An evaluation of the State Dental Board complaint review process

              STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
AN EVALUATION
of the
STATE DENTAL BOARD
COMPLAINT REVIEW PROCESS
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81 - 4
DOUGLAS R. NORTON. CPA
AUDITOR GENERAL
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
February 17, 1981
Members of the Arizona L e g i s l a t u r e
The Honorable Bruce Babbitt, Governor
Members of the S t a t e Dental Board
Transmitted herewith is a report of the Auditor General, An Evaluation of
the S t a t e Dental Board, Complaint Review Process. This report is i n
response to the June 10, 1980, r e s o l u t i o n of t h e J o i n t L e g i s l a t i v e Budget
Committee.
The blue pages present a summary of t h e r e p o r t ; a response from the
Members of the S t a t e Dental Board is found on the yellow pages preceding
the appendix.
My s t a f f and I w i l l be pleased t o d i s c u s s or c l a r i f y items i n the report.
Respectfully submitted,
~ o u ~ l Ra. sN orton
Auditor General
S t a f f : Gerald A. Silva
Steve Wallace
Enclosure
LEGISLATIVE SERVICES WING SUITE 200 STATE CAPITOL PHOENIX. ARIZONA 85007 255- 4385
OFFICE OF THE AUDITOR GENERAL
AN EVALUATION OF THE
STATE DENTAL BOARD
COMPLAINT REVIEW PROCESS
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81- 4
TABLE OF CONTENTS
INTRODUCTION AND BACKGROUND
FINDING I
Since Auditor General Report No. 79- 11, the S t a t e
Dental Board has improved its complaint review process.
However, the Board still is not completely f u l f i l l i n g
its s t a t u t o r y r e s p o n s i b i l i t y t o p r o t e c t t h e c i t i z e n s
of Arizona from incompetent d e n t a l p r a c t i t i o n e r s , and
t h e r e is increased complainant d i s s a t i s f a c t i o n with
the Board's handling of complaints.
CONCLUSION
REC ONMENDATIONS
FINDING I1
S t a t u t o r y and other changes a r e needed t o improve
the Board's complaint review process.
CONCLUSION
RECOMMENDATIONS
WRITTEN EESPONSE TO THE AUDITOR GENERAL'S REPORT
Page
1
3
5
APPENDIX
SUMMARY
The Office of the Auditor General has evaluated the consumer complaint
process of t h e S t a t e Dental Board. The consumer complaint process was
reviewed previously i n Auditor General Report No. 79- 11, A Performance
Audit of the Arizona S t a t e Board of Dental Examiners.
During our review, we found t h a t t h e Board has improved its complaint
review process. We a l s o found, however, t h a t the Board still is not
completely f u l f i l l i n g its s t a t u t o r y r e s p o n s i b i l i t y t o p r o t e c t the c i t i z e n s
of Arizona from incompetent d e n t a l p r a c t i t i o n e r s , and t h e r e is increased
complainant d i s s a t i s f a c t i o n with the Board's handling of complaints;
Our review a l s o revealed t h a t s t a t u t o r y and other changes a r e needed t o
improve the complaint review process of the S t a t e Dental Board.
It is recommended t h a t :
1. The Board formally adopt the complaint review process guidelines
manual a f t e r amending it as follows:
- Require lay member p a r t i c i p a t i o n a t complainant interviews.
- Change the recommended sanctions so they w i l l be i n conformity
with the s t a t u t e s .
- Allow complainants t o appear before the Board when it renders a
decision on a complaint.
- Inform complainants of rehearings granted i n decisions rendered
on complaints.
2. The Board i n v e s t i g a t e and resolve a l l complaints i n compliance with
its own policy, the s t a t u t e s and the l e g a l opinions of t h e L e g i s l a t i v e
Council.
3. The Board inform the public of the Board's complaint review
r e s p o n s i b i l i t i e s and d i s c i p l i n a r y a c t i o n s through the use of press
r e l e a s e s , public s e r v i c e announcements, public speaking engagements
and t e l e v i s i o n and radio coverage.
4. The Board p e r i o d i c a l l y follow up cases i n which persons request
complaint forms, y e t do not f i l e complaints with the Board. This
should be done t o determine the reasons complaints a r e not being f i l e d
so t h a t appropriate c o r r e c t i v e measures may be taken.
5. The L e g i s l a t u r e and Governor consider e s t a b l i s h i n g a Health
Occupations Council a s outlined by the Council of S t a t e Governments.
This a l t e r n a t i v e would apply t o a l l h e a l t h regulatory e n t i t i e s .
6. The Board consider compensating i n v e s t i g a t i o n committees with a
consultant fee.
7. The L e g i s l a t u r e consider the following s t a t u t o r y changes:
- Define d e n t a l incompetence i n A. R. S. $ 32- 1201, using $ 32- 1401.8
a s a guide.
- Include d e n t a l incompetence a s grounds f o r d i s c i p l i n a r y a c t i o n i n
A. R. S. 832- 1263.
- Define d i s c i p l i n a r y a c t i o n i n A. R. S. $ 32- 1201, using $ 32- 701.01.3
a s a guide, and amend $ 32- 1263.01. A accordingly.
- Give the Board s p e c i f i c a u t h o r i t y t o subpoena records by adopting
a s t a t u t e s i m i l a r t o A. R. S. $ 32- 743. E.
- Amend A. R. S. $ 32- 1263.02. C t o r e q u i r e a formal hearing i f a
l i c e n s e e r e f u s e s t o cooperate i n an informal hearing or
i n v e s t i g a t i o n .
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has evaluated the consumer complaint
processes and procedures of the S t a t e Dental Board i n response to a
June 10, 1980, r e s o l u t i o n of the J o i n t L e g i s l a t i v e Budget Committee. This
evaluation was prepared under the a u t h o r i t y vested i n the Auditor General
by Arizona Revised S t a t u t e s ( A. R. S.) 541- 1279 e t seq.
The consumer complaint process was reviewed previously i n Auditor General
Report No. 79- 11, A Performa~ ce Audit of the Arizona S t a t e Board of Dental
Examiners. That report noted t h a t the Board was not completely f u l f i l l i n g
its s t a t u t o r y r e s p o n s i b i l i t y to p r o t e c t the c i t i z e n s of Arizona from
incompetent d e n t a l p r a c t i t i o n e r s . The report a l s o noted t h a t the Board
needed t o i n c r e a s e p u b l i c awareness of its complaint review
r e s p o n s i b i l i t i e s and make s e v e r a l a d d i t i o n a l changes t o enhance its
complaint review process.
The o b j e c t i v e s of the evaluation were t o :
1. Determine i f the recommendations i n Report No. 79- 11 have been
implemented.
2. Determine i f the Board has implemented procedures t o improve its
complaint processes i n a d d i t i o n to those recommended i n Report
NO. 79- 11.
3. Determine what changes, i f any, a r e necessary f o r the Board to
improve its complaint review process.
The Office of the Auditor General expresses g r a t i t u d e to the members of
the S t a t e Dental Board and the Board's a d m i n i s t r a t i v e s t a f f f o r t h e i r
cooperation, a s s i s t a n c e and c o n s i d e r a t i o n during the course of the
evaluation.
FINDING I
SINCE AUDITOR GENERAL REPORT NO. 79- 11. THE STATE DENTAL BOARD HAS
IMPROVED ITS COMPLAINT REVIEW PROCESS. HOWEVER, THE BOARD STILL IS NOT
COT. TPLETELY FULFILLING ITS STATUTORY RESPONSIBILITY TO PROTECT THE CITIZENS
OF ARIZONA FROM INCOMPETENT DENTAL PRACTITIONERS. AND TI- IERE IS INCREASED
One of the major purposes of the S t a t e Dental Board ( ~ o a r d ) is t o p r o t e c t
the public a g a i n s t those who a r e not q u a l i f i e d to engage i n the p r a c t i c e
of d e n t i s t r y or its a u x i l i a r y f i e l d s . Since the Auditor General issued
Report No. 79- 11 i n September 1979, the Board has improved its complaint
i n v e s t i g a t i o n process, resolved complaints i n a more timely manner and
generally imposed more s t r i n g e n t p e n a l t i e s against d e n t a l p r a c t i t i o n e r s it
deemed t o have provided substandard d e n t a l care. However, our review
revealed t h a t , i n some cases, the Board did not: 1) adequately
i n v e s t i g a t e charges of d e n t a l p r a c t i t i o n e r s ' providing substandard c a r e ,
2) take appropriate a c t i o n when charges of substandard care were
s u b s t a n t i a t e d , or 3) adequately inform the public of its complaint review
process. I n a d d i t i o n , those persons who f i l e d complaints a g a i n s t d e n t a l
p r a c t i t i o n e r s with the Board i n 1980 were generally d i s s a t i s f i e d with the
Board's handling of t h e i r complaints.
