Amended in Senate June 9, 2016

Amended in Assembly April 11, 2016

Amended in Assembly March 31, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2235

Introduced by Assembly Member Thurmond

February 18, 2016

An act to amend begin delete Section 1682 end delete begin insert Sections 1680 and 1682 end insert of, and to add Section 1601.4 to, the Business and Professions Code, relating to healing arts.

LEGISLATIVE COUNSEL’S DIGEST

AB 2235, as amended, Thurmond. Board of Dentistry: pediatric anesthesia: committee.

The Dental Practice Act provides for the licensure and regulation of dentists by the Dental Board of California. That act authorizes a committee of the board to evaluate all suggestions or requests for regulatory changes related to the committee and to hold informational hearings in order to report and make appropriate recommendations to the board, after consultation with departmental legal counsel and the board’s chief executive officer. The act requires a committee to include in any report regarding a proposed regulatory change, at a minimum, the specific language or the proposed change or changes and the reasons therefor, and any facts supporting the need for the change.

The act governs the use of general anesthesia, conscious sedation, and oral conscious sedation for pediatric and adult patients. begin insert The act makes it unprofessional conduct for a licensee to fail to report the death of a patient, or removal of a patient to a hospital or emergency center for medical treatment, that is related to a dental procedure, as specified. end insert The act begin insert also end insert makes it unprofessional conduct for any dentist to fail to obtain the written informed consent of a patient prior to administering general anesthesia or conscious sedation. In the case of a minor, the act requires that the consent be obtained from the child’s parent or guardian.

This bill, which would be known as “Caleb’s Law,” would require the board, on or before begin delete March 31, 2017, end delete begin insert February 1, 2017, end insert to establish a committee to investigate whether the current begin delete laws, regulations, and policies of the state are sufficient to minimize the potential for injury or death in minors from the administration of general anesthesia or deep sedation for dental patients. end delete begin insert statutes and regulations for the administration and monitoring of oral conscious sedation, conscious sedation, and general anesthesia provide adequate protection for pediatric dental patients. end insert The bill would require the committee, on or before begin delete September 1, 2017, end delete begin insert August 1, 2017, end insert to review all incident reports begin insert and relevant investigatory information end insert related to pediatric anesthesia in dentistry in the state for the years begin delete 2011 through end delete begin insert 2010 to end insert 2016, inclusive, and to review the policies begin insert and guidelines end insert of other states and begin insert national end insert dental begin delete associations end delete begin insert associations, as well as studies, end insert to ensure that begin delete this state has regulation and policies in place to do everything feasible to protect young patients. end delete begin insert the state’s statutes and regulations adequately protect pediatric dental patients. end insert The bill would require the committee, on or before begin delete January 1, 2018, end delete begin insert November 1, 2017, end insert to begin delete recommend to the board any measures that would further reduce the potential for injury or death in minors from the administration of general anesthesia or deep sedation for dental patients. end delete begin insert present its findings in a report to the board, including any recommendations necessary to improve safety. end insert The bill would require the board, on or before January 1, 2018, to begin delete report end delete begin insert provide to the Legislature end insert the committee’s begin delete recommendations to the Legislature end delete begin insert recommendations, an evaluation of the committee’s report, and the board’s own recommendations end insert and begin insert to end insert make the report publicly available on the board’s Internet Web site. The bill also would require the board to provide a report on pediatric deaths related to general anesthesia begin delete or deep sedation end delete in dentistry at the time of its sunset review by the appropriate policy committees of the Legislature.

begin insert

This bill would require that the report of the death of a patient, or removal of a patient to a hospital or emergency center for medical treatment, be on a form or forms approved by the board and that the report include specified information. The bill authorizes the board to assess a penalty on any licensee who fails to make the required report.

end insert

This bill, with regard to obtaining written informed consent for general anesthesia or conscious sedation in the case of a minor, would require that the written informed consent include begin delete a form or forms approved by the board, containing specified information regarding the risks of sedation and anesthesia medications and that use of appropriate monitoring equipment is required. end delete begin insert specified information regarding anesthesia, as provided. end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

This act shall be known, and may be cited, as
“Caleb’s Law.”

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert It is the Legislature’s intent, to the extent that funds
are appropriated for this purpose, that the board encourage all
dental sedation providers in California to submit data regarding
pediatric sedation events to a pediatric sedation research database
maintained by a nonprofit organization. It is the goal of the
Legislature that the data submitted will be used to formulate a
systems-based approach to improve the quality of services provided
to pediatric dental anesthesia patients in outpatient settings. end insert

begin delete SEC. 2. end delete

begin insert SEC. 3. end insert   

Section 1601.4 is added to the Business and Professions
Code, to read:

1601.4.  

