BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 540
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          Date of Hearing:   July 5, 2011

              ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER 
                                     PROTECTION
                                 Mary Hayashi, Chair
                     SB 540 (Price) - As Amended:  June 27, 2011

           SENATE VOTE  :   34-0
           
          SUBJECT  :   Dentistry.

           SUMMARY  :   Increases the size and reconfigures the membership of 
          the Dental Board of California (DBC) by eliminating the 
          registered dental hygienist (RDH) and registered dental 
          assistant (RDA) members and adding three additional public 
          members.  Also extends DBC's sunset to January 1, 2016.  
          Specifically,  this bill  :

          1)Deletes existing law requirements related to advertising by a 
            dentist of specialization or accreditation in a specialty area 
            of practice unless certain requirements are met.

           2) Extends the sunset date of the DBC until January 1, 2016, 
             and provides that upon its sunset, the DBC becomes subject to 
             review by the appropriate policy committees of the 
             Legislature.

           3) Increases the size of the DBC by adding a public member, 
             appointed by the governor.

           4) Eliminates the RDH and RDA from the DBC membership, and 
             replaces them with two public members to the DBC, appointed 
             by the governor, by January 1, 2014.

           5) Specifies that two of the public members appointed by the 
             Governor shall serve for a term of two years, and two of the 
             public members appointed by the Governor shall serve for a 
             term of three years.

          6)Requires DBC, by January 1, 2013, to comply with existing 
            statute that requires boards within the Department of Consumer 
            Affairs (DCA), including DBC, to adopt regulations requiring 
            licensees to provide notice to clients or customers that they 
            are licensed by the state, and includes certain specified 
            notice requirements.








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          7)Extends the sunset date of the appointment of DBC's executive 
            officer to January 1, 2016.

          8)Requires DBC to adopt written guidelines on how to make 
            probation assignments for licensees, and to ensure that 
            probationary and evaluation reports are conducted consistently 
            and regularly.

          9)Requires DBC to ensure that the law and ethics examination 
            required for licensure reflect current law and regulations, 
            and to ensure that the examinations are randomized.

          10)Deletes existing law provisions requiring a licentiate to 
            sign an agreement of understanding that the withdrawal or 
            termination from DBC's diversion program at a time when a 
            diversion evaluation committee determines the licentiate 
            presents a threat to the public's health and safety shall 
            authorize DBC to use diversion treatment records in 
            disciplinary or criminal proceedings.

          11)Requires that if a licentiate withdraws or is terminated from 
            DBC's diversion program for failure to comply or is determined 
            to be a threat to the public or his or her own health and 
            safety, all diversion records for that licentiate shall be 
            provided to DBC's enforcement program and may be used in any 
            disciplinary proceeding.  
          
          12)Requires the DBC diversion program manager to immediately 
            notify DBC's enforcement program when a licentiate in a 
            diversion program tests positive for any banned substance, and 
            provide the documentation evidencing the positive test result. 
             Authorizes this documentation's use in a disciplinary 
            proceeding. 

          13)Clarifies that fees related to licensing and permitting of 
            RDAs be established by regulation instead of by resolution.

          14)Deletes legislative intent language for DBC to create and 
            implement an effective forum for dental assisting matters, as 
            specified.

          15)Creates a Dental Assisting Council (Council) of DBC, to 
            consider all matters relating to RDAs, and make 
            recommendations to DBC including:








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             a)   Requirements for RDA examination, licensure, and 
               renewal;

             b)   Standards for approval of dental assisting educational 
               programs and courses;

             c)   Allowable RDA duties, settings, and supervision levels; 
               and,

             d)   Appropriate standards of conduct and enforcement for 
               RDAs.

          16)Requires DBC to appoint members to the Council by July 1, 
            2012, and include two members of DBC, effective only until 
            January 1, 2014, and appointees from each of the following 
            categories in the Council:

             a)   One RDA and one registered dental assistant in extended 
               functions (RDAEF) recommended by each incorporated, 
               nonprofit professional society, association, or other 
               entity in California whose membership is comprised of RDAs 
               for selection by the DBC, as specified;

             b)   One dental assisting educator selected by DBC from a 
               board-approved or commission-accredited registered dental 
               assisting program with a current license issued by DBC for 
               no less than five years and whose teaching experience is no 
               less than five years; and,

             c)   Two at-large RDAs selected by DBC.

          17)Provides that no Council appointee shall have served 
            previously on the dental assisting forum or have any financial 
            interest in any RDA school. 

          18)Requires certain Council information regarding candidates be 
            made available in published DBC materials and that final 
            candidate selection be conducted during DBC's public meetings.

          19)Provides that a vacancy occurring during a Council term be 
            filled by appointment by the DBC for the unexpired term, 
            according to certain criteria within 90 days.

          20)Requires each Council member to meet certain existing 








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            requirements and comply with conflict of interest 
            requirements, as specified.

          21)Requires the Council to meet in conjunction with other DBC 
            committees, as specified.

          22)Provides that each Council member term is four years, unless 
            otherwise exempted.

          23) Requires DBC to approve, modify, or reject recommendations 
            by the Council within 90 days of submission to DBC.  
            Authorizes the Council to request DBC to provide its reasons 
            in writing for doing so within 30 days of the request.

          24)Requires DBC to consider recommendations by the Council when 
            assigning specific procedures related to examinations for 
            licensure as a RDA or RDAEF.

          25)Requires DBC to consider recommendations by the Dental 
            Hygiene Committee regarding scope of practice issues, within 
            90 days of submission to DBC, as specified.

          26)Extends the sunset date of the California Dental Corps Loan 
            Repayment Program of 2002 from July 1, 2012, to until all the 
            moneys in the account are expended.  

