Health License Defense » texas dental board

Dental Board Rule Changes on Anesthesia

Jon Porter — Wed, 18 May 2011 14:19:15 +0000

Adopted Rules re:
- Professional Conduct-Anesthesia and Anesthetic Agents. The repeal of Chapter 108, Subchapter C is adopted in order to publish revised anesthesia and sedation rules. Concurrent with this is the adoption of new anesthesia rules contained in new Chapter 110 regarding: Effective Date, Definitions, Minimum Standard of Care, Anesthesia, Sedation/Anesthesia Permit, Permit Requirements and Clinical Provisions, Authority to Demonstrate Anesthesia.
- Enteral Conscious Sedation-Repeal of Anesthesia Rules regarding: Definitions, Permit, Permit Requirements and Clinical Provisions, Effective Date .
- Enteral Conscious Sedation-Adoption of New Anesthesia Rules regarding: Definitions; Sedation/Anesthesia Permit; Nitrous Oxide/Oxygen Inhalation Sedation; Minimal Sedation; Moderate Sedation; Deep Sedation or General Anesthesia; Portability; Provisional Anesthesia and Portability Permits; Anesthesia Permit Renewal .
Ad-Hoc Committee updated rules based on sedation guidelines adopted by the American Dental Association (ADA) House of Delegates in 2007

The most significant change in the revisions is to the levels of anesthesia and sedation permitting. The permitting process emphasizes the level of sedation of the patient rather than the route of administration of the medication. The new sections establish five levels of anesthesia and sedation permits beyond the standard dental license: Nitrous Oxide/Oxygen Inhalation Sedation;

Level 1: Minimal Sedation;
Level 2: Moderate Sedation (enteral sedation);
Level 3: Moderate Sedation (parenteral sedation); and
Level 4: Deep Sedation or General Anesthesia.

Most levels of permitting will change in name only. Licensed dentists who lack sedation permits may continue to utilize local anesthetic and prescribe minor tranquilizers for anxiolysis. A licensed dentist who holds an active Nitrous Oxide/Oxygen Inhalation Conscious Sedation permit, Parenteral Sedation permit, or Deep Sedation or General Anesthesia permit on or before the effective date of the new sections will have his or her permit automatically reclassified as a Nitrous Oxide/Oxygen Inhalation Sedation permit, Level 3 permit, and Level 4 permit respectively on the effective date.

It is time to renew, do I tell the Board about my arrest or conviction?

Taralynn Mackay — Mon, 02 May 2011 22:39:44 +0000

It is time to renew and when you review the questions asked by the Board on the renewal paperwork, you see the question about a potential criminal history and have no clue what you should do and what you should not do. The best answer is to call an experienced administrative lawyer. There is no substitute for an experienced answer from an attorney, but this blog will attempt to give basics answers but is not intended to be legal advice.

WHAT NOT TO DO: answer the Board without having an attorney review your response. It is so sad when a health care professional receives a disciplinary order due to an incorrect answer to a renewal question; so often, these violations are easy to avoid. Sometimes a health care professional answers a renewal question in a manner which causes Board action on the answer but not on the original criminal issue. In addition, you need someone on your side advising you regarding what actions to expect from the Board and making sure you do not agree to a disciplinary action which is not warranted. DO NOT rely upon advice from your criminal attorney, your family, your co-workers, your boss etc. This is not a time to risk talking to inexperienced people. Some Board do not take action on minor criminal incidents as long as you do not try to hide the criminal incident from the Board. For example, the Texas Board of Nursing will typically not take action on a one time shoplifting case, but if you do not disclose the criminal incident to the Board you will be deemed as being deceptive and the Board is more likely to require some type of remediation (once again there are various Board responses and which is used depends on the information provided to the Board).

WHAT TO DO: Obtain the criminal court records and contact an administrative lawyer with experience before that particular Board. When you call the lawyer, is the lawyer able to answer your questions or do they say they have to do research? If an attorney practices frequently before a Board, the lawyer will know the types of questions asked by the Board and what is required to be disclosed. This type of legal advice is not usually expensive as long as the case does not progress to an investigation before the Board and an attorney can give you estimated costs when you speak to the lawyer.

I know this response looks like an advertisement for hiring lawyers, but seeking appropriate legal advice is the best action to take to protect your license and the risk of possible disciplinary action is too great not to at least speak to a lawyer.

Professional Licensing and Criminal History — Sometimes it is oil and water

Taralynn Mackay — Wed, 13 Apr 2011 22:19:47 +0000

On Sunday, April 10, 2011, the Austin American-Statesman printed an article by Eric Dexheimer, Licensing handcuffs ex-cons. The article focuses on a problem our firm attorneys face frequently with clients — licensees or potential licensees are disciplined for criminal incidents which may have nothing to do with their licensed occupation or the discipline is too punitive when it is not needed to be so in order to protect the public. On Wednesday, April 13, 2011, the Austin American-Statesman Editorial, Licensing as form of punishment said it best, “No doubt Texas regulators have the best intentions in denying so many-and in our view, too many-people with criminal pasts licenses to work at jobs the state regulates. That has created a system that now does more harm than good. Fixing it requires common sense.” It is well known that bureaucracies are only as good as the people working there and at times there is a lack of common sense, but more severe, I think there is a lack of empathy and the ability to step back and really look at the issue before the Board and determine is there REALLY a threat to the people of Texas.

