Recommendation 4.4, Adopted — Remove unnecessary qualifications required of applicants for licensure or registration.
Recommendation 4.5, Adopted — Direct the board to make data on the board’s enforcement activity information publicly available on its website. (Management action – nonstatutory)
Recommendation 4.6, Adopted — Direct the board to stagger registration and certificate renewals. (Management action – nonstatutory
Issue 5
A Continuing Need Exists for the State Board of Dental Examiners.
Recommendation 5.1, Adopted — Continue the State Board of Dental Examiners for 12 years.
Recommendation 5.2, Modified — Update the standard Sunset across-the-board provision regarding conflicts of interest and apply the newly updated Sunset across-the-board recommendation on board member training.
Adopted New Issues
Dental Anesthesia
Advisory committee. Create a standing advisory committee on dental anesthesia to advise the board on the development and revision of rules related to dental sedation and anesthesia:
• Require the board chair to appoint nine members to include, but not be limited to: dentists, dentist anesthesiologists, oral and maxillofacial surgeons, pediatric dentists and physician anesthesiologists. The board chair may not appoint an active dental board member to the advisory committee.
• Require the board to provide the committee with a board attorney who will act as counsel to the committee members. The board attorney shall be present during committee meetings and the committee’s deliberations to advise the committee on legal issues.
• Require the committee to report their recommendations and other findings to the dental board on an annual basis, or more frequently as necessary to provide input on rulemaking and make this information available on the board’s website.
Data reporting. Direct the board to track and quarterly report anesthesia-related data and to make publicly available on its website aggregate enforcement data by fiscal year and type of license. (Management action – nonstatutory; see Adopted Language, page A10)
Emergency preparedness. Require the board to develop rules establishing minimum emergency preparedness standards necessary prior to administering sedation/anesthesia including requirements related to
• having an adequate, unexpired supply of necessary drugs and anesthetic agents; • having an onsite automated external defibrillator (AED) immediately available;
• periodic equipment inspections in a manner and on a schedule determined by the board; and
• maintenance and retention of an equipment readiness log that shall be made available to the board upon request and to board staff during inspections.
Portability permits. Provide for the following statutory changes to portability requirements:
• Define “portability” as the ability of a permit holder to provide permitted anesthesia services in a location other than a facility or satellite facility, consistent with the definition in rule.
• Require the board to establish in rule requirements and methods for a dental sedation and anesthesia permit holder to obtain a portability permit.
• Require the board to establish advanced didactic and clinical training requirements necessary for a portability permit, with consideration for additional requirements for those using their portability permit to treat pediatric and/or high-risk patients.
Prescription Monitoring Program
Dentist requirements. 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.
Dental board requirements. Require the dental board to query the Prescription Monitoring Program on a periodic basis for potentially harmful prescribing patterns among its licensees. The dental board would work with the pharmacy board to establish potentially harmful prescribing patterns that the dental board should monitor by querying the database for dentists who meet those prescribing patterns. Based on the information obtained from the Prescription Monitoring Program, the dental board would be authorized to open a complaint for possible non-therapeutic prescribing.