The AAO strongly agrees with the Petition in that the AAO believes a digital scan is the practice of dentistry and that TREATMENT should not occur before a physical, in-person examination/evaluation of the patient has occurred by a Virginia licensed dentist.  To begin with, Va. Code Ann. § 54.1-2711(iv) clearly provides that “Any person shall be deemed to be practicing dentistry who . . . (iv) . . . takes impressions for the fabrication of appliances or dental prosthesis, supplies or repairs artificial teeth as substitutes for natural teeth, or places in the mouth and adjusts such substitutes.”  The AAO believes that the term “impressions” under Va. Code Ann. § 54.1-2711(iv) already applies to “digital scans,” since the AAO views a “digital scan” as a “digital impression,” especially when used for the fabrication of appliances.  Nevertheless, an amendment would only further support and clarify this point.  The AAO also sees the importance of establishing a doctor/patient relationship via a face-to-face encounter because there are certain diagnoses and evaluations that can only be performed in-person or are best performed in-person (x-rays, etc.).  There are a number of categories of problems/conditions that a dentist usually looks for as part of a physical examination at the outset of traditional in-person treatment.  These include conditions or problems that can be quite serious, such as oral cancer, periodontal problems, advanced decay, gum disease, etc.  If an in-person examination of the patient by a dentist does not occur, there may be no examination of the patient by a dentist to detect such problems.  With that in mind, the AAO believes dental and orthodontic treatment should not occur before a physical, in-person examination/evaluation of the patient has occurred by a Virginia licensed dentist in order to establish the doctor/patient relationship.  Moreover, and as stated in the Court’s Memorandum Opinion in Blaine Leeds and SmileDirectClub v. Board of Dental Examiners of Alabama et al., Case No. 2:18-cv-01679-RDP (N.D. Ga.):

“Defendants and their amicus [the American Association of Orthodontists] have identified several legitimate goals for requiring the physical presence of a licensed dentist at facilities where [a digital intra-oral scanner] is used. Using [a digital intra-oral scanner] to make digital images of teeth is an intraoral procedure that involves inserting the device into patients’ mouths. Hypothetical legitimate goals for requiring a dentist’s physical presence at facilities where [a digital intra-oral scanner] is used include: (1) ensuring proper sterilization procedures are followed to prevent the spread of illness; (2) ensuring that a skilled, trained dentist is available in the event of a sudden medical emergency caused by the [digital intra-oral scanner] inadvertently dislodging a patient’s crown; (3) ensuring that a licensed dentist has the opportunity to diagnose preexisting conditions that contraindicate the use of clear aligner therapy in the first place, such as gum disease; and (4) ensuring that a dentist can verify in real time that the [digital intra-oral scanner] is accurately capturing a patient’s oral cavity, to avoid having the procedure repeated and to prevent patients from receiving clear aligners that were fabricated based on inaccurate images.  All of these purposes are legitimate state interests that could justify the Board’s regulation. Moreover, a rational basis undoubtedly exists for believing that the regulation would further those hypothesized purposes. Rational arguments exist that requiring a licensed dentist to be physically present at facilities where [a digital intra-oral scanner] is used would advance each of the interests identified above. . . . .”  See https://www1.aaoinfo.org/wp-content/uploads/2019/04/memorandum-order-MTD.pdf (p. 41).

Given the foregoing, the AAO is hopeful that the Virginia Board of Dentistry will promulgate rules that only further support and clarify that an “impression” includes “digital scans” and that dental and orthodontic treatment should not occur before a physical, in-person examination/evaluation of the patient has occurred by a Virginia licensed dentist in order to establish the doctor/patient relationship.  We appreciate your consideration of these comments.