          27)Makes technical, conforming changes.

           EXISTING LAW  

          1)Establishes the DBC to license and regulate the practice of 
            dentistry.  

          2)Specifies that DBC consists of eight practicing dentists, one 
            RDH, one RDA, and four public members, effective until January 
            1, 2012. 

          3)Requires every board within DCA, as specified, to initiate the 
            process of adopting regulations on or before January 1, 1999, 
            requiring its "licentiates", as defined, to provide notice to 
            their clients or customers that they are licensed by this 
            state.

          4)Prohibits a dentist from holding himself or herself out as a 
            specialist, unless certain specialization requirements are 








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            met, for purposes of advertising.

          5)Authorizes DBC to issue a probationary license to an applicant 
            for licensure as a dentist or dental auxiliary.  Allows DBC to 
            require a licensee, as a term or condition of issuing a 
            probationary license, to comply with certain requirements, as 
            specified. 

          6)States legislative intent to seek ways and means to identify 
            and rehabilitate licentiates who abuse dangerous drugs or 
            alcohol, so that licentiate may be treated and returned to the 
            practice of dentistry in a manner which will not endanger the 
            public health and safety.  

          7)Requires DBC to establish criteria for the acceptance, denial, 
            or termination of licentiates in a DBC diversion program.  
            Requires licentiates to sign an agreement of understanding 
            that withdrawal or termination from the DBC diversion program 
            at a time when a diversion evaluation committee determines the 
            licentiate presents a threat to the public's health and safety 
            and authorizes DBC to use diversion treatment records in 
            disciplinary or criminal proceedings.  

          8)Provides that fees related to the licensing and permitting of 
            RDAs be established by DBC resolution.  

          9)Makes legislative findings and declarations that RDAs provide 
            dental care services that are vital to good health.  States 
            legislative intent that DBC create and implement an effective 
            forum where services, regulatory oversight, and all matters 
            related to RDAs can be discussed, as specified.

          10)Establishes the Dental Corps Loan Repayment Program of 2002 
            to provide loan repayment assistance to dentists who commit to 
            a minimum of three years of service in a "dentally underserved 
            area", as defined.  

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           Purpose of this bill .  According to the author's office, "This 
          bill is necessary to extend the sunset date of the DBC and make 
          programmatic and administrative changes to the DBC as reflected 
          in the Sunset Background Paper for DBC." 








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           Background  .  DBC was created by the California Legislature in 
          1885, and was originally established to regulate dentists.  
          Today, DBC is responsible for regulating the practice of 
          approximately 71,000 licensed dental health professionals in 
          California, including 35,500 dentists, 34,300 RDAs, and 1,300 
          RDAEFs.   In addition, DBC is responsible for setting the duties 
          and functions of approximately 50,000 unlicensed dental 
          assistants.  The Dental Practice Act provides that the 
          "Ýp]rotection of the public shall be the highest priority of DBC 
          in exercising its licensing, regulatory and disciplinary 
          functions.  Whenever the protection of the public is 
          inconsistent with other interests sought to be promoted, the 
          protection of the public shall be paramount."  DBC implements 
          regulatory programs and performs a variety of functions to 
          protect consumers.  These programs and activities include 
          setting licensure requirements for dentists, and RDAs, including 
          examination requirements, issue and renew licenses, issue 
          special permits, monitor probationer dentists and RDAs and 
          manage a diversion program for dentists and RDAs whose practice 
          may be impaired due to chemical dependency or mental illness.  
          DBC is composed of 14 members: eight practicing dentists, one 
          RDH, one RDA, and four public members.  The eight licensed 
          dentists, the RDH, the RDA, and two public members are appointed 
          by the Governor.  The Speaker of the Assembly and the Senate 
          Rules Committee each appoint a public member.   
          
          The author's office asserts that a public member majority for 
          occupational regulatory boards, or greater representation of the 
          public where current board membership is weighted in favor of 
          the profession, is preferred for consumer protection.  Further, 
          increasing the public's representation on DBC assures the public 
          that the professions' interests do not outweigh what is in the 
          best interest of the public.  However, they have not supported 
          this opinion with any evidence of the failure by DBC, as 
          currently configured, to protect consumers or that DBC's 
          professional members only serve to protect their own 
          professions.  Accordingly, the need to change the configuration 
          of DBC is unsupported particularly with respect to removing the 
          RDA and RDH representation on DBC.
          
          Although the DBC supports this bill, they do oppose 
          reconfiguring its membership.  The DBC states, "DBC believes 
          that RDA representation on DBC is critical and therefore opposes 
          removing the RDA positions from DBC.  We respectfully request 








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          that you re-consider the composition of DBC to include eight 
          dentists, five public members, and two dental assistants." 

          The Dental Assisting Alliance proposes that instead of 
          eliminating dental assisting representation on DBC, the number 
          of dental assistants and the complexity of their regulation, 
          dictates their increased formalized input into the decision 
          making processes of DBC, just as the eight dentist positions on 
          DBC provide varying types of expertise.

          Opponents of this bill argue that DBC oversees over 85,000 
          dental assistants, as compared to 35,500 dentists, making it 
          illogical to expand the public representation on the DBC at the 
          expense of dental assisting.  Further, opponents disagree with 
          the notion that eliminating DBC level participation by 
          representatives of the regulated community will in any way 
          result in proper prioritization of, and resolution of, dental 
          assisting issues as they arise before DBC.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Dental Board of California
           
            Opposition 
           
          California Association of Dental Assisting Teachers
          Numerous individuals

           Analysis Prepared by  :    Rebecca May / B.,P. & C.P. / (916) 
          319-3301