Can the Georgia Board of Dentistry adopt a rule allowing licensed dental hygienists to administer local anesthesia (including controlled substances and dangerous drugs like Lidocaine) under a dentist's supervision?

Plain-English summary

The Secretary of State (which oversees state professional licensing boards) asked whether the Georgia Board of Dentistry has authority to adopt a rule letting licensed dental hygienists administer local anesthetics. The wrinkle: most local anesthetics used in dental offices are either controlled substances under the Georgia Controlled Substances Act or "dangerous drugs" under the Dangerous Drug Act, and those statutes generally require a "practitioner of the healing arts" to administer them.

Attorney General Thurbert Baker concluded that the Board does have the authority. The opinion turns on three layers of statute working together.

First, O.C.G.A. § 43-11-74(a) lays out the scope of practice for dental hygienists. The 1992 sentence in that section states: "The board shall not delegate to dental hygienists the authority to administer local anesthesia, except that this restriction shall automatically expire July 1, 1992." Read straightforwardly, the General Assembly built in a sunset on the prohibition. After that date, the Board's general rulemaking authority under § 43-11-9 (allowing it to "prescribe by rule or regulation those acts, services, procedures, and practices which may be performed by dental hygienists") could be exercised to authorize local anesthesia administration.

Second, the Controlled Substances Act defines "administer" to include direct application by a "practitioner" or, in the practitioner's presence, "by his authorized agent." O.C.G.A. § 16-13-21(1). Dental hygienists are not themselves "practitioners" under § 16-13-21(23), but if the Board adopts a rule delegating local-anesthesia administration, hygienists would be "authorized agents" who can administer controlled substances in the supervising dentist's presence.

Third, the Dangerous Drug Act (which covers most local anesthetics like Lidocaine and Mepivacaine) bars distribution of dangerous drugs except by a "practitioner of the healing arts." But § 16-13-77 carves out an exception: nothing in that Article "shall be construed to prohibit the administration of dangerous drugs by or under the direction of a practitioner of the healing arts." So a hygienist administering under a dentist's direction is squarely within the carve-out.

Putting the three together: the Board may adopt rules delegating local-anesthesia administration to hygienists, including for drugs that fall under the Controlled Substances Act and the Dangerous Drug Act, as long as the hygienist administers in the supervising dentist's presence (for controlled substances) or under the dentist's direction (for dangerous drugs).

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion confirmed only the Board's authority; it did not require the Board to act. Anyone trying to determine whether a Georgia dental hygienist is currently authorized to administer local anesthetics should look at the current Board of Dentistry rules under chapter 150 of the Georgia Compilation of Rules and Regulations and the current versions of O.C.G.A. § 43-11-74 and the Controlled Substances and Dangerous Drug Acts.

Common questions

Q: Does this opinion mean every Georgia dental hygienist can administer local anesthesia?
A: No. The opinion confirms only that the Board may adopt a rule allowing it. The hygienist's actual authority depends on what the Board's then-current rule says.

Q: Why was this even a question, given the 1992 expiration date?
A: The expiration sunset was buried inside § 43-11-74(a). Because the rest of the statute imposes pretty strict limits on hygienists' scope of practice, dental boards were cautious about pulling the trigger on the new authority. The opinion is essentially a green light from the AG that the statutory prohibition is gone and the Board's general rulemaking authority covers the question.

Q: What about controlled substances? Aren't those especially restricted?
A: Yes, but the Controlled Substances Act's definition of "administer" expressly includes administration "in [the practitioner's] presence, by his authorized agent." A hygienist designated by Board rule as authorized to administer is the dentist's authorized agent for that purpose. The dentist must be present.

Q: What about dangerous drugs (Lidocaine, Mepivacaine)?
A: Most local anesthetics in everyday dental use are dangerous drugs. The Dangerous Drug Act has a broader carve-out: § 16-13-77 says nothing in the Article prohibits administration "by or under the direction of a practitioner of the healing arts." That phrase "under the direction of" is broader than the controlled-substances rule's "in his presence" requirement.

Q: Does the dentist have to be in the room or just on the premises?
A: For controlled substances, the statute requires administration "in [the practitioner's] presence." That suggests the dentist must be physically present (typically read as in the room or close enough to oversee the act). For dangerous drugs, the standard is "under the direction of," which is more flexible. The Board's rule (if and when adopted) would set the operational supervision standard.

Q: Could the Board adopt the rule but limit it (for example, to certain anesthetic agents or to specific clinical settings)?
A: Yes. The opinion notes that the Board's rulemaking is subject to its statutory obligation to "protect and promote the public health and welfare." The Board has discretion to set scope-of-practice conditions, training requirements, and supervision standards.

Background and statutory framework

The Board of Dentistry sits within the Secretary of State's professional licensing structure. Its general rulemaking authority is in O.C.G.A. § 43-11-9, which directs it to "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."

The hygienist-specific scope-of-practice statute, § 43-11-74(a), historically restricted hygienists to a defined set of acts: removing calcareous deposits, applying soothing washes, and other tasks designated by Board rule. It expressly forbade delegation of local-anesthesia administration, but with a sunset: "this restriction shall automatically expire July 1, 1992." After the sunset, the General Assembly left the Board free to expand hygienists' scope by rule.

The Controlled Substances Act (O.C.G.A. §§ 16-13-21 through 16-13-56) and the Dangerous Drug Act (O.C.G.A. §§ 16-13-71 through 16-13-79) regulate who may administer scheduled drugs and dangerous drugs respectively. Both are written around the concept of a "practitioner of the healing arts," but both contemplate administration by an agent or under direction. The opinion threads those provisions together with the dental-hygienist statute to confirm that the Board's rule, once adopted, would not collide with those Acts.

Citations and references

Statutes:
- O.C.G.A. § 43-11-9 (Board's general rulemaking authority for hygienists, assistants)
- O.C.G.A. § 43-11-74 and (a) (hygienist scope of practice; 1992 sunset on local-anesthesia ban)
- O.C.G.A. §§ 16-13-21 through 16-13-56 (Georgia Controlled Substances Act)
- O.C.G.A. § 16-13-21(1) (definition of "administer")
- O.C.G.A. § 16-13-21(23) (definition of "practitioner")
- O.C.G.A. §§ 16-13-71 through 16-13-79 (Dangerous Drug Act)
- O.C.G.A. § 16-13-72(4) (general prohibition on distribution of dangerous drugs)
- O.C.G.A. § 16-13-74 (practitioner authority)
- O.C.G.A. § 16-13-77 (administration carve-out for direction by practitioner)
- O.C.G.A. § 26-4-130(a)(2); § 26-4-5(33) (definitions of practitioner)

Source

• Landing page: https://law.georgia.gov/opinions/2003-1
• Original PDF: not linked from landing page

Original opinion text

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