News and Updates

Analysis of Texas State Senate Bill 313 of 2017

Michael W. Davis, DDS

My analysis of Texas State Senate Bill 313 for 2017 follows (in italicized lettering). There are some positive aspects, some elements which don’t go far enough for necessary change, a number of ambiguous areas, and a few disturbing aspects, which don’t serve the public interest. The areas I select for commentary are marked in yellow highlight. A numbered footnote will follow for discussion.

The bill’s intent seems quite favorable. Business interests have indeed too frequently held priority over the public interest. The media has indeed highlighted unfavorable outcomes, relating to patient safety with dental sedation. One must question if this bill will achieve the desired results.

I invite you, the reader, to join in participatory government. Please join in with your perspectives and commentary, in the “comments” section. Concerned Dentists of Texas desires to read and post views from doctors, the dental team, legislators, state regulators, and the general public. Your ideas truly matter, if we are to deliver the highest level of dental healthcare.



BILL ANALYSIS



Senate Research Center

S.B. 313


By: Schwertner et al.


Health & Human Services


6/5/2017


Enrolled


AUTHOR'S / SPONSOR'S STATEMENT OF INTENT


The purpose of the bill is to enact the recommendations of the Sunset Advisory Commission (Sunset) on the Texas State Board of Dental Examiners (TSBDE). TSBDE seeks to safeguard public health and safety by regulating dental care in Texas.


TSBDE is subject to abolishment under the Sunset Act on September 1, 2017, unless continued by the legislature. Sunset found the unusually large TSBDE has pursued high-profile rule packages that appear more motivated by business interests than demonstrated concern for public safety. Meanwhile, high-profile media cases have exposed gaps in TSBDE's regulation of dental anesthesia. Sunset's recommendations would sweep TSBDE and strengthen anesthesia regulation through clear enforcement tools, improved training and education requirements for permit holders, and broader avenues for stakeholder input.


TSBDE is governed by Chapters 251 through 267, Texas Occupations Code.


This legislation addresses issues differently from current law by:


  • Continuing TSBDE for 12 years.


  • Sweeping TSBDE and reducing the size of TSBDE from 15 to 11 members.


  • Improving efficient regulation of dental assistants by keeping x-ray and nitrous oxide monitoring programs as registrations, but eliminating the two smaller programs.


  • Authorizing TSBDE to conduct risk-based inspections of dentists administering anesthesia in office settings.


  • Clarifying TSBDE's authority to regulate parenteral—or intravenous—anesthesia, in addition to enteral—or oral—anesthesia.


  • Establishing permits for the administration of nitrous oxide and four levels of sedation or anesthesia and requiring TSBDE to establish minimum standards, education, and training for permit holders.


  • Defining pediatric and high-risk patients and requiring additional training on anesthesia administration for those patients.


  • Requiring TSBDE to determine minimum components to create a pre-operative checklist to be used before administering anesthesia.


  • Requiring TSBDE to ensure dentists with an anesthesia permit maintain written emergency management plans and protocols and to establish minimum emergency preparedness standards necessary before administering anesthesia.


  • Requiring TSBDE to require dentists indicate portability status on initial and renewal applications.


  • Creating a standing advisory committee on dental anesthesia to analyze data and trends concerning anesthesia-related incidents.


  • Requiring TSBDE to query the Prescription Monitoring Program for potentially harmful prescribing patterns among its licensees.


  • Requiring dentists to review a patient's prescription history before prescribing certain drugs.


  • Providing more detailed language on structure and conduct of informal proceedings.


  • Creating a Dental Review Committee consisting of nine governor-appointed members to serve at informal settlement conferences on a rotating basis.


  • Updating licensing and enforcement processes that have not kept up with best practices.


S.B. 313 amends current law relating to the continuation and functions of the State Board of Dental Examiners and imposes fees.


RULEMAKING AUTHORITY


Rulemaking authority previously granted to the State Board of Dental Examiners (TSBDE) is modified in SECTION 6 (Section 254.010, Occupations Code), SECTION 13 (Section 257.001, Occupations Code), SECTION 17 (Section 257.005, Occupations Code), SECTION 23 (Section 258.153, Occupations Code), SECTION 32 (Section 263.007, Occupations Code), SECTION 37 (Section 265.001, Occupations Code), and SECTION 48 (Section 262.102, Occupations Code) of this bill.


Rulemaking authority is expressly granted to TSBDE in SECTION 19 (Section 258.0511, Occupations Code), SECTION 24 (Sections 258.1551, 258.1553, 258.1554, 258.1556, and 258.1557, Occupations Code), SECTION 25 (Section 258.156, Occupations Code), SECTION 26 (Sections 258.203 and 258.204, Occupations Code), SECTION 32 (Section 263.007, Occupations Code), SECTION 33 (Sections 263.0072 and 263.0074, Occupations Code), SECTION 38 (Sections 265.0015 and 265.0017, Occupations Code), and SECTION 42 (Section 265.008, Occupations Code) of this bill.


Rulemaking authority previously granted to TSBDE is rescinded in SECTION 48 (Sections 262.1025, 263.0075, and 265.004, Occupations Code) of this bill.


SECTION BY SECTION ANALYSIS


SECTION 1. Amends Section 251.005, Occupations Code, to provide that, unless continued in existence as provided by Chapter 325 (Sunset Law), Government Code, the Texas State Board of Dental Examiners (TSBDE) is abolished September 1, 2029, rather than September 1, 2017.


SECTION 2. Amends Section 252.001(a), Occupations Code, as follows:


(a) Provides that TSBDE consists of 11, rather than 15, members appointed by the governor with the advice and consent of the senate as follows:


(1) decreases from eight to six the number of reputable dentist members who reside in this state and have been actively engaged in the practice of dentistry for at least the five years preceding appointment;


(2) increases from two to three the number of reputable dental hygienist members who reside in this state and have been actively engaged in the practice of dental hygiene for at least the five years preceding appointment; and


(3) decreases from five to two the number of members who represent the public.


SECTION 3. Amends Section 252.003, Occupations Code, as follows:


Sec. 252.003. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) Redefines “Texas trade association” (TTA).


(b) Prohibits a person from being a member of TSBDE and from being a TSBDE employee employed in a “bona fide executive, administrative, or professional capacity,” as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if the person is an officer, employee, or paid consultant of a TTA in the field of health care; or the person’s spouse is an officer, manager, or paid consultant of a TTA in the field of health care. Deletes existing text prohibiting an officer, employee, or paid consultant of a TTA in the field of health care from being a member or employee of TSBDE who is exempt from the state’s position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for B9 of the position classification salary schedule. Deletes existing text prohibiting a person who is the spouse of an officer, manager, or paid consultant of a TTA in the field of health care from being a TSBDE member and from being a TSBDE employee who is exempt from the state’s position classification plan or is compensated at or above the amount prescribed by the General Appropriations Act for B9 of the position classification salary schedule. Deletes existing designation of Subsection (c).


(c) Redesignates existing Subsection (d) as Subsection (c). Makes a nonsubstantive change.


SECTION 4. Amends Section 252.010, Occupations Code, by amending Subsection (b) and adding Subsection (d), as follows:


(b) Requires that the training program provide the person with information regarding:


(1) the law governing TSBDE operations, rather than Subtitle D (Dentistry);


(2) the programs, functions, rules, and budget of TSBDE, rather than the programs operated by TSBDE; the role and functions of TSBDE; the rules of TSBDE, with an emphasis on the rules that relate to disciplinary and investigatory authority; the current budget for TSBDE. Makes nonsubstantive changes;


(3) the scope of and limitations on the rulemaking authority of TSBDE;


(4) the types of TSBDE rules, interpretations, and enforcement actions that may implicate federal antitrust law by limiting competition or impacting prices charged by persons engaged in a profession or business TSBDE regulates, including certain rules, interpretations, and enforcement actions1;


(5) redesignates existing Subdivision (6) as Subdivision (5) and makes no further changes to this subdivision;


(6) redesignates existing Subdivision (7) as Subdivision (6). The requirements of:


(A) laws relating to open meetings, public information, administrative procedure, and disclosing conflicts of interest, rather than the open meetings law, Chapter 551 (Open Meetings), Government Code; the public information law, Chapter 552 (Public Information), Government Code; the administrative procedure law, Chapter 2001 (Administrative Procedure), Government Code; and other laws relating to public officials, including conflict of interest laws; and


(B) other laws applicable to members of TSBDE in performing their duties; and


(7) redesignates existing Subdivision (8) as Subdivision (7) and makes no further changes to this subdivision.


