SC Administrative Law Court Decisions

Pursuant to S.C. Code Ann. §§ 1-23-110 and 1-23-111 (Supp. 2001), a public hearing was held on October 10, 2001, at the Administrative Law Judge Division ("Division") in Columbia, South Carolina to determine the "need and reasonableness" of the proposed regulation. The proposed regulation would interpret the term "under general supervision" as requiring a valid written authorization to be issued by a supervising dentist no more than forty-five (45) days before preventive dental care services may be provided to a child or adult in this state.

The South Carolina Department of Labor, Licensing, and Regulation ("LLR"), the State Board of Dentistry ("Board"), and other interested persons presented testimony, written materials, and correspondence relating to the proposed regulation, all of which were incorporated into the record of the hearing.

The following Proponents of the proposed regulation participated in the public hearing:

Richard P. Wilson, Esq., Deputy General Counsel, South Carolina Department of Labor, Licensing, and Regulation

James Hal Zorn, Jr., Executive Director, South Carolina Dental Association ("Dental Ass'n")

Michelle D. Bedell, DMD, Member, South Carolina State Board of Dentistry

H. Rion Alvey, Administrator, South Carolina State Board of Dentistry

Patricia M. Sullivan, RDH, MA, Member, South Carolina State Board of Dentistry

The following Opponents of the proposed regulation participated in the public hearing:

Barbara W. Ankersen, RDH, MS, Dental Hygiene Educators

Marlene K. Baber, RDH

Tammi O. Byrd, RDH, Health Promotion Specialists

Stan Thompson, Director, South Carolina Department of Health and Human Services

Edna Martin, RDH, BS, President, South Carolina Dental Hygienists Association ("Hygienists Ass'n") and Dental Hygiene Educators

Lathonia Bennett, DDS, Health Promotion Specialists

Beverly B. Dunbar, RDH, MS, Dental Hygiene Educators and South Carolina Dental Hygienists Association

Teresa Huff, RDH, Health Promotion Specialists

FINDINGS

Based upon the statements, testimony, exhibits, written comments, and applicable law, I find and conclude the following:

General

• The Notice of Drafting of the proposed regulation was published in the State Register on July 27, 2001.
• The Board filed an Agency Transmittal Form with the Division on August 10, 2001.
• The Notice of Proposed Regulation was published in the State Register on August 24, 2001, which included a synopsis of the proposed regulation and the "Notice of Public Hearing and Opportunity for Public Comment."
• The Board complied with all notice and procedural requirements of the Administrative Procedures Act and the Division's Rules of Procedure.
• A public hearing to allow the Board's presentation and public comment was conducted on October 10, 2001, pursuant to S.C. Code Ann. § 1-23-111 (Supp. 2001), at which time the undersigned received oral testimony, exhibits, and written comments from the Board and other interested persons. The record remained open until October 17, 2001.
• The text of proposed regulation 39-18 provides:

• In order for a licensed dentist to authorize a procedure to be performed by a dental hygienist under general supervision, the supervising dentist must have clinically examined the patient and actually determined the need for any specific treatment. Before treatment may be performed by a dental hygienist, the supervising dentist must provide a written work order for the procedure(s) to be performed by the dental hygienist. A clinical examination must be conducted by the supervising dentist for each patient not more than forty-five (45) days prior to the date the dental hygienist is to perform the procedure for the patient. Supervising dentists may only authorize licensed dental hygienists to apply topical fluoride and perform the application of sealants and oral prophylaxis under general supervision in accordance with Sections 40-15-80(B) and (C).



• The authorization form must contain the following information:

• identification of patient by name;
• signature of the parent/guardian giving permission for treatment of minor patient, if applicable;
• signature and license number of the supervising dentist, and date of patient examination by the dentist;
• procedure(s) authorized by the supervising dentist;
• signature and license number of the dental hygienist performing the procedure(s), and
• confirmation whether or not patient is an active patient of another dentist.
• A copy of each authorization form must be retained in a file by the supervising dentist for a period of three (3) years, and must be made available immediately upon the request of the Board or its representative.

• When the supervising dentist is not to be present during the dental hygienist appointment, patients or their parents/legal guardian, if applicable, must be informed in writing prior to the dental hygiene appointment that no dentist will be present and, therefore, no examination by a dentist will be conducted at that appointment.

