HB 530: "An Act relating to dentists and dental hygienists; establishing certain committees for the discipline and peer review of dentists; excluding the adjudicatory proceedings of the Board of Dental Examiners and its committees from the Administrative Procedure Act; and providing for an effective date."
00 HOUSE BILL NO. 530 01 "An Act relating to dentists and dental hygienists; establishing certain committees for 02 the discipline and peer review of dentists; excluding the adjudicatory proceedings of the 03 Board of Dental Examiners and its committees from the Administrative Procedure Act; 04 and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 07 to read: 08 PURPOSE. It is the purpose of this Act to modify the existing framework used to 09 license and discipline dentists and dental hygienists in order to improve the practice of 10 dentistry in the state and to better protect the public. It is the further purpose of this Act to 11 provide peer review and to ensure confidentiality for the complainants and the licensee, to 12 involve licensed dentists in the decision-making process, and to better address patient and 13 public complaints. 14 * Sec. 2. AS 08.01.050 is amended by adding a new subsection to read:
01 (e) Except as otherwise provided under AS 08.36, the department shall 02 maintain the confidentiality of information involving a dental hygienist or dentist 03 licensed in the state under AS 08.32 or AS 08.36 or a person who is a patient or 04 complainant of a licensed dentist or dental hygienist if the information pertains to the 05 health, discipline, or rehabilitation of the licensee or other person. 06 * Sec. 3. AS 08.01.080 is amended to read: 07 Sec. 08.01.080. Department regulations. The department shall adopt 08 regulations to carry out the purposes of this chapter including but not limited to 09 describing 10 (1) how an examination is to be conducted; 11 (2) what is contained in application forms; 12 (3) how a person applies for an examination or license; 13 (4) how to maintain the confidentiality of information required to 14 be confidential under AS 08.01.050. 15 * Sec. 4. AS 08.32.160 is amended to read: 16 Sec. 08.32.160. Grounds for discipline, suspension, or revocation of 17 license. The board may revoke or suspend the license of a dental hygienist, or may 18 reprimand, censure, or discipline a licensee, or impose another form of discipline 19 that the board determines is warranted and necessary, including a fine, if, after a 20 hearing, the board finds that the licensee 21 (1) knowingly used [OR KNOWINGLY COOPERATED IN] deceit, 22 fraud, or intentional misrepresentation to obtain a license or registration; 23 (2) engaged in deceit, fraud, or intentional misrepresentation in the 24 course of providing or billing for professional services or engaging in professional 25 activities; 26 (3) advertised professional services in a false or misleading manner; 27 (4) has been convicted of a felony or other crime that affects the 28 licensee's ability to continue to practice competently and safely; 29 (5) failed to comply with this chapter, with a regulation adopted under 30 this chapter or under AS 08.36, or with an order of the board; 31 (6) continued to practice after becoming unfit due to
01 (A) professional incompetence; 02 (B) addiction or dependence on alcohol or other drugs that 03 threatens or compromises patient care, has the potential to compromise 04 patient care, or impairs the licensee's ability to practice safely; 05 (C) physical or mental disability; 06 (D) failure to keep informed of or use current professional 07 theories and practices; 08 (7) engaged in lewd or immoral conduct in connection with the 09 delivery of professional service to patients; 10 (8) performed clinical procedures for compensation without being 11 under the supervision of a licensed dentist. 12 * Sec. 5. AS 08.32.171 is repealed and reenacted to read: 13 Sec. 08.32.171. Disciplinary sanctions. The board may summarily suspend 14 the license of a licensee who refuses to submit to a physical or mental examination 15 under AS 08.36.070(b)(1) upon proof by clear and convincing evidence that the 16 licensee poses an immediate threat of harm to patient care in the absence of a physical 17 or mental examination. A decision to suspend a license under this section is a final 18 administrative decision subject to judicial review under AS 44.62.560 and 44.62.570. 19 * Sec. 6. AS 08.36.010(a) is amended to read: 20 (a) There is created the Board of Dental Examiners consisting of nine 21 members. Six members shall be actively licensed dentists under this chapter who 22 have been engaged in the practice of dentistry in the state for at least five years 23 immediately preceding appointment, two members shall be dental hygienists actively 24 licensed under AS 08.32 who have been engaged in the practice of dental hygiene in 25 the state for at least five years immediately preceding appointment, and one member 26 shall be a public member. 27 * Sec. 7. AS 08.36.030 is repealed and reenacted to read: 28 Sec. 08.36.030. Officers. The board shall elect a president, vice-president, 29 and secretary from among its members, each to serve a term of not more than two 30 years. If the president is absent or incapable of performing the duties of president, the 31 vice-president shall succeed to the presidency until the president is able to return to the
