Performance audit, Arizona Board of Dental Examiners

              State of Arizona
Office
of the
Auditor General
PERFORMANCE AUDIT
Report to the Arizona Legislature
By Debra K. Davenport
Acting Auditor General
August 1999
Report No. 99-15
ARIZONA BOARD
OF
DENTAL EXAMINERS
The Auditor General is appointed by the Joint Legislative Audit Committee, a bipartisan committee
composed of five senators and five representatives. His mission is to provide independent and impar-tial
information and specific recommendations to improve the operations of state and local government
entities. To this end, he provides financial audits and accounting services to the state and political
subdivisions and performance audits of state agencies and the programs they administer.
The Joint Legislative Audit Committee
Senator Tom Smith, Chairman
Representative Roberta Voss, Vice-Chairman
Senator Keith Bee Representative Robert Burns
Senator Herb Guenther Representative Ken Cheuvront
Senator Darden Hamilton Representative Andy Nichols
Senator Pete Rios Representative Barry Wong
Senator Brenda Burns Representative Jeff Groscost
(ex-officio) (ex-officio)
Audit Staff
Kim Van Pelt—Manager
and Contact Person (602) 553-0333
Natalie Coombs—Audit Senior
Nancy Cameron—Staff
Copies of the Auditor General’s reports are free.
You may request them by contacting us at:
Office of the Auditor General
2910 N. 44th Street, Suite 410
Phoenix, AZ 85018
(602) 553-0333
Additionally, many of our reports can be found in electronic format at:
www.auditorgen.state.az.us
2910 NORTH 44th STREET • SUITE 410 • PHOENIX, ARIZONA 85018 • (602) 553-0333 • FAX (602) 553-0051
DOUGLAS R. NORTON, CPA
AUDITOR GENERAL
DEBRA K. DAVENPORT, CPA
DEPUTY AUDITOR GENERAL
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
August 26, 1999
Members of the Arizona Legislature
The Honorable Jane Dee Hull, Governor
Ms. Julie N. Chapko, Executive Director
Arizona Board of Dental Examiners
Transmitted herewith is a report of the Auditor General, A Performance Audit of the
Arizona Board of Dental Examiners. This report is in response to a May 27, 1997,
resolution of the Joint Legislative Audit Committee. The performance audit was
conducted as part of the Sunset review set forth in A.R.S. §§41-2951 through 41-2957.
We found the Board is generally effective in fulfilling its licensing and complaint duties.
Nonetheless, we did find two areas where the Board could make improvements. First,
the Board could do a better job of ensuring that licensees take required corrective action
once the Board resolves complaints. In some instances, licensees ignore or delay taking
corrective action requirements, and the Board fails to follow up. For example, in one
instance, the Board ordered a licensee to pay restitution to a patient, but the licensee did
not make the payment until after the Board contacted the dentist six months later. More
timely monitoring may have resulted in quicker action. Second, the Board needs to
improve its handling of consent agreements and malpractice cases to ensure that the
public is better informed. If the Board resolves a statutory violation through the use of
a consent agreement, the public is not informed about the violation. Also, the Board has
not taken disciplinary action in a few malpractice complaints because of its unfounded
concern that the incident would be double-reported in a national databank.
August 26, 1999
Page -2-
As outlined in its response, the Board agrees with all of the findings and recommenda-tions.
My staff and I will be pleased to discuss or clarify items in the report.
This report will be released to the public on August 27, 1999.
Sincerely,
Debbie Davenport
Acting Auditor General
Enclosure
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OFFICE OF THE AUDITOR GENERAL
SUMMARY
The Office of the Auditor General has conducted a performance
audit and Sunset review of the Arizona Board of Dental Exam-iners,
pursuant to a May 27, 1997, resolution of the Joint Legisla-tive
Audit Committee. The audit was conducted as part of the
Sunset review set forth in Arizona Revised Statutes (A.R.S.)
§§41-2951 through 41-2957.
The Board regulates approximately 5,000 dentists, dental hy-gienists,
and denturists and is funded primarily through licens-ing
fees.1 To fulfill its regulatory responsibilities, the 11-member
Board issues licenses and certificates, mediates complaints, con-ducts
investigations, and imposes discipline. The Board’s li-censing
and complaint processes appear to be generally efficient
and appropriate. However, the Board needs to improve its pro-cedures
for ensuring that licensees take corrective action in re-sponse
to Board actions resulting from complaints. In addition,
when complaints are adjudicated with consent agreements, the
Board needs to ensure that the public is made aware of the ac-tions
licensees are required to take.
The Board Should Improve
Its Monitoring Efforts
(See pages 9 through 12)
Once it resolves complaints, the Board does not ensure that
licensees and certificate holders take required corrective actions.
When the Board reviews a complaint and finds that corrective
action is needed, it has the power to require the licensee to pay
restitution, obtain more training, and improve dental proce-dures.
However, the Board’s files show instances in which licen-sees
ignored corrective action requirements or delayed taking
1 Denturists perform activities such as constructing, fitting, and re-pairing
dentures.
Summary
ii
OFFICE OF THE AUDITOR GENERAL
them and the Board did not follow up to ensure timely compli-ance.
For example, one patient did not receive $390 in board-ordered
restitution until 6 months after it was due. To correct
the problem, the Board needs to address problems with its
monitoring information and its follow-up procedures. The
Board does not consistently record all the information in its
database that is necessary to facilitate compliance monitoring.
The Board needs to correct problems with the data and use the
resulting information as a monitoring tool to identify noncom-pliance
and track follow-up enforcement activity to ensure
timely action is taken.
The Board Could Better Serve the
Public Through Improved Handling of
Consent Agreements and Malpractice Cases
(See pages 13 through 17)
In two areas, the Board’s method of handling complaints does
not ensure that the public has adequate knowledge of the extent
to which actions are taken against dentists. The first area in-volves
the Board’s use of nondisciplinary consent agreements
instead of more formal disciplinary actions. Such agreements
typically involve a dentist agreeing to take specified action to
correct an existing situation or prevent future problems. In a few
cases the Board has, in lieu of imposing formal discipline, en-tered
into consent agreements with dentists even though statu-tory
violations may exist. When this occurs, the dentist avoids
having a disciplinary action noted on his or her licensing record
and consumers are informed only that the complaint was dis-missed.
This reporting standard can mislead consumers, be-cause
complaints are ordinarily dismissed only when there is no
evidence of any statutory violation.
The second area involves the Board’s dismissal of certain mal-practice
complaints out of concern that the incident would be
double-reported in a national data bank used by medical or-ganizations
and state licensing boards. This data bank’s infor-mation
includes malpractice settlements reported by insurance
companies and actions reported by state licensing boards.
Auditor General staff identified a few instances in which the
Board believed a complaint was valid, but voted against disci-
Summary
iii
OFFICE OF THE AUDITOR GENERAL
plinary action because of this concern about possible duplication
in the data bank. A data bank representative said this concern
was unfounded. More significantly for Arizona consumers, the
Board’s failure to take disciplinary action adversely impacts
consumers’ abilities to make informed decisions, because con-sumers
are made aware of Board-ordered discipline only, and
would not learn that malpractice had occurred.
Other Pertinent Information
(See pages 19 through 22)
This audit also presents other pertinent information addressing
legislative and public concerns relating to holistic dentistry in
Arizona. Holistic dentistry, which is not a specialty recognized
by the American Dental Association, purports to enhance over-all
health through dental procedures. The most common prac-tice
among dentists who refer to themselves as holistic is re-moval
of amalgam fillings because of concerns about mercury
toxicity. Some holistic dentists also perform more extensive and
invasive procedures.
Some members of the public have expressed concerns that
without specific protections for holistic dentistry, some proce-dures
would no longer be available in Arizona. These concerns
stem primarily from a formal hearing against one holistic dentist
that was based on nine complaints alleging violations of board
statutes. During the course of the complaint investigations and
hearing process, allegations arose that the Board singled out this
dentist because of his holistic philosophy. Although the formal
complaints do not support these allegations, some members of
the public sought to ensure protections for holistic dentistry by
requesting the Board to define holistic dentistry in administra-tive
rules. However, because dentistry is defined in Arizona
statutes, it would not be appropriate for the Board to write rules
defining any particular type of dentistry. Further, Arizona stat-utes
currently do not recognize any dental specialty.
