California Attorney General Opinion No. 80-204

_________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General : OPINION : No. 80-204 : of : June 3, 1980 : GEORGE DEUKMEJIAN : Attorney General : : Ronald M. Weiskopf : Deputy Attorney General : : SUBJECT: DENTAL HYGIENISTS—The Board of Dental Examiners is without statutory authority to allow the establishment of separate dental hygiene offices, and registered dental hygienists may not own or manage a dental practice limited to providing those services they are authorized by licensure to perform. The Honorable John E. Thurman, Assemblyman, Twenty-Seventh District, has requested an opinion on the following questions: 1. Does the Board of Dental Examiners have the statutory authority to allow for the establishment of dental hygiene offices separate from a dentist’s office? 2. May a registered dental hygienist own or manage that portion of a dentist’s practice limited to providing those services which a registered dental hygienist is authorized to provide? 1 80-204 CONCLUSIONS 1. The Board of Dental Examiners does not have the requisite statutory authority to allow for the establishment of dental hygiene offices separate from a dentist’s office. 2. A registered dental hygienist may neither own nor manage that portion of a dentist’s practice limited to providing those services which a registered dental hygienist is authorized to provide. ANALYSIS Persons who are registered dental hygienists constitute one of the five classifications of “dental auxiliaries” that were established in 1974 by enactment of article 7, chapter 2, division 2, sections 1740–1767 (hereinafter “article 7”), of the Business and Professions Code1 to perform “dental supportive procedures” authorized therein. (§ 1741 (e).) In enacting the article the Legislature intended for the five classifications—to wit, the dental assistant (§§ 1750–1752), the registered dental assistant (§§ 1753–1754), the registered dental assistant in extended functions (§§ 1756–1757), the registered dental hygienist (§§ 1758–1760), and the registered dental hygienist in extended functions (§§ 1761– 1762)—to constitute a “career ladder permitting the continual advancement of persons to successively higher levels of licensure with additional training and without repeating training for skills already acquired.” (§ 1740.) Article 7 defines the qualifications necessary for each classification (§§ 1750, 1752 (dental assistants), 1753 (registered dental assistant), 1756 (registered dental assistant in extended functions), 1758 (registered dental hygienist) and 1761 (registered dental hygienist in extended functions)) and directs the Board of Dental Examiners (hereinafter “the Board”) to prescribe by regulation2 the functions and duties which each classification may perform, the setting in which they may be performed and whether general or direct supervision3 by a licensed dentist is necessary to their performance. (§§ 1751 (dental 1 All statutory references are to the Business and Professions Code unless otherwise stated. 2 The regulations of the Board of Dental Examiners appear at title 16 of the California Administrative code, sections 1000–1096. 3 The code defines “general supervision” to mean “supervision of dental procedures based on instructions given by a licensed dentist but not requiring the physical presence of the supervising dentist during the performance of those procedures.” (§ 1741(d).) “Direct supervision” on the other hand is defined as “supervision of dental procedures based on instructions given by a licensed dentist, who must be physically present in the treatment facility during the performance of those procedures.” (§ 1741(c).) The Board has interpreted this to mean that the procedures must “be checked and approved by the supervising dentist prior to dismissal of the patient from the office 2 80-204 assistants), 1754 (registered dental assistant), 1757 (registered dental assistants in extended functions), 1759 (registered dental hygienist), 1762 (registered dental hygienist in extended functions).) The functions, settings and attendant supervision for registered dental hygienists have been defined. (16 Cal. Admin. Code, § 1070). Some of their duties may be performed under the general supervision of a licensed dentist4 while others may be performed only of said dentist. (16 Cal. Admin. Code, §§ 1066(c), 1068(d), 1069(c), 1070(d), 1071(c).) 