(d) Requires the executive director of TSBDE (executive director) to create a training manual that includes the information required by Subsection (b) and to distribute a copy of the training manual annually to each TSBDE member. Requires each TSBDE member, on receipt of the training manual, to sign and submit to the executive director a statement acknowledging receipt of the training manual.


SECTION 5. Amends Chapter 254, Occupations Code, by adding Section 254.0065, as follows:


Sec. 254.0065. CONFIDENTIALITY OF CERTAIN INFORMATION REGARDING APPLICANT OR LICENSE HOLDER. (a) Defines “license.”


(b) Provides that, except as provided by Subsection (c), all information, records, and proceedings of TSBDE or an authorized agent of TSBDE relating to the participation of an applicant for or holder of a license in a peer assistance program or the evaluation of an applicant or license holder under Section 263.0025, which is added by this Act, are confidential and not subject to disclosure under Chapter 552, Government Code.


(c) Authorizes TSBDE to disclose a disciplinary action taken against a license holder in the enforcement of certain subdivisions of Section 263.002(a) (authorizing TSBDE to take certain actions against certain persons who hold a license). Prohibits TSBDE from disclosing the nature of the impairment or condition that resulted in TSBDE’s action.


SECTION 6. Amends Section 254.010(b), Occupations Code, to require that rules adopted under this section (Monitoring of License Holder) include procedures to periodically review reports filed with the National Practitioner Data Bank for any report of disciplinary action taken against a license holder by another state that would constitute grounds for disciplinary action under Section 263.002 (Grounds for Disciplinary Action in General).


SECTION 7. Amends Chapter 255, Occupations Code, by adding Section 255.0055, as follows:


Sec. 255.0055. REQUIREMENTS FOR CERTAIN COMPLAINTS. (a) Defines “anonymous complaint,” “insurance agent,” “insurer,” and “third-party administrator.”


(b) Prohibits TSBDE from accepting anonymous complaints.


(c) Requires that a complaint filed with TSBDE by certain persons or entities against a license holder, notwithstanding any confidentiality requirements under Chapter 552, Government Code, or this subtitle, include the name and address of certain persons or entities filing the complaint. Requires TSBDE, not later than the 15th day after the date the complaint is filed with TSBDE, to notify the license holder who is the subject of the complaint of the name and address of the certain person or entity who filed the complaint, unless the notice would jeopardize an investigation.


SECTION 8. Amends Section 255.006(a), Occupations Code, to require TSBDE, during a preliminary investigation of a complaint received under this chapter, to first determine whether the person regulated under this subtitle who is the subject of the complaint constitutes a continuing threat to the public welfare, rather than first determine whether the license holder constitutes a continuing threat to the public welfare.


SECTION 9. Amends Section 256.002(a), Occupations Code, as follows:


(a) Deletes an existing requirement that an applicant for a license to practice dentistry be of good moral character.2 Makes nonsubstantive changes.


SECTION 10. Amends Section 256.053, Occupations Code, as follows:


Sec. 256.053. ELIGIBILITY FOR LICENSE. (a) Deletes an existing requirement that an applicant for a license to practice dental hygiene in this state be of good moral character. Redesignates existing Subdivisions (3) and (4) as Subdivisions (2) and (3) and makes no further changes to these subdivisions.


(b) Requires a school of dentistry or dental hygiene described by Subsection (a)(3), rather than by Subsection (a)(4), to include at least two full academic years of instruction or its equivalent at the postsecondary level.


SECTION 11. Amends the heading to Section 256.103, Occupations Code, to read as follows:


Sec. 256.103. DISPLAY OF REGISTRATION CERTIFICATE.


SECTION 12. Amends the heading to Section 257.001, Occupations Code, to read as follows:


Sec. 257.001. LICENSE EXPIRATION; TERM.


SECTION 13. Amends Section 257.001, Occupations Code, by amending Subsections (a) and (c) and adding Subsection (a-1), as follows:


(a) Provides that a license issued under this subtitle is valid for a term of one or two years, as determined by TSBDE rule.


(a-1) Redesignates text of existing Subsection (a) as Subsection (a-1).


(c) Requires that license fees payable, rather than license fees payable on or before March 1, for the year in which the expiration date is changed, be prorated on a monthly basis so that each license holder pays only a certain portion of the fee.


SECTION 14. Amends Sections 257.002(a) and (f), Occupations Code, as follows:


(a) Provides that a person required to hold a license as a practitioner under this subtitle who fails or refuses to take certain actions on or before the specified date, rather than on or before the specified date of each calendar year, is suspended from practice and subject to certain penalties imposed by law.


(f) Provides that the requirements prescribed by this section (License Renewal) relating to the payment of license fees, rather than relating to the payment of annual license fees, and penalties for the failure to timely renew a license do not apply to certain license holders.


SECTION 15. Amends Chapter 257, Occupations Code, by adding Section 257.003, as follows:


Sec. 257.003. REFUSAL FOR VIOLATION OF BOARD ORDER. Authorizes TSBDE to refuse to renew a license issued under this subtitle if the license holder is in violation of a TSBDE order.


SECTION 16. Amends Section 257.004(c), Occupations Code, to provide that a dentist or dental hygienist licensed by TSBDE who resides in a country other than the United States on the renewal date of the person’s license and has not practiced dentistry or dental hygiene in the United States during the license period preceding the renewal date, rather than during the year preceding the renewal date, is exempt from the requirements of Subsection (a) (relating to requiring a certain written statement to be submitted with a license renewal) if the person submits proof of foreign residence with the person’s renewal application.


SECTION 17. Amends Section 257.005(a), Occupations Code, to require TSBDE, by rule, to establish the minimum number of hours of continuing education a license holder is required to complete for each registration period to renew the license for a subsequent registration period, rather than to require a license holder to complete at least 12 hours of continuing education for each annual registration period to renew the license for a subsequent annual period.


SECTION 18. Amends Section 258.002(a), Occupations Code, to authorize a licensed dentist to delegate to a qualified and trained dental assistant acting under the dentist’s general or direct supervision any dental act that a reasonable and prudent dentist would find is within the scope of sound dental judgment to delegate if, among certain other conditions, the person to whom the dental act is delegated is registered under Chapter 265 (Regulation of Dental Assistants), if registration is required to perform the act, rather than if the person to whom the dental act is delegated holds the appropriate certificate, if a certificate is required to perform the act.3


SECTION 19. Amends Section 258.0511, Occupations Code, by adding Subsection (a-1), as follows:


(a-1) Requires TSBDE, by rule, to establish conditions under which TSBDE is authorized to temporarily or permanently appoint a person as custodian of a dentist’s billing or dental patient records. Requires TSBDE, in adopting rules under this subsection, to consider the death of a dentist, the mental or physical incapacitation of a dentist, and the abandonment of billing or dental patient records by a dentist as conditions for appointment of a custodian.


SECTION 20. Amends Section 258.054(c), Occupations Code, to prohibit a dentist from authorizing a dental assistant, other than a dental assistant described by Section 265.001(d), to make a dental x-ray unless the dental assistant is registered under Chapter 265, rather than unless the dental assistant holds an x-ray certificate issued under Section 265.005 (X-Ray Certificate).


SECTION 21. Amends the heading to Subchapter D, Chapter 258, Occupations Code, to read as follows:


SUBCHAPTER D. ADMINISTRATION OF ANESTHESIA


SECTION 22. Amends Section 258.151, Occupations Code, as follows:


Sec. 258.151. New heading: DEFINITIONS. Defines “high-risk patient” and “pediatric patient.” Deletes existing definition of “enteral.” Makes a nonsubstantive change.


SECTION 23. Amends Sections 258.153, 258.154, and 258.155, Occupations Code, as follows:


Sec. 258.153. RULES. (a) Requires TSBDE to adopt rules to administer this subchapter, including rules to establish the minimum standards for the administration of anesthesia by a dentist. Deletes existing test requiring TSBDE to establish, by rule, the minimum standards for the enteral administration of anesthesia by a dentist.


