Posted on Jun 22, 2016, 6 a.m.
Performance audit verified what dental licensees have been complaining about for many years.
Dental licensees in Nevada have been complaining about the Nevada State Board of Dental Examiners (“NVBDE”) and its abusive behavior against its licensed healthcare practitioners for many years. Most of these complaints have primarily been lodged against the NVBDE’s Executive Director and private attorney. Such complaints have included allegations of coercion, denial of due process rights, excessive “fees and costs,” lengthy investigations, etc. This past year, the NVBDE came under review by the State’s Sunset Subcommittee where dental licensees had opportunity to publicly express their dissatisfaction. Consequently, upon motion of the Chairman for Sunset Subcommittee, the Legislative Commission formally requested Nevada’s Legislative Counsel Bureau (“LCB”) to make a performance audit of the NVBDE.
The results of this legislative audit were finalized and made public on May 24, 2016. On June 16, 2016, the findings of the LCB Audit were then presented before the Sunset Subcommittee which, in turn, will make recommendations for action(s) to be taken in response to the LCB audit of the NVBDE. In the summary of his report, LCB auditor Rocky Cooper, CPA stated that the NVBDE: (1) failed to “assess reasonable costs to licensees for investigating and resolving complaints and disciplinary matters”; (2) overcharged licensees substantially “for the cost of investigations”; (3) required some licensees to make “charitable contributions totaling over $140,000 as required by stipulation agreements” when, in fact, such “charitable contributions are not allowed under NRS 631.350”; (4) failed to adequately report and monitor legal expenses in that “actual legal expenses were almost three times the reported amounts and exceeded the annual contract maximum for one firm” and “payments exceeded $300,000 in both calendar years 2014 and 2015”; (5) lacked responsibility “for monitoring expenses to ensure resources are spent efficiently to minimize the burden on licensees”; and (6) maintained incomplete investigation files (see “Performance Audit of NVBDE,” Rocky Cooper, CPA, May 24, 2016, http://www.leg.state.nv.us/Division/Audit/Full/BE2016/LA16-14%20Board%20of%20Dental%20Examiers%20Report.pdf). This Performance Audit verified what dental licensees have been complaining about for many years. However, it should be noted that the NVBDE has rejected 3 of the 14 LCB Auditor’s recommendations for change. The recommendations rejected by the NVBDE address the issues of theft from overcharging licensees, so-called “charitable contributions” that are not allowable under the NVBDE’s own statutes (see NRS 631.350), and independent review of NVBDE’s disciplinary process so that its licensees might have more protection of their due process rights. Interestingly, the opportunity for this LCB Audit of the NVBDE only came about because NVBDE was one of many boards being review by the Sunset Subcommittee during Nevada’s 2015-2016 Interim Legislative Session.
Nevertheless, other Nevada medical boards employing private attorneys are known to have similar problems whereby their healthcare licensees have also been routinely complaining of board attorneys using coercion, a criminal act in Nevada (see NRS 270.190), to obtain Settlement Agreements, due process rights violations (see Fifth Amendment to U.S. Constitution; see also Fourteenth Amendment to U.S. Constitution) whereby licensees are denied a Hearing, being required to pay attorney “fees and costs” without a Hearing and in violation of Nevada Law (see NAC 633.470(2)(b)(6)), and so forth. Most egregiously is that these dental and medical boards are pursuing cases where there has been no evidence of patient harm, malpractice, or bad outcome. For example, one Las Vegas dentist was recently required to spend over $10,000 in legal fees involving a simple fee dispute of $300. This case, which took 16 months to resolve, could’ve and should’ve been resolved with a simple phone call.
Conversely, the violations being complained of by healthcare licensees are not being complained of by Nevada attorneys. This is because complaints filed against attorneys with the State Bar are first reviewed by a Screening Panel that makes recommendations for actions to taken or not taken. Such actions may include dispute resolution where attorneys and their clients can opt for mediation or arbitration at no cost to either party. If an attorney exercises his right to a Hearing, his costs for such a Hearing might run between $300 to $500 but the attorney is never required to pay attorney fees for State Bar’s counsel. Conversely, a healthcare practitioner may have already spent 10’s of 1000’s of dollars before a Hearing and, if such practitioner exercises his right to a Hearing, his costs may be an additional $10,000, but there is no provision for a medical board to pay for costs of a Hearing if the practitioner wins. This explains why attorneys are reluctant to pursue cases for healthcare practitioners against their boards because medical boards have all the rights and their licensees have little or none under Nevada’s Administrative Laws.
Thus, it will now be interesting to see how Nevada’s Legislature responds to the NVBDE audit performed by the LCB, its legal division, especially in light of the fact the NVBDE is refusing to take corrective action in response to some of the problems identified in the LCB Audit. Perhaps, the time has come for the Nevada Legislature to take corrective for all of its state medical boards by creating a form of centralized professional licensing agency similar to what 33 other states have already done. At a minimum there needs to be a revision of the disciplinary process to establish parity between practitioners of health and law. This, in turn, will help medical boards focus on credentialing, licensing, certification, and education and less on discipline where none its members have any background, education, or training in the law.
by Daniel F. Royal, DO, HMD, JD
Owner of the Royal Medical Clinic, Las Vegas, Nevada