S.B. 263 78(R) BILL ANALYSIS
S.B. 263
By: Nelson
Public Health
Committee Report (Amended)
BACKGROUND AND PURPOSE
The State Board of Dental Examiners (SBDE) licenses dental professionals
to practice in Texas and takes enforcement action against practitioners
who violate the law and SBDE's rules. The Sunset Commission found that
SBDE had a large backlog of unresolved cases, some of which were as much
as six years old, and its average time to resolve a complaint was 532
days. S.B. 263 would continue SBDE for the standard 12-year period while
providing tools to strengthen SBDE's enforcement activities and improve
accountability and more timely disposition of complaints. Similarly, S.B.
263 ensures that SBDE has appropriate regulatory authority over dental
practitioners to better protect the public. Finally, S.B. 263 reduces the
size of SBDE from 18 to 15 members, consisting of eight dentists, two
dental hygienists, and five public members.
RULEMAKING AUTHORITY
Rulemaking authority is expressly granted to the State Board of Dental
Examiners in SECTION 13 (Section 256.101, Occupations Code), SECTION 18
(Section 262.1025, Occupations Code), SECTION 19 (Section 263.0075,
Occupations Code), and SECTION 24 (Section 265.005, Occupations Code) of
this bill.
ANALYSIS
Amends Section 251.005, Occupations Code to continue the State Board of
Dental Examiners (SBDE) for the standard 12-year period until September 1,
2015.
Amends Section 252.001, Occupations Code to provide that the SBDE consists
of 15 rather than 18 members. The number of dentist members is reduced by
two and the number of public members is reduced by one.
Amends Section 252.002(d), Occupations Code to update standard language
developed by the Sunset Commission regarding eligibility to serve as a
public member of the SBDE.
Amends Section 252.006, Occupations Code to require SBDE to elect a
secretary from its members to serve for a one-year term and requires the
governor to designate a member of the SBDE as the presiding officer of
SBDE to serve in that capacity at the will of the governor. The presiding
officer is to be a dentist.
Amends Sections 252.007, Occupations Code to provide the grounds for a
removal of a board member due to ineligibility and without an excuse if
approved by a majority vote of the board. The executive director, if he or
she has knowledge that a potential ground for removal exists, is required
to notify the presiding officer. The presiding officer is required to
then notify the governor and the attorney general that a potential ground
for removal exists. The executive director, if the potential ground for
removal involves the presiding officer, is required to notify the next
highest ranking officer of SBDE, who is required to then notify the
governor and the attorney general.
Amends Section 252.010, Occupations Code to provide that a person who is
appointed to and qualifies for office as a member of the SBDE may not
vote, deliberate, or be counted as a member in attendance until the person
completes a training program. The training program must provide the
person with certain enumerated information. A person appointed to the
SBDE is entitled to reimbursement, as provided by the General
Appropriations Act, for travel expenses incurred in attending the training
program regardless of whether the attendance at the program occurs before
or after the person qualifies for office. The SBDE no longer has to
consult with the governor's office or the Texas Ethics Commission in
developing the training program nor does it have to let another state
agency or entity provide the training.
Amends Chapter 253, Occupations Code by adding Section 253.008 which
requires the executive director or the executive director's designee to
provide to SBDE members information and training on the benefits and
methods of participation in the state employee incentive program under
Subchapter B, Chapter 2108, Government Code.
Amends Chapter 254, Occupations Code by adding Section 254.011 to require
SBDE to enter into an agreement with the Health and Human Services
Commission (HHSC) to improve coordination on issues relating to the State
Medicaid program. The agreement must require each agency to perform
certain function.
Amends Section 254.012, Occupations Code to require SBDE to include
certain information in the annual financial report required by Section
2101.011, Government Code, information on all cases handled by SBDE during
the presiding fiscal year involving fraud, abuse, or insufficient quality
of care under the State Medicaid program. Existing language regarding
reporting requirements is deleted.