(b) Requires that the rules adopted by TSBDE be designed to protect the health, safety, and welfare of the public and include requirements relating to, among certain other requirements, the methods authorized to be used to administer an anesthetic or the anesthetic agents authorized to be used, for each type of permit held, rather than the methods used to enterally administer an anesthetic and the anesthetic agents authorized to be used; and the minimum components required to be included in a preoperative checklist to be used before administering anesthesia to a patient and retained in the patient’s dental record.


Sec. 258.154. COMPLIANCE WITH ANESTHESIA RULES. (a) Requires a dentist who practices dentistry in this state and who administers anesthesia or performs a procedure for which anesthesia is administered to comply with the rules adopted under this subchapter, rather than requires a dentist, on and after August 31, 2002, who practices dentistry in this state and who enterally administers anesthesia or performs a procedure for which anesthesia is enterally administered to comply with the rules adopted under this subchapter.


(b) Makes a conforming change.


Sec. 258.155. New heading: PERMIT REQUIRED. (a) Requires TSBDE to issue permits to administer anesthesia in certain categories based on the extent to which the intended procedure will alter the patient’s mental status and the method of anesthetic delivery.


(b) Creates this subsection from existing text. Prohibits a dentist from administering anesthesia unless the dentist obtains the appropriate permit issued under this section. Deletes existing text requiring TSBDE, not later than September 1, 2002, to require each dentist who enterally administers anesthesia or performs a procedure for which anesthesia is enterally administered to annually obtain a permit from TSBDE by completing a form prescribed by TSBDE.


(c) Creates this subsection from existing text. Requires TSBDE to set and impose a fee for issuance of a permit, rather than to set and impose a fee for the permit, in an amount designed to recover the costs of regulating a permit holder under this subchapter.


(d) Redesignates existing Subsection (b) as Subsection (d). Makes no further changes to this subsection.


SECTION 24. Amends Subchapter D, Chapter 258, Occupations Code, by adding Sections 258.1551 through 258.1557, as follows:


Sec. 258.1551. PERMIT QUALIFICATIONS. (a) Requires TSBDE, by rule, to establish the qualifications to obtain each permit described by Section 258.155, including the education and training required to obtain the permit.


(b) Requires that the rules adopted under Subsection (a) require an applicant for certain permits to complete training on certain matters.


Sec. 258.1552. JURISPRUDENCE EXAMINATION. (a) Requires TSBDE to develop and administer an online jurisprudence examination to determine a permit holder’s knowledge of this subchapter, TSBDE rules, and other applicable laws of this state relating to the administration of anesthesia.


(b) Requires a permit holder to pass the online jurisprudence examination developed by TSBDE once every five years.


Sec. 258.1553. PORTABILITY OF ANESTHESIA SERVICES. Requires TSBDE, by rule, to require a dentist who applies for the issuance or renewal of a permit under this subchapter to include in the application a statement indicating whether the dentist provides or will provide a permitted anesthesia service in more than one location.


Sec. 258.1554. ADMINISTRATION OF ANESTHESIA TO CERTAIN PATIENTS. (a) Prohibits a permit holder under this subchapter from administering anesthesia under certain permits to a pediatric or high-risk patient unless the permit holder has demonstrated to the satisfaction of TSBDE that the permit holder has advanced didactic and clinical training and obtained authorization from TSBDE under this section.


(b) Authorizes TSBDE, by rule, to establish limitations on the administration of anesthesia by a permit holder to a pediatric or high-risk patient.


Sec. 258.1555. CAPNOGRAPHY REQUIRED FOR CERTAIN ANESTHESIA SERVICES. Requires a permit holder who is administering anesthesia for which a level 4 permit is required to use capnography during the administration of anesthesia.


Sec. 258.1556. MINIMUM EMERGENCY PREPAREDNESS STANDARDS. (a) Requires TSBDE to adopt rules to establish minimum emergency preparedness standards and requirements for the administration of anesthesia under a permit issued under this subchapter. Requires that the rules require a permit holder to fulfill certain criteria.


(b) Requires that rules adopted under Subsection (a)(4) (relating to requiring that rules require a permit holder to develop and annually update certain written policies, procedures, and training requirements) require a holder of certain permits to develop policies and procedures that include advanced cardiac life support rescue protocols, advanced airway management techniques, and, if the permit holder is authorized to administer anesthesia to pediatric patients, pediatric advanced life support rescue protocols.


Sec. 258.1557. EMERGENCY PREPAREDNESS PROTOCOLS. (a) Requires a permit holder to develop emergency preparedness protocols, specific to the permit holder’s practice setting, that establish a plan for the management of medical emergencies in each practice setting in which the dentist administers anesthesia.


(b) Requires TSBDE to adopt rules prescribing the content that a permit holder is required to include in the emergency preparedness protocols. Requires that the rules require a permit holder to include in the permit holder’s emergency preparedness protocols the written policies, procedures, and training requirements described by Section 258.1556(a)(4).


SECTION 25. Amends Section 258.156, Occupations Code, as follows:


Sec. 258.156. INSPECTIONS. (a) Authorizes TSBDE, except as provided by Subsection (h), to conduct inspections of a dentist who applies for or holds a permit issued under this subchapter as necessary to enforce this subchapter, including inspections of an office site, equipment, a facility, and any document of the dentist, rather than authorizing TSBDE to conduct inspections to enforce this subchapter, including inspections of an office site and of documents of a dentist’s practice that relate to the enteral administration of anesthesia. Authorizes TSBDE, during an inspection under this section, to evaluate a dentist’s competency in the administration of anesthesia. Makes a nonsubstantive change.


(b) Requires TSBDE to conduct an inspection with respect to a dentist who holds certain permits not later than the first anniversary of the date the permit is issued.


(c) Requires TSBDE, by rule, to adopt a risk-based inspection policy for conducting inspections under this section and requires that the policy require TSBDE to take into consideration any previous disciplinary action taken against a permit holder for an anesthesia-related violation when determining whether an inspection is necessary.


(d) Creates this subsection from existing text. Makes no further changes to this subsection.


(e) Redesignates existing Subsection (b) as Subsection (e). Provides that TSBDE is not required to give notice before conducting an inspection. Deletes existing text requiring TSBDE, unless it would jeopardize an ongoing investigation, to provide at least five business days’ notice before conducting an on-site inspection.


(f) Requires TSBDE to maintain records of conducted inspections.


(g) Authorizes TSBDE, by rule, to establish education and training requirements for inspectors who conduct inspections.


(h) Prohibits TSBDE from conducting an inspection with respect to a dentist who administers anesthesia exclusively in a state-licensed hospital or state-licensed ambulatory surgical center. Authorizes TSBDE, by rule, to except from inspection a dentist who administers anesthesia exclusively in any other facility that is subject to inspection by the Department of State Health Services or an accrediting body under state law. Provides that TSBDE retains all other authority provided by this subtitle over a dentist described by this subsection. Deletes existing Subsection (c) providing that this section does not require TSBDE to make an on-site inspection of a dentist’s office.


SECTION 26. Amends Chapter 258, Occupations Code, by adding Subchapter E, as follows:


SUBCHAPTER E. ADVISORY COMMITTEE ON DENTAL ANESTHESIA


Sec. 258.201. DEFINITION. Defines “health care provider.”


Sec. 258.202. ADVISORY COMMITTEE. (a) Requires TSBDE to establish an advisory committee (committee) to analyze and report on data and associated trends concerning anesthesia-related deaths or incidents as provided by this subchapter. Provides that the committee consists of six members appointed by TSBDE in the manner provided by Section 258.203 and requires that it include persons who have certain occupations.


(b) Requires TSBDE, in appointing members to the committee, to maintain a balanced representation of general dentists and specialists to ensure the committee has expertise with respect to each permit category.


(c) Prohibits a TSBDE member from serving as a member of the committee and prohibits a former TSBDE member from being appointed to the committee until the second anniversary of the expiration of the member’s term on TSBDE.


(d) Provides that Chapter 2110 (State Agency Advisory Committees), Government Code, does not apply to the size, composition, or duration of the committee.


