BILL ANALYSIS Ó SB 540 Page 1 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. SB 540 Page 2 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: SB 540 Page 3 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 SB 540 Page 4 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 SB 540 Page 5 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." SB 540 Page 6 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 SB 540 Page 7 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