Amends Chapter 254, Occupations Code by adding Sections 254.013, 254.014,
and 254.015 to require the SBDE to establish a program to provide student
loan reimbursement for dentists and dental hygienists who practice in
rural health professional shortage areas and medically underserved areas
identified by the Texas Department of Health (TDH) and to fund the program
by designating annually a portion of the revenue generated under this
subtitle from dentist and dental hygienist licensing fees. Additonally,
SBDE is to develop and implement a policy requiring the executive director
and board employees to research and propose appropriate technological
solutions to improve the SBDE's ability to perform its functions.
Requirements for the technological solutions are enumerated. Finally SBDE
is required to develop and implement a policy to encourage the use of
certain negotiated rulemaking procedures and alternative dispute
resolution procedures. The procedures relating to alternative dispute
resolution must conform, to the extent possible, to any model guidelines
issued by the State Office of Administrative Hearings for the use of
alternative dispute resolution by state agencies. The SBDE must designate
a trained person to perform certain functions.
Amends Sections 255.004 and 255.005, Occupations Code to require SBDE to
maintain a file on each written compliant filed with SBDE. The file is to
include certain information. SBDE is to provide to the person filing the
complaint and to each person who is a subject of the complaint a copy of
SBDE's policies and procedures relating to complaint investigation and
resolution.
Amends Section 255.006, Occupations Code by amending Subsection (d) and
adding Subsections (d-1) and (d-2) to require the SBDE to adopt rules
establishing procedures by which board staff may dismiss complaints and
expunge dismissed cases from SBDE records under certain circumstances.
Specifies that staff must consult with a dentist SBDE member before
dismissing or expunging a complaint related to patient morbidity,
professional conduct, or quality of care and that the decision must be
made with the appropriate level of review. Dismissals or expungements
under this section must be reported to the SBDE at a public meeting.
Amends Section 256.101, Occupations Code by amending Subsection (a) and
adding Subsection (a1) to reduce the years of practice required for dental
or dental hygienist licensure by credentials from five to three years and
to specify the circumstances under which an applicant for dental or dental
hygiene licensure by credentials could receive a waiver from the
continuous practice requirements.
Amends Subchapter C, Chapter 256, Occupations Code by adding Section
256.1013 which governs the issuance of provisional licenses to qualified
applicants from other jurisdictions.
Amends Section 257.002, Occupations Code to establish additional
guidelines and fee structures for license renewal.
Amends Section 262.053, Occupations Code to prohibit certain persons from
being a member of the advisory committee.
Subchapter B, Chapter 262, Occupations Code,is amended by adding Section
262.0555 which provides grounds for removal from the Dental Hygiene
Advisory Committee, procedures for notification and that the validity of
an action of the advisory committee is not affected by the fact that it is
taken when a ground for removal of an advisory committee member exists.
Subchapter C, Chapter 262, Occupations Code is amended by adding Section
262.1025 to authorizes the Dental Hygiene Advisory Committee to make
recommendations regarding the regulation of dental hygiene that the SBDE
must either adopt or reject. If the SBDE fails to take action on a
recommendation from the Dental Hygiene Advisory Committee before the 91th
day, the SBDE must adopt a rule in accordance with the recommendation.
Chapter 263, Occupations Code, is amended by adding Section 263.0075 to
require SBDE to establish procedures by which a panel of SBDE employees is
authorized to conduct an informal settlement conference to resolve a
complaint against a person licensed under this subtitle. Certain
enumerated criteria must be included in the procedures established. The
SBDE may order a person licensed under this subtitle to pay restitution to
a patient as provided in an agreement resulting from an informal
settlement conference instead of or in addition to assessing an
administrative penalty. The amount of restitution ordered may not exceed
the amount the patient paid for a service. The SBDE may not require
payment of other damages or estimate harm in a restitution order.
Subchapter B, Chapter 264, Occupations Code is amended by adding Sections
264.0525-264.0527 which authorizes SBDE to serve a proposed cease and
desist order on a person SBDE believes is engaging or is likely to engage
in an activity without a license or registration certificate. The order
must meet certain criteria and it takes effect and is final and
nonappealable as to that person, unless the person against whom the
proposed order is directed requests a hearing in writing before the
effective date of the order. A requested hearing on a proposed order is
required to be held not later than the 30th day after the date SBDE
receives the written request for a hearing unless the parties agree to a
later hearing date. SBDE is required, after the hearing, to issue or
decline to issue a cease and desist order. The proposed order may be
modified as necessary to conform to the finding at the hearing. An order
issued under this subsection is immediately final for purposes of
enforcement and appeal and shall require the person to immediately cease
and desist from the unauthorized activity. SBDE is authorized to release
to the public a final cease and desist order or information relating to
the existence of the order if SBDE determines that the release would
enhance the effective enforcement of the order or will serve the public
interest.