01 duties of president. All officers must be licensed dentists except for the position of 02 secretary. The president's duties include coordination, supervision, and direction of the 03 functions of the board, with the assistance of the department or other staff and the 04 concurrence of the board. 05 * Sec. 8. AS 08.36.040 is amended to read: 06 Sec. 08.36.040. Meetings. The board shall meet at the call of the president at 07 least four times annually and at other times necessary to conduct its business. In the 08 absence of a call of the president, a majority of the board may call a meeting. A 09 meeting of the board may be conducted telephonically except for a meeting 10 conducted for the purpose of holding a disciplinary hearing. A disciplinary 11 hearing shall be conducted in person. 12 * Sec. 9. AS 08.36.070 is amended to read: 13 Sec. 08.36.070. General powers. (a) The board shall 14 (1) provide for the examination of applicants and issue licenses to 15 those applicants it finds qualified; 16 (2) register licensed dentists and licensed dental hygienists who are in 17 good standing; 18 (3) affiliate with the American Association of Dental Examiners and 19 pay annual dues to the association; 20 (4) establish peer review and confidentiality procedures for 21 hearings, conduct investigations, hold hearings, and order the disciplinary sanction 22 of a person who violates this chapter, AS 08.32, or a regulation of the board; 23 (5) supply forms for applications, licenses, permits, certificates, and 24 other papers and records; 25 (6) enforce the provisions of this chapter and AS 08.32 and adopt or 26 amend the regulations necessary to make the provisions of this chapter and AS 08.32 27 effective; 28 (7) adopt regulations ensuring that renewal of registration is contingent 29 upon proof of continued professional competence by a licensed dentist or licensed 30 dental hygienist; 31 (8) provide the department with the requirements for proof of
01 continued professional competence and request the department to make these 02 requirements available to each licensed dentist and licensed dental hygienist at least 03 one year before the date on which the dentist or dental hygienist must renew 04 registration; 05 (9) at least annually cause to be published in a newspaper of general 06 circulation in each major city in the state a summary of disciplinary actions the board 07 has taken during the preceding calendar year that identifies only the name of the 08 licensee, the type of discipline imposed, and a reference to the statute or 09 regulation violated by the licensee; 10 (10) issue permits or certificates to licensed dentists, licensed dental 11 hygienists, and dental assistants who meet standards determined by the board for 12 specific procedures that require specific education and training; 13 (11) regulate the reentry into practice of inactive dentists and dental 14 hygienists; 15 (12) require, as a condition of a license or license renewal issued by 16 the board, that an applicant or licensee has, at the time of licensing or renewal and 17 maintains throughout the period of a license, current certification in cardiopulmonary 18 resuscitation techniques, except that the board may waive this requirement under an 19 agreement with the applicant or licensee if the applicant or licensee documents, to the 20 satisfaction of the board, the existence of a physical impairment that results in an 21 inability to be certified in cardiopulmonary resuscitation techniques and the agreement 22 specifies that the applicant or licensee will ensure that another person who is certified 23 in cardiopulmonary resuscitation techniques will be in the same room as the applicant 24 or licensee whenever the applicant or licensee is practicing dentistry on a living patient 25 who is also present; the board may include in the agreement an expiration date or 26 provide that the agreement remains in effect until reviewed by the board; 27 (13) maintain confidentiality over patient, complainant, and 28 licensee information that contains personal health information or is otherwise 29 required to be kept confidential under federal or state law; 30 (14) employ or contract for legal, investigative, and administrative 31 services as necessary to carry out the board's duties under this chapter;
01 (15) establish and monitor an informal and confidential chemical 02 dependency intervention program that may include a licensee's colleague, family 03 member, or friend. 04 (b) The board or its designee may 05 (1) order a licensed dentist or licensed dental hygienist to submit to a 06 reasonable physical or mental examination if there is substantial recent evidence 07 that the dentist's or the dental hygienist's physical or mental capacity to practice safely 08 is at issue and the examination is reasonably necessary to determine whether the 09 licensee has violated AS 08.32 or this chapter; an examination ordered by the 10 board shall be conducted in the state by a person who is licensed in the state and 11 otherwise qualified to perform the examination, as determined by the board; a 12 licensee may submit for the board's consideration another medical evaluation in 13 addition to an examination ordered by the board; and 14 (2) authorize its representative to inspect the practice facilities or 15 patient or professional records of a dentist at reasonable times and in a reasonable 16 manner to monitor compliance with this chapter and with AS 08.32. 