It is the i n t e n t of the L e g i s l a t u r e t h a t the programs administered by the
Board f u l f i l l two o b j e c t i v e s :
1. Provide a l i c e n s i n g and regulatory process f o r d e n t a l c a r e
providers, and
2. Protect the public against those who a r e not q u a l i f i e d to engage
i n t h e p r a c t i c e of d e n t i s t r y and i t s a u x i l i a r y f i e l d s .
The Board's complaint review process is the main program designed to
p r o t e c t the public. Auditor General Report No. 79- 11 noted the following
d e f i c i e n c i e s i n the complaint review process:
1. The Board c o n s i s t e n t l y f a i l e d t o adequately d i s c i p l i n e d e n t i s t s when
a l l e g a t i o n s of substandard care have been s u b s t a n t i a t e d .
2. The Board c o n s i s t e n t l y f a i l e d to adequately i n v e s t i g a t e a l l e g a t i o n s of
substandard care.
' 3. The Board has f a i l e d to adequately inform the public of its complaint
review r e s p o n s i b i l i t i e s .
4. The Board has not adequately encouraged the public to f i l e complaints.
5. The Board has not adequately documented its i n v e s t i g a t i o n s and
subsequent d i s c i p l i n a r y a c t i o n s , and
6. The Board has not adequately u t i l i z e d the s e r v i c e s of the Attorney
General's o f f i c e .
Since Report No. 79- 11, the Board has improved its complaint i n v e s t i g a t i o n
process and generally imposed more s t r i n g e n t p e n a l t i e s against dental
p r a c t i t i o n e r s it deemed to have provided substandard d e n t a l care.
Improvements Made to t h e I n v e s t i g a t i o n Process
Report No. 79- 11 recommended t h a t the Board i n v e s t i g a t e consumer
complaints i n compliance with Arizona Revised S t a t u t e s . The Board has
taken the following s t e p s to improve the i n v e s t i g a t i o n process during 1980:
1. Prepared a manual f o r the complaint review process, which
o u t l i n e s the d u t i e s of the Board i n v e s t i g a t o r s and i n v e s t i g a t i o n
committees, procedures f o r processing complaints, guidelines f o r
conducting interviews, time l i m i t s , an appeal process and
recommended sanctions .
2. Appointed a lay member to each of the three original complaint
review committees and established four new complaint
investigation committees, each consisting of two dentists and one
lay member. Additional committees became necessary because the
volume of investigations became too time- consuming for the three
original committees.
3. Hired two dentists as part- time investigators and a full- time
clerical person to help administer the complaint review process.
While the investigators do very little actual complaint
investigation, as this duty still is vested with the complaint
investigation committees, they are responsible for preliminary
reviews of complaints, monitoring complaint progress to ensure
timeliness, preparing complaints for presentation at Board
meetings, following up disciplinary probations to ensure
compliance and conducting office interviews and audits as
required.
4. Held seminars with the complaint investigation committees to
standardize the complaint review process and to ensure that
investigations are conducted and documented properly.
In addition, effective in January 1981:
1. The Board established a policy that each complaint that comes
before the Board for resolution should note all previous
complaints against the licensee involved, how they were resolved
and sanctions imposed, if any.
2. The Governor appointed two more lay members to the Board in
accordance with legislation passed during the 1980 legislative
session. However, one of the lay members declined the
appointment.
While audit s t a f f was unable to assess the impact of the January 1981
changes, i t appears that 1980 improvements resulted i n b e t t e r
documentation of investigations than was evident during the preparation of II
Report No. 79- 11. In addition, our l a t e s t review indicated t h a t , i n
general, complaints were investigated adequately during 1980.
More Timely Resolution of Complaints
In April 1980, the Legislature passed a statutory amendment which s e t t i n e
l i m i t s on the Board's complaint review process. The s t a t u t e s now require
the Board to resolve complaints within 90 days, including 60 days for the
investigation or informal interview and 30 days for the Board to issue its ( I
preliminary findings. Our review indicated that while the Board does not
meet these time l i m i t s c o n s i s t e n t l y , it has improved its performance
considerably, as shown i n Table 1, which compares how long it took the
Board to resolve complaints of alleged substandard care it received during ( I
the f i r s t and second halves of 1980.
TABLE 1
COMPARISON OF ELAPSED TIME TO RESOLVE COMPLAINTS
ALLEGING SUBSTANDARD CARE DURING 1980
Period
January- June 1980
Number of Com~ laints Resolved
More Than
0- 90 Days 91- 120 Days 120 Days
July- December 1980 21 7 7
A s shown i n Table 1, the Board markedly improved the timeliness with which
9
it resolved complaints during the l a t t e r part of 1980. The Board's
improvement i n resolving complaints promptly also is indicated when the
age of unresolved complaints as of December 31, 1979 is compared t o t h e Q
age of those a t December 31, 1980, as shown i n Table 2.
Table 2
COMPARISON OF AGE OF UNRESOLVED COMPLAINTS
AS OF DECEMBER 31, 1979 AND DECEMBER 31, 1980
December 31, 1979
Number of Unresolved Complaints
0- 90 91- 120 More than
Days Days 120 Days Total
December 31, 1980 18 4 24 46
A s shown i n Table 2, the Board did make some progress i n 1980 toward
resolving long- outstanding complaints.
The improvements shown i n Tables 1 and 2 r e s u l t e d primarily from the
appointment of two part- time i n v e s t i g a t o r s , i n August and October 1980,
and a f u l l - t i m e s e c r e t a r y , i n October 1980, t o administer the complaint
review process. In a d d i t i o n , the ~ o a r d ' s chief i n v e s t i g a t o r appointed
i n v e s t i g a t i o n committee supervisors to monitor t i m e l i n e s s of
i n v e s t i g a t i o n s and he met with the committees during December 1980 t o
inform them of t h e i r r e s p o n s i b i l i t i e s . It should be noted t h a t the Board
a l s o has agreed to implement an Auditor General- recommended procedure to
maintain a card f i l e of complaints by date t h a t a c t i o n is necessary.
Nore S t r i n g e n t P e n a l t i e s
Since Report No. 79- 11, t h e Board has imposed more s t r i n g e n t p e n a l t i e s
against d e n t a l p r a c t i t i o n e r s deemed by t h e Board t o have provided
substandard care. Table 3 summarizes the p e n a l t i e s imposed by the Board
during 1978, 1979 and 1980.
TABLE 3
PENALTIES IMPOSED BY THE STATE DENTAL
BOARD I N 1978, 1979 AND 1980
Censure and License
Censure Probation Probation Suspension Total
A s shown i n Table 7, both the number and s e v e r i t y of p e n a l t i e s imposed by
the Board increased considerably i n 1980. Further, while most of the
p e n a l t i e s imposed i n 1978 and 1979 involved insurance fraud or ' 4
p r e s c r i p t i o n abuse on the p a r t of dental p r a c t i t i o n e r s , more than 85
percent of the 1980 p e n a l t i e s involved a l l e g a t i o n s of substandard dental
care.
I n our opinion, the information presented i n the preceding pages evidences
a concerted Board e f f o r t during 1980 to b e t t e r p r o t e c t t h e public from
incompetent dental p r a c t i t i o n e r s . However, it appears t h a t some
improvements still need to be made i n the areas of i n v e s t i g a t i o n s , 4
p e n a l t i e s and public information.
F a i l u r e to Adequately I n v e s t i g a t e
Allegations of Substandard Care 9
One of the conclusions reached during the previous performance audit of
the S t a t e Dental Board was t h a t the Board c o n s i s t e n t l y f a i l e d to
adequately i n v e s t i g a t e a l l e g a t i o n s of substandard care. While the Board
has taken various steps t o improve the i n v e s t i g a t i o n process, our review 4
revealed several recent instances of incomplete or inadequate
i n v e s t i g a t i o n s .
A review of complaints resolved i n 1980 disclosed nine incomplete or 4
inadequate i n v e s t i g a t i o n s . In most of t h e s e c a s e s the Board dismissed the
complaint without conducting a complete i n v e s t i g a t i o n i f the d e n t i s t
agreed to provide a refund o r r e s t i t u t i o n . Report No. 79- 11 s p e c i f i c a l l y
noted t h a t resolving cases i n such a manner is not i n compliance with the II
s t a t u t e s .
In a d d i t i o n , according t o a February 12, 1981,* L e g i s l a t i v e Council
memorandum:
" The board is s t a t u t o r i l y obligated to i n v e s t i g a t e the
v e r i f i e d complaint of any person which a l l e g e s
substandard care of a type covered under Arizona
Revised S t a t u t e s ( A. R. S.) 532- 1267, r e l a t i n g to grounds
f o r d i s c i p l i n a r y a c t i o n . It is only a f t e r the required
i n v e s t i g a t i v e process has been completed pursuant to an
informal interview o r the convening of a n i n v e s t i g a t i v e
committee and a recommendation has been forwarded to
the board t h a t the board may exercise d i s c r e t i o n with
respect to any v e r i f i e d complaint."
Further, L e g i s l a t i v e Council s t a t e s :
" Whether the licensee is w i l l i n g to make a refund or
not should have no bearing on a decision by the board
t o dismiss a complaint. A complaint should be
dismissed only upon a finding t h a t the evidence
submitted does not warrant l i c e n s e suspension or
revocation or any of the o t h e r s t a t u t o r i l y prescribed
l e s s severe d i s c i p l i n a r y sanctions."
