Performance audit, Board of Dental Examiners

              AUDIWR GENEWL
REPORT SUMMARY
December 1987 Report No. 87- 14
The Office of the Auditor General has conducted a performance audit of the Arizona State Board
of Dental Examiners ( ASBDE) in response to a June 2, 1987, resolution of the Joint Legislative
Oversight Committee. This performance audit was conducted as part of the Sunset Review set
forth in Arizona Revised Statutes 5541- 2351 through 41- 2379.
The Board of Dental Examiners was established in 1913, at which time the practice of dentistry
was first regulated. Licensure and regulation of dental hygienists was added to the Board's duties
in 1947, and the certification and regulation of denturists was added in 1978. Currently, the nine
member Board is responsible for approximately 2,900 licensed dentists, of whom 1,817 actually
practice in the State. The Board also oversees approximately 1,400 licensed dental hygienists and
26 certified denturists.
ASBDE Lacks An Adequate Program To Deal With Chemical Dependency
Problems Among Dentists
The Arizona State Board of Dental Examiners lacks a sufficient program to deal with chemically
dependent dentists. Although some experts estimate the incidence of chemical dependency among
dentists may be as high as 10 percent, the Board has not aggressively attempted to identify
dependent dentists. In addition, the Board has not adequately investigated the few allegations of
dependency brought to its attention. For example, when the Board recently received a telephone
complaint from an individual stating that a dentist, practicing under restrictions from a previous
chemical dependency problem, " had the shakes," the Board took no action to determine i f the
allegations were valid.
The Board also needs to strengthen its ability to ensure that dentists receive appropriate
dependency treatment. In most cases, the Board allows dependent dentists to select their own
doctor and does not ensure that the doctors selected have expertise in treating chemical
dependency. The Board does not require all dependent dentists to participate in Alcoholics
Anonymous or some other dependency support group, and has never stipulated the frequency of
attendance in these groups. In contrast, the Arizona State Board of Medical Examiners ( BOMEX)
has developed a program to ensure that dependent physicians receive appropriate treatment.
Finally, even when the Dental Board has taken action in dependency cases, i t has not properly
monitored the dentists to ensure compliance with terms established to allow continued practice.
Some dentists are not submitting required reports concerning psychiatric evaluations and treatment
progress. Further, the Board seldom collects urine and blood samples as provided for in the consent
agreements.
The Dental Board Could Improve Timeliness O f
Handling Complaints
Although the Dental Board has improved its overall handling of consumer complaints, the Board
could resolve complaints more promptly. The Board has improved many deficiencies cited in
previous audits. These improvements include complete investigations of consumer complaints and
a substantial increase in the number of disciplinary actions taken. State law requires the Board to
take initial action on a complaint within 150 days of beginning an investigation. However, an
Z70G ~ c 3 ~ 7 - 1C+ i l u i t i n : AL. E'< l! L: " Si. Jl'i'E 7L; C F~ lIC; Ftd! X, ARIZONA 85004 " 160212 55- 4395
Auditor General sample of complaints received by the Board in fiscal years 1985- 86 and 1986- 87
found that 26 of 42 resolved complaints exceeded the 150 day statutory l i m i t . Eight of the 26 took
between 200 and 250 days to resolve. For example, in one case Board staff took 97 days to
complete a two page summary report of a consumer's complaint and related records. In another
case, board staff allowed 139 days to pass without following up on a request for patient records
from a dentist. To avoid delays in resolving consumer complaints, the Board should implement a
complaints tracking system to ensure that report summaries are completed in a timely manner and
that requests for patient records and follow- ups on these requests are also timely.
Statutory Changes Are Needed To Improve The Board's
Enforcement Effectiveness
Several statutory changes are needed to improve the Board's enforcement efforts. First, the Board
needs statutory authority to use clinical evaluations whenever it addresses a complaint informally.
According to the Arizona Legislative Council, under existing statutes the Board can conduct a
clinical evaluation of a complaining patient's dental condition only in connection with one of two
informal complaint disposition methods. Second, the penalty for practicing dentistry without a
license is too lenient. Current statutes classify the practice of dentistry without a license as a
class 2 misdemeanor. In contrast, unlicensed practice of medicine or osteopathy is a class five
felony. Finally, the Board needs statutory authority to send a letter of concern in those cases that
might not merit a stronger action.
DOUGLAS R NORTON. CPA
AUDITOR GENERAL
ST- ATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
LINDA J. BLESSING, CPA
DEPUTY AUDITOR GENERAL
December 21, 1987
Members of the Arizona Legislature
The Honorable Evan Mecham, Governor
Dr. Edward C. Carlson, D. M. D.
President, State Dental Board of Examiners
Transmitted herewith is a report of the Auditor General, A Performance Audit of the
State Dental Board of Examiners. This report is in response to a March 3, 1987,
resolution of the Joint Legislative Oversight Committee.
The report addresses the Dental Board's effectiveness in protecting public health and
safety by regulating the practice of dentistry in Arizona. We found that the Board
has improved its oversight of dentists since our last audit in 1981. However, the
Board needs to strengthen its program for dealing with alcohol and drug abuse among
dentists. Our review showed that the Board lacks an effective means for identifying
problem dentists, ensuring that they receive adequate treatment and monitoring their
progress. We also found that the Board takes too long to handle some consumer
complaints; over half of the cases in our review sample required more than the 150
days allowed by law.
My staff and I will be pleased to discuss or clarify items in the report.
Respectfully submitted,
Staff: William Thomson
Mark Fleming
Martha Dorsey
Dennis Murphy
Enclosure
buds R. Norton
Auditor General
77C) O NORTH CEWTRAL AVE O SUITE 700 O PHOENIX, ARIZONA 85004 O ( 602) 255- 4385
SUMMARY
The Office of the Auditor General has conducted a performance audit of the
Arizona State Board of Dental Examiners ( ASBDE) in response to a June 2, 1987,
resolution of the Joint Legislative Oversight Committee. This performance audit
was conducted as part of the Sunset Review set forth in Arizona Revised Statutes
$ 541 - 2351 through 41 - 2379.
The Board of Dental Examiners was established in 1913, at which time the practice
of dentistry was first regulated. Licensure and regulation of dental hygienists was
added to the Board's duties in 1947, and the certification and regulation of
denturists was added in 1978. Currently, the nine member Board is responsible for
approximately 2,900 licensed dentists, of whom 1,817 actually practice in the State.
The Board also oversees approximately 1,400 licensed dental hygienists and 26
certified denturists.
ASBDE Lacks An Adequate Program To Deal With Chemical Dependency
Problems Among Dentists ( see pages 11 through 20)
The Arizona State Board of Dental Examiners lacks a sufficient program to deal
with chemically dependent dentists. Although some experts estimate the incidence
of chemical dependency among dentists may be as high as 10 percent, the Board has
not aggressively attempted to identify dependent dentists. In addition, the Board
has not adequately investigated the few allegations of dependency brought to its
attention. For example, when the Board recently received a telephone complaint
from an individual stating that a dentist, practicing under restrictions from a
previous chemical dependency problem, " had the shakes," the Board took no action
to determine i f the allegations were valid.
The Board also needs to strengthen its ability to ensure that dentists receive
appropriate dependency treatment. In most cases, the Board allows dependent
dentists to select their own doctor and does not ensure that the doctors selected
have expertise in treating chemical dependency. The Board does not require all
dependent dentists to participate in Alcoholics Anonymous or some other
dependency support group, and has never stipulated the frequency of attendance in
these groups. In contrast, the Arizona State Board of Medical Examiners ( BOM EX)
has developed a program to ensure that dependent physicians receive appropriate
treatment.
Finally, even when the Dental Board has taken action in dependency cases, it has not
properly monitored the dentists to ensure compliance with terms established to
allow continued practice. Some dentists are not submitting required reports
concerning psychiatric evaluations and treatment progress. Further, the Board
seldom collects urine and blood samples as provided for in the consent agreements.
