Com. v. Nesbit

• Decision Date: 01 June 1990
• Citation: 575 A.2d 633,394 Pa.Super. 287
• Parties: COMMONWEALTH of Pennsylvania v. James B. NESBIT, Appellant.
• Court: Pennsylvania Superior Court

Page 633

575 A.2d 633

394 Pa.Super. 287

COMMONWEALTH of Pennsylvania v. James B. NESBIT, Appellant.

Superior Court of Pennsylvania.

Argued April 3, 1990.

Filed June 1, 1990.

Thomas A. Thornton, Harrisburg, for appellant.

John G. Gabriel, Asst. Dist. Atty., Harrisburg, for Com., appellee.

Before CIRILLO, President Judge and BECK and HESTER, JJ.

HESTER, Judge:

James Nesbit appeals from the May 16, 1989 judgment of sentence to pay the costs of prosecution imposed following his conviction of forty-three counts of violating the Medicaid Fraud and Abuse Act and forty-three counts of violating The Dental Law, 63 P.S. §§ 120, et seq. ¹ We affirm.

Appellant is a dentist who for the past decade has operated a dental practice dedicated to serving the disadvantaged residents of a poor neighborhood in Harrisburg. Most of appellant's patients are public assistance recipients for whom the Department of Public Welfare pays for dental services.

After initiating an inquiry into a substandard service complaint received against appellant, ² the Pennsylvania Attorney General's Office discovered that appellant had employed unlicensed individuals to perform dental services which must be performed by licensed personnel and that appellant submitted invoices to the Department of Public Welfare for the performance of those services. The total amount billed to the Welfare Department by appellant for the services provided by unlicensed personnel was $586.00 over a six-year period. Appellant was charged with one hundred and sixty counts of medicaid fraud and forty-three violations of The Dental Law. A jury trial was held December 5 to 9, 1988, where the following evidence was presented.

Two of the three individuals employed by appellant as dental assistants testified during the trial that they performed a prophylaxis service on thirty-seven of appellant's patients identified in the criminal information. They also stated that appellant did not perform any part of the prophylaxis service on those patients to the best of their recollection.

The prosecution also produced two expert witnesses, both dentists, who testified that the service performed by and described at trial by appellant's dental assistants was indeed a prophylaxis service. They stated that such a procedure must be performed by either a licensed dental hygienist or dentist according to a regulation of the Dental Council and Examination Board ("Board") set forth at 49 Pa.Code § 33.201 and section 10 of The Dental Law, 63 P.S. § 129(e). The Commonwealth also established that none of the three dental assistants was licensed as either a dental hygienist or a dentist.

Following the close of the evidence, the jury convicted appellant of forty-three of the charges of medicaid fraud and all forty-three violations of The Dental Law. Timely post-trial motions were filed and then denied. This appeal followed.

Appellant argues first that The Dental Law is unconstitutionally vague in its definition of the duties reserved for performance by licensed hygienists. Appellant contends that the language of the statute does not delineate whether the duty of cleaning teeth above and below the gum line is reserved exclusively for a licensed dental hygienist or whether an unlicensed practitioner, for instance, may perform a portion of the hygienist's functions.

Appellant was convicted of violating section 10 of The Dental Law, 63 P.S. § 129(e), which provides as follows:

(e) It is unlawful for a person practicing dentistry to employ a person as a dental hygienist unless such person is licensed as a dental hygienist as required by this act and the rules and regulations of the board.

A dental hygienist is defined in section 1 of The Dental Law, 63 P.S. § 121, as follows:

One who is legally licensed as such by the said Dental Council and Examining Board to perform those educational, preventive, and therapeutic services and procedures that licensed dental hygienists are educated to perform. Licensed dentists may assign to their employed dental hygienists intra-oral procedures which the hygienists have been educated to perform and which require their professional competence and skill but which do not require the professional competence and skill of the employer-dentist. Such assignments shall be under the supervision of a licensed dentist.... The board shall issue rules setting forth the necessary education and defining the procedures that may be performed by dental hygienists licensed under this Act including those procedures that may be performed under direct and general supervision.

(Footnote omitted). The Board defines the procedures which a dental hygienist may perform.

