The State Board of
Dentistry—What Does It Mean To You?
There is very little instruction in dental school regarding your roles and responsibility under the State Board of Dentistry. Likewise, once you are out of school and focusing on your practice, there is little time to consider the State Board of Dentistry. As a result, dentists often have a misconception of what the State Board of Dentistry is and what it does. Many individuals view it similar to the Department of Transportation in relation to one's driver's license. In other words, it is merely an entity that you must periodically communicate with to renew your license. Although there are some minimal similarities, the scope of the impact and supervision the State Board of Dentistry has over your dental license is much more extensive than what the Department of Transportation has over every individual holding a driver°s license
Other individuals view the State Board of Dentistry as a source of information regarding your practice and as an advocate on your behalf. Although the State Board of Dentistry does provide limited information to assist in compliance with the technical aspects of licensure, it does not serve as a general repository for practice-related information. In addition, the Board routinely takes the position that it does not have the ability to provide advisory opinions regarding questions concerning the propriety of a practice question. Therefore, specific questions of whether one's practice decision comports with the statutory and regulatory requirements are met with a response that the Board cannot provide such advice and that you must use your best judgment.
Likewise, as a governmental entity, the State Board of Dentistry is not an advocate for your profession. This role is filled through professional organized entities such as the Pennsylvania Dental Association.
Technically, the State Board of Dentistry is comprised of the Secretary of Health, or his designee, the Director of the Bureau of Consumer Protection in the Office of the Attorney General, or his designee, the commissioner of Professional and Occupational Affairs and ten additional members. Of the ten additional members, seven shall be dentists; one shall be a dental hygienist, and the other two at-large public members. Although, the act sets forth more than twenty specific duties of the Board, generally speaking, the role of the State Board of Dentistry is to determine the qualifications necessary for licensure as a dentist or an auxiliary personnel; regulate the practice of dentistry in the Commonwealth of Pennsylvania; and protect the citizens of the Commonwealth in relation to their dental care.
In relation to regulating the practice of dentistry, the state dental law and the regulations promulgated under it, define what dentists and auxiliary personnel are supposed to do in relation to the profession and what additional steps are necessary to ensure proper licensure. It is incumbent upon all licensed professionals to have a working knowledge of the legal and regulatory requirements of their practice. The State Board of Dentistry has made available copies of the dental law and regulations in convenient pamphlet form. Requests for these pamphlets can be submitted to: The Department of State, Bureau of Professional and Occupational Affairs, State Board of Dentistry, P.O. Box 2649, Harrisburg, PA 17105-2649
It is good practice for every licensee to have a copy of these materials and periodically review the same. It is these legal provisions that set the minimum standards for licensure and, therefore, practice, and define what is permissible in terms of form of practice, qualifications and the like. They also control more direct practice-related matters such as advertising, record keeping, prescribing practices and anesthesia requirements.
Maintaining a working understanding of these requirements and keeping abreast of developments in your professional field will go a long way in protecting you from any disciplinary proceeding before the State Board of Dentistry. However, as a result of its goal of protecting the citizens of the Commonwealth of Pennsylvania, the State Board of Dentistry also provides a vital role in serving as the watchdog, or police force, of its licensees. In this capacity, the State Board of Dentistry serves as the ultimate adjudicator of unprofessional conduct.
The statistical data for the year ending December 31, 2004 reveals the Bureau of Professional and Occupational Affairs opened 395 new cases that year, bringing its total of open files to 458. For the same calendar year 375 cases were closed. Discipline, ranging from a revocation to fine, was imposed in 97 of the cases. Although 278 of the cases closed did not (yet) result in discipline, 192 of them were combined with another existing file. The adjudication of disciplinary enforcement as brought by the Bureau is an important aspect of the State Board's functions.
Many practitioners view the filing of a civil malpractice claim by a patient as the worst possible professional occurrence they can face. Although this is clearly a stress-producing event, a typical civil malpractice case will not pose the threat of an interruption to your active practice or jeopardize your ability to continue in your chosen profession. A disciplinary action initiated by the State Board of Dentistry can.
In light of the severity of such an investigation, I will devote the remainder of this article to discussing the procedures associated with a Dental Board investigation and subsequent prosecution.