• The dental hygienist must comply with all written protocols for emergencies established by the supervising dentist, and must also comply with written protocols/standing orders that the supervising dentist establishes. At all times, the dental hygienist is under the supervision and full responsibility of the supervising dentist. General supervision does not preclude the use of direct supervision when in the professional judgment of the dentist such supervision is necessary to meet the individual needs of the patient.

• As stated in the Preamble to the proposed regulation contained in Document No. 2644 of the State Register, Vol. 25, Issue 8, dated August 24, 2001, the purpose of the proposed regulation is to "clarify the meaning and intent of the phrase 'authorized the procedures to be performed' pursuant to Section 40-15-85(B), which relates to the general supervision of dental hygienists practicing in school settings, hospitals, and other facilities and institutions, pursuant to Sections 40-15-80(B) and (C)."

Jurisdictional Statutory Provisions

• S.C. Code Ann. § 1-23-111(A) (Supp. 2001) provides that an administrative law judge, as assigned by the chief judge, must conduct a public hearing pursuant to Article 1, Chapter 23, involving the promulgation of regulations by a department for which the governing authority is a single director.
• S.C. Code Ann. § 40-15-10 (Supp. 2001) created the State Board of Dentistry.
• S.C. Code Ann. §§ 40-1-70 and 40-15-40 (Supp. 2001) authorized the Board to promulgate regulations necessary to carry out the provisions of Chapter 15 of Title 40.
• The Board is regulated by LLR. S.C. Code Ann. § 40-1-40 (Supp. 2001).
• LLR is headed by a director who is a member of the Governor's executive cabinet and is appointed by the Governor.

Dental Hygienists Statutory Provisions

• 1988 S.C. Acts 439, which was passed by the South Carolina General Assembly and approved by the Governor on April 18, 1988, addressed the practice of dental hygiene in nursing home facilities, and facilities owned or operated by the federal, state, or local government ("nursing home/government facilities settings") as well as in school settings. The Act amended § 40-15-80 to read as follows:
• Any person is considered to be practicing dental hygiene who engages in those clinical procedures primarily concerned with the performance of preventive dental services not constituting the practice of dentistry, including removing all hard and soft deposits and stains from the surfaces of the human teeth, performing clinical examination of teeth and surrounding tissues for diagnosis by the dentist, and performing such other procedures, under the supervision of a licensed dentist, as may be delegated by regulations of the board.

• In school settings, licensed dental hygienists may provide oral hygiene instruction and counseling, perform oral screenings, provide nutrition and dietary counseling, and apply topical fluoride without the presence of a dentist on the premises.

• In school settings, application of sealants and oral prophylaxis are subject to the following restrictions:
• Whenever a sealant or prophylaxis is placed or provided, only those students identified as "dentally indigent" are eligible for the treatment. "Dentally indigent" as used here refers to all students who are eligible for Medicaid or all students who are on free or reduced lunch programs or are eligible for free or reduced lunch programs, or both.

• A licensed dental hygienist must receive authorization from a licensed dentist who is either his employer or supervising dentist before placement of sealants or a prophylaxis is provided.
• A preexamination and written authorization by the authorizing dentist, to occur no more than forty-five days before treatment is administered, is required before any student receives sealant application or oral prophylaxis, or both. Treatment cannot be authorized for a student who is an active patient of another dentist.

• In facilities owned or operated by the federal, state, or local government, and in nursing home facilities, licensed dental hygienists may provide oral hygiene instruction and counseling, perform oral screenings, provide nutrition and dietary counseling, and apply topical fluorides without the presence of a dentist on the premises. A licensed dental hygienist must receive authorization from a licensed dentist who is either his employer or supervising dentist before placement of sealants. A preexamination and written authorization by the authorizing dentist, to occur no more than forty-five days before treatment is administered, is required before any individual may receive sealants. Treatment cannot be authorized for an individual who is an active patient of another dentist.

• Act 439 specifically provided that in nursing home/government facilities settings as well as in school settings, a dental hygienist, without the presence of a dentist on the premises, may:

(A) provide oral hygiene instruction and counseling;

(B) perform oral screenings;

(C) provide nutrition and dietary counseling; and

(D) apply topical fluorides.