17 * Sec. 10. AS 08.36.080 is repealed and reenacted to read: 18 Sec. 08.36.080. Application of Administrative Procedure Act. (a) The 19 administrative adjudication procedures of AS 44.62 (Administrative Procedure Act) 20 do not apply to adjudicatory proceedings of the board or the board's committees 21 except that final administrative determinations by the board are subject to judicial 22 review as provided in AS 44.62.560 and 44.62.570. 23 (b) AS 44.62.010 - 44.62.320 and 44.62.640 apply to regulations adopted by 24 the board. 25 * Sec. 11. AS 08.36.315 is amended to read: 26 Sec. 08.36.315. Grounds for discipline, suspension, or revocation of 27 license. The board may revoke or suspend the license of a dentist, or may reprimand, 28 censure, or discipline a dentist, or both, or impose another form of discipline that 29 the board determines is warranted and necessary, including a fine, if the board 30 finds after a hearing that the dentist 31 (1) knowingly used or knowingly cooperated in deceit, fraud, or
01 intentional misrepresentation to obtain a license; 02 (2) engaged in deceit, fraud, or intentional misrepresentation in the 03 course of providing or billing for professional dental services or engaging in 04 professional activities; 05 (3) advertised professional dental services in a false or misleading 06 manner; 07 (4) received compensation for referring a person to another dentist or 08 dental practice; 09 (5) has been convicted of a felony or other crime that affects the 10 dentist's ability to continue to practice dentistry competently and safely; 11 (6) engaged in the performance of patient care, or permitted the 12 performance of patient care by persons under the dentist's supervision, that does not 13 conform to minimum professional standards of dentistry regardless of whether actual 14 injury to the patient occurred; 15 (7) failed to comply with this chapter, with a regulation adopted under 16 this chapter, or with an order of the board; 17 (8) continued to practice after becoming unfit due to 18 (A) professional incompetence; 19 (B) failure to keep informed of or use current professional 20 theories or practices, except that a dentist's choice to employ one of several 21 acceptable treatment modalities may not be grounds for discipline; 22 (C) addiction or dependence on alcohol or other drugs that 23 threatens or compromises patient care, has the potential to compromise 24 patient care, or impairs the dentist's ability to practice safely; 25 (D) physical or mental disability that cannot be overcome 26 through an accommodation for purposes of complying with this chapter; 27 (9) engaged in lewd or immoral conduct in connection with the 28 delivery of professional service to patients; 29 (10) permitted a dental hygienist or dental assistant who is employed 30 by the dentist or working under the dentist's supervision to perform a dental procedure 31 in violation of AS 08.32.110 or AS 08.36.070(a)(10);
01 (11) failed to report to the board a death that occurred on the premises 02 used for the practice of dentistry within 48 hours. 03 * Sec. 12. AS 08.36.315 is amended by adding new subsections to read: 04 (b) The board may not discriminate against a licensee solely on the basis of a 05 mental or physical impairment or disability. The board may reinstate a license of a 06 person who suffers from a mental or physical impairment or disability on proof of 07 completion of rehabilitation through an accredited rehabilitation program designed for 08 professionals and consistent with regulations adopted under this chapter. When 09 making a decision under this section that is based on the existence of a physical or 10 mental impairment or disability, the board shall comply with federal law. The board 11 shall consider voluntary rehabilitation completed by a licensee as a mitigating 12 circumstance in determining the form of discipline to impose on a licensee. The board 13 shall consider a failure to complete a rehabilitation program by a licensee as an 14 aggravating circumstance in determining the form of discipline to impose on a 15 licensee. 16 (c) The governing principle of all disciplinary actions shall be direct, 17 confidential, and candid peer review under AS 08.36.316, with a focus on solving and 18 correcting deficiencies, not punishing or humiliating a licensee. 19 (d) In this section, a "mental or physical impairment or disability" includes 20 addiction to drugs or alcohol. 21 * Sec. 13. AS 08.36 is amended by adding a new section to read: 22 Sec. 08.36.316. Disciplinary and peer review procedures. (a) The board 23 shall conduct disciplinary proceedings consistent with principles of substantive and 24 procedural due process and by using peer review, when applicable, as described in this 25 section. 26 (b) A person may file a written complaint with the board on a form provided 27 by the board and signed by the complainant for actions involving a person licensed 28 under this chapter. The complaint must contain a clear statement of the details of each 29 act of alleged misconduct, including the approximate place and time of the act. 30 (c) The department shall mail a copy of the complaint to the licensee within 30 31 days after receipt of the complaint and shall provide notice to the licensee of the
