BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                              Senator Jerry Hill, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 2235         Hearing Date:    June 13,  
          2016
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          |Author:   |Thurmond                                              |
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          |Version:  |June 9, 2016    Amended                               |
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          |Urgency:  |No                     |Fiscal:    |Yes              |
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          |Consultant|Sarah Huchel                                          |
          |:         |                                                      |
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            Subject:  Board of Dentistry: pediatric anesthesia: committee


          SUMMARY:  Requires the Dental Board of California (DBC) to establish a  
          committee, as specified, to review specified information to  
          ensure that California's statutes and regulations adequately  
          protect pediatric dental patients; expands the definition of  
          unprofessional conduct to include failure to notify the DBC  
          about an adverse event relating to dental sedation; encourages  
          DBC to support a third party public database of adverse events;  
          establishes consent language for the administration of general  
          anesthesia for a minor dental patient; requires the DBC to  
          approve a form for the reporting of adverse event information;  
          and creates a penalty for failure to report information to the  
          DBC. 

          Existing law:
          
          1)Establishes the DBC within the Department of Consumer Affairs  
            to administer the Dental Practice Act. (Business and  
            Professions Code (BPC) § 1601.1)


          2)States that protection of the public shall be the DBC's  
            highest priority 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.  (BPC §  
            1601.2)







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          3)Defines the practice of "oral and maxillofacial surgery" as  
            the diagnosis and surgical and adjunctive treatment of  
            diseases, injuries, and defects which involve both functional  
            and esthetic aspects of the hard and soft tissues of the oral  
            and maxillofacial region.  (BPC § 1638 (a))


          4)Authorizes the DBC to issue an oral and maxillofacial surgery  
            permit to an applicant who has furnished evidence satisfactory  
            to the Board that he or she is currently certified or eligible  
            for certification in oral and maxillofacial surgery by a  
            specialty board recognized by the Commission on Accreditation  
            of the American Dental Association and holds a current license  
            in good standing to practice medicine in the state. (BPC §  
            1638 (c))


          5)Defines "general anesthesia" as a controlled state of  
            depressed consciousness or unconsciousness, accompanied by  
            partial or complete loss of protective reflexes, produced by a  
            pharmacologic or nonpharmacologic method, or a combination  
            thereof.  (BPC § 1646)


          6)Requires, for the administration of anesthesia to dental  
            patients on an outpatient basis, a dentist to either:  (BPC §  
            1646.1 (a))


             a)   Possess a current license in good standing to practice  
               dentistry and holds a valid general anesthesia permit  
               issued by the Board; or,


             b)   Possesses a current oral and maxillofacial surgery  
               permit or a permit to perform elective facial cosmetic  
               surgery and holds a valid general anesthesia permit issued  
               by the DBC. 


          7) Requires a dentist ordering the administration of general  
            anesthesia to be physically within the dental office at the  








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            time of the administration.  (BPC § 1646.1 (b))


          8)Authorizes the DBC to require an onsite inspection and  
            evaluation of the licentiate and the facility, equipment,  
            personnel, and procedures utilized by the licentiate prior to  
            the issuance or renewal of a permit for the use of general  
            anesthesia or conscious sedation.  (BPC §§ 1646.4, 1647.7)


          9)Requires a dentist holding a permit to administer general  
            anesthesia to maintain medical history, physical evaluation,  
            and general anesthesia records as required by DBC regulations.  
             (BPC § 1646.3)


          10)Authorizes a physician and surgeon to administer general  
            anesthesia in the office of a licensed dentist for dental  
            patients, without regard to whether the dentist possesses an  
            anesthesia permit, if the physician and surgeon holds a  
            current license to practice medicine in California and holds a  
            valid general anesthesia permit issued by the DBC.  (BPC §  
            1646.9)


          11)Defines "conscious sedation" as a minimally depressed level  
            of consciousness produced by a pharmacologic or  
            nonpharmacologic method, or a combination thereof, that  
            retains the patient's ability to maintain independently and  
            continuously an airway, and respond appropriately to physical  
            stimulation or verbal command. "Conscious sedation" does not  
            include the administration of oral medications or the  
            administration of a mixture of nitrous oxide and oxygen,  
            whether administered alone or in combination with each other.   
            (BPC § 1647.1)


          12)Requires a dentist administering or ordering the  
            administration of conscious sedation on an outpatient basis  
            for dental patients to have either:  (BPC § 1647.2(a))


             a)   A current license in good standing to practice dentistry  
               in California and either holds a valid anesthesia permit or  








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               obtains a permit issued by the DBC authorizing the dentist  
               to administer conscious sedation; or,


             b)   A current oral and maxillofacial surgery permit or a  
               permit to perform elective facial cosmetic surgery and  
               either holds a valid general anesthesia permit or a permit  
               to administer conscious sedation. 


