THE REGULATION OF DENTISTRY
The regulation of dentistry is provided by federal as well as state laws. Federal laws and regulations are applied to all dentists. However, state laws, while many are identical to each other in some aspects, apply only in the state in which they have been enacted. So throughout this discussion of the regulation of dentistry, be sure to always know the state version of the regulation in question. What may be legal in one state may be illegal in another state. For example, in Illinois, all removable appliances “shall be marked with the name or social security number, or both, of the patient for whom the prosthesis is intended. The markings shall be done during fabrication and shall be permanent, legible, and cosmetically acceptable” . In California, “Every complete upper and lower denture fabricated by a licensed dentist, or pursuant to the dentist’s work order, shall be marked with the patient’s name or social security number, unless the patient objects” . Then, in New York, it is stated a little differently: “Every dentist licensed in this state … shall offer to the patient for whom the prosthesis is intended the opportunity to have such prosthesis marked with the patient’s name or initials” . As you can see, every state in regulating dentists has similar intentions of safeguarding the public, as seen here by attempting to prevent the loss of dental prostheses. However, each state will implement those safeguards in a slightly different manner.
Most states regulate the dental profession through a Dental Practice Act. The regulation of dentistry in most states usually falls under the purview of the State Board of Dentistry or the Board of Dental Examiners. The enforcement of the dental practice act is provided differently by each state. In Illinois, the Illinois State Dental Act is enforced by the Illinois Department of Professional Regulation . In California, enforcement is through the Department of Consumer Affairs , while in New York, it is through the Office of Professional Discipline. New York actually has three agencies with administrative powers. The New York Board of Regents presides over the New York State Education Department, which oversees the preparation, licensure, and practice of the professions through the Office of the Professions, which then regulates dentistry through the State Board of Dentistry, which adopts neither rules nor regulations. It is charged instead with three responsibilities:
1. to serve as an examining body recommending licensure as dentists to the State Education Department
2. to advise the state legislature, the Commissioner of Education, and the Board of Regents on dental matters, e.g., proposed changes and additions to the dental practice act
3. to serve as an administrative body to hear violations of rules and regulations and to report its findings to the Board of Regents .
These investigative agencies usually have the power to recommend suspension, to limit scope of practice, and/or to revoke a dentist’s license to the state board of dentistry. These agencies are very powerful in having the power to recommend revocation of one’s license; in a lawsuit, only money damages are imposed on the dentist.
Most jurisdictions provide a reporting procedure that allows the regulatory agencies to review court proceedings. In the review of such proceedings, the agency may decide further investigation and possibly restrictive action is needed to protect the public from the offending dentist. The agency may also receive complaints directly from a patient, employee, or the general public anonymously regarding a dentist. In the interest of protecting the public, most jurisdictions provide statutes that allow and sometimes demand these agencies to investigate such a complaint, even if it is anonymous. Such agencies, although they are required to investigate, do not have the right to go on a “fishing expedition” through your office. Hence, if you receive a letter from your state agency, take it very seriously.
TRUE CASE 4: Dental state board case of fractured porcelain
A dentist received a letter from the state’s investigative agency. In this case it was the New York State Office of Professional Discipline. It had received a complaint directly from a patient. In the complaint, the patient stated that a crown was placed approximately 2 years prior to the problem he encountered. The porcelain fractured off his lower right molar crown (#30). A letter was sent to the dentist informing him that a complaint was made to the agency and that the agency was investigating the complaint. They requested from the dentist a statement and copies of all the patient’s records. All requested information was supplied with the help of an attorney knowledgeable in such proceedings. It was pointed out that the dentist was never informed by the patient that there was a problem, that the patient could have had trauma from biting or chewing abnormally hard food or an object, and that it is the dentist’s habit and custom to help such patients by remaking the crown at no charge if needed, within a reasonable time period. The agency found in favor of the dentist.
As seen in the above example, you can never predict when the investigative agency in your jurisdiction may be contacting you. If this does happen, you do have rights. You have the right to protect your interests. You have the right to legal counsel. You have the right to schedule an office visit and not be forced to allow immediate access to your office and records. In other words, if they are knocking at your door, you do not have to let them in; you may refuse access on the basis they are interfering with your current patient care. You may ask them to schedule an office visit. (Caveat: Only if public safety is not in question.) Be sure to seek an attorney who is very familiar with the agency’s procedure to properly advise and protect you. Most state dental associations or dental malpractice insurance companies have contacts available for such a situation. Depending on the state, most dental malpractice insurance policies contain provisions for covering the legal costs up to a certain limit.
The various, approximately 53 (including Puerto Rico, the Virgin Islands, and the District of Columbia) state dental practice acts and their accompanying rules, regulations, and statutes govern and provide oversight of licensure, continuing education, permits, auxiliary dental personnel, exemptions, special provisions, advertising, referrals, professional misconduct, and unprofessional conduct, along with other areas of dental care. Before exploring these rules and regulations, we should first look at the federal oversight of providing dental healthcare. There are many nondental federal agencies that affect the way you practice dentistry: Occupational Safety and Health Administration (OSHA), Centers for Disease Control (CDC), Food and Drug Administration (FDA), Social Security Administration/Medicaid, and the Environmental Protection Agency (EPA), to name just a few. There are also the Americans with Disabilities Act and the National Practitioners Data Bank (NPDB).
