BILL ANALYSIS
SB 1336
Page 1
Date of Hearing: June 22, 2004
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Lou Correa, Chair
SB 1336 (Burton) - As Amended: June 8, 2004
SENATE VOTE : 33-0
SUBJECT : Oral and maxillofacial surgery.
SUMMARY : Authorizes oral and maxillofacial surgeons licensed by
the Dental Board of California to perform "elective cosmetic
surgical procedures" as defined under specified circumstances.
Specifically, this bill :
1)Requires a person licensed as a dentist who wishes to perform
elective facial cosmetic surgery to first apply and receive a
permit to do so from the Dental Board. This permit is valid
for five years and must be renewed by the permit holder in the
same manner required for initial issuance.
2)Authorizes the Dental Board to issue a permit to perform
elective facial cosmetic surgery to a qualified licensee who
does the following in items a), b), and c) below, or , in the
alternative, item d) below:
a) Submits to the Dental Board proof of certification, or
is a candidate for certification, by the American Board of
Oral and Maxillofacial Surgery.
b) Submits to the Dental Board a letter from the program
director of the accredited residency program, or from the
director of a postresidency fellowship program accredited
by the Commission on Dental Accreditation of the American
Dental Association, stating that the licensee has the
education, training, and competence necessary to perform
the surgical procedures that the licensee has notified the
Dental Board he or she intends to perform.
c) Submits documentation to the Dental Board of at least 10
operative reports from residency training or proctored
procedures that are representative of procedures that the
licensee intends to perform from both of the following
categories:
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i) Cosmetic contouring of the osteocartilaginous facial
structure, which may include, but is not limited to,
rhinoplasty and otoplasty.
ii) Cosmetic soft tissue contouring or rejuvenation,
which may include, but is not limited to, facelift,
blepharoplasty, facial skin resurfacing, or lip
augmentation.
d) Has been granted privileges by the medical staff at a
licensed general acute care hospital to perform the
surgical procedures at that hospital and submits to the
Dental Board the documentation described in item c) above.
3)Requires the applicant to provide proof that he or she is on
active status on the staff of a general acute care hospital
and maintains the necessary privileges based on the bylaws of
the hospital to maintain that status.
4)Requires the applicant to pay a fee of $150.
5)Creates a credentialing committee appointed by the Dental
Board to reviews the qualifications of each applicant for a
permit. Upon completion of the review of an applicant, the
credentialing committee shall make a recommendation to the
Dental Board on whether or not to issue a permit to the
applicant and on the terms or extent of the permit. Further
provides that:
a) The credentialing committee shall be comprised of five
members, as follows:
i) A physician and surgeon with a specialty in plastic
and reconstructive surgery who maintains active status on
the staff of a licensed general acute care hospital in
this state.
ii) A physician and surgeon with a specialty in
otolaryngology who maintains active status on the staff
of a licensed general acute care hospital in this state.
iii) Three oral and maxillofacial surgeons licensed by
the Dental Board who are board certified by the American
Board of Oral and Maxillofacial Surgeons, and who
maintain active status on the staff of a licensed general
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acute care hospital in this state, at least one of whom
shall be licensed as a physician and surgeon in this
state.
b) The Dental Board shall solicit from the following
organizations input and recommendations regarding members
to be appointed to the credentialing committee:
i) The Medical Board of California.
ii) The California Dental Association.
iii) The California Association of Oral and Maxillofacial
Surgeons.
iv) The California Medical Association.
v) The California Society of Plastic Surgeons.
vi) Any other sources that the Dental Board deems
appropriate.
6)States that a licensee may not perform any elective, facial
cosmetic surgical procedure except at a general acute care
hospital, a licensed outpatient surgical facility, or a
surgery center or office surgical facility accredited by the
Joint Commission on Accreditation of Healthcare Organizations
(JCAHO), by the American Association for Ambulatory Health
Care (AAAHC), by the Medicare program, or approved by the
Medical Board of California pursuant to subdivision (g) of
Section 1248.1 of the Health and Safety Code.
7)Defines "Elective cosmetic surgery" to mean any procedure
defined as cosmetic surgery in subdivision (d) of Section
1367.63 of the Health and Safety Code, and excludes any
procedure that constitutes reconstructive surgery, as defined
in subdivision (c) of Section 1367.63 of the Health and Safety
Code.