          13)Requires a dentist ordering the administration of conscious  
            sedation to be physically present in the treatment facility  
            while the patient is sedated.  (BPC § 1647.2 (d))


          14)Requires a dentist to take a physical evaluation and medical  
            history prior to the administration of conscious sedation and  
            oral conscious sedation of a minor, and maintain records of  
            the physical evaluation, medical history, and conscious  
            sedation procedures as required by the DBC.  (BPC §§ 1647.6,  
            1647.14)


          15)Defines "oral conscious sedation" as a minimally depressed  
            level of consciousness produced by oral medication that  
            retains the patient's ability to maintain independently and  
            continuously an airway, and respond appropriately to physical  
            stimulation or verbal command. The drugs and techniques used  
            in oral conscious sedation shall have a margin of safety wide  
            enough to render unintended loss of consciousness unlikely.   
            Further, patients whose only response is reflex withdrawal  
            from painful stimuli would not be considered to be in a state  
            of oral conscious sedation.  (BPC § 1647.10 (a))

          16)States that, for very young or handicapped individuals,  
            incapable of the usually expected verbal response, a minimally  
            depressed level of consciousness should be maintained.  (BPC §  
            1647.10 (a))

          17)Defines a "minor patient" as a dental patient under the age  
            of 13 years. 
          (BPC § 1647.10 (b))

          18)States that the failure to report to the DBC in writing  








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            within seven days of any of the following is unprofessional  
            conduct:  (BPC § 1680 (z))


             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 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 or dental hygiene treatment. 

          This bill:

          1)States Legislative intent for the DBC to encourage dental  
            sedation providers to submit data regarding pediatric sedation  
            events to a pediatric sedation research database maintained by  
            a nonprofit organization, with the goal that the data  
            submitted will be used to formulate a systems-based approach  
            to improving the quality of services provided to pediatric  
            dental anesthesia patients in outpatient settings.  

          2)Requires the DBC to 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.  


          3)Establishes the committee as follows, and requires the DBC to  
            select at least one member of the committee as proposed by the  
            entities represented by (c), (d), or (f), who, at the time the  
            lists are provided, who is employed at an accredited dental  
            school and someone from (d) and/or (f) who holds at least one  
            sedation permit.









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             a)   A physician anesthesiologist who holds a general  
               anesthesia permit from the DBC, 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. 


          4)Defines a pediatric dental patient as a person under 21 years  
            old.


          5)Requires the committee to do the following to ensure that  
            California's statutes and regulations adequately protect  
            pediatric dental patients: 


             a)   Review all incident reports and relevant investigatory  
               information related to pediatric anesthesia in dentistry in  
               California for the years 2010 through 2016, by August 1,  
               2017.  


             b)   Review the policies and guidelines of other states and  
               national dental associations, and studies regarding the use  








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               of pediatric anesthesia.


             c)   Review California's statutory and regulatory definitions  
               relating to sedation and anesthesia and recommend any  
               necessary revisions. 


             d)   Not disclose any confidential, privileged, or personally  
               identifiable information contained in the DBC's records,  
               except as permitted by law.


          6)Requires the committee to present its findings in a report to  
            the DBC by November 1, 2017, 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.


          7)Requires the DBC to provide the committee's report to the  
            Legislature with the DBC's evaluation of the report and its  
            own recommendations.  


          8)Requires the DBC to post the report on its Internet Web site  
            and include anonymized data from each incident reviewed, if  
            available from records in the DBC's possession, custody, or  
            control, including investigatory reports, as specified.


          9)Requires the DBC to provide a report on pediatric deaths  
            related to general anesthesia in dentistry as part of its  
            Sunset Review.


          10)States that the failure to provide the following written  
            informed consent language in cases regarding a minor  
            constitutes unprofessional conduct:  "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  








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            are encouraged to explore all the options available for your  
            child's anesthesia for his/her dental treatment, and consult  
            with your dentist or pediatrician as needed."


          11)Prohibits the informed consent language from being construed  
            to establish the reasonable standard of care for administering  
            or monitoring oral conscious sedation, conscious sedation, or  
            general anesthesia. 


          12)Removes the time period requirement for reporting an incident  
            to the DBC for a patient who was administered oral conscious  
            sedation, conscious sedation, or general anesthesia and is  
            removed to a hospital or emergency center for medical  
            treatment. 


