For Immediate Release
Date: Aug 6th, 2010
Contact: Dr. John Creech
Kentucky's Dental Practice Act: The Passing of an Old Friend
On July 15, 2010, the historic old Kentucky Dental Practice Act was retired after 142 years of service and was replaced with a totally new practice act and a set of emergency regulations making the practice of dentistry a new ball game in the state of Kentucky. It would only be appropriate for us to spend a little time reviewing the life and history of our old retired friend, a friend that served us so well for many years. Then we should take a look at the rowdy new upstart that has been put in its place, how it got there and how these changes will affect us all.
Kentucky’s Original Dental Practice Act
Created in 1868 and sponsored by the Kentucky Dental Association, one of the first in the country, the Kentucky Dental Practice Act, more recently known as KRS 313 served the dental profession very well for all 142 of its years. When combined with the dental regulations known recently as KAR Chapter 8, it was probably one of the more progressive Practice Acts in the country. Its secret was its simplicity. Written much like the constitution in very broad terms, it gave Dentists the freedom to delegate to staff members any task that was not specifically practicing dentistry and later hygiene. Kentucky, helped by this liberal Act, led the way in developing expanded functions for dental assistants.
As time passed, our old friend developed a few new wrinkles, something one expects with the passage of time. The Kentucky Board of Dentistry (KBD) tightened regulation with the establishment of a delegated duties list. But the KBD also allowed greater latitude through changes in the regulations. Administration of local anesthesia by hygienists was permitted. General supervision of hygienists was allowed and coronal polishing by dental assistants became acceptable, but was defined as non-therapeutic.
The New Dental Statute and its Accompanying Emergency Regulations (E-Regs)
During the summer of 2009, Mr. Brian Bishop, the relatively new Executive Director (ED) of the KBD, in consultation with the KBD, decided that the current Dental Practice Act was difficult to read and to interpret because related facts were scattered throughout. This was the reason the KDA leadership was given as justification for rewriting our Practice Act. Dr. Bill Boggess, as President of the KBD, established a Legislative Committee of the Kentucky Board of Dentistry (LCKBD). Invitations were extended to both dental schools, the KDA, the Kentucky Dental Hygiene Association and the State Public Health Department Dental Director to join the process and it began. The KDA’s initial position was that writing a new Dental Practice Act was unnecessary and potentially detrimental to the dentists of Kentucky. The KBD representatives did not agree with our assessment and went forward with the process.
The Overview of the Process
After the LCKBD was established, a totally new statute was written in sections by Brian Bishop after consultation with parties unknown to me, and after negotiation by the various interests represented on the committee, each section was rewritten a number of times until a final draft of the proposed new statute was finally obtained. That proposed statute was introduced in the House, and later withdrawn. It was then attached as an amendment to a House Bill being considered by the Senate, which was passed by the Senate, and was returned to the House, which concurred. The bill, HB 179 became law on July 15, 2010, as did the accompanying emergency regulations (E-Regs). Those E-Regs were written by the same committee using the same process as the statute with the additional twist of Town Hall Meetings that allowed greater input from all. All O-Regs should be filed in time to allow them to replace the expiring E-Regs, no later than 180 days after July 15, 2010.
Sedation and Anesthesia Regulations
Because Sedation and Anesthesia Regulations are so technical, and no one on the LCKBD had adequate expertise, I established a KDA taskforce made up of 8 very competent practitioners from multiple groups who use or teach sedation and charged them with the responsibility of making recommendations to the KBD concerning these regulations. The existing Sedation and Anesthesia Regulations attached to the old statute were retained as the new E-Regs while this group works. The new Sedation and Anesthesia Regulations once completed by the taskforce, and accepted or modified by the KBD, will be filed as new E-Regs after a period to allow input and will eventually be submitted as the ordinary regulations (O-Regs).
Kentucky Board of Dentistry – Dr. Bill Boggess, Dr. Susan King, Dr. Hank Sleet (largely did not attend) and Mr. Brian Bishop (KBD Executive Director) as well as Board support staff
KDA - Dr. Mike Johnson, Dr. Kevin Wall (only at the end of the writing of the E-Regs) and myself all assisted by our ED, Mr. Mike Porter
Kentucky Health Department- Dr. Julie McKee
U of K School of Dentistry - Dr. Fonda Robinson
U of L School of Dentistry – Dr. Melanie Peterson
Kentucky Dental Hygiene Association (KyDHA) - Donna Ruley RDH, Donna Fogle RDH (only intermittently present) and Mr. Greg Brotzge (KyDHA lobbyist)
The In-Depth Description of the Process Described Briefly above in the Overview
Invitation and Acceptance
Invitations were extended to the KDA to join a committee that would be charged with the responsibility of rewriting the Dental Practice Act and accompanying Regulations. At an initial meeting, the KDA representatives expressed an opinion that the old Practice Act was fine and at the worst should be tweaked, not totally thrown out. The Kentucky Board of Dentistry Representatives stated that they would be proceeding with or without our input and that the intention was not to change the statute as much as it was to reorganize it into a more logical form. The KDA Executive Board discussed whether or not to participate in the process and after much discussion, voted to send two representatives, Dr. Mike Johnson and myself. The rationale was that it made more sense to participate and get the best statute we could instead of totally sitting out the process and risking a much worse result.