4 In addition to registered dental hygienists being able to continue with their traditional role of performing cleanings and prophylaxes, which is recognized by the code itself (§ 1760(b)), the Board has determined that they may perform the following functions under the general supervision of a licensed dentist: 1. Root planeing: 2. Polishing and contouring restorations: 3. Oral exfoliative cystology: 4. Application of pit and fissure sealants; 5. Preliminary examination, including but not limited so: periodontal charting; intra and extra-oral examination of soft tissue: charting of lesions, existing restorations and missing teeth: classifying occlusion: myofunctional evaluation; 6. Taking of impressions for diagnostic and opposing models; 7. Application of non-aerosol and non-caustic topical agents: 8. Removal of post-extraction and Periodontal dressings: 9. Removal of sutures: 10. Taking of intra-oral measurements for orthodontic procedures; 11. Checking for loose bands; 12. Removal of ligature ties: 13. Application of topical fluoride: 14. Placement of elastic separators: 15. Test pulp vitality: 16. Removal of cement excess from supragingival surfaces of teeth: 17. Sizing of stainless steel crowns, temporary crowns and bands; 18. Temporary cementation and removal of temporary crowns and removal of orthodontic bands; 19. Placement of post-extraction and periodontal dressings; 20. The following duties assigned dental assistants under the general supervision of a licensed dentist: (a) Extra-oral duties or functions specified by the supervising dentist: (b) Operating of dental radiographic equipment for the purpose of oral radiography 3 80-204 under the dentist’s direct supervision.5 Pursuant to legislative directive, the Board has also defined the settings in which registered dental hygienists may undertake their functions. (16 Cal. Admin. Code, § 1070(e) (1).) They include the treatment facility of a licensed dentist, and, under appropriate supervision, eight other settings.6 At present they do not include the in compliance with the requirements of section 1656 of the code. 21. The following duty assigned registered dental assistants under the general supervision of a licensed dentist: Placement and removal of temporary sedative dressings. (16 Cal. Admin. Code, § 1070(b) and (c).) 5 The Board has determined that registered dental hygienists may perform the following procedures under the direct supervision of a licensed dentist, when done so pursuant to the order, control and full professional responsibility of the supervising dentist: 1. Periodontal soft tissue curettage; 2. Administration of local anesthetic agents, infiltration and conductive, limited to the oral cavity; 3. Administration of nitrous oxide and oxygen when used as an analgesic utilizing fail-safe type machines containing no other general anesthetic agents; 4. The following procedures that may be performed by a dental assistant under the direct supervision of a licensed dentist: (a) Removal of orthodontic separators; (b) Holding anterior matrices; (c) Seating of adjusted retainers or headgears, including appropriate instructions; (d) Removal of arch wires; (e) Placement and removal of rubber dams; (f) Placing, wedging and removing of matrices. 5. The following procedures that may be performed by a registered dental assistant under the direct supervision of a licensed dentist: (a) Obtain endodontic cultures; (b) Dry canals, previously opened by the supervising dentist, with absorbent points; (c) Placing of bases and liners on sound dentin; (d) Placement of orthodontic separators; (e) Placement and ligation of arch wires. 16 Cal. Admin. Code, § 1070(h) and (d)(1).) 6 The other settings in which registered dental hygienists may work with appropriate supervision are: “A. Licensed health facilities as defined in section 1250 of the Health and Safety Code. 4 80-204 independent dental hygiene office. The question is thus presented as to whether the Board has the requisite statutory authority to permit a registered dental hygienist to function in his or her own facility, i.e., in an office independent from a dentist’s office. Related thereto is the second question presented, whether a registered dental hygienist may own or manage that portion of a dental practice limited to providing those services authorized to be performed by licensure. We conclude that the responsibility for, and the degree of supervision over dental auxiliaries that the Legislature contemplated a licensed dentist would maintain is such, that it neither allows the Board to permit the establishment of dental hygiene offices, nor for registered dental hygienists to own or manage even that portion of a dental practice limited to providing those services that they are authorized by licensure to provide. The Independent Dental Hygiene Office We first address the question of whether the Board has statutory authority to permit the establishment of a dental hygiene office separate from a dentist’s office. With the 1974 enactment of article 7, the Board as we have seen was given statutory authority to implement the establishment of the dental auxiliary class of registered dental hygienists by detailing their functions, the settings in which those functions might be performed, and the attendant degree of supervision deemed necessary for the exercise of those functions. (§ 1759.)7 That authority however, must be exercised within the B. Licensed clinics as defined in section 1203 of the Health and Safety Code. C. Licensed community care facilities as defined in section 1502 of the Health and Safety Code. D. Schools of any grade level whether Public or private. E. Public institutions including, but not limited to federal, state and local penal and correctional facilities. F. Mobile units operated by a public or governmental agency or a non-profit and charitable organization approved by the Board which mobile unit meets the statutory and regulatory requirements for mobile units. G. The home of a non-ambulatory patient provided a written note from a physician or registered nurse is available stating that the patient is unable to visit a dental office. H. Health fairs or similar non-profit community activities, approved by the Board.” (16 Cal. Admin. Code, § 1070(e)(I)(A-H).) (See fn. 11, infra.) 