Sec. 258.203. APPLICATION PROCESS; APPOINTMENT OF COMMITTEE MEMBERS. (a) Requires TSBDE, by rule, to develop and implement a process by which a person is authorized to apply to be appointed to the committee and requires TSBDE to post the application and information regarding the application process on TSBDE’s Internet website.


(b) Requires the presiding officer of TSBDE to review each application received and nominate for appointment to the committee persons who meet the requirements of Section 258.202. Prohibits a nominated person from being appointed to the committee except on the affirmative vote of at least seven members of TSBDE.


(c) Requires the presiding officer of TSBDE to designate one of the nominated members as presiding officer of the committee, subject to approval of TSBDE.


Sec. 258.204. TERMS; VACANCIES. Requires TSBDE, by rule, to establish the length of a term of a member of the committee and the staggering of the terms of the members; and the manner in which a vacancy occurring during a member’s term is filled.


Sec. 258.205. MEETINGS. Provides that the committee is subject to Chapter 551, Government Code, except that the committee is authorized to conduct a closed meeting to review confidential investigative files provided by TSBDE under Section 258.206.


Sec. 258.206. COMPILATION AND ANALYSIS OF INFORMATION. (a) Requires TSBDE to identify complaints resolved by TSBDE that involve anesthesia-related deaths or incidents and compile confidential, de-identified information derived from the investigative files on each complaint identified under this subsection.

(b) Requires TSBDE to provide information compiled under Subsection (a) to the committee. Requires the committee to analyze the information compiled under Subsection (a) to identify any trends and submit a report to TSBDE at least annually on the committee's findings and any recommendations for changes to TSBDE rules or this subtitle based on the committee's analysis.

(c) Authorizes TSBDE, on request of the committee, to provide confidential, de-identified investigative files for review by the committee.

(d) Prohibits the data provided to the committee under this section from including certain identifying information of a patient or health care provider.

(e) Requires TSBDE to post on TSBDE's Internet website any recommendations or findings reported by the committee.

Sec. 258.207. COUNSEL FOR ADVISORY COMMITTEE. Requires TSBDE to designate an attorney employed by TSBDE to act as counsel and provide legal advice to the committee and to be present during the committee's meetings and deliberations.

Sec. 258.208. CONFIDENTIALITY; PRIVILEGE. (a) Provides that any information pertaining to the investigation of an anesthesia-related death or incident is confidential.

(b) Provides that confidential information that is acquired by TSBDE and that includes identifying information of an individual or health care provider is privileged and prohibits the information from being disclosed to any person. Provides that information prohibited from being disclosed under this subsection includes certain information.

(c) Provides that committee work product or information obtained or provided by TSBDE under this subchapter is confidential. Provides that this subsection does not prevent the committee or TSBDE from releasing information described by Subsection (d) or (e).

(d) Provides that information is not confidential under this section if the information meets certain conditions.

(e) Authorizes the committee to publish statistical studies and research reports based on information that is confidential under this section, provided that the information meets certain criteria.

(f) Requires TSBDE to adopt and implement practices and procedures to ensure that information that is confidential under this section is not disclosed in violation of this section.

(g) Provides that information that is confidential under this section is excepted from disclosure under Chapter 552, Government Code, as provided by Section 552.101 (Exception: Confidential Information) of that chapter.

Sec. 258.209. SUBPOENA AND DISCOVERY. Provides that committee work product or information that is confidential under Section 258.208 is privileged, is not subject to subpoena or discovery, and is prohibited from being introduced into evidence in any administrative, civil, or criminal proceeding against a patient, a member of the family of a patient, or a health care provider.

Sec. 258.210. IMMUNITY. (a) Provides that a member of the committee or a person employed by TSBDE or acting in an advisory capacity to the committee and who provides information, counsel, or services to the committee is not liable for damages for an action taken within the scope of the functions of the committee.

(b) Provides that Subsection (a) does not apply if the person acts with malice or without the reasonable belief that the action is warranted by the facts known to the person.

(c) Provides that this section does not provide immunity to a person described by Subsection (a) for a violation of a state or federal law or rule relating to the privacy of health information or the transmission of health information, including the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191) and rules adopted under that Act.



Sec. 258.211. FUNDING. Authorizes TSBDE to accept gifts and grants from any source to fund the duties of TSBDE and the committee under this subchapter.4

SECTION 27. Amends Chapter 263, Occupations Code, by adding Section 263.0001, as follows:

Sec. 263.0001. DEFINITION. Defines "license."

SECTION 28. Amends Section 263.001, Occupations Code, as follows:

Sec. 263.001. New heading: GROUNDS FOR REFUSAL TO ISSUE LICENSE; APPLICATION OF OPEN MEETINGS LAW. (a) Creates this subsection from existing text. Authorizes TSBDE to refuse to issue a license to an applicant under this subtitle, rather than refuse to issue a license by examination to a dental or dental hygiene applicant, if the person meets certain criteria.

(b) Provides that TSBDE's deliberations with regard to an application for a license under this subtitle are exempt from Chapter 551, Government Code.

SECTION 29. Amends Chapter 263, Occupations Code, by adding Section 263.0025, as follows:

Sec. 263.0025. SUBMISSION TO MENTAL OR PHYSICAL EVALUATION. (a) Authorizes TSBDE or an authorized agent of TSBDE, in enforcing certain sections and on probable cause as determined by TSBDE or agent, to request an applicant for or holder of a license to submit to a mental or physical evaluation by a physician or other health care professional designated by TSBDE.

(b) Requires TSBDE, if the applicant or license holder refuses to submit to the evaluation, to issue an order requiring the applicant or license holder to show cause why the applicant or license holder will not submit to the evaluation. Requires TSBDE to schedule a hearing on the order not later than the 30th day after the date notice is served on the applicant or license holder and to notify the applicant or license holder of the order and hearing by personal service or certified mail, return receipt requested.

(c) Provides that, at the hearing, the applicant or license holder and the applicant's or license holder’s attorney are entitled to present testimony or other evidence to show why the applicant or license holder should not be required to submit to the evaluation. Provides that the applicant or license holder has the burden of proof to show why the applicant or license holder should not be required to submit to the evaluation.

(d) Requires TSBDE, after the hearing, by order, to require the applicant or license holder to submit to the evaluation not later than the 60th day after the date of the order or withdraw the request for an evaluation, as applicable.

SECTION 30. Amends Section 263.003, Occupations Code, as follows:

Sec. 263.003. HEARING. Provides that a person is entitled to a hearing under Chapter 2001, Government Code, if TSBDE proposes to take certain actions, including to refuse to issue a license to the person, rather than refuse to issue a license by examination to the person.

SECTION 31. Amends Section 263.0065(c), Occupations Code, to require that a complaint delegated under this section (Delegation of Certain Complaint Dispositions) be referred for informal proceedings under Section 263.007 (Informal Proceeding), rather than under Section 263.0075 (Informal Settlement Conference; Restitution), under certain conditions.

SECTION 32. Amends Section 263.007, Occupations Code, by amending Subsection (b) and adding Subsections (c) through (k), as follows:

(b) Sets forth certain requirements for the rules adopted under this section. Deletes existing text relating to certain legal procedures required for the rules adopted under this section.

(c) Provides that the license holder is entitled at the informal settlement conference (ISC) to reply to the staff’s presentation and present the facts the license holder reasonably believes the license holder could prove at a hearing by competent evidence or qualified witnesses.

(d) Requires the ISC panel, after ample time is given for the presentations, to recommend that the investigation be closed or make a recommendation regarding the disposition of the case in the absence of a hearing under applicable law concerning contested cases.

(e) Requires TSBDE to prioritize scheduling an ISC in accordance with Subsection (b)(1) (relating to requiring rules to require TSBDE to schedule an ISC) to resolve a complaint against a license holder who has previously been the subject of disciplinary action by TSBDE.

