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Sunday, Jul 20 2014 09:00 PM

DENTAL DANGERS: How the Dental Board of California investigates dentists

BY RACHEL COOK Californian staff writer rcook@bakersfield.com

Consumer complaints against dentists pass through a rigorous system of investigation and dental experts before the Dental Board of California makes any disciplinary move.

In the most severe cases, the dental board turns to the California Office of the Attorney General to file an accusation -- a formal complaint -- against a dentist on the board's behalf.

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ABOUT THE BOARD

In addition to dentists, the Dental Board of California licenses registered dental assistants, registered dental assistants in extended functions and holders of orthodontic assistant or a dental sedation assistant permits.

As of May 4, the board had more than 72,200 active licenses to monitor statewide. That includes 36,235 active dental licenses -- including 340 in Kern County -- more than 34,600 active registered dental assistant licenses and 1,330 registered dental assistants in extended function. As of July, the board had a total of 41 positions in its enforcement program.

Source: Dental Board of California

THE PROCESS OF INVESTIGATING DENTISTS

In California, complaints against dentists are first received at the Dental Board of California's main office in Sacramento.

Office workers there pass them on to analysts, who gather patient records and a statement from the dentist and send the case to a dental consultant to review for possible wrongdoing, said Kim Trefry, the board's enforcement chief.

If a consultant determines no violation of the Dental Practice Act occurred, the case is closed. A closure letter is sent to the person who made the complaint and a copy of the letter is sent to the dentist.

According to Karen Fischer, the board's executive officer, the letter states if the person who filed the complaint wants a refund or re-treatment, he or she "may wish to resolve the matter through the court system as these are considered civil matters and beyond the Board's authority."

The board holds onto these complaints for one year after they are closed.

If a consultant determines something was amiss, the case is assigned to an investigator in Sacramento or the board's Orange County office. Investigators are not dentists. Some investigators are sworn peace officers that work for the dental board; they are required to have completed a certified law enforcement academy and have a bachelor's degree.

The board also has non-sworn investigators, who are not sworn peace officers and are not required to attend an academy.

Of the 41 positions in its enforcement program, 18 are sworn positions, including three supervising investigators and one chief. However, all those positions aren't always filled at any given time.

An investigator collects additional evidence, such as interviews with the patient and records from subsequent dentists who treated the patient. The investigator then sends that information to a dentist called a "subject matter expert."

"(The experts) review everything and decide whether or not (the case) met the standard of care," Trefry said. "And at that point, based on their recommendation, it goes forward for administrative action or not."

Dental experts are generally paid $100 an hour. If they appear in court, the dental board also pays their mileage and up to $1,200 per day for testimony.

A dentist who wants work as an expert for the board can fill out a three-page application available on the board's website, and submit a resume and a list of the continuing education courses attended in the past two years.

The minimum requirements for subject matter experts include no criminal convictions and no malpractice settlements, judgments or arbitration awards of more than $10,000. Nor can applicants have "any prior or current discipline" against any health-related license held in California or any other state.

Cases passing a subject matter expert's review come back to investigators, who write up a final report and submit it to a supervisor.

"Staff are responsible for noting in their case whether they believe there were sufficient facts to sustain the allegations," Fischer wrote in an email. "They also identify facts that may mitigate the allegations, or could affect the board's ability to achieve meaningful discipline."

A supervisor takes another look at the case.

"(The supervisor) reviews the final package and again makes the call, 'Yes this should go forward to discipline,' or 'Should we consider a lesser avenue like a citation?'" Trefry said.

On top of a supervisor's review, Trefry reviews the proposed disciplinary action and "may concur or recommend a different approach," Fischer said.

"Ultimately, both citations and accusations are reviewed and approved by the executive officer," she said.

From there, a case may be sent to the state attorney general's office, which represents the dental board in disciplinary cases. Unlike the relationship between a local law enforcement agency and a district attorney's office, the attorney general's office can't reject a case the dental board wants to pursue, though the office can caution the board a case might not have a good chance of winning.

