The State Board of Dental Examiners (Board) adopts new rule 22 TAC §110.17, concerning Sedation/Anesthesia of Pediatric Patients. This new rule is being adopted with changes to the proposed text as published in the June 22, 2018, issue of the Texas Register (43 TexReg 4009), and the rule will not be republished. This new rule will require dentists to undergo additional didactic and clinical training prior to providing levels 2, 3, or 4 sedation/anesthesia to pediatric patients. This new rule is being adopted to comply with the requirements of Senate Bill 313 (S.B. 313) from the 85th regular session of the Texas Legislature.

The Board received five timely comments regarding the adopt of this rule.

The Texas Dental Association submitted a comment requesting the Board reconsider and make optional the requirement for live patients during the training mandated by subsections (b)(1) and (b)(2)(O) of the new rule, as the requirement for live patients in the training programs "results in liability concerns and increased course costs that will make compliance with the new authorization requirement even more challenging for the approximately 3,400 affected permit holders." Additionally, the comment requested the removal of "geriatric" from subsection (b)(2)(A), and the removal of "/or" from (b)(2)(C). The Board agrees with these comments. As a result, the Board has revised the new rule to make training with live patients an optional path to compliance with the rule under subsections (b)(1) and (b)(2)(O). Additionally, the Board has eliminated the references to "geriatric" and the "/or" from the relevant paragraphs of subsection (b)(2).

The Texas Society of Anesthesiologists submitted a comment requesting the Board remove the reference to "geriatric" in subsection (b)(2)(A). As noted in the previous comment, the Board agrees and has made this change to the new rule.

The Texas Academy of General Dentists submitted a comment requesting the Board consider an "alternative path to compliance for experienced Level 2-4 permit holders who may not have completed a university residency but have a proven track record of safely providing sedation/anesthesia to pediatric and high risk patients." The comment notes that Senate Bill 313 does not mandate a specific level of additional training, and some recognition should be given to previous training and clinical experience. The comment also notes that the September 1, 2019, compliance deadline may adversely impact access to care. After consideration, the Board disagrees with this comment. The requirements of Texas Occupations Code §258.1554(a)(1) require an applicant to "[demonstrate] to the satisfaction of the board that the permit holder has advanced didactic and clinical training." This language does not contemplate a recognition of previous experience gained from a track record of performing successful anesthesia. Regarding previous education, the Board has determined that the advanced training required to safely administer sedation/anesthesia to these patients must comply with the requirements of the new rule being adopted. After extensive review, the Board does not believe existing educational courses outside a residency-based education provide the comprehensive training needed. In order to protect public safety, the Board must ensure that all practitioners meet these standards before administration of sedation/anesthesia. In order to facilitate a period of phase-in compliance, the Board has adopted September 1, 2019, as the deadline for this training. While any deadline for compliance will likely have some impact on access to patient care, the Board has determined that this additional year for compliance ensures a balance of protection for the Texas public and time for compliance from non-residency trained practitioners.

Bresnen Associates submitted a comment on behalf of the Association of Dental Support Organizations, generally in support of the rule as written, but proposing that Board staff utilize the time between adoption and the implementation date of September 1, 2019, to analyze methods to understand the possible reduction in access to patient care from the rule's impacts. This comment does not request a change to the rule, but the Board agrees and acknowledges the importance of protecting public access to care, and has directed Board staff to ensure impacts are analyzed and policies are crafted to protect the interests of the Texas public.

Dr. Chad Evans submitted a comment requesting the Board consider revising the provisions of subsection (e) so that practitioners who have taken courses for sedation/anesthesia permit issuance may utilize those same courses for qualification under the requirements of subsection (b)(2), to minimize the required investment of time and resources, and to avoid duplication. Additionally, the comment requests the removal of the provision exempting residency training completed prior to September 1, 2019, from subsection (b)(1). The Board disagrees with this comment. The Board has considered the implications of requiring additional courses after initial permit issuance and determined that this is necessary to ensure that permit holders are receiving the additional advanced training required to comply with statutory requirements and ensure the safety of the Texas public. As previously noted, Texas Occupations Code §258.1554(a)(1) requires an applicant to "[demonstrate] to the satisfaction of the board that the permit holder has advanced didactic and clinical training." Allowing a permit holder to utilize the same training for permit issuance and pediatric certification would not ensure an advanced level of training. The Board acknowledges this will impose an additional cost on practitioners, but this is necessary to ensure the level of competency required for administration of sedation/anesthesia to this vulnerable population. Additionally, the Board has considered the removal the requirements prior to September 1, 2019, for residencies. The Board has determined that requiring proof of the substance of residencies completed prior to this date would unfairly burden practitioners who completed their residencies in the decades prior to the adoption of this rule, and who may not have the ability to retrieve the records of specific elements of the residency program at this later date. As the Board's goal is to ensure a balance of safety and access to care, the Board has determined that applying the requirement beginning on September 1, 2019, is the appropriate method of protecting the public while ensuring the level of training completed in a university-based residency.

This rule is adopted under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety, and Texas Occupations Code §258.1554(b), which authorizes the Board to establish limitations on the administration of anesthesia by a permit holder to a pediatric or high-risk patient.

The Board certifies that legal counsel has reviewed the new rule adopted and found it to be within the state agency's legal authority to adopt.