by guest contributor, Mark R. Brengelman, JD, MA
This article provides another part into the perspective on the role of state boards of dentistry implementing the regulation of the practice of dentistry as a health care profession. This article continues as a second part to this perspective. Our prior article outlined the creation and general functions of state dental boards.
First of all, state dental board grant licenses to applicants who meet the standards to become a dentist. Second, the next biggest task for dental boards is to receive and investigate complaints, which can come from any source – patients, ex-patients (and ex-spouses and ex-employees), insurance companies, other dentists/competitors, and such. Complaints are investigated to see if there is a violation of state law governing the practice of dentistry. Resources are limited, and investigations can take too long, even too long when a dentist is exonerated and cleared after lengthy investigation. The strain while waiting for a state board to do its job, even when the result for the dentist is a good one, is a painful one to endure that waiting.
In my experience, the disciplinary actions of state dental boards (and licensure boards as a whole) that are issued are 95% remedial and rehabilitative in nature. Thankfully, only 5% of sanctions against a dental license amount to suspension or revocation of the license – not directly to punish the dentist, but to keep that person out of dentistry to protect the public. Think of an impaired dentist who shows up drunk at the dental office.
The 95% who are not such a danger can include probationary terms, monetary fines, restitution, mandated continuing education, and even retraining or reeducation. The goal there is to fix whatever is wrong, so it does not happen again. But the 5% are not fixable – or at a minimum need time out of practice to identify and to fix the problem, such as requiring an impaired dentist to complete rehab and pass drug screens in order to return to work.
As a matter of public policy, dental boards have swayed back and forth from leniency to over harshness. Some small states report not having revoked a dentist for years! State legislatures will sometimes act to wipe out and reconstitute a dysfunctional state dental board and start over with new members who will run things right – or so that’s the perception.
Sometimes a dentist, even a guilty dentist who has been rightfully sanctioned, will embark on his or her personal crusade to fight the perceived powers that be that wronged them. That sometimes results in legislative changes, too, calling for curbs on state dental boards’ powers and authority. That lasts until there is an unfortunate patient death in a dental office, such as has happened with pediatric deaths due to the faulty administration of anesthesia to a child in a routine dental procedure, when there is a public outcry about why a dental board has such lax oversight that someone would die after “just a trip to the dentist.”
State dental boards are tasked with investigating wrongdoing on a case-by-case basis. They are like the dispatcher at the 911 call center who sits there until and unless someone calls 911 – or here, makes a complaint to a state board of dentistry.
If a patient’s insurance company is double-billed for a procedure, a state dental board is tasked with investigating even that sole event. (As I have written before, the better approach in such single complaint matters is to see the billings for the last 20 procedures to identify a pattern versus an isolated incident.) Insurance companies may not want to get involved. I recall a case of alleged double-billing where the insurance company stated: “We just don’t even open a file unless the amount at issue is over a thousand dollars.” Insurance companies have little cost-benefit to pursue small dollar claims, but state dental boards pursue single-incident misconduct, no matter how small the dollar amount.
For the most part, state dental boards, their members, and employees do a good job of carrying out their mission to protect the public. But there is little public oversight beyond a dental board, and poor operations and lax enforcement can go unnoticed for too long. Having regular training and government involvement and uniformity among the state licensure boards in their laws and procedures would go a long way to helping every state licensure board function effectively.
Mark R. Brengelman, JD, MA, (Mark@MarkRBrengelmanPLLC.attorney) practices health care law in Frankfort, Kentucky, where he is the immediate past Chair of the Health Law Section of the Kentucky Bar Association. For fifteen years, he was the Assistant Attorney General assigned as General Counsel and Prosecuting Attorney to the Kentucky Board of Dentistry.