Summary
iv
OFFICE OF THE AUDITOR GENERAL
Sunset Factors
(See pages 23 through 31)
As part of the Sunset review process, this audit also recom-mends
some additional changes to the Board’s policies, rules,
and statutes. For example, the Board needs to modify its public
information policy to include releasing the nature of dismissed
complaints and information about consent agreements by tele-phone.
The Board also needs to adopt some additional rules
relating to issues such as fees and applicant qualifications.
Finally, the Legislature should consider amending A.R.S. §32-
1203(A) to increase public membership on the Board so that it is
closer to 50 percent. Currently, the 11-member Board has 3 pub-lic
members. Past Auditor General reports have recommended
that regulatory boards have 50 percent public membership to
increase the potential for public advocacy.
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OFFICE OF THE AUDITOR GENERAL
Table of Contents
Page
Introduction and Background..................... 1
Finding I: The Board Should Improve
Its Monitoring Efforts............................... 9
Increased Monitoring
Is Needed.................................................................. 9
Monitoring Tools Are
Not Used Effectively................................................ 10
Recommendations ................................................... 12
Finding II: The Board Could Better Serve
the Public Through Improved
Handling of Consent Agreements
and Malpractice Cases............................ 13
Public Should Be
Informed of Consent
Agreement Requirements ....................................... 13
Inconsistent Malpractice Case
Adjudication Adversely
Impacts Public Information..................................... 15
Recommendations ................................................... 17
Other Pertinent Information ........................ 19
Holistic Dentistry
Philosophy and Practices......................................... 19
Attempts Have Been
Made to Obtain Recognition................................... 20
Formal Hearing Addressed
Complaints Against One
Holistic Dentist......................................................... 21
Table of Contents
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OFFICE OF THE AUDITOR GENERAL
Table of Contents (Concl’d)
Page
Sunset Factors ............................................. 23
Agency Response
Tables
Table 1 Arizona State Board of Dental Examiners
Licensure and Certification Requirements
and Number of Licensed and Certified
Professionals As of June 30, 1998
(Unaudited)...................................... 2
Table 2 Arizona State Board of Dental Examiners
Statement of Revenues, Expenditures, and
Changes in Fund Balance
Years Ended June 30, 1997, 1998, and 1999
(Unaudited)...................................... 5
1
OFFICE OF THE AUDITOR GENERAL
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has conducted a performance
audit and Sunset review of the Board of Dental Examiners pur-suant
to a May 27, 1997, resolution of the Joint Legislative Audit
Committee. The audit was conducted as part of the Sunset re-view
set forth in Arizona Revised Statutes (A.R.S.) §§41-2951
through 41-2957.
Board Responsibilities
Laws 1935, Chapter 24, §2, established the Arizona Board of
Dental Examiners, which is responsible for regulating dentists
and dental hygienists through licensure. In addition, the Board
has certification programs for denturists, and for dental assis-tants
who take x-rays (see Table 1, page 2 for licensure and certi-fication
requirements). As part of its duties, the Board issues
permits to dentists who administer general anesthesia and semi-conscious
and conscious sedation, and to dentists whose prac-tice
is limited to volunteer work for charitable organizations. It
also certifies hygienists who administer local anethesia and ni-trous
oxide. In Arizona there are no separate licensing require-ments
that officially recognize dental specialties, such as endo-dontics,
oral surgery, and orthodontics. However, dentists may
advertise as specialists if they are recognized by an American
Dental Association (ADA)-accredited board that certifies spe-cialists
in one of eight areas.1
1 The eight specialy areas are endodontics, oral and maxillofacial
surgery, orthodontics and dentofacial orthopedics, pediatric den-tistry,
periodontics, prosthodontics, dental public health, and oral
pathology.
Introduction and Background
2
OFFICE OF THE AUDITOR GENERAL
Table 1
Arizona State Board of Dental Examiners
Licensure and Certification Requirements and
Number of Licensed and Certified Professionals
As of June 30, 1998
(Unaudited)
Profession
Education and Experience
Requirements for Licensure / Certification
Number of
Licensed / Certified
Professionals
Dentist A diploma from a recognized dental school or
completion of a two-year program in clinical
dentistry at an ADA-accredited dental school,
passing parts I and II of the national dental
board examinations, passing the Western
Regional Examining Board (WREB) examination
within the past 5 years, and passing the Arizona
dental jurisprudence examination are required
for a license.
2,985
Dental Hygienist A diploma or certificate from a recognized
dental hygiene school, passing the WREB
examination within the past 5 years, passing the
national dental hygiene board examination, and
passing Arizona dental jurisprudence
examination are required for a license. In
addition, licensed hygienists must work under a
licensed dentist’s supervision.
2,043
Denturist A diploma from a Board-approved school, and
passing a Board-approved examination are
required for a certificate. In addition, certified
denturists must work under a licensed dentist’s
supervision.
14
Dental Assistants
certified to expose
oral x-rays
Passing the Dental Assisting National Board
Radiation Health & Safety examination is
required for a certificate. All dental assistants
must work under a licensed dentist’s
supervision.
2,705
Source: Licensure and certification data obtained from the Board of Dental Examiners and A.R.S. §§32-1232
through 32-1297.
Introduction and Background
3
OFFICE OF THE AUDITOR GENERAL
The Board’s mission is:
To provide professional, courteous service and informa-tion
to the dental profession and the general public
through the examination, licensing, and complaint
adjudication and enforcement processes; to protect the
oral health, safety, and welfare of Arizona citizens
through a fair and impartial system.
The Board accomplishes this mission by performing a variety of
functions, including ensuring that individuals desiring licen-sure,
certification, or permits possess required qualifications;
issuing and renewing qualified applicants’ licenses and certifi-cates;
mediating complaints; conducting investigations and
hearings concerning unprofessional conduct or other statutory
violations; disciplining violators; and providing consumer in-formation
to the public.
On average, the Board receives approximately 450 complaints a
year, which are mainly against dentists. The Board generally
processes complaints in a timely manner and does not appear
to have a complaint backlog. In addition to its licensing and
regulation duties, the Board has also established a monitored
aftercare program to assist professionals recovering from sub-stance
abuse problems. (For further information about com-plaint
timeliness and the monitored aftercare treatment pro-gram,
see Sunset Factor No. 2 on page 24.)
The Board has established several committees and panels to
assist it in performing its duties. The committees, which
typically consist of both board members and volunteers, advise
the Board on issues relating to denturists and dental hygienists
as well as assisting with activities such as writing rules. In
addition, the Board relies on volunteers to conduct clinical
evaluations of dental work, and to participate on investigative
interview panels that review records, hear testimony, and make
disciplinary recommendations to the Board. A 1993 audit of the
Board (see Auditor General Report No. 93-1) noted concerns
relating to the efficiency and thoroughness of complaint
investigations performed by the panels. Although the Board has
not changed this process, it has developed a training program
for volunteer panel members and makes more efficient use of its
staff investigators’ time.
Board generally proc-esses
complaints
timely.
Introduction and Background
4
OFFICE OF THE AUDITOR GENERAL
Organization and Staffing
The Board consists of 11 Governor-appointed members, who are
eligible to serve two consecutive four-year terms. Two of the
members must be licensed dental hygienists and six must be
licensed dentists. Although statute allows the Arizona State
Dental Association to submit names of dentists to the Gover-nor’s
Office for appointment, the Governor can and does con-sider
nominees from other sources. Board statute also requires
three public members.
The Board is authorized 9 FTEs who provide assistance and
support to the Board and its committees. An executive director
oversees the staff, who are responsible for collecting application,
renewal, and other fees; accepting and preparing application
files for Board review; investigating complaints; monitoring
compliance with Board orders; and providing information to the
public.
Budget
The Legislature appropriates monies to the Board from the
Board of Dental Examiners Fund. This fund contains revenues
derived principally from the collection of licensure application
and renewal fees. The Board deposits 90 percent of its revenues
into the Board of Dental Examiners Fund and the remaining 10
percent of revenues into the General Fund. Table 2 (see page 5),
illustrates the Board’s actual and estimated revenues and ex-penditures
for fiscal years 1997 through 1999.