01 requirement to provide an answer within 30 days after receipt of the notice. Failure to 02 file a timely answer may be presumed to be an admission of guilt except that a 03 licensee may not be compelled to provide evidence of criminal wrongdoing. 04 (d) The department shall conduct a preliminary investigation and determine 05 whether to dismiss the complaint for insufficiency of evidence to support the 06 allegation. If the department determines that a complaint contains some factual basis, 07 the department shall present the complaint and supporting documentation to the board 08 president. The board president may return the complaint to the department for further 09 investigation or submit the complaint and supporting documentation to the board with 10 a recommendation for dismissal of the complaint, submission of the complaint to a 11 disciplinary committee, or submission of the complaint to mediation by a peer review 12 committee. The board president may not recommend mediation by a peer review 13 committee, nor may the board refer a matter for mediation by a peer review 14 committee, if the allegations in the complaint include fraud, sexual misconduct, 15 criminal activity, or prescription medication abuse. 16 (e) If the board does not dismiss a complaint submitted to it by the board 17 president under (d) of this section and peer review mediation is not prohibited under 18 (d) of this section, the board shall refer the complaint for mediation by a peer review 19 committee. The board shall appoint a peer review committee to attempt to mediate a 20 matter referred for peer review. The department may employ or contract for the 21 services of a mediator who is either a dentist or an attorney licensed to practice in the 22 state. Mediation shall be informally conducted without regard to the rules of evidence. 23 The peer review committee shall issue a determination with written findings and 24 decision and serve it on the licensee. The peer review committee may decide to 25 dismiss a complaint, subject to the approval of the board, refer the matter to the 26 disciplinary committee, or mediate the complaint. If mediation is successful, the 27 complaint shall be closed subject to the terms of the mediation and the approval of the 28 board. The board shall approve a mediated agreement under this subsection unless 29 good cause is shown that the agreement is contrary to law or the facts of the case. The 30 peer review committee may oversee a resolution that the parties agree on, including 31 refunds, payment of damages, release of claims, fines, disciplinary action, or other
01 action that is just and equitable under the circumstances. The peer review committee 02 proceedings and records are confidential and are not subject to the public records law 03 under AS 40.25.100 - 40.25.220. The committee may request the assistance of 04 counsel through the department and the Department of Law. 05 (f) Within 30 days after service of the peer review committee findings and 06 decision, a party to the peer review may appeal the peer review committee's findings 07 and decision to the board if the decision includes a recommendation for disciplinary 08 action by the board. The appeal shall be limited to a decision by the board of whether 09 sufficient evidence supported the findings and decision of the peer review committee. 10 An appeal to the board under this subsection does not disqualify the board from 11 reviewing further decisions on the matter. 12 (g) The board shall appoint a disciplinary committee made up of three actively 13 licensed dentists who have each been engaged in the practice of dentistry in the state 14 for at least five years in the same field as the licensee. The disciplinary committee 15 shall review complaints referred to it by a peer review committee or by the board. The 16 disciplinary committee is not bound by a peer review committee's findings in cases 17 that have involved peer review and may fully reconsider the issues and conduct an 18 evidentiary hearing consistent with the court rules of evidence and civil procedure. 19 The parties may be represented by counsel at a proceeding of the disciplinary 20 committee. After a hearing, the disciplinary committee shall issue written findings 21 and a decision that dismisses the case, accepts the findings of a peer review committee 22 with or without modification and orders disciplinary action, remands the matter back 23 to a peer review committee, or orders disciplinary action. The department shall 24 provide necessary staff to support the disciplinary committee except that disciplinary 25 and enforcement actions shall be taken only by a member of the disciplinary 26 committee, the peer review committee, or the board. Each member of the disciplinary 27 committee shall be present during the presentation of evidence in order to participate 28 in the decision on a matter. The disciplinary committee may resolve a complaint 29 through a stipulated agreement with the licensee in lieu of a hearing at any stage in the 30 proceedings. The committee may contract, subject to the approval of the board, with 31 independent legal counsel.