There are generally three ways in which an investigation can begin; receipt of a complaint; internal audit or review; and the filing of a malpractice civil suit. The Board has made available to individuals a complaint form by which they can lodge allegations against a licensee. These forms are available through the Bureau of Professional and Occupational Affairs, as well as on the Department of State webpage. Complaints can be made out by disgruntled patients, other practitioners who have a concern over the activity of a licensee, and other types of licensees. In terms of the last group, often times pharmacists will make a report should they have a question regarding the prescribing practices of another licensee.
In addition to receipt of complaints, the Board often times becomes aware of a concern with the violation of the act or regulatory provisions through its own internal procedures. These type of actions most commonly are associated with a practitioner allowing a license or anesthesia permit to lapse, failure to comply with the continuing education requirements, or having been found guilty of a criminal offense or having discipline imposed in another state. These types of occurrences can surface during the license renewal process, a continuing education audit, or in the case of crimes or other disciplinary actions, reports from the District Attorney or other state. These types of omissions are routinely viewed as minor by the practitioner. However, they often give rise to a black and white violation of the law or regulations and, therefore, present an easy area for prosecution.
In terms of these types of events, the Board has recently indicated that they are going to give a closer look to disciplinary proceedings arising out of a practitioner's failure to obtain the requisite continuing education requirements. Historically, they have viewed the failure to obtain the required CE courses as a single violation. However, they are now going to examine the facts surrounding the omission for purposes of determining whether the dentist also made a material misrepresentation in verifying on their renewal application that they had obtained the required CE courses. If it was a close call and perhaps some classes did not qualify then it is likely to still be a single violation. If however, the dentist did not take any courses and still verified compliance, it is likely to be two violations.
Finally, as part of the efforts to curtail the malpractice crisis in the Commonwealth of Pennsylvania, there are new requirements that all malpractice claims filed against licensed healthcare providers be reported to the respective board for the initiation of an investigation. Due to the number of these cases, it is believed that the investigations are actually being placed on hold until resolution of the underlying civil matter.
The Bureau of Enforcement and Investigation has taken the position that all complaints received must be investigated. Once grounds for an investigation exist, the dentist can expect to hear of the matter generally in one of two ways. In terms of complaints received, the Bureau will send out one of its investigators to collect information regarding the facts surrounding the complaint. (In limited situations, misuse of auxiliary personnel, diversion of drugs and the like sometimes undercover agents are used) Although as a condition of your licensure, dentists are required to cooperate with the investigators, this cooperation should be handled carefully. Often times, practitioners believe that they can "clear up the misunderstanding once they tell their version of the events." Although the investigators from the Bureau of Enforcement and Investigation conduct themselves in a professional manner, you must recognize that they are essentially acting as a police officer investigating a crime wherein you are the potential wrongdoer. Therefore, similar to the Miranda rights often repeated on television, anything you say can and will be used against you. (Since it is not a criminal investigation, you are not entitled to receive Miranda rights before the interview.)
The investigator is not likely to provide you with a copy of the complaint they are investigating. However, if asked, they will routinely read the same verbatim. They also may serve you with a subpoena requiring you to produce a patient's chart or other documentary evidence pertinent to the case.
When an investigator arrives at your office, it is appropriate to indicate that you would like to reschedule the meeting at a time that is convenient for you and your counsel. Do so in a professional and courteous manner. If a request is made for the chart, and the chart can be easily copied at the time, it is not a problem to provide the investigator with the chart at that time. Be sure to retain the originals and clearly identify all that was produced. After initial contact by the investigator, you should contact your malpractice carrier to determine whether you have coverage for administrative matters. Although it is unlikely that coverage is available for any civil penalties imposed, some carriers do provide coverage for the costs of an attorney to represent your interests.
If your carrier will not provide you with an attorney, you should contact one on your own. I recognize it may appear self-serving for an attorney to recommend that you contact an attorney. However, I have frequently heard from hearing examiners, former Board members, prosecuting attorneys and investigators, how licensees have damaged their own interests by trying to handle the situation on their own. When contacting an attorney, you should look for someone with experience before the licensing boards. Although the proceedings may not be that much different from other areas of the law, they do offer certain subtleties. Experience with the procedures and parties involved can prove very beneficial. The Pennsylvania Dental Association can provide you with some recommendations. Likewise, a telephone call to your local bar association may produce some recommendations. Additionally, the attorney who handles your other legal needs may be able to handle the matter or suggest someone who can. Recognize, however, that the attorney who did a wonderful job negotiating the acquisition of your building may not be as equally adept at representing you before the Board.