7 Section 1759 states: “Within one year of the date this article takes effect, the board, upon recommendation of the committee, consistent with standards of good dental practice and the health and welfare of patients, shall prescribe by regulation the functions which 5 80-204 parameters defined by the Legislature (Bus. & Prof. Code, § 1614(f); Gov. Code, § 11373; Wildlife Alive v. Chickering (1976) 18 Cal. 3d 190, 205; Bonn v. California State University, Chico (1979) 88 Cal. App. 3d 985, 990; Addison v. Department of Motor Vehicles (1977) 69 Cal. App. 3d 486, 493–494; Verdugo Hills Hospital, Inc. v. Department of Health (1979) 88 Cal. App. 3d 957, 962–963 and fn. 7), and in this respect we note that the Board has not been given carte blanche in carrying out its task of implementing the law establishing dental auxiliaries. The sections of the code vesting the Board with authority to define the functions of the classification dental auxiliaries, of which the registered dental hygienist is one, do so only with the proviso that the Board stipulate “whether such functions require direct or general supervision.” (§§ 1751, 1754, 1757, 1759 (registered dental hygienists), 1762.) Supervision by a licensed dentist, be it general or direct, is thus a legislatively prescribed sine qua non for a registered dental hygienist to carry out any function.8 As noted above in footnote 3, “general supervision” has been defined as “supervision of dental procedures based on instructions given by a licensed dentist, but not requiring the physical presence of the supervising dentist during the performance of those procedures.” (§ 1741 (d).) “Direct supervision” requires that the licensed dentist actually ‘be physically present in the treatment facility during the performance of those may be performed by a registered dental hygienist, whether such functions require direct or general supervision, and the settings within which registered dental hygienists may work.” The section may only be understood with reference to the whole system of the dental auxiliary law of which it is a part. (Bowland v. Municipal Court (1976) (18 Cal. 3d 479, 489; Merrill v. Department of Motor Vehicles (1969) 71 Cal. 2d 907, 918; Stafford v. Los Angeles, etc., Retirement Board (1954) 42 Cal. 2d 795, 799; Miller v. Superior Court (1979) 92 Cal. App. 3d 29, 31.) 8 Prior to the 1974 enactment of article 7, licensed dental hygienists could only perform their functions under the supervision of a licensed dentist. Former section 1746 read as follows: “Any licensed dentist, public institution or school authority may employ a licensed and registered dental hygienist, who may remove lime [calcareous] deposits, accretions and stains from the unattached surface of the teeth, and apply topical agents essential to a complete prophylaxis, but shall not perform any other operation on the teeth or tissues of the mouth. He may operate in the office of any licensed dentist or in any public institution or in the schools under the general direction or supervision of a licensed dentist. But nothing in this article shall be construed as authorizing any dental hygienist to perform any operation in the mouth without supervision. Unattached surface of the tooth as used in this chapter means the portion of the crown and root surface to which there is no peridental membrane attached.” (Stats. 1961, ch. 478, p. 1578, § 2.) 6 80-204 procedures.” (§ 1741 (c).) The Board has accepted these definitions in determining which functions of registered dental hygienists may be performed only under direct supervision of the licensed dentist and which may be undertaken under his general supervision (compare 16 Cal. Admin. Code, § 1065(i) with § 1065(j)), in whatever setting they may be performed. (Id.,§ 1070(e).) The question of whether dental hygiene offices may be established thus resolves into whether the requirement for supervision by a licensed dentist expressed in the statute, admits the possibility of a registered dental hygienist establishing his or her own office.9 Interpreting the statute requires us to ascertain the Legislature’s intent. (Select Base Materials v. Board of Equalization (1959) 51 Cal. 2d 640, 645.) That task is considerably simplified in this case since we are given an indication of the Legislature’s intent in the statute itself. (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal. 3d 247, 256.) When the matter creating an expanded role for dental auxiliaries came before the Legislature in 1972, it established an Advisory Committee on the Utilization and Education of Dental Auxiliaries to study the matter and to report recommendations on their training, utilization and regulation for implementing legislation. (Stats. 