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CA Dental Board Report May 2019
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Report of the Meeting of the Dental Board of California
May 15-16, 2019

Prepared for the California Society of Pediatric Dentistry

The Dental Board of California met May 15-16 in Anaheim, California. The following report summarizes actions and issues coming before the Board pertinent to pediatric oral health.

The California Senate and Assembly joint Sunset Review Process provides a mechanism whereby periodically the Department of Consumer Affairs, the Legislature, licensing boards, stakeholders and interested parties evaluate and discuss the performance and effectiveness of the licensing entities, especially regarding public protection, and make recommendations for improvements.

On March 5 a Joint Oversight Committee hearing considered the Dental Board of California (DBC). The last previous review of the DBC was conducted in 2015. Among the items on which the Dental Board may take future action impacting pediatric dental care:

RDA PRACTICAL EXAMINATION
In April of 2017, the Dental Board voted to suspend the RDA practical examination as part of the RDA licensing process after determining that the average passage rate had dropped from 83% in 2014 to between 38% and 19% in 2017. A subsequent study by the Office of Professional Examinations Services (OPES) of the Department of Consumer Affairs found the practical did not accurately measure the competency of RDAs and recommended elimination of the examination. Specifically, OPES identified that inconsistencies in different test site conditions, deficiencies in scoring criteria, poor calibration of examiners, and the lack of a clear definition of minimum acceptable competence meant that the practical examination did not meet critical psychometric standards. At its November 2017 meeting, the DBC voted to accept the recommendation of the OPES and extended suspension of the practical examination until January 1, 2020. The Board concluded that the RDA written examination, combined with the RDA Law & Ethics examination, and the fact that RDA duties are supervised by the dentist, placed the public at little risk of harm in doing so. A practical examination, the DBC concluded, would not provide additional public protection beyond that conferred by successful completion of an educational program or a written examination.

In response to inquiry by the Joint Committee, the DBC reported that since the suspension of the practical examination in April 2017, it has issued approximately 4,500 RDA licenses and has not received a single consumer or other complaint, concluded that the practical examination is unnecessary, and recommended the current suspension of the RDA practical examination be made permanent.

Comment: Permanent elimination of the RDA practical examination will require a change in the Dental Practice Act, which the Board will seek under future legislation.

DENTAL LICENSURE BY PORTFOLIO EXAMINATION
A portfolio process for dental licensure in California was enacted in 2014, under which students build an assortment of completed clinical experiences and competencies over the normal course of their clinical training. The portfolio option gives California students an alternative to being tested on live patients over the course of several days.

Since California is the first state to institute this method of licensing, dentists who choose this route face potential difficulties seeking reciprocal acknowledgment of qualification by other states. Student participation in licensure-by-portfolio has recently lessened, possibly because of this issue.

The Joint Committee questioned whether the DBC should consider additional steps to ensure licensee mobility. The Board contends during the past four years it has responded to numerous inquiries from other states expressing interest in the California portfolio model and these states now have the road map on how to develop and implement California’s curriculum-integrated clinical examination should they choose to do so. In addition, a national movement has begun to consider using California’s hybrid portfolio examination in lieu of the clinical examination throughout the country. Efforts are being made by the American Dental Association, the American Dental Educators Association, and the American Student Dental Association to promote licensure by a compendium of clinical competencies based on California’s model. As these efforts develop, it is increasing likely that other states will recognize California’s licensing practice.

Comment: The alternative licensing process in California is passage of the Western Regional Examining Board, which is accepted by 16 states for initial licensure and many more for reciprocal licensing.

DENTAL BOARD JURISDICTION OVER CONSUMER PRODUCTS MARKETED FOR CORRECTIVE TREATMENT OF STRUCTURAL OR ESTHETIC ORAL HEALTH CONDITIONS
Today’s marketplace offers numerous products purported to improve oral health or appearance which once required an examination and delivery by the dentist and are now sold directly to consumers. An example are self-applied tooth whitening agents, in the forms of pastes, strips, and molded trays, probably posing little risk to consumers. Another field comprises orthodontic aligners, available at either a commercial storefront location or through an at-home kit mailed to the consumer. While companies offering such products describe the mailed aligners as being “reviewed” by a dental professional by remote tele-dentistry digital scanning of the arches, it is possible for a consumer to go through the process without ever actually consulting or being seen by a licensed dentist (or a dentist licensed in the state where the product sold). Dental boards in other states have begun to take action against the marketing of such products, and ongoing litigation has resulted. Tooth veneers are another product that may now be purchased outside of a dental office. Clip-on veneers allow consumers to modify oral esthetics by masking their teeth with products ordered online and created through at-home impression kits.