The following complaints a r e examples of inadequate i n v e s t i g a t i o n .
Complaint No. 113- 79
The complaint alleged t h a t the d e n t i s t made two s e t s of dentures,
n e i t h e r of which f i t . An informal interview was held and the
committee determined t h a t the d e n t i s t had made a f u l l refund t o the
p a t i e n t . The committee did not examine the p a t i e n t to determine the
q u a l i t y of care. The Board voted i n March 1980 t o dismiss the
complaint. It should be noted t h a t the informal interview committee
included the following statement with t h e i r recommendation.
" The Committee, including myself, f e e l s uncomfortable
t h a t t h e p a t i e n t wasn't examined and t h a t t h e q u e s t i o n
of competency was never resolved. We unanimously hope
t h a t i n t h e f u t u r e , such complaints a s t h i s , t h i s
question w i l l not be l e f t hanging and t h a t a f i l e w i l l
not be closed merely because a f e e was returned."
* See Appendix f o r the f u l l t e x t of the memorandum.
Complaint No. 172- 80
The Board received a complaint i n September 1980 charging a d e n t i s t
with substandard denture c a r e . The d e n t i s t relined the dentures i n 1
March 1979, but a f t e r a s e r i e s of adjustments through October 1979,
the denture remained u n s a t i s f a c t o r y . The p a t i e n t continued t r y i n g to
wear the dentures u n t i l f i l i n g a complaint i n September 1980. The
p a t i e n t s t a t e d : I
" I can not wear my bottom dentures except t o e a t ( . ) I
am now having trouble with the bones i n my f a c e h u r t i n g
r e a l bad and having trouble keeping my upper dentures
i n ( . ) "
The complaint i n v e s t i g a t i o n committee never evaluated the
q u a l i t y of the dentures. When the d e n t i s t refunded the f e e s
f o r the denture the committee recommended dismissing the
case. The Board dismissed the case i n December 1980. It
should be noted t h a t the d e n t i s t had a s i m i l a r complaint
f i l e d against him e a r l i e r i n the year.
Complaint No. 73- 80
A p a t i e n t f i l e d a complaint with the Board i n April 1980
charging the d e n t i s t with substandard denture care. The
d e n t i s t made an upper p l a t e f o r t h e p a t i e n t i n January
1980. The p a t i e n t s t a t e d :
" In my opinion these dentures a r e a complete m i s f i t and
I have suffered not only pain, but mental s t r e s s and
a c t u a l hunger."
a
The complaint i n v e s t i g a t i o n committee examined the complainant on June 23,
1980, and reported:
" I t is obvious t h a t t h e r e a r e s t i l l problems with her
denture. h he d e n t i s t ) has offered a refund to her of
$ 200.00, and we f e e l t h a t it is f a i r . We f e e l the D r .
should refund the $ 200.00 which a f t e r done, the case
should be closed."
The Board voted to dismiss the case i n August 1980.
Lack of Disciplinary Action
One of the major d e f i c i e n c i e s i n the Board's complaint review process
noted i n Report No. 79- 11 was t h a t even when i n v e s t i g a t i o n s s u b s t a n t i a t e d
a l l e g a t i o n s of substandard c a r e , t h e Board took no d i s c i p l i n a r y a c t i o n .
Our review indicated t h a t the Board has continued t o dismiss complaints
when i n v e s t i g a t i o n s confirmed t h a t substandard care had occurred. We
found 23 complaints t h a t were resolved i n t h i s manner. The following
complaints are examples :
Complaint No. 163- 79
A November 1979 complaint alleged t h a t the d e n t i s t did a poor jo'c of
capping t h r e e t e e t h , which caused unbearable p a i n , redness, bleeding
and d i s c o l o r a t i o n . The complaint i n v e s t i g a t i o n committee examined the
complainant and s t a t e d :
" The open contacts ( a r e ) thought t o be the major source
of p a t i e n t discomfort due to food impaction and i n
i t s e l f the open contacts make the r e s t o r a t i o n
unacceptable. "
The d e n t i s t made a f u l l refund to the complainant and the Board voted t o
dismiss the complaint. It should be noted t h a t t h i s complaint w a s not the
only one f i l e d against t h i s d e n t i s t .
Complaint No. 37- 80
A February 1980 complaint a g a i n s t t h e same d e n t i s t alleged t h a t ,
d e s p i t e numerous adjustments, the dentures would not f i t . The
i n v e s t i g a t i v e committee found the following discrepancies:
" A. Post dam on upper denture too deep and sharp, c o n t r i b u t i n g
to t i s s u e inflammation and pain.
" B. The retromolar pad areas were not covered with lower denture
i n place.
" c. The border of the lower denture could have been perfected
more.
a
" D. There appeared to be a reaction between t h e d e n t u r e base and
the supporting t i s s u e t h a t could not be explained by
p r e s s u r e s p o t s . She perhaps is experiencing an a l l e r g i c
reaction to the denture base and/ or the voluminous amount of r)
adhesive she is using to s t a b i l i z e the lower denture."
The Board voted on Nay 31, 1980, to require the d e n t i s t to correct the
discrepancies a t no cost t o t h e p a t i e n t . A follow- up by the Board ( I
i n v e s t i g a t o r on December 9, 1980, determined t h a t t h e p a t i e n t ' s
denture s t i l l had not been corrected. It should be noted t h a t the
same d e n t i s t h a s a n o t h e r 1979 complaint pending a g a i n s t him, and
eventually was censured by the Board as the r e s u l t of y e t another 1980 4
complaint.
Complaint No. 135- 79
The complaint alleged t h a t , d e s p i t e numerous t r y - i n s , t h e denture a
would not f i t . The i n v e s t i g a t i v e committee found numerous
d e f i c i e n c i e s w i t h t h e denture and reported:
" I t appears ( t h e p a t i e n t ) made request t h a t were not
possible and t h a t ( t h e d e n t i s t ) attempted to meet her
f e l t need and i n doing so added too much bulk to buccal
flange ... The dentures a r e not acceptable."
The d e n t i s t refunded the f e e s and the Board voted i n July 1980 to a
dismiss the complaint. A s i m i l a r complaint was f i l e d a g a i n s t t h e same
d e n t i s t by another p a t i e n t i n August 1980.
Complaint No. 145- 80
The complaint alleged t h a t the dentures would not f i t and caused the
p a t i e n t ' s mouth to become sore. The i n v e s t i g a t i v e committee found
t h a t the denture d i d n o t meet standards of p r o f e s s i o n a l c a r e and
recommended censure and probation. The i n v e s t i g a t i v e committee II
changed its recommendation t o dismissal a f t e r interviewing the
d e n t i s t . They concluded the following:
ÿÿÿ he d e n t i s t ) seemed to f e e l t h a t ( t h e p a t i e n t ) has
adjusted h i s dentures himself a f t e r seeing him f o r
remake. There a r e d e f i c i e n c i e s i n the dentures but
these a r e t h i n g s t h a t t h e p a t i e n t requested i n an
attempt by ( t h e d e n t i s t ) t o make p a t i e n t happy. ÿÿ he
d e n t i s t ) has been more than reasonable i n h i s attempts
t o help t h i s p a t i e n t ."
The Board dismissed the complaint on December 12, 1980. It should be
noted t h a t the d e n t i s t has two more 1980 complaints pending against
him.
Complaint No. 94- 79
The complaint alleged t h a t t h e d e n t i s t made a s e t of dentures t h a t
were unusable d e s p i t e several adjustments . An informal interview held
i n February 1980 found t h a t the dentures were not adequate. The
d e n t i s t offered to refund the f e e s and the Board voted i n March 1980
t o dismiss the complaint upon v e r i f i c a t i o n of a refund. A s i m i l a r
complaint has been f i l e d a g a i n s t t h e same d e n t i s t .
Complaint No. 57- 79
The complaint alleged t h a t the d e n t i s t made a s e t of dentures t h a t a r e
" . . . t o t a l l y u s e l e s s , I c a n ' t even e a t with them and I want my money
back so I can get some t h a t fit." The i n v e s t i g a t i v e committee found a
number of d e f i c i e n c i e s i n the denture and recommended r e s t i t u t i o n and
continuing education f o r the d e n t i s t . On September 13, 1980, the
Board voted to censure the d e n t i s t , require r e s t i t u t i o n within 60 days
and require seven hours of continuing p r o f e s s i o n a l education within
s i x months. The d e n t i s t f i l e d a p e t i t i o n to reopen the case and the
Board voted on October 17, 1980, to deny the p e t i t i o n . After
interviewing the d e n t i s t on November 3, 1980, t h e i n v e s t i g a t i v e
committee changed its recommendation to dismissal and concluded:
" Denture a s it appears a t time of examination may
c o n s t i t u t e v i o l a t i o n of A. R. S. 32- 1201- 10- N -- however,
no opportunity t o a d j u s t o r remake the denture was
afforded t o ( t h e d e n t i s t ) and due t o t h i s f a c t and the
f a c t t h a t records supplied by ( t h e d e n t i s t ) i n d i c a t e an
o f f e r to remake denture or refund f e e ( 4- 13- 79) i n
f a c t , no v i o l a t i o n of s t a t u t e e x i s t s . "
The d e n t i s t appealed again and the Board voted on November 14, 1980,
t o once more deny the appeal. Then, on December 12, 1980, the Board
voted t o rescind t h e o r i g i n a l orders of September 1980 and to i s s u e
the following order:
" That within 30 days you send the p a t i e n t the f u l l
amount paid by the p a t i e n t f o r the denture a s per your
o f f e r on W April 1979 a s recorded i n your records; and
" That no f u r t h e r a c t i o n to be takec."