• Act 439 also provided that in nursing home/government facilities settings, a dental hygienist may apply sealants but only if:

(A) the hygienist has authorization from a dentist, who is either the dental hygienist's employer or supervisor, before the procedure;

(B) the authorizing dentist has preexamined the individual and given written authorization no more than forty-five days before the procedure; and

(C) the individual is not an active patient of another dentist.

The Act further provided that in school settings, the dental hygienist may apply sealants and also perform oral prophylaxis if the same requirements are met but the Act provided the additional requirement that the student must be "dentally indigent." According to the Act, "dentally indigent" refers to all students who are eligible for Medicaid or all students who are on free or reduced lunch programs or are eligible for free or reduced lunch programs, or both.

• 1995 S.C. Acts 106, as passed by the South Carolina General Assembly and approved by the Governor on June 12, 1995, eliminated the requirement that a student must be "dentally indigent." The Act amended § 40-15-80(C)(1) to allow a dental hygienist to apply a sealant or perform prophylaxis on any student with unmet oral needs if the student's parent or guardian provides written permission.
• Finally, the General Assembly passed 2000 S.C. Acts 298, which was approved by the Governor on May 26, 2000. Act 298 made several changes.
• Act 298 amended § 40-15-80(A) to include "root planing" and "charting of oral conditions" as a part of the practice of dental hygiene. The Act also deleted the phrase "under the supervision of a licensed dentist" from this subsection.
• Act 298 permitted dental hygienists to provide oral hygiene instruction and counseling, perform oral screenings, and provide nutrition and dietary counseling without prior authorization.
• Act 298 amended § 40-15-80 to provide that in school settings, a dental hygienist may apply topical fluoride, sealants, and oral prophylaxis under general supervision and with written permission of the student's parent or guardian. The Act eliminated the requirement that only students with unmet oral needs may have a sealant applied or prophylaxis performed. The Act also eliminated the requirement that a preexamination and written authorization by a dentist must be performed not more than forty-five (45) days before a dental hygienist can perform the procedures.
• Act 298 expanded the description of other settings to include "hospitals, nursing homes, long term care facilities, rural and community clinics, health facilities operated by federal, state, county, or local governments, hospices, education institutions accredited by the Commission on Dental Accreditation that give instruction in dental hygiene, and in bona fide charitable institutions." The Act amended § 40-15-80 to provide that in these public settings, a dental hygienist may apply topical fluoride, sealants, and oral prophylaxis under general supervision. The Act also eliminated the requirement that a preexamination and written authorization by a dentist must be performed not more than forty-five (45) days before a dental hygienist can perform the procedures.
• Act 298 further provided that a dental hygienist who practices under general supervision must maintain professional liability insurance.
• Act 298 also redefined the term "direct supervision" and defined the term "general supervision" in §§ 40-15-85(A) and (B), respectively. The legislature defined the term "general supervision" to mean "that a licensed dentist or the South Carolina Department of Health and Environmental Control's public health dentist has authorized the procedures to be performed but does not require that a dentist be present when the procedures are performed." The Act provided that such did not apply to the practice of dental hygiene in a private dental office where there is "direct supervision."

Emergency Regulation

• According to the minutes of the Board meeting held on July 12, 2001, the Board, during the meeting on June 22, 2001, authorized its staff to promulgate regulations defining the term "authorization" as contained in § 40-15-80(B). On July 12, 2001, the Board approved an emergency regulation: (1) which required dental hygienists to obtain written authorization from a dentist on a prescribed form which contained the written permission of the parent/guardian giving permission before preventive services could be performed by a dental hygienist; and (2) which prescribed that each patient must have an examination by a dentist before the preventive dental care could be provided. The Board also requested the staff of LLR to proceed with the process of promulgating a permanent regulation.

Interpretation of Regulations

• A regulation is an "agency statement of general public applicability that implements or prescribes law or policy or practice requirements of an agency." S.C. Code Ann. § 1-23-10(4) (Supp. 2001). It is well-settled law in South Carolina that regulations must be promulgated pursuant to the mandates of the APA.
• Chapter 39 in the regulations of state agencies, entitled "State Board of Dentistry," contains the regulations promulgated by the legislature applicable to the practice of dentistry and dental hygiene, as well as the performance of dental technological work.
• Proposed regulation 39-18 is entitled "Standards for Dentists to Authorize Certain Procedures to be Performed by Dental Hygienists Under General Supervision." Under this proposed regulation, the Board defines the term "under general supervision" as requiring the following:

(A) a dentist must authorize any procedure to be performed by a dental hygienist; and

(B) a dentist must clinically examine the patient and actually determine the need for such treatment before the dental hygienist performs it.

