There is no doubt that we are in the age of paraprofessionalism. If you purchase a home, need to file bankruptcy, or have been hurt in an auto accident, a large portion of your interaction with a law firm will most likely involve speaking with a highly trained paralegal.
Likewise, in order to see a doctor in 21st century America it is almost compulsory that you undergo a near-death experience. Even if you're dangling a limb, you will likely be evaluated, and to some extent diagnosed and treated, by a triage nurse, a nurse practitioner, and/or a physician's assistant. While these individuals assist professionals in an ever-growing number of ways, there clearly are numerous legal and ethical issues involving the boundaries of practice for paraprofessionals. Similarly, unless you go to an old-line dentist, the person who takes the X-rays, evaluates your gum line and cleans your teeth is a dental hygienist. Those tasks are considered tedious, time-consuming and so noninvasive that they can be handled by someone other than a doctor of dental surgery.
It goes without saying that a dental hygienist may assist in, but is prohibited from performing, root canal, filling cavities, filing teeth or similarly involved procedures.If filing of teeth is a procedure that, when performed on humans, requires the skill of a professional, should only a professional be permitted to float/file the teeth of an equine? The question of whether routine equine dentistry can be performed by anyone other than a licensed practicing veterinarian arose in a case decided by an appellate court in New York just last month. The court's decision, and laws and rulings in other jurisdictions, provide interesting insights into how government views the dental care of horses.
Christopher Brown was engaged in the practice of routine equine dentistry for over 30 years. His decades of experience aside, Brown never obtained a license in veterinary medicine nor in veterinary technology. In fact, Brown's only formal education involved the receipt of a certificate in equine management and dentistry from a cooperative extension program. Brown's only other credential was a permit from the New York Racing Association (NYRA) to act on the backstretch of its three Thoroughbred tracks as a veterinary assistant. This permit, also known as a "badge," afforded Brown with free access to horses, but in no way qualified him to perform any task. In effect, all of Brown's activities were performed without a state license of any kind.
The filing of teeth is accomplished by a rasp known as a float; hence the term "floating teeth." Brown's services were limited to the filing and floating of horses' teeth, the removal of baby caps to allow adult teeth to mature, and the use of various nonprescription applications such salt, myrrh and baking soda to treat cuts. Brown's work was renowned in Thoroughbred racing. His services were sought by trainers of Kentucky Derby and Belmont Stakes winners, as well as those training for the Queen of England and the Crown Prince of Saudi Arabia. While Brown performed the services under the "supervision" of veterinarians, it was apparent that veterinarians were usually not present when Brown carried out his work.
In 2005, the New York State Racing and Wagering Board held an investigatory interview into the activities of Brown. Subsequently, a Board investigator decided that absent at least a veterinary technician's license issued by the New York State Education Department, Brown could no longer practice his trade. Brown then sued the Board in a New York State trial court. The trial judge, State Supreme Court Justice Roy S. Mahon, granted Brown's petition, and enjoined (stopped) the racing Board from preventing him from practicing routine equine dentistry. The racing Board appealed this ruling.
Last month, the appellate court sided with Brown and affirmed the decision of Justice Mahon. First, the court agreed with the testimony rendered by several of Brown's witnesses during the lower court hearing. The argument accepted by the appellate court was that Brown's activities were akin to routine nonveterinary services similar to those performed by grooms in applying liniments, poultices and bandages, and by farriers caring for foot abscesses and infections, applying shoes and providing routine maintenance with rasps and paring knives. Unlike the teeth of humans, horses' teeth never stop growing. Thus, the appellate court determined that periodic trimming of teeth was in the nature of routine maintenance and not veterinary diagnosis or treatment. Inasmuch as the applicable New York statute did not include dentistry within the definition of veterinary medicine, the court found that Brown required no license to perform his services.
Despite handing Brown a victory, the court made it clear that state laws in New Jersey, Connecticut and Pennsylvania include dentistry as a specific activity requiring veterinary licensure. Moreover, the court suggested that state lawmakers could easily amend the relevant statute and include animal dentistry within the scope of veterinary medicine, and thus within scope of licensure. In effect, the legislature in Albany has the power to render Brown's victory short-lived.
Click here to read the full January 13, 2009 opinion and order in Matter of Brown v. New York State Racing and Wagering Board
While the appellate court in New York considered the question of licensing equine dentists a case of first impression in that state, the issue has recently been litigated in other states.
On June 23, 2008, a Minnesota trial court interpreting its own state laws upheld an administrative ruling barring a third-generation horse tooth floater from practicing his trade. The court declared that the individual, Chris Johnson, must forego working in his family business unless he attends veterinary college or passes a specialized test not offered in Minnesota. It is alleged that basic dentistry comprises as little as 30 minutes of training over the course of a four year veterinary program. 
In 2007, the Texas State Board of Veterinary Medical Examiners began sending cease and desist (stop work) letters to horse teeth floaters throughout the state. On November 14, 2008, an appeals court in the Austin remanded (sent back) a case to a Travis County district court and ordered it to hold proceedings on the legal question of whether the Texas Board can require individuals who practice equine dentistry to possess veterinary licenses. 
Decisions regarding the boundaries of veterinary medicine are not limited to the subject of teeth floating. In 1998, an appeals court in Michigan determined that a doctor of chiropractic may not legally perform diagnoses or structural adjustments on horses without either a license to practice veterinary medicine or the strict supervision of a licensed veterinarian as defined under Michigan law. 
The importance of equine dental care in racehorses is evident. Horses in the wild masticate much grass containing silica, a natural abrasive. Domestic horses, however, eat less abrasive feeds such as oats and alfalfa. Such a diet inhibits natural leveling of horses' teeth. Sharp points in the side of molars might prevent a horse from proper digestion, the results of which are obvious. Of course, a bad float job by a careless or inexperienced individual can have the same results.
To license or not to license? In the area of equine dentistry, the law is in a state of flux and is heavily dependent upon the laws of the jurisdiction in which the activity is being performed.
Chris E. Wittstruck, an attorney and Standardbred owner, is the founder and coordinator of the Racehorse Ownership Institute at Hofstra University, New York and a charter member of the Albany Law School Racing and Gaming Law Network.
 "Minnesota District Court Upholds Economic Protectionism;" Institute for Justice web release discussing Johnson v. Minnesota Board of Veterinary Medicine (Minnesota Fourth Judicial District Court), June 23, 2008. Last read online January 25, 2009
 "Horse Teeth Floaters' Constitutional Lawsuit Will Proceed;" Institute for Justice web release discussing Mitz v. Texas State Board of Veterinary Medical Examiners (Court of Appeals of Texas, Third District, Austin), November 18, 2008. Last read online January 25, 2009
 See, Michigan Department of Consumer and Industry Services v. Hoffmann, 230 Mich. App. 170, 583 N.W.2d 260 (1998), reproduced courtesy of the University of Vermont Equine Law and Horsemanship Safety website, last read online January 25, 2009