When I read the article and the editorial I knew that many people will cheer the limiting of licenses to those with criminal histories, but I think they tend to focus on horrific crimes and don’t realize the impact made on people who commit crimes due to a lack of knowledge or because they are young or with the best of intentions. If you do not speak to such people daily, then you cannot know the heartache and problems for the licensee or the ultimate ramifications for the public. What about a licensee who is wrongly accused (it happens more than you think: bad investigations, witness lies, evidence corrupted) and then convicted (Oh, and it does not matter the licensee received deferred adjudication since some regulatory boards consider deferred adjudications as convictions.). A situation I have seen over and over is during a divorce or custody hearing, one of the spouses accuses the other of some crime and then lie or plant evidence; the other spouse is sure the law will find on their side since they are obviously innocent, but the legal system does not always work that way, so the innocent ex-spouse is now facing an investigation by the regulatory board. The criminal incident has nothing to do with the licensee’s profession, but the licensee is investigated then disciplined and loses their job and is now on public assistance because no one wants to hire them. It happens again and again, professionals attempting to find work outside of their profession will not be hired because the potential employers think they will leave too soon, are too over-qualified, will challenge them for their position etc and a highly educated professional remains unemployed.

Mr. Dexheimer discusses so many cases where the state’s result does not appear to be justified; that there is no nexus between the criminal charge and the practice of that particular profession. One of the examples involves pharmacist Emmanuel Kanu who lost his pharmacist license, not because of patient care issues or as a result of actions which could harm the people of Texas (potential patients/clients), but because he did not complete the proper documentation when he sent donated medications to a clinic in a third world county. Mr. Kanu, a pharmacist with no patient care issues for 17 years, is now removed from being able to care for the Texas public for 10 years; how is this outcome reasonable or just? Would one consider Mr. Kanu to be a criminal? Is his failure to submit the proper documentation in order to send these medications so heinous that we need to waste tax payer funds to convict him and then remove him from the professional workforce?

I also fear the public will ignore the message of this article (and the subsequent editorial) because it deals with “ex-cons” or those with criminal incidents when the message is so much more–the regulatory agencies are vested with great power and there can be an unfair and unjust tendency to abuse and overuse that power; once again, it depends on the individuals within the agency–there are some excellent staff members who warrant great respect, but there are also some who are not protecting the public, they are just punishing.

The problem our attorneys face is most licensees cannot afford to fight the regulatory boards and they are faced with accepting discipline which is not warranted or in some cases, even legal. But, it is not clear sailing for those licensees that do choose to fight because as seen in Mr. Dexheimer’s article, like Mr. Kanu, the licensee pays the money to fight the regulatory board, the licensee wins at the State Office of Administrative Hearings (SOAH) only to have the case overturned by the regulatory board. This is such a wide spread problem that our attorneys testified during the last Legislative session urging Texas lawmakers to support a bill which would make SOAH decisions final and if either party wanted to appeal at district court, they could do so. Making SOAH decisions final avoids the “second chance at the licensee” actions which occur now when boards overturn SOAH Judge recommendations. Making SOAH decisions final levels the process and makes it fair for all involved.

These are problems which should be addressed and the regulatory system, if it is going to be vested with so much independent power, should be fair and just and able to stand up to scrutiny. Ask yourself, who is on the side of the licensee? Who is making sure there are enough professionals to provide care to the people of Texas? Is the system driving good professionals out of practice or turning them into cynics who no longer see the benefit in caring? The public, the boards, and licensees need to be aware of all sides of a situation; not jump to conclusions; and consider the ultimate impact on all.

Budget Troubles Will Effect Health Licensing Board

Jon Porter — Thu, 09 Dec 2010 15:41:31 +0000

On December 7^th, the Governor, the Lt. Governor, and the Speaker of House sent a letter to all state agencies, including all the health licensing board, and directed them to cut 2.5% of their budget for rest of the 2011 Fiscal Year. The FY 2011 began on September 1^st. The FY 2011 began with a directive to cut 3% of their budget; thus budgets have now been cut 5.5%. As the vast majority of budget for health licensing agencies are salaries for staff, this has meant hiring freezes in some agencies.

For FY 2012 and 2013, the Governor, the Lt. Governor, and the Speaker of House told agencies to offer budget 10% less than their FY 2011 budgets. This will mean lost of more staff, slower time to process new licenses and slower time to investigate cases. The Texas Medical Board reports it believes it will generate less income for the state for due to its budget cuts. The Board did not explain how this would occur.

It is possible, the further cuts will occur. It is even more likely professional renewal fees will increase as will new licensure application fees. The reason these things will occur is the projected budget deficit is 23 billion dollars. Even if the legislature ends all state programs other than education, prisons, roads, law enforcement, and Medicaid, there will still be deficit; therefore, it seems logical to assume more cuts and larges fees are a matter of when, and not if.

