FTC Staff Comment Before the California Board of Dental Examiners Concerning Proposed Regulation on the Definition of Dental Patient Record

February 	22, 	1988
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Alfred 	Otero, 	D.D.S., 	President
California 	Board 	of 	Dental 	Examiners
1430 Howe 	Avenue, 	suite 	85-B
Sacramento, 	California 	95825
Re: 	Proposed 	Regulation 	Regarding 	Definition 	of 	Dental
Patient 	of 	Record
Dear 	Dr. 	Otero:
We 	are 	pleased 	to 	provide 	these 	comments 	in 	response 	to 	the
Board 	of 	Dental 	Examiners' 	request 	for 	pUblic 	views 	on 	a 	recent
proposal 	that 	would 	define 	a 	dentist's 	"patient 	of 	record" 	and
revise 	the 	requirements 	for 	supervision 	of 	dental 	auxiliaries. 1
As 	discussed 	below, 	we 	believe 	that 	the 	proposal 	may 	have 	serious
adverse 	effects 	on 	consumer welfare. 	First, 	the 	proposal 	may
restrict 	dental 	screening and 	fluoride 	programs 	that 	now benefit
as 	many 	as 	370,000 	California 	school 	children 	annually. 	Second,
the 	proposed 	regulation may 	restrict 	dentists' 	ability 	to 	use
dental 	auxiliaries, 	thereby 	decreasing 	the 	efficiency 	of 	the
dentists' 	practices. 	As 	a 	result, 	the 	cost 	of 	dental 	services
may 	increase, 	and 	consumers 	may 	be 	able 	to 	purchase 	fewer
services.
Interest 	of 	the 	Commission
Our 	interest 	in 	this 	matter 	stems 	from 	our 	involvement 	in
competition 	and 	consumer protection policy. 	For more 	than 	a
decade, 	the 	Commission 	has 	carried 	on 	a 	program 	to 	investigate
the 	effects 	on 	competition 	and 	consumers 	of 	regulation
constraining 	the 	business 	practices 	of 	state-licensed
professionals, 	including 	dentists, 	physicians, 	pharmacists, 	and
other 	health 	care 	providers. 	In 	particular, 	the 	Commission and
1 	These 	comments 	represent 	the 	views 	of 	the 	San 	Francisco
Regional 	O:fice 	and 	the 	Bureaus 	of 	Competition, 	Consumer 	Protec-
tion 	and 	Economics 	of 	the 	Federal 	Trade 	Commission, 	and 	do 	not
necessarily 	represent 	the 	views 	of 	the 	Commission 	itself 	or 	any
i~cividual member 	thereof. 	The 	Commission 	has, 	however, 	voted 	to
authorize 	their 	submission 	to 	you.

Alfred otero, 	D.D.S., 	President
California 	Board 	of 	Dental· Examiners Page 	2
4
its 	staff have 	analyzed 	restrictions 	on various 	aspects 	of 	dental
practice,2 	including 	restrictions 	on 	the 	use 	of 	dental
auxiliaries. 3 	Our 	goal 	has 	been 	to 	identify 	those 	restrictions
that 	impede 	competition, 	increase 	costs, 	and 	harm 	consumers
without 	providing 	substantial 	countervailing 	benefits.