Once the appointment with the investigator is rescheduled, you should provide a copy of any materials previously provided to the investigator to your attorney. Additionally, you should speak with your attorney so as to gain an understanding of what is at issue, what the likely lines of inquiry to be and how you should best respond. The meeting with the investigator should commence with him or her reading the allegations of the complaint. They will then typically ask for your version of the events in your own words. Following the meeting, you will be provided an opportunity to supply a written response within 7 to 10 days. You should take advantage of this opportunity so as to clearly set forth your position and perhaps clear up any confusion created during the oral interrogation. I would suggest the response come from your attorney so that it does not improperly limit your testimony at any subsequent hearing.
Once the investigator completes his investigation, he or she will prepare a report to be sent to the reviewing prosecuting attorney. The report will include any written response provided on your behalf, notes of his interviews with witnesses, and any documents obtained. The prosecuting attorney will then review the investigator's report to make a determination as to whether to proceed with a formal disciplinary action. They will then make a recommendation to their supervisor.
Once the prosecuting attorney makes the determination, they will write to you indicating the results of the investigation. If they determine not to prosecute, they will send a letter to that effect. This closing letter will often indicate that you should utilize caution in your practice as you move forward, that the materials collected will be maintained, and the prosecutorial division reserves the right to reopen the case should additional information become available.
If the prosecuting attorney believes that disciplinary action is appropriate, he or she will then cause an Order to Show Cause to be filed. This is the official document setting forth the allegations against you. It will inform you that if a violation is found, it could result in the imposition of a disciplinary penalty. The penalties range from a reprimand, to probation, suspension, or even revocation of your license. In addition, civil penalties of $1,000 for each count are possible as are requirements for additional training or continuing education. Further for any penalty greater than a reprimand the Board causes a notice to be placed in a newspaper of general circulation in the licensee's community identifying the nature of the case and penalty imposed. Occasionally, the prosecuting attorneys will include a proposed Consent Agreement along with the Order to Show Cause in an effort to resolve the matter short of a formal hearing. The Order to Show Cause will inform you of your obligation to respond in writing within 30 days. Again, you should refrain from contacting the prosecuting attorney directly. Although they will treat you with professionalism and suggest that you contact an attorney on your own, recognize that they are the proverbial other side in this fight. Therefore, statements or admissions you make may jeopardize your rights further in the proceeding. Likewise, you should not contact "your friend" on the Board. At this stage, they will not know the particulars of your case, could not do anything even if they did, and you would be putting them in a difficult position.
In situations wherein the investigation starts as a result of an internal audit or review by the Board itself, you often will not be contacted by an investigator. Instead, your first contact will be with the prosecuting attorneys office. If this is the case, then this would be the time to contact your carrier and obtain counsel.
Upon receipt of the Order to Show Cause, often times, you or your attorney will be able to explore with the prosecuting attorney the opportunity to resolve the matter via a Consent Agreement even if they did not initially suggest one. In exploring this opportunity, you need to recognize that the Consent Agreement will require that you acknowledge the existence of a violation of the law or regulations. Furthermore, it will result in the entry of a disciplinary finding against your license. The utility in exploring a Consent Agreement is that it enables you some control over the type of penalty to be imposed. In addition, it saves you the expense and anxiety associated with proceeding to a full administrative hearing. Upon receipt of the proposed Consent Agreement, you would have the opportunity to confer with your counsel to determine whether such an approach makes sense in your individual case. The periodic newsletters issued by the Board contain synopses of recent disciplinary actions. A review of these can give you a sense of what the Board is doing in terms of penalties imposed.
In order for the Consent Agreement to be effective, it must be approved by the Board. After the entry into a Consent Agreement with the prosecuting attorney, the prosecuting attorney will place the matter for consideration at an upcoming Board meeting. You have the opportunity of having your counsel present at the Board meeting to answer any questions the Board may have.
If the Board accepts the Consent Agreement, an Order will be entered adopting the Consent Agreement and the proposed disciplinary penalty. If the Board rejects the Consent Agreement, you will have the opportunity of attempting to negotiate a different Consent Agreement or proceeding with the administrative hearing.
If you are not inclined to resolve the matter through a Consent Agreement, or are incapable of having one approved by the Board, it will be necessary to defend the Order to Show Cause. In doing so, the first step is filing a written answer. This answer will address the specific factual allegations contained in the Order to Show Cause. In addition, you have the opportunity to assert additional facts and circumstances that you believe will have a favorable impact on the ultimate result.