The Statute Writing Process
In looking at what governs the practice of dentistry in Kentucky, the statute is the skeleton; the regulations flesh it out, but can only be added to the underlying skeleton. Passing a skeleton before seeing its flesh does not allow one to see all consequences before being committed to the wording of a statute. The KDA representatives to the KDBLC requested early on that the statute not be submitted until all accompanying regulations were written and all the unacceptable language was out of the statute. This would have probably delayed the passage of the statute for a year. The KBD representatives huddled and came back to say that they would not delay introducing the statute.
The initial draft language of the proposed statute and that of all proposed E-Regs was written by Brian Bishop after input from unknown members of the KBD. These drafts were given to all members of the LCKBD. All members of the committee then offered criticism and input and the initial drafts were modified repeatedly depending on the predominating opinion of all committee members present. In the area of registering dental assistants and creating another class called dental auxiliaries, the Board members overruled the objections of the LCKBD dentist members. The KDA’s representatives to the LCKBD received guidance from the KDA Executive Board in a special Executive Board meeting after all Executive Board members had reviewed the proposed draft. Despite the KDA’s preference of delaying the statute until all E-Regs were written, the LCKBD voted to send the finalized statute to the House. The proposed new dental statute was submitted to the House, sponsored by Representative Keith Hall and assigned to the Health and Welfare Committee, chaired by Representative Burch. When Rep. Burch started tampering with the bill by trying to insert Denturity Language into it, the KDA had the bill pulled by its sponsor, Rep. Hall and for all practical purposes it was gone.
At this point, Mr. Greg Brotzge, the hygiene lobbyist came up with a new strategy. That strategy was where the original “clean version” of the new dental statute was attached as an amendment to a bill already passed by the House and sent to the Senate. The sponsor of that amendment was Senator Julie Dentin. The process of attaching the “clean version” of the new statute as an amendment to an existing bill, House Bill 179 (HB179) relied on the Legislative Research Commission. This commission took the amendment and adjusted the language in it so that it conformed to legislative norms. We think that it was during that review that the noncodified language that authorizes a denturity study to be done by Rep. Burch’s committee was inserted at the end of our “clean version” buried in the middle of HB179. The KDA became aware of that language when it was given a final draft of the amended bill the day before the bill passed. The evening before it passed, Mike Porter left Brian Bishop a message giving him instructions not to go forward with the bill until that language was removed. Despite this fact, the next morning it passed the Senate with that language in it, and was returned to the House as an amended bill. The House concurred, passing the bill. That outcome was disappointing, but anytime you open up the Dental Practice Act, you are taking risks. The KDA representatives to the Legislative Committee have yet to hear an adequate explanation of who wrote that language or how the noncodified language ended up being inserted into HB179. We may never know.
The Regulation Writing Process
Once the new statute passed, new regulations had to be written to accompany the statute. The first set of regulations which took effect when the statute was signed by the governor on July 15, 2010 are known as the E-Regs. Those E-Regs were written by the same committee with the addition of Dr. Kevin Wall who was added as a KDA representative by the KDA Executive Board. The same process was used as that used in writing the statute, with the additional twist of Town Hall Meetings toward the end that allowed greater input from all.
During the regulation writing process, the KDA with a great deal of work by staff member, Todd Edwards, had developed the capability to mass E-mail information to our members. I found that capability very helpful in getting out accurate information. This ability helped the KDA to marshal forces that really helped to convey to the KBD, the strong feelings of our membership on a number of issues. Thank you to all who turned out for these meetings and voiced their opinions. Email communication also allowed the KDA to identify specific problems our members were having in the KBD CE audit and to correct many of those problems with new regulations that prevent their recurrence.