The 	Proposed 	Regulation
Under California's 	existing 	statutory and 	regulatory 	scheme,
dental 	assistants, 	registered 	dental 	assistants, 	and 	registered
dental 	hygienists 	are 	authorized 	to 	provide 	a 	variety 	of 	services
under 	the 	supervision 	of 	a 	licensed 	dentist. 	The 	kind 	of
supervision 	required 	of 	the 	dentist 	varies 	by 	the 	type 	of 	service
and 	type 	of 	dental 	auxiliary. 	For 	example, 	registered 	dental
assistants 	and 	registered 	dental 	hygienists 	may 	perform mouth-
mirror 	inspections 	(inclUding 	charting 	lesions, 	existing
restorations 	and 	missing 	teeth) 	under 	the 	general 	supervision 	of
a 	dentist. 4 	Other duties, 	such 	as 	the 	sizing 	of 	steel 	crowns,
temporary 	crowns, 	and 	bands, 	may 	be 	performed 	by 	a 	hygienist
under 	general 	supervision, 	but 	by 	a 	registered 	dental 	assistant
only under direct 	supervision. 5 	In 	addition, 	the 	dentist 	must
check 	and 	approve, 	prior 	to 	the 	dismissal 	of 	the 	patient 	from 	the
office, 	the 	performance 	of 	any 	procedure 	that 	is 	subject 	to 	the
2 	~,~, 	Indiana 	Federation 	of 	Dentists, 	101 	F.T.C. 	57
(1983), 	aff'd, 	476 	U.S. 	447 	(1986) 	(group 	boycott 	of 	third-party
payers 	by 	dentists); 	Louisiana 	state 	Board 	of 	Dentistry, 	Dkt. 	9118
(August 	26, 	1985) 	(consent 	order) 	(advertising 	restrictions 	by
state 	board); 	Letter 	to 	New Jersey 	state 	Board 	of 	Dentistry 	(July
14, 	1987) 	(advertising 	restrictions); 	Letter 	to 	Tennessee 	Board 	of
Dentistry 	(April 	30, 	1987) 	(advertising 	restrictions); 	Letter to
Florida 	Board 	of 	Dentistry 	(April 	23, 	19B7) 	(advertising
restrictions); 	Letter 	to 	the 	California 	state Assembly 	on 	A.B. 	417
(March 	30, 	1987) 	(dental 	branching).
3 	See 	J. 	Liang 	and 	J. 	Ogur, 	Restrictions 	on 	Dental
Auxiliaries 	(1987) 	(FTC 	Bureau 	of 	Economics 	staff 	report).
16 	Cal. 	Admin. 	Code 	§§ 	1086(c) (1) 	and 	1088(b). 	"General
supervision" 	means 	that 	the 	service 	is 	provided 	pursuant 	to 	a
licensed 	dentist's 	instruction, 	but 	the 	dentist 	need 	not 	be
physically 	present 	during 	the 	performance 	of 	the 	procedure. 	16
Cal. 	Admin. 	Code 	§ 	1067(j).
5 	16 	Cal. 	Admin. 	Code 	§§ 	1086(d) (6) 	and 	10BB(c) (6) (B) (3).
"Direct 	supervision" 	means 	that 	the 	supervising 	dentist 	must 	be
phy£ically present 	in 	the 	treatment 	facility 	during 	the
performance 	of 	the 	procedure. 	16 	Cal. 	Admin. 	Code 	§ 	1067(i).

Alfred 	otero, 	D.D.S., 	President
California 	Board 	of 	Dental'Examiners Page 	3
6
direct 	supervision 	requirement. 6 	Post-treatment 	examination by
the 	dentist 	is 	not 	required 	with 	respect 	to 	procedures 	for 	which
general 	supervision 	is 	mandated. 	Regardless 	of 	whether 	a
procedure 	is 	done 	under 	general 	or direct 	supervision, 	however,
the 	ultimate 	responsibility 	for 	the 	proper 	performance 	of 	the
procedure 	rests 	with 	the 	supervising dentist.
The 	regulation 	recently 	proposed 	to 	the 	Board 	of 	Dental
Examiners 	("the 	Board") 	by 	the 	California 	Dental 	Association
would 	make 	two 	significant changes 	in 	the 	current 	regulatory
scheme. 7 	First, 	it 	would 	prohibit dental 	auxiliaries 	from 	"
performing 	procedures 	currently permitted under 	general
supervision 	until 	the 	patient 	becomes 	a 	"patient 	of 	record" 	of
the 	supervising 	dentist. 	The 	proposal 	defines 	a 	"patient 	of
record" 	as 	one 	who 	has 	been:
examined 	by 	the 	licensed 	dentist, 	has 	had 	a 	medical 	and
dental 	history 	completed 	and 	evaluated by 	the 	licensed
dentist, 	and 	has 	had 	the 	oral 	condition 	diagnosed 	and 	a
written 	treatment 	plan 	developed 	by 	the 	licensed
dentist.
