Amended in Senate June 20, 2016

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 Sections 1680 and 1682 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. 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. The act also 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 February 1, 2017, to establish a committee to investigate whether the 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. The bill would require the committee, on or before August 1, 2017, to review all incident reports and relevant investigatory information related to pediatric anesthesia in dentistry in the state for the years 2010 to 2016, inclusive, and to review the policies and guidelines of other states and national dental associations, as well as studies, to ensure that the state’s statutes and regulations adequately protect pediatric dental patients. The bill would require the committee, on or before November 1, 2017, to present its findings in a report to the board, including any recommendations necessary to improve safety. The bill would require the board, on or before January 1, 2018, to provide to the Legislature the committee’s recommendations, an evaluation of the committee’s report, and the board’s own recommendations and to 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 in dentistry at the time of its sunset review by the appropriate policy committees of the Legislature.

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.

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 specified information regarding anesthesia, as provided.

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.”

SEC. 2.  

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.

SEC. 3.  

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

1601.4.  

(a) The board, on or before February 1, 2017, shall
establish a committee to investigate whether 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.

begin delete

(1) The committee shall consist of the following:

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

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

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

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

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

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

(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.

(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 delete

(b) On or before August 1, 2017, the committee shall review
all incident reports and relevant investigatory information related
to pediatric anesthesia in dentistry in the state for the years 2010
to 2016, inclusive, and shall review the policies and guidelines of
other states and national dental associations as well as studies
regarding the use of pediatric anesthesia to ensure that 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.

(c) On or before November 1, 2017, the committee shall 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.

(d) On or before January 1, 2018, the board shall provide to the
Legislature the recommendations of the committee pursuant to
subdivision (c), an evaluation of the report, and the board’s own
recommendations. 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 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; 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 category of the provider conducting resuscitation measures;
and the resuscitation equipment utilized.

(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.

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

SEC. 4.  

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 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) (1) The failure to report to the board in writing within seven
days any of the following: (A) the death of his or her patient during
the performance of any dental or dental hygiene procedure; (B)
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
(C) except for a scheduled hospitalization, the removal to a hospital
or emergency center for medical treatment 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.

(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.

(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.

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

(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.

(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.

SEC. 5.  

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 consent shall be obtained from
the child’s parent or guardian.

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

“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.”

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