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Official Opinion 2003-1

Official Opinion 2003-1

January 9, 2003
To: 

Secretary of State

Re: 

The Georgia Board of Dentistry is authorized by O.C.G.A. § 43-11-74 to promulgate rules to permit delegating the administration of local anesthesia to dental hygienists under the supervision of a practitioner, so long as that determination is consistent with the Boards statutory obligation under its rule-making authority to protect and promote the public health and welfare of the citizens of this state and is deemed appropriate by the Board.

You have asked for my official opinion whether the Georgia Board of Dentistry (hereafter “the Board”) is authorized under state law to allow by rule and regulation licensed dental hygienists to administer local anesthesia. Specifically, you have asked if the Board can allow dentists to delegate the administration of local anesthesia to dental hygienists even when the anesthetic to be administered is considered a dangerous drug as defined by the Dangerous Drug Act, O.C.G.A. §§ 16-13-71 through –79, or a controlled substance as defined by the Georgia Controlled Substances Act, O.C.G.A. §§ 16-13-21 through -56.

The authority of the Board to prescribe by rule or regulation those acts which may be performed by dental hygienists can be found at O.C.G.A. § 43-11-9, which states:

In order to protect and promote the public health and welfare of the citizens of this state, the board shall prescribe by rule or regulation those acts, services, procedures, and practices which may be performed by dental hygienists, dental assistants, or other persons at the direction of and under the supervision of a licensed dentist and shall impose such requirements and restrictions, including the degree of supervision required, on the performance thereof by such dental hygienists, dental assistants, and other persons as it shall deem necessary and proper.

Subsection (a) of O.C.G.A. § 43-11-74 is specific to the scope of duties of dental hygienists:

Dental hygienists shall perform their duties only under the direct supervision of a licensed dentist. No dental hygienist shall diagnose, prescribe, determine the initial dosage, or increase the initial dosage of nitrous oxide, practice dentistry or do any kind of dental work other than to remove calcareous deposits, secretions, and stains from the surfaces of the teeth, to apply ordinary wash or washes of a soothing character, and to perform those acts, services, procedures, and practices which the board shall prescribe by rule or regulation. The board shall not delegate to dental hygienists the authority to administer local anesthesia, except that this restriction shall automatically expire July 1, 1992.

(Emphasis supplied.) It is my opinion that the last sentence of O.C.G.A. § 43-11-74 regarding the administration of local anesthesia by dental hygienists, and particularly the highlighted portion, sets forth the clear intention of the legislature for the Board to have authority to delegate the administration of local anesthesia to dental hygienists after July 1, 1992.

Having concluded that the legislature has granted to the Board the authority to delegate the administration of local anesthesia to dental hygienists, I will now address your question specifically with respect to controlled substances and dangerous drugs.

As used in the Controlled Substances Act, the term “administer” means “the direct application of a controlled substance, whether by injection, inhalation, ingestion, or by any other means, to the body of a patient or research subject by . . . [a] practitioner or, in his presence, by his authorized agent . . . .” O.C.G.A. § 16-13-21(1).

Dental hygienists are not specifically included under the definition of “practitioner” set forth in O.C.G.A. § 16-13-21(23); however, dental hygienists would be considered “authorized agents” if the Board promulgated rules delegating the administration of local anesthesia to them. In that event, dental hygienists could administer local anesthetics, which are categorized as controlled substances, to patients so long as it was done in the presence of a dentist.

It is my understanding that most local anesthetics used in dental offices are categorized as dangerous drugs such as Lidocaine and Mepivacaine. O.C.G.A. § 16-13-72(4) states that it is unlawful for any person, corporation, firm, or association to sell, give away, barter, exchange, distribute or possess in this state any dangerous drug except a practitioner of the healing arts may possess dangerous drugs and may sell, give away, barter, exchange, or distribute the same in accordance with O.C.G.A. § 16-13-74.

While the Dangerous Drug Act does not specifically define the term “practitioner of the healing arts,” it is variously defined by O.C.G.A. §§ 16-13-21(23), 26-4-130(a)(2), and 26-4-5(33) to include dentists and any other person licensed and authorized under the laws of this state to use, mix, prepare, dispense, prescribe, and administer drugs including controlled substances in connection with medical treatment to the extent provided by the laws of this state.

While dental hygienists are not considered to be “practitioners of the healing arts” under the laws of the state of Georgia with respect to dangerous drugs or controlled substances, according to O.C.G.A. § 16-13-77 nothing in the Dangerous Drugs Article shall be construed to prohibit the administration of dangerous drugs by or under the direction of a practitioner of the healing arts. Thus, dental hygienists, if permitted by Board rule to do so, may administer local anesthetics that are categorized as dangerous drugs to patients under the direction of a dentist.

Therefore, it is my official opinion that the Georgia Board of Dentistry is authorized, and has been since July 1, 1992, to promulgate rules to permit delegating the administration of local anesthesia to dental hygienists under the supervision of a practitioner, so long as that determination is consistent with the Board’s statutory obligation under its rule-making authority to protect and promote the public health and welfare of the citizens of this state and is deemed appropriate by the Board.

Prepared by:

ALLYSON GUY KRAUSE
Assistant Attorney General