74(R) SB 18 Senate Committee Report

BILL ANALYSIS

S.B. 18
By: Moncrief
Health and Human Services
1-16-95
Committee Report (Unamended)
BACKGROUND

The State Board of Dental Examiners was abolished on August 31,
1994, because a bill that would have reauthorized its operations
failed to pass the 73rd Legislature. Although the board was
subject to sunset in August, the Dental Practice Act remains in
effect, and administrative tasks are being handled by other
agencies. The Dental Information Resource Center has also
continued to be available to field inquiries and make referrals.

The legislature is under a court order to reinstate the board
within 30 days of reconvening. The governor must sign the bill by
February 8. The bill reestablishes the board according to the
agreement reached by the Texas Dental Association and the Texas
Association of Dental Hygienists.

PURPOSE

As proposed, S.B. 18 provides for the continuation, under the
Sunset Act, of the State Board of Dental Examiners and the Dental
Hygiene Advisory Committee and provides for training and continuing
education requirements, a modified complaint process, and
administrative penalties for violations, among other statutory
modifications.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the State Board of Dental Examiners under SECTION 3 (Sections
1(b) and 5, Article 4544, V.T.C.S.), SECTION 4 (Section 2(a),
Article 4545a, V.T.C.S.), SECTION 5 (Section 1(a), Article 4548f,
V.T.C.S.), SECTION 6 (Sections 1(c), (e), (h), and (j), Article
4548h, V.T.C.S.), SECTION 8 (Article 4548i(c), V.T.C.S.), SECTION
10 (Article 4549b(b), V.T.C.S.), SECTION 11 (Sections 2(e) and (h),
Article 4550a, V.T.C.S.), SECTION 14 (Section 5(b), Article 4551e,
V.T.C.S.), SECTION 15 (Section 5A(b), Article 4551e, V.T.C.S.),
SECTION 18 (Article 4551n(a), V.T.C.S.), and to the Dental Hygiene
Advisory Committee under SECTION 27 of this bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Article 4543a, V.T.C.S. (Dental Practice Act), as follows:

Art. 4543a. APPOINTMENT; QUALIFICATIONS

Sec. 1. (a)(1) Increases the membership of the State Board of Dental Examiners (board) from
15 to 18 and the number of public members from 3 to 6.

(2) Provides that a person is not eligible for appointment as a public member if the
person or the person's spouse uses a substantial amount of tangible goods, services or
funds from the board, other than certain authorized compensation. Makes conforming
changes.
(b) Requires board appointments to be made without regard to certain personal
characteristics.
Sec. 2. Requires the president of the board to be a dentist and makes nonsubstantive
changes.

Sec. 3. (a)-(c) Set forth individuals prohibited from serving as members, employees, and
general counsel of the board.

(d) Sets forth the definition of a Texas trade association.
Sec. 4. (a) Adds members who cannot discharge member duties for a substantial part of the
term for which the member is appointed because of illness or disability to the list of grounds
for removal of members.

(b) Makes no changes.

(c) Requires board members possessing knowledge that a potential ground for removal
exists to inform the board. Requires the board to notify the governor. Deletes
requirements that violations be presented in writing and be reviewed at the next meeting.

Sec. 5. (a) Requires board members to comply with member training requirements.

(b) Requires the board to provide information to members and employees regarding
qualifications for office or employment and their responsibilities relating to standards of
conduct for state employees.
Sec. 6. (a) Requires the board to establish a training program for board members.

(b) Requires members to complete at least one section of the training program before
assuming membership duties and before senate confirmation.

(d) Requires the board to consult with the governor's office and the Texas Ethics
Commission in developing training requirements.

(e) Requires the board to allow another state agency or entity given the authority to
establish the training requirements in lieu of developing its own program.

SECTION 2. Amends Article 4543b, V.T.C.S., as follows:

Art. 4543b. SUNSET PROVISION. Updates the board's sunset date to September 1, 2005.
SECTION 3. Amends Sections 1 and 5, Article 4544, V.T.C.S., as follows:

Sec. 1. (a) Created from existing text and makes nonsubstantive changes. Requires the
board to contract with an independent or regional testing service for any required clinical
examination. Authorizes the board to use the services of Texas licensed dentists to provide
assistance if the regional testing service is used. Requires the written portion of the
examination to be validated by an independent testing professional.

(b) Requires the board, by rule, to set the number of and conditions for examination
retakes. Authorizes the board to require an applicant who fails the examination to meet
additional education requirements.
Sec. 5. Replaces existing text to set forth more specific requirements for continuing
education programs. Sets forth requirements that the board, by rule, must set for continuing
education programs.

