Senate Bill No. 580

(By Senator Stollings)

____________

[Introduced March 20, 2013; referred to the Committee on Health and Human Resources; and then to the Committee on Government Organization.]

____________

A BILL to repeal §30-4-8a, §30-4-10a, §30-4-25, §30-4-26, §30-4-27, §30-4-28 and §30-4-29 of the Code of West Virginia, 1931, as amended; to repeal §30-4A-6a, §30-4A-6b, §30-4A-6c, §30-4A-6d and §30-4A-18 of said code; to repeal §30-4B-5, §30-4B-6, §30-4B-7 and §30-4B-8 of said code; to amend and reenact §30-4-1, §30-4-2, §30-4-3, §30-4-4, §30-4-5, §30-4-6, §30-4-7, §30-4-8, §30-4-9, §30-4-10, §30-4-11, §30-4-12, §30-4-13, §30-4-14, §30-4-15, §30-4-16, §30-4-17, §30-4-18, §30-4-19, §30-4-20, §30-4-21, §30-4-22, §30-4-23 and §30-4-24 of said code; to amend and reenact §30-4A-1, §30-4A-2, §30-4A-3, §30-4A-4, §30-4A-5, §30-4A-6, §30-4A-7, §30-4A-8, §30-4A-9, §30-4A-10, §30-4A-11, §30-4A-12, §30-4A-13, §30-4A-14, §30-4A-15, §30-4A-16 and §30-4A-17 of said code; and to amend and reenact §30-4B-1, §30-4B-2, §30-4B-3 and §30-4B-4 of said code, all relating to the practice of dentistry; prohibiting the practice of dentistry without a license; providing other applicable sections; providing definitions; providing for board composition; setting forth the powers and duties of the board; clarifying rule-making authority; continuing a special revenue account; establishing license, certification and permit requirements; creating a scope of practice; creating a temporary permit; establishing renewal requirements; providing for exemptions from licensure; providing requirements for the display of a board authorization; permitting the board to file an injunction; setting forth grounds for disciplinary actions; allowing for specific disciplinary actions; providing procedures for investigation of complaints; providing for judicial review and appeals of decisions; setting forth hearing and notice requirements; providing for civil causes of action; providing criminal penalties; and updating references.

Be it enacted by the Legislature of West Virginia:

That §30-4-8a, §30-4-10a, §30-4-25, §30-4-26, §30-4-27, §30-4-28 and §30-4-29 of the Code of West Virginia, 1931, as amended, be repealed; that §30-4A-6a, §30-4A-6b, §30-4A-6c and §30-4A-6d and §30-4A-18 of said code be repealed; that §30-4B-5, §30-4B-6, §30-4B-7 and §30-4B-8 of said code be repealed; that §30-4-1, §30-4-2, §30-4-3, §30-4-4, §30-4-5, §30-4-6, §30-4-7, §30-4-8, §30-4-9, §30-4-10, §30-4-11, §30-4-12, §30-4-13, §30-4-14, §30-4-15, §30-4-16, §30-4-17, §30-4-18, §30-4-19, §30-4-20, §30-4-21, §30-4-22, §30-4-23 and §30-4-24 of said code be amended and reenacted; that §30-4A-1, §30-4A-2, §30-4A-3, §30-4A-4, §30-4A-5, §30-4A-6, §30-4A-7, §30-4A-8, §30-4A-9, §30-4A-10, §30-4A-11, §30-4A-12, §30-4A-13, §30-4A-14, §30-4A-15, §30-4A-16 and §30-4A-17 of said code be amended and reenacted; and that §30-4B-1, §30-4B-2, §30-4B-3 and §30-4B-4 of said code be amended and reenacted, all to read as follows:

ARTICLE 4. WEST VIRGINIA DENTAL PRACTICE ACT.

§30-4-1. Unlawful acts.

(a) It is unlawful for any person to practice or offer to practice dentistry or dental hygiene in this state without a license, issued under the provisions of this article, or advertise or use any title or description tending to convey or give the impression that they are a dentist or dental hygienist, unless the person is licensed under the provisions of this article.

(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of dentistry, except through a licensee.

§30-4-2. Applicable law.

The practices authorized under the provisions of this article and the board of Dentistry are subject to article one of this chapter, the provisions of this article, and any rules promulgated hereunder.

§30-4-3. Definitions.

As used in article four, four-a and four-b, the following words and terms have the following meanings:

(1) “AAOMS” means the American Association of Oral and Maxillofacial Surgeons;

(2) “AAPD” means the American Academy of Pediatric Dentistry;

(3) "ACLS" means Advanced Cardiac Life Support;

(4) "ADA" means the American Dental Association;

(5) "AMA" means the American Medical Association;

(6) “ASA” means American Society of Anesthesiologists;

(7)"Anxiolysis(anxiety-free)/minimal sedation" or premedication for anxiety - means removing, eliminating or decreasing anxiety by the use of a single anxiety or analgesia medication that is administered in an amount consistent with the manufacturer's current recommended dosage for the unsupervised treatment of anxiety, insomnia or pain, in conjunction with nitrous oxide and oxygen. This does not include multiple dosing or exceeding current normal dosage limits set by the manufacturer for unsupervised use by the patient (at home), for the treatment of anxiety;

(8) “Approved dental hygiene program” means a program that is approved by the board and is accredited or its educational standards are deemed by the board to be substantially equivalent to those required by the Commission on Dental Accreditation of the American Dental Association;

(9) “Approved dental school, college or dental department of a university” means a dental school, college or dental department of a university that is approved by the board and is accredited or its educational standards are deemed by the board to be substantially equivalent to those required by the Commission on Dental Accreditation of the American Dental Association;

(10) “Authorize” means that the dentist is giving permission or approval to dental auxiliary personnel to perform delegated procedures in accordance with the dentist’s diagnosis and treatment plan;

(11) "BLS" means Basic Life Support;

(12) “Board” means the West Virginia Board of Dentistry;

(13) "Business entity" means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity;

(14) "Central Nervous System Anesthesia" means an induced controlled state of unconsciousness or depressed consciousness produced by a pharmacologic method;

(15) “Certificate of qualification” means a certificate authorizing a dentist to practice a specialty;

(16) "CPR" means Cardiopulmonary Resuscitation;

(17) "Conscious sedation/Moderate sedation" means an induced controlled state of depressed consciousness, produced through the administration of nitrous oxide and oxygen and/or the administration of other agents whether enteral or parenteral, in which the patient retains the ability to independently and continuously maintain an airway and to respond purposefully to physical stimulation and to verbal command;

(18) “CRNA” means Certified Registered Nurse Anesthetist;

(19) “Delegated procedures” means those procedures specified by law or by rule of the board and performed by dental auxiliary personnel under the supervision of a licensed dentist;

(20) “Dentist Anesthesiologist” means a dentist who is trained in the practice of anesthesiology and has completed an additional approved anesthesia education course;

(21) “Dental assistant” means a person qualified by education, training or experience who aids or assists a dentist in the delivery of patient care in accordance with delegated procedures as specified by the board by rule or who may perform nonclinical duties in the dental office;

(22) “Dental auxiliary personnel” or “auxiliary” means dental hygienists and dental assistants who assist the dentist in the practice of dentistry;

(23) “Dental Hygiene” means the performance of educational, preventive or therapeutic dental services and as further provided in section nine and legislative rule;

(24) “Dental hygienist” means a person licensed by the board to practice provides dental hygiene and other services as specified by the board by rule to patients in the dental office and in a public health setting;

(25) “Dental laboratory” means a business performing dental laboratory services;

(26) “Dental laboratory services” means the fabricating, repairing or altering of a dental prosthesis;

(27) “Dental laboratory technician” means a person qualified by education, training or experience who has completed a dental laboratory technology education program and who fabricates, repairs or alters a dental prosthesis in accordance with a dentist’s work authorization;

(28) “Dental office” means the place where the licensed dentist and dental auxiliary personnel are practicing dentistry;

(29) “Dental prosthesis” means an artificial appliance fabricated to replace one or more teeth or other oral or peri-oral structure in order to restore or alter function or aesthetics;

(30) “Dentist” means an individual licensed by the board to practice dentistry;

