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Dental board refers out criminal investigations

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The Texas State Board of Dental Examiners receives dozens of complaints each year; among them, drug diversion and addiction, practicing dentistry without a license and dentists performing unnecessary work.

"It is I think appropriate that the dental board evaluate all complaints and if they find wrongdoing, either civil or criminal, then it's incumbent upon our dental agency, our dental board to take action," said Texas State Senator Charles Schwertner.

The dental board has always investigated the administrative side of complaints and for more than a decade board investigators have also had the ability to conduct criminal investigations, often handing cases over to the local district attorneys for prosecution.

"In hopes of protecting my community and protecting the citizens of Texas I passed this bill that gave them the capacity to have licensed peace officers," said State Senator Jose Menendez.

Menendez's 2003 law enabled the dental board to hire experienced dental investigators with the authority to investigate criminal cases without delay.

In late 2016, a whistleblower tipped off the News 4 Trouble Shooters that a decision was made to re-direct criminal investigations at the end of 2015.

3 months after Executive Director, Kelly Parker, took over, the director of investigations sent out this email to staff: "Per Kelly, as of today, we will no longer investigate the criminal aspects of a complaint. We will not be filing cases directly with the D.A. any longer. If you have a case with a criminal element, work the administrative side of it and refer the criminal elements to a local police department with jurisdiction."

Parker would not agree to an interview, but sent us this statement: "Other agencies exist for the purpose of pursuing the criminal violation and it would be wasteful and redundant for the dental board to do so, too."

According to the Dental Practice Act, "the board shall aid in the enforcement of state law regulating the practice of dentistry," and the board's position is that they do assist and cooperate with law enforcement.

Menendez said, "helping" with investigations was not the intent of the law.

"Law enforcement already has plenty on their hands," Menendez said. "This is your duty to examine complaints and examine what's happening to keep the dental practice a safe practice."

Over the course of 2016, there were multiple Sunset Commission meetings where legislators questioned past action by the dental board and more specifically inaction.

In preparation for these upcoming meetings, Parker developed new protocols to improve the board's "days to case resolution" that included investigation timelines and the creation of attorney teams to support the investigators.

Emails sent during this time prompted questions about whether criminal cases were shut down before they were completed and whether this would compromise public safety.

"This is very disconcerting," Menendez said. "This is not a partisan issue, this is a people issue, this is a patient issue."

The Trouble Shooters filed multiple open records requests, and while many of them were answered, the dozen or so leading up to the new directive were blacked out.

After being alerted to the concerns by News 4, Senator Menendez said he would follow up, and he did, requesting information about how criminal cases were being handled.

Unredacted versions of the emails sent to his office reveal this conversation:

The Director of Investigations writing, "I'm a little flabbergasted that we are even suggesting not filing criminal charges on an on view felony offense. The investigative division is a law enforcement agency with the duties and responsibilities to act on an on view criminal violation the same as any other law enforcement agency."

In Parker's response, she wrote, "I encourage cooperation with other agencies, but after our order, we have no reason to keep an open case. The investigators can send it to the local PD. If they don't want it, it's not our problem."

"The agency is responsible and all management needs to be held responsible as far as why cases, if cases have been dropped, we need to know why, we need them to be picked up, reopened and they need to be examined," Menendez said.

Parker has neither confirmed nor denied cutting criminal investigations short, but the number of open investigations has changed.

According to a September of 2016 enforcement update, the number of complaints received as of September of 2015, was 905 (538 were still under investigation).

The number of complaints received as of 2016 was 883.

Some had been forwarded to the dental division, others were in legal, but there were 0 under investigation.

"I'd like to know more about it and understand the reasoning behind it, but the bottom line though is that any sort of misconduct, criminal misconduct needs to be investigated," Schwertner said.

There is some concern that cases turned over to local law enforcement may fall through the cracks, never making it to local district attorneys.

In a letter written by General Counsel for the board, it states they will monitor cases referred to local law enforcement and file cases directly with the DA if local authorities fail to do so.

If you want to search disciplinary actions against a dentist, you can do so on the TSBDE website.

DENTAL BOARD STATEMENT

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