The Sedation and Anesthesia (S&A) Regulations
One section of the E-Regs could not be adequately written by the LCKBD. Because Sedation and Anesthesia (S&A) Regulations are so technical, and no one on the LCKBD had adequate expertise, I decided to establish a KDA taskforce made up of eight individuals. All use or teach sedation or anesthesia. Two are oral surgeons (Drs. Chris Babcock and Richard Pape), two are periodontists (Drs. Jill Harris and Elisa Pape Millett), two are pediatric dentists (Drs. Charlotte Haney and Rodney Jackson) and two are general dentists (Drs. Ted Raybould and B.J. Moorhead). Dr. Moorhead, the KDA Executive Board’s chairman, chairs the taskforce. All these individuals have worked tirelessly and continue to do so to get the regulations right in a very open, transparent process. We owe them a debt of gratitude for writing these difficult Regs. They are trying to balance the concerns of patient safety with the concern of the availability of affordable sedation options for all our patients. I have charged them with the responsibility of making recommendations to the LCKBD and the KBD concerning these regulations.
To allow them adequate time to correctly write these important Regs, they have recommended that for now, the old (S&A) Regs continue as the E-Regs for the new statute. Once the taskforce completes their job, and after their version is accepted and or modified by the KBD with a period to allow input, the new (S&A) Regs will be signed by the Governor and filed with the Administrative Regulation Review Subcommittee (ARRS) as the new Sedation and Anesthesia E-Regs. These will eventually be submitted as the ordinary regulations (O-Regs). All O-Regs should be filed in time to allow them to replace the E-Regs, which expire 180 days after they have been put in place.
The Final Stages
The KBD has scheduled a time to receive formal testimony from all interested parties on August 31, 2010 at the KBD office. That will be your chance to let the board know how you feel about the New Dental Practice Act and what changes you would like to see. I encourage you to participate. Tell them what they got right and tell them what they got wrong.
How the New Dental Practice Act will affect Your Practice
The future Sedation and Anesthesia (S&A) Regs are still being hashed out by the KDA taskforce. Until their work is completed and the LCKBD and the KBD has had a chance to act on that work, the old (S&A) Regs will remain in place. For now you will see no changes to the way you perform this aspect of your practice. Once (S&A) E-Regs are signed by the Governor, there may or may not be changes in these Regs that will impact your practice depending on how they are written; it is too early to say.
The biggest difference in the other areas that you will notice will be in your staff, and those changes will not take effect until July 2011. The KBD was in control of the statute writing process and the regulations that followed. Their representatives on the LCKBD were adamant that dental assistants be registered, even with the insistence by the KDA representatives that registration of dental assistants was not in any way desired by the dentists in Kentucky. By the time the Town Hall testimony was received, it was too late to prevent the requirement that dental assistants must register. The statute had already passed and as of July 15, 2010 would become law. The statute requires registration of dental assistants and no regulations can be written to circumvent the statute.
Many of you wanted registration to only be required for dental assistants who do coronal polishing. Because of the wording of the statute, if as requested, registration was limited to assistants who did coronal polishing; all other staff would be considered dental auxiliaries. They, therefore, would be unable to take impressions that would be used in any appliances including bleaching trays, bite guards, orthodontic appliances, flippers or any temporary partials, space maintainers, etc., because taking of impressions by dental auxiliaries for these is specifically forbidden in statute. You can see the problem. Registered dental assistants are not prohibited from taking these impressions in statute. It is better to register those taking impressions for these appliances than it is to allow no one other that a dentist to take them.
Dental assistants will be required to register by July 15, 2011. Until then, dental assistants may remain unregistered while doing the duties of a registered dental assistant because they would be considered to be “in training”. There will be no fee for dental assistant registration. Registration will be required every two years at the same time as hygienist registrations. The registration form should be posted in the office.
The New Dental Statute defines two groups that make up the staff members we used to refer to as dental assistants, registered dental assistants and dental auxiliaries.
Registered Dental Assistants
Registered dental assistants are individuals in your practice who you wish to do coronal polishing or who you wish to do any of the registered dental assistant duties on the KBD's delegated duties list. These individuals, after one year of training in a dentist’s office (or graduation from a CODA accredited dental assisting school)
- Do coronal polishing after taking the appropriate course
- Take x-rays after taking the appropriate course
- Do tasks specifically listed on a delegated duties list made up by the KBD, including taking impressions that will be used directly in the fabrication of dental appliances (including bleaching trays, bite guards orthodontic appliances, pediatric appliances such as space maintainers, prosthodontic appliances such as temporary partials, etc)
- Do anything that a dental auxiliary may do if competently trained in the dentist’s judgment
- Do assisting tasks other than those listed on the delegated duties list as long as they do not require the professional judgment of a dentist or hygienist
- Take final impressions
- Do tasks that require the professional judgment of a dentist or dental hygienist
- Do procedures that would be considered practicing dentistry
- Do procedures that would be considered to be those of a dental hygienist
Registration of these staff members will be required no later than July 15, 2011.
Until then, they will be allowed to do duties of a registered dental assistant even though they are not registered.
