SB382- Proposed Rule Changes

Many have reached out and asked about current pending changes to the mental evaluation changes that are present before our current legislative session. In an effort to make sure that everyone understands potential changes to our governing statutes, NCDHA reached out to the NC Dental Board of Examiners for clarification for what these changes would mean for dental providers in NC.

Current laws in North Carolina are:

NCGS 90-41(a)(2) which requires dentist not to be impaired by intoxicants, drugs, or narcotics:

NCGS 90-41(a)(7) which requires dentists to be mentally, emotionally, and physically fit to practice dentistry:

90-41. Disciplinary action.

(a) The North Carolina State Board of Dental Examiners shall have the power and authority to (i) Refuse to issue a license to practice dentistry; (ii) Refuse to issue a certificate of renewal of a license to practice dentistry; (iii) Revoke or suspend a license to practice dentistry; and (iv) Invoke such other disciplinary measures, censure, or probative terms against a licensee as it deems fit and proper; in any instance or instances in which the Board is satisfied that such applicant or licensee:

(1) Has engaged in any act or acts of fraud, deceit or misrepresentation in obtaining or attempting to obtain a license or the renewal thereof;

(2) Is a chronic or persistent user of intoxicants, drugs or narcotics to the extent that the same impairs his ability to practice dentistry;

(3) Has been convicted of any of the criminal provisions of this Article or has entered a plea of guilty or nolo contendere to any charge or charges arising therefrom;

(4) Has been convicted of or entered a plea of guilty or nolo contendere to any felony charge or to any misdemeanor charge involving moral turpitude;

(5) Has been convicted of or entered a plea of guilty or nolo contendere to any charge of violation of any state or federal narcotic or barbiturate law;

(6) Has engaged in any act or practice violative of any of the provisions of this Article or violative of any of the rules and regulations promulgated and adopted by the Board, or has aided, abetted or assisted any other person or entity in the violation of the same;

(7) Is mentally, emotionally, or physically unfit to practice dentistry or is afflicted with such a physical or mental disability as to be deemed dangerous to the health and welfare of his patients. An adjudication of mental incompetency in a court of competent jurisdiction or a determination thereof by other lawful means shall be conclusive proof of unfitness to practice dentistry unless or until such person shall have been subsequently lawfully declared to be mentally competent;

Note that this statute mentions “adjudication of mental incompetency in a court of competent jurisdiction.” Currently, that is the only way the Board can require a dentist to be evaluated. We have to go to court…a very public proceeding…and get a judge to order a dentist to get an evaluation unless the dentist consents. We would also have to report the adjudication of the court to the National Practitioners Date Bank which could have an impact on the dentist’s practice. 

The addition of (7a) would allow the Board to order an evaluation when sufficient evidence or probable cause exists to believe that a dentists may be mentally, emotionally, or physically unfit to practice. Such an order would come only after an investigation confirmed sufficient evidence and would be non-public, i.e., it would not have the potential disruptive personal and practice effects of appearing before a judge. (Note: This mirrors a the statutory authority of the Medical Board that already allows non-public evaluations of MD’s to occur.) If an evaluation comes back negative (no concerns with mental, emotional, or physical unfitness) the case would be closed and not subject to disclosure to the public.

Understanding who makes a complaint and how the board reviews and acts upon those complaints?

Anyone can file a complaint with the Board – colleague, staff member, family, patient, insurance company, etc. Most complaints filed with the Board have to be in writing and notarized. However, there are a few types of complaints where the complainant may be anonymous. We accept anonymous complaints only in those instances where the facts/evidence can be independently verified. (Example: a complaint of unsanitary office conditions can be verified by inspecting the office.) However, it is important to note that the evaluation considered in (7a) would never be based solely on a complaint. A (7a) evaluation would be ordered only after an investigation revealed sufficient evidence or probable cause to believe that the dentist was mentally, emotionally, or physically unfit to practice. The investigation would be directed by a dentist on the Board and, before an evaluation could be ordered, a redacted version of the facts (eliminating all personally identifiable information of the dentist) would have to be approved by the entire Board. (Staff has no vote in these matters.)

Is the ability to practice dependent on mental status?

The (7a) evaluation changes nothing in the statute. The ability to practice dentistry is currently dependent on mental, emotional, and physical fitness. (7a) merely gives the Board an opportunity to order an evaluation “quietly” without having to appear before a judge to seek such an order. If the Board received an evaluation report from an expert that stated a dentist is unfit to practice it would not result in an “automatic” disciplinary action. The report would simply be one piece of evidence that could be used in a hearing before the Board. The Dentist who was the subject of the evaluation report could challenge the report, present evidence to the contrary, cross-examine witnesses, provide alternative testimony and take any other steps allowed in a hearing – either him/herself or through legal counsel – to overcome the Board’s (7a) evaluation report and any other evidence.