The State Board of Dental Examiners (Board) adopts new rule 22 TAC §108.16, concerning teledentistry. The adopted rule pertains to standards for the provision of teledentistry dental services as set out in House Bill 2056 of the 87th Texas Legislature, Regular Session (2021), and Chapter 111, Texas Occupations Code. This new rule is adopted with no changes to the proposed text as published in the March 11, 2022 issue of the Texas Register (47 TexReg 1176), and will not be republished.

This rule was initially published in the November 12, 2021 issue of the Texas Register. During the public comment period, the Board received several stakeholder comments pertaining to the reference of §108.7 in §108.16(e)(2)(A). As a result of stakeholder feedback, the Board voted to amend §108.7, and also voted to re-propose this rule with no changes. Both rules were published in the March 11, 2022 issue of the Texas Register.

The Board received public written comments regarding this rule from the following commenters: Align Technology (Align); American Association of Orthodontists (AAO); American Teledentistry Association (ATDA); American Telemedicine Association (ATA); Byte; Coalition of Texans with Disabilities (CTD); Dial Care; Dr. Clark Colville, DDS; Dr. Larry Tadlock, DDS; Dr. Peter, Vig, DDS; Dr. Rhonda Stokley, DDS; Representative Stephanie Klick; Senator Charles Perry; Senator Lois Kolkhorst; Smile Direct Club (Smile Direct); Smile Doctors; Tech Net; Texas Academy of Pediatric Dentistry (TAPD); Texas Association of Business (TAB); Texas Association of Orthodontists (TAO); Texas Conservative Coalition Research Institute (TCCRI); Texas Dental Association (TDA); Texas e-Health Alliance; Texas Public Policy Foundation (TPPF); and United Spinal Association.

The following is a summary of the comments and the Board's responses:

Align Technology (Align) provided a written comment in opposition of adoption of the rule as proposed. Subsection (e)(2)(A) of this rule refers to §108.7, but Align disagrees with the proposed amendment to §108.7(4) regarding a limited physical examination. The proposed amendment to §108.7(4) will require a dentist to perform a limited physical examination when a reasonable and prudent dentist would do so under the same or similar circumstances. Align states a patient must receive at least an initial physical examination before undergoing orthodontic treatment, and requests that the Board revise this rule to reflect that a physical examination is required prior to orthodontic treatment.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

American Association of Orthodontists (AAO) provided a written comment in opposition of adoption of the rule as initially proposed in the November 12, 2021 issue of the Texas Register. Subsection (e)(2)(A) of this rule refers to §108.7, but AAO disagrees with the proposed amendment to §108.7(4) regarding a limited physical examination. The proposed amendment to §108.7(4) will require a dentist to perform a limited physical examination when a reasonable and prudent dentist would do so under the same or similar circumstances. AAO requests that the Board revise the rule to require dentists to perform a physical examination on a patient prior to performing an irreversible dental procedure. AAO is also concerned that subsection (c) does not clearly indicate what is expected from licensees and requests further details regarding the rule's prevention of fraud and abuse.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. The Board declines to include rule language pertaining to an irreversible procedure because even some of the least complicated dental procedures could be considered irreversible. Subsection (c) of this rule requires dentists to adopt protocols to prevent fraud and abuse through the use of teledentistry dental services. In accordance with §108.9(6), dentists are required to comply with all laws relating to the regulation of dentists, which includes applicable laws pertaining to fraud and abuse. No changes to this proposed rule were made as a result of the comment.