          13)Requires the DBC to approve a form for the reporting of  
            adverse events related to a patient who was administered oral  
            conscious sedation, conscious sedation, or general anesthesia  
            that includes specified information.


          14)Establishes a penalty of $100 per day for a licensee who  
            fails to report a specified adverse event to the DBC within  
            seven days, and allows the licensee to dispute the failure to  
            file the report within ten days of receiving notice that the  
            DBC has assessed a penalty. 


          
          FISCAL  
          EFFECT:  This bill is keyed "fiscal" by the Legislative Counsel.  
           According to the Assembly Appropriations Committee analysis  
          dated April 20, 2015, this bill will have 
          minor increased staff and IT support costs, under $50,000 per  
          year for two years, to perform required activities including  
          tracking and researching incidents, promulgating regulations,  
          and creating a consent form (State Dentistry Fund).


          COMMENTS:
          








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          1. Purpose.  This bill is sponsored by the Author.  According to  
             the Author's office, this legislation is necessary to require  
             the DBC to reevaluate California's statutes and regulations  
             regarding dental sedation in light of the recent tragedy of a  
             young boy who died while undergoing dental work.  Statutes  
             haven't been evaluated in over a decade, and the Author  
             states that "There are legislation and regulations in many  
             other states that increases the safety of anesthesia and  
             sedation for dental procedures in outpatient settings.  For  
             example, 20 other states require a third person to  
             participate in every dental procedure requiring anesthesia or  
             sedation whose sole responsibility is to monitor patients'  
             vital signs and direct the anesthesia or sedation. Several  
             other states also require that dental licentiates use  
             specific monitoring technologies when administering  
             anesthesia and sedation.  It does not appear, however, that  
             other states have adopted similar requirements for study and  
             informed consent."

             This bill also requires dentists and oral surgeons to use  
             specified language in their written consent form and  
             encourages licensees to participate in a statewide  database.

          2. Dental Sedation.  Current law on dental sedation is largely a  
             product of recommendations from a 2003 DBC Blue Ribbon panel.  
              This panel was chaired by a dental anesthesiologist and  
             consisted of dentists recommended by the following  
             associations:
             
                 California Association of Oral and Maxillofacial  
               Surgeons

                 California Dental Association

                 California Dental Society of Anesthesiology

                 California Society of Dentist Anesthesiologists

                 California Society of Pediatric Dentists

                 California Society of Periodontists

             The panel also included dentists using oral sedation  
             protocols of the Dental Organization for Conscious Sedation.   








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             These individuals reviewed all pertinent state laws and  
             regulations pertaining to the delivery of general anesthesia  
             and sedation services by California dentists, DBC data on   
             mortalities associated with dentistry, mortality and  
             morbidity data from The Dentists Insurance Company and the  
             Southern California Society of Oral and Maxillofacial  
             Surgeons, recent changes in dental rules and regulations of  
             other states, various documents and correspondence pertaining  
             to anesthesia and sedation in the dentist office, and  
             relevant national guidelines published by the following:

                 American Academy of Pediatric Dentistry

                 American Academy of Periodontology

                 American Association of Oral and Maxillofacial Surgeons

                 American Dental Association

                 American Society of Anesthesiologists

          1. Current Board Activity.   The DBC is currently preparing a  
             report similar to the one requested in this bill at the  
             request of Senator Hill.  According to a memorandum dated  
             April 21, 2016 prepared for the DBC's May 2016 board meeting,  
             a two person subcommittee of the DBC, consisting of an oral  
             and maxillofacial surgeon and an attorney, was appointed at  
             the March board meeting to assist staff in conducting the  
             research. 
             
             DBC indicates the report will include the following:

                       A review of the present laws, regulations, and  
                  policies in California; and a comparison of this  
                  information to other states' and dental associations'  
                  policies. 

                       A review of all incident reports related to  
                  pediatric anesthesia in California for the past five  
                  years. The specific time frame will be July 1, 2010-June  
                  30, 2015 to coincide with the Board reporting of its  
                  annual statistics to the Department of Consumer Affairs.  










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                       Methodology used to review the DBC's incident  
                  reports.

                       Number of cases reviewed and results of the  
                  review.

                       Explanation of the DBC's internal policies for  
                  processing notification of violations of Business &  
                  Professions Code 1680(z).

                       Explanation of the DBC's records retention  
                  policies.

                       Input from stakeholder groups.

                       Possible recommendations for statutory or  
                  regulatory changes. 

