OAL REGULATORY DETERMINATION

OFFICE OF ADMINISTRATIVE LAW

DETERMINATION OF ALLEGED UNDERGROUND REGULATION

(Summary Disposition)

(Pursuant to Government Code Section 11340.5 and Title 1, section 270, of the California Code of Regulations)

The attachments are not being printed for practical reasons or space considerations. However, if you would like to view the attachments please contact Margaret Molina at (916) 324-6044 or mmolina@oal.ca.gov.

VETERINARY MEDICAL BOARD

On January 11, 2012, the Office of Administrative Law (OAL) received your petition asking for a determination as to whether the Veterinary Medical Board's (Board) inclusion of the use of scalers to clean animal teeth as the practice of veterinary medicine. The Board has issued several letters advising practitioners of "anesthesia-free dentistry"¹ that the use of a scaler to clean an animal's teeth is a dental operation that is within the scope of the practice of veterinary medicine constitutes an underground regulation. An example of the letters, with personal information redacted, is attached as Exhibit A. You argue that there is no intention in statute or regulation to include anesthesia-free dentistry as within the scope of practice of veterinary medicine. You argue that the Board impermissibly expanded on the definition of "dental operation" as used in Business and Professions Code section 4826.

Business and Professions Code section 4826 states, in relevant part:

A person practices veterinary medicine, surgery, and dentistry, and the various branches thereof, when he or she does any one of the following:

….

(d) Performs a surgical or dental operation upon an animal.

…

The Board adopted California Code of Regulations, title 16, section 2037 to implement and make specific Business and Professions Code section 4826. Section 2037 provides:

The term "dental operation" as used in Business and Professions Code section 4826 means:

(1) The application or use of any instrument or device to any portion of an animal's tooth, gum or any related tissue for the prevention, cure or relief of any wound, fracture, injury or disease of an animal's tooth, gum or related tissue; and

(2) Preventive dental procedures including, but not limited to, the removal of calculus, soft deposits, plaque, stains or the smoothing, filing or polishing of tooth surfaces.

(3) Nothing in this regulation shall prohibit, however, any person from utilizing cotton swabs, gauze, dental floss, dentifrice, toothbrushes or similar items to clean an animal's teeth.

In issuing a determination, OAL renders an opinion only as to whether a challenged rule is a "regulation" as defined in Government Code section 11342.600,² which should have been, but was not adopted pursuant to the Administrative Procedure Act (APA).³ Nothing in this analysis evaluates the advisability or the wisdom of the underlying action or enactment. OAL has neither the legal authority nor the technical expertise to evaluate the underlying policy issues involved in the subject of this determination.

Generally, a rule which meets the definition of "regulation" in Government Code section 11342.600 is required to be adopted pursuant to the APA. In some cases, however, the Legislature has chosen to establish exemptions from the requirements of the APA. Government Code section 11425.60 states:

(a) A decision may not be expressly relied on as precedent unless it is designated as a precedent decision by the agency.

(b) An agency may designate as a precedent decision a decision or part of a decision that contains a significant legal or policy determination of general application that is likely to recur. Designation of a decision or part of a decision as a precedent decision is not rulemaking and need not be done under Chapter 3.5 (commencing with Section 11340). An agency's designation of a decision or part of a decision, or failure to designate a decision or part of a decision, as a precedent decision is not subject to judicial review.

(c) An agency shall maintain an index of significant legal and policy determinations made in precedent decisions. The index shall be updated not less frequently than annually, unless no precedent decision has been designated since the last preceding update. The index shall be made available to the public by subscription, and its availability shall be publicized annually in the California Regulatory Notice Register.

(d) This section applies to decisions issued on or after July 1, 1997. Nothing in this section precludes an agency from designating and indexing as a precedent decision a decision issued before July 1, 1997. [Emphasis added.]

In May and June of 2002, the Board cited two persons for using a scaler to remove plaque from a dog's teeth in violation of Business and Professions Code section 4826, The matter was appealed, and on September 20, 2004, the Administrative Law Judge hearing the matter issued a proposed decision which addressed the use of scalers to clean an animal's teeth. On October 14, 2004, the Board accepted and adopted the decision as the decision of the Director of the Department of Consumer Affairs, Veterinary Medical Board. On October 20, 2005, the Board adopted this decision as a precedent decision.⁴ The decision stated:

….

Respondent argues that a metal scaler is similar in nature to the items enumerated in subdivision (3) above [of California Code of Regulations, title 16, section 2037], thus putting use of this instrument outside the definition [of] dental operation. Respondent is wrong on this point. The items listed in subdivision (3) are all soft material items, items that a lay person could easily use without fear of harming the pet. The metal scaler is not at all similar to these items. It is a curved steel pick with a sharp point which, according to expert testimony, common sense, and Respondent's own words, could harm an animal unless great care is taken in its use.…

The Administrative Law Judge in this matter concluded that the use of the scaler "…falls squarely within the statutory definition of a dental operation. …"

The Board has adopted a precedent decision that directly addresses the issue of whether the use of a scaler is within the definition of a "dental operation." The adoption of this decision was done in compliance with Government Code section 11425.60.⁵ The letters sent by the Board advising practitioners of "anesthesia-free dentistry" that the use of a scaler to clean an animal's teeth is a dental operation that is within the scope of the practice of veterinary medicine are consistent with the precedent decision. Thus the letters do not constitute an underground regulation.⁶

The issuance of this summary disposition does not restrict your right to adjudicate the alleged violation of section 11340.5 of the Government Code.

/s/

Debra M. Cornez
Assistant Chief Counsel/Acting Director

/s/
Kathleen Eddy
Senior Counsel

Copy: Susan Geranen

_____

¹ "Anesthesia-free dentistry" is the use of metal tools of various shapes and sizes, called scalers, to remove plaque from the teeth of animals, usually dogs and cats.

² "Regulation" means every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.

³ Such a rule is called an "underground regulation" as defined in California Code of Regulations, title 1, section 250, subsection (a):

"Underground regulation" means any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation as defined in section 11342.600 of the Government Code, but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA and is not subject to an express statutory exemption from adoption pursuant to the APA.

⁴ The Administrative Law Judge's decision and the adoption of the decision as a precedent decision are attached as Exhibit B.

⁵ Government Code section 11425.60 requires the agency adopting a precedent decision to compile an index of its decisions and publish it in the California Regulatory Notice Register. The Board published the index on March 9, 2012. While the publication was not timely, this defect has been cured.

⁶ The rule challenged by your petition is the proper subject of a summary disposition letter pursuant to title 1, section 270 of the California Code of Regulations. Subdivision (f) of section 270 provides:

(f)(1) If facts presented in the petition or obtained by OAL during its review pursuant to subsection (b) demonstrate to OAL that the rule challenged by the petition is not an underground regulation, OAL may issue a summary disposition letter stating that conclusion. A summary disposition letter may not be issued to conclude that a challenged rule is an underground regulation.

(2) Circumstances in which facts demonstrate that the rule challenged by the petition is not an underground regulation include, but are not limited to, the following:

(A) The challenged rule has been superseded.

(B) The challenged rule is contained in a California statute.

(C) The challenged rule is contained in a regulation that has been adopted pursuant to the rulemaking provisions of the APA.

(D) The challenged rule has expired by its own terms.

(E) An express statutory exemption from the rulemaking provisions of the APA is applicable to the challenged rule.

[Emphasis added.]