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concluding appellants properly filed a declaratory judgment action “seeking a determination of whether the board's letter was invalid as non-compliant with the rule-making provisions of R.C. Chapter 119”
Summary of this case from Ohio Podiatric Med. Ass'n v. TaylorOpinion
No. 85-151
Decided January 2, 1986.
Dentists — Administrative law — Delegation of intraoral procedures to basic qualified personnel violative of R.C. 4715.39, when.
O.Jur 2d Physicians and Surgeons § 101.
1. An advisory opinion letter which has the effect of permitting dentists to delegate intraoral procedures to basic qualified personnel without an extant rule violates R.C. 4715.39.
2. Tasks or procedures which require the use of dental instruments in ways more likely than not to cause irremediable alterations of the oral anatomy may not lawfully be delegated to basic qualified personnel by rule or otherwise.
APPEAL from the Court of Appeals for Franklin County.
The essential facts of this case are not in dispute. Appellee, Ohio State Dental Board ("board"), acting through its secretary, Frank R. Recker ("secretary"), is charged with enforcement of the Dental Practice Act under R.C. 4715.05. In the fall of 1981, members of the Ohio Association of Orthodontists inquired whether auxiliary personnel could lawfully remove debris from the teeth before bonding bands or brackets and remove orthodontic cement after bonding. In response to this request for clarification, the secretary drafted a letter of advisory opinion ("the letter") stating the board's understanding as to whether these procedures were permissible under existing rules and statutes.
On February 18, 1982, following discussions at several board meetings, the members voted by a majority to approve the final version of the letter. A dissenting vote was cast by the only dental hygienist member of the board, whose specific objection was that the letter did not address the use of rotary instruments. On or about February 19, 1982, the secretary issued the letter. In it he opined that dentists (specifically, orthodontists) could lawfully delegate to dental auxiliaries, specifically Basic Qualified Personnel ("BQP"), the "removal of cement, * * * removal of loose bands, and removal of debris from the coronal portion of a tooth which would interfere with the cementation or bonding process. This removal of debris may be done with any instrument or device * * *."
The body of the letter stated in pertinent part:
"* * * We [the Ohio State Dental Board] know that in the past there has been some confusion relative to what orthodontic procedures could be lawfully delegated by a licensed dentist to a `Basic Qualified Person' (BQP).
"The Board stands by its interpretation of Rule 4715-11-03, which was covered in its letters of April 24 and August 19, 1980, which stated that only a licensed dentist may: cement orthodontic bands, remove cemented orthodontic bands, place bonded brackets, or remove bonded brackets. The board however, does concur with the position of your organization that most procedures performed by orthodontic auxiliaries are `basic' in nature and can be performed by the `Basic Qualified Person' described in Rule 4715-3-01 with no advanced training. Some of these procedures which may be lawfully delegated to the BQP would include: removal of cement, making of impressions for diagnostic study models and orthodontic appliances, removal of loose bands, and removal of debris from the coronal portion of a tooth which would interfere with the cementation or bonding process. This removal of debris may be done with any instrument or device which would not be construed as `preventive polishing of the clinical crown of teeth' as that phrase is used in Rule 4715-9-01. * * *"
Ohio Adm. Code 4715-3-01(N) defines "dental auxiliaries" as "* * * all persons, not licensed to practice dentistry in Ohio, who are utilized by a licensed dentist to assist him in his dental practice." They include basic qualified personnel.
Ohio Adm. Code 4715-3-01(L) defines "basic qualified personnel" as "* * * those persons who are adjudged by the licensed dentist to be capable and competent of performing basic remediable intra-oral dental tasks and/or procedures under his direct supervision and full responsibility. These persons may be trained directly via an employer-dentist, via a planned sequence of instruction in an educational institution or via an approved in-office training program."
The appellants, Ohio Dental Hygienists Association and Constance L. Clark, a dental consumer and licensed dental hygienist, filed a declaratory judgment action in the Court of Common Pleas of Franklin County, seeking a determination of whether the board's letter was invalid as non-compliant with the rule-making provisions of R.C. Chapter 119, and the rule-making mandates of R.C. 4715.39.
