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West Virginia Dental Association halts dental board from unlawfully accessing prescription records

September 03, 2012

By Kelly Soderlund, ADA News staff

Charleston, W.Va.—The West Virginia Board of Dental Examiners agreed to no longer peer into dentists’ prescription records based on unrelated complaints, thanks to the diligence of the state dental association.

It’s a dispute that’s been going on between the state dental board and the West Virginia Dental Association since 2007. It was then that officials on the dental board informed the dental association’s executive council that they were accessing dentists’ prescription records every time they received a complaint about a dentist, regardless of whether the complaint involved prescription drugs, said Richard Stevens, executive director of the WVDA.

In West Virginia, the state Board of Pharmacy maintains the Controlled Substance Monitoring Program, where pharmacists are required to submit data on every controlled prescription they dispense and include information on the prescriber and the patient. The WVDA maintained that state and federal law stated a licensing agency, such as the dental board, could only access the database if they were investigating or adjudicating a violation of a federal or state controlled substance law.

The dental board saw it differently and would access the database even in cases of insurance or fee complaints against dentists, Mr. Stevens said.

“They did this for almost six years,” Mr. Stevens said.

Of the more than 870 licensed dentists in West Virginia, Mr. Stevens said up to 200 had their prescription records accessed by the dental board. These probes led the board to believe some dentists were inappropriately prescribing and dentists were ordered to turn over their patients’ records. Around 18 dentists entered consent decrees with the board for inappropriate prescribing, he said.

Mr. Stevens asked Tom Smith, the chief legal counsel for the West Virginia Senate Judiciary Committee when the law was written, to provide an opinion on what was within the law. Mr. Smith sided with the WVDA’s interpretation.

“The law makes it clear that although agents of the practitioner licensing board have access to the database it must be in the course of an investigation, adjudication or prosecution of a violation under any state or federal law that involves a controlled substance,” Mr. Smith wrote.

In March, the dental board passed a resolution stating it would only access the Controlled Substance Monitoring Program “in accordance with the law and cease any current access not in conformance and further to review all current cases for compliance.”

The dental board also received letters or opinions from the Board of Pharmacy and West Virginia attorney general’s office confirming they should not be accessing prescription records without just cause. Two additional attorneys, including the governor’s office, also gave the WVDA the same opinions.

Mr. Stevens is proud of the dental association’s success and the outcry from dentists as their records were being accessed was unprecedented in his 37 years as executive director.

“I’ve never had an issue that I’ve gotten as many responses from individual dentists as this. Dentists were really upset with what the board was doing and the way they were doing it. Some dentists called it a witch hunt,” Mr. Stevens said. “The dental association was not trying to shield or make excuses for any wrongdoing by any dentist. But every dentist has the legal right to due process and should be investigated in a matter that is legal with proper authorization.”