The proposed regulation requires that the examination by the dentist as well as the written authorization must be done no more than forty-five (45) days before the dental preventive care services are to be provided by the dental hygienist. The proposed regulation recaptures some of the language of the statute which was deleted by the legislature in Act 298.

• An agency is implicitly authorized to interpret, clarify, and explain statutes by prescribing regulations for the complete and consistent operation and enforcement of the law within its expressed general purpose. An administrative regulation is valid so long as it is reasonably related to the purpose of the enabling legislation. Hunter & Walden Co. v. S.C. State Licensing Bd. for Contractors, 272 S.C. 211, 251 S.E.2d 186 (1978); Young v. S.C. Dep't of Highways and Public Transp., 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985). A regulation which is beyond the authorization of the agency's enabling legislation or which materially alters or adds to the law is invalid. Society of Prof'l Journalists v. Sexton, 283 S.C. 563, 324 S.E.2d 313 (1984); Banks v. Batesburg Hauling Co., 202 S.C. 273, 24 S.E.2d 496 (1943).
• When interpreting a statute, the primary role of the judge is to ascertain the intent of the legislature. State v. Johnson, 343 S.C. 693, 541 S.E.2d 855 (Ct. App. 2001). When the statute contains terms which are clear and unambiguous, the judge must apply those terms according to their literal meaning. State v. Jihad, 342 S.C. 138, 536 S.E.2d 79 (Ct. App. 2000). However, "a court will reject the literal meaning when it leads to absurd results not possibly intended by the Legislature." Hamm v. S. C. Public Service Comm'n, 287 S. C. 180, 336 S. E. 2d 470 (1985). This analysis is the same whether the judge is interpreting a statute, the constitution, or a rule of procedure. J.K. Const., Inc. v. W. Carolina Reg'l Sewer Auth., 336 S.C. 162, 519 S.E.2d 561 (1999).
• A statute as a whole must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers. State v. Baker, 310 S.C. 510, 427 S.E.2d 670 (1993). A statute must be construed in light of its intended purposes and if such purposes can be reasonably developed from its language, the purpose will prevail over the literal import of the statute. Spartanburg Sanitary Sewer Dist. v. City of Spartanburg, 283 S.C. 67, 321 S.E.2d 258 (1984). A statute must be construed in light of conditions existing when enacted. State v. Kizer, 164 S. C. 383, 162 S. E. 444 (1932).
• A basic presumption exists that the legislature has knowledge of previous legislation when later statutes are passed on related subject. Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993). As a result, "[w]here conflicting provisions are found in the same statute, or in different statutes, the last in point of time or order of arrangement prevails." Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
• Furthermore, it is presumed that in passing new statutes, the legislature intended to accomplish something and not do a futile or redundant act. State ex rel. McLeod v. Montgomery, 244 S.C. 308, 136 S.E.2d 778 (1964).
• As a creature of statute, a regulatory body is possessed of only those powers expressly conferred on or necessarily implied for it to effectively fulfill the duties with which it is charged. City of Rock Hill v. South Carolina Department of Health and Environmental Control, 302 S.C. 161, 394 S.E.2d 327 (1990).
• An administrative regulation is valid so long as it is reasonably related to the purpose of the enabling legislation. Hunter & Walden Co. v. S.C. State Licensing Bd. for Contractors, 272 S.C. 211, 251 S.E.2d 186 (1978). Administrative agencies may be authorized "'to fill up the details' by prescribing rules and regulations for the complete operation and enforcement of the law within its expressed general purpose." Heyward v. South Carolina Tax Commission, 240 S.C. 347, 126 S.E.2d 15 (1962).