The Dental Board Could Improve Timeliness Of
Handling Complaints ( see pages 21 through 26)
Although the Dental Board has improved its overall handling of consumer
complaints, the Board could resolve complaints more promptly. The Board has
improved many deficiencies cited in previous audits. These improvements include
complete investigations of consumer complaints and a substantial increase in the
number of disciplinary actions taken. State law requires the Board to take initial
action on a complaint within 150 days of beginning an investigation. However, an
Auditor General sample of complaints received by the Board in fiscal years 1985- 86
and 1986- 87 found that 26 of 42 resolved complaints exceeded the 150 day statutory
limit. Eight of the 26 took between 200 and 250 days to resolve. For example, in
one case Board staff took 97 days to complete a two page summary report of a
consumer's complaint and related records. In another case, board staff allowed 139
days to pass without following up on a request for patient records from a dentist.
To avoid delays in resolving consumer complaints, the Board should implement a
complaints tracking system to ensure that report summaries are completed in a
timely manner and that requests for patient records and follow- ups on these
requests are also timely.
Statutory Changes Are Needed To Improve The Board's
Enforcement Effectiveness ( see pages 27 through 30)
Several statutory changes are needed to improve the Board's enforcement efforts.
First, the Board needs statutory authority to use clinical evaluations whenever it
addresses a complaint informally. According to the Arizona Legislative Council,
under existing statutes the Board can conduct a clinical evaluation of a complaining
patient's dental condition only in connection with one of two informal complaint
disposition methods. Second, the penalty for practicing dentistry without a license
is too lenient. Current statutes classify the practice of dentistry without a license
as a class 2 misdemeanor. In contrast, unlicensed practice of medicine or
osteopathy is a class five felony. Finally, the Board needs statutory authority to
send a letter of concern in those cases that might not merit a stronger action.
TABLE OF CONTENTS
Page
INTRODUCTION AND BACKGROUND . . . . . . . . . . . . . . . . . . . 1
SUNSETFACTORS . . . . . . . . . . . . . . . . . . . . . . . . . 5
FINDING I: ASBDE Lacks An Adequate Program To Deal With
Chemical Dependency Problems Among D e n t i s t s . . . . . 11
P o t e n t i a l For Chemical Dependency E x i s t s Among D e n t i s t s . . . 11
ASBDE Has Not Developed A Comprehensive Program To I d e n t i f y .
I n v e s t i g a t e and Take Action i n Chemical Dependency Cases . . 12
The Board Has Not Properly Monitored
Dependent D e n t i s t s . . . . . . . . . . . . . . . . . . . . . 17
Recommendations . . . . . . . . . . . . . . . . . . . . . . . 19
FINDING II: The Dental Board Could Improve
Complaint Handling Timeliness . . . . . . . . . . . 21
Board Has Improved Overall Handling of Complaints . . . . . . 21
Many Complaints Require Excessive Time to Resolve . . . . . . 23
Recommendation . . . . . . . . . . . . . . . . . . . . . . . 26
FINDING I l l : S t a t u t o r y Changes Are Needed to lmprove the
Board's Enforcement Effectiveness . . . . . . . . . 27
I n v e s t i g a t i o n A u t h o r i t y Needed For Informal I n t e r v i e w . . . . 27
Unlicensed D e n t i s t r y P r a c t i c e Should Be a Felony . . . . . . 29
Additional D i s c i p l i n a r y Sanction May Be Needed . . . . . . . 29
Recommendations . . . . . . . . . . . . . . . . . . . . . . . 30
OTHERPERTINENT INFORMATION . . . . . . . . . . . . . . . . . . . 31
Increased Costs Due To R e s t r i c t i o n s
On The Number Of Supervised Dental Hygienists . . . . . . . . 31
R e s t r i c t i o n s On Independent P r a c t i c e
O f D e n t a l Hygienists . . . . . . . . . . . . . . . . . . . . 32
AREASFORFURTHERAUDITWORK . . . . . . . . . . . . . . . . . . 35
AGENCY RESPONSE . . . . . . . . . . . . . . . . . . . . . . . . . 37
LIST OF TABLES
Page
TABLE 1 Revenue, Expendi tures And FTEs For The State
Board O f Dental Examiners, F i s c a l Years 1985- 86
Through1987- 88 . . . . . . . . . . . . . . . . .
TABLE 2 D i s c i p l i n a r y Action Taken By Board, 1978 Vs.
F i s c a l Year 1986- 87 . . . . . . . . . . . . . . .
TABLE 3 ASBDE Complaints Resolution Time
Fiscal Years 1985- 86 and 1986- 87 . . . . . . . .
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has conducted a performance audit of the Arizona
State Board of Dental Examiners in response to a June 2, 1987, resolution of the Joint
Legislative Oversight Committee. This performance audit was conducted as part of
the Sunset Review set forth in Arizona Revised Statutes 9941- 2351 through 41- 2379.
The practice of dentistry was first regulated in Arizona in 1913, when a Board of
Examiners was established. Licensure and regulation of dental hygienists was added to
the Board's duties in 1947, and denturists were certified and regulated beginning in
1978. Today the Board is responsible for approximately 2,900 licensed dentists, 64
percent of whom are practicing in Arizona. The Board also oversees about 1,400
licensed dental hygienists and 26 certified denturists.
The Board consists of nine members appointed by the Governor. Five members are
licensed dentists, three are laypersons and one is a licensed dental hygienist. None of
the Board members are denturists.
Staffing and Budget
The State Board of Dental Examiners is funded through fees charged for examination
and licensure. Of the fees collected, 90 percent are retained for the Board's use and
10 percent are remitted to the State General Fund.
The Board's administrative staff includes an Executive Director, two full- time
investigators and four clerical staff. The staff's duties include processing original and
renewal applications for licensure, and investigating and processing complaints.
Table 1 shows the Board's revenue, expenditures and authorized staff for fiscal years
1985- 86 through 1987- 88.
TABLE 1
REVENUE, EXPEND l TURES AND FTEs FROM THE DENTAL BOARD FUND ( a)
FOR THE STATE BOARD OF DENTAL EXAMINERS
F i s c a l Years 1985- 86 through 1987- 88
( unaud i t ed
1985- 86 1986- 87 1987- 88
Actual A c t u a l Estimate
Funds Available
Balance Beginning o f f i s c a l year $ 335,500 $ 321 ,200 $ 290,800
Revenues ( l i c e n s e s , fees, e t ~ . ) ( ~ ) 314,900 311 ,100 387,000
Total Funds Available $ 650,40Q u $ 677.800
D i s p o s i t i o n o f Funds
FTE Positions 6.5 6.5 7.0
Personal Services $ 146,300 $ 171,700 $ 185,100
Employee Related Expenditures 25,000 30,700 39,500
Professional/ Outside Services 22,300 30,000 26,100
Trave l
I n- State 5,200 4,200 9,000
Out- Of- State 5,100 3,200 7,100 ( I
Other Operating Expenditures 91 ,700 101,700 104,800
Equ i pmen t 33,600 0 0
Total Funds Expended 329,200 341 ,500 371,600
Balance Forward End of F i s c a l Year 321,200 290,800 306,200 ( I
Total D i s p o s i t i o n of Funds s $ i
( a) This t a b l e d e p i c t s o n l y 90 percent o f Dental Board monies, which i s deposited i n the
Dental Board Fund. The o t h e r 10 percent i s deposited i n the General Fund.
Source: J o i n t L e g i s l a t i v e Budget Committee Appropriations r e p o r t f o r
f i s c a l year 1987- 88, and General Accounting O f f i c e actual a
expenditure f i g u r e s f o r f i s c a l year 1986- 87.
Audit Scope and Purpose
This audit was conducted to evaluate the adequacy of regulation by the Board of
Dental Examiners. Specifically we examined:
a Whether the board was sufficiently addressing cases involving chemical substance
abuse by dentists.
a The Board's ability to efficiently resolve consumer complaints.
0 The need for statutory changes to improve the Board's enforcement effectiveness.
The report also contains Other Pertinent Information regarding restrictions on the
supervision and scope of licensure of dental hygienists. The section Areas For Further
Audit Work addresses concerns we identified during the course of our audit but were
unable to research due to time constraints.
This audit was conducted in accordance with generally accepted governmental auditing
standards.
The Auditor General and staff express appreciation to the members and staff of the
Board of Dental Examiners for their cooperation and assistance during the course of
our audit.
