State dental boards are regulatory agents that provide oversight on dental licensure and the lawful practice of dentistry. Their mandate is to protect and serve the public interest. These state boards are not an arm or extension of the dental profession, though. Board members may include dentists and dental hygienists as well as public members.
Each state has a different mix of board members who are generally appointed by the state’s governor and serve at the governor’s will. A tacit mandate for every board member includes “never embarrass the governor.” Most state governors will vet prospective board candidates through their state dental associations. A few governors elect to ignore this informal and usually insightful process and go it alone. They do so at their own risk.
Variables
There exist three branches of law: criminal law, civil law, and administrative law. Dental boards operate under a state’s administrative law, which is often quite different from criminal or civil law. Further, there can be dramatic differences in administrative law between states. State statues relating to the practice of dentistry are commonly called the dental practice act.
Under state administrative law, rules for admission of evidence, admission of hearsay testimony, rules for investigation, and witness questioning at hearings may be drastically different than civil or criminal law. In fact, the same entity that investigates a dental complaint may also render a judgement in favor of or against a dentist/defendant. A formal separation of powers may not exist.
Kangaroo Courts or Legitimate Venues for Grievance Resolution?
Dentists answering complaints brought forth by dental boards may have misunderstandings on how these regulators are mandated to operate. Many states’ boards are required to answer each formal complaint filed by the public, regardless of the complaint’s merit. Yes, that includes complaints against doctors that enter into the realm of the ridiculous.
In fact, dentists who ignore a board’s demand for records on an absurd case filing, and who may be later fully vindicated on the actual complaint, may then be subsequently disciplined for a failure to produce record copies in a timely manner. In fact, the board may discover and act upon alleged statute violations in patient records submitted that have no connection to the initial complaint.
Jill Baskin, DDS, has maintained a general practice since 1983, and she has been reviewing dental professional liability claims for CNA’s HealthPro and presenting the national risk management seminar since 1989.
“For the patient, a dental licensing board complaint is a simple and inexpensive way to seek remedy from, or retribution against, a dentist,” said Baskin.
“In many states, the number of dental licensing board complaints far exceeds the number of professional liability lawsuits. The state dental board is typically required to respond to all complaints, though other state agencies may be responsible for the investigation itself. On the other hand, it may be more challenging for a patient to bring a lawsuit. Many complaints for which patients threaten legal action are of questionable merit,” Baskin said.
“For the dentist, a board complaint is a serious matter and can result in the suspension or revocation of one’s license to practice. Unfortunately, many dentists may believe that this is an informal process, or a matter that will result only in a fine or letter of censure, until the complaint escalates to a point where the seriousness of the potential sanctions becomes fully apparent,” said Baskin.
“These complaints may escalate quickly even in situations where the practitioner believes the patient is being untruthful and that excellent care was provided. Before realizing it, irreparable harm to his or her defense may occur without legal representation,” Baskin said.
Bad Actors Serving with Dental Boards
At one time, the legal counsel for the Nevada State Board of Dental Examiners was allegedly running an extortion operation out of the office.1,2 Board members were also “gifted” special high-end travel junkets from revenues generated from complaint settlements.3
Recently, Georgia’s governor demanded the resignation of a dental board member he appointed who also served as the chief dental officer of an interstate dental service organization (DSO).4 Governor Nathan Deal was publicly embarrassed when this DSO settled on government charges related to alleged widespread Medicaid fraud for $23.9 million.5 Any reasonable prior vetting process might have saved the governor a good deal of angst.6
Texas Governor Greg Abbott recently appointed to the Texas State Board of Dental Examiners a dentist board member who agreed to a “remedial plan” consent agreement on June 3, 2016, allegedly for dental treatment “below minimal standard of care.”7 The recent appointee is also associated with one of the larger national DSO chains, which itself has settlement agreements with four different state attorneys general’s offices.8-11 One may question why a state governor elects to roll the dice over the public safety and welfare.
The former executive director (and attorney) of the Ohio Dental Board was found to have leaked confidential information of a serious complaint to the alleged dentist violator.12 The alleged dentist violator (and former president of the state dental board) was also part of an ongoing federal investigation and prosecution for a vast array of charges including fraud, extortion, bribery, and conspiracy.13
Nationally, individual dental board members as well as entire dental regulatory boards have faced serious substantive allegations against them.14-20 Charges of board improprieties include extortion, incompetence, violations of civil and criminal law, conflicts of interest, overt and covert favoritism, corruption, and sexual deviance. One hopes these types of sordid activities are rare within dental boards and that most boards and their members and governmental staff operate ethically. Unfortunately, we know that’s not always reality.
Dental Board Notifications
“When a dentist receives notice about a licensing board complaint investigation and/or a request for records, the first step should be to contact his or her professional liability insurance agent and report it as a claim,” advised Baskin. “One of the many benefits of the Professional Protector Plan for Dentists is the legal counsel provided for board complaints, and CNA’s expertise can provide useful guidance.”