SBDE is authorized to issue an emergency cease and desist order to a
person if SBDE reasonably believes that certain enumerated conditions
apply. The order must meet certain enumerated requirements. The
emergency order is final and nonappealable as to that person, unless the
person against whom the emergency order is directed requests a hearing in
writing before the 11th day after the date it is served. SBDE is
required, on receiving a request for a hearing, to serve notice of the
time and place of the hearing by certain methods. The hearing must be
held not later than the 10th day after the date SBDE receives the request
for a hearing unless the parties agree to a later hearing date. SBDE is
required, after the hearing, to take certain actions regarding the
emergency cease and desist order. An order affirming or modifying the
emergency cease and desist order is immediately final for purposes of
enforcement and appeal. An order continues in effect unless the order is
stayed by SBDE and SBDE may impose any condition before granting a stay of
the order. The SBDE may release to the public a final cease and desist
order issued under this section or information regarding the existence of
the order if SBDE determines that the release would enhance the effective
enforcement of the order or will serve the public interest. A person
affected by a cease and desist order issued, affirmed, or modified after a
hearing may file a petition for judicial review. A petition for judicial
review does not stay or vacate the order unless the court, after hearing,
specifically stays or vacates the order.
Chapter 265, Occupations Code is amended by adding Section 265.005 which
prohibits a dental assistant from making dental x-rays unless the dental
assistant holds a certificate of registration issued by SBDE under this
section. In order to qualify for a certificate of registration a dental
assistant must pay a fee in an amount determined by SBDE and meet certain
requirements. SBDE must set the registration fee for a dental assistant
who qualifies under Subsection (b)(1) in an amount greater than the amount
of the registration fee for a dental assistant who qualifies under
Subsection (b)(2). The portion of the examination described by Subsection
(b)(1)(B) must be tailored to a dental assistant's responsibilities and
role in a dental office. The SBDE is required to develop the examination
or contract with another person. The SBDE may create an advisory committee
consisting of certain professionals and educators to advise SBDE in
developing the examination. The examination must be administered by SBDE
or by a testing service under an agreement with SBDE. A certificate of
registration issued under this section must be renewed annually. SBDE
shall develop a mandatory continuing education program for holders of
certificates of registration. SBDE is prohibited from requiring a person
to complete more than 12 hours of continuing education annually. The
curriculum must cover standards of care, procedures for infectious disease
control, and the requirements of this subtitle. A person is prohibited
from renewing a certificate of registration unless the person complies
with the continuing education requirements.
Subtitle D, Title 3, Occupations Code is amended by adding Chapter 267
which prohibits a person from serving as a faculty member of a dental
school unless the person holds a dental school faculty member license
issued under this chapter. A person is prohibited from serving as a
faculty member of a dental hygiene school unless the person holds a dental
hygiene school faculty member license issued under this chapter. This
section does not apply to a person who does not have direct patient
contact. A person is exempt from the requirements of Section 267.001(a)
if the person is licensed to practice dentistry in this state. A person
is exempt from the requirements of Section 267.001(b) if the person is
licensed to practice dentistry or dental hygiene in this state.
A person, in order to qualify for a dental school faculty member license,
must take certain enumerated actions and meet certain requirements. A
person, to qualify for a dental hygiene school faculty member license,
must take certain actions and meet certain requirements. SBDE must set
the application fee in an amount sufficient to cover the cost of
administering this chapter. An applicant can have direct patient contact
before the applicant passes the examination, notwithstanding Section
267.001.
A person issued a license under Chapter 267, Occupations Code must renew
their license annually and expires on the termination of the license
holder's employment with the dental or dental hygiene school. A license
holder whose employment with a dental or dental hygiene school terminates
and who is subsequently employed by the same or a different dental or
dental hygiene school must comply with the requirements for obtaining an
original license, except that the person is not required to retake the
examination. A license issued under Chapter 267, Occupations Code does
not authorize the license holder to engage in the practice of dentistry or
dental hygiene.