8)Defines "facial" to mean those regions of the human body
described in Section 1625 and in any regulations adopted
pursuant to that section by the Dental Board.
9)Prohibits a holder of a specified permit from performing
elective facial cosmetic surgical procedures unless he or she
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has malpractice insurance or other financial security
protection that would satisfy the requirements of Section
2216.2.
EXISTING LAW :
1)Provides for the licensing and regulation of dentists by the
Dental Board.
2)Defines " dentistry" as including "the diagnosis or treatment,
by surgery or other method, of diseases and lesions and the
correction of malpositions of the human teeth, alveolar
process, gums, jaws, or associated structures; and such
diagnosis or treatment may include all necessary related
procedures as well as the use of drugs, anesthetic agents, and
physical evaluation."
3)Defines "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."
4)Specifies that a physician and surgeon who is licensed under
the Medical Practice Act, but not under the Dental Practice
Act, but who has nonetheless successfully completed an
accredited Oral and Maxillofacial Surgical residency program
(a hospital-based residency that is accredited through the
dental accreditation process, not pursuant to the mechanism
for accrediting medical residencies), may obtain a permit from
the Dental Board to practice pursuant to the rules of the
Dental Practice Act.
5)Provides for issuance of a general license for all dental
licensees, and does not specifically provide for specialty
licensing of the various recognized specialties of dentistry.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . This bill is jointly sponsored by the
California Dental Association (CDA) and the California
Association of Oral and Maxillofacial Surgeons (CALAOMS).
According to the author and sponsors, this bill corrects an
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inconsistency in the way that the Dental Practice Act authorizes
certain procedures to be performed by oral and maxillofacial
surgeons. Current law allows oral surgeons to perform surgery
not only in the oral cavity, but also on the jaws and other
"associated structures."
While somewhat general in its terminology, according to the
proponents, the phrase "associated structures" has acquired a
relatively well understood meaning in the dental/medical world.
Hospitals through their medical staffs grant surgical privileges
to oral surgeons to perform a broad range of facial surgical
procedures, including major facial trauma surgery, cleft palate
and lip procedures, lower and upper jaw reconstruction, and the
range of necessary related procedures that accompany this
surgery. The sponsors believe this anomaly exists and is the
same or similar surgical procedures on the same parts of the
face that are acceptable in the ER/trauma center, or in the
context of "reconstructive" surgery and other circumstances.
Because of a lack of statutory authority, the Dental Board has
deemed these very same procedures inappropriate when performed
on healthy patients as an elective cosmetic surgical procedure.
The sponsors would like to see a process created which allows
oral surgeons to perform procedures for which they were trained,
using a process that replicates the hospital credential process,
but in an environment free of subjective influences that are
sometime present in the hospital review process. This bill
creates a process by which an oral surgeon could obtain a permit
from the Dental Board allowing him or her to perform elective
cosmetic surgery on the maxillofacial area. Oral surgeons must
present their training and certifications to a credentialing
committee made up of both oral surgeons and physicians and have
the appropriate hospital privileges. The sponsors argue that
oral surgeons are merely seeking statutory authorization to
perform the same or similar surgical procedures, in a non-trauma
setting on an elective basis, that they now practice every day
in a complex and traumatic hospital environment performing
reconstructive surgery.
Background . During the 1990's, as managed care programs began
to significantly impact physician incomes, the practice of
cosmetic surgery became very popular among physicians and
surgeons, whether they were formally trained in surgery or not.
Thus, a large number of physicians began to seek sufficient
training to perform these procedures, which are generally not
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covered by insurance programs. Because the economic incentives
were great, this practice area attracted a substantial number of
new participants. In addition, as technology advanced, a
tremendous amount of surgery heretofore performed only in
hospitals, where rigorous peer-review and credentialing systems
are in place, began to be performed on an outpatient basis.
The Legislature responded in the mid-1990's with efforts to
address the use of anesthesia in outpatient surgery centers.
