BILL NUMBER: AB 2056 CHAPTERED 09/10/04 CHAPTER 447 FILED WITH SECRETARY OF STATE SEPTEMBER 10, 2004 APPROVED BY GOVERNOR SEPTEMBER 10, 2004 PASSED THE ASSEMBLY AUGUST 24, 2004 PASSED THE SENATE AUGUST 18, 2004 AMENDED IN SENATE AUGUST 16, 2004 AMENDED IN ASSEMBLY MAY 20, 2004 AMENDED IN ASSEMBLY APRIL 1, 2004 INTRODUCED BY Assembly Member Aghazarian FEBRUARY 17, 2004 An act to amend Sections 1680 and 1701.1 of, and to add Section 1670.2 to, the Business and Professions Code, relating to dentistry, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST AB 2056, Aghazarian. Dentistry. Existing law, the Dental Practice Act, regulates the practice of dentistry by the Dental Board of California in the Department of Consumer Affairs. Under the act, a licensee may be disciplined by the board, including having his or her license revoked or suspended, or being reprimanded or placed on probation by the board for specified reasons. This bill would require the board to initiate a proceeding against a licensee for various violations of the act within specified time periods. Existing law defines unprofessional conduct for purposes of the act to include committing acts of gross immorality substantially related to the practice of dentistry. This bill would instead include committing acts of sexual abuse, relations with a patient, or misconduct substantially related to the practice of dentistry, and would include the unlawful prescribing, dispensing, or furnishing of dangerous drugs or devices, as defined. Existing law makes a person who willfully, under circumstances or conditions that cause or create risk of bodily harm, serious physical or mental illness, or death, practices or attempts to practice, or advertises or holds himself or herself out as practicing dentistry without being certified or authorized to do so, guilty of a crime punishable by imprisonment in county jail for up to one year. This bill would instead make that crime also punishable by a fine not to exceed $10,000, or by both the fine and imprisonment. The bill would also make a person who conspires with or aids and abets another to commit those acts guilty of a crime and subject to the above penalties. This bill would appropriate $35,000 from the State Dentistry Fund to the Department of Consumer Affairs to fund a Dental Board of California investigator position in the 2004-05 fiscal year. Appropriation: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1670.2 is added to the Business and Professions Code, to read: 1670.2. (a) Except as otherwise provided in this section, any proceeding initiated by the board against a licensee for the violation of any provision of this chapter shall be filed within three years after the board discovers the act or omission alleged as the ground for disciplinary action, or within seven years after the act or omission alleged as the ground for disciplinary action occurs, whichever occurs first. (b) An accusation filed against a licensee pursuant to Section 11503 of the Government Code alleging fraud or willful misrepresentation is not subject to the limitation in subdivision (a). (c) An accusation filed against a licensee pursuant to Section 11503 of the Government Code alleging unprofessional conduct based on incompetence, gross negligence, or repeated negligent acts of the licensee is not subject to the limitation in subdivision (a) upon proof that the licensee intentionally concealed from discovery his or her incompetence, gross negligence, or repeated negligent acts. (d) If an alleged act or omission involves any conduct described in subdivision (e) of Section 1680 committed on a minor, the seven-year limitations period in subdivision (a) and the 10-year limitations period in subdivision (e) shall be tolled until the minor reaches the age of majority. (e) An accusation filed against a licensee pursuant to Section 11503 of the Government Code alleging conduct described in subdivision (e) of Section 1680 not committed on a minor shall be filed within three years after the board discovers the act or omission alleged as the ground for disciplinary action, or within 10 years after the act or omission alleged as the ground for disciplinary action occurs, whichever occurs first. This subdivision shall apply to a complaint alleging conduct received by the board on and after January 1, 2005. (f) In any allegation, accusation, or proceeding described in this section, the limitations period in subdivision (a) shall be tolled for the period during which material evidence necessary for prosecuting or determining whether a disciplinary action would be appropriate is unavailable to the board due to an ongoing criminal investigation. SEC. 2. Section 1680 of the Business and Professions Code is amended to read: 1680. Unprofessional conduct by a person licensed under this chapter is defined as, but is not limited to, any one of the following: (a) The obtaining of any fee by fraud or misrepresentation. (b) The employment directly or indirectly of any student or suspended or unlicensed dentist to practice dentistry as defined in this chapter. (c) The aiding or abetting of any unlicensed person to practice dentistry. (d) The aiding or abetting of a licensed person to practice dentistry unlawfully. (e) The committing of any act or acts of sexual abuse, misconduct, or relations with a patient that are substantially related to the practice of dentistry. (f) The use of any false, assumed, or fictitious name, either as an individual, firm, corporation, or otherwise, or any name other than the name under which he or she is licensed to practice, in advertising or in any other manner indicating that he or she is practicing or will practice dentistry, except that name as is specified in a valid permit issued pursuant to Section 1701.5. (g) The practice of accepting or receiving any commission or the rebating in any form or manner of fees for professional services, radiograms, prescriptions, or other services or articles supplied to patients. (h) The making use by the licensee or any agent of the licensee of any advertising statements of a character tending to deceive or mislead the public. (i) The advertising of either professional superiority or the advertising of performance of professional services in a superior manner. This subdivision shall not prohibit advertising permitted by subdivision (h) of Section 651. (j) The employing or the making use of solicitors. (k) The advertising in violation of Section 651. (l) The advertising to guarantee any dental service, or to perform any dental operation painlessly. This subdivision shall not prohibit advertising permitted by Section 651. (m) The violation of any of the provisions of law regulating the procurement, dispensing, or administration of dangerous drugs, as defined in Article 7 (commencing with Section 