H. B. 4538
(By Delegates Staggers, Morgan and Stephens)
[Passed March 7, 2014; in effect ninety days from passage.]
AN ACT to amend and reenact §30-4-6 and §30-4-19 of the Code of West Virginia, 1931, as amended; and to amend and reenact §30-4A-1 of said code, all relating to the Board of Dentistry; providing authority to promulgate legislative rules concerning agreements with organizations to create alcohol or chemical dependency treatments programs and to form dentist recovery networks; authorizing the board to defer disciplinary action with regard to an impaired licensee who voluntarily enters an approved treatment program; and providing for annual renewal of anesthesia permits.
Be it enacted by the Legislature of West Virginia:
That §30-4-6 and §30-4-19 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §30-4A-1 of said code be amended and reenacted, all to read as follows:
ARTICLE 4. WEST VIRGINIA DENTAL PRACTICE ACT.
§30-4-6. Rule-making authority.
(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article and articles four-a and four-b of this chapter including:
(1) Standards and requirements for licenses, certifications and permits;
(2) Requirements for third parties to prepare and/or administer examinations and reexaminations;
(3) Educational and experience requirements;
(4) Continuing education requirements and approval of continuing education courses;
(5) Procedures for the issuance and renewal of licenses, certifications and permits;
(6) Establish a fee schedule;
(7) Regulate dental specialities;
(8) Delegate procedures to be performed by a dental hygienist;
(9) Delegate procedures to be performed by a dental assistant;
(10) Designate the services and procedures performed under direct supervision, general supervision in public health practice;
(11) Designate additional public health settings;
(12) Regulate the use of firm or trade names;
(13) Regulate dental corporations;
(14) Regulate mobile dental facilities;
(15) Regulate portable dental units;
(16) Regulate professional limited liability companies;
(17) Establish professional conduct requirements;
(18) Establish the procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, certifications and permitees;
(19) Standards and requirements for agreements with organizations to form professional recovery networks;
(20) Establish an alcohol and chemical dependency treatment program, including standards and requirements;
(21) Establish requirements for inactive or revoked licenses, certifications and permits;
(22) Regulate dental anesthesia, including:
(D) Emergency drugs;
(F) Qualified monitor requirements; and
(23) Any other rules necessary to implement this article.
(b) All of the board's rules in effect and not in conflict with these provisions shall remain in effect until they are amended or rescinded.
§30-4-19. Complaints; investigations; due process procedure; grounds for disciplinary action.
(a) The board may initiate a complaint upon receipt of credible information and shall, upon the receipt of a written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules promulgated pursuant to this article.
(b) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.
(c) Upon a finding of probable cause to go forward with a complaint, the board shall provide a copy of the complaint to the licensee, certificate holder or permittee.
(d) Upon a finding that probable cause exists that the licensee, certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for disciplinary action against the licensee, certificate holder or permittee. Any hearing shall be held in accordance with the provisions of this article and shall require a violation to be proven by a preponderance of the evidence.
(e) A member of the complaint committee or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, restrict or revoke the license, certificate or permit of, or impose probationary conditions upon or take disciplinary action against, any licensee, certificate holder or permittee for any of the following reasons:
(1) Obtaining a board authorization by fraud, misrepresentation or concealment of material facts;
(2) Being convicted of a felony or a misdemeanor crime of moral turpitude;
(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or legislative rule of the board;
(5) Having had a board authorization revoked or suspended, other disciplinary action taken, or an application for a board authorization denied by the proper authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice;
(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public;
(8) Having an incapacity that prevents a licensee from engaging in the practice of dentistry or dental hygiene, with reasonable skill, competence and safety to the public;
(9) Committing fraud in connection with the practice of dentistry or dental hygiene;
(10) Failing to report to the board one's surrender of a license or authorization to practice dentistry or dental hygiene in another jurisdiction while under disciplinary investigation by any of those authorities or bodies for conduct that would constitute grounds for action as defined in this section;
(11) Failing to report to the board any adverse judgment, settlement or award arising from a malpractice claim arising related to conduct that would constitute grounds for action as defined in this section;
(12) Being guilty of unprofessional conduct as contained in the American Dental Association principles of ethics and code of professional conduct. The following acts are conclusively presumed to be unprofessional conduct:
(A) Being guilty of any fraud or deception;
(B) Committing a criminal operation or being convicted of a crime involving moral turpitude;
(C) Abusing alcohol or drugs;
(D) Violating any professional confidence or disclosing any professional secret;
(E) Being grossly immoral;
(F) Harassing, abusing, intimidating, insulting, degrading or humiliating a patient physically, verbally or through another form of communication;
(G) Obtaining any fee by fraud or misrepresentation;
(H) Employing directly or indirectly, or directing or permitting any suspended or unlicensed person so employed, to perform operations of any kind or to treat lesions of the human teeth or jaws or correct malimposed formations thereof;
(I) Practicing, or offering or undertaking to practice dentistry under any firm name or trade name not approved by the board;
(J) Having a professional connection or association with, or lending his or her name to another, for the illegal practice of dentistry, or professional connection or association with any person, firm or corporation holding himself or herself, themselves or itself out in any manner contrary to this article;
(K) Making use of any advertising relating to the use of any drug or medicine of unknown formula;
(L) Advertising to practice dentistry or perform any operation thereunder without causing pain;
(M) Advertising professional superiority or the performance of professional services in a superior manner;
(N) Advertising to guarantee any dental service;
(O) Advertising in any manner that is false or misleading in any material respect;
(P) Soliciting subscriptions from individuals within or without the state for, or advertising or offering to individuals within or without the state, a course or instruction or course materials in any phase, part or branch of dentistry or dental hygiene in any journal, newspaper, magazine or dental publication, or by means of radio, television or United States mail, or in or by any other means of contacting individuals: Provided, That the provisions of this paragraph may not be construed so as to prohibit:
(i) An individual dentist or dental hygienist from presenting articles pertaining to procedures or technique to state or national journals or accepted dental publications; or
(ii) Educational institutions approved by the board from offering courses or instruction or course materials to individual dentists and dental hygienists from within or without the state; or
(Q) Engaging in any action or conduct which would have warranted the denial of the license.