POSITIONS

Proponents of the Regulation

The Proponents of the proposed regulation are a majority of the approximate 1500 licensed dentists in the State of South Carolina. They were represented at the hearing by James H. Zorn, who has been the executive director of the South Carolina Dental Association ("Dental Ass'n") for the last thirteen years. He testified that the dentists are proactive in terms of access to provide care for the children of South Carolina and that they were instrumental in getting the Medicaid program in this state revamped in 2000. He testified that during the year 2000 an unduplicated 50,862 children were treated by the dentists of South Carolina.

The Proponents further stated that the primary need for the children of this state is restorative care, not preventive care. They cited the two studies ⁽¹⁾ conducted by the public dental professionals of the Department of Health and Environmental Control ("DHEC") which found that the predominate needs for the children screened is restorative care (filling cavities or removing teeth) versus preventive care (applying sealants or prophylaxis).

However, as to preventive care, it is the position of these dentists that they should examine each child and adult and provide written authorization prior to any preventive dental care being provided by a dental hygienist. They feel that there must be a treatment plan with diagnosis which would provide for continuing comprehensive care. They do not feel that dental hygienists have the training or education to diagnose a patient and make a determination that a person needs a sealant. Further, they do not feel that dental hygienists are sufficiently educated or trained to identify interproximal decay, or cavities between the teeth. They opine that if a tooth is sealed over and there is active decay in the tooth, the tooth will continue to decay and the patient ultimately may lose the tooth. They argue these positions in support of the need for the regulation as proposed by the Board.

Mr. Zorn testified that the language in Act 298 passed in 2000 was agreed to by both the Dental Ass'n and the Hygienists Ass'n. According to Mr. Zorn, there was little discussion or testimony before the House subcommittee because the various parties had reached an agreement by that time. He stated that the reception by the members of the subcommittee was "a round of applause by the legislators because it was the first time that most of them had ever seen us cooperate." Tr. p. 31. He further testified that there was no discussion among the two associations about the definition of the phrase "under general supervision" except that both associations agreed to the definition as stated in § 40-15-85(B). Tr. p. 36.

However, Mr. Zorn stated that the Dental Ass'n accepted as its definition of the phrase "under general supervision" the definition as provided by the American Dental Association in its "Comprehensive Policy Statement on Dental Auxiliaries" which requires prior examination and written examination by the dentist.

Dr. Michelle D. Bedell, a dentist and former dental hygienist who lives and practices dentistry in York County, testified that she has worked extremely hard in getting a program for established in the schools there for in-school screening. There also was testimony at the hearing about an in-school program in Allendale County where private dentists go into the school systems and screen the dental needs of the children. These are voluntary programs in these counties. The Dental Ass'n feels that such programs are representative of the efforts and the desire by the dentists in South Carolina to participate in programs at these settings to provide clinical exams. However, Mr. Zorn testified that "it's going to involve a great deal of innovation on everybody's part to get the care [dental examinations] out to these children." Tr. p. 49. He recognized that the effort is a voluntary effort and requires individual effort by the dentists in each county.

Opponents of the Regulation

The Department of Health & Human Services ("DHHS"), which is the fiscal agent in South Carolina responsible for providing Medicaid services in South Carolina, has an interest in assuring access to health services for the citizens of this state. DHHS recognizes the importance of providing preventive health and dental services to children. DHHS takes the position that if the regulation is promulgated, the progressive steps taken by the legislature by making the changes to § 40-15-80 through Act 298, which increased dental services to South Carolina's children and other vulnerable adults, would be defeated. DHHS also argues that the demographics of this state, particularly the high percentage of poverty-level citizens and the geographical distribution of our dentists, make the issue of access to these dental services particularly important. Several of the counties have few dentists when compared to the children needing dental care. ⁽²⁾ DHHS further posits that the statute was amended in 2000 to provide an avenue for the delivery of dental services to children that otherwise may not have exposure to any dental care.

Under the statute prior to its amendment, a dentist had to examine the patient and provide authorization not less that forty-five (45) days prior to the dental hygienist performing the services. That provision was removed by Act 298. However, in this regulation, the Dental Board wants to require that such written authorization again be obtained within the forty-five (45) day period in which the services are to be provided.