American Teledentistry Association (ATDA) provided a written comment in support of adoption of the rule as proposed. ATDA agrees with subsection (e)(2)(A) of this rule because of the proposed amendment to §108.7(4), which will require a dentist to perform a limited physical examination when a reasonable and prudent dentist would do so under the same or similar circumstances.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

American Telemedicine Association (ATA) provided a written comment in opposition of adoption of the rule as initially proposed in the November 12, 2021 issue of the Texas Register. ATA states the reference to §108.7 in subsection (e)(2)(A) of this rule requires an in-person examination of the patient before the dentist can perform teledentistry dental services. ATA requests that the Board revise the rule to clarify that dentists are not required to perform an in-person examination prior to providing teledentistry dental services.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

Byte provided a written comment in opposition of adoption of the rule as initially proposed in the November 12, 2021 issue of the Texas Register. Byte states that the reference to §108.7 in subsection (e)(2)(A) of this rule requires an in-person visit by requiring dentists to perform a physical examination for all dental patients. Byte requests that the Board revise the rule to clarify that dentists are not required to perform an in-person examination prior to providing teledentistry dental services.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

Coalition of Texans with Disabilities (CTD) provided a written comment in opposition of adoption of the rule as initially proposed in the November 12, 2021 issue of the Texas Register.

CTD states that teledentistry may be used to establish a doctor-patient relationship, and has the added benefit of allowing practitioners to plan and prepare an accommodation for a person's disability prior to being seen in the office. CDT states that the rule will restrict the ability of providers to use technologies to deliver high-quality dental care, and requests that the Board reconsider the reference in this rule that requires an in-person office visit prior to teledentistry services.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

Dial Care provided a written comment in support of adoption of the rule as proposed. Dial Care agrees with subsection (e)(2)(A) of this rule because of the proposed amendment to §108.7(4), which will allow dentists to use their professional judgment to determine whether and when a limited physical examination is required.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

Dr. Clark Colville, DDS provided a written comment in opposition of adoption of the rule as proposed. He states initiating orthodontic treatment without a thorough physical evaluation combined with necessary high-quality diagnostic records can result in irreversible damage. He states the proposed amendment to §108.7 is vague in that it requires a dentist to perform a physical examination when a reasonable and prudent dentist would do so under the same or similar circumstances. He states the Board's recordkeeping requirements in §108.8 cannot be met if a dentist performs teledentistry dental services in accordance with subsection (e)(2)(C) of this rule because dentists are required to document a written review a patient's medical history and limited physical examination, and document the findings of a tactile and visual examination of the soft and hard tissues of the oral cavity.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. The Board disagrees that §108.8 cannot be met. If a dentist does not record a review of a patient's medical history and limited physical examination, or does not record findings of a tactile and visual examination, then §108.8(c)(12) requires a dentist to record why those items are missing. In other words, §108.8 can be met when certain required items are missing as long as a dentist provides an adequate explanation why the required items are missing. No changes to this proposed rule were made as a result of the comment.

Dr. Larry Tadlock, DDS provided a written comment in opposition of adoption of the rule as proposed. Subsection (e)(2)(A) of this rule refers to §108.7, but Dr. Tadlock disagrees with the proposed amendment to §108.7(4) regarding a limited physical examination. The proposed amendment to §108.7(4) will require a dentist to perform a limited physical examination when a reasonable and prudent dentist would do so under the same or similar circumstances. Dr. Tadlock states that an in-person examination prior to initiating active tooth movement is critical to protect the health and safety of patients.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

Dr. Peter, Vig, DDS provided a written comment in support of adoption of the rule as proposed. He agrees with the re-publication of this rule in the March 11, 2022 issue of the Texas Register in that it amends provisions of the cross referenced §108.7 to be based on what a reasonable and prudent dentist would do so under the same or similar circumstances.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

Dr. Rhonda Stokley, DDS provided a written comment in opposition of adoption of the rule as initially proposed in the November 12, 2021 issue of the Texas Register. Dr. Stokley requests that the Board revise the rule to explicitly state that teledentistry is allowed for dental public health programs. Dr. Stokley also requests clarification on the application of subsection (e)(2)(B) in public health programs as there may not be an existing patient relationship based on the nature of these programs.

Response: A dentist, dental hygienist, or dental assistant who works for a dental public health program can provide teledentistry services to a patient located in Texas if they hold an active Texas license or registration issued by the Board, and they follow all applicable law. A dentist may use teledentistry technologies to establish a practitioner-patient relationship. No changes to this proposed rule were made as a result of the comment.