SUNSET FACTORS
1. Objective and purpose in establishing the Board
Although the Board's enabling statutes contain no explicit statement of
objective or purpose, the statutes provide the means to ensure competence and
quality in the dental profession by authorizing the Board to examine, license or
certify, and discipline dentists, dental hygienists and denturists. The Arizona
Supreme Court clearly affirmed the Board's role in a 1941 decision.
" The purpose and the only justification of the various statutes regulating
the practice of medicine in its different branches is to protect the public
against those who are not properly qualified to engage in the healing art."
( Batty v. Arizona State Dental Board, 57 Arizona. 239, 254, 112 P. 2d 870
[ 1941I).
2. The effectiveness with which the Board has met its objective and purpose and
the efficiency with which it has operated
The Board has been generally effective in regulating the dental profession
through examination, licensure or certification, and complaint disposition. The
Board has improved its effectiveness since the 1979 Sunset review by taking
more appropriate disciplinary action on consumer complaints ( see Finding 11).
For example, during fiscal year 1986- 87, the Board revoked six and suspended
three licenses, censured 20 licensees, placed 46 licensees on probation, and
ordered restitution in 32 complaint cases, among other actions. Another
improvement in the Board's effectiveness has been the creation of a central file
for each practitioner, which allows Board staff to respond quickly to consumer
inquiries about licensees.
However, the Board needs to improve its effectiveness in the following areas.
0 Monitoring, investigating, taking disciplinary action on, and obtaining
information regarding licensees who have chemical dependency problems
( see Finding I).
0 Reducing the time i t takes to resolve consumer complaints ( see Finding 11).
3. The extent to which the Board has operated within the public interest
The Board is generally operating in the public interest by meeting its objective
and purpose. In addition, the Board has issued a consumer information
pamphlet, " A Guide for Filing Consumer Complaints Against Licensed
Professions and Occupations." This pamphlet is designed to educate the public
about the purpose and responsibilities of a professional and occupational
licensing board, including the Dental Board.
4. The extent to which rules and regulations promulgated by the Board are
consistent with Legislative mandate
Rules and regulations appear to be consistent with law. The most recent rules,
promulgated in 1985, were certified by the Attorney General as required by law.
However, the Board's Assistant Attorney General expressed concern about rules
and regulations dealing with the administration of anesthesia, which become
effective January 1, 1988.
a R4- 11- 803 in essence restricts newly licensed dentists from administering
a particular type of anesthesia.
a R4- 11- 802, which lists prerequisites to obtaining a permit to administer
certain types of anesthesia, lacks two provisions which are necessary to
protect the public health and safety, according to the Assistant Attorney
General. The rule lacks a needed facility inspection requirement, and i t
does not address the need for maintaining proper equipment if a dentist
employs an M. D. anesthesiologist to administer the anesthesia.
The Assistant Attorney General for the Board stated she planned to present
proposed rule revisions at the December Board meeting so that the Board could
approve emergency rules ( effective for 90 days) to begin to address these
problems.
5. The extent to which the Board has encouraged input from the public before
promulgating its rules and regulations and the extent to which it has informed
the public as t o i t s actions and their expected impact on the public
The Board has complied with the Open Meeting Law and has otherwise
encouraged input from the public before promulgating its rules and regulations.
After relocating i t s office in 1980, the Board notified the Secretary of State of
the change in location and that meeting notices would be posted on a bulletin
board in the new office. In addition, the Board's Executive Director stated he
sends out meeting notices regarding proposed rules and regulations to an
extensive l i s t of interested parties, consisting largely of licensees.
6. The extent to which the Board has been able to investigate and resolve
complaints within its jurisdiction
The Board's decisions regarding disciplinary action resulting from complaints
are generally appropriate, but many complaints are not resolved in a timely
manner. As discussed in Finding II, Board actions during fiscal year 1986- 87
demonstrated a significant improvement over those of previous years. In
addition, we found no cause to question the decisions of the Board on the
complaints we reviewed. However, the Board needs to resolve complaints more
quickly. More than half of the 42 resolved complaints in our sample were not
resolved within the statutory limit of 150 days. The excessive delays occurred
because the Board was not obtaining records or preparing reports in a timely
manner. To correct this problem, the Board should set up a system to track all
complaints so unnecessary delays do not continue to occur ( see Finding 11,
page 21).
7. The extent to which the Attorney General or any other applicable agency of
State Government has the authority to prosecute actions under enabling
legislation
The Board's statutes are adequate, according to the Board's Assistant Attorney
General. Arizona Revised Statutes ( A. R. S.) 532- 1266 authorizes the Attorney
General to prosecute actions under the enabling statutes and also allows the
Board to Ifemploy other or additional counsel in its own behalf." The Executive
Director stated the Attorney General's Office represents the Board in all legal
matters.
8. The extent to which the Board has addressed deficiencies i n i t s enabling
statutes which prevent it from fulfilling its statutory mandate
The Board proposed legislation in the 1986 Legislative session to authorize i t to
keep confidential the information obtained and used regarding consumer
complaints, increase the penalty for practicing without a license from a
misdemeanor to a felony, and extend the time allowed for disposing of
complaints, among other items. The legislation passed, but an amendment
eliminated the proposal to increase the penalty for unlicensed practice.
According to the Executive Director, the Board decided not to propose
legislation for the 1988 session, but plans to propose legislation for the session
following that. In this legislation, states the Executive Director, the Board
plans to simplify the complaint review statutes, try again to increase the
penalty for practicing dentistry unlicensed, and clarify miscellaneous items.
9. The extent to which changes are necessary in the laws of the Board to
adequately comply with the factors listed in the Sunset Laws
Based on our audit work we recommend that the Legislature consider the
following changes to the Board's statutes.
a Amend the statutes to require licensees and the Arizona State Dental
Association to report to the Board any dentist who is or may be be unable
to safely practice dentistry ( see Finding I, page 11).
0 Amend A. R. S. 932- 1263.02 to allow the Board to use clinical evaluation
committees in conjunction with informal interviews ( see Finding Ill, page
29).
a Amend A. R. S. 932- 1269 to increase the penalty for practicing without a
license from a misdemeanor to a felony ( see Finding Ill, page 29).
a Amend A. R. S. 932- 1263.01 to authorize the Board to issue Letters of
Concern to licensees when a reprimand or warning is in order but more
severe disciplinary action is not warranted ( see Finding 111, page 29).
10. The extent to which the termination of the Board would significantly harm the
public health, safety or welfare
Termination of the Board would significantly harm the public. The unlicensed
practice of dentistry could pose a threat to consumers' health, safety and
economic well- being. Several complaints about dentists involved critical safety
considerations, such as one patient with serious medical problems who
developed an aneurysm in reaction to medication administered by her dentist.
Other complaint cases dealt with improperly f i t ( and expensive) dentures
causing pain and digestive problems. Also, dentists frequently identify and
treat periodontal ( gum) disorders which, left untreated, could result in serious
problems including the loss of the patient's natural teeth.
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
Based on our review, the level of regulation exercised by the Board appears
appropriate. However, we present Other Pertinent Information, which the
Board may want to consider, regarding the level of regulation of dental
hygienists ( see page 31).
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 regularly contracts with dental practitioners when it conducts
clinical evaluations regarding consumer complaints. Lay advisors also assist in
the investigative process.
FINDING I
ASBDE LACKS AN ADEQUATE PROGRAM TO DEAL WITH CHEMICAL
DEPENDENCY PROBLEMS AMONG DENTISTS
The Arizona State Board of Dental Examiners ( ASBDE) lacks a sufficient program to
deal with chemically dependent dentists. Although dentists may suffer from alcohol
or drug dependency, the Board has not developed a comprehensive program to
identify, investigate and act in cases involving chemically dependent dentists. Even
when the Board has taken action in drug and alcohol cases, it has not properly
monitored the dentists to ensure compliance with terms established to allow
continued practice.