01 (h) Within 30 days after service of a disciplinary committee decision, a party 02 may appeal the decision to the board. The board shall conduct a review on the record 03 of the disciplinary committee and shall rule on the appeal by affirming the decision or 04 remanding the matter to the disciplinary committee with instructions. A party may 05 appeal a board decision to the superior court for a de novo hearing. 06 (i) Decisions made under this section shall be made by a quorum of the 07 committee membership. 08 (j) The disciplinary committee shall 09 (1) appoint and supervise department staff to assist a disciplinary 10 committee, subject to the approval of the board; 11 (2) supervise the investigation of complaints involving a licensee 12 except those required to be brought before a peer review committee; 13 (3) conduct disciplinary hearings and hire counsel for assistance or 14 request the department to provide counsel through the Department of Law, subject to 15 the approval of the board; 16 (4) review and modify the findings of fact, conclusions of law, and 17 recommendations of a peer review committee; 18 (5) recommend and impose discipline or order a complaint dismissed, 19 subject to board confirmation, within 90 days after concluding a hearing on a matter; 20 (6) issue a reprimand, subject to the approval of the board; 21 (7) maintain complete and confidential records of all disciplinary 22 matters in which the disciplinary committee participates; 23 (8) issue subpoenas requested by regulatory bodies in other 24 jurisdictions; 25 (9) consider and rule on prehearing motions under the Alaska Rules of 26 Civil Procedure or regulations adopted by the board. 27 (k) A licensee may appeal a decision of the disciplinary committee to the full 28 board by filing a written notice of appeal on a form provided by the board within 30 29 days after receiving notice of a decision of the disciplinary committee. The board 30 shall review the evidence and the conclusions and recommendations. The board shall 31 issue a written decision within 30 days after receiving the notice of appeal and shall
01 mail a copy of the decision to the licensee. A board decision under this section is a 02 final administrative decision subject to appeal to the superior court. Documents 03 pertaining to an administrative appeal are confidential, and the heading shall be styled 04 "in the matter of" followed by the licensee's initials. 05 (l) Evidence at any stage of a disciplinary proceeding may include testimony 06 of patients of the licensee and of expert witnesses. An expert shall be certified to 07 testify before the board only if the expert is a licensed dentist in good standing and is 08 actively engaged in the practice of dentistry. 09 (m) The attorney for the licensee is entitled to receive copies of all relevant 10 material, including names of witnesses and investigative records in the possession and 11 control of the board. The department shall provide copies to the licensee not later than 12 60 days before a disciplinary hearing. Failure to timely disclose relevant evidence 13 shall result in the exclusion of the nondisclosed evidence. 14 (n) Disciplinary committees and peer review committees established under 15 this section are review organizations for the purposes of AS 18.23.005 - 18.23.070. 16 * Sec. 14. AS 08.36.317 is amended to read: 17 Sec. 08.36.317. Civil fine authority. Notwithstanding AS 08.01.075(a), in a 18 disciplinary action, the board may impose a civil fine not to exceed $250,000 19 [$25,000] for each complaint resulting in a finding of a violation or violations of 20 this chapter or of a regulation adopted under this chapter. 21 * Sec. 15. AS 08.36.320 is amended by adding a new subsection to read: 22 (f) For purposes of implementing the board's power to summarily suspend a 23 license under AS 08.01.075(c), the term "clear and immediate danger to the public 24 health and safety" in AS 08.01.075(c), as applied to persons licensed under this 25 chapter, means that the licensee's physical or mental condition or professional 26 judgment is such that patients will likely suffer serious injury or death if the licensee is 27 permitted to continue to practice dentistry. Proof of "clear and immediate danger to 28 the public health and safety" shall be by clear and convincing evidence and shall be 29 based on verifiable recent harm to patients when there was a substantial probability of 30 death or serious personal injury to the patient. 31 * Sec. 16. AS 18.23.070(5) is amended to read:
