Audit reveals procedural missteps, possible ethical concerns within state dental board
A scathing audit digging into the state’s dental licensing board identified multiple ethical and procedural shortcomings in board operations, oversight and enforcement, in what Gov. Steve Sisolak called the most “egregious” audit report in his two decades in elected office.
Members of the Executive Branch Audit Committee (composed of the governor, lieutenant governor, secretary of state, attorney general, treasurer and controller) on Tuesday heard details of the dental board’s audit report, which identified numerous issues with board operations including possibly overlapping and ineffective procedures for hearing and resolving complaints and certain board members not disclosing potential conflicts of interest before casting votes or possibly using their position for personal gain.
Audit findings were sharply disputed by an attorney for the board, but Sisolak and other members of the committee said they found the audit report and subsequent response from the board to be “very concerning.”
“I’ve been 10 years on (the) system of higher education audit board, 10 years on the County Commission, I have never seen an audit this egregious, ever, in over 20 years,” the governor said during the meeting.
Dental board attorney Melanie Bernstein Chapman, who attended the meeting and fielded at-times pointed questions from Sisolak and other members of the committee, said the board was not necessarily opposed to recommendations in the audit, but took umbrage at suggestions that the board had violated ethics law and noted that none of the original and more serious complaints that prompted the audit had proven true.
“We are certainly not opposed to any recommendations, the problem that we have is these determinations that there are statutory violations, that there are ethical violations, I don’t believe that that is appropriate,” she said. “We’re not ignoring any of this. I just think it went a little far afield instead of simply making recommendations.”
The Dental Board of Examiners is one of the state’s 34 independent occupational licensing boards, charged with overseeing the licensing of dentists and investigating any complaints related to dental hygiene professionals. Like other licensing boards, the dental board is made up of members of the profession it regulates (dental hygienists and dentists) who are appointed by the governor, and is funded primarily by fees collected from licensees. The board has a $1.3 million annual budget in the 2018 fiscal year.
The new audit follows the findings from a 2016 audit conducted by legislative auditors, which revealed “systemic issues” with board operations, poor record keeping and raised questions about the board’s system for investigating public complaints. Former Gov. Brian Sandoval even instructed the board to address its problems with the patient complaint process, saying “I’ve never seen that happen before with people as upset as they are with … the board of dental examiners.”
The 2018 audit report stated that three unidentified board members may have violated state ethics law between 2015 and 2018 (including board President Yvonne Bethea, who was identified during the meeting by board attorney Melanie Bernstein Chapman), stating that they failed to disclose familial or professional relationships with individuals appointed to board positions prior to a vote.
It also suggested that one unidentified board member may have used the board position for personal gain, by casting a vote to set compensation for a review panel without disclosing that the member was a member of the review panel.
“All three board members failed to abstain from the vote to appoint persons with whom they had a commitment in a private capacity at the time of the vote or disclose the nature of the relationships, in violation of Ethics Law,” the report states.
Chapman said that the board would follow through with the recommendation to disclose relationships prior to votes, but noted that in many cases the alleged ethical omission was over a non-major relationship. For Bethea, Chapman said that the identified conflict was that UNLV employs both her husband and the board’s Disciplinary Screening Officer (DSO) coordinator and certain DSOs that Bethea voted to appoint in 2018 and 2019. (DSOs conduct investigations and reviews in to complaints received by the board.)
She said that because Bethea’s husband did not have supervisory or hiring or firing power over those other UNLV employees appointed by the board, she felt disclosing or abstaining the relationship was not necessary — but noted that the board would do a better job at disclosing those relationships in the future.
“She will certainly begin to do that. That was not something that was done with any attempt to not disclose anything, it just did not appear relevant,” she said. “It wasn’t even considered at the time. Her husband’s employment with UNLV really had nothing to do with DSOs being appointed.”
In her separate response letter to auditors, Berthea said the board “takes exception” to auditors “usurping the sole jurisdiction” of the state Ethics Commission in suggesting ethical violations occurred, and rejected any suggestion that board members had used their position for personal gain. She also stated that the outcomes of any of the votes in question would not have changed if a board member in question had disclosed or abstained from a vote.
