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Texas sunset panel calls for “sweep” of dental board over non-public-safety agenda

Update: In response to concerns about the deregulation of dental assistants, in its final recommendation, issued in August, the Texas Sunset Commission altered a recommendation by its staff to eliminate licensure for dental assistants, instead recommending that the state consolidate the separate certification provisions for dental assistants – four in all – into one.

 

After several months of staff reports and hearings, and over the board’s objections, the Texas Sunset Commission agreed in August to recommend a “sweep” of the Board of Dental Examiners, slashing its membership from 15 to 11 and reducing the number of dentists on the board from 8 to 4.

The reason, the Commission says: “The unusually large dental board inappropriately focuses on issues unrelated to its public safety mission.” The sunset reviewers also found that state regulation of dental assistants is unnecessary and should be discontinued, and that the board lacks key enforcement tools to ensure dentists are prepared to respond to increasing anesthesia concerns.

According to the Sunset Commission, the board’s large size is a relic of days before 2013, when technical complaint reviews started being contracted out to a panel of experts. “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,” the report says.

Leading examples were rulemaking on dental office ownership—ultimately withdrawn—and rules on specialty advertising, which did not survive a court challenge. The Sunset Commission was blunt: “While this board was pursuing these two dead-end rule packages—and still has another regarding sleep apnea being challenged in court—it missed numerous signs that it was on the wrong road.”

The dental board has a fractious history in Texas. In 1993 it was abolished through a sunset review—according to the Sunset Commission, because of a “legislative skirmish” not of the board’s making. (The board was re-created in 1995.) More recently, the board has faced criticism over its enforcement record plus high turnover of leaders including four executive directors and general counsels in the last five years.

The board is opposed to cutting its membership as drastically as the Commission proposes, but said it could compromise on an 11-member board. It proposed a makeup of six dentist members (preferably from different practice areas), two dental hygiene members, and three members representing the public.

One area that needs stronger enforcement, the Sunset Commission believes, is anesthesia, the subject of increased patient complaints. Unlike most other states, Texas does not require office inspections for dentists delivering parenteral anesthesia (i.e. intravenous or intramuscular injection). The Commission recommends a new statue authoring such routine, non-complaint-based inspections.

On the anesthesia inspection recommendation, the board said it agreed. However, it objected to the Sunset Commission staff’s use of board-compiled data on investigations involving administration of anesthesia. According to the board, its database cannot reliably isolate data from investigations involving anesthesia, and the information is confidential and not disseminated publicly.

The sunset commissioners believe certification of the state’s 50,469 dental assistants is unneeded because there is a very low volume of meaningful complaint and enforcement activity. Gaps in regulatory requirements—e.g. dental assistants may perform x-rays without registering with the board for one year at one dentist’s office, then renew that one year exemption at a different office—undermine the promise of public safety too, the report notes.

The board, on the other hand, said it believes regulation of dental assistants is essential to public protection, but it proposed statutory revisions to help overcome the inefficiencies of the certificate program by creating one unified dental assistant registration, and requiring the board to adopt rules to address delegable duties and training or experience needed to perform certain dental assistant tasks. Deregulation could present dangers, the board said. It urged the Commission “to weigh the potential patient harm when services such as dental radiology, nitrous oxide monitoring, as well as pit and fissure procedures could be performed by an unregulated individual.”