SECTION 4. Amends Article 4545a, V.T.C.S., as follows:

Art. 4545a. New title: LICENSING BY CREDENTIALS; LICENSING OF FOREIGN-TRAINED DENTISTS

Sec. 1. (a) Requires the board, rather than authorizes it, to grant a dentistry or a dental
hygienist license to a person who meets certain qualifications.

(b) Requires the applicant to be endorsed by the board of dentistry of the jurisdiction of
current practice.

(c) Requires the board to complete the processing of an application within 180 days of
receiving all required documentation and results or grant a license to the applicant.
Sec. 2. (a) Requires the board, upon receipt of payment, to grant a license to a dentist or
dental hygienist who has not graduated from a dental or dental hygiene school accredited by
the commission on Dental Accreditation of the American Dental Association under certain
circumstances, including if the board, through a procedure adopted by rule, determines that
the educational qualifications are equivalent to those required to practice dentistry or dental
hygiene in the state.

(b) Requires the board to complete the processing of an application within 180 days of
receiving all required documentation and results or grant a license to the applicant.
Deletes existing requirements for applicants.
SECTION 5. Amends Section 1(a), Article 4548f, V.T.C.S., as follows:

(a) Prohibits the board from adopting rules restricting competitive bidding or advertising by
a person regulated by the board, unless it prohibits false advertising practices. Replaces
existing prohibitions for the rules governing false advertising practices.
SECTION 6. Amends Article 4548h, V.T.C.S., as follows:

Art. 4548h. New title: COMPLAINTS; REFUSING, REVOKING, CANCELLING, AND
SUSPENDING LICENSES

Sec. 1. (a) Requires the board to keep an information file about each complaint filed with
the board. Sets forth requirements for files.

(b) Requires the board to notify parties to the complaint of the status of the complaint at
certain intervals, with an exception.

(c) Requires the board, by rule, to adopt a form to standardize information concerning
complaints made to the board. Requires the board to prescribe, by rule, information to
be provided in filing a complaint.

(d) Requires the board to provide reasonable assistance to a person filing a complaint.

(e) Requires the board to adopt rules concerning the investigation of a complaint filed
with the board. Sets forth requirements for these rules.

(f) Sets forth requirements for disposing of all complaints in a timely manner.

(g) Requires the executive director of the board (director) to notify the board of the
number of and reasons for complaints that extend beyond a two-year time frame for
resolution at board meetings.

(h) Requires the board, by rule, to adopt procedures governing informal disposition or
proceedings of contested cases.

(i) Requires rules adopted under this section to provide the complainant and licensee an
opportunity to be heard and requires an attorney to be present to advise the board.
Requires the attorney to be a member of the board's legal staff or of the attorney general's
office.

(j) Requires the board, by rule, to develop a system for monitoring license holders'
compliance with the requirements of this Act. Deletes existing provision authorizing the
board to refuse to grant a license under certain circumstances.
Sec. 2. (a) Requires the board to place on probation a person whose license has been
suspended, or to reprimand a licensee, in addition to revoking or suspending a license, under
certain circumstances. Makes conforming and nonsubstantive changes.

(b) Makes nonsubstantive changes.

(c) Sets forth required procedure for the board when it receives a complaint. Deletes the
distinction between complaints filed by members and by non-members.

(d) Sets forth actions which the board is authorized to require of a practitioner whose
license suspension is probated.

(e) Requires the board or the executive committee to temporarily suspend a license if it
determines that continuation in practice would constitute a clear threat to a person's well-being. Sets forth required procedure for suspending a license.

(f) Requires all complaints considered by the board to be filed within four years of the
date on which the act occurred or within four years after a complainant discovered, or in
the exercise of reasonable diligence should have discovered, the occurrence of the act.
Sec. 3. (a)-(b) Make nonsubstantive changes.

(c)-(d) Redesignate existing Subsections (d)-(e). Delete provision requiring an appeal to
be considered as a supersedeas under certain circumstances.

(e) Authorizes the court to permit a person who files an appeal to stay enforcement of
penalty by giving the court a supersedeas bond that the court approves, with an exception.
Authorizes the court to uphold or reduce a punishment if it sustains the occurrence of
violation and requires the court to assess no punishment if it does not sustain the
occurrence.

Sec. 4. Makes a nonsubstantive change.
SECTION 7. Amends Article 4548i, V.T.C.S., as follows:

Art. 4548i. PUNISHMENT (a) Provides that an offense involving practicing without an
appropriate license issued by the board is a third degree felony.