By decision filed February 15, 1984, as journalized March 15, 1984, the trial court declared the letter to be an unlawful exercise of administrative authority and ordered the board to rescind the letter and notify all licensed dentists of the rescission. In addition, the court ruled that the board could allow the delegation of specific intraoral tasks to BQP only by promulgating rules in accordance with R.C. Chapter 119. The court found that the letter did not just interpret existing rules relating to BQP but in effect authorized dentists to delegate the described procedures to them.
The court ruled that the phrases "removal of cement" and "removal of debris," as used in the letter, were so broad as to encompass dental procedures requiring the skill of a licensed dentist or hygienist. Specifically the court ruled that hardened cement or debris could constitute an accretion and that the surgical instruments commonly used to remove such deposits could cause, if not used properly, irremediable changes within the oral cavity. For those reasons, the court declared that the letter violated R.C. 4715.39 by authorizing BQP to engage in the practice of dental hygiene.
In reversing the trial court's decision, the Court of Appeals for Franklin County ruled that the letter was merely a response to a request for the board's interpretation of rules already adopted by it. The court ruled that the board exercised its lawful prerogative when issuing the letter because it merely interpreted the general terminology of Ohio Adm. Code 4715-3-01, 4715-11-01 and 4715-11-03 and their applicability to specific tasks.
Although not raised as an issue by the parties below, the court of appeals found the trial court had no subject matter jurisdiction to render a declaratory judgment in this case. We do not agree. See R.C. 2721.06.
The case is now before this court pursuant to the allowance of a motion to certify the record.
McFadden Sponseller, Mary J. McFadden and Melodee S. Kornacker, for appellants.
Anthony J. Celebrezze, Jr., attorney general, and B. Douglas Anderson, for appellee.
Philip R. Bradley, urging affirmance for amici curiae, Ohio Association of Orthodontists et al.
The issue raised by this case is whether a letter issued by the Ohio State Dental Board advising dentists that BQP may remove cement, debris and loose bands from a patient's teeth violates R.C. 4715.39.
Appellee argues that the letter of February 19, 1982 is merely an advisory opinion, offering the board's interpretation of the meaning of rules already adopted by the board. Specifically, it is appellee's contention that the board's letter is not a "rule" requiring promulgation but a statement of clarification regarding Ohio Adm. Code 4715-11-01 through 4715-11-03, 4715-3-01 and 4715-9-01. This court does not agree.
By enacting R.C. 4715.39, the Ohio General Assembly sought to protect dental consumers from permanent harm caused by untrained and unskilled individuals. The performance of dental procedures which involve the risk of irremediable injury are limited to licensed dentists and hygienists. Although auxiliary personnel may assist dentists with certain basic tasks, the legislature has limited their use to procedures where the risk of harm will be minimal. Recognizing the temptation to maximize the use of lower-paid auxiliaries, the General Assembly limited the board's authority to expand their duties. Specifically, the board was not granted informal administrative power to prescribe tasks for auxiliaries, but could do so only by formal, reviewable rule-making. As a matter of public health, it is imperative that the protective regulatory efforts of the General Assembly be sustained. It follows, then, that R.C. 4715.39 must be construed to give effect to legislative intent.
Absent ambiguity, a statute is to be construed without resort to a process of statutory construction. As this court stated in paragraph five of the syllabus of Sears v. Weimer (1944), 143 Ohio St. 312 [28 O.O. 270]:
"Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to rules of statutory interpretation. An unambiguous statute is to be applied, not interpreted."
R.C. 4715.39 provided, at the time relevant herein, in pertinent part:
"Subject to the rules of the state dental board, licensed dentists may assign to qualified personnel such dental procedures that do not require the professional competence or skill of the licensed dentist or dental hygienist as the board by rule authorizes such personnel to perform. * * *" (Emphasis added.)
The meaning of this provision is clear. Unlicensed personnel may not be assigned any dental procedure without an authorizing board rule. The trial court was correct in ruling:
"Clearly, the legislature intended that the delegation of procedures not specifically authorized be prohibited. The opposite conclusion, advanced by defendants, that what is not specifically prohibited must be allowed, violates the express legislative intentions found in Section 4715.39. * * *"
It should be noted that effective March 15, 1982, R.C. 4715.39 was amended as follows:
"The state dental board may adopt rules, in accordance with Chapter 119. of the Revised Code, defining duties which may be performed by qualified personnel, and may adopt rules establishing training and practice standards for qualified personnel; such standards may include examination and issuance of a certificate." (Emphasis added.)