The Joint Committee recommended that the DBC examine its authority to oversee consumer products aimed at promoting oral health through self-applied corrective treatments and consider any recommendations for statutory change. The Board stated it would look closely at whether it should seek to narrow the application of tele-dentistry laws in order to ensure greater public protection. The DBC also stated that it will be “gathering background information on the newly recognized specialty of dental radiology to determine whether utilizing dental radiologists, outside the state, would be considered unlicensed activity.”

Comment: Ongoing litigation limits public disclosure by the Board of any specific remedies that may be under consideration or proposed in the future.

PROBATION DISCLOSURE
Legislation, known as the Patient’s Right to Know Act of 2018, passed last year, requires various health professionals on probation for specified serious offenses to provide information about their probationary status prior to a prospective patient’s initial visit. Physicians and surgeons, podiatrists, chiropractors, acupuncturists, and naturopathic doctors are included under the bill, but dentists are omitted. The Joint Committee raised the question that if the ultimate objective of probation disclosure is protecting patients from being unknowingly placed in vulnerable contexts, what clear reason exists as to why dentists should be treated differently and excluded from the requirement.

The Board responded that it already posts disciplinary actions taken against licensees, including accusations, stipulated settlements, decisions, suspensions, and license revocations on its website for the consumer to review. In addition, the DBC actively pursues revocation of the license for serious violations relating to sexual abuse or misconduct; drug or alcohol abuse; criminal convictions directly involving harm to patient health; and inappropriate prescribing. In these cases, there would likely be no probation and, therefore, the necessity for probation status disclosure would be unnecessary.

Comment: The argument is not persuasive and it is likely the Board will move forward in the future to adopt regulation that will mirror language in the Medical Practice Act to make failure to disclose probationary status known to a patient unprofessional conduct subject to disciplinary action.

IMPLEMENTATION OF SB 501 – SEDATION AND GENERAL ANESTHESIA
SB 501 (Glazer), signed into law last year, establishes a series of new requirements and minimal standards for sedation and general anesthesia in pediatric dental procedures. These provisions go into effect January 1, 2022. With the substantial amount of regulatory framework required, it is anticipated that the DBC is only in the beginning stages of preparing for implementation of SB 501. The Joint Committee requested that the Dental Board disclose any potential obstacles to implementation that may need to be addressed administratively or by the Legislature. The Board responded that while staff is looking to identify any areas of the Dental Practice Act which will need to be updated legislatively for requirements that may have been overlooked, at this time, no potential obstacles to implementation have been identified.

Comment: Outside observers are not as confident and believe there exists significant likelihood that implementation of some parts of the legislation will be pushed back until 2023 or 2024.

CONTINUING EDUCATION PROVIDERS --- CONFLICT OF INTEREST
During the Sunset Review hearings, the Board was asked by Senator Richard Pan if there is an entity responsible for reviewing continuing dental education providers for conflict of interest, if the Board has a conflict of interest policy in place to ensure providers are offering relevant continuing education and not marketing sessions, and what percentage of providers the Board audits for conflict of interest. The Board’s response was that there was not another entity reviewing continuing education providers for conflict of interest, that it does not have a specific “conflict of interest” policy or requirement for continuing education providers, and it does not conduct provider audits for conflict of interest content. Instead, the Board relies upon providers to comply with FDA regulation and ADA CERP and AGD PACE approval standards to ensure educational activities are independent of commercial influence.

Comment: It is likely that this explanation will not satisfy the legislature and that the Board will be considering regulatory reform in this arena in near future.

Respectfully submitted,

Paul Reggiardo, DDS
Executive Director, California Society of Pediatric Dentistry.

Natalie Mansour, DDS
Public Policy Advocate, California Society of Pediatric Dentistry

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