8.2 Sanctions, Fines, Disciplinary Procedure & the Professionals' Health Program
Key Takeaways
- Board sanctions include revocation, suspension, license restriction, required treatment, required education, supervised practice, administrative fines, and reprimand (Den 407.02).
- A first same-type violation within 5 years carries a fine of up to $500, a second up to $1,000, and further violations up to $2,000 per offense, plus up to $250 per day for continuing violations capped at $2,000 (Den 407.05).
- Except for immediate suspension under RSA 541-A:30, III, the Board disciplines only after notice and an opportunity to be heard, or by settlement agreement (Den 407.03).
- Professional liability insurers must report reservable dental injury claims and suits to the Board within 30 days after the action begins (RSA 317-A:17, V(a)).
- The Board must investigate a licensee who has 3 insurance claims or legal judgments for 3 different events within any consecutive 5-year period (RSA 317-A:17, V(b)).
Sanctions, Fines, and Disciplinary Procedure
How discipline is imposed — Den 407.03 and Den 201.01
The Board imposes disciplinary sanctions only:
- (a) after prior notice to the licensee and an opportunity to be heard; or
- (b) by agreement in a settlement between the Board and the licensee.
The one exception is immediate license suspension authorized by RSA 541-A:30, III in an emergency. Adjudicatory procedure, declaratory rulings, and voluntary surrender of licenses follow OPLC's Plc 200 rules (Den 201.01). Complaints and investigations proceed under RSA 310:9.
A letter of concern (Den 101.18) is non-disciplinary. It warns a licensee about acts or omissions that could lead to future discipline and follows a communication of alleged misconduct, a complaint, or an investigation.
Available sanctions — Den 407.02 (RSA 310:12, I(e))
- Revocation or suspension of licensure
- Limitation or restriction of a license
- Required care, counseling, or treatment by a physician, counseling service, health care facility, or professional assistance program approved by the Board
- Required education in areas where the licensee was found deficient
- Required practice under the direction of a dentist in a public institution, public or private health care program, or private practice for a set period
- Administrative fines, not more than $2,000 per offense, or $250 per day for continuing offenses
- Reprimand
Choosing a sanction — Den 407.04
The Board chooses the sanction or combination most likely to:
- protect public health and safety;
- prevent future misconduct;
- account for any acknowledgment of fault and cooperation with the investigation;
- correct attitudinal, educational, or other deficiencies;
- encourage responsible practice (the rule's wording is "the responsible practice of mental health"); and
- show the licensee and the public that the Board enforces the law.
It first identifies the act or omission, then checks for aggravating characteristics:
| Characteristic | Example |
|---|---|
| Misconduct actually caused physical or mental harm | A patient needed hospitalization |
| Misconduct had the potential to cause harm | An unsterilized instrument was used, though no infection resulted |
| Misconduct repeated earlier misconduct, shown by an earlier hearing, settlement, or admission | A second CE falsification |
| Misconduct was not the licensee's first | Any prior finding |
| Misconduct was intentional rather than negligent or inadvertent | Deliberate billing fraud |
Fine limits — Den 407.05
Fines are assessed under RSA 310:12, Den 501, and Den 502:
| Same-type history in the 5 years before the Board's notice | Maximum fine per offense |
|---|---|
| None | $500 |
| One prior infraction of the same type | $1,000 |
| More than one prior infraction of the same type | $2,000 |
| Continuing violation | A separate fine of up to $250 per day, not exceeding $2,000 |
Costs of discipline — Den 407.06
After a hearing, the Board may charge a disciplined licensee for hearing and enforcement expenses, in whole or part, if it states its reasons based on seven criteria. These are:
- the severity of the conduct;
- how disputed the evidence was;
- the scope of the investigation and hearing;
- whether a reasonable settlement was offered before the hearing;
- rehabilitation value;
- whether part of a fine was suspended; and
- deterrence.
The Board sends a written statement of each expense with a formal demand for payment.
Reciprocal discipline — RSA 317-A:17, IV
When another jurisdiction issues an administratively final order disciplining a New Hampshire licensee or applicant, the Board may order the person to show cause why similar discipline, or license denial or restriction, should not be imposed here.
- The other jurisdiction's decision may not be collaterally attacked, but the licensee may argue for a lesser sanction.
- The Board may impose any sanction the chapter allows, including one more stringent than the other jurisdiction's.
- The respondent gets at least 10 days' written notice and an opportunity to be heard.
Licensees must independently report any sanction from any jurisdiction to the Board within 30 days (Den 501.01(j)).
Malpractice claim reporting — RSA 317-A:17, V
- Insurers, including self-insurers, that provide professional liability coverage to licensees must report all reservable claims and suits for dental injury to the Board within 30 days after the action begins. "Dental injury" includes negligence, lack of informed consent, failure to diagnose, premature abandonment, and failure to maintain equipment.
- The Board must investigate any licensee who is the subject of 3 insurance claims or legal judgments for 3 different events within any consecutive 5-year period.
Impaired practitioners and peer review — RSA 317-A:16-a and 317-A:37
- Peer review committees may report facts to the Board that might support discipline under RSA 317-A:17, II.
- Professional society committees and intervenors helping dentists impaired by illness, substance abuse, or disruptive behavior may report an impaired dentist to the Board, and the Board may share information with them.
- Records of Board proceedings compiled with a peer review committee are confidential (notwithstanding RSA 91-A) unless the dentist requests otherwise. They may be disclosed only in a disciplinary hearing or appeal, to other jurisdictions' licensing authorities, or under a court order.
- Immunity: good-faith reporters are not liable for damages, and Board and committee members are liable only for reckless or wanton conduct.
- The Board may contract with an organization to run a professionals' health program offering education, intervention, treatment, and post-treatment monitoring to licensed dentists and applicants.
- Reports found without merit are expunged. A dentist may examine the report and add a statement of reasonable length.
- RSA 317-A:37: a dental peer review committee of a state or component dental society conducts confidential and privileged proceedings that cannot be used in other proceedings. It may still refer complaints to the Board with the complainant's contact information.
Worked example: fines
A dentist was fined twice in the past 4 years for failing to keep required sterilization records, and the same violation is found again. It has continued for 12 days.
- Per-offense cap: more than one prior same-type infraction within 5 years, so up to $2,000.
- Continuing violation: up to $250 per day for 12 days is $3,000, but the continuing-violation fine is capped at $2,000.
The Board may also impose non-monetary sanctions, such as required education, and assess hearing costs under Den 407.06.
The Board finds a dentist committed a violation, and she has no violations of the same type in the prior 5 years. What is the maximum administrative fine per offense under Den 407.05?
Within what time must a professional liability insurer report a reservable dental injury claim or suit against a New Hampshire licensee to the Board?
Another state's dental board issues a final order suspending a dentist who also holds a New Hampshire license. In the New Hampshire show-cause proceeding under RSA 317-A:17, IV, what may the dentist do?