A t the Board meeting a t which the above a c t i o n was taken, a r e p r e s e n t a t i v e
from the Office of the Auditor General asked the Board how it could
require a d e n t i s t t o provide r e s t i t u t i o n y e t dismiss a complaint,
e s p e c i a l l y when substandard care is s u b s t a n t i a t e d .
It was the concensus of the Board t h a t its i n t e n t is to s a n c t i o n a d e n t i s t
i n a l l instances of substandard care. It a l s o is Board policy to censure
a d e n t i s t if r e s t i t u t i o n is required, as s t a t e d i n the s t a t u t e s . However,
the Board's a c t i o n on Complaint No. 57- 79 c o n t r a d i c t s t h a t policy.
Further, the Board took two o t h e r a c t i o n s a t the same meeting which
contradicted its s t a t e d policy.
Complaint No. 136- 80
The complaint alleged t h a t , d e s p i t e numerous t r i p s f o r adjustments,
the dentures s t i l l a r e i l l - f i t t i n g . They caused swollen gums, which
created a f i n a n c i a l hardship because of medical b i l l s to t r e a t the
swelling. The i n v e s t i g a t i v e committee found some d e f i c i e n c i e s i n the
denture and concluded t h a t the complaint was supported by evidence,
but was minor i n nature. The Board voted to dismiss the complaint and
suggested t h a t t h e p a t i e n t r e t u r n t o the d e n t i s t f o r necessary
c o r r e c t i o n s i n s p i t e of t h e f a c t t h a t : 1) the Board was aware t h a t
the p a t i e n t would not r e t u r n to t h a t d e n t i s t , and 2) the d e n t i s t
involved i n t h i s complaint had s i x other complaints f i l e d against him
over a 13- month period and was on probation at the time t h i s decision
was made.
Complaint No. 97- 80
The complaint alleged t h a t dentures made by the d e n t i s t d i d n o t f i t
properly. The complainant consulted a former d e n t i s t who allegedly
said t h a t work of such poor q u a l i t y did not warrant a second t r y . The
complaint i n v e s t i g a t i o n committee found major d e f i c i e n c i e s i n the
upper denture and minor d e f i c i e n c i e s i n the lower p a r t i a l denture and
concluded t h a t :
" P a r t i a l would be adequate with saddle extension.
Upper denture n o t a c c e p t a b l e or p r a c t i c a l l y
correctable."
The committee recommended t h a t the complaint be dismissed, based on
the following:
' 1 D r . recognized the e r r o r i n the denture and
offered to remake the denture but p a t i e n t did not
a f f o r d him a n o p p o r t u n i t y to do so; and
" 2.) no charge was every [ s i c ] made f o r the denture."
It should be noted t h a t the complainant had paid the d e n t i s t $ 291.
Thus the committee's recommendation was based p a r t i a l l y on i n c o r r e c t
information. The Board voted to dismiss the complaint.
Inappropriate D i s c i p l i n a r y Actions
Another recommendation i n Report No. 79- 11 was t h a t the Board resolve
complaints i n compliance with t h e s t a t u t e s . E f f e c t i v e J u l y 1980, the 4
Board has four s t a t u t o r y options regarding d i s c i p l i n a r y a c t i o n s :
1. Revocation of l i c e n s e ,
2. Suspension of l i c e n s e ,
3 z:. crx= e 2f 8~ szs- rcy hi-? rr, ey rec- irc res'; itl;% csy-, 2- 6
2
4. An order f i x i n g a period and terms of probation.
However, recommended sanctions i n the Board's complaint review process
guidelines manual do not conform with the s t a t u t e s . The sanctions 4
recommended i n the manual are:
" A. L e t t e r of Admonishment: The use of the
admonishment form of l e t t e r s h a l l be i n an
instance where evidence tends t o support
a l l e g a t i o n s made by the p a t i e n t but s a i d problems
are minor i n nature and the g r e a t e r problem might
be i n communications. It is a form of expressing
a warning or disapproval i n a g e n t l e way.
" B. L e t t e r of Censure: The use of the censure form of
l e t t e r s h a l l be i n an instance where evidence
tends to support a l l e g a t i o n s made by t h e p a t i e n t
although not s e r i o u s i n nature, the l i c e n s e e has
made l i t t l e e f f o r t to resolve the problem or does
not recognize the problem as being of h i s / h e r
making.
" C . Recommendation of Censure: The use of censure
with r e s t i t u t i o n and/ or probation with other terms
is a formalized finding or judgment of g u i l t y of
a l l e g a t i o n s made i n the complaint. The
a l l e g a t i o n s a r e serious i n nature and are
supported by evidence but a r e not s e r i o u s to the
point where i n the opinion of the reviewing
members t h a t it would require suspension or
revocation of l i c e n s e
" 1. Term of r e s t i t u t i o n may be required with
censure
" a) If r e s t i t u t i o n is recommended, s t a t e the
amount and time l i m i t of s i x t y days
maximum.
" 2. Terms of probation may be required i n
conjunction with the formal censure and may
be used to:
" a ) R e h a b i l i t a t e
" b) Set a probationary time period within
which the licensee is subject to
review. Options are:
" 1) Continuing education ( i n multiple
of seven hours)
" 2) Office procedure and treatment
review
" 3) Reviews of l i t e r a t u r e , e t c .
" D. Recommended Formal Hearing: A recommendation of a
formal hearing is made only when, i n the opinion
of the reviewing panel, t h e v i o l a t i o n is of such a
s e r i o u s nature t h a t a s a n c t i o n of suspension or
revocation is warranted."
Following its own manual g u i d e l i n e s , the Board has taken t e n d i s c i p l i n a r y
a c t i o n s during 1980 t h a t a r e not within its s t a t u t o r y a u t h o r i t y .
The Board h a s i s s u e d orders of admonishment or reprimand i n conjunction
with various orders f o r r e s t i t u t i o n or refund. According t o a L e g i s l a t i v e
Council memorandum dated February 12, 1981," the Board does not have
a u t h o r i t y t o sanction l i c e n s e e s i n t h i s manner. The memorandum s t a t e s :
" The board does not have any e x p l i c i t o r i m p l i c i t
s t a t u t o r y a u t h o r i t y t o admonish a d e n t i s t and require
t h a t r e s t i t u t i o n o r a refund be made t o t h e
complainant. The board's a u t h o r i t y following
completion of the required i n v e s t i g a t i o n of any
v e r i f i e d complaint pursuant to A. R. S. s e c t i o n
32- 1263.02 is limited to the i n s t i t u t i o n of proceedings
to suspend or revoke t h e l i c e n s e , dismiss the complaint
or i s s u e a decree of censure or probation a g a i n s t t h e
licensee.
" See Appendix f o r the f u l l t e x t of the memorandum.
19
The Board Has Not Actively Informed
The Public Of Its Com~ laint Review
R e s p o n s i b i l i t i e s O r Its D i s c i p l i n a r y Actions
Report No. 79- 11 concluded t h a t the Board had f a i l e d to adequately inform
t h e p u b l i c of its complaint review r e s p o n s i b i l i t i e s . It was recommended
t h a t the Board inform t h e p u b l i c of the Board's oversight r e s p o n s i b i l i t i e s
and the r e s u l t s of its d i s c i p l i n a r y a c t i o n s . The Board's only ongoing
attempt to publicize i t s complaint review process and d i s c i p l i n a r y actions
is t o list d i s c i p l i n a r y a c t i o n s i n its newsletter. It should be noted
t h a t t h e newsletter is d i s t r i b u t e d primarily t o d e n t a l p r a c t i t i o n e r s , not
the news media or the g e n e r a l p u b l i c .
The Department of Insurance has a c t i v e l y publicized i t s complaint services
through t e l e v i s i o n and radio coverage, press r e l e a s e s and public speaking
engagements. A s a r e s u l t , public awareness of the Department's complaint
process increased considerably.
The Auditor General a l s o recommended i n Report No. 79- 11 t h a t the Board
p e r i o d i c a l l y follow up cases i n which persons request a complaint form but
do not f i l e complaints with the Board. Since Report No. 79- 11 was
published, the Board has discontinued maintaining a log of complaint forms
requested, precluding implementation o f t h e recommendation regarding
followup.