(31) “Dentistry” means the evaluation, diagnosis, prevention and treatment of diseases, disorders and conditions of the oral cavity, maxillofacial area and the adjacent and associated structures provided by a dentist;

(32) “Direct supervision” means supervision of dental auxiliary personnel provided by a licensed dentist who is physically present in the dental office or treatment facility when procedures are being performed;

(33) “Facility Permit” means a permit for a facility where sedation procedures are used that correspond with the level of anesthesia provided;

(34) "General anesthesia" means an induced controlled state of unconsciousness in which the patient experiences complete loss of protective reflexes, as evidenced by the inability to independently maintain an airway, the inability to respond purposefully to physical stimulation, or the inability to respond purposefully to verbal command. "Deep conscious sedation/general anesthesia" includes partial loss of protective reflexes and the patient retains the ability to independently and continuously maintain an airway;

(35) “General supervision” means a dentist is not required to be in the office or treatment facility when procedures are being performed by the auxiliary dental personnel, but has personally diagnosed the condition to be treated, has personally authorized the procedures and will evaluate the treatment provided by the dental auxiliary personnel;

(36) “Good moral character” means a lack of history of dishonesty;

(37) "Health Care Provider BLS/CPR" means Health Care Provider Basic Life Support/Cardiopulmonary Resuscitation;

(38) “License” means a license to practice dentistry or dental hygiene;

(39) “Licensee” means a person holding a license;

(40) “Mobile Dental Facility” any self-contained facility in which dentistry or dental hygiene will be practiced which may be moved, towed, or transported from one location to another;

(41) “Other dental practitioner” means those persons excluded from the definition of the practice of dentistry under the provisions of subsections (3), (4) and (5), section twenty-nine of this article and also those persons who hold teaching permits which have been issued to them under the provisions of section fourteen of this article;

(42) "PALS" means Pediatric Advanced Life Support;

(43) “Pediatric Patient” means infants and children;

(44) “Physician Anesthesiologist” means a physician, MD or DO, who is specialized in the practice of anesthesiology;

(45) “Portable Dental Unit” any nonfacility in which dental equipment, utilized in the practice of dentistry, is transported to and utilized on a temporary basis an out-of-office location, including, but not limited to, patient’s homes, schools, nursing homes, or other institutions;

(46) “Public health practice” means treatment or procedures in a public health setting which shall be designated by a rule promulgated by the board to require direct, general or no supervision of a dental hygienist by a dentist;

(47) “Public health setting” means hospitals, schools, correctional facilities, jails, community clinics, long-term care facilities, nursing homes, home health agencies, group homes, state institutions under the West Virginia Department of Health and Human Resources, public health facilities, homebound settings, accredited dental hygiene education programs and any other place designated by the board by rule;

(48) “Qualified Monitor” means an individual who by virtue of credentialing and/or training checks closely and documents the status of a patient undergoing anesthesia and observes utilized equipment;

(49) "Relative analgesia/minimal sedation" means an induced controlled state of minimally depressed consciousness, produced solely by the inhalation of a combination of nitrous oxide and oxygen, or single oral premedication without the addition of nitrous oxide and oxygen in which the patient retains the ability to independently and continuously maintain an airway and to respond purposefully to physical stimulation and to verbal command. Dosage of oral premedication is not to exceed the recommended dosage limits set by the manufacturer for the treatment of anxiety, insomnia or pain;

(50) “Specialty” means the practice of a certain branch of dentistry;

(51) "Subcommittee" means West Virginia Board of Dentistry Subcommittee on Anesthesia;

(52) “Work authorization" means a written order for dental laboratory services which has been issued by a licensed dentist or other dental practitioner.

§30-4-4. Board of dental examiners.

(a) The "West Virginia Board of Dental Examiners" is continued and on July 1, 2013, the board shall be renamed the “West Virginia Board of Dentistry”. The members of the board in office on the date this section takes effect shall, unless sooner removed, continue to serve until their respective terms expire and until their successors have been appointed and qualified.

(b) The Governor, by and with the advice and consent of the Senate, shall appoint:

(1) Six licensed dentists;

(2) One licensed dental hygienist;

(3) One nationally certified dental assistant or currently practicing dental assistant with a minimum of ten years experience and;

(4) One citizen member who is not licensed under the provisions of this article and does not perform any services related to the practice of dentistry.

(c) The West Virginia Dental Association may submit recommendations to the Governor for the appointment of the licensed dentists board members, the West Virginia Association of Dental Hygienists may submit recommendations to the Governor for the appointment of a Dental Hygienist board member, and the West Virginia Dental Assistant Association may submit recommendations to the Governor for the appointment of an Dental Assistant board member.

(d) A person connected with a commercial entity that may derive financial gain from the profession of dentistry and a person employed as full-time faculty with a dental college, school or dental department of a university are not eligible for appointment to the board.

(e) After the initial appointment term, the appointment term is five years. A member may not serve more than two consecutive terms. A member who has served two consecutive full terms may not be reappointed for at least one year after completion of his or her second full term. A member may continue to serve until his or her successor has been appointed and qualified.

(f) Each licensed member of the board, at the time of his or her appointment, shall have held a license in this state for a period of not less than five years immediately preceding the appointment.

(g) Each member of the board shall be a resident of this state during the appointment term.

(h) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant.

(i) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

(j) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked in any jurisdiction.

(k) A member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

(l) The board shall elect annually one of its members as president and one member as secretary who shall serve at the will and pleasure of the board.

(m) Each member of the board is entitled to receive compensation and expense reimbursement in accordance with article one of this chapter.

(n) A simple majority of the membership serving on the board at a given time is a quorum for the transaction of business.

(o) The board shall hold at least two meetings annually. Other meetings shall be held at the call of the president or upon the written request of four members, at the time and place as designated in the call or request.

(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

(q) The members of the board when acting in good faith and without malice shall enjoy immunity from individual civil liability while acting within the scope of their duties as board members.

§30-4-5. Powers of the board.

The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law, including:

(1) Hold meetings;

(2) Establish procedures for submitting, approving and rejecting applications for a license, certificate and permit;

(3) Determine the qualifications of any applicant for a license, certificate and permit;

(4) Establish the fees charged under the provisions of this article;

(5) Issue, renew, deny, suspend, revoke or reinstate a license, certificate and permit;

(6) Prepare, conduct, administer and grade written, oral or written and oral examinations for a license;

(7) Contract with third parties to administer the examinations required under the provisions of this article;

(8) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examination and the pass and fail rate;

(9) Maintain an office, and hire, discharge, establish the job requirements and fix the compensation of employees and contract with persons necessary to enforce the provisions of this article.

(10) Employ investigators, attorneys, hearing examiners, consultants and other employees as may be necessary, who are exempt from the classified service and who serve at the will and pleasure of the board.

(11) Investigate alleged violations of the provisions of this article, article four-a and article four-b of this chapter, legislative rule, orders and final decisions of the board;

(12) Conduct disciplinary hearings of persons regulated by the board;

(13) Determine disciplinary action and issue orders;

(14) Institute appropriate legal action for the enforcement of the provisions of this article;

(15) Maintain an accurate registry of names and addresses of all persons regulated by the board;

(16) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

(17) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article;

(18) Sue and be sued in its official name as an agency of this state; and

(19) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§30-4-6. Rule-making authority.

(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, and articles four-a and four-b of this chapter including:

(1) Standards and requirements for licenses, certifications and permits;

(2) Requirements for third parties to prepare and/or administer examinations and reexaminations;

(3) Educational and experience requirements;

(4) Continuing education requirements and approval of continuing education courses;

(5) Procedures for the issuance and renewal of licenses, certifications and permits;

(6) Establish a fee schedule;

(7) Regulate dental specialities;

(8) Delegate procedures to be performed by a dental hygienist;

(9) Delegate procedures to be performed by a dental assistant;

(10) Designate the services and procedures performed under direct supervision, general supervision in public health practice;

(11) Designate additional public health settings;

(12) Regulate the use of firm or trade names;

(13) Regulate dental corporations;

(14) Regulate professional limited liability companies;

(15) Establish professional conduct requirements;

(16) Establish the procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees, certifications and permitees;

(17) Establish requirements for inactive or revoked licenses, certifications and permits;

(18) Regulate dental anesthesia, including:

(A) Fees;

(B) Evaluations;

(D) Emergency Drugs;

(E) Definitions;

(F) Qualified Monitor Requirements; and

(G) Education;

(19) Any other rules necessary to implement this article.