- Po. te ntial For Chemical Dependency
Exists Among Dentists
Drug and alcohol abuse can be a serious problem among health care professionals,
including dentists. Although specific estimates for dentists are not available, the
Arizona Medical Association ( ARM A) Physician Health Committee estimates that
approximately 85 percent of physician impairment involves alcoholism and/ or drug
abuse. ARM A further indicates that although there are no conclusive figures on the
incidence of chemical dependency among health professionals, the most widely
accepted figure appears to be 10 percent. According to the chairman of the A R M A
Physician Health Committee, these estimates apply to most health professionals,
including dentists. Approximately 2,900 dentists are licensed in Arizona and 1,800
actually practice in the state. Based on A R M A estimates, perhaps some 180
dentists in Arizona now or will sometime during their career suffer from a chemical
dependency. Since 1982, the Board has identified 14 chemically dependent dentists,
ten of whom were still under consent agreements with the Board as of October 1987.
In many cases, chemically dependent dentists can be treated and allowed to continue
practicing without posing a threat to public health and safety. According to the
chairman of the ARMA Physician Health Committee, it is appropriate for a
licensing board to treat chemical dependency as an illness rather then a crime and
allow continued practice. According to the Chairman, treating the illness as a
crime and taking purely disciplinary actions ( for example, license suspension or
revocation) can actually deter licensees with a chemical dependency, and those
around them, from seeking treatment. For treatment to be successful, however, the
appropriate licensing board should monitor the individual's progress and use its
enforcement powers where necessary to ensure that the practitioner obtains
treatment and is able to continue in practice without endangering patients.
ASBDE Has Not Developed A Comprehensive
Program To Identify, Investigate And Take
Action In Chemical Dependency Cases
The Board has not developed a comprehensive program to identify, investigate and
act in cases involving chemically dependent dentists. The Board does not
aggressively attempt to identify dentists with drug and alcohol problems. The Board
does not adequately investigate when i t does identify problems. In addition, the
Board could take stronger action to place dentists in appropriate treatment
programs.
Board does not systematically identify dependent dentists - The Board does not
aggressively attempt to identify chemically dependent dentists. The Board lacks a
referral system to encourage voluntary notification of dependency problems. In
addition, Arizona law does not require dental professionals to report dentists with
possible alcohol and drug problems to the Board.
The Board lacks a system that encourages dentists to seek assistance for chemical
dependency problems. As a result, nearly all of the chemical dependency cases
identified by the Board since 1982 have been the result of referrals from law
enforcement agencies. Few cases resulted from self- referrals by dentists or
referrals from associates or family. In contrast, the State Board of Medical
Examiners ( BO M EX) and the State's medical association operate a referral service
for chemical dependency. According to BO M EX'S Executive Director, this service
allows dependent physicians, their families and associates to obtain information on
available alternatives and treatment for chemical dependencies. According to the
Executive Director, this referral service is the source of 85 to 90 percent of the
chemically dependent physicians identified and assisted by BO M EX.
The Dental Board also lacks an important source of information about potential
problems because its statutes do not require licensees to report dentists with a
possible chemical dependency. For example, the Arizona State Dental Association
( ASDA) identifies and assists chemically dependent dentists but does not notify the
Board that the dentists are being treated for such problems. According to ASDA
officials, this program has been operating for approximately four years and has
identified an average of four to five dentists per year, about the same number of
cases the Board handles. According to Arizona Legislative Council, the Board
cannot require the association or any licensee to report chemically dependent
dentists. ( 1 )
BOMEX, on the other hand, has a mandatory reporting statute, under Arizona
Revised Statutes 532- 1451.
Any doctor of medicine, the Arizona medical association, inc., or any
component county society thereof, any health care institution shall ( emphasis
added) and any other person may, report to the board any information such
doctor, health care institution, association, provider or individual may have
which appears to show that a doctor of medicine is or may be medically
incompetent, is or may be guilty of unprofessional conduct or is or may be
mentally or physically unable safely to engage in the practice of medicine.
Board has not conducted adequate investigations - The Board has not adequately
investigated the few allegations of dependency that have been brought to its
attention. Although only two chemical dependency cases that required an
investigation have been reported to the Board since 1982, these investigations were
inadequate and untimely. In addition, in a recent incident the Board failed to
investigate a dentist with a known dependency problem. The following cases, which
resulted from anonymous complaints, represent the only two documented chemical
dependency investigations by the Board since 1982, and illustrate the inadequate and
untimely investigations conducted by the Board.
( ' ) I n f a c t , the L e g i s l a t i v e Council f u r t h e r stated, " There i s no s t a t u t o r y requi rement
t h a t a d e n t i s t , a peer review committee or the ASDA r e p o r t t o t h e State Board any
information t h a t appears t o show t h a t the a c t i v i t i e s o f a d e n t i s t may be grounds f o r
[ any] d i s c i p l i n a r y action pursuant t o A. R. S. Section 532- 1263."
CASE 1
In March 1985 the Board received an anonymous complaint alleging a dentist
had a drug and alcohol dependency. About the same time, a Board member
reported that a member of the dentist's family contacted him about the
dentist's possible dependency problem. The Board took no action until August
1985, when its investigators conducted an investigative hearing during which
the dentist acknowledged a dependency problem. The investigators
recommended that the Board place the dentist on probation until i t received
documentation of treatment he claimed to have received since the complaint
had been filed in March. However, the Board tabled the complaint at its
October meeting until i t could obtain more information. Because of difficulties
in obtaining the treatment reports from the dentist, a second investigative
hearing was held on January 21, 1986, ten months after the Board received the
initial complaint. A t this hearing the investigators offered a consent
agreement to the dentist placing him on five years probation and requiring him
to obtain treatment for his dependency. The dentist signed the agreement on
February 3, 1986. The Board accepted the consent agreement signed by the
dentist on February 14, 1986.
COMMENTS
Although the Board had reasonable evidence that this dentist had a dependency
problem, including information from one of its own members, i t took almost one
year to ensure that the dentist obtained the treatment necessary to prevent his
drug and alcohol problems from endangering his patients.
CASE 2
In June 1983 the Board began an investigation of a dentist based on anonymous
allegations that the dentist was using cocaine and heroin and inappropriately
writing prescriptions for controlled drugs. According to the investigative file,
the Board's investigation consisted of a day spent reviewing prescriptions at
pharmacies in the dentists area and requesting information and assistance from
the Department of Public Safety. Six months later, in December 1983, the
staff investigators recommended that the Board dismiss the complaint because
the prescription review had found no evidence of irregularities and DPS had not
provided any information. However, during the prescription review, three
pharmacists informed the Board investigator that they were aware of a possible
drug problem involving the dentist and that the dentist had recently been
hospitalized for a drug related problem. On April 11, 1986, the dentist signed a
consent agreement in which he admitted to having been hospitalized in January
1986 for chemical dependency treatment. According to the Board
investigators, this treatment was for the dentist's addiction to cocaine.
COMMENT
This case further illustrates the Board's inadequate investigation of
dependency complaints. The evidence developed during the prescription review
indicated that the dentist may have had a drug problem. However, neither the
Board nor its investigators contacted or interviewed the dentist to determine i f
a dependency problem existed.
A more recent incident illustrates the Board's failure to investigate allegations
against a dentist with a known dependency problem.
CASE 3
In September 1987 the Board received a telephone call from an individual
complaining about the quality of care received from a dentist. The complainant
reportedly said that the dentist " had the shakes." The Board's response was to
send the patient a complaint form. By the end of October the complaint form
had not been returned. However, this dentist had a known history of alcohol
abuse, and was under suspension from another state when he began practicing in
Arizona in 1985. The dentist was already licensed in Arizona at that time and
the Board allowed him to begin practicing, but under a consent agreement
placed him on probation and required him to obtain treatment for his alcohol
dependency. Nearly four months later the Board revoked his license for
continued abuse of alcohol. In June 1986 the Board reinstated the dentist's
license after he completed an intensified in- patient treatment program. A t
that time, again under a consent agreement, the Board placed him on five years
probation and required that he continue to obtain treatment for his dependency
problem.
COMMENT
Although this dentist was practicing under a consent agreement with the Board
for alcohol dependency and an allegation was received indicating a possible
violation of this agreement, the Board did not contact the dentist to determine
i f the allegations were valid. According to the staff investigator, the dentist
has been through extensive treatment for his dependency problem and is
considered to be the Board's model for recovery.