1972, ch. 645, §§ 1–4, pp. 1200–1203.) The Advisory Committee’s report to the Legislature and the Board of Dental Examiners was issued on March 20, 1973. (Report of the Advisory Committee on the Utilization and Education of Dental Auxiliaries to the Legislature of the State of California and the Board of Dental Examiners (hereinafter “the Report”).) In enacting article 7 on dental auxiliaries (i.e., §§ 1740–1767) the Legislature expressed its intent that the Board, in implementing it, “give specific consideration to the recommendations the Advisory Committee . . . contained in its report . . . .” (§ 1740; Cf. Stats. 1977, ch. 645, § 1, p. 1200 (former Bus. & Prof. Code, § 1821).) Without question the Legislature had done the same, for the legislation itself is substantially verbatim from the Advisory Committee’s recommendations. (Report at pp. 57–68.) The Advisory Committee’s Report is thus: “ . . . a most valuable aid in ascertaining the meaning of the statute. While it is true that what we are interested in is the legislative intent as disclosed by the language of the section under consideration, the [Advisory 9 We must make it abundantly clear that we are not discussing an independent practice. In that situation the registered dental hygienist would be free to secure his or her own patients without the involvement of a licensed dentist. That is clearly forbidden since the statute speaks in terms of the registered dental hygienist functioning on the instructions of the licensed dentist, which means that procedure is being carried out under his authority. The patient thus enters the health care system through the dentist, not the registered dental hygienist, and remains the patient of the dentist. 7 80-204 Committee] drafted language at the request of the Legislature, and . . . was a special legislative committee. As part of its special report containing [recommendations for] the proposed legislation it told the Legislature what it intended to provide by the language used. In the absence of compelling language in the statute to the contrary, it will be assumed that the Legislature adopted the proposed legislation with the intent and meaning expressed by the [Committee] in its report.” (Hobreiter v. Garrison (1947) 81 Cal. App. 2d 384, 387.) From their Report it is apparent that the Advisory Committee did not intend dental auxiliaries to function in independent offices. The study undertaken by them involved an assessment of actual experiences of using dental auxiliaries in the treatment facilities of licensed dentists. (Report pp. 7–2 ¶.) The advantages and desirability of their utilization were demonstrated when they performed their functions in that setting and not when operating as an independent office. (Ibid.) Thus the context for the utilization of dental auxiliaries upon which the Advisory Committee commented so favorably and upon which its recommendations to the Legislature was based, was their functioning, as did dental hygienists before, as part of the practice of a licensed dentist. Based on their empirical study, the Advisory Committee’s Report stressed the importance of having dental auxiliaries function as part of a “team”10 under the direction of a licensed dentist who would have some formal training in expanded function auxiliary management and could incorporate the trained auxiliaries into his practice. (Report, pp. 4– 5, 8, 14–15, 65–68.) The suggestion that dental auxiliaries would effectively be utilized outside the facility of a licensed dentist was not considered. They had not been utilized in that fashion before (Cf. former § 1746) and the possibility that they could is totally at odds with the “team” concept with which the Advisory Committee was so impressed; clearly the director of a “team” cannot orchestrate its performance effectively if the “players” are physically separated in independent operations. 10 E.g., “The TEAM approach-TEAM is an acronym for Training in Expanded Auxiliary Management—was supported by the Congress and Federal grants were made available to dental schools. To date, twenty schools have been ‘funded to initiate TEAM training in their curricula. In California, the University of the Pacific Dental School, Loma Linda University Dental School, and the University of Southern California Dental School have on-going TEAM programs. The purpose of the TEAM program is to train dental students in the organization and management of a dental practice which uses the ‘team’ approach to the delivery of dental care. Overall, this training provides sufficient basic principles and clinical experience so enable a student, on graduation, to develop and manage a dental team that includes expanded function auxiliaries and is consonant with his type of practice, the training and experience of his auxiliaries, and the relevant legal restraints or requirements.” (Report, at pp. 15–16.) 