In very few cases will the doctor’s malpractice carrier plan not be adequate coverage to handle a dental board complaint. A number of disreputable sales agents have proffered plans specifically designed to provide legal defense coverage for dental board complaints. These plans are nearly always a superfluous ripoff. Most dental malpractice coverage includes liability coverage for dental board complaints.
“Many of my colleagues who are dentists don’t appreciate the power and reach of a state dental board. Any query by a board should be taken seriously and not personally handled by the dentist/owner of the practice. You wouldn’t attempt to walk into an operating room and perform heart surgery, and you should feel equally incompetent when confronted by a state board investigator,” said Frank Recker, DDS, JD, a dentist, practicing attorney focused on dental law, and former dental board member.
“Often you are approached in your office, without notice, and asked to meet with an investigator. Your answer should be swift, polite, but firm: ‘I’m afraid I cannot discuss any patient or practice matter or issue without prior consultation and approval by my legal counsel.’ That statement is for everyone’s protection,” Recker said.
“When you walk through the reception area door, you are responsible for a host of legal issues: HIPPA, patient privilege, protected records, patient identification, inadvertent self- incrimination, and whatever is said by your staff. It is simply unwise to assume the role of a healthcare practitioner and attorney. And, quite typically, just a ‘few questions’ leads to havoc in your patient schedule, disgruntled patients, and queries about an investigator roaming through the office,” advised Recker.
Recker specifically addressed a board investigator’s access to your dental office.
“Remember, not even a subpoena can grant immediate access to your office, regardless of the date for compliance written on it. A court of proper jurisdiction can only enforce it, and no court would hold you in contempt for simply requiring advance notice when you are a healthcare practitioner,” Recker said.
“The only legal process that can compel immediate entry is a search warrant, in which case you should immediately call your attorney, not speak to anyone (nor should your staff), and be sure to obtain a receipt for all items removed from the office. A search warrant compels entry, not interrogation,” Recker said.
“Notify your malpractice carrier after contact with a board investigator, or a patient threat of suit, or receipt of a letter implying legal action against you. Should you not do so, a malpractice carrier might claim that you breached your duty to notify them within a specified period of time and then refuse to defend a subsequent claim,” Recker said.
Conclusion
State dental boards hold great power over dental licensees. Their primary focus is not the welfare of the dental profession, but in serving the public interest. This could directly impact the ability of a doctor to earn a living. Such authority should never be taken lightly.
“Practicing dentistry is more than rendering healthcare. It also requires you to be prudent and protective of your license, your practice, and the legal rights of your staff,” Recker said.
Astute legal representation is paramount for any dentist involved with a dental board complaint. Administrative codes related to the dental practice act are a unique form of law. Processing of this specific administrative law is also very peculiar. Further, it’s not totally uncommon for dental board members, legal counsel, executive directors, and/or other board administrators to act in discord with the rule of law. Retaining defense counsel fully knowledgeable in state administrative law, the processing of that law, and specific motivations of the “players” involved is in a doctor’s best interest.
Abraham Lincoln had it right: “He who represents himself has a fool for a client.”
References
1. Royal DF. Shame on Nevada dental board. WorldHealth.net. April 27, 2017. https://www.worldhealth.net/news/shame-nevada-dental-board/. Accessed April 16, 2018.
2. Usufzy P. Gov. Sandoval tells state dental board to ‘fix’ its patient complaint process. Las Vegas Review-Journal. November 8, 2016. https://www.reviewjournal.com/life/health/gov-sandoval-tells-state-dental-board-to-fix-its-patient-complaint-process/. Accessed April 16, 2018.
3. I-Team: Dental board spends thousands in travel. LasVegasNow.com. November 4, 2009. http://www.lasvegasnow.com/news/iteam-dental-board-spends-thousands-in-travel/83241774. Accessed April 16, 2018.
4. Davis MW. GA board member resigns after Kool Smiles dental settlement. Dentistry Today. January 31, 2018. http://www.dentistrytoday.com/news/todays-dental-news/item/2878-ga-board-member-resigns-after-kool-smiles-dental-settlement. Accessed April 16, 2018.
5. US Department of Justice. Dental management company Benevis and its affiliated Kool Smiles dental clinics to pay $23.9 million to settle False Claims Act allegations relating to medically unnecessary pediatric dental services [press release]. January 10, 2018. https://www.justice.gov/opa/pr/dental-management-company-benevis-and-its-affiliated-kool-smiles-dental-clinics-pay-239. Accessed April 16, 2018.
6. Davis M. Kool Smiles Dental— disturbing peak behind the curtain. Concerned Dentists of Texas. August 12, 2017. https://concerneddentistsoftexas.org/news/2017/8/12/kool-smiles-dental-a-disturbing-peak-behind-the-curtain. Accessed April 16, 2018.
