Can Tennessee dentists give Botox and dermal-filler injections in the mouth and maxillofacial area without practicing medicine?

Subject

Opinion No. 14-51, Use of Botox, Other Neurotoxins, and Dermal Fillers by a General Dentist, April 24, 2014

Plain-English summary

Representative Bob Ramsey asked two questions: (1) whether the practice-of-dentistry definition in Tenn. Code Ann. § 63-5-108 is broad enough to include injecting Botox, other FDA-approved neurotoxins, and dermal fillers into the oral cavity, maxillofacial area, and adjacent structures (so that the Board of Dentistry may permit it by rule), and (2) whether those injections fall within the exclusive purview of the practice of medicine or osteopathic medicine. The AG said yes to (1) and no to (2).

The key was the 2003 amendment to § 63-5-108. Before 2003, dentistry was defined narrowly by reference to teeth, jaws, and "associated structures." The Tennessee Court of Appeals in Tenn. Med. Ass'n v. Tenn. Bd. of Dentistry, 2001 WL 839032 (the "Dentistry" case), struck down a Board of Dentistry declaratory order that had blessed face lifts, nose jobs, and eye lifts as within an oral and maxillofacial surgeon's scope, holding that "the definition of dentistry contained in Tennessee Code Annotated § 63-5-108(a)(1) does not blanketly authorize a dentist, even an oral and maxillofacial surgeon, to perform cosmetic procedures such as face lifts and nose jobs."

The 2003 General Assembly (2003 Tenn. Pub. Acts, ch. 237) rewrote § 63-5-108(a) to define dentistry as "the evaluation, diagnosis, prevention and/or treatment, by nonsurgical, surgical or related procedures, of diseases, disorders and/or conditions of the oral cavity, maxillofacial area and/or the adjacent and associated structures and their impact on the human body." The broader language captures the very procedures the older statute did not.

The AG concluded the post-2003 statutory definition is broad enough to encompass Botox, other FDA-approved neurotoxins, and dermal fillers injected into the oral cavity, maxillofacial area, and adjacent and associated structures by a qualified dentist, whether for therapeutic or cosmetic purposes. The Board of Dentistry's current rules at 0460-02-.06(8)(c)10-11 already include lip augmentation and Botox injections within the specialty practice of Oral and Maxillofacial Surgery. The AG also confirmed those procedures are not within the exclusive purview of medicine or osteopathic medicine under Title 63, Chapters 6 or 9. So the Board may, by rule, allow general dentists (not just oral and maxillofacial surgeons) to perform them, while imposing educational, training, and experience requirements under §§ 63-5-105(7) and 63-5-108.

The AG noted the limit set by Tasco Developing & Bldg. Corp. v. Long, 368 S.W.2d 65 (Tenn. 1963): an administrative agency cannot rewrite the statutory definition of its regulated practice. The Cady, Podiatry, and Dentistry cases each show the Court of Appeals enforcing that limit when a board has stretched its scope-of-practice rules past statutory text. The 2003 amendment moves the statutory text far enough that Botox and dermal-filler injections in the relevant areas now fit comfortably within it.

Currency note

This opinion was issued in 2014. 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

What did the 2003 amendment change?

It replaced the older definition of dentistry (treatment of "any disease, pain, deformity, deficiency, injury or physical condition of the human teeth or jaws or associated structures") with a much broader definition covering diseases, disorders, and conditions of "the oral cavity, maxillofacial area and/or the adjacent and associated structures and their impact on the human body."

Does this mean a general dentist can do Botox in any clinical setting?

The AG said the Board of Dentistry "may, within its discretion, promulgate a rule allowing such procedures to be performed by general dentists." The opinion does not bless dentists practicing Botox without board authorization. Tenn. Comp. R. & Regs. 0460-02-.06(8)(c)10-11 placed lip augmentation and Botox within oral and maxillofacial surgery specifically; expanding that to general dentists is a discretionary Board call.

What training requirements may the Board impose?

The opinion says that in allowing these procedures the Board "is vested by Tenn. Code Ann. §§ 63-5-105(7) and 63-5-108 with authority to impose educational, training, and experience requirements upon those licensees who would engage in such practice." It does not spell out particular requirements; that is left to the Board's rule-making discretion.

Are face lifts and nose jobs now within dentistry too?

The 2001 Dentistry decision said no based on the pre-2003 statute. The 2003 amendment did not specifically address face lifts and nose jobs, and the AG opinion focuses on Botox, neurotoxins, and dermal fillers in the oral cavity and maxillofacial area. Whether the broader 2003 definition reaches full cosmetic surgery procedures outside the maxillofacial area is a different question not addressed here.

Does this overlap with the medical or osteopathic practice acts?

The AG said the Botox and dermal-filler procedures at issue do not fall within the exclusive purview of medicine or osteopathic medicine under Title 63, Chapters 6 or 9. The same procedures may be performed by physicians; what the opinion settles is that they may also be performed by qualified dentists. They are not reserved to physicians alone.

