Subchapter A. PROCEDURES GOVERNING GRIEVANCES, HEARINGS, AND APPEALS

Subchapter A. PROFESSIONAL RESPONSIBILITY

The Texas State Board of Dental Examiners (Board) adopts amendments to 22 TAC, Chapter 114, §114.1 and §114.3, the repeal of §114.2, and new §114.2 and §114.10, all of which concern dental assistants. The new §114.2 is adopted with changes to the text published in the February 27, 2004, issue of the Texas Register (29 TexReg 1824). The amendments to §114.1 and §114.3, new §114.10 and the repeal of §114.2 are adopted without changes and will not be republished. Changes to the proposed text consist of minor grammatical corrections and two non-substantive changes in language.

These sections contain extensive revisions to clarify and standardize language, as well as new language to enact the provisions of Senate Bill 263, §25, 78th Legislature, requiring that dental assistants that make x-rays be registered to do so.

Amendments to §114.1 incorporate the definition of a "reversible" procedure, and specific examples of "irreversible" procedures that were previously contained in §114.2.

Section 114.2, which contains definitions, is repealed, with those definitions reduced and redistributed to the proposed amendments in other sections.

A new §114.2 details the requirements and process for the registration of dental assistants who perform x-ray procedures. The word "examining" in the proposed text of §114.2(b)(3)(A)(i) has been replaced with "exposing." This corrects a typographical error and brings that portion of the language into congruence with the language elsewhere in the section. Also, §114.2(c) has been changed from the text as proposed, pursuant to a comment received. The term "dental" has been changed to the more specific "dental assistant", and the term "license" has been removed, to further clarify that the rule only applies to dental assistant registrations, and bring the language into congruence with the language elsewhere in the section.

Amendments to §114.3 incorporate some of the definitions previously found in §114.2, and clarify and organize the remainder of its language.

New §114.10 relocates language from §115.10, which details the currently-existing x-ray certification process for dental assistants. Language clarifying the dates for transition between the two registration schemes, pursuant to Senate Bill 263, §34, 78th Legislature has also been added, as §114.10(a).

A number of comments were received regarding §114.2, both at the March 5, 2004 public hearing, and via written correspondence. While appreciated, reviewed and noted, many of the comments received by the Board in regard to the proposed amendments to did not pertain to the rule itself. Some commenters addressed the wisdom of Senate Bill 263's requirements, and most addressed the actual testing methodology, cost and accessibility. However, because many concerns raised were based on assumptions drawn from inaccurate or incomplete information, the Board wishes to take the opportunity to address some of the more prominent and recurring of those concerns.

Comments involving cost and access to the profession of dental assisting:

1. The costs involved in testing, including missed work time, will create a burden for dental assistants and dentists, and would result in a rise in the cost of dentistry and a reduction in access to care.

2. Dental assistants will demand higher pay if they are certified.

3. Dental assistants will be discouraged from entering the profession.

Response: There is no way to effectively carry out the statutory requirements for dental assistant certification that would be free of cost. As will be discussed below, contracting a third party to administer the examinations, as allowed by the statute, emerged as the best way to ensure the integrity and accessibility of the examinations. The Board worked with the selected testing service, Thomson Prometric, to make the costs as reasonable as possible.

Inevitably, the raising of minimum standards required for participation in any profession creates the risk that some will not be able to meet those standards, and will be forced to leave or not enter the profession. The Board is aware that the profession of dental assisting creates an important occupational niche for many people of varying educational backgrounds. However, there is still a balance to be struck between the accessibility of a profession, and the credibility of a profession, a balance that is a guiding central principle the Board is adhering to in the creation of the examinations, with the participation and input of dental professionals. Finally, while change may initially be discomfiting for some, the Board agrees with a number of dental assistants who made positive comment that the certification will increase the health and credibility of the profession of dental assisting.

Comments involving examination content and development:

1. The examination should be geared to the educational level of dental assistants.

2. The Board should work with or allow the Texas Dental Association to develop the required examinations.

3. The Board should allow practicing dentists and dental educators to participate in the creation of the required examinations.

4. The examinations will not test the dental assistant's ability to take good or accurate radiographs.

5. The examinations should test practical application.

6. The examination should have an acceptable pass/fail rate.

7. A third-party testing service has a financial interest in ensuring a high failure rate.

8. "Test questions are seemingly being developed independently of a manual or course of study."