(a) The board, on or before begin delete March 31, 2017, end delete begin insert February
1, 2017, end insert shall establish a committee to investigate whether begin delete the
current laws, regulations, and policies of the state are sufficient to
minimize the potential for injury or death in minors from the
administration of general anesthesia or deep sedation for dental
patients. end delete begin insert current statutes and regulations for the administration
and monitoring of oral conscious sedation, conscious sedation,
and general anesthesia provide adequate protection for pediatric
dental patients. For the purpose of this section, a pediatric dental
patient is a person under 21 years of age. end insert

begin insert

(1) The committee shall consist of the following:

end insert begin insert

(A) A physician anesthesiologist who holds a general anesthesia
permit from the board chosen from a list provided by the California
Society of Anesthesiologists.

end insert begin insert

(B) A pediatrician chosen from a list provided by the American
Academy of Pediatrics, California.

end insert begin insert

(C) An oral surgeon chosen from a list provided by the Oral
and Facial Surgeons of California.

end insert begin insert

(D) A pediatric dentist chosen from a list provided by the
California Society of Pediatric Dentistry.

end insert begin insert

(E) A dentist who has completed a dental anesthesiology
residency chosen from a list provided by the American Society of
Dentist Anesthesiologists.

end insert begin insert

(F) A general dentist chosen from a list provided by the
California Dental Association.

end insert begin insert

(2) The board shall select at least one member of the committee,
proposed by the Oral and Facial Surgeons of California, California
Society of Pediatric Dentistry, or California Dental Association,
who is, at the time the lists are provided, employed at an accredited
dental school, provided that such a candidate is provided on the
lists of candidates submitted to the board.

end insert begin insert

(3) The board shall select a pediatric dentist and general dentist
who hold at least one sedation permit from the board, provided
that such a candidate is provided on the lists of candidates
submitted to the board.

end insert

(b) On or before begin delete September 1, 2017, end delete begin insert August 1, 2017, end insert the
committee shall review all incident reports begin insert and relevant
investigatory information end insert related to pediatric anesthesia in dentistry
in the state for the years begin delete 2011 through 2016, end delete begin insert 2010 to 2016, end insert
inclusive, and shall review the policies begin insert and guidelines end insert of other
states and begin insert national end insert dental associations as well as studies regarding
the use of pediatric anesthesia to ensure that begin delete this state has
regulation and policies in place to do everything feasible to protect
young patients. end delete begin insert the state’s statutes and regulations adequately
protect pediatric dental patients. The committee also shall review
statutory and regulatory definitions relating to sedation and
anesthesia and recommend any necessary revisions. The members
of the committee shall agree not to disclose any confidential,
privileged, or personally identifiable information contained in the
dental board records, except as permitted by law. end insert

(c) On or before begin delete January 1, 2018, end delete begin insert November 1, 2017, end insert the
committee shall begin delete recommend to the board any measures that would
further reduce the potential for injury or death in minors from the
administration of general anesthesia or deep sedation for dental
patients. end delete begin insert present its findings to the board in a report which shall
include any recommendations necessary to improve safety during
the administration and monitoring of oral conscious sedation,
conscious sedation, and general anesthesia for pediatric dental
patients. end insert

(d) On or before January 1, 2018, the board shall begin delete report end delete begin insert provide end insert
to the Legislature the recommendations of the committee pursuant
to subdivision begin delete (c). end delete begin insert (c), an evaluation of the report, and the board’s
own recommendations. end insert The report shall be submitted in compliance
with Section 9795 of the Government Code. The requirement for
submitting a report imposed by this subdivision is inoperative on
December 1, 2021, pursuant to Section 10231.5 of the Government
Code. The board shall make the report publicly available on the
board’s Internet Web site, and shall include, but is not limited to,
the following anonymized begin delete demographic data of each patient
reviewed: his or her age, weight, and sex; his or her primary
diagnosis; end delete begin insert data from each incident reviewed, if available from
records in the board’s possession, custody, or control, including
investigatory reports: the age of the patient; the patient’s primary
diagnosis; end insert the procedures performed; the sedation setting; the
medications used; the monitoring equipment used; begin insert the category
of end insert the provider responsible for sedation oversight; begin insert the category of end insert
the provider delivering sedation; begin insert the category of end insert the provider
monitoring the patient during sedation; begin delete and end delete whether the begin delete sedation
supervision end delete begin insert person supervising the sedation end insert performed one or
more of the begin delete procedures. end delete begin insert procedures; the category of the provider
conducting resuscitation measures; and the resuscitation equipment
utilized. end insert

begin insert

(e) For the purposes of subdivision (d), categories of provider
are: General Dentist, Pediatric Dentist, Oral Surgeon, Dentist
Anesthesiologist, Physician Anesthesiologist, Dental Assistant,
Registered Dental Assistant, Dental Sedation Assistant, Registered
Nurse, Certified Registered Nurse Anesthetist, or Other.

