Chadwick v. Bd. of Registration in Dentistry

• Citation: 461 Mass. 77,958 N.E.2d 500,2012 O.S.H.D. (CCH) P 33164
• Decision Date: 08 December 2011
• Docket Number: SJC–10831.
• Parties: Stephen CHADWICK v. BOARD OF REGISTRATION IN DENTISTRY.
• Court: United States State Supreme Judicial Court of Massachusetts

2012 O.S.H.D. (CCH) P 33,164

461 Mass. 77

958 N.E.2d 500

Stephen CHADWICK

v.BOARD OF REGISTRATION IN DENTISTRY.

SJC–10831.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Sept. 6, 2011.Decided Dec. 8, 2011.

Joel Rosen for the plaintiff.

Amy Spector, Assistant Attorney General, for the defendant.

Natalina A. Servizio, pro se, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

CORDY, J.

This is an action for judicial review of a final decision and order of the Board of Registration in Dentistry (board) suspending Stephen Chadwick's license to practice dentistry in Massachusetts. Pursuant to G.L. c. 112, § 64, Chadwick filed his appeal with the Supreme Judicial Court for Suffolk County. A single justice reserved and reported the case to the full court.

In its decision, the board found that Chadwick failed to comply with Occupational Safety and Health Administration (OSHA) standards; Centers for Disease Control and Prevention (CDC) guidelines; and Department of Public Health (department) regulations “with respect to spore testing, annual office training, the proper handling and disposal of medical waste, proper maintenance and disposal of sharps [i.e., sharp items, such as needles, scalers, burs, laboratory knives, and wires], the maintenance of complete and accurate records with respect to hepatitis B inoculations, and basic exposure control protocols.” The board concluded that this conduct “constitute[d] deceit, malpractice and gross misconduct in the practice of the profession in violation of G.L. c. 112, § 61,” and “seriously undermine[d] the integrity of the profession of dentistry and the public's confidence in the practice of dentistry.” It suspended Chadwick's license to practice dentistry in Massachusetts for six months and imposed a five-year probationary period to follow the suspension.¹

Chadwick raises two issues on appeal: whether a State licensing board is preempted from interpreting, applying, and enforcing OSHA standards when disciplining a professional under its authority; and whether the board's decision was supported by substantial evidence. Because we agree that the United States Supreme Court's decision in Gade v. National Solid Wastes Mgt. Ass'n, 505 U.S. 88, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) ( Gade ), applies to this disciplinary proceeding, we conclude that, while the board may mandate compliance with OSHA standards in dental practices and sanction dentists for professional misconduct after OSHA has determined a violation has occurred, the board may not interpret, apply, and enforce OSHA standards regarding workplace safety on its own accord. We further conclude that the preemptive effect of the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq. (2006) (act), articulated in Gade also bars the board from sanctioning Chadwick based on conduct it finds to be violative of CDC guidelines and department regulations, where such action constitutes the direct and substantial regulation of occupational safety and health issues for which Federal OSHA standards are in effect.

With respect to Chadwick's second contention, we conclude that the board's one finding unrelated to a formal OSHA standard—that pertaining to Chadwick's spore testing practices—is supported by substantial evidence. Therefore, we vacate those portions of the board's decision regarding hepatitis B vaccination training and record-keeping, annual office training for employees, the maintenance of an exposure control program and the handling and disposal of sharps and medical waste, and affirm the board's finding regarding Chadwick's failure to conduct weekly spore testing and record the results. We remand the matter to the single justice who will remand the decision to the board for a reassessment of the penalty imposed.

1. Background. On July 10, 1981, the board issued Chadwick a license to practice dentistry. In November, 2003, and April, 2004, the board received two complaints from patients under Chadwick's care. It dispatched compliance officers to inspect Chadwick's offices on July 19, 2004, September 27, 2004, and May 11, 2005. Those inspections revealed a number of deficiencies beyond the ones alleged in the patient complaints.

On May 13, 2005, the board directed Chadwick to show cause why his license should not be revoked or suspended pursuant to G.L. c. 112, § 61. Chadwick filed his answer and request for a hearing on June 1, 2005. An administrative hearings counsel conducted a formal adjudicatory hearing over six days between July, 2006, and April, 2007. Chadwick appeared at the hearing and was represented by counsel. After reviewing the parties' posthearing briefs and Chadwick's objections to a tentative order, the board issued its final decision and order on November 24, 2009.