Therefore, 	a 	dentist would 	have 	to 	examine 	a~y patient 	before 	an
auxiliary 	even 	screened 	the 	patient.
Second, 	the 	proposal 	would 	require 	that 	the 	dentist 	"examine
the 	patient 	within 	a 	reasonable 	period 	of 	time" 	after 	the 	patient
has 	received 	clinical 	services 	performed by 	an 	auxiliary 	under
general 	supervision. S 	"Reasonable 	period 	of 	time" 	is 	not 	defined
in 	the 	proposal; 	however, 	unless 	patients 	are 	to 	be
inconvenienced 	by 	being 	required 	to 	return 	for 	a 	second
appointment 	for 	the 	post-procedure 	examination, 	the 	dentist 	may
need 	to 	see 	the 	patient 	prior 	to 	dismissal 	from 	the 	office. 	As 	a
practical 	matter, 	this 	means 	that 	the 	dentist 	may 	need 	to 	be
physically present 	and 	available 	to 	conduct 	the 	examination. 	The
effect 	of 	the 	post-treatment 	examination 	requirement 	may 	be 	to
convert 	duties 	now permitted 	under 	general 	supervision 	into
direct 	supervision 	duties. 	This may be 	a 	substantial 	change 	in
the 	current 	regulatory 	scheme.
16 	Cal. 	Admin. 	Code 	§§ 	10SS(c), 	10S6(d), 	10SS(d).
7 	California 	Business 	and 	Professions 	Code 	§§ 	1670 	and
l680(n) 	require 	dentists 	and 	dental 	auxiliaries 	to 	comply with 	the
Board's 	regulations.
S 	The 	proposal 	does 	not 	specify what 	types 	of 	services 	are
considered 	"clinical 	services."

Alfred otero, 	D.D.S., 	President
California 	Board 	of 	Dental 	Examiners Page 	4
Proponents 	of 	the 	proposed 	regulation 	contend 	that 	good
dental 	practice 	requires 	that, 	prior 	to 	treatment, 	a 	dentist
evaluate 	the 	patient's health 	and 	dental 	history, 	diagnose 	the
patient's 	oral 	condition, 	and 	develop 	a 	written 	treatment 	plan. 9
They believe 	the 	proposed 	regulation 	is 	necessary 	because 	some
dentists 	do 	not 	do 	this. 	The 	proposal, 	however, 	applies 	only
when 	the 	patient 	is 	to 	receive 	care 	from 	a 	dental 	auxiliary 	under
general 	supervision. 	Such 	a 	standard would 	create 	certain
anomalies. 	For 	example, 	the 	proposed 	regulation 	would 	not 	appear
to 	permit 	a 	registered 	dental 	assistant 	or 	hygienist 	to 	chart
existing 	restorations 	or missing 	teeth 	or 	take 	an 	x-ray 	of 	the 	,.
patient's 	teeth 	prior to 	the 	development 	of 	a 	treatment 	plan,
even 	though 	such 	procedures 	may 	be 	necessary 	prerequisites 	to 	the
development 	of 	that 	plan.
The 	Proposed 	Regulation 	May Have 	the 	Effect 	of 	Impairing 	or
Eliminating 	Dental 	Screening 	and 	Related 	Programs 	that 	Benefit
Consumers.