end insert begin delete

(e)

end delete

begin insert (f) end insert  The board shall provide a report on pediatric deaths related
to general anesthesia begin delete or deep sedation end delete in dentistry at the time of
its sunset review pursuant to subdivision (d) of Section 1601.1.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 1680 of the end insert begin insert Business and Professions Code end insert begin insert is
amended to read: end insert

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 Chapter 9 (commencing with Section 4000) 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 that 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, registered dental hygienist, registered dental
hygienist in alternative practice, or registered dental hygienist in
extended functions 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 that would have warranted the denial
of the license.

(y) The aiding or abetting of a licensed dentist, dental assistant,
registered dental assistant, registered dental assistant in extended
functions, dental sedation assistant permitholder, orthodontic
assistant permitholder, registered dental hygienist, registered dental
hygienist in alternative practice, or registered dental hygienist in
extended functions to practice dentistry in a negligent or
incompetent manner.

(z)  begin insert (1) end insert begin insert   end insert The failure to report to the board in writing within seven
days any of the following: begin delete (1) end delete begin insert (A) end insert the death of his or her patient
during the performance of any dental or dental hygiene procedure;
begin delete (2) end delete begin insert (B) end insert the discovery of the death of a patient whose death is related
to a dental or dental hygiene procedure performed by him or her;
or begin delete (3) end delete begin insert (C) end insert except for a scheduled hospitalization, the removal to a
hospital or emergency center for medical treatment begin delete for a period
exceeding 24 hours end delete of any patient to whom oral conscious sedation,
conscious sedation, or general anesthesia was administered, or any
patient as a result of dental or dental hygiene 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. A dentist shall report to the board all
deaths occurring in his or her practice with a copy sent to the
Dental Hygiene Committee of California if the death was the result
of treatment by a registered dental hygienist, registered dental
hygienist in alternative practice, or registered dental hygienist in
extended functions. A registered dental hygienist, registered dental
hygienist in alternative practice, or registered dental hygienist in
extended functions shall report to the Dental Hygiene Committee
of California all deaths occurring as the result of dental hygiene
treatment, and a copy of the notification shall be sent to the board.

begin insert

(2) The report required by this subdivision shall be on a form
or forms approved by the board. The form or forms approved by
the board shall require the licensee to include, but not be limited
to, the following information for cases in which patients received
anesthesia: the date of the procedure; the patient’s age in years
and months, weight, and sex; the patient’s American Society of
Anesthesiologists (ASA) physical status; the patient’s primary
diagnosis; the patient’s coexisting diagnoses; the procedures
performed; the sedation setting; the medications used; the
monitoring equipment used; the category of the provider
responsible for sedation oversight; the category of the provider
delivering sedation; the category of the provider monitoring the
patient during sedation; whether the person supervising the
sedation performed one or more of the procedures; the planned
airway management; the planned depth of sedation; the
complications that occurred; a description of what was unexpected
about the airway management; whether there was transportation
of the patient during sedation; the category of the provider
conducting resuscitation measures; and the resuscitation equipment
utilized. Disclosure of individually identifiable patient information
shall be consistent with applicable law. A report required by this
subdivision shall not be admissible in any action brought by a
patient of the licensee providing the report.

end insert begin insert

(3) For the purposes of paragraph (2), categories of provider
are: General Dentist, Pediatric Dentist, Oral Surgeon, Dentist
Anesthesiologist, Physician Anesthesiologist, Dental Assistant,
Registered Dental Assistant, Dental Sedation Assistant, Registered
Nurse, Certified Registered Nurse Anesthetist, or Other.

end insert begin insert

(4) The form shall state that this information shall not be
considered an admission of guilt, but is for educational, data, or
investigative purposes.

end insert begin insert

(5) The board may assess a penalty on any licensee who fails
to report an instance of an adverse event as required by this
subdivision. The penalty is a maximum fine of one hundred dollars
($100) per day not reported after the initial seven-day reporting
period. The licensee may dispute the failure to file within 10 days
of receiving notice that the board had assessed a penalty against
the licensee.

end insert

(aa) Participating in or operating any group advertising and
referral services that are in violation of Section 650.2.

(ab) 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.

(ac) Engaging in the practice of dentistry with an expired license.

