Navigating the Regulatory Environment for Doctors Part 1 – Board Complaints

Title 32, Chapter 11 of the Arizona Revised Statutes and Title 4, Chapter 11 of the Arizona Administrative Code contain the laws, rules, and regulations that govern the practice of dentistry in the State of Arizona.  Understanding the scope of these laws and regulations, and how they affect both your clinical practice and business practices, is critical to building and growing a successful dental practice in Arizona.  We will provide a series of posts focusing on just a few of the most important statutes and regulations, beginning with the regulatory framework for disciplining doctors and the disciplinary process  administered through the Arizona State Board of Dental Examiners.

Statutory Grounds for Disciplining Dentists

A.R.S. § 32-1263 outlines the grounds for disciplinary action against a dentist by the Dental Board.  Under A.R.S. § 32-1263(A), the Board may invoke disciplinary action against any person licensed under Chapter 32 for the following reasons:

  1. Unprofessional conduct, as defined in § 32-1201.01. This statute lists 30 different categories of what the Arizona legislature has determined to be unprofessional conduct, ranging from drug use to gross malpractice and incompetence to failure to properly maintain records.
  2. Conviction of a felony or of a misdemeanor involving “moral turpitude” (usually crimes involving dishonesty, such as fraud or embezzlement).
  3. Physical or mental incompetence to practice pursuant to this chapter.
  4. Committing or aiding, directly or indirectly, a violation of or noncompliance with any provision of the statutes or of any rules adopted by the Board. This is a general “catchall” provision that can include unethical business practices, as defined in A.R.S. § 32-1263.
  5. Dental incompetence as defined by A.R.S. § 32-1201.

If you have a question about whether your business practices or any of your actions might be in violation of any of these rules, even if you are not subject to a Board action, you should contact an attorney to find out, and to find out how best to remedy the situation.

The Disciplinary Process

What the Board Can Investigate:

Under A.R.S. § 32-1263.02, the Board may investigate any conduct that appears to violate the above rules, either on its own or as the result of a complaint it receives from a third party.  The Board has a form on its website that allows anyone to submit a complaint against a dentist online, which triggers an automatic investigation.

Like most laws involving civil or criminal penalties, there is a statute of limitations on conduct that violates the provisions discussed above.  Generally speaking, the Board cannot act on a complaint alleging conduct that occurred more than six years before it received the complaint.

Below is a timeline of how a case before the Arizona Dental Board progresses, from initial investigation through final adjudication.  It is important to note that you have the right to be represented by an attorney at any point throughout the process.  An attorney can help guide you through and avoid common mistakes that can have significant repercussions for your practice.

How the Board Investigates:

  1. Initial Investigation

In its investigation of a complaint, the Board is authorized to interview the dentist that is the subject of the complaint and conduct “all necessary investigations.”  This may include interviewing the patient/complainant and members of your staff, as well as reviewing clinical records, patient records, and billing reports.  The Board has the power to issue subpoenas for witnesses and documents, to administer oaths and take testimony, and receive exhibits in evidence in connection with an investigation.

If the complaint implicates a quality of care issue, the Board may refer the patient for a clinical evaluation.  It is important to remember that if the Board seeks to interview you with regard to an investigation, you have the right to have an attorney present.

After its initial review of the complaint, the Board has the discretion to order a summary suspension of your license while the investigation is pending if it determines that public health, safety, or welfare requires emergency action.

At the conclusion of the initial investigation, if the Board determines that the information is insufficient to merit discipline, it may take any of the following actions:

  • Dismiss the complaint;
  • Issue a non-disciplinary letter of concern to the dentist;
  • Issue a non-disciplinary order requiring the dentist to complete continuing education hours; or,
  • Assess a non-disciplinary civil penalty no greater than $500.00 if the complaint involves a failure to respond to a Board subpoena.

       2. Formal Interview 

If the Board finds that there is sufficient cause to proceed from its initial investigation, it may request that you participate in a formal interview before the Board.  The formal interview is voluntary, but it gives you an opportunity to present your side of the case, and may persuade the Board that further disciplinary proceedings are not necessary.  Regardless of whether you attend the formal interview, if the Board determines that sufficient cause exists, it will issue a formal complaint and order a hearing.

      3. Hearing

If you are served with notice of a hearing, you must respond in writing within twenty days.  If you fail to do so, the Board will consider that failure an admission of the charges against you and may revoke or suspend your license without a hearing.

The hearing is held pursuant to § 41-1092.07 and is similar to a mini-trial.  You and the complainant may submit evidence, offer witness testimony, and cross-examine one another’s witnesses.

If after the hearing the Board determines that the information is insufficient to merit suspension or revocation of your license, it may take any of the following actions:

  • Dismiss the complaint;
  • Order disciplinary action pursuant to § 32-1263.01(A);
  • Enter into a consent agreement for disciplinary action;
  • Order non-disciplinary continuing education pursuant to § 31-1263.01(B); or
  • Issue a non-disciplinary letter of concern.

A consent agreement is the equivalent of a plea bargain in a criminal case or a settlement in a civil case – in exchange for admitting to a portion of the violation, you may receive a more lenient penalty.

       4. Appeal

Once you receive a copy of the Board’s order, you have the right to petition for a rehearing or review under § 32-1263.02(H) and § 41-1092.09.  From the day you receive a copy of the final order, you have thirty days to file a motion for an administrative review.  Pursuant to Arizona Administrative Code R4-11-1701, the bases on which you can request a rehearing are limited to things like irregularities in the proceedings, newly discovered evidence or a determination that the Board acted in an arbitrary and capricious manner or committed some misconduct in the course of the proceedings.

If you are still unsatisfied with the result after rehearing or review, you may submit the matter for judicial review to the Superior Court.  The filing of a petition for rehearing or review is required to preserve any rights of appeal to the Superior Court that you may wish to pursue.  It is important to keep in mind, however, that the Superior Court will not reinvestigate the facts of your complaint – its only role is to determine whether the Board’s decision is supported by the record.

Potential Disciplinary Options

If, after the hearing, the Board determines that you have committed a violation sufficiently serious to take disciplinary action, the Board may revoke or suspend your license to practice pursuant to § 32-1263.01(A).  In addition, the Board may take any combination of the following actions:

  • Enter a decree of censure, which may require that you pay restitution;
  • Issue an order fixing a period and terms of probation, which may include restitution;
  • Impose an administrative penalty no greater than $2,000.00 for each violation;
  • Impose a requirement of restitution of fees to the aggrieved party;
  • Impose peer review and professional education requirements; and,
  • Impose community service.

Failure to comply with an order of the Board can result in further license suspension or revocation.  All disciplinary and non-disciplinary actions or orders issued by the Board will appear on your profile on the Board’s website.  If your license is suspended or revoked, the Board may post a notice of suspension or revocation at your place of business.  The consequences to your practice and your career can be disastrous, so you should never ignore or dismiss any Board complaint, no matter how frivolous you think it may be.

The Board’s investigative and disciplinary process can be unfamiliar and overwhelming for a dentist who has never been through the process.  Prompt intervention by skilled legal counsel can often make a tremendous difference in determining what, if any, disciplinary action is taken by the Board.  Therefore if you are, or think you may be, the subject of a Board investigation, you should consult with counsel as soon as possible.