The 	most 	dramatic 	effect 	of 	the 	proposed 	regulation will 	be
to 	impair 	current 	programs 	that 	provide 	basic 	dental 	services 	to
consumers who 	do 	not 	receive 	regular, 	on-going 	dental 	care. 	The
clearest 	example 	of 	this 	is 	the 	California 	S.B. 	111 	school 	dental
screening 	program. 	Every year, 	as 	many 	as 	370,000 	school
children 	are 	screened 	for 	serious 	dental 	problems 	and 	receive
regular 	fluoride 	treatments 	through 	this 	program. 	Screenings 	are
conducted 	in 	schools, 	often 	by 	registered 	dental 	hygienists 	who
inspect 	the 	children's 	teeth, 	identify 	serious 	dental 	problems
that 	require 	a 	referral 	to 	a 	dentist, 	and 	administer 	regular
fluoride 	mouth 	rinses. 	Many 	of 	the 	children 	in 	the 	program
cannot afford 	and 	do 	not 	receive 	any 	other 	professional 	dental
care.
The 	proposed 	regulation 	could hamper 	the 	S.B. 	111 	and
similar 	screening 	programs 	by 	requiring 	that, 	before 	a 	hygienist
screens 	a 	child 	or 	provides 	a 	fluoride 	rinse, 	a 	supervising
dentist 	must 	review 	the 	child's 	health 	and 	dental 	history,
diagnose 	the 	child's 	oral 	condition, 	and 	develop 	a 	written
treatment 	plan. 	In 	addition, 	the 	supervising 	dentist 	would 	have
to 	examine 	each 	child 	after 	the 	screening 	is 	performed 	and 	after
each weekly 	fluoride 	rinse 	treatment 	is 	completed. 	The 	proposed
regulation's 	pre- 	and 	post-treatment 	examination 	requirements 	are
likely 	to 	raise 	substantially 	the 	costs 	of 	school 	dental
screening 	programs. 	Indeed, 	the 	increased 	costs 	may make 	such
programs 	infeasible.
9 	See 	summaries 	of 	testimony 	on 	patient 	of 	record 	proposal
at 	hearings 	before 	the 	Committee 	on 	Dental 	Auxiliaries 	of 	the
Board 	of 	Dental 	Examiners 	in 	August 	and 	October, 	1987.

· 	, 	.
Alfred otero, 	D.D.S., 	President
California 	Board of 	Dental,Examiners Page 	5
other programs 	in which dental 	hygienists 	provide 	care will
be 	similarly 	affected. 	For 	example, 	hygienists 	participate 	in 	a
program 	in which 	they work under 	the 	general 	supervision 	of
dentists 	to 	provide 	oral 	prophylaxis 	and 	anti-caries 	sealants 	for
children 	of migrant 	workers. 	Other hygienists 	participate 	in
dental 	screenings 	at 	health 	fairs 	and 	senior citizen 	centers. 	In
all 	these 	cases, 	the 	proposed 	regulation would 	prohibit 	the
hygienist 	from 	seeing 	any patients 	until 	the 	patient had 	become
the 	patient 	of 	record 	of the 	supervising dentist, 	and 	unless 	the
supervising 	dentist 	was 	available 	to 	examine 	the 	patients 	within.
a 	reasonable 	period 	of 	time 	after 	the 	treatment 	was 	provided.
If 	the 	proposed 	regulation 	is 	adopted, 	school 	children 	and
others 	who 	receive 	dental 	screenings 	and 	care 	through 	special
programs 	will 	likely 	be 	denied 	the 	benefits 	of 	these 	programs.
This 	loss 	will 	be 	particularly 	serious 	for 	those 	consumers 	who
cannot 	afford 	other 	dental 	care.
The 	Proposed 	Regulation May 	Increase 	the 	Cost 	of 	Dental 	Care 	to
Consumers 	by 	Increasing Restrictions 	on 	the 	Use 	of 	Dental
Auxiliaries.
The 	proposed 	regulation 	may 	also 	have 	a 	detrimental 	effect
on 	consumer welfare 	by 	restricting 	dentists' 	ability 	to 	best 	use
dental 	auxiliary personnel 	to 	provide 	services 	to 	patients.