Treatment requirements - The Board could strengthen its ability to ensure that
dentists receive appropriate dependency treatment. In most cases, ASBDE allows
chemically dependent dentists to select doctors and determine their overall
treatment programs. According to the Chairman of the ARMA Physician Health
Committee, these doctors may or may not have expertise in treating chemical
dependency. In addition, the Board does not require all dependent dentists to
participate in aftercare treatment such as Alcoholics Anonymous or other group
therapy programs. When the Board has required aftercare, i t has not specified the
frequency of the dentist's attendance or approved the aftercare program chosen.
At least one alternative exists wherein a regulatory board maintains greater control
over treatment requirements. For example, the Board of Medical Examiners has
developed a treatment program for chemically dependent physicians which provides
greater control over the treating physicians and aftercare programs.
The Board Has Not Properly
Monitored Dependent Dentists
ASBDE has failed to properly monitor licensees with a chemical dependency to
ensure compliance with consent agreements. Although the Board has established
specific conditions for the continued practice of dentists admitting t o a chemical
dependency, the Board has not adequately monitored the dentists to ensure
compliance. Although the Board has given a low priority to monitoring dentists
under chemical dependency consent agreements, it could develop procedures for
more efficient monitoring of these cases.
Conditions for continued practice - In most chemical dependency cases, the Board
will allow the dentist to continue practice i f certain conditions are agreed upon.
These conditions are generally formalized in a consent agreement. The conditions
of the consent agreement routinely include such provisions as:
0 Probation for a period of three to six years.
0 Psychological evaluation with reporting requirements to the Board.
0 Treatment therapy with reporting requirements to the Board.
0 Biofluid testing ( e. g., urine or blood).
0 Participation in Alcoholics Anonymous ( A A) or other chemical dependency
support group.
0 Revocation of Drug Enforcement Administration ( DEA) permit to prescribe
narcotic drugs.
Abstinence from use o f narcotic drugs or alcohol.
Inadequate monitoring - The Board has not adequately monitored most chemically
dependent dentists who have signed consent agreements. As a result, the Board
cannot ensure that these dentists are able to continue practice without endangering
their patients. Provisions of consent agreements that should be better monitored by
the Board include biofluid testing, inconsistent and untimely reporting of i n i t i a l
psychiatric evaluation, treatment therapy and participation in Alcoholics
Anonymous or other chemical dependency groups. In at least two cases the Board
sent licensee files to archives storage before completion of the required probation.
The following case example illustrates the Board's inadequate monitoring of
chemical dependency consent agreements.
CASE 4
In March 1987, a dentist admitted to Board investigators that he was using
Oxycodones, Demerol and Percodan. Later that month, the Board received a
letter from a doctor associated with a chemical dependency program indicating
the dentist would be starting an out- patient treatment program " as soon as
possible." On May 26, 1987, the dentist signed a consent agreement, which
according to Board investigators included these stringent monitoring provisions
because the dentist wanted to maintain his DEA permit to prescribe drugs.
o For the first 12 months of the five year probation, the dentist shall submit
to twice weekly urinalysis at a facility chosen by the Board, with the
results sent to the Board within 72 hours.
0 The dentist shall submit monthly to the Board carbon copies of all
prescriptions issued.
Additional provisions of the consent agreement included: 1) an initial
psychiatric evaluation within 30 days, with a report sent to the Board
immediately upon completion, 2) consul tation with a psychologist and
admission to a drug rehabilitation program i f deemed necessary by the
psychologist, and 3) active participation in Alcoholics Anonymous and/ or a
chemical dependency group, with quarterly reporting from the dentist's sponsor
or counselor.
On October 1, 1987, Auditor General staff reviewed the consent agreement and
related complaint file, and found that the Board had received no documentation
on any of the provisions of the consent agreement except carbon copies of
prescriptions issued by the dentist from early April through mid- July, 1987.
Based on this information, ASBDE staff placed the dentist's case on the agenda
for the Board's October 15, 1987, meeting and notified the dentist. However,
the day before the Board meeting the dentist provided documentation indicating
his completion of two urinalyses ( for the current week) and one quarterly report
from his treating doctor. Based on this limited and belated documentation, the
Board took no action against the dentist at the October 15 meeting.
COMMENTS
This case illustrates the Board's failure to adequately monitor a dentist with an
acknowledged chemical dependency. This was especially critical because the
Board allowed the dentist to retain his DEA permit to prescribe narcotics.
Even though the dentist had not complied at all with the terms of his consent
agreement for most of its duration, the Board did not act to ensure adequate
future compliance.
A review of the 14 chemical dependency consent agreements issued by the Board
since 1982 shows that the Board has not been adequately monitoring the agreements.
0 The Board has collected biofluid ( urine and blood) samples in only two o f 13
consent agreements that allow direct sampling by the Board.
0 The Board has received reports of initial psychiatric evaluations and
recommended treatment in only seven of ten consent agreements requiring such
reports. Five of the seven reports were received after the deadline established
in the consent agreement.
e The Board has received complete reports in only four of ten consent agreements
that require periodic reports ( bimonthly or quarterly) from therapists treating
dentists. In t w o o f the four cases, many reports were received after the
deadlines established in the consent agreement.
0 The Board has received complete reports in only two of five consent
agreements that specifically require the dentist to participate in Alcoholics
Anonymous or an equivalent chemical dependency group and provide periodic
reports from the dentist's sponsor.
o The Board has not received the required written notification from two o f four
psychiatrists treating dependent dentists. The reports are needed to show that
the dentists have successfully completed treatment by the end of their
probations. The complaint files on the two dentists were sent by the Board to
archive storage several months before the completion of the required probation
and monitoring period.
Monitoring is a low priority - The Board appears to have given a low priority to
monitoring dentists under chemical dependency consent agreements. As a result,
the Board has not adequately f u l f i l l e d i t s responsibility to protect the public.
However, the Board could develop procedures for more efficient monitoring of these
cases.
The inadequacies in monitoring by the Board are due to the apparent low priority
given to chemical dependency consent agreements. For example, at the time o f our
review, the Board did not have a listing of all the dentists under a chemical
dependency consent agreement. In addition, the chemical dependency complaint
files were not maintained in a central location, but were located with other
consumer complaints.
According to ASBDE officials, the low priority for monitoring chemically dependent
dentists results from the investigators' heavy workload and the need to address
consumer complaints. However, our analysis indicates that the problem also results
from the Board's limited information concerning the status of chemical dependency
consent agreements. The Board could establish procedures to obtain timely
information about dentists practicing under a chemical dependency consent
agreement. For example, a tickler file system would remind Board staff when
dentists must submit test results and other information required by their
agreements. A cover sheet for each chemical dependency case would show all
requirements that the dentist must meet to comply with a consent agreement and
allow the Board to determine when such requirements are completed. BOMEX uses
both methods to track its drug and alcohol cases.
The Board should also require status reports on dentists who appear before the Board
so it can evaluate their progress in overcoming dependency problems. As noted
earlier, according to BO M EX'S Executive Director, BO M EX calls physicians under
chemical dependency consent agreements for personal appearances about once every
six months to review their progress and compliance. As a part of this review, the
Board receives an updated status report on the dependent physician. The report
includes the treating doctor's most recent evaluation, reports from group therapy
meetings and results of urinalysis.
RECOMMENDATIONS
1. The Legislature should consider amending the Dental Board statutes to require
dentists and the Arizona State Dental Association to report information
indicating that a dentist may be professionally incompetent, guilty of
unprofessional conduct or unable to safely practice dentistry.
2. The Board should develop a referral system to identify dentists who are or may
be chemically dependent.
3. The Board should conduct adequate and timely investigations of dentists who
are or may be chemically dependent.
4. The Board should f u l f i l l its responsibility to ensure adequate control over
dependent dentists' treatment by:
A . Developing a list of acceptable doctors and treatment programs.
B. Stipulating the frequency of attendance in aftercare treatment programs.
5. To properly monitor chemical dependency cases, the Board should:
A. Establish a system for tracking chemical dependency in consent
agreement cases.
