The State Board of Dental Examiners (Board) adopts this amendment to 22 TAC §108.7(3) - (4), concerning the minimum standard of care. The rule is adopted in accordance with House Bill 2056 of the 87th Texas Legislature, Regular Session (2021), and Chapter 111, Texas Occupations Code. The bill amended Chapter 111, Texas Occupations Code, which allows dental health professionals to provide teledentistry dental services to patients. The bill's intent is to eliminate barriers pertaining to access to care, and allow dental health professionals to treat patients without having an in-person visit if the standard of care is met. This adopted amendment changes §108.7(3) - (4) to allow for the provision of 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. A dentist must ask the patient to come into the office for a physical examination if the diagnosis or treatment utilizing teledentistry is not adequate or consistent with the standard of care.

Paragraph (3) is adopted without changes to the proposed text as published in the March 11, 2022, issue of the Texas Register (47 TexReg 1174). Paragraph (4) is adopted with non-substantive changes to the proposed text as published in the March 11, 2022, issue of the Texas Register (47 TexReg 1174). The text of the rule will be republished.

The Board received public written comments regarding this rule from the following commenters: Align Technology (Align); American Teledentistry Association (ATDA); Dial Care; Dr. Clark Colville, DDS; Dr. Larry Tadlock, DDS; Dr. Peter, Vig, DDS; Senator Lois Kolkhorst; Smile Direct Club (Smile Direct); Texas Dental Association (TDA); and Tech Net.

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

Align Technology provided a written comment in opposition of adoption of the rule as proposed. Align states a patient must receive at least an initial physical examination before undergoing orthodontic treatment, and requests that the Board change paragraph (4) to the following: "maintain and review a limited physical examination when a reasonable and prudent dentist would do so under the same or similar circumstances. At a minimum a limited physical examination should be renewed and updated annually. A physical examination shall be performed prior to orthodontic treatment."

Response: The Board's proposed amendment 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 Teledentistry Association (ATDA) provided a written comment in support of adoption of the rule as proposed. ATDA states the legislature was clear that no prior in-person examination should be required and that the standard of care should dictate how services are delivered. ATDA states that all dentists regardless of delivery method used is held to the same standard of care, which is now defined in this rule as what a reasonable and prudent dentist would do under the same or similar circumstances.

Response: The Board's proposed amendment 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 states that a reasonable and prudent dentist can decide whether and when an in-person examination is required. Dial Care states the proposed rule suggests an annual examination as a best practice, which leaves it to each dentist to determine using professional judgment whether an in-person examination should be performed.

Response: The Board's proposed amendment 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 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 a reasonable and prudent dentist would not initiate a clinical procedure that could cause irreversible damage without adequately assessing the hard and soft tissues in person.

Response: The Board's proposed amendment 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. Larry Tadlock, DDS provided a written comment in opposition of adoption of the rule as proposed. He believes the proposed amendment removes the standard for an in-person examination, and as a consequence, the need to review appropriate patient diagnostic records prior to initiating orthodontic treatment. He states an in-person examination prior to initiating active tooth movement is critical to protect the health and safety of patients, and periodic visits beyond once a year are also required to protect patients.

Response: The Board's proposed amendment 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 states the proposed rule holds each licensee responsible for using professional discretion to select the technology appropriate to diagnose and sufficient to treat the patient for the condition as presented to meet the standard of care.

Response: The Board's proposed amendment 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 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 support of adoption of the rule as proposed. Smile Direct states the Board has made clear that the minimum standard of care for all practice of dentistry, including teledentistry, is the same and is consistent with that of a reasonable and prudent dentist under the same or similar circumstances. Smile Direct states removing language pertaining to the taking of blood pressure and pulse/heart rate measurements and replacing it with the limited physical examination when a reasonable and prudent dentist would do so is appropriate.

Response: The Board's proposed amendment 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 Dental Association (TDA) provided a written comment in opposition of adoption of the rule as proposed. TDA states that the limited physical examination is essential for a dentist to determine the relationship between a patient's overall health and oral health. TDA agrees that although it is infeasible to perform a limited physical examination of a patient at an initial teledentistry dental appointment, the accepted benchmark of care for dental patients is that dentists perform a limited physical examination of the patient at least annually. TDA requests that the Board change paragraph (4) to the following: "perform and review a limited physical examination when a reasonable and prudent dentist would do so under the same or similar circumstances. At a minimum, a limited physical examination shall be performed and reviewed annually."

Response: The Board's proposed amendment 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. As a result of the comment, the Board made the following changes to paragraph (4): "perform and review a limited physical examination when a reasonable and prudent dentist would do so under the same or similar circumstances. At a minimum, a limited physical examination should be performed and reviewed annually."

Tech Net provided a written comment in support of adoption of the rule as proposed. Tech Net states that the rule before the proposed amendment would have required an in-person examination prior to providing teledentistry dental services. TechNet states that the proposed amendment ensures access to oral healthcare.

Response: The Board's proposed amendment 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.

This rule is adopted under Texas Occupations Code §254.001(a), which gives the Board authority to adopt rules necessary to perform its duties and ensure compliance with state laws relating to the practice of dentistry to protect the public health and safety.

Legal counsel for the Board has reviewed the adopted rule and has found it to be within the Board's authority to adopt.