(f) Requires that a notice under Subsection (b)(2) (relating to requiring TSBDE to give notice to the license holder of the time and place of the ISC by a certain date) be accompanied by a written statement of the nature of the allegations and the information TSBDE intends to use at the ISC. Authorizes the license holder, if TSBDE does not provide the statement or information at that time, to use that failure as grounds for rescheduling the ISC. Requires that the notice, if the complaint includes an allegation that the license holder has violated the standard of care in the practice of dentistry or dental hygiene, include a copy of the report by the expert reviewer. Requires the license holder to provide to TSBDE the license holder’s rebuttal not later than the 15th day before the date of the ISC in order for that information to be considered at the ISC.

(g) Requires TSBDE, by rule, to define circumstances constituting good cause for purposes of Subsection (b)(1), including an expert reviewer’s delinquency in reviewing and submitting a report to TSBDE under Section 255.0067 (Reports; Procedures for Expert Review), a temporary suspension of the license holder's license under Section 263.004 (Temporary Suspension in Emergency), or the filing of a contested case against the license holder with the State Office of Administrative Hearings (SOAH).

(h) Requires TSBDE, by rule, to define circumstances constituting good cause to grant a request by a license holder for a continuance of the ISC.

(i) Provides that information presented by TSBDE or TSBDE staff in an ISC is confidential and not subject to disclosure under Chapter 552, Government Code.

(j) Requires TSBDE, on request by the license holder under review, to make a recording of the ISC proceeding. Provides that the recording is a part of the investigative file and prohibits it from being released to a third party unless authorized under this subtitle. Authorizes TSBDE to charge the license holder a fee to cover the cost of recording the proceeding.

(k) Requires TSBDE to provide a copy of the recording to the license holder on the license holder’s request.

SECTION 33. Amends Chapter 263, Occupations Code, by adding Sections 263.0071, 263.0072, 263.0073, and 263.0074, as follows:

Sec. 263.0071. DENTAL REVIEW COMMITTEE. (a) Provides that the dental review committee (review committee) consists of nine members—six dentist members, two dental hygienist members, and one registered dental assistant member—appointed by the governor.

(b) Provides that members of the review committee serve staggered six-year terms, with the terms of three members expiring on February 1 of each odd-numbered year.

(c) Requires the governor, if a vacancy occurs during a member’s term, to appoint a replacement to fill the unexpired term.

(d) Provides that a member of the review committee is entitled to receive a per diem for actual duty in the same manner provided for TSBDE members.

(e) Provides that a member of the review committee is subject to law and the rules of TSBDE, including certain sections of the Occupations Code, as if the review committee member were a member of TSBDE, except that a review committee member is not subject to Chapter 572 (Personal Financial Disclosure, Standards of Conduct, and Conflict of Interest), Government Code. Requires that the training program that a review committee member is required to complete under Section 252.010 (Board Member Training) be an abbreviated version of the program under that section that is limited to training relevant to serving on a review committee.

Sec. 263.0072. INFORMAL SETTLEMENT CONFERENCE PANEL. (a) Requires TSBDE to appoint members of TSBDE and the review committee to serve, on a rotating basis, as panelists on an ISC panel.

(b) Requires TSBDE, in an ISC under Section 263.007, to appoint at least two panelists to determine whether an informal disposition is appropriate. Requires at least one of the panelists to be a dentist.

(c) Requires TSBDE, by rule, to require that at least one panelist be physically present at the ISC and authorizes TSBDE to authorize another panelist to appear by video conference.

(d) Authorizes an ISC, notwithstanding Subsection (b), to be conducted by one panelist if the license holder who is the subject of the complaint waives the requirement that at least two panelists conduct the ISC. Authorizes the panelist, if the license holder waives that requirement, to be a dentist, a dental hygienist, or a member who represents the public.

(e) Authorizes an ISC conducted under Section 263.007 to show compliance with an order or remedial plan of TSBDE, notwithstanding Subsections (b) and (d), to be conducted by one panelist.

Sec. 263.0073. ROLES AND RESPONSIBILITIES OF PARTICIPANTS IN INFORMAL SETTLEMENT CONFERENCE. (a) Requires the panel, at an ISC under Section 263.007, to make recommendations for the disposition of the complaint or allegation. Authorizes the panel to request the assistance of a TSBDE employee at any time.

(b) Requires TSBDE employees to present a summary of the allegations against the license holder and of the facts pertaining to the allegation that the employees reasonably believe may be proven by competent evidence at a formal hearing.

(c) Requires an attorney for TSBDE to act as counsel to the panel and to be present during the ISC and the panel’s deliberations to advise the panel on legal issues that arise during the proceeding. Authorizes the attorney to ask questions of participants in the ISC to clarify any statement made by the participant and requires the attorney to perform certain functions. Authorizes the attorney, during the panel’s deliberations, to be present only to advise the panel on legal issues and to provide information on comparable cases that have appeared before TSBDE.

(d) Requires the panel and TSBDE employees to provide an opportunity for the license holder and the license holder’s authorized representative to reply to TSBDE employees’ presentation and to present oral and written statements and facts that the license holder and representative reasonably believe could be proven by competent evidence at a formal hearing.

(e) Prohibits a certain TSBDE employee and certain persons from being present during the deliberations of the panel. Authorizes only the members of the panel and the attorney serving as counsel to the panel to be present during the deliberations.

(f) Prohibits the panel, during the deliberations, from reconsidering an expert panel’s determinations that are included in a final written report issued under Section 255.0067.

(g) Requires the panel to recommend the dismissal of the complaint or allegations or, if the panel determines that the license holder has violated a statute or TSBDE rule, authorizes the panel to recommend TSBDE action and terms for an informal settlement of the case.

(h) Requires that the panel’s recommendations under Subsection (g) be made in writing and presented to the license holder and the license holder’s authorized representative. Authorizes the license holder to accept the proposed settlement within the time established by the panel at the ISC. Authorizes TSBDE, if the license holder rejects the proposed settlement or does not act within the required time, to proceed with the filing of a formal complaint with SOAH.

Sec. 263.0074. DISMISSAL OF BASELESS COMPLAINT. Requires TSBDE, if, during the 180-day period prescribed by Section 263.007(b)(1), TSBDE determines that the complaint is a baseless or unfounded complaint, to dismiss the complaint and include a statement in the records of the complaint that the reason for the dismissal is because the complaint was baseless or unfounded. Requires TSBDE to adopt rules that establish criteria for determining that a complaint is baseless or unfounded.5

SECTION 34. Amends Section 263.0076, Occupations Code, as follows:

Sec. 263.0076. New heading: INFORMAL SETTLEMENT CONFERENCE NOTICE REGARDING CERTAIN COMPLAINTS. Requires TSBDE, if an ISC is not scheduled for a complaint before the 180-day period prescribed by Section 263.007(b)(1), to provide notice to all parties to the complaint. Requires that the notice include an explanation of the reason why the ISC has not been scheduled. Provides that the notice under this section is not required if the notice would jeopardize an investigation. Deletes existing text requiring that the notice of the time and place of the ISC, if an ISC will be held under Section 263.0075, be given to the license holder not later than the 45th day before the date the ISC is held. Deletes existing designation of Subsection (a) and Subsections (b) through (d).

SECTION 35. Amends Section 263.008, Occupations Code, by amending Subsection (a) and adding Subsections (a-1), (a-2), and (d), as follows:

(a) Authorizes TSBDE to issue a subpoena or a subpoena duces tecum to compel the attendance of a witness for examination under oath and the production, for examination and copying, of certain evidence, rather than authorizes TSBDE to request and, if necessary, compel by subpoena the attendance of witnesses for examination under oath and the production for examination and copying of certain evidence. Authorizes TSBDE to administer oaths and take testimony regarding any matter within TSBDE’s jurisdiction.

(a-1) Authorizes TSBDE to delegate the authority granted under Subsection (a) to the executive director or the secretary of TSBDE.

(a-2) Authorizes a subpoena issued at the request of TSBDE staff to be served by certified mail or personally by TSBDE’s investigators.

(d) Requires TSBDE to pay, for photocopies subpoenaed at the request of TSBDE’s staff, a reasonable fee in an amount not to exceed the amount TSBDE is authorized to charge for copies of TSBDE’s records.

SECTION 36. Amends Section 264.011, Occupations Code, to provide that this subchapter (Administrative Penalty) does not prevent TSBDE from assessing an administrative penalty using an informal proceeding under Section 263.007, rather than under Section 263.003 (Hearing).

