The proposed amendment was published in the State Register on March 7, 2007. Below is a summary of written comments received by the State Education Department (SED) and SED's assessment of issues raised.

COMMENT: I strongly feel that this legislation will benefit the dental profession in New York State and at the same time place New York on an equal status with other states that have adopted similar legislation. In my opinion, this legislation will strengthen and support the concept of TEAM dentistry.

RESPONSE: SED agrees. No response to this comment is necessary.

COMMENT: New York has been behind many other states in the responsibilities and duties that can be performed by licensed dental assistants. The new law changes that and the regulations ensure that the licensees will have the proper education, competency and appropriate supervision. This expansion of auxiliaries' duties will enable more efficient delivery of dental services to a greater number of people. Such advances may help slow the increase in costs associated with dental care, as well as provide much needed opportunities to expand access of care in underserved areas of New York State. Every report or conference on improving access to care calls for the expansion of duties for auxiliaries. These regulations are an important step in that direction.

RESPONSE: SED agrees. No response to this comment is necessary.

COMMENT: The Dental Hygienists' Association of the State of New York (DHASNY) supports the proposed amendment to the regulations relating to the practice of certified dental assisting and dental hygiene. The proposed amendment will increase the scope of practice for both certified dental assistants and dental hygienists to include placing, condensing, carving and finishing amalgam and non-metallic restorations under the personal supervision of a licensed dentist. These procedures are in agreement with Chapter 300 of the Laws of New York which states that services performed by certified dental assistants and dental hygienists “shall not include diagnosing and/or performing surgical procedures, irreversible procedures or procedures that would alter the hard or soft tissue of the oral and maxillofacial area.”

The educational requirements and the concept of competency in completion of restorative (or any) procedures which certified dental assistants and dental hygienists perform are clearly defined in the regulations.

We are optimistic that the increase in the scope of practice for the professions affected by the proposed regulations will aid in attracting more qualified members to the dental team and begin to address some of the workforce issues that currently exist in the dental profession. These regulations are a step toward improving access to care, and if adopted, will benefit the citizens of New York.

RESPONSE: No response to this comment is necessary.

COMMENT: These regulations implement legislation supporting the expansion of duties for licensed dental assistants and dental hygienists and allows the dentist to more fully utilize the clinical skills of these licensed auxiliaries in providing patient treatment.

The amendment further supports the affirmation of education and examination requirements for licensed dental auxiliaries who provide patient care under the direct supervision by the dentist.

Furthermore, in expanding these regulations, New York joins with other states across the nation in implementing greater utilization of ancillary dental health care providers and in exploring answers to access to care issues.

RESPONSE: No response to this comment is necessary.

COMMENT: The New York Dental Assistants Association supports the mission of the American Dental Assistants Association in advancing the profession of dental assisting by advocating for appropriate academic educational preparation and competency based clinical practice for all dental assisting practitioners.

In keeping with this mission, the NYDAA supports the proposed expansion of functions for the licensed dental assistants and the maintenance of the educational component for practice.

RESPONSE: No response to this comment is necessary.

COMMENT: The New York State Dental Association fully support[s] the regulations and believes the regulation will increase efficiency and access to dental services while maintaining safeguards for proper supervision and competency.

The legislation brings New York in line with other states that allow expanded duties to dental auxiliaries. The regulations make it clear that the dentist remains responsible for evaluating the services and ensuring the competency. Such expansion of duties does not change the dentist responsibility for patient care, but allows him/her to delegate reversible procedures to the skilled auxiliaries.

RESPONSE: No response to this comment is necessary.

COMMENT: At this time, mandatory continuing education is not required for certified dental assistants in New York State. In light of the proposed expanded scope of practice for dental assistants which includes manipulation of current and future materials, techniques, intracanal medications, etc., it would be prudent to require mandatory continuing dental education for these licensed professionals.

RESPONSE: The proposed regulations implement the requirements of Section 6608 of the Education Law, as added by Chapter 300 of the Laws of 2006. Any mandatory requirement for continuing education for certified dental assistants would need to be addressed in statute by the Legislature.

COMMENT: I believe allowing dental assistants and dental hygienists to place, condense and finish non-metallic restorations is contradictory to the intent of the legislation which specifies that they would not be allowed to perform “irreversible procedures”. While it is true that the supervising dentist would be the one to remove the non-metallic restoration should it become necessary, even a skilled operator would be very hard-pressed to remove a bonded restoration without removing additional tooth structure. Therefore, this procedure becomes an irreversible procedure unlike the removal of amalgam.