A report is written when any case is closed, according to board staff. Closed cases are kept on file for five years.

ABOUT THIS SERIES

This is day one of a two-day series exposing the obstacles facing patients in California interested in knowing their dentists' history and quality of care.

SUNDAY

• Dr. Robert Tupac has a long history of patient complaints, but the Dental Board of California's lack of transparency prevents potential patients from knowing that.

• More than a dozen malpractice cases have been filed against Tupac since the 1980s.

• Tupac's patients tell their stories about his care -- good and bad.

MONDAY

• How the Dental Board of California investigates dentists -- and why you can't.

• Peer review boards are an option for unhappy patients.

• Tips on choosing a dentist.

That's what happened in the case of Dr. Robert Tupac.

Only a small number of complaints by patients result in accusations from the dental board, and those cases take an average of 2 1/2 years to resolve, and only after passing through a laborious and labyrinthian process.

While the Dental Board does post records of settlements and outcomes in disciplinary cases on its website, the law doesn’t mandate that dentists tell their patients and potential patients if they are on probation.

Disciplining dentists

In fiscal year 2012-13, the dental board received 2,868 complaints, opened 719 cases and closed 813 cases, according to data from its May meeting. Based on the data, 85 cases were referred to the attorney general's office and 19 were referred for a criminal investigation. Cases referred to the attorney general's office may have been under investigation for months.

It is rare a case ends with a dentist losing his or her license. From fiscal years 2008-09 to 2012-13, the board revoked an average of about 12 licenses each year. The board put an average of 58 dental professionals on probation each year during that same time frame.

As of March 2014, the board had revoked six licenses in the 2013-14 fiscal year.

Investigations are time-consuming: From fiscal years 2008-2009 to 2012-2013, the dental board took an average of 436 days to close a case. But cases referred to the attorney general's office for discipline took an average of about 925 days to close.

Statistics on investigations and complaints handled by the board are listed in the California Department of Consumer Affairs' annual reports and in the board's meeting materials, but it is difficult to compare numbers year-by-year because the formats of the reports periodically change and different figures are reported. The statistics are not broken down by the professions the board regulates such as dentists, registered dental assistants and registered dental assistants in extended functions.

"It's very, very time-consuming given the old databases that we have right now," said Russell Heimerich, a spokesman for the state Department of Consumer Affairs.

If the AG's office files an accusation against a dentist, it is posted on the dental board's website under dentists' license information, which can be found under the "License Verification" tab on the site.

A formal case was filed against Tupac but the dental board took no immediate steps to prevent him from practicing. Essentially, the board has two avenues it can take to immediately stop a dentist from treating patients.

One option is to request an interim suspension order from an administrative law judge to forbid a dentist from practicing. But Kim Trefry, the board's enforcement chief, said that type of order creates a time crunch for the board because an accusation -- the document outlining what the dentist did wrong and seeking to discipline the dentist -- must be filed within 45 days after the suspension order is granted.

"If it's a question of quality of care, somebody's implants didn't fit right, that's not necessarily where we would go after an interim suspension order," said Heimerich.

"So we only go after those where a dentist is actually harming consumers and there is an indication that he's gonna continue to cause grievous harm to consumers."

The second option occurs if the board deems a case particularly egregious -- such as a dentist groping patients. Then it can try to suspend the dentist's license immediately by appealing to a judge, Heimerich said. If a criminal case is in progress, the dental board can request a superior court judge prevent a dentist from practicing.

Heimerich said none of the boards under the California Department of Consumer Affairs discusses complaints against licenses as a matter of policy.

Accusation process

After an accusation is filed with the attorney general's office, as in the ongoing Tupac case or one involving any other dentist, the issue may be settled or go to a hearing before an administrative law judge.

During those hearings, the dentist's attorney and an attorney from the AG's office present their cases through the testimony of patients, dentists and expert witnesses.