Dental hygienist --One who is legally licensed as such by the Board to remove tartar, deposits, accretions, and stains from the exposed surfaces of the teeth and directly beneath the free margin of the gums and to make application of medicaments as defined and approved by the Board to the exposed surfaces of the teeth for the prevention of dental caries, in the office of a dentist, in any public or private institutions ... or in state health care under the general supervision of a licensed and registered dentist.

49 Pa.Code § 33.201.

Scaling, root planing, polishing, or any other procedure required to remove tartar deposits, accretions, and stains from the exposed surfaces of the teeth and directly below the free margin of the gums shall be performed by a licensed and registered dentist or dental hygienist.

49 Pa.Code § 33.214.

The role of an unlicensed dental assistant, or "auxiliary" according to the regulations, is not defined by the statute. Section 33.41 of title 49 of the Pennsylvania Code sets forth the following as the permitted functions for an auxiliary:

(a) A legally licensed and registered dentist may delegate to competent auxiliary personnel those procedures for which the dentist exercises direct supervision and full responsibility, except as follows:

(1) Those procedures which require professional judgment and skill such as diagnosis and treatment planning and the cutting of hard or soft tissues, or both, or any intra-oral procedure which would lead to the fabrication of an appliance which when worn by the patient, would come in direct contact with hard or soft tissue and which could result in tissue irritation or injury.

(2) Those procedures allocated by the Act to registered dental hygienists.

(Emphasis added). Thus, it is clear that the unlicensed dental assistant or auxiliary may not perform procedures reserved for the professional expertise of dentists or hygienists.

A vagueness challenge to a statute may be presented in one of two ways: (1) the statute is vague on its face, measured against hypothetical conduct that the language could arguably embrace (facial vagueness) or (2) the language is vague regarding the particular conduct of the individual challenging the statute (vagueness-as-applied). Oppenheim v. Commonwealth, 74 Pa.Cmwlth. 200, 459 A.2d 1308 (1983). Absent the assertion of an infringement of first amendment freedoms, however, the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged. Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976). Since appellant has not claimed a first amendment infringement, we will consider his argument a vagueness-as-applied challenge to The Dental Law.

The Dental Law is undoubtedly a penal statute. Snell v. Commonwealth, 490 Pa. 277, 416 A.2d 468 (1980). In Commonwealth v. Heinbaugh, supra, the supreme court set forth the standard by which a penal statute must be evaluated in a void-for-vagueness challenge. The court stated that the terms of such a statute must be "sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties." Id., 467 Pa. at 5, 354 A.2d at 246. The court continued, "Statutes challenged on the ground of vagueness are not, however, to be tested against paradigms of legislative draftmanship.... Rather the requirements of due process are satisfied if the statute in question contains reasonable standards to guide prospective conduct." Id., 467 Pa. at 6, 354 A.2d at 246.

A vagueness claim to the same provision of The Dental Law which appellant violated was addressed by the Pennsylvania Commonwealth Court in Oppenheim v. Commonwealth, supra. Though the court in Oppenheim was presented with a challenge to the same statute and regulations as appellant herein attacks, it actually addressed a portion of the regulations in which the Board was silent as to the definition of a term of art, medicament. The court held that a failure to define medicaments did not unconstitutionally jeopardize the parties' right to adequate notice. More importantly to the instant appeal, however, the court also found that the regulations concerning the duties which auxiliary personnel are prohibited from performing are sufficiently clear. Id., 74 Pa.Cmwlth. at 213, 459 A.2d at 1315. The court stated that "[t]he dental law addresses a specific audience of professionals who must be held to a standard consonant with their training and expertise." Id., 72 Pa.Cmwlth. at 213, 459 A.2d at 1315. The court further advised that if a person was unsure about the dividing line between permissible and impermissible auxiliary duties, he should consult the Board.

Thus, the very provision of The Dental Law challenged by appellant in his void-for-vagueness argument has been upheld by our commonwealth court. The regulation promulgated by the Board which defines the duties reserved to a licensed hygienist was held to be adequately specific. A dentist clearly violates The Dental Law when he employs an unlicensed assistant to perform those duties expressly reserved for licensed personnel or dentist.

Further, appellant's argument that the assistants did not perform a complete prophylaxis on the patients and therefore did not engage in the...