Title of Regulation: 18VAC60-25. Regulations Governing the Practice of Dental Hygiene (amending 18VAC60-25-40).

Statutory Authority: §§ 54.1-2400 and 54.1-2722 of the Code of Virginia.

Public Hearing Information:

October 9, 2020 - 1:15 p.m. - Department of Health Professions, Perimeter Center, 9960 Mayland Drive, 2nd Floor, Boardroom 3, Henrico, VA 23233

Public Comment Deadline: November 13, 2020.

Agency Contact: Sandra Reen, Executive Director, Board of Dentistry, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4437, FAX (804) 527-4428, or email sandra.reen@dhp.virginia.gov.

Basis: Regulations are promulgated under the general authority of § 54.1-2400 of the Code of Virginia, which provides the Board of Dentistry the authority to promulgate regulations to administer the regulatory system. The specific authority for remote supervision of dental hygienists is found in § 54.1-2722 of the Code of Virginia, which was amended effective July 1, 2019.

Purpose: The purpose of the regulatory action is adoption of the protocols of the Virginia Department of Health (VDH) and the Virginia Department of Behavioral Health and Developmental Services (DBHDS) for remote supervision of dental hygienists employed by those agencies. Greater utilization of dental hygienists will allow dental services to be provided to underserved populations and will improve the health and welfare of those citizens.

Substance: The amended regulation adopts the protocol for dental hygienists employed by DBHDS practicing under remote supervision of a dentist, as prescribed by Chapter 86 of the 2019 Acts of Assembly.

Amendments also correct a Code of Virginia citation and update the protocol for remote supervision of dental hygienists employed by VDH.

Issues: The primary advantage to the public is the inclusion of dental hygienists employed by DBHDS working under the protocol for remote supervision, which will increase access to dental care; there are no disadvantages.

There are no advantages or disadvantages to the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Dentistry (Board) proposes to amend 18VAC60-25 Regulations Governing the Practice of Dental Hygiene in order to authorize the remote supervision of dental hygienists employed by the Department of Health (VDH) and by the Department of Behavioral Health and Developmental Services (DBHDS) by dentists employed by VDH and DBHDS, respectively. The proposed amendment would make permanent the existing emergency text and incorporate by reference two documents that lay out the protocols for dental hygienists to practice under remote supervision by dentists for VDH and DBHDS respectively.

Background. Section 54.1-2722 of the Code of Virginia (Code) allows dental hygienists employed by VDH to practice remotely under the supervision of a dentist also employed by VDH.¹ Accordingly, 18VAC60-25-40 Scope of Practice allows licensed dental hygienists to perform services that are "educational, diagnostic, therapeutic, or preventive under the direction and indirect, or general supervision of a licensed dentist."² 18VAC60-25-40 also specifies the tasks that are not to be delegated to dental hygienists, or can only be delegated under specific conditions, and incorporates by reference a protocol dated September, 2012 for dental hygienists to practice in an expanded capacity under remote supervision by VDH dentists.

Chapter 86 of the 2019 Acts of Assembly expanded this to include dental hygienists and dentists employed by DBHDS.³ In particular, Chapter 86 required VDH and DBHDS to jointly develop protocols for remote supervision in consultation with the Virginia Dental Association and the Virginia Dental Hygienists' Association. This act also amended the Code to state that "such protocols shall be adopted by the Board as regulations" and required that the Board promulgate emergency regulations to implement these changes. The emergency regulation took effect on October 1, 2019, and is scheduled to expire on March 31, 2021.⁴ The emergency text brings dental hygienists and dentists employed by DBHDS under the purview of the regulation and incorporates by reference two separate protocol documents, one replacing the 2012 protocol for VDH and a new one for DBHDS.⁵

It should be noted that the Board chose to adopt the protocols by incorporating the documents by reference rather than including the protocols verbatim in the text of the 18VAC60-25-40. One the one hand, this requires readers of the regulation to find and refer to the protocol documents on the Board of Dentistry website. On the other hand, the remote supervision protocol only applies to dental hygienists employed by VDH and DBHDS, who are likely a small fraction of all licensed dental hygienists. These dental hygienists would likely be informed of the protocol documents directly by the agency that hires them, and all the other dental hygienists are unlikely to be confused by language that does not apply to them in a section of the regulation that is otherwise entirely directed at them.

Estimated Benefits and Costs. The proposed amendments would allow DBHDS to provide a range of educational and preventative dental services to the individuals they serve, including mobile dental care to individuals with developmental disabilities, at a lower cost than they would have incurred if their dental hygienists had to be directly supervised by a dentist. This would likely benefit the populations they serve in addition to decreasing costs to the agency. The proposed amendments are unlikely to increase costs.

Businesses and Other Entities Affected. Businesses would not be affected. The Board reports that it licenses 6,028 dental hygienists in Virginia. However, only the dental hygienists employed by VDH and DBHDS would be affected by the proposed amendments.

Small Businesses⁶ Affected. Small businesses would not be affected.

Localities⁷ Affected.⁸ The proposed amendments are not expected to disproportionately affect particular localities. The proposed amendments are unlikely to introduce new costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to affect total employment in the industry.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to affect the use or value of private property. Real estate development costs are unlikely to be affected.

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¹See https://law.lis.virginia.gov/vacode/54.1-2722/

²See https://law.lis.virginia.gov/admincode/title18/agency60/chapter25/section40/

³See http://lis.virginia.gov/cgi-bin/legp604.exe?191+ful+CHAP0086

⁴See https://townhall.virginia.gov/l/ViewStage.cfm?stageid=8672

⁵These documents can be found at https://www.dhp.virginia.gov/dentistry/dentistry_laws_regs.htm

⁶Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁷"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Board of Dentistry concurs with the economic impact analysis of the Department of Planning and Budget.