SECTION 37. Amends Section 265.001, Occupations Code, as follows:

Sec. 265.001. New heading: REGISTRATION REQUIRED FOR CERTAIN DENTAL ACTS. (a) Prohibits a dental assistant, unless the dental assistant is registered under this chapter, from making a dental x-ray or monitoring the administration of nitrous oxide.

(b) Authorizes TSBDE to adopt and enforce rules requiring a dental assistant to register with TSBDE to perform other dental acts, rather than requiring the registration of dental assistants as necessary to protect the public health and safety.

(c) Requires TSBDE to maximize the efficient administration of this chapter by taking certain actions.

(d) Authorizes a dental assistant who is hired as a dental assistant for the first time and who has not previously been issued a registration to make dental x-rays to make dental x-rays without complying with this chapter until the first anniversary of the date the dental assistant is hired, notwithstanding Subsection (a)(1) (relating to prohibiting an unregistered dental assistant from making a dental x-ray).

SECTION 38. Amends Chapter 265, Occupations Code, by adding Sections 265.0015, 265.0016, and 265.0017, as follows:

Sec. 265.0015. ELIGIBILITY REQUIREMENTS FOR REGISTRATION. (a) Requires TSBDE, by rule, to establish the requirements for each type of registration issued under this chapter, including requiring a dental assistant to meet certain qualifications.

(b) Authorizes TSBDE to approve courses of instruction and examinations that are provided by private entities.

Sec. 265.0016. FEES. Requires TSBDE to set and collect fees in amounts that are reasonable and necessary to cover the costs of administering this chapter, including registration and renewal fees.

Sec. 265.0017. REGISTRATION EXPIRATION AND RENEWAL. (a) Provides that a registration under this chapter is valid for two years.

(b) Authorizes a dental assistant to renew a registration by paying the required renewal fee and complying with any other renewal requirements established by TSBDE.

(c) Prohibits a dental assistant whose registration has expired from engaging in an activity that requires registration until the registration has been renewed.

(d) Authorizes TSBDE, by rule, to adopt a system under which registrations expire on various dates during the year. Requires TSBDE, for the year in which the expiration date is changed, to prorate registration fees on a monthly basis so that each registration holder pays only that portion of the registration fee that is allocable to the number of months during which the registration is valid. Provides that, on renewal of the registration on the new expiration date, the total renewal fee is payable.

SECTION 39. Amends Section 265.003, Occupations Code, by amending Subsections (a) and (a-1) and adding Subsections (c) and (d), as follows:

(a) Authorizes a dental assistant who is not registered under this chapter to be employed by and work in the office of a licensed and practicing dentist and perform one or more delegated dental acts under the direct supervision, direction, and responsibility of the dentist, including the application of fluoride varnish; or, under the general supervision, direction, and responsibility of the dentist, limited to the making of dental x-rays in compliance with Section 265.001(d); and the provision of interim treatment of a minor dental emergency under certain conditions. Deletes existing text authorizing a dental assistant who is not professionally licensed to be employed by and work in the office of a licensed and practicing dentist and perform one or more delegated dental acts under the direct supervision, direction, and responsibility of the dentist, including the application of a pit and fissure sealant and coronal polishing, if the dental assistant holds a certificate under Section 265.006 (Coronal Polishing Certificate); and the making of dental x-rays under certain circumstances in compliance with Section 265.005. Makes conforming and nonsubstantive changes.

(a-1) Requires a treating dentist who delegates the provision of interim treatment of a minor emergency dental condition to a dental assistant under Subsection (a)(2) (relating to certain actions by a dental assistant under the general supervision, direction, and responsibility of the dentist), rather than under Subsection (a)(2)(B), to take certain actions.

(c) Provides that a delegating dentist remains responsible for the dental acts of a registered or nonregistered dental assistant performing the delegated dental acts.

(d) Prohibits a dental assistant to whom a delegation is made from representing to the public that the dental assistant is authorized to practice dentistry or dental hygiene.6

SECTION 40. Amends Section 265.005, Occupations Code, by adding Subsection (p) to provide that this section expires September 1, 2018.

SECTION 41. Amends Section 265.007, Occupations Code, by adding Subsection (d) to provide that this section expires September 1, 2018.

SECTION 42. Amends Chapter 265, Occupations Code, by adding Section 265.008, as follows:

Sec. 265.008. CONTINUING EDUCATION REQUIRED FOR REGISTRATION RENEWAL. Requires TSBDE, by rule, to establish continuing education requirements for dental assistants registered under this chapter, including a minimum number of hours of continuing education required to renew a registration.

SECTION 43. Amends the heading to Subchapter C, Chapter 266, Occupations Code, to read as follows:

SUBCHAPTER C. BOARD POWERS AND DUTIES

SECTION 44. Amends Section 266.152(d), Occupations Code, as follows:

(d) Provides that the owner of a dental laboratory registered with TSBDE on September 1, 1987, is exempt from Subsection (a) (relating to a dental laboratory having at least one dental technician working on the laboratory's premises who is certified by a recognized board of certification for dental technology) if certain conditions are met, including if the registration of the laboratory has been timely renewed, rather than renewed each year, since that date, and all registration fees have been paid.

SECTION 45. Amends the heading to Section 266.153, Occupations Code, to read as follows:

Sec. 266.153. APPLICATION FOR REGISTRATION; TERM.

SECTION 46. Amends Section 266.153, Occupations Code, by amending Subsection (a) and adding Subsection (d), as follows:

(a) Requires an owner or manager of a dental laboratory to take, rather than to annually take, certain actions.

(d) Provides that a dental laboratory registration issued under this chapter (Regulation of Dental Laboratories) is valid for a term of one or two years, as determined by TSBDE rule.

SECTION 47. Amends Sections 266.154(a) and (c), Occupations Code, as follows:

(a) Requires an applicant for renewal of a dental laboratory registration to provide certain evidence satisfactory to TSBDE, including that at least one employee who works on the dental laboratory's premises has completed the minimum number of hours of continuing education during the previous registration period as required by TSBDE rule, rather than has completed at least 12 hours of continuing education during the previous registration period.

(c) Requires TSBDE, if the owner or manager of a dental laboratory fails to renew the dental laboratory's registration and pay the renewal fee, rather than the annual renewal fee, before the date the registration expires, to suspend the registration certificate of the laboratory.

SECTION 48. Repealers: Sections 256.0531(h) (relating to requiring TSBDE to adopt an alternative dental hygiene training program by a certain date), (i) (relating to requiring TSBDE to appoint certain members for a committee related to the alternative dental hygiene training program), and (j) (relating to requiring the committee to consider standards adopted by the Commission on Dental Accreditation), Occupations Code.

Repealers: Sections 262.001(1) (relating to defining “committee”), 262.102(c) (relating to prohibiting TSBDE from adopting a certain rule before a certain date), 262.1025 (Authority of Advisory Committee to Recommend Rules; Adoption by Board), and 262.103 (Notice of Meetings), Occupations Code.

Repealer: Subchapter B (Dental Hygiene Advisory Committee), Chapter 262 (Regulation of Dental Hygienists), Occupations Code.

Repealers: Section 263.0075 (Informal Settlement Conference; Restitution), Occupations Code.

Repealer: Section 265.003(b) (relating to a certain dental assistant cleansing certain surfaces of the teeth immediately before and for the sole purpose of preparing the tooth area for the placement of the pit and fissure sealant or orthodontic bonding resin), Occupations Code.

Repealer: Section 265.004 (Pit and Fissure Sealant Certificate), Occupations Code.

Repealer: Section 265.006 (Coronal Polishing Certificate), Occupations Code.

Repealer: Subchapter B (Dental Laboratory Certification Council), Chapter 266 (Regulation of Dental Laboratories), Occupations Code.

Repealers: Sections 266.001(1) (relating to defining “council”), 266.101 (Council Powers and Duties), 266.102(a) (relating to requiring TSBDE to take certain actions relating to proposed rules) and 266.102(d) (relating to requiring TSBDE to allow the Dental Laboratory Certification Council to review and comment on proposed rules for a certain period), Occupations Code.