DHHS argues that such requirement should not be promulgated as a regulation for several reasons. First, they argue that to do so would prohibit the delivery of dental services to many children because in many areas of this state there are few dentists. For example, in Lee County there are only three dentists and a school-age population of 3,094. Further, only two of the three dentists there are Medicaid providers and of the total school age population, 2,626 (FY 2000) are Medicaid eligible. In Clarendon County, there are six dentists but only five are Medicaid providers. There is a school-age population of 4,434 (FY 2000) of which 4,253 are Medicaid eligible. Union County has six dentists, only two of who are Medicaid providers for a school-age population of 2,337 (FY 2000) of which 2,166 are Medicaid eligible. None of these numbers include non-school age children or adults.

Second, DHHS argues the proposed amendment would have a substantial impact on the taxpayers of South Carolina and would make it necessary to reduce the number of services provided by Medicaid and/or the number of clients served. Under the proposed regulation, dentists would be required to perform clinical examinations of patients prior to hygienists performing any work within their scope of services. A dental examination would cost $38.00 per exam, which would deplete the dental funds available for reimbursement. From January 2001 through July 31, 2001, the service to unduplicated recipients served by one provider was 2,921. Based on this six-month period, the cost for prior examinations by a dentist would be $110,998, or $221,996 for a full year. With program growth and with the expansions in schools, the numbers could double. Thus, the proposed amendment would cost an additional $500,000 to pay for the exams on all children prior to a dental hygienist being able to provide preventive dental care. ⁽³⁾ As a part of the initial examination by the dentist, a radiograph would be taken of the teeth of each patient at an approximate additional charge of $21.00. Tr. p. 228.

Another opponent of the regulation are some of the approximate 2,200 registered dental hygienists in South Carolina. There are two dental hygienist associations in South Carolina: The Committed Dental Hygienists Association and the South Carolina Dental Hygienists Association. The Committed Dental Hygienists Association promotes a team concept of dentistry whereby dental hygienists cannot work without dentists. However, the South Carolina Dental Hygienist Association which has approximately 350 members promotes self-governance and an independent practice.

The third opponent of the regulations is the Dental Hygiene Educators, a nonprofit organization. Ms. Barbara Ankerson, a former commissioner of the Association on Dental Accreditation, is a member of and represented the Dental Hygiene Educators at the hearing. She is also a member of the faculty at Trident Technical College, where she teaches dental hygiene.

She identified the Hygienists Ass'n as an organization which consists of dental hygiene faculty from the six dental hygiene educational institutions in South Carolina. ⁽⁴⁾ The educators at these schools are dentists, dental hygienists, and dental assistants. The membership of this organization fluctuates from 25 to 40 persons on an annual basis.

She testified that the term "general supervision" is not defined by the Commission on Dental Accreditation as it relates to educational programs. It leaves prerogative to the purview of each state. She stated that she does not believe that each patient needs to be examined first by the dentist before the preventive dental care services are provided. She opined that the dental hygienists are educated to recognize disease and the dentists for whom they work should be able to send their hygienists to the schools in rural areas to examine the children. Tr. p. 110.

Dental hygienists normally finish one of the six dental hygiene programs existing in South Carolina. ⁽⁵⁾ They are associate degree programs that have 84 semester credits (less than three years to complete). The curricula consist of courses in anatomy, physiology, chemistry, and microbiology. There are at least 16 semester credits of biomedical sciences (biology and chemistry), as well as courses in math, English, computers, speech, sociology, psychology and the humanities.

Diseases of the mouth are studied in the biomedical science courses. Biomedical sciences are a foundation for student analysis and synthesis of the interrelationships of the body systems when making decisions regarding not only oral health but also total body health. The programs have an oral pathology course which trains the students in oral pathology and the many other lesions of pathology that can occur in the oral cavity. Dental graduates must be able to understand the cause, recognize the signs and symptoms, and demonstrate competency in treatment for potential emergency situations which may result from fainting, airway obstruction, asthma, hyperventilation, epilepsy, diabetes, allergies, angina, heart attack, and strokes. Dental graduates also must be certified in CPR. ⁽⁶⁾

Dental hygienists are prepared to provide and/or support the provision of oral health care services to patients with blood borne infectious diseases. Further, they must take a history from the patient, review the patient's detailed medical history, take the blood pressure of the patient, and then analyze all this information prior to making any decisions about the treatment or its safety before proceeding. Emphasis is placed on educating the student in school about the diseases which may impact treatment.