Dental Board Creates Disciplinary Matrix

Jon Porter — Fri, 10 Sep 2010 13:40:28 +0000

A New SBDE Disciplinary Matrix was developed in accordance with Texas Occupations Code. It is organized by violation type in tiers, takes into account aggravating and mitigating circumstances. First tier offenses are considered not serious versus Fourth Tier which are serious and could harm the public. There is a listing of corresponding sanctions that are available.

New proposed rules for Texas Board of Dental Examiners

Taralynn Mackay — Wed, 09 Jun 2010 22:07:59 +0000

On May 21, 2010, the Texas Board of Dental Examiners posted new proposed rules involving the following (the proposed rules may be found at the Texas Register):

GENERAL PROVISIONS

22 TAC §100.10

DENTAL HYGIENE LICENSURE

22 TAC §103.5

DENTAL BOARD PROCEDURES

22 TAC §§107.11, 107.15, 107.17, 107.21 – 107.25, 107.47, 107.48, 107.50, 107.54, 107.55, 107.63
22 TAC §107.59
22 TAC §107.102
22 TAC §107.203

PROFESSIONAL CONDUCT

22 TAC §§108.7 – 108.9

EXTENSION OF DUTIES OF AUXILIARY PERSONNEL–DENTAL ASSISTANTS

22 TAC §114.10

EXTENSION OF DUTIES OF AUXILIARY PERSONNEL–DENTAL HYGIENE

22 TAC §115.9

New Standard of Care Rules for Texas Dentists

Taralynn Mackay — Wed, 09 Jun 2010 22:02:26 +0000

The following rules were posted for adoption in the Texas Register (earliest possible date is June 20, 2010) and they expand the regulatory reach of the Texas Dental Board (the underline is the new language and the strikeout is the old language of the rules):

§108.9.Dishonorable Conduct.

The dishonorable conduct section is intended to protect the public from dangerous, unethical, and illegal conduct of licensees. The purpose of this section is to identify unprofessional or dishonorable behaviors of a licensee which the Board believes are likely to pose a threat to the public. Actual injury to a patient need not be established for a licensee to be in violation of this section. Behavior constituting dishonorable conduct includes, but is not limited to [A licensee is in violation of this rule if he or she]:

(1) Criminal conduct–including but not limited to conviction of a misdemeanor involving fraud or a felony under federal law or the law of any state as outlined in Chapter 101 of this title.

[(1) Aids or abets in the violation of a criminal statute or participates in a conspiracy to procure (by corruption, fraud, misrepresentation, or bribery, or both) a dental license for an unqualified person.]

(2) Deception or misrepresentation–engages in deception or misrepresentation:

(A) in soliciting or obtaining patronage; or

(B) in obtaining a fee.

(3) Fraud in obtaining a license–obtains a license by fraud or misrepresentation or participates in a conspiracy to procure a license, registration, or certification for an unqualified person.

(4) Misconduct involving drugs or alcohol–actions or conduct that include, but are not limited to:

(A) [(2)] providing [Provides ] dental services to a patient while the licensee is impaired through the use of drugs, narcotics, or alcohol ;[.]

(B) addicted to or habitually intemperate in the use of alcoholic beverages or drugs;

(D) [(3)] grossly [Grossly ] over prescribes, dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances;[.]

(E) [(4)] prescribes [Prescribes ], dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances to or for a person who is not his or her dental patient;[,] or [not for a dental purpose.]

(F) prescribes, dispenses, or administers narcotic drugs, dangerous drugs, or controlled substances to a person for a non-dental purpose, whether or not the person is a dental patient.

(5) Assisting another in engaging in the unauthorized practice of dentistry or dental hygiene–holds a dental license and employs, permits, or has employed or permitted a person not licensed to practice dentistry to practice dentistry in an office of the dentist that is under the dentist’s control or management.

(6) Failure to comply with applicable laws, rules, regulations, and orders–violates or refuses to comply with a law relating to the regulation of dentists, dental hygienists, or dental assistants; fails to cooperate with a Board investigation; or fails to comply with the terms of a Board Order.

(7) Inability to practice safely–is physically or mentally incapable of practicing in a manner that is safe for the person’s dental patients.

(8) Discipline of a licensee by another state board–holds a license or certificate to practice dentistry or dental hygiene in another state and the examining board of that state:

(A) reprimands the person;

(B) suspends or revokes the person’s license or certificate or places the person on probation; or

(9) Failure to comply with Medicaid, insurance, or other regulatory laws–knowingly provides or agrees to provide dental care in a manner that violates a federal or state law that:

(A) regulates a plan to provide, arrange for, pay for, or reimburse any part of the cost of dental care services; or

(B) regulates the business of insurance.

(10) Improper delegation–improperly delegates any task to any individual who is not permitted to perform the task by law, this chapter, or practice restrictions imposed by Board Order.

[(5) Indicates a fee for dental services on an insurance or other third party reimbursement claim form which is other than the fee which the dentist expects to collect for services rendered.]

(11) [(6)] Unprofessional conduct engages–[Engages] in conduct that has become established through professional experience as likely to disgrace, degrade, or bring discredit upon the licensee or the dental profession.