SECTION 49. Requires TSBDE, not later than March 1, 2018, to adopt rules and fees necessary to implement Chapters 258 and 265, Occupations Code, as amended by this Act, and adopt rules necessary to implement Chapter 263, Occupations Code, as amended by this Act.

SECTION 50. (a) Provides that the term of a TSBDE member serving on September 1, 2017, expires on that date.

(b) Requires the governor, not later than December 1, 2017, to appoint 11 members to TSBDE in accordance with Section 252.001(a), Occupations Code, as amended by this Act. Requires the governor to appoint certain persons to serve certain staggered terms.

(c) Requires the members whose terms expire under Subsection (a), notwithstanding Section 252.001, Occupations Code, as amended by this Act, to continue to perform the duties of office as a 15-member TSBDE until six members are appointed under Subsection (b) and qualified.

(d) Authorizes the governor to appoint to TSBDE under Subsection (b) a member whose term expires under Subsection (a). Provides that the expired term of a member described by this subsection does not constitute a full term for purposes of Section 252.004(b) (relating to TSBDE member term limits), Occupations Code.

SECTION 51. Requires TSBDE, not later than December 1, 2017, to appoint the members of the committee established under Subchapter E, Chapter 258, Occupations Code, as added by this Act, in the manner provided by that subchapter.

SECTION 52. Requires the governor, not later than December 1, 2017, to appoint the members of the review committee in accordance with Section 263.0071, Occupations Code, as added by this Act. Requires the governor, in making the appointments, to appoint a certain number of members to terms expiring on certain staggered dates.

SECTION 53. (a) Provides that, except as provided by Subsection (b), Section 252.010, Occupations Code, as amended by this Act, applies to a member of TSBDE appointed before, on, or after the effective date of this Act.

(b) Provides that a TSBDE member appointed after the effective date of this Act who, before the effective date of this Act, completed the training program required by Section 252.010, Occupations Code, as that law existed before the effective date of this Act, is required to complete additional training only on the subjects added by this Act to the training program as required by Section 252.010, Occupations Code. Prohibits a TSBDE member described by this subsection from voting, deliberating, or being counted as a member in attendance at a TSBDE meeting held on or after December 1, 2017, until the member completes the additional training.

SECTION 54. Requires TSBDE, not later than September 1, 2022, to conduct an inspection under Section 258.156, Occupations Code, as amended by this Act, with respect to a dentist who holds a level 2, level 3, or level 4 permit issued under Section 258.155, Occupations Code, before the effective date of this Act.

SECTION 55. (a) Provides that, on the effective date of this Act, a certificate issued under former Section 265.004 or 265.006, Occupations Code, expires.

(b) Provides that the repeal of a law by this Act does not entitle a person to a refund of an application, licensing, or other fee paid by the person before the effective date of this Act.

SECTION 56. (a) Requires TSBDE, on and after September 1, 2018, to issue a dental x-ray registration under Section 265.001, Occupations Code, as amended by this Act, to a dental assistant who renews an unexpired certificate of registration issued under former Section 265.005, Occupations Code, and who meets the continuing education requirements established by TSBDE under Section 265.008, Occupations Code, as added by this Act. Provides that a dental assistant described by this subsection is not required to meet the eligibility requirements of Section 265.0015, Occupations Code, as added by this Act, to obtain or renew a registration issued under this subsection.

(b) Requires TSBDE, on and after September 1, 2018, to issue a nitrous oxide monitoring registration under Section 265.001, Occupations Code, as amended by this Act, to a dental assistant who holds a current nitrous oxide monitoring certificate issued by TSBDE before that date and who meets the continuing education requirements established by TSBDE under Section 265.008, Occupations Code, as added by this Act. Provides that a dental assistant described by this subsection is not required to meet the eligibility requirements of Section 265.0015, Occupations Code, as added by this Act, to obtain or renew a registration issued under this subsection.

SECTION 57. Provides that Section 265.008, Occupations Code, as added by this Act, applies only to the renewal of a registration on or after September 1, 2018.

SECTION 58. Provides that a certificate of registration issued under former Section 265.005, Occupations Code, or a nitrous oxide monitoring certificate issued by TSBDE, expires on September 1, 2019.

SECTION 59. (a) Makes application of Chapter 263, Occupations Code, as amended by this Act, prospective to March 1, 2018.

(b) Provides that the changes in law made by this Act do not affect the validity of a disciplinary action or other proceeding that was initiated before the effective date of this Act and that is pending before a court or other governmental entity on that date.

SECTION 60. (a) Provides that a violation of a law that is repealed by this Act is governed by the law in effect on the date the violation was committed, and the former law is continued in effect for that purpose.

(b) Provides that, for purposes of this section, a violation was committed before the effective date of this Act if any element of the violation occurred before that date.

SECTION 61. (a) Effective date, except as provided by Subsections (b) and (c) of this section: September 1, 2017.

(b) Effective date, Sections 258.155 and 258.156, Occupations Code, as amended by this Act, and Section 258.1554, Occupations Code, as added by this Act: March 1, 2018.

(c) Effective date, Sections 258.002, 258.054, and 265.001, Occupations Code, as amended by this Act: September 1, 2018.






Discussion of Texas S.B. 313 for 2017

1. Section 4(b)(4) “the types of TSBDE rules, interpretations, and enforcement actions that may implicate federal antitrust law by limiting competition or impacting prices charged by persons engaged in a profession or business TSBDE regulates, including certain rules, interpretations, and enforcement actionsThis wording is unclear. It may relate to the recent decision in Texas federal district court, and later upheld in the federal Fifth Circuit Court of Appeals, relating to validity of commercial free speech for dental specialties outside of those currently recognized by the American Dental Association (ADA)1 . Perhaps wording relates to Federal Trade Commission (FTC) letters to the TSBDE concerning the dental service organization industry.2

In the recent decision by the Fifth Circuit, the court ruled in favor of plaintiffs to announce specialty status, if that advertised standing is not deceptive. “By completely prohibiting dentists from advertising as specialists simply because their practice area is one not recognized as a specialty by the ADA, “truthful and nonmisleading expression will be snared along with fraudulent or deceptive commercial speech[.]””1

The FTC advisory letter to the TSBDE presupposes the fallacious assumption, that dental service organizations (DSOs) are “focused on the nonclinical functions of a dental practice that are unlikely to affect the quality of professional dental care.” In reality, the Fifth Circuit ruled that DSOs often truly control doctors’ clinical decisions, above and beyond nonclinical decisions.3 The court’s findings were largely based on existing Texas statutes. The common misrepresentation of DSOs limiting dental practice involvement strictly to nonclinical areas has been thoroughly debunked.4

1. US Court of Appeals for the Fifth Circuit. American Academy of Implant Dentistry et al vs. Kelly Parker et al. Case no 16-50157; filed June 19,2017: https://www.ca5.uscourts.gov/opinions/pub/16/16-50157-CV0.pdf (accessed 11-21-2017)

2. Gavil AI, Vita MG, Feinstein D. Letter of US Federal Trade Commission to Texas State Board of Dental Examiners. Oct 6, 2014; https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-texas-state-board-dental-examiners/141006tsbdecomment1.pdf (accessed 11-21-2017)

3. US Court of Appeals for the Fifth Circuit. In the matter of OCA, Inc (formerly d/b/a Orthodontic Center of America) bankruptcy. Case no 07-30430; filed Dec 12, 2008: http://www.ca5.uscourts.gov/opinions%5Cpub%5C07/07-30430-CV0.wpd.pdf (accessed 11-21-2017)

4. Kutak Rock LLP (white paper). Dental Practice Pitfalls. June 1,2017; https://static1.squarespace.com/static/594b2f14bebafb473bd7c22c/t/59ecf68464b05f695b738cf7/1508701829110/Kutak+Rock+Article+to+Alert+Dentists+and+Corporate+Dentistry.pdf (accessed 11-21-2017)



2. Section 9(a) “Deletes an existing requirement that an applicant for a license to practice dentistry be of good moral character.Superficially, this eliminates a requirement to evaluate value judgement on “good moral character”. We unfortunately realize from our current news reports, that numbers of leaders in the world of politics, the media, business, etc. have abused others of lesser power in the workplace. Victims are generally highly unlikely to come forth and report workplace abuse, because of retaliation upon victims. Identities of whistleblowers must be protected to prevent retaliation, industry blackballing, lobbyist public slandering, etc.