Summary:

The proposed amendments (i) adopt the protocols for the remote supervision of dental hygienists employed by the Department of Behavioral Health and Developmental Services (DBHDS) by dentists employed by DBHDS in accordance with Chapter 86 of the 2019 Acts of Assembly and (ii) update the protocols for remote supervision of dental hygienists employed by the Department of Health (VDH) by dentists employed by VDH. The proposed amendments would replace emergency regulations currently in effect.

Part II
Practice of Dental Hygiene

18VAC60-25-40. Scope of practice.

A. Pursuant to § 54.1-2722 of the Code, a licensed dental hygienist may perform services that are educational, diagnostic, therapeutic, or preventive under the direction and indirect or, general, or remote supervision of a licensed dentist.

B. The following duties of a dentist shall not be delegated:

1. Final diagnosis and treatment planning;

2. Performing surgical or cutting procedures on hard or soft tissue, except as may be permitted by subdivisions C 1 and D 1 of this section;

3. Prescribing or parenterally administering drugs or medicaments, except a dental hygienist who meets the requirements of 18VAC60-25-100 C may parenterally administer Schedule VI local anesthesia to patients 18 years of age or older;

4. Authorization of work orders for any appliance or prosthetic device or restoration that is to be inserted into a patient's mouth;

5. Operation of high speed rotary instruments in the mouth;

6. Administration of deep sedation or general anesthesia and moderate sedation;

7. Condensing, contouring, or adjusting any final, fixed, or removable prosthodontic appliance or restoration in the mouth with the exception of packing and carving amalgam and placing and shaping composite resins by dental assistants II with advanced training as specified in 18VAC60-30-120;

8. Final positioning and attachment of orthodontic bonds and bands; and

9. Final adjustment and fitting of crowns and bridges in preparation for final cementation.

C. The following duties shall only be delegated to dental hygienists under direction and may only be performed under indirect supervision:

1. Scaling, root planing, or gingival curettage of natural and restored teeth using hand instruments, slow-speed rotary instruments, ultrasonic devices, and nonsurgical lasers with any sedation or anesthesia administered.

2. Performing an initial examination of teeth and surrounding tissues including the charting of carious lesions, periodontal pockets, or other abnormal conditions for assisting the dentist in the diagnosis.

3. Administering nitrous oxide or local anesthesia by dental hygienists qualified in accordance with the requirements of 18VAC60-25-100.

D. The following duties shall only be delegated to dental hygienists and may be performed under indirect supervision or may be delegated by written order in accordance with § 54.1-2722 D of the Code to be performed under general supervision:

1. Scaling, root planning, or gingival curettage of natural and restored teeth using hand instruments, slow-speed rotary instruments, ultrasonic devices, and nonsurgical lasers with or without topical oral anesthetics.

2. Polishing of natural and restored teeth using air polishers.

3. Performing a clinical examination of teeth and surrounding tissues including the charting of carious lesions, periodontal pockets, or other abnormal conditions for further evaluation and diagnosis by the dentist.

4. Subgingival irrigation or subgingival and gingival application of topical Schedule VI medicinal agents pursuant to § 54.1-3408 J of the Code.

5. Duties appropriate to the education and experience of the dental hygienist and the practice of the supervising dentist, with the exception of those listed as nondelegable in subsection B of this section and those restricted to indirect supervision in subsection C of this section.

E. The following duties may only be delegated under the direction and direct supervision of a dentist to a dental assistant II:

1. Performing pulp capping procedures;

2. Packing and carving of amalgam restorations;

3. Placing and shaping composite resin restorations with a slow speed handpiece;

4. Taking final impressions;

5. Use of a non-epinephrine retraction cord; and

6. Final cementation of crowns and bridges after adjustment and fitting by the dentist.

F. A dental hygienist employed by the Virginia Department of Health may provide educational and preventative dental care under remote supervision, as defined in § 54.1-2722 D E of the Code, of a dentist employed by the Virginia Department of Health and in accordance with the protocol Protocol adopted by the Commissioner Virginia Department of Health (VDH) for Dental Hygienists to Practice in an Expanded Capacity under Remote Supervision by Public Health Dentists, September 2012 May 2019, which is hereby incorporated by reference.

G. A dental hygienist employed by the Virginia Department of Behavioral Health and Developmental Services (DBHDS) may provide educational and preventative dental care under remote supervision, as defined in § 54.1-2722 E of the Code of Virginia, of a dentist employed by DBHDS and in accordance with the Protocol for Virginia Department of Behavioral Health and Developmental Services (DBHDS) Dental Hygienists to Practice in an Expanded Capacity under Remote Supervision by DBHDS Dentists, May 2019, which is hereby incorporated by reference.

DOCUMENTS INCORPORATED BY REFERENCE (18VAC60-25)

Protocol adopted by Virginia Department of Health for Dental Hygienists to Practice in an Expanded Capacity under Remote Supervision by Public Health Dentists, September 2012

Protocol adopted by Virginia Department of Health for Dental Hygienists to Practice in an Expanded Capacity under Remote Supervision by Public Health Dentists, Virginia Department of Health (rev. 5/2019)

Protocol for Virginia Department of Behavioral Health and Developmental Services (DBHDS) Dental Hygienists to Practice in an Expanded Capacity under Remote Supervision by DBHDS Dentists, Virginia Department of Behavioral Health and Developmental Services (rev. 5/2019)