(b) All of the board's rules in effect and not in conflict with these provisions, shall remain in effect until they are amended or rescinded.

§30-4-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue fund in the State Treasury designated the "Board of Dentists and Dental Hygienist Special Fund", which is continued and shall be known as the "Board of Dentistry Special Fund". The fund is used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.

§30-4-8. License to practice dentistry.

(a) The board shall issue a license to practice dentistry to an applicant who meets the following requirements:

(1) Is at least eighteen years of age;

(2) Is of good moral character;

(3) Is a graduate of and has a diploma from a Commission on Dental Accreditation or equivalent approved dental college, school or dental department of a university;

(4) Has passed the National Board examination as given by the Joint Commission on National Dental Examinations and a clinical board as specified by the board by rule;

(5) Has not been found guilty of cheating, deception or fraud in the examination or any part of the application;

(6) Has paid the application fee specified by rule; and

(7) Not be an alcohol or drug abuser, as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code: Provided, That an applicant in an active recovery process, which may, in the discretion of the board, be evidenced by participation in a twelve-step program or other similar group or process, may be considered.

(b) A dentist may not represent to the public that he or she is a specialist in any branch of dentistry or limit his or her practice to any branch of dentistry unless first issued a certificate of qualification in that branch of dentistry by the board.

(c) A license to practice dentistry issued by the board shall for all purposes be considered a license issued under this section: Provided, That a person holding a license shall renew the license.

§30-4-9. Scope of practice of a dentist.
The practice of dentistry includes the following:

(1) Coordinate dental services to meet the oral health needs of the patient;

(2) Examine, evaluate and diagnose diseases, disorders and conditions of the oral cavity, maxillofacial area and adjacent and associated structures;

(3) Treat diseases, disorders and conditions of the oral cavity, maxillofacial area and the adjacent and associated structures;

(4) Provide services to prevent diseases, disorders and conditions of the oral cavity, maxillofacial area and the adjacent and associated structures;

(5) Fabricate, repair or alter a dental prosthesis;

(6) Administer anesthesia in accordance with the provisions of article four-a of this chapter;

(7) Prescribe drugs necessary for the practice of dentistry;

(8) Execute and sign a death certificate when it is required in the practice of dentistry;

(9) Employ and supervise dental auxiliary personnel;

(10) Authorize delegated procedures to be performed by dental auxiliary personnel; and

(11) Perform any other work included in the curriculum of an approved dental school, college or dental department of a university.

§30-4-10. License to practice dental hygiene.

(a) The board shall issue a dental hygienist license to an applicant who meets the following requirements:

(1) Is at least eighteen years of age;

(2) Is of good moral character;

(3) Is a graduate with a degree in dental hygiene from an approved dental hygiene program of a college, school or dental department of a university;

(4) Has passed the national board dental hygiene examination, a regional or state clinical examination and a state law examination that tests the applicant's knowledge of subjects specified by the board by rule;

(5) Has not been found guilty of cheating, deception or fraud in the examination or any part of the application;

(6) Has paid the application fee specified by rule; and

(b) A dental hygienist license issued by the board shall for all purposes be considered a dental hygienist license issued under this section: Provided, That a person holding a dental hygienist license shall renew the license.

§30-4-11. Scope of practice for a dental hygienist.
The practice of dental hygiene includes the following:

(1) Perform a complete prophylaxis, including the removal of any deposit, accretion or stain from supra and subgingival, the surface of a tooth or a restoration;

(2) Apply a medicinal agent to a tooth for a prophylactic purpose;

(3) Take a radiograph for interpretation by a dentist;

(4) Instruct a patient on proper oral hygiene practice;

(5) Place sealants on a patient’s teeth without a prior examination by a licensed dentist: Provided, That for this subdivision, the dental hygienist has a public health practice permit issued by the board, and subject to a collaborative agreement with a supervising dentist and the patient is referred for a dental examination within six months of sealant application;

(6) Perform all delegated procedures of a dental hygienist specified by rule by the board; and

(7) Performing all delegated procedures of a dental assistant specified by rule by the board.

§30-4-12. License renewal.

(a) All persons regulated by this article shall annually or biannually, renew his or her board authorization by completing a form prescribed by the board and submitting any other information required by the board.

(b) The board shall charge a fee for each renewal of a board authorization and shall charge a late fee for any renewal not paid by the due date.

(c) The board shall require as a condition of renewal that each licensee, certificate holder or permittee complete continuing education.

(d) The board may deny an application for renewal for any reason which would justify the denial of an original application.

§30-4-13. Board authorizations shall be displayed.

(a) The board shall prescribe the form for a board authorization, and may issue a duplicate upon payment of a fee.

(b) Any person regulated by the article shall conspicuously display his or her board authorization at his or her principal business location.

§30-4-14. Dental intern, resident, or teaching permit.

(a) The board may issue a dental intern or dental resident permit to an applicant who has been accepted as a dental intern or dental resident by a licensed hospital or dental school in this state which maintains an established dental department under the supervision of a licensed dentist and meets the following qualifications:

(1) Has graduated from a Commission on Dental Accreditation or equivalent approved dental college, school or dental department of a university with a degree in dentistry;

(2) Has paid the application fee specified by rule; and

(3) Meets the other qualifications specified by rule.

(b) The dental intern or dental resident permit may be renewed and expires on the earlier of:

(1) The date the permit holder ceases to be a dental intern or dental resident; or

(2) One year after the date of issue.

(c) The board may issue a teaching permit to an applicant who is not otherwise licensed to practice dentistry in this state and who meets the following conditions:

(1) Shall have authorization or has been eligible for a authorization to practice dentistry in another jurisdiction;

(2) Has met or been approved under the credentialing standards of a dental school or an academic medical center with which the person is to be affiliated; the dental school or academic medical center shall be accredited by the Commission on Dental Accreditation or Joint Commission on Accreditation of Health Care Organizations;

(3) The permittee may teach and practice dentistry in or on behalf of a dental school or college offering a doctoral degree in dentistry operated and conducted in this state, in connection with an academic medical center or at any teaching hospital adjacent to a dental school or an academic medical center;

(4) May be renewed annually with a written recommendation from the dental school dean;

(5) Shall successfully complete the West Virginia Dental Law Examination;

(6) Shall pay annual renewal fees to the board;

(7) Shall comply with continuing education requirements;

(8) Has had no disciplinary actions taken or pending against him or her by any other jurisdiction; and

(9) Shall be responsible for the permit as would a regular dental license.

(d) While in effect, a permittee is subject to the restrictions and requirements imposed by this article. In addition, a permittee may not receive any fee for service other than a salary paid by the hospital or dental school.

§30-4-15. Special volunteer dentist or dental hygienist license; civil immunity for voluntary services rendered to indigents.

(a) There is continued a special volunteer dentist and dental hygienist license for dentist and dental hygienists retired or retiring from the active practice of dentistry and dental hygiene who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer dentist or dental hygienist license shall be issued by the board to dentist or dental hygienists licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licensing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the dental hygienist’s acknowledgment that:

(1) The dentist or dental hygienist’s practice under the special volunteer dentist or dental hygienist license will be exclusively devoted to providing dentistry or dental hygiene care to needy and indigent persons in West Virginia;

(2) The dentist or dental hygienist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any dentistry or dental hygiene services rendered under the special volunteer dentist or dental hygienist license;

(3) The dentist or dental hygienist will supply any supporting documentation that the board may reasonably require; and

(4) The dentist or dental hygienist agrees to continue to participate in continuing professional education as required by the board for the special volunteer dentist or dental hygienist.

(b) Any dentist or dental hygienist who renders any dentistry or dental hygiene service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer dentist or dental hygienist license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the dental hygiene service at the clinic unless the act or omission was the result of the dentist’s or dental hygienist’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there shall be a written agreement between the dentist or dental hygienist and the clinic pursuant to which the dentist or dental hygienist will provide voluntary uncompensated dental hygiene services under the control of the clinic to patients of the clinic before the rendering of any services by the dentist or dental hygienist at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.

(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a dentist or dental hygienist rendering voluntary dental hygiene services at or for the clinic under a special volunteer dentist or dental hygienist license authorized under subsection (a) of this section.