The appellee argues that in conformity with R.C. 4715.39, it has already adopted rules which authorize the challenged procedures. Appellee refers the court to Ohio Adm. Code 4715-11-01 and 4715-3-01. The first rule provides:
"Basic qualified personnel — functions
"A licensed dentist may, in accordance with board rules, assign under his direct supervision and full responsibility basic remediable intra-oral dental tasks and/or procedures to basic qualified personnel." (Emphasis added.)
By itself, this rule does little to assist dentists in determining what procedures to delegate to their BQP. Rather it apparently refers them to some other rule(s). Turning then to the second rule, Ohio Adm. Code 4715-3-01 sets forth as a definition, those tasks that are delegable. Ohio Adm. Code 4715-3-01(E) provides:
"`Basic remediable intra-oral dental tasks and/or procedures' — Basic remediable intra-oral dental tasks and/or procedures are defined as those which do not create irreparable changes within the oral cavity or the contiguous structures. Basic remediable intra-oral dental tasks and/or procedures include the exposure of dental radiographs but do not include any advanced remediable intra-oral tasks and/or procedures as defined by these rules."
The only task specifically mentioned in this rule is the exposure of dental radiographs. In fact, this definition is little more than a repetition of R.C. 4715.39 which in part specifies what BQP may not do. R.C. 4715.39, in part, reads:
"Nothing in this section shall be construed by rule * * * or otherwise to authorize [basic] `qualified personnel' * * * to perform * * * [an] intraoral procedure that contributes to or results in an irremediable alteration of the oral anatomy * * *."
By including the words "[s]ubject to the rules of the * * * board," the legislators must certainly have meant for dentists to be guided by rules more specific than those included in the statute. As a mere affirmative restatement of an R.C. 4715.39 prohibition, Ohio Adm. Code 4715-3-01(E) is insufficient to allow procedures other than the one specifically mentioned. It is the duty of the board to provide specific guidance to Ohio dentists through the enactment of rules pursuant to R.C. Chapter 119. If the board wished to authorize BQP to remove cement, loose bands or debris, it must do so by an appropriate, formal rule.
In addition, the trial court found that the language of the letter was so broad that it allowed procedures both authorized and prohibited under R.C. 4715.39. R.C. 4715.39 specifically prohibits BQP from removing calcarious deposits or accretions from the teeth. In relevant part it states:
"Nothing in this section shall be construed * * * to authorize [basic] `qualified personnel' * * * to perform the duties of a dental hygienist including the removal of calcarious deposits or accretions on the crowns and roots of teeth * * *." (Emphasis added.)
The trial court gave deference to the testimony of appellants' expert, that hardened cement was an accretion within the meaning of the statute. Thus, BQP are prohibited from performing this specific task under R.C. 4715.39.
We hold that an advisory opinion letter which has the effect of permitting dentists to delegate intraoral procedures to basic qualified personnel without an extant rule violates R.C. 4715.39.
The court of appeals reviewed those sections of the Revised Code and the rules promulgated by the board which set forth the lawful practices of dental hygienists and qualified personnel. The court concluded that R.c. 4715.23 and 4715.39 and Ohio Adm. Code 4715-3-01(L), 4715-3-01(D) and (E), and 4715-9-01 have no specific provisions concerning the types of instruments that may be used, but only pertain to the tasks that may be performed. We disagree. Most dental tasks can only be completed by the use of dental instruments. Which instruments, and how they will be used, must certainly be considered in light of the legislature's intent to prevent harm. Considerations of public safety require a more reasonable interpretation.
Uncontroverted expert testimony established that the surgical instruments often used to remove hardened cement also remove some amount of enamel any time they are used. Whether in skilled or unskilled hands, constant use of these tools will damage the tooth. As previously noted, R.C. 4715.39 provides that the board, "by rule * * * or otherwise," may not authorize BQP to engage in any intraoral procedure that contributes to or results in irremediable alterations of the oral anatomy. It is this court's conclusion that tasks or procedures which require the use of dental instruments in ways more likely than not to cause irremediable alterations of the oral anatomy may not lawfully be delegated to basic qualified personnel by rule or otherwise.
Accordingly, this court reverses the judgment of the court of appeals and reinstates the decision and judgment entry of the trial court.
Judgment reversed.
CELEBREZZE, C.J., SWEENEY, WISE, C. BROWN and WRIGHT, JJ., concur.