Background and statutory framework

The Dental Practice Act, Tenn. Code Ann. § 63-5-101 et seq., gives the Board of Dentistry authority to license and regulate the practice of dentistry in Tennessee. § 63-5-105(7) is the general rule-making provision. § 63-5-108 defines dentistry and the practice of dentistry. Under the Uniform Administrative Procedures Act (§ 4-5-223(a)), the Board may issue declaratory orders interpreting its statute or rules within its primary jurisdiction.

Tennessee courts have repeatedly invalidated health-board attempts to define regulated practices more broadly than the statute allows. Cady (veterinary medicine, equine artificial insemination), Podiatry (ankle treatment), and the 2001 Dentistry case (face lifts, nose jobs, eye lifts) form a line: a board cannot legislate scope of practice in defiance of the statutory definition. The 2003 amendment was the General Assembly's legislative response, broadening the definitional text far enough to reach the procedures and specialties at issue.

Citations

• Tenn. Code Ann. § 63-5-105(7) (Board rule-making authority)
• Tenn. Code Ann. § 63-5-108 (definition of dentistry; 2003 amendment)
• Tenn. Code Ann. § 63-5-108(a)(1) (pre-2003 narrower definition referenced in Dentistry case)
• Tenn. Code Ann. § 63-5-108(b)(1) (activities within practice of dentistry)
• Tenn. Code Ann. § 4-5-223(a) (UAPA declaratory orders)
• Tenn. Comp. R. & Regs. 0460-02-.06(8)(c)10-11 (Board of Dentistry rule on Botox and lip augmentation within oral and maxillofacial surgery)
• Tasco Developing & Bldg. Corp. v. Long, 368 S.W.2d 65 (Tenn. 1963) (Tennessee Supreme Court; agency cannot expand statutory definitions by rule)
• Cady v. Tenn. Bd. of Veterinary Med. Exam'rs, No. M2008-02551-COA-R3-CV, 2009 WL 2707398 (Tenn. Ct. App. Aug. 27, 2009) (Tennessee Court of Appeals; rule invalid where outside statutory definition)
• Tenn. Med. Ass'n v. Bd. of Registration in Podiatry, 907 S.W.2d 820 (Tenn. Ct. App. 1995) (Tennessee Court of Appeals; ankle treatment beyond podiatry definition)
• Tenn. Med. Ass'n v. Tenn. Bd. of Dentistry, No. M1999-02279-COA-R3-CV, 2001 WL 839032 (Tenn. Ct. App. July 25, 2001) (Tennessee Court of Appeals; face lifts and nose jobs beyond pre-2003 dentistry definition)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-051.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 24, 2014
Opinion No. 14-51
Use of Botox, Other Neurotoxins, and Dermal Fillers by a General Dentist

QUESTIONS

1. Are the definitions of dentistry and the practice of dentistry in Tenn. Code Ann. § 63-5-108 broad enough to encompass the injection of Botox, other neurotoxins approved by the federal Food and Drug Administration ("FDA"), and dermal fillers into a patient's oral cavity, maxillofacial area, and/or adjacent and associated structures by a dentist trained to do so, whether for therapeutic or cosmetic purposes, such that the Tennessee Board of Dentistry may so permit by rule?

2. Does the injection of Botox, other FDA-approved neurotoxins, or dermal fillers into a patient's oral cavity, maxillofacial area, and/or adjacent and associated structures, whether for therapeutic or cosmetic purposes, fall within the exclusive purview of the practice of medicine or osteopathic medicine under Chapters 6 or 9 of Title 63 of the Tennessee Code?

OPINIONS

1. Yes.

2. No.

ANALYSIS

Tenn. Code Ann. § 63-5-105(7) authorizes the Tennessee Board of Dentistry ("Board") to "make such rules and regulations . . . as are necessary to carry out and make effective the provisions of [the Dental Practice Act]." An administrative agency such as the Board is also authorized to issue declaratory orders with respect to the applicability of a statute, rule, or order within its primary jurisdiction. Tenn. Code Ann. § 4-5-223(a). But an agency is not free to change or expand the definition of statutory terms by regulation or otherwise.

Of course, an administrative body . . . which is given legislative power to make rules and regulations does not have the power to make a rule or regulation which is inconsistent with . . . other law on the subject, and it does not include the authority to enact laws, or to make rules affecting or creating substantive rights.

Tasco Developing & Bldg. Corp. v. Long, 368 S.W.2d 65, 67 (Tenn. 1963) (emphasis added).