The audit also raised issues with the practice of former board members serving as the DSO coordinator and as board-appointed DSOs, which are compensated at $50 an hour to provide investigatory and other services to the board. Former board members serving as DSOs made up nearly half of the payments that went to all DSOs in 2018.
“These individuals may have secured an advantage for themselves through their positions as former Board members, resulting in appointment to these paid positions following the conclusion of their Board terms,” the audit stated.
The audit identified multiple potential issues with the board’s use of Disciplinary Screening Officers (or DSOs). Since 2004, the board has used a DSO coordinator position to broadly pre-screen all complaints received by the board; something auditors said may have blocked certain valid complaints from being investigated.
“Lack of Board oversight may allow one indivdual to make or heavily influence decisions affecting the health, safety and welfare of the public and licensees’ livelihoods without independent review,” they wrote in the audit report.
The audit stated that between 2016 and 2018, the DSO coordinator dismissed 44 percent of all complaints without further review or investigation, with the audit estimating 19 percent of dismissed complaints were “related to potentially actionable matters.”
The audit report also took issue with the DSO coordinator serving as both an investigator and a member of the review panel for complaints. In particular, it highlighted complaints filed against the UNLV School of Dental Medicine that were preliminarily reviewed by the DSO coordinator, Rick Thiriot, who is employed by the university as a faculty member.
“Although documented reasons for the complaint dispositions appear reasonable, allowing the DSO coordinator to conduct preliminary complaint investigations for these complaints present the appearance of a conflict of interest with his role at the School of Dental Medicine,” auditors wrote.
In the board’s 19-page response letter, board president Bethea wrote that the coordinator was a preliminary screening of complaints that included no investigatory role and that Thiriot had recused himself from any matters involving his employer, UNLV.
The report was also critical of the board’s practice to allow board Executive Director Debra Shaffer-Kugel to be responsible for licensee compliance monitoring, saying it could open the board up to possible liability, saying it went against recommendations of the attorney general’s office and that the director was not “qualified” to perform compliance monitoring. The report also states the board is unable to do any compliance monitoring because of “staff shortages.”
In the board’s response, Bethea wrote that the audit’s interpretation of license monitoring was “patently false” and that the executive director served more of an administrative role that did not require specialized medical or dental education.
Auditors also raised concerns with how the executive director had assigned investigations to DSO investigators, saying a board policy of limiting DSOs in Southern Nevada to five “gives the appearance of favoritism” and did not allow other dentists to provide investigatory and other services to the board. Between 2016 and 2018, 64 percent of verified complaints were assigned to only four DSOs out of 36 appointed during that time frame; the four DSOs were assigned 56 percent of complaints and received 55 percent of payments to all DSOs in 2018.
In her response, Bethea said the board was trying to increase the pool of dentists serving as DSOs as part of an active recruitment effort, but that it could not “mandate” other dentists work for the board.
“Frankly, the constant harassment, and defamation that is faced by anyone associated with the Board has made it quite difficult to recruit dentists who are willing to accept this unwarranted scrutiny and expose themselves to the barrage of frivolous allegations and false and defamatory comments that have plagued this board and anyone associated with it for several years,” she wrote.
The audit also recommended that the board comply with state rules on contracting requirements and stop considering service providers as board “appointees,” saying that not classifying them as independent contractors may violate state law and reduces transparency. It stated that review of applications for board investigators, inspectors and evaluators were “limited,” and that the board routinely entered contracts within receiving approval from the Board of Examiners (composed of the governor, attorney general and secretary of state).
It also stated that the lack of written contracts opened the board to potential legal liability, and made it difficult to assess cost reimbursement for professional service providers. The board, for example, approved reimbursing a DSO for the cost of repairing a “hand-crafted glass windowed door” destroyed by an angry patient during an investigation.
“These costs may be reasonable given the costs were incurred in relation to professional services provided to the Board,” auditors wrote. “However, there were no written contracts in place to ensure allowability of the costs, determination of liable parties, or conformance with state contracting provisions.”
The audit also accused the board of not following administrative rules on adopting regulations and rule-changes. It notes that it took the board a full year to implement a law approved by the 2017 Legislature requiring the board appoint a panel to review investigations before processing or dismissing complaints, a full year after the requirement went into place.
According to the audit report, the board should implement all audit recommendations by December 2019.