(ad) Except for good cause, the knowing failure to protect
patients by failing to follow infection control guidelines of the
board, thereby risking transmission of bloodborne infectious
diseases from dentist, dental assistant, registered dental assistant,
registered dental assistant in extended functions, dental sedation
assistant permitholder, orthodontic assistant permitholder,
registered dental hygienist, registered dental hygienist in alternative
practice, or registered dental hygienist in extended functions to
patient, from patient to patient, and from patient to dentist, dental
assistant, registered dental assistant, registered dental assistant in
extended functions, dental sedation assistant permitholder,
orthodontic assistant permitholder, registered dental hygienist,
registered dental hygienist in alternative practice, or registered
dental hygienist in extended functions. In administering this
subdivision, the board shall consider referencing the standards,
regulations, and guidelines of the State Department of Public
Health 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) of Division 5 of the Labor
Code) for preventing the transmission of HIV, hepatitis B, and
other blood-borne pathogens in health care settings. The board
shall review infection control guidelines, if necessary, on an annual
basis and proposed changes shall be reviewed by the Dental
Hygiene Committee of California to establish a consensus. The
committee shall submit any recommended changes to the infection
control guidelines for review to establish a consensus. As
necessary, the board shall consult with the Medical Board of
California, the California 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 all appropriate dental
personnel are informed of the responsibility to follow infection
control guidelines, and of the most recent scientifically recognized
safeguards for minimizing the risk of transmission of bloodborne
infectious diseases.

(ae) The utilization by a licensed dentist of any person to
perform the functions of any registered dental assistant, registered
dental assistant in extended functions, dental sedation assistant
permitholder, orthodontic assistant permitholder, registered dental
hygienist, registered dental hygienist in alternative practice, or
registered dental hygienist in extended functions who, at the time
of initial employment, does not possess a current, valid license or
permit to perform those functions.

(af) The prescribing, dispensing, or furnishing of dangerous
drugs or devices, as defined in Section 4022, in violation of Section
2242.1.

begin delete SEC. 3. end delete

begin insert SEC. 5. end insert   

Section 1682 of the Business and Professions Code is
amended to read:

1682.  

In addition to other acts constituting unprofessional
conduct under this chapter, it is unprofessional conduct for:

(a) Any dentist performing dental procedures to have more than
one patient undergoing conscious sedation or general anesthesia
on an outpatient basis at any given time unless each patient is being
continuously monitored on a one-to-one ratio while sedated by
either the dentist or another licensed health professional authorized
by law to administer conscious sedation or general anesthesia.

(b) Any dentist with patients recovering from conscious sedation
or general anesthesia to fail to have the patients closely monitored
by licensed health professionals experienced in the care and
resuscitation of patients recovering from conscious sedation or
general anesthesia. If one licensed professional is responsible for
the recovery care of more than one patient at a time, all of the
patients shall be physically in the same room to allow continuous
visual contact with all patients and the patient to recovery staff
ratio should not exceed three to one.

(c) Any dentist with patients who are undergoing conscious
sedation to fail to have these patients continuously monitored
during the dental procedure with a pulse oximeter or similar or
superior monitoring equipment required by the board.

(d) Any dentist with patients who are undergoing conscious
sedation to have dental office personnel directly involved with the
care of those patients who are not certified in basic cardiac life
support (CPR) and recertified biennially.

(e) (1) Any dentist to fail to obtain the written informed consent
of a patient prior to administering general anesthesia or conscious
sedation. In the case of a minor, the begin delete written informed consent shall
include a form or forms approved by the board, which shall contain
the following information: end delete begin insert consent shall be obtained from the
child’s parent or guardian. end insert

begin delete

“All sedation and anesthesia medications involve risks of
complications and serious possible damage to vital organs such as
the brain, heart, lung, liver, and kidney, and in some cases use of
these medications may result in paralysis, cardiac arrest, or death
from both known and unknown causes. Therefore, use of
appropriate monitoring equipment, as described in subdivision (c)
of Section 1682, is required.”

(2) For the purpose of this subdivision, administering general
anesthesia or deep sedation shall include, but is not limited to,
directing the administration of general anesthesia or deep sedation.
Nothing

end delete begin insert

(2) The written informed consent, in the case of a minor, shall
include, but not be limited to, the following information:

end insert begin insert

“The administration and monitoring of general anesthesia may
vary depending on the type of procedure, the type of practitioner,
the age and health of the patient, and the setting in which
anesthesia is provided. Risks may vary with each specific situation.
You are encouraged to explore all the options available for your
child’s anesthesia for his or her dental treatment, and consult with
your dentist or pediatrician as needed.”

end insert

begin insert (3) end insert begin insert   end insert begin insert Nothing end insert in this subdivision shall be construed to establish
the reasonable standard of care for administering begin delete general anesthesia
or deep sedation. end delete begin insert or monitoring oral conscious sedation, conscious
sedation, or general anesthesia. end insert