8 80-204 Furthermore, maintaining the licensed dentist’s responsibility for the dental care his patients would receive from his auxiliaries was a key item in the Advisory Committee’s Report. In their recommending implementing legislation to formally create the classifications of dental auxiliaries, the Advisory Committee, while desiring to provide a “career ladder” to give vertical and lateral career mobility to dental auxiliaries and to utilize their potentials to the fullest (Report, at pp. iii-iv, 57, 65; Cf. § 1740), never intended that the responsibility of the supervising licensed dentist for the dental care rendered by the auxiliaries to his patients would in any way be lessened. To the contrary, maintaining that responsibility was viewed as a necessary safeguard “for the health and safety of the public and orderly professional progress . . . .” (Report, at pp. 5–6.) The Advisory Committee’s Report containing its analysis and recommendations was accepted by the Legislature as the basis for enacting article 7. (§ 1740.) Viewed in light of that Report and particularly the clinical practices studied therein, we conclude that in its mandating supervision to be maintained by a licensed dentist over the functioning of his dental auxiliaries, the Legislature intended, as did its Advisory Committee, that a dentist be personally and intimately connected with the work a registered dental hygienist might perform on his patients. (Cf. Hobreiter v. Garrison, supra.) Our perception of that intention is consistent with other provisions of the Dental Practice Act. For example, section 1653.1 prohibits a dentist from being granted permission by the Board to maintain an additional place of practice (pursuant to § 1658) unless he or she is in personal attendance at each place of practice at least 50 percent of the time during which it is open for the practice of dentistry.”11 In Naismith Dental Corporation v. Board of Dental Examiners (1977) 68 Cal. App. 3d 253, the court noted that this “50 percent” or “two office” rule was prompted by the public interest considerations of (a) having the 11 “Place of practice” is defined by section 1658 as “any dental office where any act of dentistry practiced as defined by section 1625 . . . .” The performance by a registered dental hygienist of dental hygienic functions pursuant to the instructions and under the “supervision” of a licensed dentist, constitutes the practice of dentistry by the latter at the place of performance. (§ 1625; Wetstone v. Board of Dental Examiner: (1927) 87 Cal. App. 156, 164.) In this regard, at is noteworthy that the additional settings in which the Board has permitted registered dental hygienists to function with appropriate supervision, parallel those in which the Legislature in section 1658 of the code has permitted a dentist to practice without applying to and obtaining permission from the Board to operate an additional place of practice. (Compare subds. (A) through (H) of § 1070(e)(d of Cal. Admin. Code, tit. 16, with subds. (b) through (h) of 11658 of the code.) This appears to be a realization by the Board that the ability of dentists to utilize auxiliaries at those places would be meaningless if the latter were not permitted to function in those additional settings as well. It also appears to be a recognition by the Board that the settings in which a registered dental hygienist may function must be tied to the place of practice of the licensed dentist. 9 80-204 licensed head of the office “maintain a reasonably close and direct supervision over its professional employees and operations” (63 Cal. App. 3d at p. 259) and (b) of preserving “a close personal relationship between the dentist Aid his patients at any additional office “(Id., at p. 260.) Sec also 39 Ops. Cal. Atty. Gen. 230, 231 (1962). We therefore reject the suggestion that a registered dental hygienist might operate as independently on the dentist’s instructions as a pharmacist does on the physician’s prescription, or a radiologist does on a physician’s order. The degree of personal involvement and supervision by the licensed dentist over the dental auxiliaries that was contemplated by the Legislature is much greater than that which occurs in those other situations.12 Furthermore, the model of utilization of dental auxiliaries that was presented to the Legislature and which undergirt its passage of article 7 was predicated on there being a unified effort under one director (the dentist) who would remain ultimately responsible for patient care. Fragmentation of that care in independent functionaries is antithetical to that end. Accordingly we conclude the degree of professional involvement contemplated by the Legislature for licensed dentists to have with their dental auxiliaries and with their patients does not admit the establishment of independent dental hygiene offices. The Board of Dental Examiners lacks requisite statutory authority to allow for the establishment of those facilities. Registered Dental Hygienists’ Owning or Managing That Portion of a Dental Practice Limited to Providing Services Authorized by Their Licensure We next address the question of whether the registered dental