Representative Stephanie Klick and Senator Charles Perry provided a written comment in opposition of adoption of the rule as initially proposed in the November 12, 2022 issue of the Texas Register. They state that a physician can treat a patient without having an in-person visit as long as the standard of care is met, however the physician must ask the patient to come into the office if the diagnosis or treatment utilizing telemedicine is not adequate or consistent with the standard of care. They request that the Board reconsider the in-person requirement referenced in the proposed rule so that patients can utilize teledentistry dental services without imposing barriers that do not exist in telemedicine.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

Senator Lois Kolkhorst provided a written comment in opposition of adoption of the rule as proposed. She states evidence supports that the minimum standard of care for dental treatment requires an in-person physical examination before beginning orthodontic treatment, and effective orthodontic treatment cannot be provided by relying solely on photographs. She requests that the Board revise the rule to require an in-person examination before a patient begins orthodontic treatment, or prior to treatment for an irreversible dental procedure.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. The Board declines to include rule language pertaining to an irreversible procedure because even some of the least complicated dental procedures could be considered irreversible. No changes to this proposed rule were made as a result of the comment.

Smile Direct Club (Smile Direct) provided a written comment in opposition of adoption of the rule as proposed. Smile Direct states that the Board has made clear that the minimum standard of care for the practice of dentistry, including teledentistry, is consistent with that of a reasonable and prudent dentist under the same or similar circumstances. Smile Direct states that the recordkeeping requirement in §108.8(c) could appear to require through the phrase "records must include documentation of the following when services are rendered" mandatory radiographs and tactile examinations regardless of the clinical appropriateness of such diagnostics. Smile Direct requests that the Board consider issuing a policy statement on the application of recordkeeping. Smile Direct requests that the Board replace the language in subsection (c) of this rule to the following: "Teledentistry dental services may only be provided following the patient's initiation of a dentist-patient relationship or pursuant to a referral made by a patient's licensed dentist with whom the patient has an established dentist-patient relationship."

Response: The Board disagrees with Smile Direct's interpretation of §108.8. If a dentist does not have documentation of radiographs or a tactile examination, then §108.8(c)(12) requires a dentist to record why those items are missing. In other words, §108.8 can be met when certain required items are missing as long as a dentist provides an adequate explanation why the required items are missing. Subsection (c) of this rule requires dentists to adopt protocols to prevent fraud and abuse through the use of teledentistry dental services. In accordance with §108.9(6), dentists are required to comply with all laws relating to the regulation of dentists, which includes applicable laws pertaining to fraud and abuse. No changes to this proposed rule were made as a result of the comment.

Smile Doctors provided a written comment in support of adoption of the rule as initially proposed in the November 12, 2021 issue of the Texas Register. Smile Doctors is concerned that patients are not receiving appropriate initial care. Smile Doctors states that doctor directed care following an initial physical evaluation will protect patients and improve treatment outcomes.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

Tech Net provided a written comment in support of adoption of the rule as proposed. Tech Net was originally concerned with the reference to §108.7 in subsection (e)(2)(A) of this rule because Tech Net states it would have required an in-person examination prior to providing teledentistry dental services. TechNet states that the proposed amendment to §108.7 ensures access to oral healthcare.

Response: The Board's proposed amendment to §108.7 allows a dentist to provide teledentistry dental services without requiring an in-person examination prior to providing the service as long as the dentist adheres to the standard of care. No changes to this proposed rule were made as a result of the comment.

Texas Academy of Pediatric Dentistry (TAPD) provided a written comment in opposition of adoption of the rule as initially proposed in the November 12, 2021 issue of the Texas Register. Subsection (e)(2)(A) of this rule refers to §108.7, but TAPD disagrees with the proposed amendment to §108.7(4) regarding a limited physical examination. The proposed amendment to §108.7(4) will require a dentist to perform a limited physical examination when a reasonable and prudent dentist would do so under the same or similar circumstances. TAPD requests that the Board revise the rule to require a physical examination at least annually because physical dental examinations are important for preventative care and maintaining a child's oral health.