NYSDA is disappointed with the New York State Education Department (NYSED) response to point-of-care testing by dentists and is taking action to defend its members against what it sees as an incorrect legal opinion by the Department's Counsel.

After taking nine months to respond to questions about dentists' ability to do point-of-care (POC) testing for COVID-19, NYSED’s Office of Counsel said COVID-19 point-of-care testing is not within the scope of practice of dentistry.
            
In a letter dated July 27, 2021, NYSDA informed the Commissioner of Education that NYSDA "will not be disseminating or following the...opinion of the Office of Counsel for the New York State Education Department. This factually incorrect and legally unsupportable opinion would require dentists to do actual harm to their patients and cannot be followed."

The strongly worded letter goes on to point out the counsel is, "failing to research the issue in any meaningful way, failing to consult with dental experts,...circular and illogical reasoning..." and "no desire to discuss the matter with any experts."

It concludes that the Education Department's ruling "should be rescinded and replaced with one that can be followed."

What does this mean for you?

Dentists may safely continue to perform CLIA-waived POC COVID-19 testing at this time, as they are protected by federal law against any action by the Education Department. We recommend members consult their own malpractice carrier and/or counsel if they are conflicted or unsure what to do. NYSDA will continue to monitor developments on this issue and post the latest news for members.

Members can read the Office of Counsel's original opinion and NYSDA's response in full at https://www.nysdental.org/novel-coronavirus-(covid-19)/poc-testing-executive-order.