(d) For purposes of this section, “otherwise eligible for licensure” means the satisfaction of all the requirements for licensure as listed in section ten of this article and in the legislative rules promulgated thereunder, except the fee requirements of subdivision six of that section and of the legislative rules promulgated by the board relating to fees.

(e) Nothing in this section may be construed as requiring the board to issue a special volunteer dentist or dental hygienist license to any dental hygienist whose license is or has been subject to any disciplinary action or to any dentist or dental hygienist who has surrendered a license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her dentist or dental hygienist license, or who has elected to place a dentist or dental hygienist license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a dentist or dental hygienist license.

(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any dentist or dental hygienist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a dentist or dental hygienist who holds a special volunteer dentist or dental hygienist license.

§30-4-16. Dental corporations.

(a) Dental corporations are continued.

(b) One or more dentists may organize and become a shareholder or shareholders of a dental corporation domiciled within this state under the terms and conditions and subject to the limitations and restrictions specified by rule.

(c) No corporation may practice dentistry, or any of its branches, or hold itself out as being capable of doing so without a certificate of authorization from the board.

(d) When the Secretary of State receives a certificate of authorization to act as a dental corporation from the board, he or she shall attach the authorization to the corporation application and, upon compliance with the applicable provisions of chapter thirty-one of this code, the Secretary of State shall issue to the incorporators a certificate of incorporation for the dental corporation.

(e) A corporation holding a certificate of authorization shall renew annually, on or before June 30, on a form prescribed by the board and pay an annual fee in an amount specified by rule.

(f) A dental corporation may practice dentistry only through an individual dentist or dentists licensed to practice dentistry in this state, but the dentist or dentists may be employees rather than shareholders of the corporation.

(g) A dental corporation holding a certificate of authorization shall cease to engage in the practice of dentistry upon being notified by the board that any of its shareholders is no longer a licensed dentist or when any shares of the corporation have been sold or disposed of to a person who is not a licensed dentist: Provided, That the personal representative of a deceased shareholder has a period, not to exceed twenty-four months from the date of the shareholder’s death, to dispose of the shares; but nothing contained herein may be construed as affecting the existence of the corporation or its right to continue to operate for all lawful purposes other than the practice of dentistry.

§30-4-17. Reinstatement.

(a) A licensee against whom disciplinary action has been taken under the provisions of this article shall be afforded an opportunity to demonstrate the qualifications to resume practice. The application for reinstatement shall be in writing and subject to the procedures specified by the board by rule.

(b) A licensee who does not complete annual renewal, as specified by the board by rule, and whose licensed has lapsed for one year or longer, shall make application for reinstatement as specified by the board by rule.

(c) The board, at its discretion and for cause, may require an applicant for reinstatement to undergo a physical and/or mental evaluation to determine a licensee is competent to practice or if the licensee is impaired by drugs or alcohol.

§30-4-18. Actions to enjoin violations.

(a) If the board obtains information that any person has engaged in, is engaging in or is about to engage in any act which constitutes or will constitute a violation of the provisions of this article, the rules promulgated pursuant to this article, or a final order or decision of the board, it may issue a notice to the person to cease and desist in engaging in the act and/or apply to the circuit court in the county of the alleged violation for an order enjoining the act.

(b) The circuit court may issue a temporary injunction pending a decision on the merits, and may issue a permanent injunction based on its findings in the case.

(c) The judgment of the circuit court on an application permitted by the provisions of this section is final unless reversed, vacated or modified on appeal to the West Virginia Supreme Court of Appeals.

§30-4-19. Complaints; investigations; due process procedure; grounds for disciplinary action.

(a) The board may initiate a complaint upon receipt of credible information, and shall upon the receipt of a written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules promulgated pursuant to this article.

(b) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee, certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article.

(c) Upon a finding of probable cause to go forward with a complaint, the board shall provide a copy of the complaint to the licensee, certificate holder or permittee.

(d) Upon a finding that probable cause exists that the licensee, certificate holder or permittee has violated subsection (g) of this section or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for disciplinary action against the licensee, certificate holder or permittee. Any hearing shall be held in accordance with the provisions of this article, and shall require a violation to be proven by a preponderance of the evidence.

(e) A member of the complaint committee or the executive director of the board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

(f) Any member of the board or its executive director may sign a consent decree or other legal document on behalf of the board.

(g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend, restrict or revoke the license, certificate or permit of, or impose probationary conditions upon or take disciplinary action against, any licensee, certificate holder or permittee for any of the following reasons:

(1) Obtaining a board authorization by fraud, misrepresentation or concealment of material facts;

(2) Being convicted of a felony or other crime involving drugs, violent crime, or moral turpitude, or engaging in any act involving moral turpitude or gross immorality;

(3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule of the board;

(4) Intentional violation of a lawful order or legislative rule of the board;

(5) Having had a board authorization revoked or suspended, other disciplinary action taken, or an application for a board authorization denied by the proper authorities of another jurisdiction;

(6) Aiding or abetting unlicensed practice;

(7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public;

(8) Incapacity that prevents a licensee from engaging in the practice of dentistry or dental hygiene, with reasonable skill, competence, and safety to the public;

(9) Committing fraud in connection with the practice of dentistry or dental hygiene;

(10) Failure to report to the board one's surrender of a license or authorization to practice dentistry or dental hygiene in another jurisdiction while under disciplinary investigation by any of those authorities or bodies for conduct that would constitute grounds for action as defined in this section;

(11) Failure to report to the board any adverse judgment, settlement, or award arising from a malpractice claim arising related to conduct that would constitute grounds for action as defined in this section;

(12) Being guilty of unprofessional conduct as contained in the American Dental Association principles of ethics and code of professional conduct. The following acts are conclusively presumed to be unprofessional conduct:

(A) Being guilty of any fraud or deception;

(B) Committing a criminal operation or being convicted of a crime involving moral turpitude;

(D) Violating any professional confidence or disclosing any professional secret;

(E) Being grossly immoral;

(F) Harassing, abusing, intimidating, insulting, degrading or humiliating a patient physically, verbally or through another form of communication;

(G) Obtaining any fee by fraud or misrepresentation;

(H) Employing directly or indirectly, or directing or permitting any suspended or unlicensed person so employed, to perform operations of any kind or to treat lesions of the human teeth or jaws or correct malimposed formations thereof;

(I) Practicing, or offering, or undertaking to practice dentistry under any firm name or trade name not approved by the board;

(J) Having a professional connection or association with, or lending his or her name to another, for the illegal practice of dentistry, or professional connection or association with any person, firm or corporation holding himself or herself, themselves or itself out in any manner contrary to this article;

(K) Making use of any advertising relating to the use of any drug or medicine of unknown formula;

(L) Advertising to practice dentistry or perform any operation thereunder without causing pain;

(M) Advertising professional superiority or the performance of professional services in a superior manner;

(N) Advertising to guarantee any dental service;

(O) Advertising in any manner that is false or misleading in any material respect;

(P) Soliciting subscriptions from individuals within or without the state for, or advertising or offering to individuals within or without the state, a course or instruction or course materials in any phase, part or branch of dentistry or dental hygiene in any journal, newspaper, magazine or dental publication, or by means of radio, television or United States mail, or in or by any other means of contacting individuals: Provided, That the provisions of this paragraph may not be construed so as to prohibit:

(i) An individual dentist or dental hygienist from presenting articles pertaining to procedures or technique to state or national journals or accepted dental publications; or

(ii) Educational institutions approved by the board from offering courses or instruction or course materials to individual dentists and dental hygienists from within or without the state; or

(Q) Engaging in any action or conduct which would have warranted the denial of the license.

(13) Knowing or suspecting that a licensee is incapable of engaging in the practice of dentistry or dental hygiene, with reasonable skill, competence, and safety to the public, and failing to report any relevant information to the board;

(14) Illegal use or disclosure of protected health information;

(15) Engaging in any conduct that subverts or attempts to subvert any licensing examination or the administration of any licensing examination;

(16) Failure to furnish to the board or its representatives any information legally requested by the board, or failure to cooperate with or engaging in any conduct which obstructs an investigation being conducted by the board;

(17) Announcing or otherwise holding himself or herself out to the public as a specialist or as being specially qualified in any particular branch of dentistry or as giving special attention to any branch of dentistry or as limiting his or her practice to any branch of dentistry without first complying with the requirements established by the board for the specialty and having been issued a certificate of qualification in the specialty by the board;

(18) Failing to report to the board within 72 hours of becoming aware thereof any life threatening occurrence, serious injury or death of a patient resulting from dental treatment or complications following a dental procedure;

(19) Failing to report to the board any Driving Under the Influence and/or Driving While Intoxicated offense; or

(20) Violation of any of the terms or conditions of any order entered in any disciplinary action.

