8.2 Proprietorship by Nondentists: Employment, Equipment Control & Clinical Judgment

Proprietorship by Nondentists — s. 466.0285, F.S.

The statute's own statement of purpose, in subsection (2), is the key to reading it: "The purpose of this section is to prevent a nondentist from influencing or otherwise interfering with the exercise of a dentist's independent professional judgment." Every prohibition serves that end.

Who is permitted

Only a dentist licensed pursuant to Chapter 466, or a professional corporation or limited liability company composed of dentists. That is the whole permitted class.

The three core prohibitions — s. 466.0285(1)

No person other than a licensed dentist, and no entity other than a professional corporation or LLC composed of dentists, may:

• (a) Employ a dentist or dental hygienist in the operation of a dental office.
• (b) Control the use of any dental equipment or material while such equipment or material is being used for the provision of dental services, whether provided by a dentist, a dental hygienist, or a dental assistant.
• (c) Direct, control, or interfere with a dentist's clinical judgment.

The insurer carve-out in paragraph (c)

The statute defines what interference with clinical judgment does not mean: it "may not be interpreted to mean dental services contractually excluded, the application of alternative benefits that may be appropriate given the dentist's prescribed course of treatment, or the application of contractual provisions and scope of coverage determinations in comparison with a dentist's prescribed treatment on behalf of a covered person by an insurer, health maintenance organization, or a prepaid limited health service organization."

A benefit determination by a dental plan is therefore not proprietorship interference, even when it conflicts with the treating dentist's plan.

The equipment lease clause

The unnumbered flush paragraph after (1)(c) imposes an affirmative drafting requirement:

"Any lease agreement, rental agreement, or other arrangement between a nondentist and a dentist whereby the nondentist provides the dentist with dental equipment or dental materials shall contain a provision whereby the dentist expressly maintains complete care, custody and control of the equipment or practice."

This is a checkable, black-letter requirement: the clause must actually be in the document.

The four control prohibitions — s. 466.0285(2)

In addition to the acts in subsection (1), no nondentist and no entity that is not a professional corporation or LLC composed of dentists shall enter into a relationship with a licensee under which the unlicensed person or entity exercises control over:

Paragraphs (c) and (d) are broader than candidates expect. Control over pricing, credit, refunds, warranties and advertising policy, and over staffing and office hours, is prohibited even though none of those decisions is clinical in the narrow sense.

Consequences

• Section 466.0285(3): "Any person who violates this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."
• Section 466.0285(4): "Any contract or arrangement entered into or undertaken in violation of this section shall be void as contrary to public policy. This section applies to contracts entered into or renewed on or after October 1, 1997."

The date limitation in subsection (4) is easy to overlook and is exactly the sort of detail a jurisprudence examination tests.

Rule 64B5-17.013

Rule 64B5-17.013, F.A.C., "Proprietorship by Nondentists," implements the statute: "No corporation, lay body, organization, or individual other than a licensed dentist or a professional corporation or limited liability company composed of dentists shall engage in the practice of dentistry through the means of engaging the services, upon a salary, commission, or other means of inducement," of a licensed dentist. The "salary, commission, or other means of inducement" language captures arrangements that avoid the label of employment.

What the statute does not contain

Section 466.0285 contains no exception permitting the estate of a deceased or disabled dentist to own or operate the practice for a transitional period. There is no "one year for the estate" provision anywhere in Chapter 466. What Florida law provides for on a dentist's death is the transfer and availability of patient records under Rule 64B5-17.001 — within 90 days, to another Florida licensed dentist, with published notice and four-year retention. That is a records obligation, not an ownership permission. Any answer option citing "s. 466.0285(1)(b)" for a one-year estate ownership rule is citing a provision that does not exist; s. 466.0285(1)(b) is the dental equipment control prohibition.

Equally, the statute contains no express exemption list for health access settings, dental schools or government facilities. Those arrangements operate through other instruments: the health access dental license (s. 466.0067), non-profit corporation permits (s. 466.025(3)), temporary certificates at state and county facilities (s. 466.025(2)), teaching permits (Rule 64B5-7.005) and limited licences (s. 456.015).

A hygienist may own her instruments

Rule 64B5-17.0105 resolves a question the ownership rules would otherwise raise: for purposes of interpreting ss. 466.0285, 466.024, 466.023 and 466.0235, a dental hygienist is not precluded from owning dental instruments used in providing dental hygiene services — whether working under a dentist's authorization or providing services where a supervising dentist is not required.