Dental auxiliaries are unregistered. They fall into two categories. They may be:
- registered dental assistants “in training”
Registered dental assistants “in training” may do all the duties of a registered dental assistant while they are “in training” even though they are unregistered. There is nothing in statute or Reg limiting the amount of time that a registered dental assistant “in training” may be trained other than having a minimum of one year of experience before they can be registered. However, if the board sees abuse of overextending the training period to avoid registration, they have stated they will close that loophole.
- dental auxiliaries who are not registered dental assistants “in training”
Dental Auxiliaries who are not registered dental assistants “in training”
- Take x-rays after taking the appropriate course
- Do assisting tasks other than those listed on the delegated duties list as long as they do not require the professional judgment of a dentist or hygienist
- May do those duties listed on the delegated duties list that are indicated as OK for dental auxiliaries to do
- Take any impressions that will be used directly in the fabrication of any dental appliance (including bleaching trays, orthodontic appliances, pediatric appliances such as space maintainers, prosthodontic appliances such as temporary partials, etc)
- Do any tasks listed on the delegated duties list that are indicated as not OK for dental auxiliaries to do
Some of the positive things that the New Dental Practice Act does that directly impacts you is it:
- Makes the Kentucky Board of Dentistry (KBD) more effective in shutting down all bleaching kiosks and non-dental businesses that are doing bleaching.
- The automatic $1,000 base fine for “legal expenses” that caught some of our members in the audit recently is eliminated for future infractions.
- The CE requirement for dentists is still 30 hours, but is now only one type of credit hour, not A, B & C. Accepted course topics are much more broad and inclusive. Only 10 hours have to be classroom or live interactive format. Up to 10 hours can be a combination of dental society participation hours, charitable dentistry participation, mass casualty training, or office management courses.
- Although it is preferred that CPR be maintained without lapse, a 30-day lapse will now be tolerated without penalty. The CPR does not have to be American Heart Association or American Red Cross courses. Any course that meets or exceeds those courses will now be accepted.
- Registered dental assistants will be able to legally take impressions for orthodontic appliances, something forbidden by any non-dentist under current law.
Much of the other background stuff the New Dental Practice Act does will go unnoticed. A few things that could be noticeable are that it:
- It slightly raises fees, especially for specialists but decreases fines in general.
- Expands the board to 10 members by adding a hygienist member and creates three non-voting ex officio positions, one for the University of Louisville School of Dentistry, one for the University of Kentucky School of Dentistry and one from a Hygiene program other than UK or U of L dental schools.
Actions Taken by the KDA to this Point to Mitigate the Negative Effects of the New Dental Practice Act
-We have battled and improved many aspects of the proposed statute and regulations while participating in the Legislative Committee process.
-The KDA has specifically consulted with our attorney to see if any injunctive relief or suit to fight the seemingly arbitrary and capricious changes made to dental assisting duties, classification and registration requirements required by statute would be possible. Our attorneys advised us that such an action would be fruitless.
Future Actions that Can Be Taken by the KDA to Correct the Undesirable Features of the New Dental Practice Act
The only corrective course open to us at this point is to correct the statute, which would allow us to correct the regulations. At the beginning of this process, after being assigned to the Legislative Committee, I said that anyone who thought they could totally write a new practice act and not have unintended consequences was mistaken. That statement proved itself to be true. That is the reason that the KDA wanted to totally write the Regs before submitting the proposed statute to the Legislature, to allow adjustments to be made to the statute in areas discovered during the regulatory writing process before the statute is submitted. All that is water over the dam at this point.
I would also state that it would be very helpful to try to find some common ground with the Board on these points before proceeding, for a professional organization in a pitched battle with its Board hurts both itself and the profession. I will continue with a positive dialogue with the KBD, because having the Board on our side would greatly improve our chances of altering the statute. Opening the Practice Act has its risks and these must be taken into account before a decision is made to proceed. Talk to your Executive Board Representatives about your feelings regarding trying to alter the statute in the next legislative session.
Many Thanks Are Due
I would like to thank both Dr. Mike Johnson and Dr. Kevin Wall for their contributions on the LCKBD. It meant a lot of time and hours out of their offices or away from their families and their efforts are heartily appreciated. Dr. Julie McKee, Dr. Fonda Robinson and Dr. Melanie Peterson were also very helpful in the process and their contributions are equally appreciated.
Lastly let me say that although I do not agree with many of the changes that have been made, and do not see eye-to-eye with the Board members who participated in this process on many things, I respect them and what they strive to do for our profession. Many times their job is thankless and I appreciate their hard work even if I believe they are wrong. This process has been very hard on us all. I believe our profession is best served if we all remember that we are on the same side and we all wish to do what is right for our profession and our patients. These two goals do not have to be contradictory; they are one and the same. Thanks to all our members who have hung in there with us. We work to serve you and your patients.