(h) For the purposes of subsection (g) of this section, effective July 1, 2013, disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Restrictions;

(4) Suspension;

(5) Revocation;

(6) Administrative fine, not to exceed $1,000 per day per violation;

(7) Mandatory attendance at continuing education seminars or other training;

(8) Practicing under supervision or other restriction; or

(9) Requiring the licensee or permittee to report to the board for periodic interviews for a specified period of time.

(i) In addition to any other sanction imposed, the board may require a licensee or permittee to pay the costs of the proceeding.

(j) Nothing shall be construed as barring criminal prosecutions for violations of this article.

(k) A person authorized to practice under this article, who reports or otherwise provides evidence of the negligence, impairment or incompetence of another member of this profession to the board or to any peer review organization, is not liable to any person for making the report if the report is made without actual malice and in the reasonable belief that the report is warranted by the facts known to him or her at the time.

§30-4-20. Procedures for hearing; right of appeal.

(a) Hearings are governed by the provisions of section eight, article one of this chapter.

(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.

(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

(d) Any member or the executive director of the board has the authority to administer oaths, examine any person under oath.

(e) If, after a hearing, the board determines the licensee or permittee has violated provisions of this article or the board's rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-4-21. Judicial review.

A person adversely affected by a decision of the board denying an application or entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-4-22. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a person authorized under this article has committed a criminal offense under this article, the board may bring its information to the attention of an appropriate law-enforcement official.

(b) Any person who intentionally practices, or holds himself or herself out as qualified to practice dentistry or dental hygiene, or uses any title, word or abbreviation to indicate to or induce others to believe he or she is licensed to practice as a dentist or dental hygienist without obtaining an active, valid West Virginia license to practice that profession or with a license that is:

(1) Expired, suspended or lapsed; or

(2) Inactive, revoked, suspended as a result of disciplinary action, or surrendered, is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or imprisoned in a state correctional facility for not less than one year nor more than five years, or both fined and imprisoned.

§30-4-23. Single act evidence of practice.
In any action brought under this article, article four-a or article four-b any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30-4-24. Inapplicability of article.

The provisions of this article do not apply to:

(1) A licensed physician or surgeon in the practice of his or her profession when rendering dental relief in emergency cases, unless he or she undertakes to reproduce or reproduces lost parts of the human teeth or to restore or replace lost or missing teeth in the human mouth;

(2) A dental laboratory in the performance of dental laboratory services, while the dental laboratory, in the performance of the work, conforms in all respects to the requirements of article four-b and further does not apply to persons performing dental laboratory services under the direct supervision of a licensed dentist or under the direct supervision of a person authorized under this article to perform any of the acts in this article defined to constitute the practice of dentistry while the work is performed in connection with, and as a part of, the dental practice of the licensed dentist or other authorized person and for his or her dental patients;

(3) A student enrolled in and regularly attending any dental college recognized by the board, provided their acts are done in the dental college and under the direct and personal supervision of their instructor;

(4) A student enrolled in and regularly attending any dental college recognized by the board may practice dentistry in a public health setting, provided their acts are done under the direct supervision of their instructor, adjunct instructor or a dentist;

(5) An authorized dentist of another state temporarily operating a clinic under the auspices of a organized and reputable dental college or reputable dental society, or to one lecturing before a reputable society composed exclusively of dentists; or

(6) A dentist whose practice is confined exclusively to the service of the United States Army, the United States Navy, the United States Air Force, The United States Coast Guard, the United States Public Health Service, the United States Veteran’s Bureau or any other authorized United States government agency or bureau.

ARTICLE 4A. ADMINISTRATION OF ANESTHESIA BY DENTISTS.

§30-4A-1. Requirement for anesthesia permit.

(a) No dentist may induce central nervous system anesthesia without first having obtained an anesthesia permit for the level of anesthesia being induced.

(b) The applicant for an anesthesia permit shall pay the appropriate permit fees and renewal fees, submit a completed board-approved application and consent to an office evaluation.

(d) Permit holders shall report the names and qualifications of each qualified monitor. Qualified monitors shall apply for certification and pay the appropriate application fees and renewal fees. Qualified monitors are required to renew annually by June 30th. Qualified monitor requirements for each level of sedation are as specified by rule.

(e) A dentist shall hold a class permit equivalent to or exceeding the anesthesia level being provided, unless the provider of anesthesia is a physician anesthesiologist or licensed dentist who holds a current anesthesia permit issued by the board.

§30-4A-2. Presumption of Degree of Central Nervous System Depression.

(a) In any hearing where a question exists as to the degree of central nervous system depression a licensee has induced (i.e., local anesthesia, relative analgesia, anxiolysis, conscious sedation, general anesthesia/deep conscious sedation) the board may base its findings on, among other things, the types, dosages and routes of administration of drugs administered to the patient and what result can reasonably be expected from those drugs in those dosages and routes administered in a patient of that physical and psychological status.

(b) No permit holder may have more than one person under conscious sedation/moderate sedation and/or general anesthesia/deep conscious sedation at the same time, exclusive of recovery.

§30-4A-3. Classes of anesthesia permits.

(a) The board shall issue the following permits:

(1) Class 2 Permit: A Class 2 Permit authorizes a dentist to induce anxiolysis/minimal sedation.

(2) Class 3 Permit: A Class 3 Permit authorizes a dentist to induce conscious sedation/moderate sedation as limited enteral (3a) and/or comprehensive parenteral (3b), and anxiolysis/minimal sedation.

(3) Class 4 Permit: A Class 4 Permit authorizes a dentist to induce general anesthesia/deep conscious sedation, conscious sedation/moderate sedation, and anxiolysis/minimal sedation.

(b) When anesthesia services are provided in dental facilities by a MD or DO physician anesthesiologist, dentist anesthesiologist, or CRNA, the dental facility shall be inspected and approved for a Class 4 permit, and the dentist shall have a minimum of a Class 2 permit. If anesthesia services are provided by a CRNA, the dental facility shall be inspected and approved for a Class 4 permit, and the supervising dentist shall have the same level of permit for the level of anesthesia provided by the CRNA.

§30-4A-4. Qualifications, standards, and continuing education requirements for relative analgesia/minimal sedation use.

(a) The board shall allow administration of relative analgesia if the practitioner:

(1) Is a licensed dentist in the state;

(2) Holds valid and current documentation showing successful completion of a Health Care Provider BLS/CPR course; and

(3) Has completed a training course of instruction in dental school, continuing education or as a postgraduate in the administration of relative analgesia.

(b) A practitioner who administers relative analgesia shall have the following facilities, equipment and drugs available during the procedure and during recovery:

(1) An operating room large enough to adequately accommodate the patient on an operating table or in an operating chair and to allow delivery of age appropriate care in an emergency situation;

(2) An operating table or chair which permits the patient to be positioned so that the patient's airway can be maintained, quickly alter the patient's position in an emergency, and provide a firm platform for the administration of basic life support;

(3) A lighting system which permits evaluation of the patient's skin and mucosa color and a backup lighting system of sufficient intensity to permit completion of any operation underway in the event of a general power failure;

(4) Suction equipment which permits aspiration of the oral and pharyngeal cavities;

(5) An oxygen delivery system with adequate age appropriate full face masks and appropriate connectors that is capable of delivering high flow oxygen to the patient under positive pressure, together with an adequate backup system;

(6) A nitrous oxide delivery system with a fail-safe mechanism that will insure appropriate continuous oxygen delivery and a scavenger system; and

(7) A defibrillator device.

All equipment used shall be appropriate for the height and weight and age of the patient.