Health 	care 	professionals 	frequently 	use 	trained 	auxiliary
personnel 	to 	perform preliminary 	screenings, 	or to 	provide
treatment 	or 	other 	services 	under 	the 	professionals' 	supervision.
By 	converting 	to 	direct 	supervision 	those 	procedures 	that 	the
Board 	previously determined 	require 	only general 	supervision,10
the 	proposed 	regulation may 	increase 	the 	cost 	of 	dental 	care 	to
consumers 	without 	providing 	countervailing 	benefits. 	If 	costs
increase, 	consumers may 	purchase 	fewer 	den~al services 	and
overall 	dental 	health 	may decrease 	as 	a result.
A 1987 	study by 	the 	FTC's 	Bureau 	of 	Economics 	found 	evidence
that 	restrictions 	preventing 	dentists 	from 	using 	dental
auxiliaries 	to 	perform the 	tasks 	for 	which 	they 	are 	qualified
reduce 	the 	efficiency 	of 	providing 	dental 	services. 	The 	study
also 	found 	that 	restrictions 	on 	the 	use 	of 	dental 	auxiliaries
raise 	the 	prices 	of 	dental 	procedures 	and 	the 	average 	price 	of 	a
10 	We 	take 	no 	position 	on 	the 	degree 	of 	supervision 	that 	is
appropriate 	for 	specific 	procedures 	performed 	by 	dental
auxiliaries.

· ~
Alfred otero, 	D.D.S., 	President
California 	Board 	of 	Dental 	Examiners
Page 	6
dental 	visit. 11 	As 	the 	prices 	charged 	for 	dental 	care 	increase,
consumers may 	decrease 	their 	purchases 	of 	these 	services. 12
Conclusion
We 	believe 	that 	the 	regulatory 	proposal 	could 	cause 	a
significant 	loss 	in 	consumer welfare 	by 	inhibiting 	school 	and
other public 	screening 	programs, 	and 	by 	restricting 	the 	efficient
use 	of 	dental 	auxiliaries. 	We 	appreciate 	this 	opportunity 	to
provide 	comments 	on 	the 	proposed 	regulation. 	We 	would 	be 	pleased
to 	provide 	a 	copy 	of 	any 	of 	the 	reports 	we 	have 	discussed. 	,.
Very 	truly 	yours,
If. it",,tJLA
a 	et M. 	Grad~~
e 	ional 	Director
11 	See 	J. 	Liang 	and 	J. 	Ogur, 	Restrictions 	on 	Dental
Auxiliaries 	2 	(1987) 	(FTC 	Bureau 	of 	Economics 	Staff 	Report). 	The
study 	examined 	state 	statutory 	or 	regulatory 	restrictions 	on 	the
number 	of 	dental 	hygienists 	a 	dentist 	could 	employ, 	as 	well 	as
restrictions 	on 	functions 	dental 	auxiliaries 	were 	permitted 	to
perform. 	The 	study 	did 	not 	analyze 	restrictions 	on 	independent
practice by 	dental 	auxiliaries 	or 	the 	issue 	of 	direct 	versus
general 	supervision.
12 	This 	is 	of 	particular concern because 	large 	numbers 	of
consumers 	do 	not 	currently 	see 	a 	dentist 	regularly. 	A 1977 	survey
by 	the 	National 	Center 	for 	Health 	statistics 	found 	that 	over 	one-
third 	of 	the 	united 	states 	popUlation 	had 	not 	visited 	a 	dentist 	in
two 	years 	or 	longer, 	and 	approximately 	20 	million 	Americans 	had
never visited 	a 	dentist. 	One 	of 	the 	major 	reasons 	given 	for 	this
finding 	was 	the 	high 	cost 	of 	dental 	visits 	in 	terms 	of 	price 	and 	•
time. 	General 	Accounting 	Office, 	Increased 	Use 	of 	Expanded
F~nction Dental 	Auxiliaries 	Would 	Benefit 	Consumers, 	Dentists, 	and
Taxpayers., 	HRD-80-51, 	March 	1980, 	at 	14-15.