hygienist, precluded from the possibility of opening his or her own independent dental hygiene office, may at least own or operate that portion of a dentist’s practice limited to providing those services which registered dental hygienists may by licensure perform. In answering this question we return to the model of the dental practice utilizing auxiliaries that was presented to the Legislature when it enacted article 7 establishing dental auxiliaries. As we have seen, that model envisioned a “team” operation within a licensed dentist’s office under the singular direction and management of the licensed dentist who 12 We realize that oftentimes a dentist is not present at his office when a hygienist is performing procedures on a patient. General supervision contemplates and accommodates that absence. But it is too large a step from the Wednesday absence to the independent office, for the concept of general supervision to span. The patients in the former case are truly the dentist’s and he is at the office at least 50 percent of the time it is open. In the latter situation it is most unlikely the dentist will spend 50 percent of his time there. 10 80-204 remains ultimately responsible for the patient care rendered by the dental auxiliaries. A registered dental hygienist’s owning or managing even that portion of a dental practice limited to providing registered dental hygienist services, is inconsistent with that model. As we could not view article 7 as intending to compartmentalize the clinical practice of dentistry, we do not believe it intended to have the ownership and management of a dental practice compartmentalized either. As our Supreme Court has said, “The law does not -assume to divide the practice of dentistry into [clinical and business] departments. Either one may extend into the domain of the other in respects that would make such a division impractical if not impossible.” (Painless Parker v. Board of Dental Examiners (1932) 216 Cal. 285, 296.) A registered dental hygienist must work at least under the general supervision of a licensed dentist, who is the director and is ultimately the responsible party for the dental practice in which both operate. (Report, at pp. 5–6; Cf. Naismith Dental Corporation v. Board of Dental Examiners, supra, at pp. 259, 260.) The latent problems of permitting a dual proprietary interest in or management of that unitary practice are legion. With two masters of the situation whose will would prevail? Who will choose the equipment for the dental hygiene side of the practice? How will the patient be billed for a singular procedure in which both participate? (Cf. Painless Parker v. Board of Dental Examiners, supra, 216 Cal. at p. 297; People v. Pacific Health Corporation (1938) 12 Cal. 2d 156, 158-159; Masters v. Board of Dental Examiners (1936) 15 Cal. App. 2d 506, 509; Messner v. Board of Dental Examiners (1927) 87 Cal. App. 199, 204.) “[T]he ultimate responsibility for the care and treatment of patients at a dental office rests upon its proprietorship, whether a professional corporation, partnership or an individual.” (Naismith Dental Corporation v. Board of Dental Examiners, supra, 68 Cal. App. 3d at p. 259.) As we have seen the ultimate responsibility for the clinical dental practice which utilizes dental auxiliaries lies with the licensed dentist. The inseparable proprietary interest must as well. (Cf. § 1625(e); Painless Parker v. Board of Dental Examiners, supra, 216 Cal. at p. 296.) We therefore conclude that registered dental hygienists may not own or manage that portion of a dental practice limited to providing those dental services they are authorized by their licensure to perform. The formal establishment of classifications of dental auxiliaries was a marked departure from the traditional concept of the practice “of dentistry, and it was only undertaken after considerable study. The Legislature was presented with a model and with favorable commentary on its working, enacted it into law. Even then the Legislature 11 80-204 desired to be kept informed of the progress in its implementation. (§ 1767.) Before the process is carried further, equally careful consideration and study should be given any additional steps to be taken including the issues of whether independent dental hygiene offices should be established and whether registered dental hygienists may own and manage a portion of a dental practice providing hygienic services. Certainly any “[s]uch change should come from the legislature, after the full investigation and debate which legislative organization and methods permit.” (People v. Pacific Health Corporation (1938) 12 Cal. 2d 156, 161.) Without a clear present expression of legislative will for dental auxiliaries to function more independently of the licensed dentist, we conclude that the Board of Dental Examiners is without statutory authority to allow the establishment of separate dental hygiene offices, and that registered dental hygienists may not own or manage a dental practice limited to providing those services they are authorized by licensure to perform. ***** 12 80-204