(13) Knowing or suspecting that a licensee is incapable of engaging in the practice of dentistry or dental hygiene, with reasonable skill, competence and safety to the public, and failing to report any relevant information to the board;
(14) Using or disclosing protected health information in an unauthorized or unlawful manner;
(15) Engaging in any conduct that subverts or attempts to subvert any licensing examination or the administration of any licensing examination;
(16) Failing to furnish to the board or its representatives any information legally requested by the board or failing to cooperate with or engaging in any conduct which obstructs an investigation being conducted by the board;
(17) Announcing or otherwise holding himself or herself out to the public as a specialist or as being specially qualified in any particular branch of dentistry or as giving special attention to any branch of dentistry or as limiting his or her practice to any branch of dentistry without first complying with the requirements established by the board for the specialty and having been issued a certificate of qualification in the specialty by the board;
(18) Failing to report to the board within seventy-two hours of becoming aware thereof any life threatening occurrence, serious injury or death of a patient resulting from dental treatment or complications following a dental procedure;
(19) Failing to report to the board any driving under the influence and/or driving while intoxicated offense; or
(20) Violation of any of the terms or conditions of any order entered in any disciplinary action.
(h) For the purposes of subsection (g) of this section, effective July 1, 2013, disciplinary action may include:
(6) Administrative fine, not to exceed $1,000 per day per violation;
(7) Mandatory attendance at continuing education seminars or other training;
(8) Practicing under supervision or other restriction; or
(9) Requiring the licensee or permittee to report to the board for periodic interviews for a specified period of time.
(i) In addition to any other sanction imposed, the board may require a licensee or permittee to pay the costs of the proceeding.
(j) The board may defer disciplinary action with regard to an impaired licensee who voluntarily signs an agreement, in a form satisfactory to the board, agreeing not to practice dental care and to enter an approved treatment and monitoring program in accordance with the board’s legislative rule: Provided, That this subsection does not apply to a licensee who has been convicted of, pleads guilty to, or enters a plea of nolo contendere to an offense relating to a controlled substance in any jurisdiction.
(k) A person authorized to practice under this article who reports or otherwise provides evidence of the negligence, impairment or incompetence of another member of this profession to the board or to any peer review organization is not liable to any person for making the report if the report is made without actual malice and in the reasonable belief that the report is warranted by the facts known to him or her at the time.
ARTICLE 4A. ADMINISTRATION OF ANESTHESIA BY DENTISTS.
§30-4A-1. Requirement for anesthesia permit; qualifications and requirements for qualified monitors.
(a) No dentist may induce central nervous system anesthesia without first having obtained an anesthesia permit for the level of anesthesia being induced.
(b) The applicant for an anesthesia permit shall pay the appropriate permit fees and renewal fees, submit a completed board-approved application and consent to an office evaluation.
(c) Permits shall be renewed annually by June 30.
(d) Permit holders shall report the names and qualifications of each qualified monitor providing services to that permit holder. A qualified monitor may not perform the functions and responsibilities specified in this article for any level of anesthesia, other than relative analgesia/minimal sedation, without certification by the board. Qualified monitors shall apply for certification and pay the appropriate application fees and renewal fees. Qualified monitors are required to renew annually by the June 30. To be certified as a qualified monitor, the applicant must meet the following minimum qualifications:
(1) Possess a current health care provider BLS/CPR certification;
(2) For monitoring, conscious sedation/moderate sedation or general anesthesia/deep conscious sedation procedures, successful completion of an AAOMS or AAPD anesthesia assistants certification program; and
(3) For monitoring a nitrous oxide unit, successful completion of a board-approved course in nitrous oxide monitoring.
(e) A dentist shall hold a class permit equivalent to or exceeding the anesthesia level being provided unless the provider of anesthesia is a physician anesthesiologist or another licensed dentist who holds a current anesthesia permit issued by the board.