8. Provide Board members with status reports of dentists' progress toward
overcoming dependency and meeting the conditions of consent agreements
FINDING II
THE DENTAL BOARD COULD IMPROVE COMPLAINT HANDLING TIMELINESS
The Arizona State Board of Dental Examiners ( ASBDE) could expedite its handling
of consumer complaints. Although the Board has improved its overall handling of
complaints, many complaints take excessive time to resolve. Delays by the Board in
obtaining needed information have caused the untimeliness.
Board Has Improved Overall
Handling of Complaints
ASBDE has improved its processing of consumer complaints since 1981. Previous
Auditor General reports ( report numbers 79- 11 and 81- 41 identified significant
problems in the Board's handling of consumer complaints. However, the Board has
corrected many of these problems in recent years.
Previous reports noted deficiencies - Previous audits of the Board revealed
significant deficiencies in the way the Board processed consumer complaints. These
deficiencies included the Board's failure to fully investigate allegations of
substandard care, and its failure to adequately discipline dentists when allegations
of substandard care were substantiated. Previous reports noted these examples.
e The Board dismissed consumer complaints in cases where allegations of
unprofessional conduct or incompetent work had been substantiated by an
investigative committee.
e The Board dismissed consumer complaints without a hearing i f dentists agreed
to make a refund or provide some form of restitution.
a Individual Board members and the Executive Director dismissed consumer
complaints without the approval of a quorum of the Board and without holding a
hearing.
The previous audit reports concluded that these deficiencies hindered the Board in
its attempt to protect the citizens of Arizona from incompetent dental practitioners.
Improvements in deficient areas - Many of the deficiencies cited in the previous
audits have been improved by the Board. Auditor General staff reviewed a sample
of complaints received by the Board during fiscal years 1985- 86 and 1986- 87, and
found marked improvements in complaint handling. This review showed that with
the exception of one case, ( ' ) the Board conducts complete investigations of
consumer complaints as directed by statute. Further, the Board routinely accepts
recommendations for disciplinary action from the investigative hearing committee
or informal interview committee, and rarely reduces the recommended sanctions.
Finally, as shown in Table 2, the Board has greatly strengthened its disciplinary
act ions against dentists when complaints are substantiated.
TABLE 2
Disciplinary
Act ion Taken
Revocation
DISCIPLINARY ACTION TAKEN BY BOARD
1978 VS. FISCAL YEAR 1986- 87
Complaints Received Camplaints Resolved
i n 1978 & Resolved During Fiscal Year
as of July 31, 1979 1986- 87
Suspension 0 3
Censure 0 20
Probat ion 0 46 ( a)
Dismissal 70 ( b ) 132 ( c )
( a ) I n some cases, both censure and probation were ordered by the Board.
( b) A l l 70 of the complaints were dismissed, although i n v e s t i g a t i o n s by the Board
indicated t h a t substandard o r inadequate dental care had occurred i n a t l e a s t 13 of
the cases.
( c ) I n t o t a l , the Board took 201 d i s c i p l i n a r y actions i n 97 of the 229 complaints
resolved. However, i n most o f the 97 complaints, more than one d i s c i p l i n a r y action
was taken. The actions shown i n the t a b l e represent the more severe sanctions
ordered by the Board.
Source: Auditor General performance audit of ASBDE, September 1979 and ASBDE
report of complaint action taken during fiscal year 1986- 87.
I n t h i s case, the Board allowed the d e n t i s t t o sign a consent agreement i n which the
p a t i e n t received a refund from the d e n t i s t and the Board dismissed the complaint
w i t h o u t h o l d i n g a hearing.
22
Many Complaints Require
Excessive Time to Resolve
Although the Board has made improvements in complaint handling, many complaints
take excessive time t o resolve. The Board often does not obtain needed records or
complete investigative reports in a timely manner. Without a tracking system, the
Board cannot adequately monitor the status o f i t s complaints.
Many complaint investigations exceed statutory t i me limits. State law requires the
Board to take initial action on a complaint within 150 days of beginning an
investigation. Arizona Revised Statutes 932- 1263.02 requires committees to make
written recommendations to the Board within 90 days of initiating an investigation.
Once the Board receives such a recommendation, it must issue preliminary findings
within 60 days. According to the Board's Chief Investigator, the Board considers the
time l i m i t to be in effect once a complaint is referred to a committee of dentists to
clinically evaluate the complainant's condition. ( ' I However, a significant
number of the Board's complaints greatly exceed the 150 day statutory l i m i t . As
illustrated in Table 3, in our sample of complaints received by the Board in fiscal
years 1985- 86 and 1986- 87, 26 of the 42 sampled complaints that were resolved
exceeded the 150 day statutory limit.
Not a l l complaints are r e f e r r e d t o a committee f o r c1 i n i cal evaluation. Complaints
not concerning q u a l i t y o f care ( f o r example i l l e g a l a d v e r t i s i n g , fraud o r other
c r i m i n a l a c t s ) and those i n which the complainant has already had dental work
redone, leaving nothing t o evaluate, are not r e f e r r e d t o a committee f o r c l i n i c a l
eval u a t i on.
TABLE 3
ASBDE COMPLAINTS RESOLUTION TIME
FISCAL YEARS 1985- 86 AND 1986- 87
NUMBER OF DAYS TO NUMBER OF CLOSED
RESOLVE COMPLA I NT ( a) COMPLAINTS
LESS THAN 150 16
( a ) This represents the number o f days from the s t a r t o f the i n v e s t i g a t i o n of the
complaint ( t h e date i t was r e f e r r e d t o a c l i n i c a l evaluation committee) to an
i n i t i a l a c t i o n by the Board. I f a c l i n i c a l evaluation was not conducted, the date
the Board received the complaint i s used as the f i r s t day.
Source: Auditor General survey of complaints received by ASBDE in fiscal years
1985- 86 and 1986- 87.
Excessive delays result because the Board cannot prepare needed reports and obtain
records in a timely manner. Most of the complaints that took more than 200 days to
resolve were delayed because of excessive time taken to prepare report summaries
necessary to proceed with the complaint. In other cases, the Board was slow to
make i n i t i a l requests for patient records and failed to follow up on these requests
when the records were not received in a timely fashion. The following case
examples illustrate the excessive delays.
CASE 1
On March 6, 1986, the Board received a complaint from a patient concerning
the quality of care received from a dentist. Twenty- nine days after receiving
the complaint, Board staff sent a request to the dentist f o r the patient's
records. These records were received on April 24, 1986. Ninety- seven days
after receiving the records, on July 30, 1986, Board staff completed a two page
summary report of the complaint and the related records. Although an
investigative hearing was held on August 26, 1986, a report of the findings and
recommendations of the hearing committee to the Board was not completed
until September 22, 1986, 27 days after the hearing had been held. The Board
voted to dismiss the complaint on October 10, 1986, 218 days after receiving
the complaint.
COMMENTS
According to Board investigators, most of the delays in completing
investigative reports were due to the workload of the staff investigator
assigned to complete these reports. However, the initial delay in requesting
patient records and the more than three months taken to complete a two page
summary report indicate a more serious problem with the Board's ability to
determine the status of cases during the complaint process.
CASE 2
The Board received a complaint on April 29, 1986, which involved the quality of
care a patient had received from a dentist and a denturist. Within 30 days the
Board requested and received the patient's records from the dentist and
denturist. On June 3, 1986, the Board received the results of a clinical
evaluation of the patient. Seventy- seven days later, on August 19, 1986, a
three page summary of the evaluation committee's results and the patient
records was completed by Board staff. Sixty- three days after an informal
hearing ( chaired by a Board member) was held on September 18, 1986, a report
of the findings and recommendations of the committee to the Board was
completed. The Board voted to dismiss the complaint on December 12, 1986,
212 days after receiving the complaint.
COMMENTS
This case further illustrates the Boards untimely resolution of consumer
complaints because of delays in completing investigative reports. Delays of 77
days to complete a three page summary report indicate a problem with tracking
complaints.
CASE 3
On June 11, 1986, the Board received a complaint from a patient concerning the
quality of care received from a dentist. Twenty- seven days later, on July 8,
1986, the Board requested the patient records from the dentist. These records
were received by the Board on November 24, 1986, 139 days after the Board
requested them. According to the complaint file, there was no contact between
the Board and the dentist during this time. A hearing was held on January 5,
1987, and the Board voted to dismiss the complaint on February 13, 1987, 247
days after receiving the complaint.