Response: As discussed above, the Board agrees that raising the standards of the dental assisting profession by administering examinations should be reasonable, practical, and realistic, a principle that has been and will continue to be a major focus of the Board in the development of the examinations. It is to that end that the Board is actively involving the participation and input of the major stakeholder groups in the development of the required examinations. This was the original intent of the Board, and of the statute, which states that:

"The board shall develop the examination or contract with another person the board determines has the expertise and resources to develop the examination. The board may create an advisory committee consisting of dental industry professionals and educators to advise the board in developing the examination."

On March 12, 2004, the Board extended a request to the Texas Dental Association, the Texas Dental Assistants Association, and the Texas Dental Hygienists Association to recommend individuals to serve on a panel of subject matter experts in the development of examination questions. On April 2 and 3, 2004, four individuals from each of those associations, met in Austin for an examination item-writing workshop. The examinations will consist entirely of items developed and approved by stakeholder participants.

Many commenters referred to the low passage rate of the existing radiology certification examination. That examination was not, contrary to the assumption of many, written by Prometric. The Board contracted with a consultant educator for development of that exam. The Board has recently retired questions from that exam that indicated a low success rate with examinees.

Many parties making comment have assumed that there will be no training or study materials for the examinations. That assumption is premature, considering that the examinations themselves are, at this time, still being written. Furthermore, the examination is intended to ensure an acceptable level of knowledge and competency, not to create a required curriculum that would cause even greater expense in time and finances for dental assistants. Rather, the focus of the panel developing the exam questions is to develop an exam that is fair, valid, reliable, and that covers topics that subject matter panelists feel are practical and necessary. The Board expects that review materials will be developed addressing the exam topics.

Comments involving examination accessibility:

1. More test sites are needed.

2. The testing centers will not be able to handle the load of administering such a large number of exams in a timely fashion.

Response: The selected examination service, Prometric, currently has 22 testing centers across the state. Based on the practice addresses of 10,377 dentists and 31,131 dental assistants in Texas, approximately 90% of dental practices in Texas are within 50 miles of a Prometric testing center, 9% are within 50-100 miles, and 1% are within 100-150 miles of a center.

Test center utilization is monitored regularly by Prometric according to geographic and seasonal demand cycles. Their channel of testing centers is updated according to forecast and actual testing volumes on both an annual and periodic basis. As part of the capacity planning for the April 2004 launch of the AICPA exam (250,000 exams per year) and the TSBDE exams, Thomson Prometric did and continues to perform extensive utilization models to ensure appropriate test center capacity in the state of Texas.

Comment: Local colleges and educational institutions should be allowed to administer the examinations.

Response: The Board examined the feasibility of allowing local educational institutions to administer the examinations. However, coordinating and maintaining adequate controls over a large number of testing centers with disparate management and administration would be logistically infeasible and could foreseeably compromise the integrity and validity of the examinations.

Comment: The examination should be offered online, just as defensive driving courses are.

Response: While it is true that defensive driving courses may be taken online, there is a vast difference between the educational and testing standard of a defensive driving course, which is intended to be remedial and supplemental, and the standard required to ensure that dental assistants are competent to perform tasks in the course of patient care. As some parties making comment noted, the integrity and validity of examinations can only be guaranteed with proctored examinations in a controlled environment.

Comment: The examination should be administered at the annual dental meetings.

Response: Prometric is considering the possibility of offering examinations at annual meetings of dental assistants.

Comment: The required examinations should not be administered by a private third party.

Response: With other alternatives eliminated as not being an effective way to address the legislative mandate, the Board looked primarily to the specific language of that mandate, as codified at Occupations Code, Section 265.005(f): "The examination shall be administered by the board or by a testing service under an agreement with the board." The Board contracted with Thomson Prometric, who was already under contract for the administration of other examinations for the Board.

Comment: Examinations are not available in Spanish.

Response: The Board agrees that making examinations accessible to Spanish-speaking dental assistants is important. Unfortunately, developing a complete set of examinations and materials in Spanish is cost-prohibitive at this time. The Board intends to actively seek additional funding during the 79th Legislature in 2005 to remedy this problem.

Question: Will accommodations be made for those with disabilities?

Response: The Board ensured that it has the contractual ability to administer the examinations itself as necessary to accommodate any special needs.

Comment: Non-profit organizations will be unduly burdened.

Response: This is another area of concern for the Board, for which Senate Bill 263 offers us little latitude. The Board will continue to investigate a variety of methods, possibly including requesting a statutory exception in the 79th Legislature, to ameliorate the effect on non-profit organizations.

