On appeal from the promulgation and adoption of N.J.A.C. 13:30-8.22 by the New Jersey State Board of Dentistry.
Before Judges A. A. Rodr¡guez, Collester and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Appellants, Dentists for Quality Care, Inc. and Jose A. Cumba, D.M.D., challenge the validity of N.J.A.C. 13:30-8.22, entitled "Validity of Diagnostic Tests for Traumatically Induced Temporomandibular Dysfunction (TMD)," promulgated and adopted by respondent, New Jersey State Board of Dentistry (Board) on December 2, 1998, effective March 1, 1999, pursuant to its authority contained in N.J.S.A. 45:6-19.4 and N.J.S.A. 39:6A-4.7 to adopt rules and regulations. 31 N.J.R. 651(a) (Mar. 1, 1999).
We conclude that the Board's action in adopting N.J.A.C. 13:30-8.22 did not violate the express legislative authority vested in the Board by N.J.S.A. 39:6A-4.7 and the implied legislative authority reposed in it by the Dental Practice Act, N.J.S.A. 45:6-1 to -69. Moreover, we find substantial evidence in the record to support the findings and conclusions of the Board in adopting N.J.A.C. 13:30-8.22, and that its adoption was neither arbitrary, capricious nor unreasonable. On October 19, 1998, the Board published the proposed regulation and solicited written comments. 30 N.J.R. 3748(b) (Oct. 19, 1998); see also N.J.S.A. 52:14B-4(a)(prescribing the required procedures for adopting administrative rules and regulations). In explaining the proposed new rule, the Board stated, in pertinent part:
The proposed new rule sets forth professional standards governing diagnostic testing for temporomandibular dysfunction ("TMD") requested or performed by authorized licensees of the Board of Dentistry ("Board"). The objective is to assure that appropriate standards of professional care are maintained and that unnecessary and costly testing is avoided. The new rule provides guidance as to diagnostic tests that licensees shall or shall not be permitted to request or perform for persons who present symptoms of TMD subsequent to a traumatic injury to the mandibular. The genesis of this rule was the Legislature's mandate to limit payment for certain tests for persons holding specific types of automobile insurance coverage under which treatment costs are paid by insurance carriers under Personal Injury Protection (PIP) pursuant to the Automobile Insurance Cost Reduction Act [AICRA], P.L. 1998, c.21, §12, and c.22 . . . . Consistent with the Board's belief that diagnosis and implementation of treatment of TMD are not dictated by the nature of the traumatic causing the symptoms and dysfunction, the Board has determined to include in the rule's scope all traumatically induced TMD regardless of the etiology and/or source of payment.
The [AICRA] directs the Board to promulgate a list of valid diagnostic tests to be used in conjunction with the appropriate health care protocols in the treatment of persons sustaining bodily injury and subject to subsection (a) of section 8 of P.L. 1972, c.70 (N.J.S.A. 39:6A-8). As required by that law, "Inclusion of a test on the list of valid diagnostic tests shall be based on demonstrated medical value, and a level of general acceptance by the relevant provider community and shall not be dependent for results entirely upon subjective patient response." [N.J.S.A. 39:6A-4.7.] The Board, in developing this list, received input from practitioners around the country advocating the inclusion of several tests the Board is proposing to exclude. The Board also reviewed and considered information relating to protocols for diagnosis of TMD that did not include the excluded tests.
After a thorough review of the comments received, the Board has determined to include certain tests, some with restrictions as to the time frame in, and frequency with, which they may be performed. Other tests, including mandibular tracking, surface EMG, sonograms, Doppler ultrasound, needle EMG, electroenceph-alogram (EEG), thermographs/thermograms, video fluoroscopy, and reflexology, have been excluded. The Board developed these lists based on the ability of the tests to yield data of sufficient value in the development, evaluation, and implementation of a plan of treatment for injuries. Where tests have been excluded, it is because the Board has determined that those tests do not offer information not otherwise available from a comprehensive clinical examination and/or permitted tests, which would alter the treatment plan. The Board recognizes that the excluded tests can be performed without risk to patients, but nonetheless concludes that sufficient information will be gleaned from the permitted tests and a clinical examination to formulate a proper diagnosis and plan of care. The rule adequately protects the public interest by assuring that the needs of the patient are met and by implementing the legislative policies articulated in [AICRA].
This Board rule is applicable only to treatment of traumatic injury to the lower jaw/mandible. Diagnosis of TMD unrelated to traumatic injury is not addressed at this time. . . . For traumatic injuries unrelated to automobile accidents, this rule is applicable.
A summary of pertinent provisions follows:
Subsection (a) provides definitions pertinent to the new rule.
Subsection (b) sets forth the diagnostic tests for which a licensee may bill a patient or third party payor to determine the presence of TMD and to formulate a treatment plan. The tests may be performed when medically necessary and consistent with clinically supported findings. . . .
Subsection (c) lists the tests that the Board is proposing to exclude from the group for which licensees may bill a patient or third party. The Board's determination to exclude is based on its considered opinion that the excluded tests fail to yield data of sufficient, additional value, given the approved diagnostic tests, which would alter or influence the development, evaluation, or implementation of a plan of treatment. The rule excludes mandibular tracking, surface EMG, ...