(b) Provides that a penalty for violation of Chapter 9, Title 71, V.T.C.S., is liable to the
state for a civil penalty up to $2,500 and that each day of violation is a separate offense.
Sets forth requirements for filing and collecting penalties.
SECTION 8. Amends Title 71, Chapter 9, V.T.C.S., by adding Article 4548j, as follows:

Art. 4548j. ADMINISTRATIVE PENALTY. Authorizes the board to impose an
administrative penalty against a person who violates this Act or a rule or order adopted under
this Act.

(b) Provides that a penalty for violation may be up to $5,000 and that each day of
violation is a separate offense.

(c) Requires the director or a board subcommittee, composed of at least one public board
member, to determine the amount of the penalty based on a standardized penalty schedule.
Requires the board, by rule, to develop a penalty schedule based on certain criteria.

(d) Authorizes the director or subcommittee to issue a report and recommended penalty
to the board.

(e) Sets forth requirements for notifying the person of the board's report.

(f) Authorizes the person receiving the notice to accept the determination or to request a
hearing within 20 days.

(g) Requires the board, by order, to approve the determination and impose the penalty if
the person accepts the determination.

(h) Sets forth requirements for a hearing on the board's determination.

(i) Requires the board's notice to include a statement of the right of the person to judicial
review of the order.

(j) Sets forth requirements of the person within 30 days of the board's final order.

(k) Sets forth authorized actions for a person within 30 days of receiving the board's
notice.

(l) Authorizes a director who receives a copy of an affidavit under Subsection (k)(2) to
file a contest to the affidavit within five days.

(m) Authorizes the director, if a person does not pay the penalty and the enforcement is
not stayed, to refer the matter to the attorney general.

(n) Sets forth requirements for board judicial review orders.

(o) Authorizes the court to order, change, or cancel penalties.

(p) Sets forth requirements for the court when its judgment become final.

(q) Requires penalties collected under this article to be remitted to the comptroller for
deposit in the dental registration account in the state treasury. Authorizes these funds to
be used only for an approved peer assistance program.

(r) Subjects proceedings under this article to the Administrative Procedure Act.

(s) Prohibits anything in this article from being construed as preventing the board from
assessing an administrative penalty using an informal proceeding under Article 4548h,
V.T.C.S.
SECTION 9. Amends Article 4549, V.T.C.S., as follows:

Art. 4549. REFUSAL TO EXAMINE OR ISSUE LICENSE; JUDICIAL SUSPENSIONS AND
REVOCATIONS

Sec. 1. Adds proof that an applicant violated provisions relating to the practice of dentistry
or any provision of Chapter 9, Title 71, V.T.C.S., within 12 months before filing a license
application to the list of reasons for which the board is authorized to refuse to issue a license.

Sec. 2. Created from existing Section 3 to make conforming changes. Deletes existing
Section 2.

Sec. 3. Created from existing Section 4 to make conforming changes. Deletes existing
Sections 5-7 setting forth complaint procedure.
SECTION 10. Amends Article 4549b, V.T.C.S., as follows:

Art. 4549b. CONSUMER INFORMATION. (a) Makes nonsubstantive changes.

(b) Requires the board, by rule, to establish methods by which consumers and service
recipients are notified of the board's address and telephone number in order to file
complaints. Sets forth authorized methods of notification.

(c) Requires the board to list a toll-free number, if applicable.
SECTION 11. Amends Sections 1-4, Article 4550a, V.T.C.S., as follows:

Sec. 1. Makes nonsubstantive changes.

Sec. 2. (a)-(d) Make conforming and nonsubstantive changes.

(e) Provides that a person may renew a license up to one year, rather than two years, after
it expires. Authorizes the board to adopt rules for renewal without reexamination of an
expired license if a person has moved to another state and has been in practice in the other
state for two years preceding application, providing the person pays the examination fee.

(f) Requires the board to send written notice at least 30 days before impending license
expiration. Deletes requirement that the board attempt to obtain signed notice from the
licensee confirming receipt of notification.

(g) Makes no changes.

(h) Requires the board, by rule, to adopt a system under which licenses expire throughout
the year. Sets forth requirements for determining renewal fees.
Sec. 3. Requires the board to file an annual report accounting for all funds in the manner
provided by the General Appropriations Act and makes conforming changes.

Sec. 4. (a)-(c) Make conforming and nonsubstantive changes.

(d) Requires the director or a designee to prepare a written statement for a program of
equal employment opportunity (statement). Sets forth requirements for the statement.

(e) Requires the statement to cover an annual period and be updated and reviewed
annually and filed with the governor's office.

(f) Requires the governor's office to deliver a biennial report based on the statement.

(g) Requires the board to clearly define the respective responsibilities of the board and
board staff.

