New York recently enacted legislation expanding collaborative practice for dental hygienists, which will expand what services dental hygienists may perform. As an owner or operator of a dental practice, part of keeping your practice running smoothly involves understanding the legal line between the practice of dentistry and dental hygiene, which becomes even more important in the context of understanding the parameters of the new legislation. When that line is crossed, the consequences can be significant for both the individual performing the services and potentially the practice owner too.
Holding the Line: Collaborative Practice Increases Flexibility, But Is Not a License to Practice Dentistry
Although not effective until June 19, 2027, New York recently enacted legislation expanding collaborative practice for dental hygienists. The legislation will permit qualifying registered dental hygienists designated as RDH-CPs to provide specified dental hygiene services in authorized settings without onsite dentist supervision, pursuant to a written collaborative practice agreement with a licensed dentist.
This is an important expansion, but it does not erase the distinction between dental hygiene and dentistry. The hygienist must meet eligibility requirements, including three years and at least 4,500 hours of practice experience and specified continuing education. The agreement must be signed and maintained by the dentist, dental hygienist and the authorized setting; reviewed annually by both parties; contain patient- and procedure-specific protocols; and remain available to the Department of Education and other interested parties upon request. Patients must also be advised in writing that hygiene services are not a substitute for examination by a licensed dentist, and referrals must be documented.
Crossing the Line: Nationwide Arrests for Practicing without a Dental License
Recent enforcement actions involving individuals allegedly performing dental procedures without a license highlight just how serious these issues can become. In one New Jersey case, an individual allegedly arranged a root canal through a WhatsApp group chat, administered anesthetic, and began drilling a patient’s tooth, despite not being licensed to practice dentistry. In other cases reported across the country, individuals allegedly performed extractions and other dental procedures in homes without appropriate licenses, with patients suffering serious complications. While these cases involved individuals allegedly practicing without a proper license, they can serve as a powerful reminder to legitimate dental practices that employees must remain within the scope of their licenses. For dental practices, understanding those boundaries and implementing appropriate safeguards can help protect patients, practitioners and the practice itself.
Finding the Line: Defining Scope of Practice
Under New York law, a dentist may diagnose, treat, operate, or prescribe for any disease, pain injury, deformity, or physical condition of the oral and maxillofacial area related to restoring and maintaining dental health. Furthermore, “the practice of dentistry includes the prescribing and fabrication of dental prostheses and appliances,” and may include performing physical evaluations. Only someone that is licensed or otherwise authorized under New York law may practice dentistry or use the title “dentist”.
Conversely, New York law provides a more limited scope of practice for a dental hygienist, whose role is primarily focused on preventative dental care. Generally, permitted services include removing deposits and stains, applying topical agents and fluoride, polishing teeth, patient education, charting, impressions, temporary restorations and, subject to applicable certification and requirements, certain anesthesia and nitrous oxide functions. Additional functions may be delegated by a licensed dentist when permitted by law and regulation.
The legal line between the professions is important because delegation does not turn a dental hygienist into a dentist. A dentist cannot simply assign a dental hygienist a procedure that falls outside the dental hygienist’s legal scope of practice. Similarly, a dental hygienist cannot perform a procedure merely because the dentist is busy, unavailable, or has instructed the dental hygienist to do so. Practice owners should therefore be particularly careful about informal arrangements that develop over time in a busy office.
Walking the Line: Steps to Stay Compliant
Practice owners should treat scope-of-practice compliance as an operational issue, not simply a licensing issue. At a minimum, owners should:
- Verify licenses and credentials before hiring. Confirm that dentists, hygienists, and other licensed personnel hold active licenses, registrations, certifications, and any required authorizations for expanded functions, and periodically verify that those credentials remain current.
- Document each employee’s permitted duties. Job descriptions, clinical protocols and delegation policies should track the employee’s actual statutory scope.
- Establish clear supervision protocols. Staff should know which procedures require the dentist’s presence or personal supervision, and which may be delegated.
- Audit clinical workflows. Review who performs examinations, diagnoses, treatment planning, radiographs, anesthesia, restorations and other procedures.
- Control access to clinical equipment, medications and records so that unauthorized personnel cannot independently provide dental treatment.
- Train staff to escalate questions. When a procedure falls outside a hygienist’s clearly defined scope, the answer should be to stop and consult the dentist—not to improvise.
- Monitor marketing and patient communications. Advertising should accurately identify providers by their professional titles and avoid suggesting that hygienists independently provide comprehensive dental treatment.
- Address dental telehealth carefully. New York requires professionals practicing through dental telehealth to be appropriately licensed and registered, and the same substantive professional standards apply regardless of the technology used.
The Botton Line: While New Legislation May Expand Access to Preventative Dental Hygiene Services, the Distinction Between Dentistry and Dental Hygiene Must Be Maintained
For practice owners, the lesson is straightforward: collaborative practice is a carefully defined legal pathway for expanding access to preventive dental hygiene services—not a mechanism for delegating dentistry to a hygienist. Owners contemplating collaborative arrangements should build the agreement, protocols, supervision requirements, referral process and documentation into their compliance program before services begin.
The safest practice is ultimately the simplest one: know who is licensed, know what that license permits, document the boundaries, and make sure the practice’s daily operations follow them. And experienced dental law counsel can assist with employment and independent contractor agreements defining duties and employee handbooks establishing policies.
Questions regarding delegation, supervision requirements, scope of practice, and other regulatory issues continue to present challenges for dental practices of all sizes. The National Dental Law Group at Mandelbaum Barrett PC regularly advises dentists, dental practices, and dental organizations on compliance, employment, operational, and business matters affecting the delivery of dental care.