Complainant D i s s a t i s f a c t i o n with the
Board's Handling of Complaints Has Increased
An Auditor General survey of complainants involved i n 1979 and 1980
complaints revealed t h a t complainant d i s s a t i s f a c t i o n with Board decisions
increased considerably from 1979 to 1980. More than 60 percent of the
1979 complainants responded t h a t the Board decision was f a i r and
i m p a r t i a l , while barely one- fourth of the 1980 complainants s a i d t h e Board
decision was f a i r . I n a d d i t i o n , the percentage of complainants who
replied t h a t the Board's i n v e s t i g a t i o n s were conducted thoroughly, f a i r l y
and i m p a r t i a l l y declined from 54 percent i n 1979 to 46 percent i n 1980,
while the percentage of d e n t i s t s who claimed i n v e s t i g a t i o n s were thorough,
f a i r and i m p a r t i a l increased from 80 to 84 percent.
One factor that caused considerable complainant dissatisfaction with the
Board's handling of complaints was a policy the Board adopted in mid- 1980
disallowing complainants verbal input at Board meeting. It was the
concensus of the Board that the complainants should provide their input
before the complaint comes before the Board for resolution and not during
the meeting when the complaint is deliberated.
An additional cause of complainant dissatisfaction is that committee lay
members often are not present during the complainant interview. The
Board's complaint review process guidelines manual requires the lay member
to be present when licensees are interviewed, but is less specific about
lay member attendance when a complainant is interviewed.
AS a result, many complainants perceive a bias in favor of the licensee
when complaints are investigated and resolved. This perception was
evidenced in comments made by complainants responding to our survey. The
following complainant comments are examples.
" There is a basic conflict of interest built into this
Board and its ancillary investigative committees."
" Altho ( sic) I feel I submitted a comprehensive letter
of details, it is very evident the interviewers & later
the board, believed statements made by the Dentist, but
gave far too little credence to my statements of
complaint."
" Impartial that is a joke: dentist [ sic] covering up
for other dentist."
" As the 2 persons who conducted the investigation were
themselves dentist ( s) and aquaintances of ( the treating
dentist) I felt there was prejudice."
" The dentists who made the dental examination stated in
front of a witness that the dentures were not made
right but evidently in their report to the board
changed their mind in favor of the practitioner."
Our review of the Board's complaint process revealed t h a t accusations of
Board bias i n favor of l i c e n s e e s may have some b a s i s i n f a c t , p a r t i c u l a r l y
with regard t o Board decisions on p e t i t i o n s f o r rehearing or review.
TABLE 4
COMPARISON OF BOARD ACTION ON
COMPLAINANT AND LICENSEE PETITIONS FOR
REHEARING OR REVIEW DURING 1980
Decisions Rendered
On Rehearings
Changed Changed
P e t i t i o n i n Favor i n Favor
Filed Number of Number Percentage o f o f Not
4
BY P e t i t i o n s Granted Granted Licensee Complainant Changed
Complainant 20 5 25% 0 0 2
Licensee 14 9 64% 4* 0 2
A s shown i n Table 4 the Board granted only one- fourth of complainant
p e t i t i o n s f o r rehearing or review, but almost two- thirds of licensee
p e t i t i o n s . Further, as of December 31, 1980, none of the granted
complainant rehearings r e s u l t e d i n a decision r e v e r s a l i n favor of the
complainant, while two- thirds of the licensee rehearings r e s u l t e d i n a
decision r e v e r s a l i n favor of the licensee. The following case is one of
the rehearings t h a t r e s u l t e d i n a decision r e v e r s a l i n favor of a l i c e n s e e .
Com~ laint No. 64- 80
The complaint alleged t h a t the d e n t i s t s t a r t e d an involved
reconstruction treatment plan and abandoned it l e s s than one month
a f t e r placing temporary crowns. The i n v e s t i g a t i v e committee found
t h a t the d e n t i s t abandoned t h e p a t i e n t through the use of a general
p a t i e n t r e l e a s e . In a d d i t i o n , t h e p a t i e n t was obviously upset by the
whole s i t u a t i o n . The committee made the following recommendations:
* In two of these four cases the Board voted o r i g i n a l l y t o deny the
p e t i t i o n f o r rehearing. The Board subsequently granted a rehearing
and reversed its e a r l i e r decision.
" I. P a t i e n t is i n desperate need t o have the treatment t h a t
was s t a r t e d by ( t h e d e n t i s t ) finished by a q u a l i f i e d
d e n t i s t .
" 11. It is the opinion of the committee t h a t organized
d e n t i s t r y has an o b l i g a t i o n t o a s s i s t t h i s lady i n the
completion of her treatment.
" 111. The p a t i e n t paid $ 2,547.50 down before treatment. h he
d e n t i s t ) refunded $ 847.50. h he d e n t i s t ) has r e t a i n e d a
balance of $ 1,700.0~. The p a t i e n t has only temporary
crowns a t t h i s time. It is the opinion of the committee
t h a t it is ( t h e d e n t i s t ' s ) o b l i g a t i o n as a p r o f e s s i o n a l t o
e i t h e r complete the case s a t i s f a c t o r i l y f o r the t o t a l f e e
of the o r i g i n a l estimate or t o make arrangements with
someone q u a l i f i e d i n r e c o n s t r u c t i o n of a p a t i e n t s u f f e r i n g
from cranio- manibular dysfunction. Should ( t h e d e n t i s t )
choose not t o s a t i s f a c t o r i l y complete t h e c a s e himself i t
is the committee's opinion t h a t any c o s t s the p a t i e n t
incurs i n excess of $ 2,890.00 ($ 4,590 l e s s the $ 1,700 he
r e t a i n e d ) must be born( e) by him."
On August 3, 1980, the Board voted t o ( 1) censure the d e n t i s t ,
( 2) place him on probation u n t i l the case is s a t i s f a c t o r i l y completed
and ( 3) require him t o complete the case f o r not more than $ 4,590 o r
to pay a l l expenses i f he r e f e r s t h e p a t i e n t to another d e n t i s t . The
licensee appealed the Board's decision and, on October 17, 1980, the
Board denied the d e n t i s t ' s p e t i t i o n f o r rehearing. The d e n t i s t
appealed once more and the Board voted i n November 1980 to reopen the
case and conduct an informal interview. The informal interview was
held on December 6, 1980, and the committee concluded t h a t there had
been no v i o l a t i o n of s t a t u t e . The Board voted on December 12, 1980,
to rescind its order of August 1980 and impose the following:
" That the complaint be dismissed and a l e t t e r of
admonishment be sent t o ( t h e d e n t i s t ) r e f e r r i n g
s p e c i f i c a l l y t o t h e manner of dismissing p a t i e n t s with
followup r e f e r r a l t o subsequent t r e a t i n g d e n t i s t . "
It should be noted t h a t the complainant did not l e a r n of the reopening of
the case and the informal interview u n t i l a f t e r the interview w a s held.
I n a d d i t i o n , the complainant did not l e a r n t h a t the Board would make a
decision on her complaint a t its December board meeting u n t i l a f t e r the
meeting.
A Health Occupations Council as an
A l t e r n a t i v e To Individual
Regulatory Bodies
A Council of S t a t e Governments* p u b l i c a t i o n e n t i t l e d , S t a t e Regulatory
P o l i c i e s - Dentistry and the Health P r o f e s s i o n s , c o n t a i n s a d e s c r i p t i o n of
a model law c r e a t i n g a S t a t e Health Occupations Council. Composed of one
r e p r e s e n t a t i v e from each h e a l t h area subject t o r e g u l a t i o n through the law
and a t l e a s t one- third membership representing the general public, the
Council is authorized to review and coordinate l i c e n s i n g boards
r e g u l a t i o n s , e s t a b l i s h d i s c i p l i n e and enforcement procedures, and resolve
scope of p r a c t i c e questions. Such a Council would a l s o coordinate c e r t a i n
functions c u r r e n t l y performed by i n d i v i d u a l l i c e n s i n g boards by
c e n t r a l i z i n g budgeting, s t a f f i n g , i n v e s t i g a t i o n s and p r o f e s s i o n a l
d i s c i p l i n e .
The major purpose of such a Council is, according t o the Council of S t a t e
Governments, to maintain the perspective of public i n t e r e s t i n the
r e g u l a t i o n of professions and occupations:
" H i s t o r i c a l l y , once l i c e n s e d , t h e groups tended to be
regulated by autonomous boards composed primarily of
r e p r e s e n t a t i v e s from the profession. Many have f e l t
t h a t such a system dominated by p r a c t i t i o n e r s w i l l
primarily p r o t e c t the i n t e r e s t s of the i n d i v i d u a l
p r o f e s s i o n a l groups r a t h e r than those of the consumer.
