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By Dan Schulte, J.D.
MDA Legal Counsel
From the May 2008 issue of the Journal

Question:  Frequently when I am out of the office on vacation new patients come to the office for the first time.  I allow my hygienist to perform prophylaxis on these patients and take X-rays while I am away. I can't help but wonder: Is this legal?

Answer: No, it is not. Michigan Administrative Code Rule 338.11408 requires that a registered dental hygienist only perform the following procedures under the "assignment" of a licensed dentist:

(a) removing accretions and stains from the surfaces of the teeth and applying topical agents essential to complete prophylaxis;

(b) root planning or debridement;

(c) polishing and contouring restorations;

(d) applying anticariogenic agents;

(e) charting of the oral cavity, including all of the following: (i) periodontal charting; (ii) intra- and extra-oral examining of soft tissue; (iii) charting of radiolucencies or radiopacities, existing restorations, and missing  teeth;

(f) preliminary examining that includes both of the following: (i) classifying occlusion; and (ii) testing pulp vitality using an electric pulp tester;

(g) applying nonaerosol and noncaustic topical anesthetic agents by prescription of the dentist;

(h) placing and removing intra-coronal temporary sedative dressings;

(i) taking intra-oral measurements for orthodontic procedures;

(j) placing and removing postextraction and periodontal dressings;

(k) removing excess cement from tooth surfaces;

(l) providing nutritional counseling for oral health and maintenance;

(m) applying commonly accepted emergency procedures;

(n) removing sutures;

(o) placing and removing a rubber dam;

(p) making impressions for study or opposing models, orthodontic orthodontic appliances, mouth guards, bite splints, and bleaching trays;

(q) operating dental radiographic equipment;

(r) placing subgingival medicaments;

(s) temporary cementing and removing of temporary crowns and bands.

In order for a dentist to make an assignment of the patient to the registered dental hygienist, the dentist must comply with Michigan Administrative Code Rule 338.11101(d). That rule requires the dentist to designate the patient as a "patient of record" upon whom services are to be performed by the registered dental hygienist and that the dentist describe the procedure to be performed. The dentist is not required to be physically present in the office or the treatment room at the time the assigned procedures are performed following this designation. However, in order for the patient to be a patient of record the dentist must examine and diagnose the patient and prepare a treatment plan according to Michigan Administrative Code Rule 338.11101(s).

Therefore, your hygienist should not be performing prophylaxis and X-rays on any new patient (i.e., a patient who you have not met, examined, diagnosed and for whom you have not prepared a treatment plan).

Question: As we approach the end of the school year I typically receive employment inquiries from minors. To what extent is it legal to employ minors?

Answer: The minimum age for the employment of minors is 14. Some exceptions do exist allowing employment of minors less than age 14 that are not applicable to a dental practice.

For additional discussion on this topic, click here for extended version of this article.

Posted in: Treatment Issues

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