The OSHA was established to protect the employee in the workplace. This became especially apparent and applicable to dentistry in the 1980s when new regulations were developed in response to the discovery and rapid spread of the AIDS virus. Because some healthcare providers refused to treat HIV/AIDS positive patients due to fear of contracting the disease, OHSA issued regulations and standards to protect all healthcare workers, including those in a dental setting. The CDC, in 1991 and working with OSHA, set guidelines for all healthcare workers to prevent further spread of diseases. All employees, part-time included, must be offered, at no cost to the employee, vaccination for hepatitis within 10 days of employment. It also provided what are now known as “universal precautions” for all healthcare workers to prevent the transmission of infectious diseases . Therefore, dentists must properly wash hands before and after patient treatment, during which they must wear gloves, mask, protective eyewear, and fluid-resistant gown. Some dentists, along with other healthcare workers, at that time still held the position that their offices were private and should be allowed to treat only those whom they wish. In other words, they wanted to continue to discriminate against HIV/AIDS-positive patients in their practices. The passing of the Americans with Disabilities Act firmly stated that the private offices of healthcare providers (dentists included) were “places of public accommodation” and therefore must adhere to the federal antidiscrimination laws . It also required all healthcare providers to treat all patients in the same manner, regardless of color, creed, religion, national origin, or disability, with special confidentiality of patients with HIV/AIDS. It made very clear that the construction of healthcare facilities must meet requirements for the handicapped. There were also special hiring regulations put in place if there are 15 or more employees. The act also governed employees. Employees cannot refuse to treat patients with HIV/AIDS; and if they do so, the employer may fire those employees who refuse to treat due to violation of this act. Employees with HIV/AIDS cannot be fired and should be reassigned and given a position without direct patient care. It should be pointed out that the CDC only gives guidelines, which are recommendations and not requirements. It has no enforcement powers. However, OSHA does have enforcement powers and exercises those powers by converting CDC guidelines into enforceable regulations. Those regulations were incorporated into the Postal Workers and Transportation Appropriations Act and made law. It imposes a penalty of loss or suspension of professional license if a healthcare professional is not compliant with the guidelines of the CDC. It should be pointed out that failure to comply would not just result in a penalty or fine but actual possible loss of your license.
There are many OSHA/Infection Control Manuals available on the market to help set up protocol in the dental office. It should include, but not limited to:
1. Written documentation of office policies
2. Exposure control precautions, sharps disposal policy
3. Hepatitis vaccination employee documentation
4. Housekeeping/infection control protocol for the entire office
5. Blood-borne pathogens standards and training
6. OSHA employee information poster
7. Post-exposure protocol
8. Maintain material safety data sheets (MSDS)
9. Office records, which should include an office injury report (everything from paper cuts to needle-sticks).
Injury and illness records must be kept for 30 years, all others for 3 years. The manual must be made easily available to the employees without their having to ask. Record keeping must be kept up in a timely and complete manner (see Chapter 9).
TRUE CASE 5: OSHA
In the early 1980s, when this agency was developing, OSHA offered to come into your office to check on your compliance. Anything that was found to be noncompliant would not result in a fine as long as the dentist rectified the problem in a timely manner. A dentist (me) thought it was a good idea. Having made sure all nine operatories and the central sterilization area were prepared for the review, I invited OSHA into my practice. When the OSHA agents came, they spent about 20 minutes walking through the operatories and about 6 hours going through my files in the business office. Their biggest finding, which was unexpected, was that our Injury Report Log was not posted in the office and was not filled out. They could not believe that even a paper cut hadn’t happened in the office. They were more concerned about proper reports, recorded meetings and training sessions, and identification of materials (MSDS).
The FDA and the Drug Enforcement Administration (DEA), which is under the jurisdiction of the Department of Justice, govern the medications and drugs for which you write prescriptions. To write prescriptions, you will need to apply for a DEA number, which will allow you to write class 2, 3, 4, and 5 drug prescriptions. The (EPA also regulates dentistry because of the hazardous wastes generated in dentistry. The EPA only acts as an oversight in that dentists are classified as “conditionally exempt generators” of “hazardous wastes” . Hence, each state has constructed its own regulations and laws governing dentists. Some states are more restrictive than others. Please check your state laws. Hazardous wastes, which also include medical/biological waste, may also include but are not limited to: used and unused amalgam fragments, radiographic solutions, various sharps (needles, endodontic files, scalpels, etc.), blood-soaked gauze and/or cotton, body parts (extracted teeth, gingival tissue, bone, etc.), and expired dental medicaments. Each of these items may require separate disposal by an authorized/certified transporter and disposal company. Some states require an amalgam separator with a filter that must be replaced by an authorized company on a timely basis as required by the state law. These disposal rules and regulations are dependent on your respective state laws. The New York State Dental Mercury and Amalgam Recycling Law states that “no dentist shall use or possess elemental mercury in the practice unless such elemental mercury is contained in appropriate pre-encapsulated capsules specifically designed for the mixing of dental amalgam. All dentists shall recycle any elemental mercury, and dental amalgam waste generated in their dental practices in accordance with rules and regulations established by the commissioner” . The EPA also oversees the efficacy of the chemicals used to disinfect the office. Be sure you are using properly identified chemicals, per OSHA regulations, in your infection control protocol.
There are many other agencies within each state that also regulate dentistry, such as the New York State Department of Health–regulated inspection of radiation equipment under the Bureau of Environmental Radiation Protection. In California, radiation equipment must comply with the California Radiation Control Regulations (Title 17, Cal. Code Regs., commencing with section 30100) and it is overseen by the Department of Health Services . Due to each state having its own authority to r/>