Later, during the 1999-2000 Legislative Session, a number of
bills seeking to directly regulate cosmetic surgery were
introduced. These proposals sought direct regulation of the
outpatient and cosmetic surgery markets some of which was
enacted imposing malpractice insurance and staffing requirements
for outpatient surgery. At the same time, the Medical Board
launched a review of the practice of cosmetic surgery, including
examination of who was performing the surgery, based on what
level of training, and in which locations or facilities. During
the course of this review, the question arose whether single
degree oral surgeons were authorized by law to perform elective
cosmetic surgical procedures. After much debate between the
Medical Board and the Dental Board, the Dental Board determined
that elective cosmetic surgical procedures were different from
the other facial surgery that its oral and maxillofacial surgeon
(OMS) licensees are authorized to perform, and it issued a
letter to its licensees that certain "cosmetic" surgical
procedures are not authorized unless "related to and part of
treatment for a dental condition."
Oral and maxillofacial surgery training . Oral and Maxillofacial
Surgery is one of the recognized specialties of dentistry, and
it requires completion of a 4-year dental school program,
followed by the OMS surgical residency. OMS residency programs
are accredited by the Commission on Dental Accreditation (CODA)
of the American Dental Association - the accrediting agency
recognized by the Federal Department of Education as the
official accrediting agency for dental residencies.
Each program requires a four-plus year, hospital-based, surgical
residency, involving reconstructive surgery, orthognathic
procedures (complete restructuring of the shape of the jaw and
face, including repair of congenital defects), cleft lip and
palate, craniofacial procedures, treatment of trauma victims who
are in critical condition in emergency rooms (including
follow-up surgery and reconstruction), as well as procedures
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more commonly viewed as "oral surgery." Cosmetic and esthetic
results are significant components of many of these procedures,
as returning a patient victimized by facial trauma, or who is
having a congenital defect repaired, to an esthetically
satisfactory condition is the standard of care that is expected
of these surgeons.
There are nine OMS residency programs in California: the
University of Southern California, the University of California
at San Francisco, UCLA, Loma Linda University, Community Medical
Center in Fresno, Martin Luther King, Jr./Drew Medical Center in
Los Angeles, the University of the Pacific/Highland Hospital in
Alameda County, as well as two military residency programs at
Travis Air Force Base and at the Naval Medical Center in San
Diego. Each of these programs is at least 4 years long, and
each includes the broad range of surgical rotations typical of
any surgical residency program.
There is a greater degree of focus on the maxillofacial region
than any medical residency because the specialty is the oral and
maxillofacial region of the body. According to the sponsors of
this bill, just as an otolaryngologist (ENT) receives more
facial training even than, for example, a plastic surgeon so
does an oral surgeon. In many states, the law does not
distinguish between cosmetic and non-cosmetic procedures, and
thus the residency programs train their residents for the full
range of surgery that may be allowed in those states as mandated
by the recognized accrediting body. Some oral surgeon programs
combine a "dual degree" program and their graduates obtain both
an oral surgeon certificate as well as a MD degree. However,
the entirety of the surgical training is under the auspices of
the CODA-accredited OMS program, and is identical whether the
resident is a single or dual degree candidate.
Arguments in support . Proponents contend that interpretation of
current law by the Dental Board is irrational. The Dental
Board's interpretation is that complex maxillofacial surgical
procedures are lawful and within the training and competence of
its licensees when performing reconstructive surgery, but not if
they were to perform elective facial cosmetic surgery. According
to the proponents, in many cases, the surgical techniques are
literally the same. They argue that in all cases, the
understanding of the structure, tissues, muscles, nerves and
other components of the face that is necessary for cosmetic
surgery, is the same that oral surgeons already possess in order
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to perform the surgery that is considered to be legal by the
Dental Board and within their training and competence.
Proponents contend that the law should not ask the reason "why"
a particular procedure is being performed when evaluating
whether a particular surgery should be legal, and in evaluating
the necessary training and competence to perform those
procedures. Rather, proponents assert, the law should only ask
that the surgeon be competent to perform the particular
procedures themselves. Proponents argue that in the case of
oral surgeons, their competence to perform the procedures, be
they for reconstructive or elective cosmetic purposes, is clear.
Supporting the sponsors assertion that oral surgeons are
qualified to practice maxillofacial cosmetic surgery, U. S.