Comment: Well-educated dental assistants should be grandfathered.

Response: The Board is aware that a great number of dental assistants have significant practical experience in the areas covered by the examinations. Unfortunately, the new statutory language does not allow for exception or grandfathering.

Comment: Allow dentists to train and monitor their dental assistants.

Response: Allowing dentists to administer the examinations to their own dental assistants would not meet the mandate or intent of Senate Bill 263, in that there would be inadequate controls to guarantee the validity of the testing process.

The Board does recognize that on-the-job training will be a critical component of success for most dental assistants. Accordingly, Board staff intends to propose a rule that would allow dental assistants to perform radiological procedures under appropriate supervision, as a part of on-the-job training, for a period of time before a certificate of registration is required.

Comment: Dental assistants are being exposed to risk by having to travel to testing sites.

Response: The Board has determined that neither online testing nor allowing exams to be taken in unregulated sites are acceptable alternatives to meet the legislative mandate, it is an inescapable reality that test-takers will have to transport themselves to testing sites, just as nurses, attorneys, and students have to in order to take valid and controlled examinations. The Board could only mitigate the risks involved as much as possible by contracting with a testing service that has a sizeable, secure and consistent presence distributed throughout the state.

Comment: Administering the examination on computers will be intimidating or impracticable for many dental assistants.

Response: The Board understands that even in today's society, some individuals are uncomfortable with computers, but their use has been commonly accepted for use by the general population for a variety of purposes. Furthermore, the vast majority of dental assistants have some degree of exposure with computers or other office technology, and the actual process of taking the exam is far simpler than using a word processor or any other software application.

The actual examination process, however, will be as simple as reading an exam question, pointing and clicking the desired response, and pointing and clicking to go to the next exam item. A brief tutorial on that process will precede each examination.

Many competent and knowledgeable individuals experience severe test anxiety. Issues like test anxiety and innate difficulty with standardized testing are unfortunate, but universal, and are faced by some individuals from elementary school students to graduate students. While unfortunate, they are not issues that can be adequately addressed by regulatory agencies, and cannot invalidate the entire modality of testing knowledge by examination.

Comment: There was little input from the dental profession before the legislation was enacted.

Response: The Texas Dental Association, as well as other professional associations, were actively involved in supporting this legislation, and even spoke before legislators in favor of its passage.

Comment: Annual registration fees will be a burden for dental assistants and dentists who choose to pay for them.

Response: The Board has been required by the new legislation to charge fees: Section 265.005 of the Texas Occupations Code requires that "[t]o qualify for a certificate of registration, a dental assistant must pay a fee in an amount determined by the board..."

Within that mandate, the Board has latitude to set those fees. In light of the economic realities facing dental assistants, and in the desire to minimize the impact on dental offices that may pay those fees on behalf of their assistants, the Board staff currently intends to recommend that the fees be minimal, not to exceed $50.00 per year. For purposes of comparison, the registration fee set by the Board of Medical Examiners for non-certified radiological technicians is $50.

Comment: The educational intent of the examination could be handled by continuing education courses.

Response: Continuing education courses would clearly not meet the mandate of the statute, which requires continuing education in addition to the examination.

Comment: The Board has ignored the spirit and the intent of Senate Bill 263.

Response: In drafting rules to enact the requirements of Senate Bill 263, Board staff was aware that the bill had been supported by major dental industry groups, and had been unanimously approved in both houses of the Legislature. Accordingly, Board staff adhered closely to the language and the unequivocally clear mandate of the statute. There is no legislative history or other document indicating any intent that is incongruous with the rules as written.

Comment: There is no telephone listing for Prometric in El Paso.

Response: Prometric in El Paso is co-located with Sylvan Learning Centers, at 5807 N. Mesa Street. Their phone number is (915) 587-7323. Once rules have been passed, and the examination has been developed with the assistance of all parties, the Board, through its personnel, materials, and website, will provide specific locations and contact information to prospective registrants.

Comment: In Rule 114.2(c), the term "license" should not be used to refer to the certificate of registration for dental assistants.

Response: While the Attorney General has ruled that certificates of registration are to be considered licenses, the Board agrees that the term is confusing and inconsistent with the language used elsewhere. Since the correction of that error is semantic and non-substantive, the change was made in the language as adopted by the Board.

Comment: The requirement of proposed Rule 114.2(g), that a dental assistant "display a current registration certificate in each office where the dental assistant provides services," is unwarranted and unnecessary.