01 (5) "review organization" means 02 (A) a hospital governing body or a committee whose 03 membership is limited to health care providers and administrative staff, except 04 where otherwise provided for by state or federal law, and that is established by 05 a hospital, by a clinic, by one or more state or local associations of health care 06 providers, by an organization of health care providers from a particular area or 07 medical institution, or by a professional standards review organization 08 established under 42 U.S.C. 1320c-1, to gather and review information relating 09 to the care and treatment of patients for the purposes of 10 (i) evaluating and improving the quality of health care 11 rendered in the area or medical institution; 12 (ii) reducing morbidity or mortality; 13 (iii) obtaining and disseminating statistics and 14 information relative to the treatment and prevention of diseases, illness, 15 and injuries; 16 (iv) developing and publishing guidelines showing the 17 norms of health care in the area or medical institution; 18 (v) developing and publishing guidelines designed to 19 keep the cost of health care within reasonable bounds; 20 (vi) reviewing the quality or cost of health care services 21 provided to enrollees of health maintenance organizations; 22 (vii) acting as a professional standards review 23 organization under 42 U.S.C. 1320c; 24 (viii) reviewing, ruling on, or advising on controversies, 25 disputes, or questions between a health insurance carrier or health 26 maintenance organization and one or more of its insured or enrollees; 27 between a professional licensing board, acting under its powers of 28 discipline or license revocation or suspension, and a health care 29 provider licensed by it when the matter is referred to a review 30 organization by the professional licensing board; between a health care 31 provider and the provider's patients concerning diagnosis, treatment, or
01 care, or a charge or fee; between a health care provider and a health 02 insurance carrier or health maintenance organization concerning a 03 charge or fee for health care services provided to an insured or enrollee; 04 or between a health care provider or the provider's patients and the 05 federal or a state or local government, or an agency of the federal or a 06 state or local government; 07 (ix) acting on the recommendation of a credential 08 review committee or a grievance committee; 09 (B) the State Medical Board established by AS 08.64.010; 10 (C) a committee established by the commissioner of health and 11 social services and approved by the State Medical Board to review public 12 health issues regarding morbidity or mortality; at least 75 percent of the 13 committee members must be health care providers; 14 (D) the state Board of Dental Examiners established under 15 AS 08.36.010 and a disciplinary or peer review committee established by 16 the Board of Dental Examiners. 17 * Sec. 17. AS 44.62.330(a)(3) is repealed. 18 * Sec. 18. The uncodified law of the State of Alaska is amended by adding a new section to 19 read: 20 APPLICABILITY. Section 13 of this Act applies to complaints filed on or after the 21 effective date of this Act. 22 * Sec. 19. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 TRANSITIONAL PROVISION; BOARD MEMBERS. Notwithstanding 25 AS 08.36.010(a), as amended by sec. 6 of this Act, a member of the Board of Dental 26 Examiners who holds a position on the board on the day before the effective date of this Act 27 may continue to hold the position, subject to removal as provided by law, until the person's 28 term expires. Appointments occurring on or after the effective date of this Act are governed 29 by AS 08.36.010(a), as amended by sec. 6 of this Act, whether the appointment is for a new 30 term or to fill the unexpired portion of a term. 31 * Sec. 20. This Act takes effect immediately under AS 01.10.070(c).