Did a South Carolina school dental hygienist need a dentist’s authorization for each student?

Plain-English summary

A Senate committee staff member asked whether South Carolina's 2000 school dental hygiene law allowed one blanket dentist authorization for procedures on many students. The 2001 informal opinion deferred to the Dentistry Board and licensing department's view that authorization should identify each patient. That reading required a dentist's authorization for procedures on each child, rather than a general approval for a group. The AG described the board's interpretation as reasonable and found no clear legislative intent against it.

The law allowed licensed hygienists in school settings to apply topical fluoride, sealants, and oral prophylaxis under general supervision, with parental written permission. General supervision did not require the dentist's physical presence. The letter addressed the separate issue of how specifically the dentist had to authorize the work.

Currency note

This opinion was issued in 2001. 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.

Common questions

Q: Was a blanket authorization enough for a school dental program?
A: Under the regulatory interpretation the AG adopted in 2001, no. The authorization should identify each patient whose procedure was approved.

Q: Did the dentist have to be present while a hygienist performed the procedure?
A: No. The statutory definition of general supervision quoted in the letter expressly dispensed with that presence requirement.

Q: Did parent permission replace dentist authorization?
A: No. The law quoted in the letter required written permission from a parent or guardian and separately required general supervision by an authorizing dentist.

Q: Did the AG say patient-specific approval was the only possible reading of the words?
A: No. It deferred to the enforcing agencies' reasonable interpretation and noted the lack of contrary clear legislative intent.

Background and statutory framework

Act No. 298 amended the school-setting provision and defined general supervision. The opinion applied the Dentistry Board's and Department of Labor, Licensing, and Regulation's interpretation to the phrase “authorized the procedures to be performed.”

Citations and references

• Section 40-15-80
• Section 40-15-85
• Logan v. Leatherman

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/february-5-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01feb-5-sox.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
C H A RLI E C ON DON
ATTO RNEY GENERA L

February 5, 2001
Lisa Manini Sox, Director of Research
Senate Medical Affairs Committee
213 Gressette Building
Columbia, South Carolina 29202

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RE: Informal Opinion
Dear Ms. Sox,
By your letter of January 25, 2001 , you have requested an opinion of this Office concerning Act No. 298, which was passed by the General Assembly in May of 2000. The Act permits licensed dental hygienists to perform certain procedures without the presence of a dentist in school settings. You have asked ifthe Act's requirement that dental hygienists work under the "general supervision" of a dentist who has "authorized the procedures to be performed" means that the dentist must provide specific authorization on a case by case basis. Act No. 298, 2000 Acts and Joint Resolutions, amended South Carolina Code of Laws Section 40-15-80 to read, in part:

In school settings, licensed dental hygienists may apply topical fluoride and may perform the application of sealants and oral prophylaxis under general supervision, with written permission of the student's parent or guardian. Section 2 of Act No. 298 amended South Carolina Code of Laws Section 40-15-85 to define "general supervision'' by the following: The term 'general supervision' means that a licensed dentist or the South Carolina Department of Health and Environmental Control ' s public health dentist has authorized the procedures to be performed but does not require that a dentist be present when the procedures are performed. General supervision is not applicable to the practice of dental hygiene in a private dental office.

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Ms. Sox
February 5, 2001
Page 2of3
The question turns on whether the phrase "authorized the procedures to be performed" in the above definition requires a dentist's authorization for procedures on each specific child or, read broadly, requires a single blanket authorization for procedures to be performed on numerous children.

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This question has been addressed by both South Carolina's Board of Dentistry and Department of Labor, Licensing, and Regulation (LLR). We are informed that the Board of Dentistry's position, as related to the Deputy General Counsel at LLR in a letter dated September 21, 2000, is that the language in the statute implies the issuance of an authorization form specifically identifying the patient for whom the work is authorized. In a memorandum dated November 28, 2000, the General Counsel for LLR concluded that the Dentistry Board's interpretation is a "reasonable construction of the statute under the circumstances," stating: Work authorization forms have been required in the practice of dentistry in the past to authorize the performance of certain tasks by auxiliary dental practitioners, such as dental technicians or orthodontics technicians. (See e.g. Sections 40-15-290, -300, -310, -330, -340, and Regualtion 39-8) The Board of Dentistry has expected in all these contexts that such authorizations include specific identification of the patient by name, among other things. Their position appears reasonable given the fact that authorized procedures. including many of those performed by dental hygienists, require an examination of the patient by the dentist in order to determine the appropriateness of the authorized work.

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As a matter of policy this Office typically defers to the administrative interpretation by the agency charged with enforcement of the statute in question. As was emphasized in an earlier opinion of our Office:"construction ofa statute by the agency charged with executing it is entitled to the most respectful consideration [by the courts] and should not be overruled absent cogent reasons." Op. Atty. Gen., October 20, 1997, quoting Logan v. Leatherman, 290 S. C. 400, 351S.E.2d146, 148 ( 1986). The courts have stated that it is not necessary that the administrative agency's construction be the only reasonable one or even the reading the court would have reached if the question initially had arisen in a judicial proceeding. Ill. Commerce Comm. v. Interstate Commerce Commission, 749 F.2d 825 (D. C. Cir. 1984). Given the precedence by the Board of Dentistry requiring authorization for work performed on a specific patient, the protective nature of the interpretation by seeking to ensure that the procedures should, in fact, be performed on a particular patient, and the lack of clear legislative intent to the contrary, we are constrained to defer to the Board of Dentistry and LLR in their interpretation that authorization should be given for each patient for dental procedures performed in school settings pursuant to Section 40-15-80 (B). This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the

Ms. Sox
February 5, 2001
Page 3of3
manner of a formal opinion.
With kind regards, I remain
Very truly yours,

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Susannah Cole
Assistant Attorney General