Introduction and Background
5
OFFICE OF THE AUDITOR GENERAL
Table 2
Arizona State Board of Dental Examiners
Statement of Revenues, Expenditures, and Changes in Fund Balance
Years Ended June 30, 1997, 1998, and 1999
(Unaudited)
1997 1998 1999
(Actual) (Actual) (Estimated)
Revenues:
Licenses and fees $626,847 $678,562 $720,100
Fines and forfeits 14,981 31,582 34,900
Sales and charges for services 5,290 3,891 5,500
Other 24,227 29,163 16,800
Total revenues 671,345 743,198 777,300
Expenditures:
Personal services 218,820 251,680 290,100
Employee related 41,375 43,929 52,100
Professional and outside services 198,514 203,501 168,800
Travel, in-state 7,454 2,866 3,700
Travel, out-of-state 3,484 4,710 6,600
Other operating 159,449 126,576 115,700
Capital outlay    3,311 2,400
Total expenditures 629,096 636,573 639,400
Excess of revenues over expenditures 42,249 106,625 137,900
Other financing uses:
Net operating transfers out 3,855 5,545
Remittances to the State General Fund 1 69,850 94,269 94,300
Total other financing uses 73,705 99,814 94,300
Excess of revenues over (under) expenditures
and other financing uses (31,456) 6,811 43,600
Fund balance, beginning of year 408,263 376,807 383,618
Fund balance, end of year $376,807 $383,618 $427,218
1 As a 90/10 agency, the Board remits 100 percent of administrative penalties and 10 percent of its other gross
revenues to the State General Fund.
Source: The Arizona Financial Information System Revenues and Expenditures by Fund, Program, Organization, and
Object and Trial Balance by Fund reports for the years ended June 30, 1997 and 1998; the Board’s Budget
Request for fiscal years 2000 and 2001; and the Board’s Variance from Budget report for fiscal year 1999.
Introduction and Background
6
OFFICE OF THE AUDITOR GENERAL
Audit Scope
And Methodology
Audit work focused on the Board’s licensure, enforcement, and
administrative policies and procedures. This performance audit
and Sunset review includes findings and recommendations as
follows:
n The need for the Board to better ensure that licensees and
certificate holders take corrective action in response to
complaints (see Finding I, pages 9 through 12);
n The need for the Board to ensure that the public has
adequate knowledge of the extent to which actions are taken
against dentists (see Finding II, pages 13 through 17); and
n The need for additional policies and rules, release of
additional information to the public, and additional public
representation on the Board (see Sunset Factors, pages 23
through 31).
This report also contains other pertinent information (see pages
19 through 22) that addresses additional concerns raised by
legislators and members of the public regarding holistic
dentistry.
To evaluate the Board’s monitoring and enforcement efforts and
the appropriateness of adjudication, auditors obtained
information from a variety of sources, including reviews of
computerized licensing and complaint information, file reviews,
and interviews with Board members, the Executive Director, and
staff. Specifically, to determine the adequacy of the Board’s
monitoring efforts, computerized information relating to 165
complaints received between 1995 and 1998 that appeared to
require compliance monitoring was reviewed to identify
instances of potential noncompliance.1 From those complaints
where potential noncompliance was identified, a random sample
of 30 complaints was selected and the case files were reviewed.
1 These 165 complaints did not include those relating to the Monitored
Aftercare Treatment Program.
Introduction and Background
7
OFFICE OF THE AUDITOR GENERAL
In addition, to evaluate the Board’s adjudication of complaints
involving malpractice settlements, minutes of Board meetings
held between February 1996 and April 1999 were reviewed.
Finally, 30 files for complaints received in 1997 and 1998 that
were adjudicated with consent agreements were identified and
reviewed.1
To respond to public and legislative concerns relating to holistic
dentistry in Arizona, auditors reviewed formal hearing
documents, attorney motions, and other related documents.
Information was also obtained from the Board’s computerized
complaint database and meeting minutes, as well as from
interviews with Board staff and interested parties.
Auditors also assessed the Board’s performance in a number of
other areas, including such things as timeliness of processing
complaints and licenses, and providing information to the pub-lic.
Specifically, auditors analyzed computerized data pertaining
to a total of 1,280 complaints received between 1996 and 1998. In
addition, using the computerized database, auditors identified
and analyzed information pertaining to all 111 nondisciplinary
letters of concern issued in 1996, 1997, and 1998. Finally, auditors
assessed whether the Board provides consumers with accessible,
accurate information regarding licensees by making 6 telephone
calls to request information and one visit to the Board’s offices to
review a file in person. (For further information about these is-sues,
see Sunset Factors, pages 23 through 31.)
This audit was conducted in accordance with government
auditing standards.
1 The review included all complaints received in 1997 and 1998 that
were resolved with consent agreements, except for those that did not
have investigators’ recommendations for resolution and those in-volving
substance-abuse related issues and the Monitored Aftercare
Treatment Program.
Introduction and Background
8
OFFICE OF THE AUDITOR GENERAL
The Auditor General and staff express appreciation to the Board
of Dental Examiners, the Executive Director, and staff for their
cooperation and assistance throughout the audit.
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OFFICE OF THE AUDITOR GENERAL
FINDING I THE BOARD SHOULD IMPROVE
ITS MONITORING EFFORTS
The Board does not ensure that licensees take corrective action
once complaints are resolved. When resolving complaints, the
Board has the power to require, among other things, that the
licensee pay restitution, obtain more training, and improve
dental procedures. However, the Board’s files show instances in
which licensees ignored corrective action requirements or de-layed
taking them. To correct the problem, the Board needs to
keep its complaint database accurate and up-to-date and use it
as a monitoring tool to identify noncompliance and track follow-up
enforcement activity to ensure timely action is taken.
Increased Monitoring
Is Needed
To help ensure that complainants’ concerns are resolved and to
lessen the likelihood that problems leading to complaints will
reoccur, the Board can establish corrective action requirements
in orders or in consent agreements. The Board sets such re-quirements
in about 10 percent of the complaints it resolves.
Once the Board sets these requirements, however, it does not
adequately monitor licensees to ensure compliance. Auditors
reviewed a random sample of 30 complaint files and identified
14 cases where dentists had failed to comply with board re-quirements.
1 Board staff had not monitored compliance in 7 of
the 14 cases and failed to perform timely follow-up in 6 cases.2
1 The sample was selected from 165 cases received between 1995 and
1998 that were identified as possibly requiring compliance monitor-ing.
2 In one case, board staff performed timely follow-up; however, the
dentist’s license has since expired and he did not comply with board
requirements.
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OFFICE OF THE AUDITOR GENERAL
Failure to identify or follow up on noncompliance can adversely
impact the public’s health, safety, and welfare. For example:
n Staff failed to monitor a dentist’s compliance with a discipli-nary
consent agreement even though the Board thought the
dentist might be a danger to the public. Citing inadequate in-fection
control procedures and possible physical and/or
mental impairment, the Board restricted the dentist’s prac-tice
to 4 hours per day including provisions to refer exten-sive
or difficult treatment to other dentists. The Board also
ordered the dentist to provide proof of upgraded infectious
disease control procedures by October 1997 and to appear at
the February 1998 meeting with a random sample of treat-ment
records. The dentist did not comply either time and no
enforcement action or follow-up occurred. In March 1999,
auditors questioned Board staff about whether the dentist
had complied with ordered restrictions; Board staff reported
no monitoring of practice restrictions had occurred.
n One patient did not receive $390 in board-ordered restitution
until 6 months after it was due. Restitution was due in Sep-tember
1998, but the dentist did not pay until staff called him
in March 1999.
Monitoring Tools Are
Not Used Effectively
The Board has a complaint database that could facilitate moni-toring,
but staff do not use it effectively. Staff do not enter data
consistently into the database, reducing its effectiveness for
monitoring compliance. In addition, staff do not use the data-base
to regularly produce reports that would identify noncom-pliance
and required follow-up action, further impacting the
Board’s ability to monitor compliance and perform timely fol-low-
up.
Data not entered consistently—The Board needs to ensure that
data is consistently entered into the complaint database to en-able
it to track monitoring and enforcement efforts. Currently,
the Board’s database includes fields to track compliance and
enforcement activities, but data is not consistently entered into
Finding I
Inconsistent data entry
makes using the database for
compliance monitoring
difficult.
Finding I
11
OFFICE OF THE AUDITOR GENERAL
these fields. Auditor General staff reviewed computerized data
for 165 complaints received between 1995 and 1998 that in-volved
requirements such as restitution, administrative penal-ties,
or continuing education. Of these 165 cases, 48, or about 29
percent, did not have due dates recorded, making late compli-ance
difficult to track. Additionally, auditors identified several
cases where licensees had completed requirements, but the
completion dates were not recorded, making it difficult to use
the database to determine which cases were out of compliance.