The judge sends a proposed decision on the matter to the dental board. State law stipulates the dental board be comprised of eight dentists, one dental hygienist, one dental assistant and five members of the public. But there may be vacancies at any given time.

The board can adopt the judge's decision as is, or change it. Eight of the board's members must approve the judge's decision for it to be enforced.

There are other options for the dental board besides filing an accusation. It can take informal action against a dentist accused of wrongdoing by issuing a citation.

"You can have a citation essentially saying, 'Somebody didn't do something quite right,' without a fine," said Karen Fischer, the board's executive officer. "But most of our citations include a fine."

Fischer said citations are not posted on the dental board's website because they aren't considered discipline, but consumers can call the board to find out if a dentist has been cited.

"We wouldn't be able to necessarily say (to the caller) why, but we would be able to say that a citation was issued," she said.

In contrast, the Medical Board of California, which licenses and regulates physicians, posts all actions -- including warning letters -- online.

The medical board also sends out disciplinary alerts via email twice a month listing actions taken against physicians. Anyone can subscribe to these lists online. The dental board does not offer a similar notification system for the public.

The dental board does post records of settlements and outcomes in disciplinary cases on its website. But dentists disciplined by the board aren't always required to tell patients if they are on probation.

Notifying patients is not a standard requirement of all dentists' probation, said Kim Trefry, the dental board's enforcement chief.

In addition, Fischer said, it is not a requirement of current Disciplinary Guidelines or other statute or regulation.

"We cannot legally require probationary dentists to adhere to conditions outside what current law allows," Fischer said.

However, dentists may be required to post a written notice visible to all patients stating the dentist is not allowed to perform a particular dental procedure. Dentists who are required to have someone monitor them when they see certain patients -- such as women or minors -- must provide written notice to patients stating the monitor will be "present during all consultations, examinations, or treatment" with certain patients.

Administrative law judges can deviate from the board's guidelines and discipline a dentist as they see fit, according to dental board staff.

If a dentist's license is revoked, how long he or she must wait to try to regain it -- or if it can be regained -- depends on the disciplinary order.

But in general, dentists can ask the board for reinstatement after three years, according to the dental board.

Even if a dentist's license is revoked in California, he or she could potentially still practice in another state, Fischer said.

"The Dental Board of California reports adverse licensing actions to the National Practitioners Data Bank so that other states who may also hold licenses on an individual are notified of revocations and other actions," she wrote in an email. "However, it would be up to the individual states to determine what, if any, additional action they may take against the license in another state based upon action taken in California."

Who's in charge

In California, the dental board is one of boards among the 39 "regulatory entities" in the California Department of Consumer Affairs.

Along with the Medical Board of California and the Acupuncture Board, the dental board is classified as one of the department's 20 "healing arts" boards.

All of the agency's funding comes from fees paid by the professionals it regulates, including licensing fees, permits and money recovered from enforcement cases.

Until recently, California dentists paid a $365 initial fee to gain their license and thereafter a biennial license fee of $365. Both fees increased to $450 this past July 1 -- the highest amount allowed by law. The fee increase will offset a projected $2.74 million deficit for the 2014-2015 budget year, while supporting the board's enforcement program.

Dr. Mina Paul, a Boston dentist who is president-elect of the American Association of Dental Boards, said dental boards are organized differently across the country and have different levels of authority depending on their structure. How boards operate and what they can do is all determined by each state's laws.

"The dental boards function to protect the safety of the public ... and I think they do the best they can, but remember they have to operate under state law," which defines their ability to do things like budget and add staff, Paul said.

Paul said more of the public needs to know the boards are there for their protection and to speak up about concerns, whether it's the standard of care, the cleanliness of a facility or the person delivering their dental care.

"People should be aware that the dental board is there for them, for the public," Paul said.

Fran Burton, the president of the state dental board, did not return calls requesting an interview for this article.

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