By Jonathan Greenbergs
On February 10, 2021, OAL approved the Dental Board of California’s proposed rulemaking on Citations and Fines. This proposed language amends sections 1023.2 and 1023.7 of the CCR to set the maximum penalty for Class A crimes, Class B crimes, and unlicensed practice. Section 1023.2(a) defines a Class A violation as a violation of a statute/regulation that either “presents a substantial probability that death or serious physical harm to a patient could result therefrom” or in which “the person has been issued three class B violations within a 24-month time period immediately preceding the act.” Section 1023.2(b) defines a Class B violations as a violation that involves “a person who has violated a statute/regulation relating to the practice of dentistry which does not present a substantial probability that either death or serious physical harm to a patient will result therefrom.” Finally, Section 1023.7 empowers the executive officer of the Dental Board to “issue a citation . . . against any unlicensed person who is acting in the capacity of a licensee under the jurisdiction of the board and who is not otherwise exempt from licensure.” Class A violations, Class B violations, and unlicensed practice were previously punishable by a minimum fine of $50, with a maximum fine of $2,500. The new regulation doubles the maximum fine for these three classifications of crimes to $5,000.
On February 28, 2020, the Dental Board posted notice of the rulemaking. [25:2 CRLR 8]. According to the Initial Statement of Reasons, this rulemaking is meant to rectify the lower penalty, which was viewed by the Board as insufficient to properly function as a deterrent against violations of statutes and regulations.
On April 9, 2020, the Board explained in its Notice of Cancellation of Hearing that if the Board had received a written request for a public hearing from any interested person, it would hold a hearing. No public hearing was held on this matter.
According to the Board’s notice, when deciding whether to issue a citation, California Code of Regulations section 1023.4 requires that the executive officer consider the following factors when assessing the amount of an administrative fine: (1) the good or bad faith exhibited by the cited person; (2) the nature and severity of the violation; (3) evidence that the violation was willful; (4) history of violations of the same or similar nature; (5) the extent of cooperation with the Board; and (6) the extent to which the cited person has mitigated or attempted to mitigate any damage or injury caused by his or her violation. The Board noted in its rulemaking proposal that it has expanded its use of cite and fine to address a wider range of violations that can be more efficiently and effectively addressed through a cite and fine process with abatement and/or remedial education outcomes.
Further, these fines can be enforced even when patient harm is not found, but the quality of care provided to the customer is substandard. Examples of “lesser” violations include documentation issues, such as recordkeeping; unprofessional conduct for the failure to disclose or report convictions, such as driving under the influence; and disciplinary actions taken by another professional licensing entity.
Although the Board considered alternatives, such as not changing anything or raising the maximum from $2,500 to an alternative number lower than $5,000, these decisions were ultimately rejected as ineffective.
According to the Final Statement of Reasons, this rulemaking is determined to have a small economic impact, estimated at a maximum of $36,000 per year. This is not viewed as a sufficiently large impact to justify more rigorous scrutiny by the state, especially within the context of the dental industry, where the average salary of a dentist in California is approximately $150,000 per year.
When you seek treatment from a dental professional, you expect that, at a minimum, your condition won’t get worse because of the wrongful acts or omissions of the dentist or dental office staff.