Failure to consistently and accurately enter data negatively im-pacts
the Board’s ability to monitor compliance. For example, 4
of 10 noncompliance cases that auditors identified did not have
due dates recorded in the database and 1 had an inaccurate date
recorded. Board staff was unaware of the noncompliance in
these 5 cases until auditors requested information about the
status of compliance and enforcement efforts. In one case, a
dentist was approximately 14 months overdue in paying a pa-tient
$363 in board-ordered restitution.
Management reports not produced on a timely basis—In addi-tion
to ensuring that data is entered consistently and accurately,
the Board needs to regularly produce management reports to
identify noncompliance and necessary follow-up action. The
Board’s database has the capability to generate reports that can
identify noncompliance with restitution, administrative penal-ties,
and continuing education requirements. The system will
also generate reports that detail enforcement action, including
planned follow-up activities. However, Board staff indicate that
these reports are produced only about every six months, which
is not often enough to facilitate timely monitoring and enforce-ment
activity. If reports had been produced more often, the six
cases auditors identified as requiring follow-up action may have
been acted upon more quickly. For example:
n One dentist did not complete six hours of board-ordered
continuing education until nearly two years after the due
date. The Board found that the dentist had failed to ade-quately
examine a patient and diagnose and plan treatment,
and ordered him to complete six hours of continuing educa-tion
by May 1997. In June 1997, the Board sent a letter in-forming
the dentist he was out of compliance and requested
Finding I
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OFFICE OF THE AUDITOR GENERAL
a response within 30 days. Following this letter, the dentist
did complete three of the six hours, but the Board did not
perform any further follow-up until November 1998, about
17 months later. The November letter requested a response
within five days. Although the dentist did respond to this
letter, he did not complete the remaining three hours of
board-ordered training until February 1999.
Recommendations
1. The Board needs to ensure that data such as due dates and
completion dates are consistently and accurately entered
into tracking fields to facilitate monitoring and enforcement
efforts.
2. The Board needs to establish and implement a schedule for
running, reviewing, and acting on management reports to
ensure instances of noncompliance are identified and neces-sary
follow-up is performed in a timely manner.
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In a consent agreement,
licensee agrees to take spe-cific
corrective action.
FINDING II THE BOARD COULD BETTER
SERVE THE PUBLIC THROUGH
IMPROVED HANDLING OF
CONSENT AGREEMENTS AND
MALPRACTICE CASES
In two areas, the Board’s complaint-handling methods do not
ensure that the public has adequate knowledge of the extent to
which actions are taken against dentists. The first area involves
the Board’s use of nondisciplinary consent agreements instead
of more formal disciplinary actions. In these instances, even
though the dentist has agreed to take corrective action, the pub-lic
is told only that the complaint has been dismissed. The sec-ond
area involves the Board’s dismissal of certain malpractice
complaints out of concern that the incident would be double-reported
in a national database used by insurers and medical
organizations. This concern is unfounded, and dismissing the
complaint means that Arizona consumers do not learn that
malpractice has occurred.
Public Should Be
Informed of Consent
Agreement Requirements
One form of board action, called a consent agreement, is typi-cally
not disclosed to the public even when it is used to resolve a
complaint in which disciplinary action may have been war-ranted.
Consent agreements typically involve a dentist agreeing
to take specific corrective action, and are used to resolve a vari-ety
of complaints. Many of the complaints resolved with consent
agreements do not appear to warrant formal disciplinary action;
however, in some cases the Board appears to have used consent
agreements in lieu of discipline. Because these consent agree-ments
are not considered disciplinary, the public is informed
only that the complaint was dismissed and is not made aware of
the consent agreement or its requirements.
Finding II
14
OFFICE OF THE AUDITOR GENERAL
Board entered into some
consent agreements in lieu
of disciplining dentists.
Dentists who enter into consent agreements with the Board
agree to take specified actions to correct existing situations or to
prevent future problems. For example, dentists with substance
abuse problems enter into standardized consent agreements to
obtain treatment and counseling. In other cases, the Board uses
consent agreements to help ensure that dentists receive special-ized
training to improve techniques or practices that, if not cor-rected,
could result in future problems.
Consent agreements are sometimes used in place of discipline—
In some cases, the Board has also used consent agreements to
resolve complaints when it appears that discipline may have
been warranted. Auditors identified 10 of 30 cases resolved with
consent agreements in 1997 and 1998 where investigators had
identified possible statutory violations and recommended disci-pline
in the form of censure, as well as requirements such as
continuing education and restitution.1 In lieu of the disciplinary
censure in these cases, the Board entered into nondisciplinary
consent agreements with the dentists to voluntarily complete
additional education and/or pay restitution. Because these con-sent
agreements are not considered disciplinary action, the den-tists
involved in these cases avoided having a disciplinary action
noted on their licensing records.
Public not informed of consent agreement provisions—When
the Board enters into nondisciplinary consent agreements, it
informs consumers seeking information that the complaints
were dismissed. Ordinarily, a complaint dismissal indicates that
there is no evidence of statutory violations. Therefore, entering
into consent agreements in lieu of taking disciplinary action and
reporting these cases as dismissed can mislead the public and
compromise consumers’ ability to make informed decisions.
Here is one of the more serious cases the auditors identified:
n Investigators identified potential statutory violations in-volving
billing irregularities, fraud, and misrepresentation
and recommended that the Board impose censure, restitu-tion,
continuing education, and random audits. The Board
1 The 30 consent agreements reviewed were nondisciplinary and did
not include those related to the Board’s Monitored Aftercare Treat-ment
Program, which uses consent agreements to help ensure that li-censees
with substance abuse problems receive treatment.
Finding II
15
OFFICE OF THE AUDITOR GENERAL
did not censure the dentist, but did enter into a consent
agreement requiring 12 hours of continuing education, $752
restitution, and random audits. When consumers call to re-quest
information about this dentist, they are informed only
that this complaint was dismissed.
In another, more typical, case:
n Investigators substantiated allegations of a dentist perform-ing
inadequate crown and bridge work and recommended
that the Board impose censure, restitution, and continuing
education. The Board entered into a consent agreement for
$500 restitution and six hours of continuing education. Since
censure was not imposed, the Board reports this complaint
as dismissed.
If the Board continues to use consent agreements to resolve
cases that appear to involve statutory violations, it should treat
these agreements as disciplinary and report their provisions to
the public.
Inconsistent Malpractice Case
Adjudication Adversely
Impacts Public Information
The Board’s actions on certain malpractice complaints have
limited the public’s ability to obtain information about some
malpractice cases. Using the Board’s database and meeting
minutes, auditors identified and reviewed information relating
to all 36 malpractice cases received and adjudicated in 1996,
1997, and 1998. The Board imposed censure in 7 of the 36 cases.
In 3 of the 36 cases, however, it appeared that the Board consid-ered
imposing discipline but instead chose not to based on con-cerns
that the information would be “double reported” to a
national data bank. 1
1 The remaining 29 cases were dismissed. Of these 29, 12 were dis-missed
with a nondisciplinary letter of concern and/or consent
agreement.
Finding II
16
OFFICE OF THE AUDITOR GENERAL
The double-counting concerns are related to a database called
the National Practitioner Data Bank (Data Bank), which main-tains
disciplinary and malpractice settlement histories that are
accessible to health care organizations and state licensing
boards. When a malpractice insurer settles a claim, it informs the
Board and also reports the settlement to the Data Bank. Based
on the insurer’s report, the Board opens a complaint against the
licensee or certificate holder and performs its own independent
investigation. If the Board decides to impose censure, this deci-sion
is also reported to the Data Bank.
Although the Board’s adjudication of the complaint is supposed
to be independent of the insurer’s actions, in a few malpractice
cases the Board appears to have allowed concerns about poten-tial
double-counting in Data Bank records to influence its deci-sions.
Here are two examples:
n In one instance, the Board reviewed a complaint against a
dentist and initially voted to impose censure. However, the
dentist’s attorney argued that because the dentist had al-ready
been reported to the Data Bank for this malpractice
case and Board discipline would result in a second report,
the dentist would be subject to discipline twice on the same
case. After discussion, the Board voted a second time,
changing its conclusion to “no violation” and calling for a
nondisciplinary letter of concern and a consent agreement
for six hours of continuing education.
n In another case, the dentist’s attorney likewise argued that a
Board censure would result in the dentist being disciplined
twice because of Data Bank reporting requirements. He also
pointed out that the dentist had been practicing for more
than 20 years and had not previously appeared before the
Board. The Board agreed to enter into a nondisciplinary con-sent
agreement for 12 hours of continuing education in
crown and bridge procedures. At the time, the Board was
unaware of another pending complaint against this dentist
that also alleged inadequate crown and bridge work.