COMMENT
This case illustrates excessive time taken to resolve a complaint because of the
Board's failure to make a timely request for patient records and follow up on
this request. Although the Board has powers to subpoena records, they were not
used in this case. The Board did not follow up on its request and appeared to be
unaware that the dentist had not submitted the records.
ASBDE does not have a system of tracking complaints to determine their status
during the complaint process. Without such a system, the Board cannot readily
determine the status of open complaints and what action is needed to resolve these
complaints. Although the Executive Director is currently evaluating automated
tracking systems as part of an upgraded data processing system, the Board should
consider the immediate implementation of a manual tracking system to avoid
further delays.
RECOMMENDATION
The Board should implement a complaints tracking system to ensure that reports of
investigative hearings, clinical evaluations and patient records summaries are
completed in a timely manner and that requests for patient records and follow- ups
on these requests are also timely and do not result in further delays.
FINDING Ill
STATUTORY CHANGES ARE NEEDED TO IMPROVE
THE BOARD'S ENFORCEMENT EFFECTIVENESS
Several statutory changes are needed to improve the Board's enforcement efforts.
Statutes need to be amended to allow for the use of clinical evaluations in a l l
complaint investigations. The penalty for practicing dentistry without a license is
too lenient. Finally, disciplinary actions currently available to the Board may be
excessive in some cases.
Investigation Authority Needed
For Informal Interview
The Board needs statutory authority to use clinical evaluations when it informally
addresses a complaint. Current statutes give the Board authority to delegate its
investigative powers in only one of the two informal methods it has available to
adjudicate complaints. Yet, the statutory distinction appears unnecessary and may
actually hinder enforcement effectiveness.
Under State law, the Board is required to address most of its complaints
informally. Two informal disposition methods are available to the Board, under
Arizona Revised Statutes 932- 1263.02. The Board may either request an informal
interview wherein a Board member acts as the interviewing officer, or may refer the
matter to an investigative committee consisting of both dentists and laypersons who
need not be Board members.
( ' 1 A. R. S. 532- 1263.02, paragraph C , a l l o w s f o r a f o r m a l B o a r d h e a r i n g o n l y i n t w o s p e c i f i c
circumstances: a defendant 1 i censee's refusal t o cooperate o r a summary suspension o f
the defendant's l i c e n s e . For formal hearings, the Board u s u a l l y appoints a hearing
o f f i c e r and has a t r a n s c r i p t made of the proceedings. Board decisions i n these
instances are made a f t e r the formal hearing takes place, when the Board has had the
opportunity t o review the t r a n s c r i p t and other i n f o r m a t i o n .
Regardless of the method used, clinical evaluations are an essential component of
most Dental Board investigations. The clinical evaluation, normally conducted by a
committee of two licensees and one layperson who are not members of the Board,
determines alleged substandard performance as evidenced by the complaining
patient's dental condition. In fact, the Dental Board appears to be at an advantage
over other health licensing boards, because evidence of substandard work can be
examined relatively easily.
Legally, clinical evaluations can only be used in cases that have been assigned to
investigative committees, and not in cases designated for informal interview.
According to the Arizona Legislative Council, "[ tlhe statutes do not provide for the
further delegation of investigative authority when the board requests an informal
interview with a licensee. In this situation i t is improper to forego an interview and
refer the matter to a clinical evaluation committee instead." The Legislative
Council representative further stated that the clinical evaluation committee could
not legally be used in conjunction with the informal interview, even as a precursor
to the actual interview.
However, the Board's Executive Director indicates that clinical evaluations are
essential in the majority of the complaints the Board handles, whether they are
handled by investigative committee or by informal interview. Although most
complaints are reportedly handled through investigative committees, occasionally
the Board or one of the parties in a complaint will request an informal interview so
a Board member will be present. But, according to the Board's Executive Director,
the method utilized does not affect the need for a clinical evaluation. The
Executive Director also stated that, to his knowledge, the authority to use
investigative means in conjunction with the informal interview was not intentionally
omitted from the statutes. Since informal interviews are sometimes necessary or
advisable, the Board needs statutory authority to use clinical evaluations in
conjunction with informal interviews.
Unlicensed Dentistry Practice
Should Be A Felony
The penalty for practicing dentistry without a license is lenient compared with other
similar licensed professions. A. R . S. 932- 1 261 classifies the practice of dentistry
without a license as a class 2 misdemeanor. In contrast, unlicensed practice under
the statutes of both the Board of Medical Examiners and the Board of Osteopathic
Examiners is a class five felony. The three professions perform some similar
functions, which could result in a direct, immediate impact on the public health and
safety. These functions include prescribing drugs, performing surgery and
administering anesthesia.
The Dental Board's Executive Director stated he currently knows of six unlicensed
dentists, and they tend to treat mostly elderly patients. Furthermore, at least one
unlicensed dentist has allegedly prescribed drugs in his unauthorized practice. In
this case, evidence suggests that the unlicensed dentist has been calling in
prescriptions to pharmacies, using licensed dentists' names and prescription
authorization numbers.
Additional D isciplinar
Sanction May Be NeedYed
The Board needs statutory authority to use a sanction less restrictive than those
currently available. At least three other health licensing boards have an option that
allows them to communicate concern about licensee performance even though
statutes may not have been violated.
According to A. R. S. 932- 1263.01, the least severe disciplinary action available to
the Board is censure, probation, or imposition of a fine or continuing education
requirements. However, some cases may not need such direct disciplinary action
and instead may require only a warning by the Board. For example, while no
evidence may exist that a dentist's treatment was incorrect in a given situation, his
behavior toward the patient may not have been appropriate. Or, no evidence is
available to document inadequate treatment, but evidence suggests the treatment
may have been questionable. In cases such as these, a letter of concern could be
used to notify the practitioner that the Board is concerned about some aspect of the
dentist's performance, even though i t found no violation of Arizona statutes.
Three other medical licensing boards have the authority to issue letters of concern.
The Board of Medical Examiners' ( BOMEX) Executive Director states it issues about
90 to 100 letters of concern per year. The BOMEX Director says these letters are
appropriate in cases where BOMEX wishes to advise a doctor of inappropriate
performance but not serious enough to warrant more severe action. The Boards of
Osteopathic Examiners and Nursing also have statutory authority to issue letters of
concern, and their staff indicated they issue on average about 14 and 48 per year,
respectively.
RECOMMENDATIONS
The Legislature should consider revising the statutes to:
1. Authorize the Board to use clinical evaluation committees when i t refers
complaints to informal interview.
2. Reclassify practicing dentistry without a license from a misdemeanor to a
felony.
3. Authorize the Board to issue letters of concern in cases that warrant a less
severe or different disciplinary action than censure, probation or requirement
of continuing education.
OTHER PERTINENT INFORMATION
During the course of our audit we developed information regarding dental
hygienists. The first section addresses increased costs to the public due to
restrictions on the number of hygienists a dentist can supervise, and the second
section reports on efforts to allow hygienists to practice without supervision by
dentists.
Increased Costs Due To Restrictions On
The Number Of Supervised Dental Hygienists
According to a study released in May 1987 by the Federal Trade Commission ( FTC),
the 15 states ( including Arizona) that restrict the number of hygienists a dentist can
supervise " should consider relaxing their restrictions." The study results indicate
that this restriction increases the cost of dental visits and of several specific dental
procedures. The FTC reported:
" These price increases imposed substantial losses on consumers and on the U. S.
economy. Our estimated loss to consumers exceeds $ 1 billion for 1970 and is
approximately $ 700 million for 1982. [ expressed in 1986 dollars] We estimate
that the loss to the U. S. economy was more than $ 500 million in 1970, and more
than $ 300 million in 1982. Because the number of states that imposed auxiliary
use restrictions in 1982 is comparable to the number in 1985, our 1982
estimates provide a reasonable approximation of current losses due to the
restrictions."
Study evidence, therefore, suggests that consumers would pay lower prices for
dental visits and for several dental procedures i f the restriction on the number of
hygienists a dentist can supervise were relaxed.