             DBC staff plans to submit a draft report to the full DBC  
             Board at its August 18-19, 2016 meeting during which the  
             Board and subcommittee will solicit public comment, followed  
             by a second draft to be presented at the DBC's December 1-2,  
             2016 board meeting. Senator Hill has asked that a report be  
             prepared and submitted to the Legislature by January 1, 2017.

          1. Prior Related Legislation.   AB 1386  (Laird, Chapter 539,  
             Statutes of 2005) revised the Dental Practice Act relating to  
             general anesthesia, conscious sedation, and oral conscious  
             sedation of minors and further establishes specific  
             provisions relating to oral conscious sedation for adults.  

          2. Arguments in Support.  The  Children's Partnership  writes,  
             "Although the Dental Board of California has voluntarily  
             responded to requests from the Legislature to examine the  
             issue pediatric dental anesthesia and the best safety  
             practices of other states, it is entirely appropriate that  
             this examination be codified, based on actual recent  
             California epidemiological data, and with the results  
             reported back to the Legislature for further consideration  
             and made available to the public on the Board's website, as  
             required in AB 2235.

             "The tragic child death that precipitated introduction of  
             this bill resulted in a finding of gross negligence on the  








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             part of the attending dentist, Dental Board discipline, and a  
             malpractice lawsuit under the current law.  But the lack of  
             current data that might indicate how often such tragedies or  
             other adverse outcomes occur must be addressed, along with a  
             reexamination of current safety procedures and medical  
             protocols.  These steps are essential to understanding  
             whether additional regulation is necessary to prevent child  
             injury or deaths in the future."

             The  American Academy of Pediatrics, California  is sponsoring  
             this measure and writes, "AB 2235 would require the  
             California Dental Board to establish a committee to formally  
             study the safety of pediatric anesthesia in dental offices  
             and other states' regulations of those procedures. The bill  
             would also require licensed dentists who administer  
             anesthesia to provide information on the differing practices  
             and safety requirements currently in place. Additionally, the  
             board should facilitate the epidemiological study of  
             pediatric anesthesia and sedation by requiring the Dental  
             Board to collect more information regarding adverse events.

             "The National American Academy of Pediatrics supports efforts  
             to improve regulations and guidelines for sedation used by  
             medical and dental practitioners for further improvement in  
             safety and outcomes, as noted in AAP Policy Guidelines for  
                     Monitoring and Management of Pediatric Patients During and  
             After Sedation."  

          3. Arguments in Opposition:  The  Oral and Facial Surgeons of  
             California  (OFSOC) oppose this bill unless amended to remove  
             the makeup of the committee, stating, "The most recent  
             amendments require a statutorily prescribed makeup of the  
             membership of the committee to be established by the Dental  
             Board of California.  OFSOC opposes the perceived stacking of  
             the committee by healthcare providers who either do not have  
             an expertise in the pertinent issues; have previously stated  
             publically of the existence of a serious problem; or have  
             vested financial interests in changing the status quo.  OFSOC  
             strongly believes the purpose of the proposed committee is to  
             objectively and reasonably review the available data  
             regarding dental anesthesia specifically as it relates to  
             minors and subsequently make appropriate recommendations.  In  
             order to achieve that objectivity, OFSOC prefers that the  
             Dental Board of California unilaterally establish an  








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             investigatory committee that will meet the criteria set forth  
             in the provisions of AB 2235."

             The  California Dental Association  (CDA) expresses support if  
             the Author accepts the committee amendment below, stating,  
             "CDA and our community of providers are deeply saddened by  
             the tragic loss of a young child.  CDA is dedicated to  
             keeping general anesthesia and sedation in dentistry safe and  
             reducing the risks of adverse outcomes.  All patients should  
             be able to access safe anesthesia and sedation needed to  
             maintain their oral health.  While this bill arose out of a  
             tragic situation and we must always strive to improve safety,  
             all proposed solutions must arise from a thorough and  
             evidence-based process."

          4. Recommended Amendment.  The Author may wish to consider  
             removing the amendments prescribing the composition of the  
             committee, and allowing the DBC to decide the makeup of the  
             committee.  The DBC's efforts to convene stakeholder groups  
             to evaluate dental issues have proven effective in the past,  
             and establishing a predetermined cast diminishes the DBC's  
             authority and responsibility in this area.        
          

          SUPPORT AND OPPOSITION:
          
           Support:  

          American Academy of Pediatrics, California (Sponsor)
          American Society of Dentist Anesthesiologists
          California Association of Nurse Anesthetists
          California Society of Anesthesiologists
          The Children's Partnership 
          Numerous individuals

           Support if amended  :

          California Dental Association

           Oppose unless amended  :

          Oral and Facial Surgeons of California










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