(c) Before inducing relative analgesia/minimal sedation by means of nitrous oxide or a single premed agent, a practitioner shall:

(1) Evaluate the patient;

(2) Give instruction to the patient or, when appropriate due to age or psychological status of the patient, the patient's guardian; and

(3) Certify that the patient is an appropriate candidate for relative analgesia/minimal sedation.

(d) A practitioner who administers relative analgesia/minimal sedation shall see that the patient’s condition is visually monitored. At all times, the patient shall be observed by a qualified monitor until discharge criteria have been met.

(e) A qualified monitor’s record shall include documentation of all medications administered with dosages, time intervals and route of administration including local anesthesia.

(f) A discharge entry shall be made in the patient's record indicating the patient's condition upon discharge.

(g) A qualified monitor shall hold valid and current documentation:

(1) Showing successful completion of a Health Care Provider BLS/CPR course; and

(2) Have received training and be competent in the recognition and treatment of medical emergencies, monitoring vital signs, the operation of nitrous oxide delivery systems and the use of the sphygmomanometer and stethoscope.

(h) The practitioner shall assess the patient's responsiveness using preoperative values as normal guidelines and discharge the patient only when the following criteria are met:

(1) The patient is alert and oriented to person, place and time as appropriate to age and preoperative neurological status;

(2) The patient can talk and respond coherently to verbal questioning or to preoperative neurological status;

(3) The patient can sit up unaided or without assistance or to preoperative neurological status;

(4) The patient can ambulate with minimal assistance or to preoperative neurological status; and

(5) The patient does not have uncontrollable nausea, vomiting or dizziness.

§30-4A-5. Qualifications, standards, and continuing education requirements for a Class 2 Permit.

(a) The board shall issue a Class 2 Permit to an applicant who:

(1) Is a licensed dentist in West Virginia;

(2) Holds valid and current documentation showing successful completion of a Health Care Provider BLS/CPR; and

(3) Has completed a board approved course of at least six hours didactic and clinical of either predoctoral dental school or postgraduate instruction.

(b) A dentist who induces relative analgesia/minimal sedation and anxiolysis/minimal sedation shall have the following facilities, properly maintained equipment and appropriate drugs available during the procedures and during recovery:

(1) An operating room large enough to adequately accommodate the patient on an operating table or in an operating chair and to allow an operating team of at least two individuals to freely move about the patient;

(2) An operating table or chair which permits the patient to be positioned so the operating team can maintain the patient's airway, quickly alter the patient's position in an emergency, and provide a firm platform for the administration of basic life support;

(4) Suction equipment which permits aspiration of the oral and pharyngeal cavities;

(5) An oxygen delivery system with adequate age appropriate full face mask and appropriate connectors that is capable of delivering high flow oxygen to the patient under positive pressure, together with an adequate backup system;

(6) A nitrous oxide delivery system with a fail-safe mechanism that will insure appropriate continuous oxygen delivery and a scavenger system;

(7) A recovery area that has available oxygen, adequate lighting, suction and electrical outlets. The recovery area can be the operating room;

(8) Sphygmomanometer, stethoscope, and pulse oximeter;

(9) Emergency drugs as specified by rule;

(10) A defibrillator device; and

(11) All equipment and medication dosages shall be in accordance with the height and weight and age of the patient being treated.

(1) Evaluate the patient and certify by using the ASA Patient Physical Status Classification of the ASA that the patient is an appropriate candidate for anxiolysis sedation; and

(2) Obtain written informed consent from the patient or patient's guardian for the anesthesia. The obtaining of the informed consent shall be documented in the patient's record.

(d) The dentist shall monitor and record the patient's condition or shall use a qualified monitor to monitor and record the patient's condition. The documented requirements of a qualified monitor monitoring anxiolysis sedation cases are as specified by rule. A Class 2 Permit holder may have no more than one person under anxiolysis at the same time.

(e) The patient shall be monitored as follows:

(1) Patients shall have continuous monitoring using pulse oximetry. The patient's blood pressure, heart rate and respiration shall be recorded at least once before, during and after the procedure, and these recordings shall be documented in the patient record. At all times, the patient shall be observed by a qualified monitor until discharge criteria have been met. If the dentist is unable to obtain this information, the reasons shall be documented in the patient's record. The record shall also include documentation of all medications administered with dosages, time intervals and route of administration including local anesthesia.

(2) A discharge entry shall be made by the dentist in the patient's record indicating the patient's condition upon discharge.

(f) A permit holder who uses anxiolysis shall see that the patient’s condition is visually monitored. The patient shall be monitored as to response to verbal stimulation, oral mucosa color and preoperative and postoperative vital signs.

(g) The dentist shall assess the patient's responsiveness using preoperative values as normal guidelines and discharge the patient only when the following criteria are met:

(1) Vital signs including blood pressure, pulse rate and respiratory rate are stable;

(2) The patient is alert and oriented to person, place and time as appropriate to age and preoperative neurological status;

(3) The patient can talk and respond coherently to verbal questioning, or to preoperative neurological status;

(4) The patient can sit up unaided, or to preoperative neurological status;

(5) The patient can ambulate with minimal assistance, or to preoperative neurological status; and

(6) The patient does not have uncontrollable nausea or vomiting and has minimal dizziness.

(h) A dentist may not release a patient who has undergone anxiolysis/minimal sedation except to the care of a responsible adult third party.

§30-4A-6. Qualifications, standards, and continuing education requirements for Class 3 Anesthesia Permit.

(a) The board shall issue or renew a Class 3 Permit to an applicant who:

(1) Is a licensed dentist in West Virginia;

(2) Holds valid and current documentation showing successful completion of a Health Care Provider BLS/CPR course, ACLS and/or a PALS course if treating pediatric patients; and

(3) Satisfies one of the following criteria:

(A) Certificate of completion of a comprehensive training program in conscious sedation that satisfies the requirements described in the ADA Guidelines for Teaching Pain Control and Sedation to Dentists and Dental Students and the ADA Guidelines for the Use of Sedation and General Anesthesia by Dentists at the time training was commenced.

(B) Certificate of completion of an ADA accredited postdoctoral training program which affords comprehensive and appropriate training necessary to administer and manage conscious sedation, commensurate with these guidelines.

(C) In lieu of these requirements, the board may accept documented evidence of equivalent training or experience in conscious sedation anesthesia for Limited Enteral Permit as Class 3a or comprehensive Parenteral Permit as Class 3b as specified by rule.

(b) A dentist who induces conscious sedation shall have the following facilities, properly maintained age appropriate equipment and age appropriate medications available during the procedures and during recovery:

(4) Suction equipment which permits aspiration of the oral and pharyngeal cavities and a backup suction device which will function in the event of a general power failure;

(6) A nitrous oxide delivery system with a fail-safe mechanism that will insure appropriate continuous oxygen delivery and a scavenger system;

(7) A recovery area that has available oxygen, adequate lighting, suction and electrical outlets. The recovery area can be the operating room;

(8) Sphygmomanometer, pulse oximeter, oral and nasopharyngeal airways, intravenous fluid administration equipment and/or equipment required for the standard of care or as specified by rule;

(9) Emergency drugs as specified by rule; and

(10) A defibrillator device.

(1) Evaluate the patient and document, using the ASA Patient Physical Status Classifications, that the patient is an appropriate candidate for conscious sedation;

(2) Give written preoperative and postoperative instructions to the patient or, when appropriate due to age or neurological status of the patient, the patient's guardian; and

(3) Obtain written informed consent from the patient or patient's guardian for the anesthesia.

(d) The dentist shall ensure that the patient's condition is monitored and recorded on a contemporaneous record. The dentist shall use a Qualified Monitor to monitor and record the patient's condition in addition to the chair side dental assistant. A Qualified Monitor shall be present to monitor the patient at all times.

(e) The patient shall be monitored as follows:

(1) Patients shall have continuous monitoring using pulse oximetry and/or equipment required for the standard of care or as specified by rule by a Qualified Monitor until discharge criteria have been met. The documented requirements of a Qualified Monitor monitoring limited enteral or comprehensive parenteral sedations cases are as specified by rule. The patient's blood pressure, heart rate, and respiration shall be recorded every five minutes, and these recordings shall be documented in the patient record. The record shall also include documentation of preoperative and postoperative vital signs, all medications administered with dosages, time intervals and route of administration including local anesthesia. If the dentist is unable to obtain this information, the reasons shall be documented in the patient's record.