After the closing of the pleadings, your matter will be scheduled for an administrative hearing. Currently, the State Dental Board delegates their hearings to one of several hearing examiners. These individuals are attorneys who sit in the capacity of an administrative law judge. The individual will preside over the hearing and listen to the live testimony, as well as rule on the admissibility of any documentary evidence. Again, although you have the right to represent yourself at the hearing, I have been informed by more than one hearing examiner that they view this as a mistake. Although you may be the one most familiar with the facts giving rise to the allegations, you are unlikely to be versed in examining and cross-examining witnesses or introducing exhibits.
Typically, the hearings are conducted in Harrisburg. As the party bringing the charges, the Bureau of Professional and Occupational Affairs has the burden of proving a violation and, therefore, will go first. Depending on the nature of the allegation, their case may be as simple as introducing certified copies of a criminal violation or disciplinary action from another state. If the case involves allegations of improper treatment or prescribing practices, they may call an expert to criticize your treatment.
After the Commonwealth rests, you will have the opportunity to introduce evidence on your own behalf. This evidence and testimony need not be limited to rebutting factual allegations. You can also introduce evidence to establish your general competence and worth, such as community involvement. Although this latter evidence may not exonerate you entirely, it could have a beneficial impact on the level of any discipline imposed.
Following the conclusion of the administrative hearing, you will have the opportunity to have a post-hearing brief submitted on your behalf. This is a written document which will point to the specific pieces of evidence in the record and hopefully argue your position in a powerful coherent manner. This piece is often very important since some time will have passed since your hearing and the time the hearing examiner is prepared to issue his written decision.
Following the submissions of the post-hearing briefs, the record will be closed and taken under consideration by the hearing examiner. The hearing examiner will then issue a Proposed Adjudication and Order setting forth findings of fact and conclusions of law, as well as a narrative and ultimate proposed Order which may or may not impose a disciplinary penalty against you. Following the issuance of the Proposed Adjudication and Order, either party has the right to file a brief on exceptions in 30 days arguing that the hearing examiner made some error. In addition, the Board has the right to review the Proposed Adjudication and Order. Of late, the Board has been reviewing all Proposed Adjudication and Orders.
Upon Board review, they can either adopt the Proposed Adjudication and Order in its entirety, or modify it in some fashion which could include finding a violation wherein the hearing examiner did not, or increasing or decreasing a proposed penalty.
Upon receipt of the final Adjudication and Order as entered by the Board, you have an opportunity to appeal the same to the Commonwealth Court should you be dissatisfied with the result. Due to its charge of overseeing the practice of dentistry within the Commonwealth, the Commonwealth Court often recognizes a great deal of discretion with the State Board of Dentistry. Depending upon the specific challenge raised to the Commonwealth Court, the scope of review, or extent to which the Commonwealth Court is willing to dissect the underlying facts, may be very limited.
The foregoing runs you through the procedures of an administrative matter from the initial complaint process through the possibility of Commonwealth Court review. Although the opportunity exists to pursue the matter to the Pennsylvania Supreme Court, such a review is often very narrow. Other than the initial shock of recognizing that you are the subject of a Board investigation, one of the most startling aspects of these matters is the length of time which they can take for full resolution. The statistical data for the year ending December 31, 2004 reveals that it takes on average 366 days to close a file. This includes the situation were only a warning letter is sent following an investigators visit. In a situation wherein an Order to Show Cause is filed, and the matter proceeds to a full-blown administrative hearing, it could take in excess of two years from the filing of the Order to Show Cause to final resolution.
In closing, a Board investigation of your practice can have serious adverse consequences to you professionally. A knowledge and understanding of the dental law and underlying regulations can be your first and best line of defense in avoiding the expense and inconvenience of the process. Should, despite your best efforts, you still find yourself facing this situation, it is important that you recognize the severity of the situation and possible consequences. A belief that you can merely make the matter go away, or worse yet, are capable of ignoring the same, can have serious adverse consequences to you. Furthermore, the ultimate finding or imposition of a disciplinary penalty against your license can have long-lasting consequences in terms of credentialing, employment, and licensure in other jurisdictions. Therefore, it is essential that you devote the time necessary to defend yourself and enlist the services of a competent attorney to help.