4211) of Chapter 9, or controlled substances, as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code. (n) The violation of any of the provisions of this division. (o) The permitting of any person to operate dental radiographic equipment who has not met the requirements of Section 1656. (p) The clearly excessive prescribing or administering of drugs or treatment, or the clearly excessive use of diagnostic procedures, or the clearly excessive use of diagnostic or treatment facilities, as determined by the customary practice and standards of the dental profession. Any person who violates this subdivision is guilty of a misdemeanor and shall be punished by a fine of not less than one hundred dollars ($100) or more than six hundred dollars ($600), or by imprisonment for a term of not less than 60 days or more than 180 days, or by both a fine and imprisonment. (q) The use of threats or harassment against any patient or licensee for providing evidence in any possible or actual disciplinary action, or other legal action; or the discharge of an employee primarily based on the employee's attempt to comply with the provisions of this chapter or to aid in the compliance. (r) Suspension or revocation of a license issued, or discipline imposed, by another state or territory on grounds which would be the basis of discipline in this state. (s) The alteration of a patient's record with intent to deceive. (t) Unsanitary or unsafe office conditions, as determined by the customary practice and standards of the dental profession. (u) The abandonment of the patient by the licensee, without written notice to the patient that treatment is to be discontinued and before the patient has ample opportunity to secure the services of another dentist and provided the health of the patient is not jeopardized. (v) The willful misrepresentation of facts relating to a disciplinary action to the patients of a disciplined licensee. (w) Use of fraud in the procurement of any license issued pursuant to this chapter. (x) Any action or conduct which would have warranted the denial of the license. (y) The aiding or abetting of a licensed dentist or dental auxiliary to practice dentistry in a negligent or incompetent manner. (z) The failure to report to the board in writing within seven days any of the following: (1) the death of his or her patient during the performance of any dental procedure; (2) the discovery of the death of a patient whose death is related to a dental procedure performed by him or her; or (3) except for a scheduled hospitalization, the removal to a hospital or emergency center for medical treatment for a period exceeding 24 hours of any patient to whom oral conscious sedation, conscious sedation, or general anesthesia was administered, or any patient as a result of dental treatment. With the exception of patients to whom oral conscious sedation, conscious sedation, or general anesthesia was administered, removal to a hospital or emergency center that is the normal or expected treatment for the underlying dental condition is not required to be reported. Upon receipt of a report pursuant to this subdivision the board may conduct an inspection of the dental office if the board finds that it is necessary. (aa) Participating in or operating any group advertising and referral services that are in violation of Section 650.2. (bb) The failure to use a fail-safe machine with an appropriate exhaust system in the administration of nitrous oxide. The board shall, by regulation, define what constitutes a fail-safe machine. (cc) Engaging in the practice of dentistry with an expired license. (dd) Except for good cause, the knowing failure to protect patients by failing to follow infection control guidelines of the board, thereby risking transmission of blood-borne infectious diseases from dentist or dental auxiliary to patient, from patient to patient, and from patient to dentist or dental auxiliary. In administering this subdivision, the board shall consider referencing the standards, regulations, and guidelines of the State Department of Health Services developed pursuant to Section 1250.11 of the Health and Safety Code and the standards, guidelines, and regulations pursuant to the California Occupational Safety and Health Act of 1973 (Part 1 (commencing with Section 6300), Division 5, Labor Code) for preventing the transmission of HIV, hepatitis B, and other blood-borne pathogens in health care settings. As necessary, the board shall consult with the Medical Board of California, the Board of Podiatric Medicine, the Board of Registered Nursing, and the Board of Vocational Nursing and Psychiatric Technicians, to encourage appropriate consistency in the implementation of this subdivision. The board shall seek to ensure that licensees and others regulated by the board are informed of the responsibility of licensees and others to follow infection control guidelines, and of the most recent scientifically recognized safeguards for minimizing the risk of transmission of blood-borne infectious diseases. (ee) The utilization by a licensed dentist of any person to perform the functions of a registered dental assistant, registered dental assistant in extended functions, registered dental hygienist, or registered dental hygienist in extended functions who, at the time of initial employment, does not possess a current, valid license to perform those functions. (ff) The prescribing, dispensing, or furnishing of dangerous drugs or devices, as defined in Section 4022, in violation of Section 2242.1. SEC. 3. Section 1701.1 of the Business and Professions Code is amended to read: 1701.1. A person who willfully, under circumstances or conditions that cause or create risk of bodily harm, serious physical or mental illness, or death, practices or attempts to practice, or advertises or holds himself or herself out as practicing dentistry without having at the time of so doing a valid, unrevoked, and unsuspended certificate as provided in this chapter, or without being authorized to perform that act pursuant to a certificate obtained in accordance with some other provision of law, is guilty of a crime, punishable by imprisonment in a county jail for up to one year, by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment. A person who conspires with or aids and abets another to commit any act described in this section is guilty of a crime and subject to the punishment described in this section. The remedy provided in this section shall not preclude any other remedy provided by law. SEC. 4. The sum of thirty-five thousand dollars ($35,000) is hereby appropriated from the State Dentistry Fund to the Department of Consumer Affairs for the purpose of funding one Dental Board of California investigator position for the purposes of Section 1670.2 in the 2004-05 fiscal year.