RESPONSE: In the event that removal of material becomes necessary, it is the responsibility of the dentist to remove such material. Neither the dental assistant nor the dental hygienist would perform the procedure resulting in the possible removal of tooth structure. Secondly, the regulation provides supervisory protection requirements for placing, condensing and finishing non-metallic restorations. Specifically, the regulation states that the dentist must personally authorize such procedures and evaluate the service performed by a dental assistant. The proposed regulation provides further protection by reiterating that if a licensee performs a procedure that he/she is not competent to perform or if a licensed dentist delegates a procedure to a certified dental assistant that the licensed dentist knows or has reason to know that the certified dental assistant is not qualified to perform, this is deemed unprofessional conduct.

COMMENT: The Department received nine comments on form letters from dental hygiene student/patients, stating that the proposed amendment is a direct and serious assault on all patients seeking optimum and safe dental care. The myriad of extensive knowledge gained during the dental hygiene educational curriculum fortifies the dental hygienist with foundation knowledge to first and foremost protect the patient by executing care based on competencies gained over years of academic experience.

RESPONSE: This comment does not take into consideration the rigorous educational requirements for licensed certified dental assistants, which includes at least 200 hours and up to 1,000 hours of clinical experience in the practice of certified dental assisting and extensive didactic course work. The regulation also provides protection to patients by reiterating the competency requirements and delegation language contained in Part 29 pertaining to unprofessional conduct.

COMMENT: community college expressed concern that the proposed regulation adds the placing, condensing and carving or finishing of amalgam and non-metallic restorations into registered dental assisting programs. The community college expressed concern: (1) that dental assisting and dental hygiene programs are most frequently located in community colleges and such colleges lack the necessary resources to teach the placing and finishing of permanent restorations to clinical competence; 2) that dental assisting and hygiene curricula are already content-saturated for one and two year programs; 3) that placing and finishing non-metallic restorations, in particular, are technique sensitive; 4) that course content in dental anatomy, occlusion and materials would need to be elevated to the level required in dental school curriculum; and 5) that the regulation does not define limits for permanent restorations although temporary restorations are limited to intra-coronal fillings. The commenter expressed no objection to permitting the restorative services to be performed by licensed individuals who are trained to levels of clinical competence established for dentists performing the same procedures.

The commenter requests that the regulations be amended to grant a certificate to already licensed dental assistants or hygienists to place and finish permanent restorations after completion of appropriate coursework which leads to clinical competence in these skills rather than adding these skills to entry level educational programs.

RESPONSE: With respect to the concern regarding lack of resources, the Department has not received any similar comments/concerns from other dental assisting and dental hygiene programs. Therefore, this may be a localized issue. The Department has also not received other comments/concerns regarding the addition of restorative skills to the dental assisting curriculum. The Department does not anticipate that the addition of such procedures in the curricula for dental assisting to be overly burdensome. Furthermore, due to the expansion of the certified dental assistant's scope of practice, the Department believes it is necessary that programs leading to licensure in certified dental assisting include course work in placing and removing temporary restorations; placing, condensing and carving amalgam restorations; and placing, condensing and finishing non-metallic restorations.

As for the competency issue, competency evolves following completion of a program through additional training in the classroom and performing services under the direct personal supervision of a licensed dentist. It is the responsibility of the dentist and the dental assistant or dental hygienist to know when he or she has reached a level of competence. The proposed amendment specifically provides that if a dental assistant or dental hygienist does not feel that he/she has sufficient competence to perform a certain procedure, he/she should not perform the procedure. The supervising dentist is also responsible for ensuring that he/she only delegates procedures to dental assistants/dental hygienists who have sufficient competency. In addition, as stated in earlier responses, the regulations fortify the requirements regarding competency and delegation.

With respect to the definition of limits on permanent restorations, the Department does not feel that restorations, temporary or permanent, need to be limited to intra-coronal. As stated previously, the decision as to whether a permanent or temporary restoration should be delegated to a dental assistant is at the discretion of the delegating dentist; depending on the competency of such dental assistant or dental hygienist. It should also be noted that the proposed regulation removes the subdivision that defines temporary restorations as being limited to intra-coronal fillings.

In response to the suggestion that the Department issue certificates to licensees based on completion of continuing education course work, the New York State Education Department does not believe that such a requirement is necessary. Practicing beyond one's ability is deemed to be unprofessional conduct under Part 29 of the Rules of the Board of Regents and is a safeguard in place to assure that practitioners are competent when performing such procedures. If a dental assistant or dental hygienist does not feel that they have the requisite competence to perform a procedure, they should complete continuing education course work in that area. It is the responsibility of the both the dental assistant/hygienist and the delegating dentist to ensure that such person is competent to perform any procedures delegated under this proposed amendment. Technology in the dental field is constantly evolving and dental assistants, dental hygienists and dentists themselves are responsible for gaining the requisite competence prior to performing such procedures.