Scope of Practice: The Most Misunderstood Concept in Dentistry

140923_LegalLedger_Feature
by Ken Berley DDS, JD, DASBA
It is unusual for a week to go by where I do not read an article or position paper from some organization or association that purports to outline the “Scope of Practice” for some discipline or field of dentistry. As I review these position papers, it is not difficult to identify the agenda of the organization that is proffering the alleged scope of practice proclamation. We ALL have certain agendas! I am not saying that it is illegal or even wrong to have an agenda. I do however, feel that it is wrong for any organization to imply that it is illegal for a dentist to provide treatment contrary to their self-serving “Scope of Practice – Position Paper”.
A dentist’s scope of practice is divided into three separate and identifiable parts:

  1. Dental Practice Act/Board of Dental Examiners
    1.  “The Black Letter Law”
    2.  Any rulings of the Board of Dental Examiners
  2. Education and training
  3. Employer/Insurance
    1.  Limitations placed by the Dentist’s place of employment or insurance coverage.
    2. Limitations placed by the Dentist’s place of employment or insurance coverage.

Dental Practice Act/Board of Dental Examiners:
Within the definition of the “practice of dentistry” in your state’s dental practice act is the description of your scope of practice. This is the terminology used by your State Board of Dental Examiners to define the procedures, actions, and processes that are permitted by licensed dentists in your state. Most states have adopted the ADA model definition or some variation thereof.
It reads as follows:
ADA’s Definition of Dentistry:  
The evaluation, diagnosis, prevention and/or treatment (nonsurgical, surgical or related procedures) of diseases, disorders and/or conditions of the oral cavity, maxillofacial area and/or the adjacent and associated structures and their impact on the human body; provided by a dentist, within the scope of his/her education, training and experience, in accordance with the ethics of the profession and applicable law.
140923_LegalLedger_01Adopted: ADA Resolution 1997
Obviously, this definition is only a model to be referenced by state boards. The ADA’s definition has received favorable review and acceptance by many of them. As you can see, the definition is very broad in scope. Each state’s dental practice act and the included definition of the practice of dentistry, is much like our U.S. Constitution in that it is an evolving document which changes and grows as the practice of dentistry progresses. The definition is written so that it purposefully overlaps other professions. For example, dentists and otolaryngologists have a great amount in common. All dental practice acts are searchable online making access easy for all practitioners.
I personally practice in Northwest Arkansas and the Arkansas Legislature has adopted the ADA Model with some modifications.  This is my Scope of Practice:
17-82-102. DEFINITIONS.
(1)(A) “Practicing dentistry” means:
(i) The evaluation, diagnosis, prevention and treatment by nonsurgical, surgical or related procedures of diseases, disorders and conditions of the oral cavity, maxillofacial area and the adjacent and associated structures and their impact on the human body, but not for the purpose of treating diseases, disorders and conditions unrelated to the oral cavity, maxillofacial area and the adjacent and associated structures.
Notice that my scope of practice is for any type of treatment, of any type of condition, of the “oral cavity, maxillofacial area and the adjacent and associated structures and their impact on the human body…”
So, any condition that has any oral-facial component is well within the definition of the practice of Dentistry for the State of Arkansas. The State Board of Dental Examiners can then limit these broad privileges if the occasion arises. For example, in my 30 plus years of practicing dentistry, the Arkansas regulations and requirements for providing sedation have changed several times. While sedation broadly falls within the scope of practice for a dentist in Arkansas, the Arkansas Board of Dental Examiners have promulgated regulations defining the educational requirements and office/emergency equipment necessary to provide this service.
140923_LegalLedger_02Education and Training
As a general statement, one’s education and training is far more important in determining a dentist’s Scope of Practice than your state’s dental practice act, because of the general nature of the definition. In most states, oral surgeons and general dentists both operate under the same definition of the practice of dentistry even though the scope of their practices are vastly different.
So what is the difference? Levels of education! One’s training is the primary determinate in establishing one’s Scope of Practice. Using that premise, it is easy to see that two general dentists practicing next door to each other can have different scopes.  Personally, I love implant dentistry. In our office we routinely perform sinus lifts, ridge augmentations, PRP for grafting and wound healing, and placement of implants.  I placed my first blade implant in 1984. So the question remains, what is my scope of practice compared to the dentist next door? The difference is the 5000 hours of continuing education which qualifies me to practice at the level that I have chosen.
140923_LegalLedger_03Therefore, general dentists in the same state can have different Scopes of Practice. Additionally, each dentist can choose to change his or her scope of practice by becoming competent in a new area of study.  From a medical/legal stand-point the issue is whether adequate levels of training have been achieved to ensure competence. Each practitioner should be prepared to document his training and experience to the Board of Dental Examiners or a jury if the need arises. In each new area of study, practitioners should document courses taken and the conventions attended keeping a list of the dates of each course and the names of lecturers. Additionally, one should become a member of the prominent professional associations in that area and routinely read the appropriate journals.
Employer/Insurance
As we all know, not all dentists work for themselves. Many of us are employed in various capacities where our employer determines the services and procedures that we perform. In that situation, our employer may limit our scope of practice and establish guidelines for that organization. For example, it is likely within the scope of practice for all dentists to remove impacted wisdom teeth. However, not every office is prepared to offer this service. Limitations placed by the dentist’s place of employment or available insurance coverage, are a real restriction to one’s scope. I would not recommend that any dentist add a new procedure to his practice without consulting his liability/malpractice carrier to ensure coverage.
How do you determine whether a new procedure or service is within your scope of practice?