Response: The posting requirement of Rule 114.2(g) is consistent with other Board rules requiring the same of dentists and dental hygienists. These posting requirements ensure that the public has access to these validating documents to determine that healthcare personnel are properly authorized and in compliance with the law. No change will be made.

Comment: The regulations put the burden on the dentist to ensure that a dental assistant contracted through a temporary placement service is registered.

Response: This is correct, though the Board believes it is not an onerous, unusual, or unreasonable burden to expect a dentist to confirm that a dental assistant is qualified to perform the duties required before they are hired.

Comment: Six hours of continuing education annually are insufficient.

Response: The new legislation limits the Board to requiring no more than 12 hours of continuing education annually. Fortunately, the Board has more latitude in this area to strike the important balance between meeting the legislative mandate, ensuring public safety, and mitigating the burden on dental assistants. Accordingly, the Board feels that six hours is adequate to ensure a useful and appropriate level of continuing education, while minimizing the burden on dental assistants.

No other comments were received.

The Texas State Board of Dental Examiners (Board) adopts the repeal of 22 TAC Chapter 116, §§116.1 - 116.5, 116.11, 116.20 - 116.25, and adopts new §§116.1 - 116.6, and 116.20, all of which concern dental laboratories, without changes to the proposed text published in the March 12, 2004, issue of the Texas Register (29 TexReg 2527). The text will not be republished.

The only substantive changes are in response to the requirements of Senate Bill 1571, §4, 78th Legislature. The adopted repeals and new sections improve the chapter's clarity, consistency, and organization.

Section 116.1, defining the term "dental student", is repealed because that definition is now incorporated into new §116.1.

Section 116.2, defining the term "dental technician", is repealed because that definition is now incorporated into new §116.1.

Section 116.3, concerning dental laboratory requirements, is repealed because the provisions of this section regarding operational requirements have been incorporated into new §116.4 ("Requirements"), and provisions regarding registration, renewal, and reporting requirements have been incorporated into new §116.3 ("Registration and Renewal").

Section 116.4, concerning continuing education requirements, is repealed because the provisions of this section have been incorporated into new §116.6 ("Continuing Education").

Section 116.5, concerning the "grandfathering" exemption from the requirement that a dental laboratory employ one certified dental technician, is repealed because the provisions of this section have been incorporated into new §116.5 ("Certified Dental Technician Required").

Section 116.20, concerning definitions, is repealed because the provisions of this section have been incorporated into new §116.1 ("Definitions").

Section 116.21, defining the term "dental laboratory", is repealed because the definition is now incorporated into new §116.1.

Section 116.22, defining the term "in-house dental laboratory" for purposes of exemption from the requirements of Chapter 116, is repealed because the definition is no longer required, as its terms are now incorporated into new §116.2 ("Exemptions").

Section 116.23, defining the term "commercial dental laboratory" for purposes of distinguishing some laboratories from those exempt from the requirements of Chapter 116, is repealed because the definition is no longer required, due to the revised language defining "dental laboratory" in new §116.1, and the language of new §116.2 ("Exemptions").

Section 116.24, concerning application for registration of a dental laboratory, is repealed because the provisions of this section are now contained in new §116.3 ("Registration and Renewal").

Section 116.25, concerning parties responsible for the operation of a dental laboratory, is proposed for repeal. The provisions of this section are now contained in new §116.20 ("Responsibility").

New §116.1 defines certain terms used in Chapter 116.

New §116.2 defines exemptions from the requirements of Chapter 116. The language was taken from other sections in Chapter 116, with revisions for clarity and organization. Subsection (c) adds language required by S.B. 1571, exempting from the requirements of Chapter 116 certain manufacturers of materials or component parts used in fabricating dental appliances.

New §116.3 consolidates the dental laboratory registration and renewal requirements. The proposed language was taken from other sections in Chapter 116, with revisions for clarity and organization.

New §116.4 consolidates dental laboratory operational requirements. The language was taken from §116.3, with revisions for clarity and organization.

New §116.5 addresses the requirement that a dental laboratory employ a certified dental technician. The language was taken from §116.3 and §116.5, with revisions for clarity and organization.

New §116.6 addresses dental laboratory continuing education requirements. The language was taken from §116.4, with revisions for clarity and organization. The word "nationally" in reference to "recognized board of certification" in subsections (a) and (d) have been removed, pursuant to the requirements of S.B. 1571.

New §116.20 concerns responsibility for the registration and operation of dental laboratories. The language was relocated verbatim from §116.25.

No comments were received regarding adoption of the sections.