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Stop making disability a reason for discipline, sunset review says

Colorado's dental practice act has a problem, say state sunset reviewers: If a dentist or dental hygienist has a condition that "significantly disturbs their cogni-tion, behavior, or motor function" and may impair their ability to practice safely, they may have to enter into an agreement or practice limitation with the board.

But those orders are considered discipline and become part of the licensee’s permanent record. The state Department of Regulatory Agencies, in its October 15, 2013, review of the state Board of Dental Examiners, says it does not believe this component of the law is quite fair. “Being injured in a car accident, suffering a stroke, or receiving a diagnosis of bipolar disorder is fundamentally different from committing an act that constitutes grounds for discipline under the law.”

“It seems unjust for a dentist who successfully manages bipolar disorder with medication to be included in the same category as a dentist who has defrauded a patient. Not only does this stigmatize the person with the condition, it can affect his or her ability to participate in provider networks and can increase malpractice insurance rates.”

The reviewers recommend that the board establish that a dentist’s or dental hygienist’s failure to properly address his or her own physical or mental disability is grounds for discipline, and authorize the board to enter into confidential agreements with licensees to address their respective conditions.

The state medical board in Colorado has already been authorized to make these agreements since 2010, as have boards regulating acupuncturists, physical therapists, mental health professionals, pharmacists, and massage therapists. As a result, “Simply having a physical or mental condition or illness is no longer a reason to impose discipline.”

With the medical board, as long as the physician notifies the board, enters into a confidential agreement outlining the measures to be taken to assure safe practice, and adheres to the agreement, there is no violation of the practice act, and the agreement does not appear to be reportable to the federal National Practitioner Data Bank. Licensees subject to discipline for alcohol or substance abuse are not eligible to enter into the confidential agreements, the reviewers note.

Sunset recommendation: Drop ban on board members with past criminal conviction

People who have criminal convictions or who have been disciplined in the past should not automatically be barred from being board members, Colorado state sunset reviewers say in their 2013 review of the state dental board. The dental board should drop this blanket provision, the review recommended.

Not only is this provision unusual, the reviewers point out, but it could automatically disqualify people otherwise qualified to serve on the board—e.g., someone who had successfully completed board probation 15 years ago.

Criminal history must be disclosed anytime one applies for a position on a state board or commission, so the governor would be able to decide whether he or she wishes to appoint the person based on his or her history. “The governor should have maximum flexibility in evaluating potential board members,” the sunset review states.