(h) Requires the board to prepare and maintain a written plan that provides a non-English
speaker with access to the board's programs and to comply with federal and state
accessibility laws.

(i) Requires the board to provide the public with a reasonable opportunity to appear before
the board.
SECTION 12. Amends Article 4551, V.T.C.S., as follows:

Art. 4551. FEES AND EXPENSES. (a) Provides that a member may receive reimbursement
for expenses incurred in performing official duties.

(b) Requires the board to establish fees to cover administration costs, rather than setting
limits on fees.
SECTION 13. Amends Section 4A, Article 4551e, V.T.C.S., as follows:

Sec. 4A. DENTAL HYGIENE ADVISORY COMMITTEE. Sets forth more specific
requirements for composition of the Dental Hygiene Advisory Committee (committee).
SECTION 14. Amends Section 5, Chapter 475, Article 4551e, V.T.C.S., as follows:

Sec. 5. EXAMINATION. (a) Created from existing text and makes nonsubstantive changes.
Requires the board to contract with an independent or regional testing service for any
required clinical examination. Authorizes the board to use the services of Texas licensed
dental hygienists to provide assistance if the regional testing service is used. Requires the
written portion of the examination to be validated by an independent testing professional.

(b) Requires the board, by rule, to set the number of and conditions for examination
retakes. Authorizes the board to require an applicant who fails the examination to meet
additional education requirements. Makes conforming changes.
SECTION 15. Amends Article 4551e, V.T.C.S., by adding Section 5A, as follows:

Sec. 5A. CONTINUING EDUCATION. Sets forth requirements for continuing education
programs and requirements that the board, by rule, must set for continuing education
programs.
SECTION 16. Amends Section (6)(a), Article 4551f, V.T.C.S., to make conforming changes.

SECTION 17. Amends Section (7), Article 4551f, V.T.C.S., as follows:

(a)-(c) Make nonsubstantive changes.

(d) Created from existing text of Subsection (b).

(e) Makes conforming changes.

(f) Provides that a person who violates this section commits an offense. Sets forth degree
of offense according to the subsection violated.

(g) Makes conforming changes.

SECTION 18. Amends Chapter 9, Title 71, V.T.C.S., by adding Article 4551n, as follows:

Art. 4551n. EMPLOYMENT OF DENTISTS. (a) Requires the board, by rule, to approve
and certify health organizations to employ dentists upon application by the organization and
presentation of certain criteria to the board.

(b) Requires dentists providing services under Subsection (a) to provide these services
commensurate with the patient's ability to pay in strict compliance with federal codes.

(c) Authorizes the board to refuse to approve or certify health organizations the board
determines is operated with the intent to circumvent this Act.
SECTION 19. Amends Sections 467.0041 (c) and (d), Health and Safety Code, to make
conforming changes.

SECTION 20. Repealer: Article 4551d(b), V.T.C.S. (Rules and regulations of Board).

SECTION 21. (a) Provides that the board is reestablished.

(b) Provides that the board is appropriated $206,168 for the fiscal biennium ending August
31, 1995.

(c) Requires funds received under Article 4550a, V.T.C.S., to be deposited to the dental
registration account. Requires unexpended funds to be deposited to the credit of the dental
registration account.
SECTION 22. Provides that personnel, property and record, and fund transfers that occurred as a
result of the abolition of the board be retransferred to the board.

SECTION 23. Requires the chief coordinator of the Dental Information Resource Center of the
Health Professions Council on January 1, 1995, to serve as the interim director. Sets forth the term,
powers and duties of the interim director.

SECTION 24. Reactivates board rules in existence August 31, 1994, on the date the board is
reestablished under this Act.

SECTION 25. (a) Requires the governor to appoint the members of the board within 90 days of
the effective date of this Act. Sets forth requirements for term limits for initial members.

(b) Provides that initial members are not required to complete the training course before
assuming membership duties and before senate confirmation, but must do so within 12
months of the effective date of this Act.

SECTION 26. Requires the governor and the board to appoint the members of the Dental Hygiene
Advisory Committee (committee) as soon as possible after the reestablishment of the board. Sets
forth requirements for term limits for initial members.

SECTION 27. (a) Requires the committee to develop and recommend rules to the Board to
establish licensure and educational requirements for dental hygienists.

(b) Requires the board to approve or reject the proposed rules, explain the reasons to the
committee for the board's decision, and to act as final authority.

SECTION 28. Prohibits the board from establishing a date on which the committee is abolished
prior to the expiration of four years after the effective date of this Act.

SECTION 29. Makes application of this Act prospective.

SECTION 30. Emergency clause.
Effective date: upon passage.