They must be able to recognize decay in the mouth. They must be able to dialogue with the patient's physician about the specific conditions that may compromise the health of the patient and for which treatments may need to be deferred. The dentist and/or doctor makes the diagnosis but the dental hygienists are taught to recognize disease both clinically and radiographically. ⁽⁷⁾

They are taught to assess, plan, evaluate, and implement dental hygiene care. To do so, they have to take medical and dental histories, assess vital signs, conduct oral examinations, take x-rays, conduct periodontal and dental examinations, and perform risk assessments such as dental decay. This may be called the dental hygiene treatment plan. To implement this plan, they provide oral hygiene instructions, perform scaling and root planing, apply dental sealants, polish teeth and provide fluoride therapy. ⁽⁸⁾

In response to the complaint raised by the Dental Ass'n that dentists need to develop and oversee a comprehensive dental plan for the patients, the dental hygienists respond that they are willing to screen the patients, which procedure is not reimbursable by Medicaid. Then, after they obtain permission from the parent or guardian to provide preventive care, they will provide the cleanings, sealants, and fluoride varnish or fluoride treatment. Thereafter, the dental hygienist will refer the patient to a dentist, either a dentist on a van, a dentist in the community, or a dentist that has already seen that child. A comprehensive exam can be done at that time. This could prevent duplicate examinations by different dentists. Further, the dental hygienists assert they can and will provide the services to children and needy adults who qualify under Medicaid. Also, they argue that the parents do not have to get off work to take their children to a dentist's office since they now are screened and subsequently, with written consent from the parent or guardian, provided preventive dental care while the children are at school. Further, they state this is a better use of the hygienists and is more fiscally responsible for this state.

According to the Hygienists Ass'n, there are thousands of children in this state who have never received dental care and many have never owned a toothbrush until given to them at school. Only 38.1% of Medicaid eligible children in South Carolina have received cleanings and fluoride treatments and only 5.8% of the Medicaid eligible children in South Carolina have received sealants.

The dental hygienists argued that the application of dental sealants cannot only prevent the emergence of tooth decay but also can stop tooth decay in its earliest stage. Sealants stop the development of cavities by shutting off two essential decaying elements-oxygen and bacteria from food. They provided results of several studies in support of such for this judge to review.

Further, they state that there are several types of exams. However, when a patient comes into the office of a dentist to have his/her teeth cleaned, usually the dental hygienist cleans the teeth and the dentist then comes in and conducts an exam.

CONCLUSIONS

It is the intent herein to determine if the regulation proposed by the Board of Dentistry is a reasonable exercise of the Board's authority. Interpretive rules are "entitled to great respect by the courts but are not binding on them." Faile v. South Carolina Employment Security Commission, 267 S.C. 536, 230 S.E. 219 (1976). An interpretative rule is a rule which is promulgated by an administrative agency, here the Board of Dentistry, to interpret, clarify, or explain the statutes or regulations under which the agency operates. The issues to be addressed are:

• Is the regulation herein related to the purpose of the enabling legislation passed in 2000?
• Does the term "under general supervision" require a pre-exam by a dentist before a dental hygienist may provide preventive dental care in the form of applying sealants or prophylaxis to either students, or person in hospitals, nursing homes, long term care facilities, rural and community clinics, health facilities operated by federal, state, county, or local governments, hospices, education institutions accredited by the Commission on Dental Accreditation that give instruction in dental hygiene and in bonafide charitable institutions?

There are roughly 330,000 Medicaid eligible children who require dental education and professional care in this state. Thus, there was a strong effort by the legislature during the 2000 session to increase the access to oral preventive health care to low-income children and needy adults. The two state legislators who introduced this legislation were the late Terry Haskins from Greenville and the Hon. Gilda Cobb-Hunter from Orangeburg. I believe that the intent of both of these legislators in seeking the changes to § 40-15-80 was to provide for quicker and more accessible dental care to be given to these low-income children and adults.

In deleting the statutory provision which required an examination of the patients by a dentist not more than forty-five (45) days before the preventive services could be provided is strong evidence that they no longer were going to require such. Otherwise, they would have left that provision in the statute. The legislature understood the needs of the many underprivileged children and adults in this state and their inability to have these dental concerns met, especially those who live in rural areas.

