Dear Ms. Reen and Members of the Virginia Board of Dentistry:

I write to you on behalf of the American Association of Orthodontists (AAO) in response to the Notice of Intended Regulatory Action (NOIRA) published in the Virginia Register on March 1, 2021 to take regulatory action regarding the training and supervision of digital scan technicians. We appreciate the opportunity to submit public comment at this time.

The AAO is the nation’s largest dental specialty organization and represents more than 19,000 orthodontists in the United States and abroad. We have 396 members who are residents of, or licensed to practice dentistry in, the Commonwealth of Virginia.

As you know, HB 165 and SB122 of the 2020 General Assembly defined a digital scan technician, as used in teledentistry, and required the Board to promulgate regulations for the training for technicians to practice under the supervision of a dentist licensed in Virginia. The AAO opposed HB 165/SB 122 unless amended, as we believed the bills, as eventually passed, have several provisions that could have unintended consequences and seemingly do not best protect patient health and safety. One proposed amendment, which was not accepted by the legislature, is included below in italicized and bold  font.

[As proposed in section 54.1-2719. Persons engaged in construction and repair of appliances. A.]: Licensed dentists may employ or engage the services of any person, firm, or corporation to construct or repair an appliance, extraorally, in accordance with a written or digital work order. Any appliance constructed or repaired by a person, firm, or corporation pursuant to this section shall be evaluated and reviewed in-person by the licensed dentist who submitted the written or digital work order, or a licensed dentist in the same dental practice. A person, firm, or corporation so employed or engaged shall not be considered to be practicing dentistry. No such person, firm, or corporation shall perform any direct dental service for a patient, but they may assist a dentist in the selection of shades for the matching of prosthetic devices when the dentist sends the patient to them with a written or digital work order.

The AAO suggested amending this section so that the treating dentist, or a licensed dentist in the same dental practice, who orders any appliance, reviews that appliance in person to confirm its accuracy and fit. In the case of another dental appliance, dentures, laws regularly require that a lab creating the appliance send the appliance back to the prescribing dentist prior to receipt by the patient, so the dentist can inspect and confirm that the appliance conforms with the prescription and impressions that were provided. The same reasoning should apply to orthodontic appliances; the dentist should be required to inspect the appliances for conformity to the prescription and impressions (digital or physical) before being sent to the patient to begin treatment. Improperly fitting orthodontic appliances can cause significant harm—certainly physical harm from the appliance (such as cut or bleeding gums), but also significant harm from the unintended or improper movement of teeth caused by an inaccurate appliance. Dental boards regularly direct that treatment administered through teledentistry should maintain the same standard of care as in-person treatment. This principle applies in requiring the inspection and fitting of the appliance in-person by the treating dentist.

As the Board works to fulfill its task to promulgate regulations that specify the responsibility of the dentist for the practice of teledentistry and training and supervision of a digital scan technician, the AAO respectfully asks that you consider language that ensures that an appliance, such as a clear aligner, that is fabricated as a result of a scan taken by a digital scan technician, is verified in-person by the treating dentist to prevent patients from receiving clear aligners that were fabricated based on inaccurate images.

The AAO also emphasizes the importance of establishing a doctor/patient relationship via a faceto-face encounter, specifically before beginning orthodontic treatment, 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 can include conditions or problems that may 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 and before the treating dentist has inspected and approved any orthodontic appliance created using images taken by a digital scan technician, has occurred by a Virginia licensed dentist. To that end, the AAO proposes inclusion of the following requirement in any dental scan technician regulations:

No person, other than a dentist, shall obtain digital scans for use during the practice of dentistry unless the patient has or will be seen in person by a dentist within six months of the scan.

Thank you in advance for your consideration of these comments. Please do not hesitate to contact the AAO if we can be of any further assistance to the Board in its consideration of these issues.

Sincerely, 

Trey Lawrence

Vice President, Advocacy and General Counsel

American Association of Orthodontists