The TSBDE formerly retained a regulatory board member doctor, who surreptitiously videotaped female employees changing in the lady’s restroom at his dental office.5 One female employee did report the abuse to legal authorities. In other cases, an employee (or perhaps the child of an employee) may be highly uncomfortable going though certain channels, and inherent risks of exposure to identity, and others viewing victims in compromised situations.

Cases of alleged pedophilia and child pornography have also been presented to the TSBDE.6 These cases may be difficult to prove in a criminal court, because of the age of the victims, difficulty of material for jurors to review, the challenge of deposing and legal examination of children, a parent’s interest in protecting their child, etc.

Therefore, the TSBDE has an interest in asserting “good moral character” as a requirement for dental licensure. This is far from a trivial or archaic matter.

5. Kiely M. Gov. Perry Asks for Resignation of Bryan Dentist from State Board after He’s Accused of Secretly of Filming an Employee Changing Cloths. The Eagle May 23, 2014; http://www.theeagle.com/news/local/gov-perry-asks-for-resignation-of-bryan-dentist-from-state/article_2d2fadb1-b4ac-5a1c-9af8-265592de149a.html (accessed 11-21-2017)

6. Clemons T. Local Dentist Suspended over Sexual Abuse Allegations. ABC 13 Eyewitness News Houston; June 24, 2016: http://abc13.com/news/local-dentist-suspended-over-sexual-abuse-allegations/1400989/ (accessed 11-21-2017)



3. Section 18 “Amends Section 258.002(a), Occupations Code, to authorize a licensed dentist to delegate to a qualified and trained dental assistant acting under the dentist’s general or direct supervision any dental act that a reasonable and prudent dentist would find is within the scope of sound dental judgment to delegate if, among certain other conditions, the person to whom the dental act is delegated is registered under Chapter 265 (Regulation of Dental Assistants), if registration is required to perform the act, rather than if the person to whom the dental act is delegated holds the appropriate certificate, if a certificate is required to perform the act. This wording is beyond convoluted. What exactly does it mean? The public benefits when the language of legal statutes is clear, concise, and not subject to a wide range of interpretation.


4. Section 26 “Sec. 258.211. FUNDING. Authorizes TSBDE to accept gifts and grants from any source to fund the duties of TSBDE and the committee under this subchapter.” This provision makes it abundantly clear; the TSBDE lacks fiscal resources to carry forth their legislated obligations.

The potential for abuse of this provision is more than obvious. What oversight is created to monitor those gifting the TSBDE? What mechanisms are made for transparency? Are potential conflicts of interest in play? Will self-serving moneyed entities be in play for regulatory capture of the TSBDE?



5. Section 33 “Sec. 263.0074. DISMISSAL OF BASELESS COMPLAINT. Requires TSBDE, if, during the 180-day period prescribed by Section 263.007(b)(1), TSBDE determines that the complaint is a baseless or unfounded complaint, to dismiss the complaint and include a statement in the records of the complaint that the reason for the dismissal is because the complaint was baseless or unfounded. Requires TSBDE to adopt rules that establish criteria for determining that a complaint is baseless or unfounded. The potential for “DISMISSAL OF A BASELESS COMPLAINT” to be abused by the TSBDE should not be overlooked.

We’ve witnessed periods when the TSBDE was underfunded or understaffed with investigators (current situation). Potentially valid and perhaps more complicated complaints may be set aside. The legal skills and motivation of the attorney assigned as the TSBDE’s legal counsel, by the Texas Attorney General’s Office can vary considerably. The same variability in skill, judgement, and motivation may apply to the executive director of the TSBDE appointed by the governor. Problematic operations of the TSBDE in protection of the public welfare is not news.7

7. Aaronson B. Texas Dental Board is Accused of Ineptitude. The Texas Tribune Apr 12, 2012; https://www.texastribune.org/2012/04/12/texas-dental-board-accused-ineptitude/ (accessed 11-22-2017)



6. Section 39 (a-d) “Amends Section 265.003, Occupations Code, by amending Subsections (a) and (a-1) and adding Subsections (c) and (d), as follows:

(a) Authorizes a dental assistant who is not registered under this chapter to be employed by and work in the office of a licensed and practicing dentist and perform one or more delegated dental acts under the direct supervision, direction, and responsibility of the dentist, including the application of fluoride varnish; or, under the general supervision, direction, and responsibility of the dentist, limited to the making of dental x-rays in compliance with Section 265.001(d); and the provision of interim treatment of a minor dental emergency under certain conditions. Deletes existing text authorizing a dental assistant who is not professionally licensed to be employed by and work in the office of a licensed and practicing dentist and perform one or more delegated dental acts under the direct supervision, direction, and responsibility of the dentist, including the application of a pit and fissure sealant and coronal polishing, if the dental assistant holds a certificate under Section 265.006 (Coronal Polishing Certificate); and the making of dental x-rays under certain circumstances in compliance with Section 265.005. Makes conforming and nonsubstantive changes.

(a-1) Requires a treating dentist who delegates the provision of interim treatment of a minor emergency dental condition to a dental assistant under Subsection (a)(2) (relating to certain actions by a dental assistant under the general supervision, direction, and responsibility of the dentist), rather than under Subsection (a)(2)(B), to take certain actions.

(c) Provides that a delegating dentist remains responsible for the dental acts of a registered or nonregistered dental assistant performing the delegated dental acts.

(d) Prohibits a dental assistant to whom a delegation is made from representing to the public that the dental assistant is authorized to practice dentistry or dental hygiene.


Section 39(a, a-1) opens up the possibility of a dental assistant’s overreach because of “general supervision”. What exactly is “interim treatment of a minor dental emergency”, especially under general supervision of the dentist? The doctor’s presence inclusive of immediate diagnosis and assessment are essential for favorable patient outcomes. This requisite skill and training is well beyond a dental assistant’s ability and judgement.


Maybe the dental assistant was told by the patient, “Please recement on my temporary crown.”? A skilled and licensed dentist might evaluate details on why the temporary crown came off. Perhaps there’s a coronal fracture, with pulpal involvement? Perhaps there’s a vertical root fracture, and the tooth is now rendered non-restorable? Perhaps there exists an offending contact in lateral excursive movement, which may generate continued discomfort for the patient, as well as repeated and frustrating temporary crown displacement? No dental assistant holds the advanced training of a dentist, nor should they be positioned to substitute for a doctor.


Section 39(c) assumes the dentist is truly the supervisor of the dental assistant. As referenced earlier, that responsibility may actually fall upon an unlicensed entity; the DSO management. Like the armies of ancient Rome, soldiers are loyal and follow orders of those who pay them. Dental assistants don’t take the Hippocratic Oath. Whoever signs their paychecks will generally command their duties.


Section 39(d) is almost laughable. The dental assistant is not usually engaged in the unlicensed practice of dentistry or dental hygiene, under their own volition. Dental assistants are ordered to provide services as directed by their supervisors (doctors or clinic management), as a condition of their employment. Any misrepresentation of a dental assistant’s authorized standing will usually come from the doctor or clinic management. By placing an onus of responsibility on the dental assistant, one potentially eliminates a possible whistleblower relating to unlicensed clinical practice.


Conclusion

A current thrust of the American Society of Dental Anesthesiologists seems to have been lost in Texas SB 313. Dental anesthesiologists, today a valid and recognized dental specialty under Texas law, advocate similar protocols to medical anesthesiology. How can a restorative dentist, pediatric specialist dentist, etc. provide both outstanding restorative clinical treatment, and at the same time monitor and manage safe and effective sedation care for the patient?8 We’re often asking doctors to juggle too many balls at the same time. A drop of the ball means patient morbidity and mortality. Opinions of “stakeholders” may be more about economic turf protection, than protections for the public interest.

8. Agarwal R, Wald SH. Improving Anesthesia Safety for Dental Restorations and Surgery. ASA Monitor Nov 2017; 81: 54-55. http://monitor.pubs.asahq.org/article.aspx?articleid=2659505 (accessed 11-21-2017)


Discussion

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Abby LongComment