S t a t e policymakers often have been f r u s t r a t e d i n t h e i r
attempts t o ensure t h a t t h e l i c e n s u r e and regulatory
p r o c e s s t a k e s i n t o consideration broad public policy
i s s u e s such a s c o s t s , a v a i l a b i l i t y of s e r v i c e s , and
fragmentation of h e a l t h c a r e d e l i v e r y . " ( ~ m p h a s i s
added)
* The Council of S t a t e Governments is a j o i n t agency of a l l the s t a t e
governments - c r e a t e d , supported and d i r e c t e d by them. It conducts
research on s t a t e programs and problems; maintains an information
s e r v i c e a v a i l a b l e to s t a t e agencies, o f f i c i a l s , and l e g i s l a t o r s ;
i s s u e s a v a r i e t y of p u b l i c a t i o n s ; a s s i s t s i n state- Federal l i a i s o n ;
promotes regional and s t a t e - l o c a l cooperation; and provides s t a f f f o r
a f f i l i a t e d organizations.
CONCLUSION
Improvements made i n the Board's complaint review process during 1980 have
r e s u l t e d i n b e t t e r documentation of i n v e s t i g a t i o n s , more complete
i n v e s t i g a t i o n s g e n e r a l l y , quicker r e s o l u t i o n of complaints and more
s t r i n g e n t p e n a l t i e s f o r those deemed t o have provided substandard care.
However, i n some cases, the Board s t i l l does not conduct adequate
i n v e s t i g a t i o n s or t a k e a p p r o p r i a t e a c t i o n when substandard care is
s u b s t a n t i a t e d . Further, the Board h a s n o t a c t i v e l y informed the public of
its complaint review r e s p o n s i b i l i t i e s or its d i s c i p l i n a r y a c t i o n s o r taken
s t e p s to encourage the public t o f i l e complaints. In a d d i t i o n , those
persons who f i l e d complaints against d e n t a l p r a c t i t i o n e r s with the Board
i n 1980 generally were d i s s a t i s f i e d with the Board's handling of t h e i r
complaints.
RECOMMENDATIONS
It is recommended t h a t :
1. The Board formally adopt the complaint review process guidelines
manual a f t e r amending it a s follows:
- Require lay member p a r t i c i p a t i o n a t complainant interviews.
- Change the recommended sanctions so they w i l l be i n
conformity with the s t a t u t e s .
- Allow complainants to appear before the Board when it
renders a decision on a complaint.
- Inform complainants of rehearings granted i n decisions
rendered on complaints.
2. The Board i n v e s t i g a t e and resolve a l l complaints i n compliance
with its own policy, the s t a t u t e s and the l e g a l opinions of the
L e g i s l a t i v e Council.
3. The Board inform the public of the Board's complaint review
responsibilities and disciplinary actions through the use of
press releases, public service announcements, public speaking
engagements and television and radio coverage.
4. The Board periodically follow up cases in which persons request
complaint forms, yet do not file complaints with the Board. This
should be done to determine the reasons complaints are not being
filed so that appropriate corrective measures may be taken.
5. The Legislature and Governor consider establishing a Health
Occupations Council as outlined by the Council of State
Governments. This alternative would apply to all health
regulatory entities.
FINDING I1
STATUTORY AND OTHER CHANGES ARE NEEDED TO IMPROVE THE BOARD'S COMPLAINT
REVIEW PROCESS.
Since the issuance of Report No. 79- 11 i n September 1979, s e v e r a l
s t a t u t o r y and other changes have been implemented r e l a t i v e t o t h e S t a t e
Dental Board. However, our review i n d i c a t e s t h a t a d d i t i o n a l changes
should be considered:
1. Compensation f o r i n v e s t i g a t i v e committee members, and
2. S t a t u t o r y changes i n the following areas:
- Grounds f o r d i s c i p l i n a r y a c t i o n s ;
- Types of d i s c i p l i n a r y a c t i o n ;
- Adding s p e c i f i c a u t h o r i t y t o subpoena records;
- Authority to take f u r t h e r a c t i o n i f l i c e n s e e s do not
cooperate.
COMPENSATION FOR INVESTIGATIVE COMMITTEE MEMBERS
A s noted on page 7, during 1980 the Board increased the number of its
i n v e s t i g a t i v e committees from t h r e e to seven. These committees are
comprised of two d e n t i s t s and one lay member each, and conduct interviews
and i n v e s t i g a t i o n s f o r the Board.
During 1980 the workload of the committees increased t o the point t h a t
some members were spending a s many a s 15 hours a month on Board business.
P a r t i c i p a t i o n on these committees is completely voluntary and, a s a
r e s u l t , the Board encounters d i f f i c u l t y i n obtaining and r e t a i n i n g
committee members.
Arizona's Board of Medical Examiners ( BOMEX) also uses consultants for
assistance in its complaint review process. However, participants on
BOMEX committees are paid at the rate of $ 100 a day. If the Board were to
pay participants on its investigative committees at a rate comparable to
BOMEX' , it would cost the Board approximately $ 40,000 a year.
The Board currently has ample funds to compensate members of its •
investigative committees and would have an additional source of funding if
it had the authority to impose administrative fines. ( page 29)
STATUTORY CHANGES ( I
Problems encountered by the Board during 1980 indicate that certain
statutory changes are needed.
Grounds For Disciplinary Action a
A. R. S. 572- 1263 should be amended to include dental incompetence as
grounds for disciplinary action. In addition, dental incompetence should
be defined similarly to medical incompetence in A. R. S. $ 32- 1401.8, which
states:
"' Medically incompetent' means lacking in sufficient
medical knowledge or skills or both, in that field of
practice in which the physician concerned engages, to a
degree likely to endanger the health of his patients."
Such statutory definition is necessary to guard against dentists
practicing in specialty fields, such as orthodontics, without proper
training.
Types of Disciplinary Action
The types of disciplinary action outlined in A. R. S $ 32- 1263.01. A do not
give the Board sufficient leeway to take appropriate action in all cases. a
A definition of disciplinary action similar to that in the Accountancy
Board statutes, $ 32- 701.01.3, should be adopted in State Dental Board
statutes. A. R. S. $ 32- 701.01.3 states:
" 3. ' D i s c i p l i n a r y a c t i o n ' means any other regulatory
sanctions imposed by the board i n combination with, or
as an a l t e r n a t i v e t o , revocation or suspension of a
c e r t i f i c a t e o r r e g i s t r a t i o n , which may include:
" ( a ) Imposition of an a d m i n i s t r a t i v e penalty i n an
amount not to exceed two thousand d o l l a r s f o r each
v i o l a t i o n of t h i s chapter or r e g u l a t i o n s promulgated
thereunder.
"( b) Imposition of r e s t r i c t i o n s on the scope of
r e g i s t r a n t s ' accounting p r a c t i c e , i n c l u d i n g , without
l i m i t a t i o n , r e s t r i c t i o n of a u d i t or a t t e s t function
p r a c t i c e , r e s t r i c t i o n of t a x p r a c t i c e , or r e s t r i c t i o n
of mangement advisory p r a c t i c e .
" ( c ) Imposition of peer review and p r o f e s s i o n a l
education requirements.
" ( d) Imposition of probation requirements best
adapted to p r o t e c t the public welfare which may include
a requirement f o r r e s t i t u t i o n payments t o accounting
s e r v i c e s c l i e n t s or t o other persons s u f f e r i n g economic
l o s s r e s u l t i n g from v i o l a t i o n s of t h i s chapter or
regulations promulgated thereunder. "
It should be noted t h a t imposition of a d m i n i s t r a t i v e p e n a l t i e s on
l i c e n s e e s could help recover the cost of compensating members of
i n v e s t i g a t i v e committees.
Specific Authority To Subponea Records
The S t a t e Dental Board h a s a n implied subpoena power through A. R. S.
$ 32- 1207. The a u t h o r i t y to subpoena could be made c l e a r e r by adopting
language s i m i l a r t o Accountancy Board $ 32- 743. E, which s t a t e s :
" The board, or any member t h e r e o f , may i s s u e subpoenas
to compel the attendance of witnesses and the
production of documents, and may a d m i n i s t e r o a t h s , t a k e
testimony, hear proofs, and receive e x h i b i t s i n
evidence i n connection with an i n v e s t i g a t i o n i n i t i a t e d
by the board or upon hearing under t h i s chapter. In
case of disobedience to a subpoena the board may invoke
the aid of any court of t h i s s t a t e i n requiring the
attendance and testimony of witnesses and the
production of documentary evidence."
Authority To Take Further Action
A. R. S. $ 32- 1263.02.~ gives the Board t h e a u t h o r i t y t o i n v e s t i g a t e or hold
an informal interview with a l i c e n s e e a g a i n s t whom a complaint has been 4
f i l e d . However, i f t h e l i c e n s e e refuses to cooperate, the Board lacks
a u t h o r i t y to take f u r t h e r a c t i o n . A. R. S. $ 32- 1263.02. C should be amended
t o require a formal hearing if a l i c e n s e e r e f u s e s to cooperate.
CONCLUSION
S t a t u t o r y and other changes a r e necessary t o allow the S t a t e Dental Board
to i n v e s t i g a t e and resolve complaints more e f f e c t i v e l y .
REC OPIli1ENDATIONS
It is recommended t h a t :
1. The Board consider compensating i n v e s t i g a t i o n committees with a
consultant fee.