7. Texas State Board of Dental Examiners. In the matter of license no. 28508 issued to Kimberly N. Haynes, DDS. TSBDE case file no. 2015-00982. June 3, 2016. https://www.scribd.com/document/365098067/Kimberly-Haynes-DMD-June-2016-Remedial-Plan-Issued-by-Texas-State-Board-of-Dental-Examiners. Accessed April 16, 2018.
8. Commonwealth of Pennsylvania v Aspen Dental Management, Inc. Court of Common Pleas, Dauphin County, PA. Civil case no. 2010-CV-13591-EQ. https://www.documentcloud.org/documents/372853-aspen-dental-settlement-with-pennsylvania.html. Accessed April 16, 2018.
9. Attorney General of Massachusetts. Aspen Dental to pay close to $1 million to settle allegations of deceptive advertising, charging for services not provided [press release]. December 22, 2014. http://www.mass.gov/ago/news-and-updates/press-releases/2014/2014-12-22-aspen-dental-aod.html. Accessed April 16, 2018.
10. Attorney General of the State of New York. In the matter of Aspen Dental Management, Inc. Assurance No.: 15-103: Assurance of discontinuance under executive law section 63, subdivision 15. June 15, 2015. https://ag.ny.gov/pdfs/ADMI_AOD.pdf. Accessed April 16, 2018.
11. AG Zoeller settles with Aspen Dental Management, Inc. over allegations of deceptive advertising, unfair tactics [press release]. IN.gov. October 22, 2015. http://in.gov/activecalendar/EventList.aspx?view=EventDetails&eventidn=238268&information_id=232997&type=&rss=rss. Accessed April 16, 2018.
12. Heisig E. Former Ohio State Dental Board director pleads guilty in MetroHealth probe. Cleveland.com. January 18, 2017. http://www.cleveland.com/court-justice/index.ssf/2017/01/former_ohio_state_dental_board.html. Accessed April 16, 2018.
13. US Department of Justice (Northern District of Ohio). Former chief operating officer at MetroHealth hospitals indicted for taking bribes [press release]. October 25, 2016. https://www.justice.gov/usao-ndoh/pr/former-chief-operating-officer-metrohealth-hospitals-indicted-taking-bribes. Accessed April 16, 2018.
14. Aaronson B. Texas dental board is accused of ineptitude. The Texas Tribune. April 12, 2012. https://www.texastribune.org/2012/04/12/texas-dental-board-accused-ineptitude/. Accessed April 16, 2018.
15. Aswell T. Nevada governor reins in that state’s rogue dental board’s gestapo tactics; Louisiana’s, however, remains unchecked. Louisiana Voice. November 18, 2016. https://louisianavoice.com/2016/11/18/nevada-governor-reins-in-that-states-rogue-dental-boards-gestapo-tactics-louisianas-however-remains-unchecked/. Accessed April 16, 2018.
16. Henry H, Larche J. Dentists allowed to practice after dealing drugs, committing health care fraud. WTKR.com. February 19, 2013. http://wtkr.com/2013/02/19/newschannel-3-investigation-is-your-dentist-legit/. Accessed April 16, 2018.
17. Dental board practices come under increasing scrutiny across the nation. DOCS Digest. Spring 2012:11, 12, 27. https://www.docseducation.com/DOCSDigest/DOCS-Digest-2012-2.pdf. Accessed April 16, 2018.
18. Dentist resigns from Texas board following arrest. NBCDFW.com. May 26, 2014. https://www.nbcdfw.com/news/local/Dentist-Resigns-From-Texas-Board-Following-Arrest-260654591.html. Accessed April 16, 2018.
19. Budnick N. State dentistry board member who faced discipline, Matt Tripp, resigns at Kitzhaber’s request. The Oregonian/OregonLive. November 4, 2014. http://www.oregonlive.com/health/index.ssf/2014/11/state_dentistry_board_member_m.html. Accessed April 16, 2018.
20. Ohio State Dental Board. Multiple issues as follows: 1. RESIGNED: Deputy Executive Director Ohio State Dental Board, Former Investigator Supervisor, Quentin Holmes 2. Demand for resignation of Dr. Kaye, President, Ohio Dental Board for exceptional “Clueless” performance. 3. Dr Frank Recker demands deposition of an ex employee of the dental board Mr. Quentin Holmes in 2 cases. Dental Board’s home page 2018; http://ohiodentalboard.com/Page_2.html. Accessed April 16, 2018.
Dr. Davis practices general dentistry in Santa Fe, NM. He assists as an expert witness in dental fraud and malpractice legal cases. He currently chairs the Santa Fe District Dental Society Peer-Review Committee and serves as a state dental association member to its house of delegates. He extensively writes and lectures on related matters. He may be reached at mwdavisdds@comcast.net or smilesofsantafe.com.
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