(2) During the recovery phase, the patient shall be monitored by a qualified monitor.

(3) A discharge entry shall be made by the dentist in the patient's record indicating the patient's condition upon discharge and the name of the responsible party to whom the patient was discharged.

(f) A dentist may not release a patient who has undergone conscious sedation/moderate sedation except to the care of a responsible adult third party.

(g) When discharging a pediatric patient the dentist shall follow the current edition of AAPD Guidelines for Monitoring and Management of Pediatric Patients During and After Sedation for Diagnostic and Therapeutic Procedures.

(h) The dentist shall assess the patient's responsiveness using preoperative values as normal guidelines and discharge the patient only when the following criteria are met:

(1) Vital signs including blood pressure, pulse rate and respiratory rate are stable;

(2) The patient is alert and oriented to person, place and time as appropriate to age and preoperative neurological status;

(3) The patient can talk and respond coherently to verbal questioning, or to preoperative neurological status;

(4) The patient can sit up unaided, or to preoperative neurological status;

(5) The patient can ambulate with minimal assistance, or to preoperative neurological status; and

(6) The patient does not have uncontrollable nausea or vomiting and has minimal dizziness.

(i) A dentist who induces conscious sedation shall employ the services of a Qualified Monitor and a chair side dental assistant at all times who each shall hold a valid BLS/CPR certification and maintains certification as specified by rule.

§30-4A-7. Qualifications, standards, and continuing education requirements for Class 4 Anesthesia Permit.

(a) A Class 4 Permit permits the use of general anesthesia/deep conscious sedation, conscious sedation/moderate sedation, and anxiolysis/minimal sedation.

(b) The board shall issue or renew a Class 4 Permit to an applicant who:

(1) Is a licensed dentist in West Virginia;

(2) Holds a valid and current documentation showing successful completion of a Healthcare Provider BLS/CPR course, Advanced Cardiac Life Support (ACLS) and/or Pediatric Advanced Life Support (PALS) course if treating pediatric patients;

(3) Satisfies one of the following criteria:

(A) Completion of an advanced training program in anesthesia and related subjects beyond the undergraduate dental curriculum that satisfies the requirements described in the ADA Guidelines for Teaching Pain Control and Sedation to Dentists and Dental Students and the ADA Guidelines for the Use of Sedation and General Anesthesia by Dentists at the time training was commenced;

(B) Completion of an ADA or AMA accredited postdoctoral training program which affords comprehensive and appropriate training necessary to administer and manage general anesthesia, commensurate with these guidelines;

(C) In lieu of these requirements, the board may accept documented evidence of equivalent training or experience in general anesthesia/deep conscious sedation.

(c) A dentist who induces general anesthesia/deep conscious sedation shall have the following facilities, properly maintained age appropriate equipment and age appropriate drugs available during the procedure and during recovery:

(1) An operating room large enough to adequately accommodate the patient on an operating table or in an operating chair and to allow an operating team of at least three individuals to freely move about the patient;

(4) Suction equipment which permits aspiration of the oral and pharyngeal cavities and a backup suction device which will function in the event of a general power failure;

(6) A nitrous oxide delivery system with a fail-safe mechanism that will insure appropriate continuous oxygen delivery and a scavenger system;

(7) A recovery area that has available oxygen, adequate lighting, suction and electrical outlets. The recovery area can be the operating room;

(8) Equipment as specified by rule;

(9) Emergency drugs as specified by rule;

(10) A defibrillator device.

(d) Before inducing general anesthesia/deep conscious sedation the dentist shall:

(1) Evaluate the patient and document, using the ASA Patient Physical Status Classifications, that the patient is an appropriate candidate for general anesthesia or deep conscious sedation;

(2) Shall give written preoperative and postoperative instructions to the patient or, when appropriate due to age or neurological status of the patient, the patient's guardian; and

(3) Shall obtain written informed consent from the patient or patient's guardian for the anesthesia.

(e) A dentist who induces general anesthesia/deep conscious sedation shall ensure that the patient’s condition is monitored and recorded on a contemporaneous record. The dentist shall use a Qualified Monitor to monitor and record the patient’s condition on a contemporaneous record and a chair side dental assistant. The documented requirements of a Qualified Monitor monitoring general anesthesia/deep conscious sedation cases are as specified by rule. No permit holder may have more than one patient under general anesthesia at the same time.

(f) The patient shall be monitored as follows:

(1) Patients shall have continuous monitoring using pulse oximetry and/or equipment required for the standard of care or as specified by rule by a Qualified Monitor until discharge criteria have been met. The patient's blood pressure, heart rate and oxygen saturation shall be assessed every five minutes, and shall be contemporaneously documented in the patient record. The record shall also include documentation of preoperative and postoperative vital signs, all medications administered with dosages, time intervals and route of administration including local anesthesia. The person administering the anesthesia may not leave the patient while the patient is under general anesthesia;

(2) During the recovery phase, the patient shall be monitored, including the use of pulse oximetry, by a Qualified Monitor; and

(3) A dentist may not release a patient who has undergone general anesthesia/deep conscious sedation except to the care of a responsible adult third party.

(4) When discharging a pediatric patient the dentist shall follow the current edition of AAPD Guidelines for the Monitoring and Management of Pediatric Patients During and After Sedation for Diagnostic and Therapeutic Procedures.

(g) The dentist shall assess the patient's responsiveness using preoperative values as normal guidelines and discharge the patient only when the following criteria are met:

(1) Vital signs including blood pressure, pulse rate and respiratory rate are stable;

(2) The patient is alert and oriented to person, place and time as appropriate to age and preoperative neurological status;

(3) The patient can talk and respond coherently to verbal questioning, or to preoperative neurological status;

(4) The patient can sit up unaided, or to preoperative neurological status;

(5) The patient can ambulate with minimal assistance, or to preoperative neurological status; and

(6) The patient does not have uncontrollable nausea or vomiting and has minimal dizziness.

(7) A discharge entry shall be made in the patient's record by the dentist indicating the patient's condition upon discharge and the name of the responsible party to whom the patient was discharged.

(h) A dentist who induces general anesthesia shall employ the services of a Qualified Monitor and a chair side dental assistant at all times, who each shall hold a valid BLS/CPR certification and maintains certification as specified by rule.

§30-4A-8. Board to review, inspect and reinspect dentists for issuance of permits.

(a) By making application to the board for an anesthesia permit, a dentist consents and authorizes the board to review his or her credentials, inspect or reinspect his or her facilities, and investigate any alleged anesthesia mortalities, misadventure, or other adverse occurrences. The board shall conduct an in-office review or on-site inspection of any dentist applying for or holding a permit to administer anesthesia.

Prior to issuing a permit, the board shall conduct an on-site inspection of facility, equipment, and auxiliary personnel of the applicant to determine if, in fact, all the requirements for the permit have been met. This inspection or evaluation, if required, shall be carried out by at least two members of the subcommittee. This evaluation is to be carried out in a manner following the principles, but not necessarily the procedures, set forth by the current edition of the AAOMS Office Anesthesia Evaluation Manual. On-site inspections are required and shall be performed for all Class 3a, 3b and 4 permitees. The board may reinspect annually, at its discretion, but shall perform an on-site inspection for all permit holders at least once every five years except Class 2 permit holders. The board reserves the right to conduct an on-site inspection whenever it deems necessary for all permit holders. All on-site inspections shall be held during regular business hours.

(b) Cancellation or failure to appear or be present for a scheduled evaluation by a permit holder, for an unexplained or unexcusable reason, shall be assessed a penalty fee two times the permit holders normal annual renewal fee. The penalty fee shall be separate from the annual renewal fees.

§30-4A-9. Office evaluations.

(a) The in-office evaluation shall include:

(1) Observation of one or more cases of anesthesia to determine the appropriateness of technique and adequacy of patient evaluation and care;

(2) Inspection of facilities, which shall include, but not be limited to, the inspection of equipment, drugs and patient records and qualified monitor’s certifications and documentation; and

(3) The evaluation shall be performed by a team appointed by the board and shall include a member of the subcommittee who holds a current anesthesia permit in the same class or in a higher class than that held by the permit holder being evaluated.

(4) Class 2 permit holders may be audited periodically as determined by the committee; and

(5) Class 3 and 4 permit holders shall be evaluated once every five years.