  1.  Review your state’s definition of dentistry.
    1. Within that definition is your “Scope of Practice”
  2.  Review any rulings from your Board of Dental Examiners for restrictions relative to the therapy/procedure in question.
    1.  If any adverse rulings have been handed down, was the limitation based on education levels or was there a prohibition of that procedure?
    2.  If the procedure falls broadly within the definition of dentistry and no determination or ruling has been made to the contrary by your Board of Examiners, there is a legal presumption that the
    3. technique/treatment/procedure is within your scope of practice.
  3.  Education:
    1.  Join the major professional organizations in your new area of study.  “Look Like You Are One of the Group”
    2.  Read the professional journals regularly and keep notes and abstracts which you can reference for review.
    3.  Attend as many continuing education courses from diverse sources as possible. Keep copies of the informational flyer for the course for documentation.
  4.  Employer/Insurance
    1.  Are there any restrictions that have been placed on you by your employer that will limit your ability to provide this treatment?
    2.  Will your insurance company provide adequate coverage for this procedure?  If the answer is no, can you pay an additional premium to get the coverage?

Do State Medical Practice Acts limit my “Scope of Practice”?
This is a common misconception among dentists. Some dentists think they are prohibited from treating any condition that is treated by an MD. This could not be farther from the truth. However, the practice of dentistry and the practice of medicine are governed by separate boards and are regulated separately. It is the intention of state legislatures that the disciplines work together to provide care for our patients. Each state specifically exempts the practice of dentistry from any prohibitions expounded within the Medical Practice Acts. After defining the Practice of Medicine, the Arkansas Medical Practice Act provides the following exemptions:
17-95-203. Exemptions. Nothing herein shall be construed to prohibit or to require a license with respect to any of the following acts:
(3) The practice of the following professions as defined by the laws of this state, which Sub-Chapters 2-4 of this chapter are not intended to limit, restrict, enlarge, or alter the privileges and practice of, as provided by the laws of this state:
(A) Dentistry;
(B) Podiatry;
(C) Optometry;
(D) Chiropractic;
(E) Cosmetology.
Don’t get me wrong, each dentist must know his limitations. Every day we assess our patient’s needs and make a decision as to whether we are the appropriate practitioner to provide a particular service or treatment. We are all aware how important it is to know when to refer for traditional dental therapy; sleep medicine is no different. Do what you are qualified and comfortable doing.
Personally, I refer all my patients to a sleep physician if I suspect OSA. Sadly, not all patients accept the referral. Frequently, patients that I have screened for TMD/OSA refuse the referral stating “I am not going to spend the night with all those wires hooked to my brain.” I may have a home sleep test that indicates that the patient has OSA, the patient may have had a full physical by his primary care physician within the last year showing no co-morbid diseases, yet a thorough reading of all documents, position papers and practice parameters of the AADSM/AASM seems to indicate that I cannot treat this patient with MILD OSA and be compliant with AADSM Practice Parameters. So, what do we do with these patients? Do we send a letter to their PCP and try to get a prescription? If so, what do we do about the requirement for a face to face evaluation by a physician? It doesn’t matter that the patient wants me to treat him. AADSM practice parameters state that a patient with OSA must be evaluated and monitored by a physician who is very knowledgeable in sleep. I am well aware that many dentists try to get around the face-to-face physician exam and diagnosis by using an outside HST diagnosis service, however, in my opinion, they could be in breach of the standard of care as they have failed to comply with the AADSM/AASM requirement of physician evaluation, monitoring, and final PSG. These practitioners could be vulnerable to lawsuits. Without a doubt, the treatment of OSA is within my scope of practice and legally I do not need the permission of a Sleep Physician to practice dentistry as defined by the Arkansas Dental Practice Act. However, until our standard of care is better defined we are required to work around the various position papers that have been published. The AADSM Practice Parameters would likely be introduced into evidence as your standard of care. Be aware, this opinion has not been tested in court and therefore is subject to rejection.  However, in the next edition of Dental Sleep Practice, I will explore a method that I feel is legally defensible for the utilization of non-sleep physicians for patient intake and monitoring.
In Conclusion: Every dentist is ultimately in control of his or her Scope of Practice. Very few limitations have been placed in our way. In my opinion this has been purposefully done to encourage each practitioner to expand his or her knowledge and abilities to the fullest.  We should not become stagnant! It’s up to you, and your state’s Board of Dental Examiners, to dictate your “Scope of Practice”. In my career, I have repeatedly been told that I cannot perform certain procedures because I am “Just a Dentist”. These encounters have provided an incentive to expand my level of knowledge.

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