Military Consultants to the Surgeon General were asked two
questions about the utilization of oral surgeons in the
military: First, what is the role of oral and maxillofacial
surgeons regarding trauma and secondly, are they qualified to
perform maxillofacial cosmetic surgery? Representatives of all
three military branches, the Army, Navy and Air Force, responded
in the affirmative to both questions, stating that their oral
surgeons are deployed in community hospitals, medical centers
and in combat support hospitals. In the case of the Army,
medical centers rely mostly on their OMS services to manage
facial trauma, since there are not ENT or plastic surgery
residencies at all the Army medical centers. Military OMS
services are mostly single degree oral surgeons (non-MDs) and
are considered fully qualified to perform facial aesthetic
surgery and act as the primary provider for maxillofacial
trauma.
Arguments in opposition . This bill is opposed by the California
Medical Association (CMA), the California Society of Plastic
Surgeons, Inc. (CSPS), and the American College of Emergency
Physicians -State Chapter of California, Inc. (CAL/ACEP). CMA
states that this bill would greatly expand the current scope of
practice of oral surgeons by allowing them to perform facial
cosmetic surgery procedures (e.g., eyebrow lifts, face lifts,
skin peels and rhinoplasty). CMA agrees that oral surgeons
perform an appropriate and vital treatment role with physicians,
as it relates to trauma and reconstructive surgery of the mouth
cavity, but that it is the physician who has nearly a decade of
appropriate education and training in the overall physical,
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mental and clinical manifestations of the human body necessary
to properly evaluate a patient's need for cosmetic surgery.
CSPS opposes this bill stating that patients will be harmed
because oral surgeons are less qualified and less trained and
are being trained for surgery of the mouth and lower jaw, but
not for general plastic surgery. CSPS argues that there is no
need for this bill as there is no shortage of cosmetic surgeons
in California, and that the reason for this bill is that oral
surgeons desire a new source of income from lucrative cosmetic
surgical procedures.
CSPS also states that this bill would essentially turn
dentists/oral surgeons into physicians blurring the distinction
between them and Ear, Nose and Throat physicians. CSPS notes
that plastic surgeons complete four years of medical school with
the last 24 months devoted to learning diagnosis and management
of the total patient, while oral surgeons' 4 years of dental
school is limited to oral health and not the management of the
total patient. Thereafter, CSPS notes that a plastic surgeon
goes through 3 to 5 years of general surgery residency, followed
by 2 to 3 years of a plastic surgery. In contrast, CSPS states
that oral surgeons go through a 4 year residency of which only
18 months is devoted to medical/surgical rotations and 30 months
of clinical oral health. CSPS states that this OMS residency
training is less than what is received by a physician prior to
graduation from medical school.
CAL/ACEP opposes this bill concurring with the stated patient
safety concerns of CMA and CSPS, reiterating the view that oral
surgeons are less qualified than physicians because the former
are trained for surgery of the mouth and lower jaw and not in
general plastic surgery or medical care.
Do the provisions of this bill increase the "scope of practice"
of oral surgeons ? This bill does not alter the current
statutory definition of "dentistry" nor the statutory definition
of "oral and maxillofacial surgery." It does not appear to
expand the physical areas of the body on which an OMS legally
may operate. However, this bill is intended to permit oral
surgeons to perform elective facial cosmetic surgical procedures
that, according to a 2000 letter of the Dental Board to its
licensees, are not currently included within the scope of
practice of dentistry. These include rhinoplasty (plastic
surgery of the nose) and septoplasty (plastic surgery or
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reconstruction of the nasal septum.)
This bill's proponents argue that the surgical procedures they
are trained and authorized to perform ( i.e., those that are
performed as part of the treatment of diseases, lesions, or the
correction of malpositions of the teeth, jaws or associated
structures) involve the same kinds of surgical methods as those
used for elective cosmetic surgery on the same parts of the
face.
REGISTERED SUPPORT / OPPOSITION :
Support
California Dental Association (CDA)
California Association of Oral and Maxillofacial Surgeons
(CALAOMS)
69 letters from oral and maxillofacial surgeons
15 letters from physician/oral and maxillofacial surgeons
12 individual letters
Opposition
Access to Specialty Care Coalition
American Society for Aesthetic Plastic Surgery, Inc.
American Society of Maxillofacial Surgeons
American Society of Plastic Surgeons
California Medical Association
California Society of Dermatology and Dermatologic Surgery
Medical Board of California
Orange County Medical Association
49 letters from physicians
6 individual letters
Analysis Prepared by : David Pacheco / B. & P. / (916)
319-3301