Currently, Administrative Rule number R4- 11- 408 permits a dentist to supervise
only two hygenists at any one time. ' According to the FTC study, 14 other
states also limit the number of hygienists a dentist can supervise, while 35 states
and Washington, D. C. have no such restriction. ( 2)
(' I Proposed r e v i s i o n s t o the r u l e s and regulations change t h i s number t o three. The Board
has adopted the new r u l e s , but they have not yet been c e r t i f i e d by the Attorney
General ' s o f f i c e .
( 2) The FTC study i s based on 1982 data. However, i n 1986 Colorado el irninated supervision
requirements from i t s s t a t u t e s . We have r e f l e c t e d t h i s change i n t h e f i g u r e s we
reported.
Arizona law requires dental hygienists to practice under the supervision of a
licensed dentist. Such a provision is common among most states. As of March 1987,
only one state ( Colorado) allowed some dental hygienists to practice independently.
Colorado's law change occurred after hygienists had been allowed to practice
independently in limited settings, such as schools and other institutions, for seven
years. In addition, California recently authorized a pilot project to study the
independent practice of dental hygienists.
Dentists are generally opposed to allowing hygienists to practice independently, for
at least two reasons. First, dentists reportedly are concerned about the quality of
care patients may receive under the new arrangement. However, in the study
mentioned on page 33, the FTC reviewed literature which suggested that hygienists
can provide quality care for all procedures they are trained to do. Second, some
dentists fear that hygienists may begin to expand their scope of practice to include
functions they are not adequately trained to perform, such as diagnosis, extended
periodontal treatment and restorative work.
Supporters of hygienists' independent practice, on the other hand, say that the
change would bring dental hygiene services to population groups who do not normally
seek dental services. They maintain that the change would not take work away from
dentists, since their reported goal is to perform preventive, and not restorative,
dental services.
For several years now the Arizona Board of Dental Examiners has been trying to
promulgate rules and regulations regarding dental hygienists, one of which would
allow hygienists working for the Department of Corrections ( DOC) to work without
being directly supervised by a licensed dentist. A DOC official, a major proponent
of the proposed rule, stated that the rule was desirable for several reasons. First,
DOC feels it can provide more cost- effective care to inmates by employing
hygienists who do not need to be directly supervised by dentists. Second, hygienists
at DOC conduct their work in a clinical atmosphere, in which a doctor, nurse or
physician's assistant is usually available i f the hygienist needs emergency
assistance. According to the DOC official, the main potential safety problem may
lie in the administration of anesthesia, and for this reason some medically trained
emergency personnel should be present. However, this official felt the emergency
personnel do not need to be dentists, since others are at least as experienced at
dealing with such emergencies.
The Board's Executive Director stated that the proposed rules have been adopted by
the Board and are awaiting review by the Governor's Review Council. The
Executive Director anticipates that the rule allowing hygienists employed by DOC
to practice under general supervision will face strong opposition.
AREAS FOR FURTHER AUDIT WORK
During the course of the audit, we identified two potential issues that we were unable
to pursue because they were beyond the scope of our audit or we lacked sufficient
time.
e Should the board establish license reciprocity?
Currently, Arizona State Board of Dental Examiner's rules and regulations do not
provide for reciprocal licensing. Arizona Revised Statutes 532- 1235 grants the
Board authority to promulgate regulations allowing the Board to accept evidence
that an applicant for licensure has passed the examination of another state
within the preceding five years, in lieu of requiring the applicant to pass the
Arizona examination. However, the Board has not established the regulations
necessary to enforce this statute. According to an authority in professional
licensing and regulation, restrictions on reciprocity by licensing boards reduce
the quality of service received by the public. Further audit work, including
evaluations of the effects of reciprocity in other states and other licensed
occupations, and what impact it might have on dentistry in Arizona, is needed to
determine whether the Board should relax licensing requirements for
out- of- state dentists.
a Does the board have sufficient staff to adequately perform its duties?
According to some Board members and the Executive Director, the Board is
insufficiently staffed to adequately perform licensing and regulatory duties
mandated by statute. The Board requested two additional staff i n i t s last budget
requests, but received only a half- time position. However, the Board has not
conducted a comprehensive staffing analysis to determine the number of staff
positions necessary to perform its duties and what impact increased electronic
data processing capability might have on staffing needs. Further audit work,
including an evaluation of the Board's processes and staffing patterns and an
estimation of staff resources, is needed to determine whether the Board is
sufficiently staffed to perform its duties.
December 14, 1987
Arizona State Board
of Dental Examiners
5060 North 19th Avenue, Suite 406
Phoenix, Arizona 85015
Telephone ( 602) 255- 3696
Douglas R. Norton
Auditor General
2700 N. Central, Suite 700
Phoenix, Arizona 85004
Dear Mr. Norton:
The Arizona State Board of Dental Examiners has reviewed the performance
audit completed i n response t o the March 3, 1987, resolution of the Joint
Legislative Oversight Committee. The Board found the audit t o be p o s i t i v e
and constructive and found no substantive areas i n which we disagreed.
The Board has i n s t i t u t e d or w i l l develop a number of changes t o correct
deficiencies or t o meet the recommendations of the audit.
FINDING I: ASBDE Lacks An Adequate Program To Deal With
Chemical Dependency Problems Among Dentists
FINDING 11: The Dental Board Could Improve
Compl a i n t Hand1 i ng Time1 i ness
These two findings have many i n t e r r e l a t e d problems, most of which involve
s t a f f i n g and data processing c a p a b i l i t i e s .
Staffing:
The Board was authorized an additional .5 FTE f o r t h i s years budget t o
handle investigations and follow- ups; but found that h a l f an FTE with the
correct dental background was d i f f i c u l t t o f i l l and would be even more
d i f f i c u l t t o train. We opted f o r two dentists t h a t would work part time
t o f i l l the .5 exempt FTE positions and r e l i e v e e x i s t i n g trained staff
f o r the investigations and follow- ups. These two new positions would
e s s e n t i a l l y work on Friday o n l y t o administer hearings. They have been
selected and t h e i r f i r s t hearings were on December 4, 1987.
A comprehensive analysis w i l l be i n s t i t u t e d i n the f i r s t quarter of 1988.
This analysis w i l l s t a r t with a 30 day detailed time and motion study, a
p r o d u c t i v i t y analysis, an employee p o s i t i o n appraisal and f i n i s h with a
recommended action f o r the Board.
December 14,1987
Sunset Audit
Page 2
Data Processing:
The Board has a good word processor which has very l i t t l e data processing
c a p a b i l i t i e s . Complaint handling or timeliness, along with follow- up on
substance abuse cases, would be greatly enhanced with a good software
program f o r in- house tracking. We have i d e n t i f i e d the type of software
tracking package t h a t would f i l l our needs; the tracking system used by
the Arizona State Bar.
We have contacted ( 12- 87) the Department of Administration f o r analysis
of our data processing needs and t h i s analysis i s underway.
Substance Abuse Program:
We have conferred with the Medical Board and the Dental Association, both
of whom have substance abuse programs: a d d i t i o n a l l y we have received
information from programs i n Cal i f o r n i a , I 1 1 i n o i s, Oregon and Missouri .
We found the program presently used by the Medical Board most appropriate
f o r our s i t u a t i o n and w i l l i n s t i t u t e our program based on t h e i r s or
" piggy- back" on t h e i r s - if t h a t would be agreeable with them.
FINDING 111: Staturory Changes Are Needed t o Improve the
Board's Enforcement Effectiveness
The Board feels t h a t a general overhaul of our statutes i s i n order -- t o
both c l a r i f y and s i m p l i f y the e n t i r e Chapter 11 of T i t l e 32. A committee
f o r t h i s purpose was appointed i n December 1987; the chairman i s Dr. Tom
Bahr. The committee's challenge i s t o complete the d r a f t o f l e g i s l a t i o n
by September 1988.
The Board w i l l also consider other changes and issues i n the audit, but
wished t o use the above t o s t a r t aggressively and p o s i t i v e l y .
We wish t o complement the Auditor Generai on the professionalism of the
s t a f f t h a t conducted t h i s audit. They spent several months with us almost
without notice, they were never i n t r u s i v e and always considerate.
Sincerely, L L
Mathew H. Wheeler
Executive Director