The Board’s concern that its action would result in a double-counting
are unfounded. According to a National Data Bank
representative, health care organizations would be informed of
Finding II
17
OFFICE OF THE AUDITOR GENERAL
Public needs to be better in-formed
of corrective actions
dentists are required to take.
both malpractice settlements and state licensing actions, and
could determine whether the actions related to a single case.
The Board’s action deprives the general public of information
about the incident. The general public does not have access to
Data Bank information and is privy only to board actions. When
Data Bank reporting requirements impact board decisions, the
public is not made aware of the extent of the Board’s concerns.
To minimize inconsistency and better inform the public, the
Board needs to ensure malpractice cases are adjudicated with-out
regard for Data Bank reporting requirements.
Recommendations
1. When the Board uses consent agreements to resolve com-plaints
that appear to involve statutory violations, the Board
should report the provisions of the consent agreements to
the public.
2. The Board needs to ensure that it adjudicates malpractice
cases solely on their merits and without regard to whether
the case has been reported to the National Practitioner Data
Bank.
18
OFFICE OF THE AUDITOR GENERAL
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19
OFFICE OF THE AUDITOR GENERAL
OTHER PERTINENT INFORMATION
Concerns have been raised by the public and legislators re-garding
the provision of holistic dentistry in Arizona. Holistic
dentistry, which is not a specialty recognized by the American
Dental Association, espouses treating the teeth and mouth to
enhance overall health.1 Issues relating to holistic dentistry are
not new in Arizona, and have been previously debated in the
Legislature in 1995 and 1996. Most recently the issue was
brought to the forefront when the Board received several com-plaints
against one holistic dentist and voted to hold a formal
hearing to determine whether action should be taken against his
license.
Holistic Dentistry
Philosophy and Practices
Holistic dentistry, also known by names such as alternative or
biological dentistry, advocates using restoration materials other
than amalgam2 and focusing on the unrecognized impact that
dental toxins and hidden dental infections can have on overall
health. A common practice among dentists who embrace the
holistic dentistry philosophy is removal of amalgam fillings
because of concerns about mercury toxicity. However, the
American Dental Association’s Principles of Ethics and Code of
Professional Conduct does not support this procedure in situa-tions
where the fillings are still serviceable and the patient does
not initiate their removal. Some holistic dentists also perform
more invasive procedures, such as removing teeth that have had
1 The eight ADA-recognized specialty areas are endodontics, oral and
maxillofacial surgery, orthodontics and dentofacial orthopedics, pe-diatric
dentistry, periodontics, prosthodontics, dental public health,
and oral and maxillofacial pathology.
2 Amalgam generally consists of a mix of silver, mercury, tin, and
copper. It is typically the least expensive filling material, is long
lasting, and can be placed in a single visit. However, some consum-ers
and dentists believe amalgam fillings can contribute to non-curable
systemic illnesses, such as Alzheimer’s disease.
20
OFFICE OF THE AUDITOR GENERAL
root canals. Others also perform
cavitational surgery. There is no
prohibition against dentists per-forming
or choosing not to
perform these activities so long
as they do not misrepresent the
procedures or cause patient
harm.
Attempts Have Been
Made to Obtain
Recognition
There have been efforts to have holistic dentistry recognized in
the State. In 1995, a Sunrise review hearing was held to discuss
establishing a separate board to regulate holistic dentists. Pro-ponents
argued that the existing dental board is biased against
holistic dentists because of their nontraditional practices and
procedures. A bill was never introduced, however, because the
number of dentists who considered themselves holistic ap-peared
to be so few that a separate regulatory board could not
have been supported through licensing fees. One supporter
indicated that there were approximately 20 holistic dentists
practicing in the State.
After the failed attempt to establish a separate board, legislation
was introduced in 1996 to require one Board of Dental Examin-ers
member to be a holistic dentist. This effort was also unsuc-cessful.
More recently, holistic proponents have sought administrative
rules specifically defining dentistry and assuring that holistic
dentistry may be practiced in Arizona. However, dentistry in
Arizona is defined in statute, and the Board does not have the
authority to further define dentistry in rule. These recent efforts
are related to a formal hearing against one holistic dentist.
Cavitational Surgery—Surgery
to remove what are thought to
be residual areas of dead bone
tissue in the jaw bones around
the former site of a tooth. It
involves cutting into the soft
tissue to reach the bone and
then curretting, or cleaning out,
the bone surrounding the area.
Sites for possible cavitational
surgery are not detectable
through x-rays, and cannot be
treated with antibiotics.
Other Pertinent Information
Other Pertinent Information
21
OFFICE OF THE AUDITOR GENERAL
Formal Hearing Addressed
Complaints Against One
Holistic Dentist
When the Board initiated a formal hearing against one holistic
dentist, allegations arose that this dentist had been singled out
because of his holistic philosophy; however, the formal com-plaints
against this dentist do not support the allegations. Dur-ing
a 16-day formal hearing, an independent administrative law
judge heard 9 complaints against this dentist. Based on the evi-dence,
the judge recommended that the Board revoke the den-tist’s
license. The conclusions of law supporting the recommen-dation
did not pertain to holistic dentistry but rather to miscon-duct
as defined by Dental Board statutes. Specifically, the judge
concluded that the dentist had endangered patients’ health,
safety, and welfare through behaviors such as:
n Basing treatment on inadequate x-rays and insufficient and
unreliable clinical data;
n Failing to maintain adequate treatment records for each of
the 9 patients involved;
n Failing to perform periodontal evaluations, despite evidence
of periodontal concerns;
n Abandoning patients in the midst of treatment; and,
n Failing to adequately address complications stemming from
procedures.
In February 1999, the Board considered the judge’s recommen-dation
and rejected it in favor of ordering censure, 5 years’ pro-bation,
48 hours of continuing education, and 5 years of quar-terly
audits of diagnosis, treatment, and planning skills, as well
as recordkeeping.
The allegation in this case that the Board singles out holistic
dentists appears to be unfounded. In fact, based on a review of
complaint records, few dentists appear to be practicing holistic
Other Pertinent Information
22
OFFICE OF THE AUDITOR GENERAL
dentistry. Further, in those instances where complaints have
been made about these dentists, most appear typically to relate
to the quality of dental work rather than to practices considered
“holistic.”
23
OFFICE OF THE AUDITOR GENERAL
SUNSET FACTORS
In accordance with A.R.S. §41-2954, the Legislature should con-sider
the following 12 factors in determining whether the Ari-zona
Board of Dental Examiners should be continued or termi-nated.
1. The objective and purpose in establishing the Board.
The Board was established in 1935 to protect the public’s
health, safety, and welfare by licensing dentists and in-vestigating
and adjudicating complaints. Since then, the
Board’s statutes have been amended to also require li-censure
for dental hygienists, and to provide for certifi-cation
of denturists and dental assistants who take oral x-rays.
Other statutory responsibilities include issuing
permits to dentists who administer general anesthesia,
semiconscious sedation, or conscious sedation; and is-suing
restricted permits to dentists who work for chari-table
organizations and do not receive compensation.
To enable the Board to fulfill its responsibilities, statute
authorizes the Board to perform such activities as:
n Establish uniform and reasonable educational re-quirements;
n Determine eligibility of applicants for licensure, certi-fication,
and/or permits;
n Investigate charges of misconduct;
n Resolve or adjudicate complaints through either me-diation
or hearings; and,
n Establish a program to rehabilitate licensees with
substance abuse problems.
Sunset Factors
24
OFFICE OF THE AUDITOR GENERAL
2. The effectiveness with which the Board has met its
objective and purpose and the efficiency with which
it has operated.
The Board’s licensing and complaint-handling processes
appear to be generally efficient and effective. Specifically:
n Licensing renewals—The Board issues renewal li-censes
in a timely manner. Auditors reviewed a ran-dom
sample of 30 renewal applications and found
the Board issued renewal licenses within two weeks
of receiving the application, and in some cases on the
same day the application was received.
n Complaint processing—Complaint handling has
improved and is now generally timely. Statute re-quires
the Board to act on complaints within 150
days, unless there is good cause for extending this
time frame. A 1993 Auditor General review found
that the Board seldom heard cases within the statu-tory
150-day time frame and had accumulated a large
backlog of complaints (see Report No. 93-1). At the
time of the report, the Board had 333 unresolved
complaints, which was equivalent to more than one
year’s worth of complaints.