The board dismissed the allegations against Chadwick pertaining to the patient complaints because they lacked evidentiary support.² It nonetheless found that Chadwick failed to comply with proper infection control procedures in violation of 234 Code Mass. Regs. § 2.04(18) (1995). This provision mandates that “[a]ll persons licensed by the Board and all offices providing dental services shall be required to provide services in compliance with the ‘Recommended Infection–Control Practices for Dentistry, 1993’ published by the [CDC] ... as the same may be amended and republished by the CDC.” ^3,4 These guidelines, in turn, recommend that the CDC program “be followed in addition to practices and procedures for worker protection required by [OSHA] standards for occupational exposure to bloodborne pathogens.” ⁵ Guidelines for Infection Control in Dental Health–Care Settings—2003, 52 MMWR Recommendations and Rep. No. RR–17 at 5 (2003) (CDC guidelines). OSHA's blood-borne pathogens standards are generally designed to minimize the occupational exposure of health-care personnel and specifically require, among other things, that employers “implement workplace controls, provide post-exposure vaccination or prophylactics and provide education programs to every exposed employee.” Note, The Occupational Safety and Health Administration's Bloodborne Pathogen Standard: An Important First Step Toward Protecting Employees from the Risks of Occupational Exposure, 17 Seton Hall Legis. J. 541, 542 (1993).

Relying on the CDC guidelines, OSHA standards and department waste regulations, the board reviewed the evidence and found the following six deficiencies in Chadwick's dental practice.

First, it determined that Chadwick failed to provide training for his employees prior to offering them the hepatitis B vaccination, failed to maintain records of the employees' receiving or declining the vaccination, and failed to complete the OSHA-mandated declination form for his own vaccination. According to the board, these failures violated OSHA standards that mandated training and record-keeping for hepatitis B vaccinations,^6,7 and CDC guidelines recommending that employers maintain a written policy regarding staff immunizations, as well as confidential medical records to document those immunizations.⁸ The board also noted that in Matter of Abrahamson, Board of Registration in Dentistry Nos. DN–02–225, DN–02–255, DN–03–058, DN–04–083, DN–05–025 (July 27, 2007) (final decision and order) (Abrahamson), it had previously found that “a dentist's failure to comply with CDC guidelines relative to the vaccination of dental staff and documentation thereof is a violation of [ 234 Code Mass. Regs. § 2.04(18) ] and constitutes gross misconduct in the practice of the profession of dentistry.” ⁹

Second, the board concluded that Chadwick's monthly office training on infection control did not comport with CDC guidelines or OSHA standards, and that Chadwick failed to conduct and document annual office training. To the board, these deficiencies violated a CDC recommendation that employers provide training on occupational exposure to infectious agents and infection control procedures to employees on initial employment, assignment to tasks with occupational exposure or, at a minimum, annually,¹⁰ and an OSHA standard that requires all employees with occupational exposure to participate in a comprehensive training program on blood-borne pathogens and infection control on assignment to new tasks with occupational exposure and at least annually.¹¹ The OSHA standards further require that employers maintain records of these training sessions.¹²

Third, the board concluded that Chadwick did not develop or maintain an adequate “exposure control plan” accessible to his employees, contrary to an OSHA standard that requires employers to establish and make accessible to their employees a written plan detailing, among other things, exposure determinations and procedures for evaluating exposure incidents,¹³ and CDC recommendations that employers develop a written health program regarding immunizations, exposure prevention and postexposure management.¹⁴ The board again referenced its Abrahamson decision, in which it had “asserted that CDC guidelines and OSHA regulations direct each dental office to maintain a written program or manual that sets forth infection control policies.”

Fourth, the board concluded that, prior to March, 2005, Chadwick failed to conduct and record weekly spore testing, which is a method of sterilizing dental instruments and ensuring that the sterilizer is working properly.¹⁵ This failure violated CDC recommendations that an employer use biological indicators at least weekly to monitor sterilizers and maintain sterilization records in compliance with State and local regulations. ¹⁶ The board did not rely on an OSHA standard to fault Chadwick for this failure, but did explicitly concur with its own decision in Abrahamson that “spore testing must be conducted at a minimum on a weekly basis and records must be maintained that reflect the outcome and dates of spore testing.”

Fifth, the...