The U.S. Federal Trade Commission (FTC) has told the Maine Board of Dental Examiners that proposed rules for a pilot project that would expand the scope of practice of independent practice dental hygienists (IPDHs) are too restrictive and could undermine the project's purpose.
In June 2011, Maine passed legislation (LD 230) directing the board to implement a two-year pilot project that expands the scope of practice of IPDHs to allow them to take x-rays in underserved areas without the presence of a dentist, as long as they meet certain education and experience requirements.
— Pat Jones, RDH, Maine Dental
The board's proposed rules would, however, restrict IPDHs to taking only bitewing and periapical x-rays without a dentist present and would prohibit them from taking other types of x-rays, according to the FTC.
In a letter to the board dated November 16, the FTC stated that the proposed rules "could have the unfortunate effect of harming the members of the public by limiting their choices, limiting access to oral healthcare, and impeding price competition."
"The pilot project aims to foster accessible and cost-effective care in underserved areas of Maine, with no stated limitations on the types of x-rays IPDHs may take independently," the commission wrote. "The proposed restrictions in Section II [of the proposed rules], however, appear to limit IPDH practice under the pilot project in ways not contemplated by the enabling legislation. We are concerned that Section II, if adopted, would impede the development of new arrangements for delivering oral healthcare services in ways contrary to the very intent of the pilot project."
In addition, the board has not provided any statement of its basis for the proposed restrictions, nor does it cite evidence -- "and we are aware of no evidence," the FTC letter states -- that allowing licensed IPDHs to process the x-rays independently is likely to harm the public.
Maine residents in underserved areas would be better served if the board eliminates the restrictions, the FTC letter concluded.
'Overstepping its bounds'
The dental board is expected to vote on the proposed rules on December 16 and is still debating whether to restrict the type of x-rays that will be allowed under the rules.
"The board has a meeting this Friday, and part of that meeting is the rule-making process," Doug Dunbar, a spokesperson for the board, told DrBicuspid.com. "They could keep the rule as drafted, or amend it, or reject it altogether."
Those opposed to allowing IPDHs to take x-rays -- such as the Maine Dental Association -- say it would put the public at risk.
"The Maine Dental Association is opposed to LD 230 on the fundamental grounds that the only reason for taking any x-ray is to diagnose a condition, and dental hygienists are not trained, nor allowed, to diagnose," the association stated earlier this year in testimony before the Joint Standing Committee on Labor, Commerce, Research, and Economic Development. "Only a doctor can make a diagnosis."
But LD 230 clearly states that IPDHs practicing in federally underserved dental shortage areas could take x-rays as part of a pilot study, according to Pat Jones, RDH, a former Maine legislator and now a lobbyist for the Maine Dental Hygienists' Association.
"By limiting what type of x-rays these hygienists can take, the board is overstepping its bounds and changing the intent of this law," she said. "And this is a substantial change because they are trying to limit what kinds of x-rays we can take."
Maine Gov. Paul LePage also has sent a letter to the dental board about this issue, Jones noted. "He has been very concerned about overregulation," she said.
In addition, the board's lawyer has advised them to offer a substantive reason for the rule change, according to Jones. "And what they've come up with is that this isn't within the scope of our practice, which doesn't hold much water," she said. "The legislation allows us to take x-rays in federally underserved areas of the state as part of this pilot project. The law states 'x-rays' -- it does not define what type."
Maine IPDHs are well-trained, experienced, and licensed to take all x-rays and are allowed to own x-ray equipment, she added. They don't diagnose x-rays but are educated and trained to observe obvious conditions seen on x-rays that need to be referred to a dentist.
"The IPDH may be in legal jeopardy by not taking the necessary x-rays to do a complete oral assessment before starting treatment," Jones said.
LD 230 took effect September 28, and the results of the pilot project are supposed to be reported back to the state Legislature during the 2013 session. But with the delays in the rule-making process, the dental board is concerned there won't be enough time to collect substantive data, she added.
"So now they are talking about going back to the Legislature and asking for an extension to get two full years of data, and the hygienists' association has decided to support this," Jones said. "It's a double-edged sword because it's another delay, but we couldn't gamble with skimpy data."