Since the last report, the Board has improved
timeliness and eliminated its backlog. Analysis of
computerized data relating to 1,040 complaints
received in 1996, 1997, and 1998 shows timeliness has
improved; the average time from receipt to initial
Board action is 162 days. Although this average
exceeds the statutory allowance, there appeared to be
good cause for exceeding the 150-day standard for
approximately 57 percent, or 316, of the 555 cases
involved. Specifically, 214 cases were postponed at
the request of the complainant or the licensee, for the
most part; and 102 cases required a clinical evaluation
by an outside dentist to ascertain the quality of work.
In the remaining 239 cases, good cause for delayed
action was not readily identifiable. It also appears
that improved timeliness has eliminated the Board’s
backlog. A separate review of cases not yet acted on
Sunset Factors
25
OFFICE OF THE AUDITOR GENERAL
was performed and it appears that the Board
currently does not have a complaint backlog.
In addition, the 1993 audit reported that board re-quirements
for filing a complaint may unnecessarily
burden the public; however, these requirements
have since been modified. At the time of the audit,
statute required complainants to sign their com-plaints
in the presence of a notary or authorized
board staff member. The Board also required that
complainants sign a form authorizing the release of
their dental records to the Board. Statute now re-quires
complainants to sign their complaints, but
does not require that these signatures be verified. In
addition, the Board no longer requires complainants
to authorize release of their records. Instead, it has
adopted the audit recommendation to use its sub-poena
powers to obtain dental records.
Although the Board’s processes were generally efficient
and effective, Auditor General staff did identify
processes that could be improved. Specifically:
n Compliance monitoring—Although complaint
handling appears generally timely, the Board could
improve its enforcement efforts and the consistency of
some complaint adjudications. Specifically, the Board
needs to increase its efforts to ensure that licensees
and certificate holders take corrective action in
response to complaints. (see Finding I, pages 9
through 12). In addition, the Board needs to ensure
that the public has adequate knowledge of the extent
to which actions are taken against dentists (see
Finding II, pages 13 through 17).
3. The extent to which the Board has operated within
the public interest.
The Board has generally operated in the public interest to
protect the public health, safety, and welfare. The Board
publishes a quarterly newsletter to inform regulated
individuals of its actions and to educate them about
compliance issues. In addition, the Board provides
Sunset Factors
26
OFFICE OF THE AUDITOR GENERAL
consumers with accessible and accurate information
about licensed professionals by telephone or through
review of board files.
Notwithstanding the Board’s general efforts to operate in
the public interest, auditors identified two main ways in
which the public interest could be better protected.
Specifically:
n Increasing information provided to consumers—
Test calls made by the auditors, and a visit to review
information in person, showed that the Board readily
released information about licensure status and
complaints, including disciplinary actions. However,
the Board could do more to inform the public by
ensuring malpractice complaint adjudications more
accurately reflect its concerns. The Board should also
begin informing consumers about the nature of all
dismissed complaints as well as consent agreement
provisions (for further discussion see Finding II,
pages 13 through 14).
n Increasing consumer advocacy on the Board—A
legislative change increasing the Board’s public
membership so that it is closer to 50 percent could
potentially increase consumer advocacy on the Board.
Previous Auditor General reports recommend that
regulatory boards’ public membership be 50 percent.
Currently, the Board’s statutes require 27 percent
public membership. The Board consists of six licensed
dentists, two licensed dental hygienists, and three
public members. To increase public membership
closer to 50 percent, the Legislature would need to
amend A.R.S. §32-1203(A).
To increase the potential for public members to be ef-fective
consumer advocates, they must be selected
and trained for that purpose. As discussed in a previ-ous
Auditor General report on the health regulatory
system (see Report No. 95-13), public board members
should receive training on the importance of their
public protection role. Currently, through its Board
Sunset Factors
27
OFFICE OF THE AUDITOR GENERAL
Member Orientation and Procedures Manual and
initial orientation, the Board informs new members of
their role to protect the public. These efforts should
continue since the board member training available
through the Governor’s Office for Excellence in Gov-ernment
does not include information on the impor-tance
of the public protection role.
4. The extent to which rules adopted by the Board are
consistent with the legislative mandate.
The Board promulgates rules pursuant to A.R.S. §32-
1207(A) and (B). Although the Board has recently re-viewed
and updated its rules, according to the Gover-nor’s
Regulatory Review Council, some rules further de-fining
and clarifying some statutory requirements are
needed. Issues to be addressed include:
n Standards for determining whether postgraduate
training is equivalent to an approved dental resi-dency
training program;
n Standards the Board will use to determine discipli-nary
action;
n Standards the Board will use to determine whether
evidence of additional training completion is satis-factory
for denture technology applicants who have
failed two or more examinations;
n Standards the Board will use to determine whether to
inspect dispensing dentists’ practices;
n Fees to be charged for copying records and for the ju-risprudence
examination; and,
n Treatment and rehabilitation of licensees involved in
the monitored aftercare treatment program.
Sunset Factors
28
OFFICE OF THE AUDITOR GENERAL
5. The extent to which the Board has encouraged input
from the public before adopting its rules, and the ex-tent
to which it has informed the public as to its ac-tions
and their expected impact on the public.
According to Board staff, the Board has encouraged
public input in revising and developing its rules. To
assist it with developing and revising rules, the Board
has established a number of committees. The committees
include board members, association representatives, lay
members, and representatives from other state agencies,
as appropriate. The committee meetings are open to the
public and interested parties are given notice of the
meetings. The Board considers committee recom-mendations
during its regular meetings, and the public
also has an opportunity to comment on the rules at that
time.
In addition, the Board also complies with Open Meeting
Laws by appropriately posting meeting notices. Further,
the Board notifies complainants and licensees of board
meetings and actions.
6. The extent to which the Board has been able to in-vestigate
and resolve complaints that are within its
jurisdiction.
The Board has sufficient statutory authority and discipli-nary
options to investigate and adjudicate complaints.
The Board receives approximately 450 complaints each
year, most of which are against dentists. In adjudicating
these complaints, the Board has disciplinary options
ranging from dismissal or nondisciplinary letters of con-cern
to suspension or revocation. The Board may also
impose or require censure, probation, practice restric-tions,
continuing education, restitution, peer review, and
administrative penalties. In addition, statute also allows
the Board to mediate complaints that do not appear to
include dental incompetence, malpractice, or criminal
allegations. As discussed earlier in Sunset Factor 2 (see
pages 24 through 25), the Board appears to be generally
timely in processing complaints and does not appear to
have a backlog.
Sunset Factors
29
OFFICE OF THE AUDITOR GENERAL
7. The extent to which the attorney general or any other
applicable agency of state government has the
authority to prosecute actions under the enabling
legislation.
A.R.S. §32-1266 authorizes the Attorney General’s Office
to prosecute actions and represent the Board. The Board
currently has an intergovernmental service agreement
with the Attorney General’s Office for one full-time and
one part-time assistant attorneys general to advise the
Board and prosecute actions under the Board’s statutes.
In addition, the Board works with agencies such as the
Department of Public Safety and the federal Drug En-forcement
Agency to investigate cases involving criminal
allegations, such as abuse of prescription-writing privi-leges
and fraud.
8. The extent to which the Board has addressed defi-ciencies
in its enabling statutes which prevent it
from fulfilling its statutory mandate.
According to Board staff, numerous changes have been
made to agency statutes over the years. For example,
during the 1993 legislative session the Board received
authority to require graduates of nonaccredited schools
to receive additional schooling from an accredited pro-gram
and to successfully complete national board exams.
Additional changes required dentists to have success-fully
passed a clinical examination within the past five
years. Other changes included such things as requiring
dentists who administer semi-conscious and conscious
sedation to obtain a permit. During the 1995 legislative
session, statutes defining unprofessional conduct and re-cords
maintenance were expanded and licensure re-quirements
for dentists and dental hygienists were stan-dardized.
Other changes established an examination for
dental assistants who take x-rays and gave the Board the
authority to mediate complaints. During the 1996 legis-lative
session, statutory language was clarified pertaining
to issues such as restricted permits and subpoena
authority.
Sunset Factors
30
OFFICE OF THE AUDITOR GENERAL
9. The extent to which changes are necessary in the
laws of the Board to adequately comply with the fac-tors
listed in the Sunset review statute.
As discussed earlier in Sunset Factor 3 (see pages 25
through 27), the Legislature should consider modifying
A.R.S. §32-1203(A) to increase the number of public
members on the Board so that it is closer to 50 percent.