The Tennessee Court of Appeals has had occasion to apply this principle to invalidate a health-related board's interpretation of the definition of a regulated practice. See, e.g., Cady v. Tenn. Bd. of Veterinary Med. Exam'rs, No. M2008-02551-COA-R3-CV, 2009 WL 2707398, at 7 (Tenn. Ct. App. Aug. 27, 2009) (holding board's rule invalid because statutory definition of "practice of veterinary medicine" did not include artificial insemination and pregnancy testing of horses); Tenn. Med. Ass'n v. Bd. of Registration in Podiatry, 907 S.W.2d 820, 822 (Tenn. Ct. App. 1995) (affirming reversal of board's declaratory order because definition of "podiatrist" did not include treatment of the ankle). As pertinent here, in Tenn. Med. Ass'n v. Tenn. Bd. of Dentistry, No. M1999-02279-COA-R3-CV, 2001 WL 839032 (Tenn. Ct. App. July 25, 2001) ("Dentistry"), the court affirmed the reversal of a declaratory order of the Board of Dentistry in which the board determined that "eye lifts, nose jobs, face lifts and similar procedures" could be performed by an oral and maxillofacial surgeon within the scope of his license to practice dentistry. Id. at 4, *9. The court held that these cosmetic procedures did not fall within the statutory definition of the practice of dentistry.

In this case, the statute defines the practice of dentistry as the diagnosis and treatment of "any disease, pain, deformity, deficiency, injury or physical condition of the human teeth or jaws or associated structures." See Tenn. Code Ann. § 63-5-108(a)(1). Dr. Hunter's specialty, oral and maxillofacial surgery, is a specialty that must fit within this definition of dentistry.

. . . .

As it is written, the Board's declaratory order appears to be a blanket authorization for Dr. Hunter, a dentist, to advertise and perform in his office eye lifts, nose jobs, face lifts and other such procedures normally performed by a licensed physician specializing in plastic surgery. The amici brief rightly notes that oral and maxillofacial surgeons such as Dr. Hunter frequently must participate in treating patients who have suffered facial trauma or other problems that necessitate extensive reconstructive surgery, and that there is not always a "bright line" distinction in the responsibilities of a physician who is a plastic surgeon and a dentist who is an oral and maxillofacial surgeon such as Dr. Hunter. We recognize that this is necessary and that an oral and maxillofacial surgeon may perform some aspects of these cosmetic procedures in some instances. We hold merely that the definition of dentistry contained in Tennessee Code Annotated § 63-5-108(a)(1) does not blanketly authorize a dentist, even an oral and maxillofacial surgeon, to perform cosmetic procedures such as face lifts and nose jobs. Consequently, we affirm the Chancery Court's reversal of the decision of the Board of Dentistry. We do not hold that an oral and maxillofacial surgeon such as Dr. Hunter may never perform any aspect of such cosmetic procedures, nor do we address the parameters under which such procedures may be performed. We hold only that the broad authorization contained in the Board's declaratory order is contrary to Tennessee Code Annotated § 63-5-108(a)(1). The remaining issues raised on appeal are pretermitted.

Id. at *8.

Tenn. Code Ann. § 63-5-108 was amended in 2003. See 2003 Tenn. Pub. Acts, ch. 237. Dentistry is now defined as:

the evaluation, diagnosis, prevention and/or treatment, by nonsurgical, surgical or related procedures, of diseases, disorders and/or conditions of the oral cavity, maxillofacial area and/or the adjacent and associated structures and their impact on the human body, provided by a dentist within the scope of such dentist's education, training, and experience, in accordance with the ethics of the profession and applicable law.

Tenn. Code Ann. § 63-5-108(a). Activities deemed to be within the practice of dentistry likewise include "[d]iagnos[ing], prescrib[ing] for or treat[ing] any disease, pain, deformity, deficiency, injury, disorder and condition of the oral cavity, maxillofacial area and the adjacent and associated structures and their impact on the human body." Id. § 63-5-108(b)(1).

The Board of Dentistry's current rules provide that lip augmentation and injections of Botox or future FDA-approved neurotoxins fall within the specialty dental practice of Oral and Maxillofacial Surgery. Tenn. Comp. R. & Regs. 0460-02-.06(8)(c)10-11. As the court observed in Dentistry, oral and maxillofacial surgery "is a specialty that must fit within [the] definition of dentistry." 2001 WL 839032, at *8. And indeed, given the 2003 amendment, the statutory definition of dentistry (and the practice of dentistry) is broad enough to encompass the use and injection of Botox, other FDA-approved neurotoxins, and dermal fillers into the oral cavity, maxillofacial area, and/or adjacent and associated structures by a dentist qualified to do so, whether for therapeutic or cosmetic purposes. No basis can be found on which to conclude that such procedures lie within the exclusive purview of the practice of medicine or osteopathic medicine. The Tennessee Board of Dentistry therefore may, within its discretion, promulgate a rule allowing such procedures to be performed by general dentists; in doing so the board is vested by Tenn. Code Ann. §§ 63-5-105(7) and 63-5-108 with authority to impose educational, training, and experience requirements upon those licensees who would engage in such practice.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

SUE A. SHELDON
Senior Counsel

Requested by:
The Honorable Bob Ramsey
State Representative
212 War Memorial Building
Nashville, Tennessee 37243