(b) A dentist utilizing a licensed dentist who holds a current anesthesia permit issued by the board shall have his or her office inspected to the level of a class 4 permit as specified by section ten of this article. The office is only approved at that level when the anesthesia permit holder is present and shall have the number of qualified monitors present as required by this article.

(c) In addition to the requirements of this article a treating dentist who applies for a certificate to allow a CRNA to administer anesthesia and sedation to a patient, shall maintain a permit as follows:

(1) A treating dentist, who allows a CRNA to administer limited enteral sedation to a patient, shall maintain a Class 3a permit for themselves and the administration site shall be inspected to a Class 4 permit level;

(2) A treating dentist, who allows a CRNA to administer comprehensive parenteral sedation to a patient, shall maintain a Class 3b permit for themselves and the administration site shall be inspected to a Class 4 permit level; and

(3) A treating dentist, who allows a CRNA to administer general anesthesia/deep conscious sedation to a patient, shall maintain a Class 4 permit for themselves and the administration site shall be inspected to a Class 4 permit level.

§30-4A-10. Reporting of Death, Serious Complications or Injury.

If a death, any serious complication or any injury occurs which may have resulted from the administration of general anesthesia/deep conscious sedation, conscious sedation/moderate sedation, anxiolysis/minimal sedation, or relative analgesia/minimal sedation, the licensee performing the dental procedure shall submit a written detailed report to the board within 72 hours of the incident along with copies of the patient's original complete dental records. If the anesthetic agent was administered by a person other than the person performing the dental procedure, that person shall also submit a detailed written report. The detailed report(s) shall include:

(1) Name, age and address of patient;

(2) Name of the licensee and other persons present during the incident along with their names and addresses;

(3) Address where the incident took place;

(4) Type of anesthesia and dosages of drugs administered to the patient including local anesthesia;

(5) A narrative description of the incident including approximate times and evolution of symptoms; and

(6) The anesthesia record and the signed informed consent form for the anesthesia.

§30-4A-11. Immunity from liability.

(a) Notwithstanding any other provision of law, no person providing information to the board or to the subcommittee may be held, by reason of having provided the information, to be civilly liable under any law unless the information was false and the person providing information knew or had reason to believe the such information was false.

(b) No member or employee of the board or the subcommittee may be held by reason of the performance by him or her of any duty, function or activity authorized or required of the board or the subcommittee to be civilly liable. The foregoing provisions of this subsection do not apply with respect to any action taken by any individual if the individual, in taking the action, was motivated by malice toward any person affected by the action.

§30-4A-12. Facility Inspections.

(a) The board shall perform an onsite evaluation of Class 3 and 4 applicants dental facilities, equipment, techniques, and personnel prior to issuing a permit. The board may conduct further on-site evaluations.

(b) The board may inspect Class 2 applicants facilities.

§30-4A-13. Issuance of regular annual permits.

Upon the recommendation of the subcommittee, the board shall issue permits to applicable dentists. An anesthesia permit shall be renewed annually.

§30-4A-14. Waiting period for reapplication or reinspection of facilities.

A dentist whose application has been denied for failure to satisfy the requirements in the application procedure or the on-site evaluation shall wait thirty days from the date of the denial prior to reapplying and shall submit to another on-site evaluation prior to receiving a permit. The board and the subcommittee shall promptly reinspect the applicant dentist's facilities, techniques, equipment, and personnel within ninety days after the applicant has made reapplication.

§30-4A-15. Application and annual renewal of regular permits; fees.

The board shall require an initial application fee and an annual renewal fee for Class 2, Class 3 and 4 Permits. Permits expire annually. The board shall renew permits for the use of anesthesia after the permittee satisfies the application for renewal.

§30-4A-16. Violations of article; penalties for practicing anesthesia without a permit.

Violations of any of the provisions of this article, whether intentional or unintentional, may result in the revocation or suspension of the dentist's permit to administer anesthesia; multiple or repeated violations or gross infractions, such as practicing anesthesia without a valid permit may result in suspension of the dentist's license to practice dentistry for up to one year as well as other disciplinary measures as deemed appropriate by the board.

§30-4A-17. Appointment of Subcommittee; credentials review; and on-site inspections.

(a) The board shall appoint a subcommittee to carry out the review and on-site inspection of any dentist applying for or renewing a permit under this article.

(b) The subcommittee shall make a recommendation for issuing or revoking a permit under this article.

(c) This subcommittee shall be known as the "West Virginia Board of Dentistry Subcommittee on Anesthesia," The subcommittee shall, at a minimum, consist of one member of the board who shall act as chairman of the subcommittee, and two members holding a Class 4 permit and two members holding a Class 3 permit.

(d) The subcommittee shall adopt policies and procedures related to the regulation of general anesthesia/deep conscious sedation, conscious sedation/moderate sedation, anxiolysis/minimal sedation, and relative analgesia/minimal sedation with the same being approved by the board. The subcommittee members shall be paid and reimbursed expenses pursuant to article one of this chapter.

ARTICLE 4B. DENTAL LABORATORY SERVICES.

§30-4B-1. Unlawful acts.

(a) It is unlawful for any person, other than a dentist or other dental practitioner, to sell, offer for sale or furnish any dental prosthesis or other dental laboratory service to any person who is not a dentist or other dental practitioner.

(b) It is unlawful for any person to perform dental laboratory services without a work authorization: Provided, That this subsection does not apply to a dentist or other dental practitioner, or to their employees working under their direct supervision, performing dental laboratory services as a part of their own dental practice and for their own dental patients.

(c) It is unlawful for any dental laboratory to perform any dental laboratory service without the issuance of a work authorization by a dentist or other dental practitioner.

(d) It is unlawful for any dental laboratory or dentist who fabricates a full upper or full lower set of prosthetic dentures not to affix upon the dentures, in a nonremovable manner, the name of the patient, the initials of the dentist’s state of practice and license identification.

(e) It is unlawful for any dental laboratory either directly or indirectly:

(1) To advertise that it is engaged in the business of performing dental laboratory services;

(2) To advertise it performs dental laboratory services for members of the public;

(3) To advertise a price for the performance of dental laboratory services; or

(4) To advertise techniques used or materials employed by it in the performance of dental laboratory services: Provided, That this subsection does not prevent dental laboratories from advertising in dental journals or in other professional dental publications or from communicating directly to a dentist and other dental practitioner or from listing the dental laboratory in business and telephone directories if the business and telephone directory announcements are limited to name, address and telephone number and do not occupy more than the number of lines necessary to disclose the information, or from displaying the trade name and address of the dental laboratory on the door of its place of business or on name plates or door plates exhibited on the interior or exterior of the place of business.

§30-4B-2. Work authorization required; contents; retention.

(a) No dental laboratory technician may perform any dental laboratory service without the issuance of a work authorization by a dentist or other dental practitioner.

(b) Each work authorization shall contain:

(1) The name and address of the dental laboratory to which it is directed;

(2) The case identification;

(3) A specification of the materials to be used;

(4) A description of the work to be done and, if necessary, diagrams thereof;

(5) The date of issue; and

(6) The signature and address of the dentist or other dental practitioner issuing the work authorization.

(c) A separate work authorization shall be issued for each patient of the dentist or other dental practitioner for whom a dental laboratory service is to be performed.

(d) Every work authorization shall be made in duplicate with the original being delivered to the dental laboratory to which it is directed and the copy being retained in the office of the issuing dentist or other dental practitioner. A work authorization shall be saved for a period of two years from its date of issue.

§30-4B-3. Denture identification.

A dental laboratory and a dentist who engages in dental laboratory services and who fabricates any full upper or full lower set of prosthetic dentures shall affix upon the dentures, in a nonremovable manner, the name of the patient for whom the dentures are made and the initials of the dentist’s state of practice and license identification number.

§30-4B-4. Review of dental laboratory services.

The board may review the dental laboratory services of a dental laboratory on a random and general basis without any requirement of a formal complaint or suspicion of impropriety.

NOTE: The purpose of this bill is to update and revise the law governing the practice of dentistry

These articles have been completely rewritten; therefore, strike-throughs and underscoring have been omitted.

This bill was recommended for introduction and passage during the Regular Session of the Legislature by the House Committee on Health.