2. The L e g i s l a t u r e c o n s i d e r t h e following s t a t u t o r y changes:
- Define dental incompetence i n A. R. S. s32- 1201, using
$ 32- 1401.8 as a guide. 4
- Include dental incompetence as grounds f o r d i s c i p l i n a r y
a c t i o n i n A. R. S. $ 32- 1263.
- Define d i s c i p l i n a r y a c t i o n i n A. R. S. $ 32- 1201, using
$ 32- 701.01.3 as a guide, and amend 572- 1263 . O 1 . A accordingly. 4
- Give the Board s p e c i f i c a u t h o r i t y to subpoena records by
adopting a s t a t u t e s i m i l a r t o A. R. S. $ 32- 743.~.
- Amend A. R. S. $ 32- 1263.02. C to require a formal hearing i f a
l i c e n s e e refuses to cooperate i n an informal hearing or 4
i n v e s t i g a t i o n .
The .4SBI> E feel s i t has, with the imp1 imentation of the 1980
Sl, ituutory Amelxh~~ er~ stsu, b stant id1 1 v ir? iproved the c~ mpal int review
pr- occss. ' lhe A ~ ~ i i t oGre neral ' s report irdicates that " in ~ enera, l
c . \ ,, I I , l . I ; 111 s t~ c. 1- e i nve:, t i ~ , . i t t > t l itlecl~~ dt- 57e ld ur- ing 1980" but that in " some -. -_ I . __--- I----- -
(., I.; Ps" the H.> aitl ( lid I lot 1) el- fonn to their expectations. -- ---
I t 11~ 1s talien a concerted e f f o r t t o c~~- i: anizea nd direct a volunteer
c'i( ire of professiondl s anci Idpersons to become effective investigators.
A cant i nmd acl jl i5trner l t of i 11vcstig; ltive aim1 admii~ si trative procedures has
I cd to d psit i o r j - < l l ter 7A rnorltlts of adjudications ~ m l e rth e revised
statutes - of reasonahl eness i f not perfection, and in the ovemhelming
instances has protected the pi10lic in disciplina~ yn latters.
So~ ile probl ems may he itfellti f ietl by the canpl aint examp3 es i l I ustrated.
I1 i \ : r t l were some instances wtlrre the dentures were 110t avail abl e for
t , -. l , ~ , ni , ri i: m t l~ t'rt? fc> l- eti le ccx~ niitt ee hail notlii nt: to ev, ll iiate.
Ciji- l-<. L'l i ,> n of t t~ i s Lype c) f i west i gative proljl t? m rnav be cliff icul t
t ) \ l t some proj~ usasl are ~ uvferc dnsirlcrat ion. Aciditionall y, some auditor's
rccmemlations are present1 y incorpt~ r: ited i rlto the proceclttres.
S( r11e corn131c1i11Cb c4tldted point out ~~~, r~ cc, ilan~ pli ceo r slatuatory provisior~ s
I) / asse., sment of resl i tuti 011 wi thout ccnst~ l- e. ' R~ cse were few in rt~ nber in
re1 , ition to total nlu~ lb~ orf canpl : lints. ' I'he ir. tent oi the Board is to
cc,~- rect t h i s def i ci ellcv : iK~ I to pirsile t hc ilse of consenL ortier- s es~ xciaIl y
i 11 minor violations.
' Ihc ~ , t a tbit i cal evitlo~- tct> d f i ilcre~ i~, ettll i ~ , % , i t si fal: r ion l r ~ co ~ lpl a i n ~ n t s
i - i l I t t i , ul t Lo ev> ll~ ~ e . t ' ItY l r . I3 ,. ire\ t ~ r~ cc] s~~ eP:, Ct] tiit. 51 . X~.~ CIY- C ? SUL~ S ~ 1 1 ~ 1
I L , I I ~ IIt 5 Srt~ 11th e c ~ ~ htui it- f', l t - :~~ sessir~ e~ lt.
As i l J llsCr- atec1 in Tab1 e 1 after . lul y 1 , 1980, wtlerl the arnenclctl
:, t; rtute becanre effective, the el apsed time for resol utiorls tlr, mtatical I y
I I . ' Il lis i s a cornpl imcnt to t1- w ef ftictiveriess of the process
L., L~< 1> 1L1~-< l,: le~ Klt~ 1 ' iil\ . j.
' I'; lble 3 illustl- ates rwre >, tll- ir~ gelrptv nalties for violatic~ ns. ' fie
expectations of cornpl airurlts or 1 icensees probabl y w i l l never be met
t- o their total satisfaction aid civil action [ nay further temper these
d ~ jl~ ~ c~ atl i 0i1 1s.
rable 4 relates to rehearing or review am1 cornplaint f# 64- 80 is
~) resented. l'his i s a cmir> l icatecf case aid the criticism of the auditors
i l l ust rates the f rustratioi~ s of the Lloard in reversing !, the recornendations
01' ttw conani ttee. Boarcl minutes are not verbaturn recol- tls cf the tlel i herntions
ii ,, I t t i t , etc~ l- e ttiti Hi) clt t f , ict iijn rlc,~:, not . Il, pcar to be he1 1 docmiei~ ted. Re- cords
: I : w t h,~ t_ t I IC corupl , I i 1 i . l r l t [ JLI*, L- c:, iti lr lcr out uf state an1 did not t i nel y 4
rcceive I X Ii~ c es mail eci by the Ho, trtl.
The atdi tors iavor the creatio~ io f , i Hedl th Occr~ pntoi ns Council as
. I I I a1 t enl a L I ve for I It03 I t l i ~- t'ptrl~ LLOI-~ y3 ): eniyb. ' The 130, il- cl in ma jori ty
c l i :,' tiPr- ces i n t ILJ t t- hc pro ject ecl i nve:, t i gat i ve procedure costs coul d increase
hhl~ cnseyl & hen talte~ io ut or the 1- e, ll m of voluntary seivice. 7he 13oard
r i l i 1 i zc's 30 1x1- sons 011 i west ic, it i ve tt.,~ ms arxl wi 11 uruloubtecll y have to
i ~ lcrc> aste l ~ erl 1n111) ei rF ~ h ccc;~ llr, l, i i l ~ ntr ml) ci- s grow. Since dc~ ltal investiratiol~
I i t 1 , I vcs t.. lctrrri n,~ tiono f Ihc i 0111 lly ~ ~ l - t ) l - c ~ c ,1\ 3i1 1~- I1 ';- tlicre i ,. 11,) :, lio~- tc ' t ~ t
, I I I i *, ~> I-(; LP!, Y,. A,) < , I L ~ ~ l - ~ i vl e~ ipl1 ~ i l lt o ( l i t > IL>. ilt I ) Ccc~ rp~ o~ rLisi Cdir[~ cil
1 " ~ r l 1~)~ i. C! ~ l ~ . i l @ t l ~ L I I \ iJ( x~ l 1~, lieciring Li~) dt. ct~ Iiichw c ~ u l dt clke LIE L - ~ S U ~ ~ S
i iC ~ I ~ C ~ I I Ct) Cv ~ IY~ )~& I - ~ I S< c rlrI C) II ttie basis of those invcstipaticms
c,~ rwluct di sci pl irlary irltervi t2wb ,111~ 1 hc. nri 11): s.
APPENDIX
ARIZONA LEGISLATIVE COUNCIL MEMORANDUM
FEBRUARY 12, 1981
M E M O
TO: Douglas R. Norton
Auditor General
FROM: Arizona Legislative Council
RE: Request for Research and Statutory Interpretation ( 0- 81- 03)
This is in response to a request submitted on your behalf by Gerald A. Silva in a
memo dated January 19, 1981. No input was received from the attorney general
concerning this request.
FACT SITU
I. Investigations of complaints alleging substandard care are not initiated or are
terminated upon an agreement by a dentist to make a refund or provide restitution to the
complainant. The state board of dental examiners ( board) then dismisses the complaint.
2. If an investigation of a complaint results in the conclusion that substandard care
occurred, the board will: a) vote to adinonish the dentist and require that a refund or
restitution be made to the complainant; b) vote to dismiss the complaint upon a refund by
the dentist; or cf vote to dismiss and suggest that the patient return to the dentist for
continued care.
QUESTIONS PRESENTED:
1. Is the board obligated to investigate complaints which allege substandard care
even if the dentist agrees to make a refund or provide restitution?
2. Is it appropriate for the board to resolve complaints in the manner outlined in
Fact Situation Number 2?
ANSWERS:
1. Yes. The board is statutorily obligated to investigate the verified complaint of
any person which alleges substandard care of a type covered under Arizona Revised
Statutes ( A. R. S.) section 32- 1263, relating to grounds for disciplinary action. It is only
after the required investigative process has been completed pursuant to an informal
interview or the convening of an investigative committee and a recommendation has been
forwarded to the board that the board may exercise discretion with respect to any
verified complaint.
2. a) No. The board does not have any explicit or implicit statutory authority to
admonish a dentist and require that restitution or a refund be made to the complainant.