HOLMES, J., dissents.
WISE, J., of the Fifth Appellate District, sitting for LOCHER, J.
The primary question that needs to be answered is one of the jurisdiction of the trial court over this matter. The complaint was one seeking a declaratory judgment pursuant to R.C. 2721.03, which section provides in pertinent part:
"Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under such instrument, constitutional provision, statute, rule, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder."
First, pertaining to the application of such procedure, we should note, as did the court of appeals herein, that there must be a justiciable controversy between adverse parties wherein "speedy relief is necessary to the preservation of rights." American Life Accident Ins. Co. v. Jones (1949), 152 Ohio St. 287 [40 O.O. 326], paragraph two of the syllabus. Courts may not render abstract or hypothetical opinions. The issue presented to the trial court here did not question the constitutionality of a statute or a rule; it did not question the interpretation of a statute or a rule — instead, it concerned the application or meaning of a letter from an administrative agency, the Ohio State Dental Board ("board"), in answer to a query from the Ohio Association of Orthodontists as to the practical application of an existing rule of the board as it would apply to those working in dental offices, and known as "Basic Qualified Personnel."
The letter in question does not constitute a rule, rather it represents the professional opinion of the board as to the permissible scope of the activities of the basic qualified personnel operating under the direction of dentists. This is in essence, and in law, only an advisory opinion letter. This is the type of opinion and professional commentary regularly and commonly written by the executives or staff of professional boards or state agencies in order to provide useful guidance to practitioners who wish to comply with statutes and regulations promulgated thereunder. These types of letters do not have the force of a statute or regulation. As such, the advisory letter here at issue is not subject to judicial review on assertion of a third party. Therefore, at the outset, the court of appeals was correct in concluding that there was no live case or controversy for a determination pursuant to the Declaratory Judgments Act.
Second, if one must arrive at the merits of the case, this court, in overriding the professional determination of the Ohio State Dental Board, has consecrated itself as Ohio's "Super Dental Board" with assumed professional dental knowledge beyond that of those who obtained their professional skills in the school of dentistry. I have no such knowledge; therefore, I follow the law as I see it.
The trial court improperly ruled upon the opinions of appellants' experts in substituting its judgment for that of the board. The record is void of fraud or gross abuse of discretion. In the absence of such, the informed and expert opinions of the board should be afforded deference from the courts. The purpose of the board, composed of persons with necessary knowledge and experience in dentistry and representing all interests, is to facilitate the promotion of the safe practice of dentistry. R.C. 4715.03(C). See, also, Farrand v. State Medical Bd. (1949), 151 Ohio St. 222 [39 O.O. 41], paragraph one of the syllabus.
The letter from the board to the Ohio Association of Orthodontists, in interpreting Ohio Adm. Code 4715-3-01, stated, inter alia, that: "* * * Some of these procedures which may be lawfully delegated to the BQP would include: removal of cement, making of impressions for diagnostic study models and orthodontic appliances, removal of loose bands, and removal of debris from the coronal portion of a tooth which would interfere with the cementation or bonding process. This removal of debris may be done with any instrument or device which would not be construed as `preventive polishing of the clinical crown of teeth' as that phrase is used in Rule 4715-9-01." Thus, the board's advisory letter, interpreting the meaning of language used in Ohio Adm. Code 4715-3-01 (and 4715-11-03), applied to tasks allowed to be performed by basic qualified personnel of basic remedial intraoral dental and/or procedures within the existing rules.
The expert for the board, Dr. Frank A. Recker, a dentist and the secretary of the board, testified that one of the activities authorized by Ohio Adm. Code 4715-3-01 explained in the questioned letter was the removal of cement from the teeth, and that such was not considered to be an "accretion" by the board, but that an "accretion" is a "deposit that accumulates over time." The common usage of the term is a "growth or increase in size by gradual external addition, fusion, or inclusion." American Heritage Dictionary (2 College Ed.). The courts, meaning the trial court and this court, should take judicial notice of such professional usage. The term "accretion" was intended to mean the natural gradual growth or accumulation, not that material which was placed there inadvertently by man in the orthodontic process.
The explanatory material included in the board's letter was only in conformity with the rules promulgated by the board, which rules were in accord with statutory enactments providing for them.
Accordingly, I would affirm the judgment of the court of appeals.