Subdivision 5, Section 467.001, Health and Safety Code is amended to
include a dental or dental hygiene school faculty member in the definition
of professional.
The following sections are repealed: Sections 257.003 (Renewal of Expired
License by Out-of-State Practitioner) and 262.057 (Application of Sunset
Act to Advisory Committee), Occupations Code.
One of the four dentist positions on SBDE that have terms scheduled to
expire February 1, 2005, is abolished on September 1, 2003. On or before
September 1, 2003, the members who hold those four positions must
determine by unanimous agreement or by lot which position is abolished and
inform the president of SBDE of that determination. One of the three
dentist positions on SBDE that have terms scheduled to expire February 1,
2007, is abolished on September 1, 2003. On or before September 1, 2003,
the members who hold those four position must determine by unanimous
agreement or by lot which position is abolished on September 1, 2003, and
inform the president of SBDE of that determination. One of the two
public member positions on SBDE that have terms scheduled to expire
February 1, 2009, is abolished on September 1, 2003. On or before
September 1, 2003, the members who hold those two positions must determine
by unanimous agreement or by lot which position is abolished on September
1, 2003, and inform the president of SBDE of that determination.
The changes in law made by Section 252.006, Occupations Code as amended by
this Act, do not affect the entitlement of a person who was serving as
president of the SBDE immediately before September1, 2003, to continue
serve and function in that capacity for the remainder of the person's term
as president.
The changes in law made by Section 252.010, Occupations Code as amended
by this Act, do not affect the entitlement of a member serving on the SBDE
immediately before September1, 2003, to continue serve and function as a
member for the remainder of the person's term. Those changes in law apply
only to a member appointed on or after September 1, 2003.
If before implementing Section 254.011, Occupations Code, as added by this
Act, a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision, the
agency affected is required to request the waiver or authorization and is
authorized to delay implementing that provision until the waiver or
authorization is granted.
The changes in law made by Section 262.053, Occupations Code as amended by
this Act, do not affect the entitlement of a member serving on the Dental
Hygiene Advisory Committee immediately before September1, 2003, to
continue serve and function as a member for the remainder of the person's
term. Those changes in law apply only to a member appointed on or after
September 1, 2003.
SBDE and HHS must enter into an agreement under Section 254.011,
Occupations Code, as added by this Act, not later than January 1, 2004. A
person is not required to obtain a certificate of registration under
Section 265.005, Occupations Code, as added by this Act, before September
1, 2004. A person who qualified for registration with SBDE under 22
T.A.C. Section 115.10 before September 1, 2004, by successfully completing
the examination described by Subdivision (3), Subsection (e) of that
section is not required to obtain a certificate of registration under
Section 265.005, Occupations Code, as added by this Act, before September
1, 2006, notwithstanding Subsection (c) of this section. Section 267.001,
Occupations Code, as added by this Act, takes effect March 1, 2004. A
person who was employed as a faculty member by a dental or dental hygiene
school before September 1, 2003, is not required to obtain a license under
Chapter 267, Occupations Code, as added by this Act, before September 1,
2004, notwithstanding Subsection(e) of this section. This Section and
Section 28 of this Act take effect upon passage or on September 1, 2003.
EFFECTIVE DATE
September 1, 2003.
EXPLANATION OF AMENDMENTS
Amendment 1. In Section 10 of the bill, strike proposed Section 254.013,
Occupations Code which deals with the Rural Dentist and Dental Hygienist
Loan Reimbursement Program.
Amendment 2.
Section 257.004(a), Occupations Code is amended to require that a person
holding a dental or dental hygienist license submit at the time the person
applies for renewal of the license a written statement executed by the
person stating that the person has successfully completed a current
program or course in cardiopulmonary resuscitation that includes a
demonstration of skills and a written evaluation.
Add Section 257.004(b), Occupations Code to the list of sections to be
repealed.
Amendment 3.
In proposed Section 267.001(b), Occupations Code of the bill, between "a"
and dental hygiene school faculty member license" insert the words
"dental school faculty member license or".