The board's authority following completion of the required investigation of any verified
complaint pursuant to A. R. S. section 32- 1263.02 is limited to the institution of
proceedings to suspend or revoke the license, dismiss the complaint or issue a decree of
censure or probation against the licensee.
b) and c) Whether the licensee is willing to make a refund or not should have no
bearing on a decision by the board to dismiss a complaint. A complaint should be
dismissed only upon a finding that the evidence submitted does not warrant license
suspension or revocation or any of the other statutorily prescribed less severe disciplinary
sanctions.
DISCUSSION:
1. A. R. S. section 32- 1263.02 prescribes required statutory prerequisites for the
investigation and adjudication of complaints against dentists. Subsection B of this section
provides:
B. The board shall investigate the verified complaint of any person
which appears to show the existence of any of the causes or grounds for
censure, probation, suspension or revocation of a license as provided in
section 32- 1263 and such person's name shall not be disclosed unless such
person's testimony is essential to the disciplinary proceedings conducted
pursuant to this section. ( Emphasis added.)
Use of the word " shall" in the above subsection imposes a mandatory directive on the
board to investigate complaints made by any person which appear to show the grounds
listed. It is an elementary principle of statutory construction that each word in a statute
will be given effect. Sutherland, Statutory Construction, 4th Edition, section 46.06; State
v. Superior Court for Maxicopa County, 113 Ariz. 248, 550 P. 2d 626 ( 1976). The words of
a statute are to be given their common meaning unless it appears from the context or
otherwise that a different meaning is intended. Ross v. Industrial Commission, 112 Ariz.
253, 540 P. 2d 1234 ( 1975). It is clear that the board is obligated to investigate the
verified complaint of any person against a licensee which f i t s within the confines of
section 32- 1263.
A. R. S. section 32- 1263 prescribes several situations which can cover a complaint
alleging substandard care,* although most complaints in this area would presumably be
classified under unprofessional conduct. Section 32- 1263 provides in full that:
The board may invoke disciplinary action against any person licensed
under this chapter for any of the following reasons:
1. Unprofessional conduct, as defined in section 32- 1201.
2. Conviction of a felony or of a misdemeanor involving moral
turpitude, in which case the record of conviction or a certified copy is
conclusive evidence.
3. Physical or mental incompetence to practice his profession.
4. Violation of or noncompliance with any provision of this chapter
or of any rules or regulations promulgated by the board pursuant to this
chapter.
*
It is assumed in this memo that substandard care refers to care that is grossly below that
expected, given prevailing standards in the profession.
Unprofessional conduct is defined under A. R. S. section 32- 120 1 as including " gross
malpractice, or repeated acts constituting malpractice" and " any conduct or practice
which does or would constitute a danger to the health, welfare or safety of the patient."
In the context of A. R. S section 32- 1263.02, subsection C, investigation of a
complaint against a licensee can follow one of the following two alternate procedures:
1. An informal interview with the licensed party against whom a complaint is
filed.
2. Review by an investigative committee appointed by the board, consisting of
both dentists and lay persons who need not be members of the board.
A. R. S. section 32- 1263.02, subsection C further provides that, with respect to the
informal interview and investigative committee, the procedures are as follows:
1. If an informal interview is requested, the president or his
designee shall appoint a member of the board to act as the informal
interviewing officer. The officer - shall within sixty days of his
appointment hold the interview and make a written recommendation to
the board on whether disciplinary action is appropriate and, if it is
appropriate, the type of disciplinary action which should be taken.
2. If the matter is referred to an investigative committee, it shall
within ten days, unless good cause requires longer, begin to investigate
the charges and shall exercise all the powers of the board in such an
investigation. Within sixty days of referral, the committee shall make a
written recommendation to the board on whether disciplinary action is
appropriate and, if it is appropriate, the type of disciplinary action which
should be taken. ( Emphasis added.)
Again, the statutory mandate is clear. Both in the case of an informal interview or in the
case of an investigative committee, the board, through its designees, is required to act
and determine the nature of the verified complaint.
There is no statutory authority for the board to fail to investigate or provide for
early termination of an investigation of any verified complaint which falls within the
confines of A. R. S. section 32- 1263 upon an agreement by the dentist to make a refund or
provide restitution. Since administrative agencies are creatures of legislation without
inherent or common law powers, the general rule applied to statutes granting powers to
them is that they have only those powers that are conferred either expressly or by
necessary implication. Sutherland, Statutory Construction, 4th Edition, section 65.02;
Corporation Commission v. Consolidated Stage Company, 63 Ariz. 257, 161 P. 2d 110
( 1945); Garvey v. Trew, 64 Ariz. 342, 170 P. 2d 845 ( 1946). The board must follow the
clear dictates of the Arizona Revised Statutes in exercising its administrative powers and
duties.
What then are the options for the board once the required statutory processes
relating to complaint investigations have been completed? In this connection, A. R. S.
section 32- 1263.02, subsection D provides:
D. Within thirty days of receipt of the written report of the
informal interviewing officer or the investigative committee, the board
shall issue preliminary findings based on the written report. The findings
shall be made as follows:
1. If the board finds that the evidence would, if proved true,
warrant suspension or revocation of a license issued under this chapter,
formal proceedings for the revocation or suspension of the license shall be
immediately initiated as provided in title 41, chapter 6, article 1.
2. If the board finds that the evidence does not warrant suspension
or revocation of a license, the preliminary order shall either dismiss the
complaint or decree censure or probation and the conditions under which
the censure or probation are to occur.
Pursuant to A. R. S. section 32- 1263.01, the board may, in issuing a decree of censure,
require that restitution be made to the aggrieved party.
It is only after the investigative procedures mandated by A. R. S. section 32- 1263.02 a
have been complied with that the board may dismiss the complaint. An agreement by the
dentist to make a refund or provide restitution is not a relevant criterion for the board to
consider in making this decision. The only statutorily relevant criterion under which the
board may dismiss a complaint pursuant to - 4. R. S. section 32- 1263.02, subsection D,
paragraph 2 is a finding " that the evidence does not warrant suspension or revocation of a
license" or any of the less severe disciplinary sanctions.
2. With respect to the authority of the board to take any of the actions described
in Fact Situation Number 2, the following comments may be made:
a) As noted above, the board's administrative discretion, relating to disposition of
complaints, is limited by A. R. S. section 32- 1263.02, subsection D. Paragraph 2 of this
subsection provides that the preliminary order of the board may only dismiss the
complaint or decree censure or probation and the conditions under which the censure or
probation are to occur. There is no explicit or implicit authority for the board to
admonish the dentist and require that a refund or restitution be made to the complainant.
It is only with respect to entering a decree of censure against a dentist that the board
may order that restitution be made to the complainant.
In this memo, the assumption is made that admonish refers to a somewhat lesser
form of disciplinary sanction than censure but something more than probation. Probation
refers in part to an act of grace and clemency which may be granted to allow a person to
escape the extreme rigors of a penalty otherwise imposed by law ( Blacks Lam Dictionary).
An administrative board or agency as previously noted can exercise only such powers as
are expressly given by statute or which follow by implication. If the Arizona legislature
had intended for the board to have the authority to admonish a dentist in lieu of censure
or probation, it must be assumed that the legislature would have so provided in A. R. S.
section 32- 1263.02. Thus, any board action to admonish a dentist is outside of the scope
of its existing statutory authority.
b) and c) With respect to whether it is appropriate for the board to resolve
complaints by ( i) voting to dismiss the complaint upon a refund by the dentist, or ( ii)
voting to dismiss and suggesting that the patient return to the dentist for continued care,
reference must again be made to A. R. S. section 32- 1263.02, subsection D, paragraph 2.
This paragraph provides:
2. If the board finds that the evidence does not warrant suspension
or revocation of a license, the preliminary order shall either dismiss the
com~ laint or decree censure or ~ robation and the conditions under which
censure or probation are to occur. ( Emphasis added.)
There is no statutory authority for the board to consider whether the dentist is or is not
willing to make restitution or a refund in making the decision to dismiss a verified
complaint. The only relevant criterion is whether the evidence against the dentist
relating to the alleged conduct after the required investigative procedures have been
completed is sufficient. If such is not the case, then the complaint may be dismissed.
RECOMMENDATIONS:
If the board would find it beneficial to have the administrative authority to
terminate the investigation of a verified complaint or decline to investigate a verified
complaint upon refund or restitution by the licensed dentist to the complaining party,
appropriate legislation should be recommended to the legislature.
Similarly, if the board were to deem it appropriate for complaints to be resolved in
the manner detailed in Fact Situation Number 2, appropriate legislation should be
recommended to the legislature. For the present, the board has no implicit or explicit
authority to admonish a dentist and require that refunds or restitution be made nor does it
have any authority to vote to dismiss a verified complaint on any other grounds than the
fact that the evidence presented is insufficient to implement any of the statutorily
prescribed disciplinary sanctions. Willingness of the licensee to make refund or
restitution should not be construed to change the nature of the alleged conduct in
question.
cc: Gerald A. Silva
Performance Audit Manager