It is the suggestion of the undersigned that the Board propose an amendment to the regulation which would delete that provision. However, some guidelines should be built in the regulation which would require the dental hygienists to be under the general supervision of a dentist, whether they work for a private dentist or for a corporation that provides dental services across the state through mobile van and equipment. The driving component should be to use the funds which this state has wisely allocated to provide preventive dental care to all the Medicaid children and adults in this state. There are still thousands in this state who have not received any dental care and the legislature in 2000, by amending this statutory provision, intended to aid them with the dollars available.

Private dentists have not made much progress in instituting programs in the counties to provide the dental screenings in the public schools. Such is not reimbursed and it is not a service many are willing to provide. Further, at least one-third of the dentists in this state do not accept Medicaid patients. The letters of the Hon. James H. Harrison, Chairman of the Judiciary Committee of the South Carolina House of Representatives, dated October 15, 2001 and of the Hon. Gilda Cobb-Hunter, member of the South Carolina House of Representatives and co-author of the bill, dated October 17, 2001, further support the conclusion reached herein that the legislature did not intend for the dentists to preexamine prior to these services being provided.

I conclude that the proposed regulation, as written, is unreasonable to the extent that it reinstates a requirement the legislature purposely eliminated when enacting 2000 S.C. Acts 298, effective May 26, 2000.

RECOMMENDATIONS

Based upon the above Findings and Conclusions, I recommend that the proposed regulation should be modified by the Department prior to submission to the General Assembly as follows:

• I recommend the Board delete from 39-18(A) the following language:

In order for a licensed dentist to authorize a procedure to be performed by a dental hygienist under general supervision, the supervising dentist must have clinically examined the patient and actually determined the need for any specific treatment. Before treatment may be performed by a dental hygienist, the supervising dentist must provide a written work order for the procedure(s) to be performed by the dental hygienist. A clinical examination must be conducted by the supervising dentist for each patient not more than forty-five (45) days prior to the date the dental hygienist is to perform the procedure for the patient.

I also recommend the Board delete the entire provision contained in 39-18(B).

• I recommend the Board delete from 39-18(D) the following language: "General supervision does not preclude the use of direct supervision when in the professional judgment of the dentist such supervision is necessary to meet the individual needs of the patient."

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

February 11, 2002

Columbia, South Carolina

1. They are the Carol Drum project in Spartanburg County and the Pre-School Health Appraisal project. The Pre-School Health Appraisal project was an ongoing project for 12 years wherein dental hygienists employed by DHEC screened the dental needs of kindergarten children in low income areas who received free or reduced lunch. The Carol Drum project consisted of dental screenings conducted by DHEC hygienists with an assistant in the schools of all the seven school districts in Spartanburg County.

2. See letter dated September 26, 2001, from William B. Prine, Director of DHHS, to Rion Alvey, Administrator of the State Board of Dentistry.

3. Under Medicaid, for every state dollar allotted by the legislature for this program, DHSS is reimbursed by the federal government three dollars.

4. The six programs are located at the following technical schools: Midlands Technical College, Greenville Technical College, Trident R Technical College, Horry-Georgetown Technical College, York Technical College and Florence-Darlington Technical College.

5. All dental hygiene programs in South Carolina are accredited by the Commission on Dental Accreditation, which is a part of the American Dental Association. They set the professional standards both for dental schools as well as for the dental hygiene programs. It is recognized by the U.S. Department of Education to do these accreditations.

6. Much of this information about the education, duties and responsibilities of a dental hygienist was provided to the court through testimony of Ms. Barbara Andersen, a dental hygienist with a Master's Degree in Dental Hygiene Education. She has taught dental hygiene since 1975 and was a commissioner for th American Dental Association's Commission on Dental Accreditation from 1993-1999.

7. Recognition is simply observing that the disease is present; diagnosis is actually making and planning for further treatment. It's making a decision about the treatment that will follow. Tr. p. 115.

8. For a more in depth analysis of the requirements of a dental hygienist, see "Candidates's Guide to the Dental Hygiene Clinical Board Examination," as developed by the South Carolina State Board of Dentistry as revised in February 1991. This document serves as a guide to dental hygienists for preparation for the dental hygiene clinical board examination.