10. The extent to which termination of the Board would
significantly harm the public health, safety, or wel-fare.
Terminating the Board would significantly endanger the
public health, safety, and welfare. Health care providers
are typically viewed as experts, which makes the public
vulnerable. In addition, dentists generally operate with-out
much oversight from peer review. Consequently,
without state regulation establishing educational and
competency standards, the public could be subject to
untrained and unskilled dental practices. In addition, in-dividuals
who were physically or financially harmed
would have fewer avenues for obtaining relief. Cur-rently,
all 50 states, as well as the District of Columbia,
Puerto Rico, and the Virgin Islands, regulate dentistry.
11. The extent to which the level of regulation exercised
by the Board is appropriate and whether less or
more stringent levels of regulation would be appro-priate.
This audit found that the current level of regulation exer-cised
by the Dental Board is appropriate.
12. The extent to which the Board has used private con-tractors
in the performance of its duties and how ef-fective
use of private contractors could be accom-plished.
The Board currently uses private contractors for services
such as complaint investigation, mediation, and evalua-tion
of the participants in its Monitored Aftercare Treat-ment
Program. According to the Board’s Executive Di-rector,
use of contract personnel in these positions is cost-
Sunset Factors
31
OFFICE OF THE AUDITOR GENERAL
effective since the services are obtained on an as-needed
basis. These contracts appear to have been properly de-veloped
and awarded. However, the Board has exercised
its option to renew these contracts a number of times,
and has not obtained adequate justification for cost in-creases
it has awarded.
32
OFFICE OF THE AUDITOR GENERAL
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OFFICE OF THE AUDITOR GENERAL
Agency Response
OFFICE OF THE AUDITOR GENERAL
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MEMBERS OF THE BOARD
! Robert J. Price, D.D.S., President ! L. Nelson Butler III, D.D.S., Vice President ! Judith A. Scott, R.D.H. !
! Susan L. Black, R.D.H. ! Bernice C. Roberts ! Charles D. Broadbent, D.D.S. ! Ruth O'Neil Brownell !
! Robert L. Donaldson, D.D.S. ! Jerry P. Sparks, D.D.S. ! David R. Davenport, D.D.S. !
! Joy W. Carter ! Julie N. Chapko, Executive Director !
ARIZONA STATE BOARD OF DENTAL EXAMINERS
5060 North 19th Avenue, Suite 406 ! Phoenix, Arizona 85015-3214
Telephone (602) 242-1492 ! Fax (602) 242-1445
Jane Dee Hull, Governor
August 16, 1999
Ms. Debbie Davenport
Acting Auditor General
2910 North 44th Street, Suite 410
Phoenix, AZ 85018
RE: Arizona State Board of Dental Examiners'
Response to the Auditor General
Dear Ms. Davenport:
This is in response to your revised preliminary report dated August 13, 1999. The Board reviewed the two Findings
and subsequent recommendations as well as the Sunset Factors at their August 6, 1999 Board Meeting.
It was noted in your letter that the Joint Legislative Audit Committee now requires a written explanation of the status
of all recommendations within six months. The Board will comply with this request no later than the end of February
2000.
Enclosed is the Board's written response to be included in the published report. As indicated in the written comments,
the findings of the Auditor General are agreed to and the audit recommendations will be implemented.
Sincerely,
Robert J. Price, DDS Julie N. Chapko
President of the Board Executive Director
Encl
1
ARIZONA STATE
BOARD OF DENTAL EXAMINERS
Response to the
Auditor General’s Preliminary Report
FINDING 1: The Board should improve its monitoring efforts.
The Auditor General recommends that:
1. The Board needs to ensure that data such as due dates and completion
dates are consistently and accurately entered into tracking fields to
facilitate monitoring and enforcement efforts.
2. The Board needs to establish and implement a schedule for running,
reviewing, and acting on management reports to ensure instances of
noncompliance are identified and necessary follow-up is performed in a
timely manner.
BODEX response:
The Board agrees with the Auditor General’s two recommendations involving
monitoring efforts and has begun to implement them in the following way:
1. It should be noted that many of the inconsistencies have occurred because
consent agreements have been prepared by the Attorney General’s Office,
and therefore the terms of the Agreements were not entered into the
database. The Board believes it is only fair to consider the total number of
cases that have been monitored over the last five fiscal years:
TYPE FY 95 FY 96 FY 97 FY 98 FY 99 TOTAL
Sanction 125 68 55 68 63 379
CA (D)1 13 10 16 14 14 67
CA (ND)2 0 1 12 16 33 62
GRAND TOTAL 508
1 Consent Agreements that are disciplinary as a result of a violation of the
Dental Practice Act.
2 Consent Agreements that are non-disciplinary but generally require some
type of compliance.
Monitoring is a monumental task for an agency this size especially when
you consider the fact that the period of enforcement overlaps from year to
2
year. We began to address this problem over a year ago. A “tracking
table” was devised but in spite of this early effort, a few fell through the
cracks mainly due to a turnover in staff.
At this point in time, an intensive review has been done, staff
responsibilities clearly designated, and a comprehensive effort has been
made to update this pertinent information in the database. Those
agreements that are currently under “enforcement” and are still being
monitored have had the terms of the agreement, due dates, completion
dates if applicable, and findings of fact entered into the database. The
“standard” terms of the agreements for the Monitored Aftercare Treatment
Program have been programmed into the database so that those may be
created in this office.
For those agreements in which the terms have been met, pertinent
information has been added in the database stating the terms have been
met, the date and the case is closed.
Improvements in this area will continue to be taken very seriously by this
Board. Every effort will be made to appropriately monitor all cases.
2. The Board agrees the long established management tracking report system
should be better utilized. Effective immediately, reports will be run the
first week of each month for appropriate follow-up.
FINDING 2: The Board could better serve the Public through improved handling
of Consent Agreements and Malpractice Cases
The Auditor General recommends that:
1. When the Board uses Consent Agreements to resolve complaints that
appear to involve statutory violations, the Board should report the
provisions of the Consent Agreement to the public.
2. The Board needs to ensure that it adjudicates malpractice cases solely on
their merits and without regard to whether the case has been reported to
the National Practitioner Data Bank.
BODEX response:
The Board agrees with the Auditor General’s two recommendations involving
better serving the public through the handling of Consent Agreements and
Malpractice Cases and has begun to implement them in the following way:
1. In an effort to provide the public with accurate information on consent
agreements, the provisions agreed to by the licensee will be entered into
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the database as outlined above. For clarification, this would include
restitution or voluntary payment, continuing education whether voluntary
or not, community service, etc.
The Board in good faith initiated the use of non-disciplinary Consent
Agreements. The rationale behind this approach was twofold: (1) The
dentist would take responsibility for his or her actions; and (2) often the
result would be appropriate remuneration to the complainant in a more
timely manner. Another frequently imposed condition of a consent
agreement was completion of continuing education in a subject matter
related to the case. An element of every consent agreement has been that
the dentist would not take the Board to Superior Court, which prolongs
payment to the patient and is costly to the Board.
To ensure the public is protected:
• The Board now considers previous cases reflecting similar
allegations prior to final adjudication on a more consistent basis.
• The Board will establish broad categories which will allow the
public to know the nature of a complaint (i.e., “quality of care,”
“billing irregularities,” “non-compliance,” “substance abuse,” etc.)
2. The Board will be better educated that malpractice cases must be
adjudicated without regard to whether the case has been reported to the
National Practitioner Databank. The Board understands their
responsibility in protecting the public. As an explanation of the Board’s
past practice, this has always been argued before the Board as an issue of
due process and double jeopardy – in fact, the Board took into
consideration the opinions of several past Lay Members who supported
this interpretation. It should be noted that these individuals were
practicing attorneys.
SUNSET FACTORS TO ADDRESS:
1. The objective and purpose in establishing the Board.
No response necessary.
2. The effectiveness with which the Board has met its objective and
purpose and the efficiency with which it has operated.
» Compliance monitoring – addressed in Finding 1.
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3. The extent to which the Board has operated within the public interest.
» The Board should also begin informing consumers about the nature of all
dismissed complaints as well as consent agreement provisions.
For clarification, staff is trained to inform the public they may come to the
Board office and review the administrative (or public) files of licensees
which includes Board Orders, Letters of Concern, and/or Consent
Agreements. As far as Dismissed Complaints are concerned, potentially,
this is a burdensome requirement in light of the tremendous telephone
inquiries received on a daily basis. However, as previously stated in
Finding II, the Board will establish broad categories which would allow
the public to know that a complaint was regarding a “quality of care”
issue, a “billing irregularity,” “non-compliance,” “drug or alcohol abuse,”
etc. It would not be appropriate to outline the allegations that were
ultimately dismissed. Broad categories would minimize the potential
agency liability arising from an inaccurate description or summary of the
charges.
» Increasing consumer advocacy on the Board
It is suggested in the audit report that the membership of the Boards be
closer to 50 percent.
The Board relies on and respects the opinions of lay members, their role
is very important. Consequently, lay members serve on Investigative
Interview panels, Informal Interview panels, and Board Committees.
However, dental expertise is required to understand the details involving
the majority of complaints received by this Board which includes the
ability to establish sound findings of fact based on patient records,
treatment planning, charting, testimony, and x-rays. Increasing the public
membership closer to 50 percent would not necessarily make the Board
more efficient or better protect the public. National studies regarding
greater lay membership on health regulatory boards do not conclusively
indicate that greater lay representation automatically transfers to greater or
better disciplinary action against licensees (Health Letter, The Public
Citizen Health Research Group, May 1995, page 9.)
It is important to note that it was reported in both 1994 and 1995 in the
American Association of Dental Examiners Composite, that the Arizona
State Board of Dental Examiners took more disciplinary action against
licensees than any other state dental board in the country.
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4. The extent to which rules adopted by the Board are consistent with the
legislative mandate.
» Standards for determining whether postgraduate training is equivalent to
an approved dental residency training program.
An approved dental residency training program is postgraduate training.
The two terms are synonymous. Postgraduate training includes two
general programs and the eight recognized specialty areas. The two
general programs are Advanced Education in General Dentistry
(community-based) and Advanced Education in General Practice
Residency Programs (hospital-based). There are three other areas of
postgraduate training available in oralfacial pain, anesthesiology, and
radiology that are not recognized specialties. Most recognized specialty
programs require a year of postgraduate training as a prerequisite. This
particular issue has not been a problem or concern to the Board. Also, the
Board does not issue specialty licenses.
» Standards the Board will use to determine disciplinary action.
The Board drafted disciplinary guidelines in response to 1995 Session
Law. They are included in the Board Members Orientation and
Procedures Manual. The Board is in the process of revamping them and
they will become a substantive policy.
» Standards the Board will use to determine whether evidence of additional
training completion is satisfactory for denture technology applicants who
have failed two or more examinations.
The Secretary of State repealed this section after the last 5-Year Rule
Review because the Board has a contract with the Western Regional
Examining Board (WREB), a nationally recognized testing agency, that
maintains dental and dental hygiene remediation policies.
At this time, the Board regulates 14 denturists that were certified in 1979.
Since that time, no new applicants have been certified mainly because
there are no schools of denture technology in the United States. When
necessary, the Board will amend the state contract with WREB to include
testing of denturists.
The official Candidates Guide for the exam states “Candidates are allowed
to take the exam three times. Upon the third failure WREB requires
remediation in all areas of deficiency prior to retaking the exam.” WREB
has specific remediation course requirements. To take the exam again, the
candidate must provide a “Dental Certification of Successful Completion
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of Remedial Education Requirements” signed, with school seal, by the
instruction. The “evidence” that the additional training was satisfactory
would be fulfilled by the result of the test.
One Board Member serves on the Board of Directors for WREB. One
dentist and one dental hygienist serve on their respective Examination
Review Committees, and all dentists and dental hygienists are examiners
throughout the country at WREB exams. Therefore, our Board takes its
responsibility of ensuring that its licensees satisfactorily meet the
requirements of remedial training very seriously.
» Standards the Board will use to determine whether to inspect dispensing
dentists’ practices.
The Board conducts inspections only if there is an allegation or violation
of the law. Inspections are conducted pursuant to statute (A.R.S. § 41-
1009) and the Board would then take appropriate action against a dentist
who had been issued a permit. The Board’s rules outline requirements
licensees must adhere to regarding Labeling and Dispensing, Storage and
Packaging, and Recordkeeping. The proper protocol for an on-site
inspection regarding dispensing is underway and will be approved by the
Board at the October 1, 1999 Board Meeting.
» Fees to be charged for copying records and for the jurisprudence
examination.
The Board has begun the process for establishing these fees in rule. A
Notice for Rule Making Docket Opening regarding fees was received by
the Secretary of State June 22, 1999. (Note: Repeal of the jurisprudence
exam fee was an oversight.)
» Treatment and rehabilitation of licensees involved in the monitored
aftercare treatment program.
The Board seeks the advice of an addictionologist on each individual. In
order to appropriately assess the best means of treatment, the Board relies
on the recommendation of the addictionologist. To ensure successful
compliance with the terms, an agreement is crafted on a case by case
basis.
State Procurement has recently awarded a new contract for the services of
an addictionologist. The overall program is assessed on an ongoing basis
to ensure adequate treatment and subsequent protection of the public.
An analysis of the Board’s program and its 20 participants was done for
the period of 1993 through 1998 including a questionnaire completed by
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all 20 participants. The major points of interest were: (1) the current rate
of successful programs was 90 percent; and (2) there had been two failures
due to relapse in which one license was revoked and the other was
voluntarily surrendered. It is the Board’s opinion that restricting this
program to the burdensome rules process could ultimately hamper changes
inherent in such an important, evolving program.
5. The extent to which the Board has encouraged input from the public
before adopting its rules, and the extent to which it has informed the
public as to its actions and their expected impact on the public.
No response necessary.
6. The extent to which the Board has been able to investigate and resole
complaints that are within it jurisdiction.
No response necessary.
7. The extent to which the attorney general or any other applicable agency
of state government has the authority to prosecute actions under the
enabling legislation.
No response necessary.
8. The extent to which the Board has addressed deficiencies in its enabling
statutes which prevent it from fulfilling its statutory mandate.
No response necessary.
9. The extent to which changes are necessary in the laws of the Board to
adequately comply with the factors listed in the Sunset review statute.
No response necessary.
10. The extent to which termination of the Board would significantly harm
the public health, safety, or welfare.
No response necessary.
11. The extent to which the level of regulation exercised by the Board is
appropriate and whether less or more stringent levels of regulation
would be appropriate.
No response necessary.
8
12. The extent to which the Board has used private contractors in the
performance of its duties and how effective use of private contractors
could be accomplished.
» The Board has exercised its option to renew these contracts a number of
times, and has not obtained adequate justification for cost increases it has
awarded.
Based on the fact that only those contracts awarded by the State
Procurement Office (SPO) on behalf of the Dental Board have included
renewal price increases, the Board has always considered those increases
during evaluation process. It should be noted that this philosophy has
been acceptable to SPO in the past and only recently, through the Auditor
General’s inquiry has a SPO representative indicated that additional
justification is required. It should also be noted that while SPO has
suggested further justification to the Auditors, SPO has not officially
communicated this position to the Board nor provided assistance through
suggested documentation, etc. Since it is the State Procurement Office
that awards each renewal, it is interesting that they have never questioned
the Board as to whether or not justification was received.
Other Performance Audit Reports Issued Within
the Last 12 Months
98-12 Arizona Universities’ Enrollment
98-13 Private Enterprise Review Board
98-14 Adult Services
98-15 Podiatry Board
98-16 Board of Medical Examiners
98-17 Department of Health Services—
Division of Assurance and Licensure
98-18 Governor’s Council on Develop-mental
Disabilities
98-19 Personnel Board
98-20 Department of Liquor
98-21 Department of Insurance
98-22 State Compensation Fund
99-1 Department of Administration,
Human Resources Division
99-2 Arizona Air Pollution Control
Commission
99-3 Home Health Care Regulation
99-4 Adult Probation
99-5 Department of Gaming
99-6 Department of Health Services—
Emergency Medical Services
99-7 Arizona Drug and Gang Policy
Council
99-8 Department of Water Resources
99-9 Department of Health Services—
Arizona State Hospital
99-10 Residential Utility Consumer
Office/Residential Utility
Consumer Board
99-11 Department of Economic Security—
Child Support Enforcement
99-12 Department of Health Services—
Division of Behavioral Health
Services
99-13 Board of Psychologist Examiners
99-14 Arizona Council for the Hearing
Impaired
Future Performance Audit Reports
Department of Building and Fire Safety
Department of Health Services—Tobacco Education and Prevention Program
Department of Health Services—Bureau of Epidemiology
and Disease Control Services