BILL ANALYSIS Ó AB 502 Page 1 Date of Hearing: April 14, 2015 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Susan Bonilla, Chair AB 502 (Chau) - As Introduced February 23, 2015 NOTE: Double Referral This bill is double referred, and if passed by this Committee, it will be referred to the Assembly Health Committee. SUBJECT: Dental hygiene. SUMMARY: Authorizes registered dental hygienists in alternative practice (RDHAPs), who established practices within certified dental shortage areas, to continue their practice when the shortage area designation is removed; requires insurance companies to reimburse RDHAPs for dental hygiene care legally provided and covered by insurance; deletes the requirement for patients to obtain a prescription for dental hygiene care provided by an RDHAP, and clarifies that RDHAPs are authorized to establish corporations. EXISTING LAW 1)Licenses and regulates registered dental hygienists in extended functions (RDHEF) by the Dental Hygiene Committee of California (DHCC) under the Dental Board of California (DBC) within the Department of Consumer Affairs (DCA). (Business AB 502 Page 2 and Professions Code (BPC) Section 1900 et seq.) 2)Authorizes an RDHAP to perform all duties that may be performed by a registered dental assistant and all of the functions of a registered dental hygienist (RDH) including dental hygiene assessment and development, planning, and implementation of a dental hygiene care plan, including oral health education, counseling, and health screenings; preventive and therapeutic interventions, including oral prophylaxis, scaling, and root planning; and application of topical, therapeutic, and subgingival agents used for the control of caries and periodontal disease in the following settings: (BPC Section 1926) a) Residences of the homebound; b) Schools; c) Residential facilities and other institutions; and d) Dental health professional shortage areas (DHPSAs), as certified by the Office of Statewide Health Planning and Development (OSHPD) in accordance with existing office guidelines. 3)Further authorizes an RDHAP to determine which radiographs to perform on a patient who has not received an initial examination by the supervising dentist for the specific purpose of the dentist making a diagnosis and treatment plan for the patient, and to place protective restorations, under general supervision by a dentist, to stabilize the tooth until a licensed dentist diagnoses the need for further definitive treatment in the following settings: (BPC Section 1926.05) i) Residences of the homebound; ii) Schools; iii) Residential facilities and other institutions. AB 502 Page 3 4)Requires an RDHAP to meet the following requirements in order to obtain licensure: (BPC Section 1922) a) Holds a current California license as a registered dental hygienist and is engaged in the practice of dental hygiene as a registered dental hygienist in any setting, including, but not limited to, educational settings and public health settings, for a minimum of 2,000 hours and during the immediately preceding 36 months has; b) Successfully completed a bachelor's degree or its equivalent from a college or institution of higher education that is accredited by a national or regional accrediting agency recognized by the United States Department of Education, and a minimum of 150 hours of additional educational requirements, as prescribed by the DHCC by regulation, that are consistent with good dental and dental hygiene practice, as specified; c) Received a letter of acceptance into the employment utilization phase of the Health Manpower Pilot Project No. 155 established by the (OSHPD); and d) Passed an examination in California law and ethics. 5)Requires an RDHAP to provide to the DHCC documentation of an existing relationship with at least one dentist for referral, consultation, and emergency services. (BPC Section 1930) 6)Requires an RDHAP who provides services for 18 months or longer to obtain written verification that the patient has been examined by a dentist or physician and surgeon, and requires that verification, to be valid for up to two years, to include a prescription for dental hygiene services. (BPC Section 1931(a),(b)) 7)Authorizes the DHCC to seek to obtain an injunction against any RDHAP if the DHCC has reasonable cause to believe that the AB 502 Page 4 services are being provided without a prescription, and specifies that providing services without a written prescription on the part of a RDHAP shall constitute unprofessional practice and reason for the DHCC to revoke or suspend the license of the RDHAP. (BPC Section 1931(c)) 8)Authorizes an association, partnership, corporation, or group of three or more registered RDHAPs engaging in practice under a name, that would be in violation of a prohibition against practicing under an assumed or fictitious name, to practice under that name if the association, partnership, corporation, or group holds an unexpired, unsuspended, and unrevoked permit issued by the DHCC authorizing the holder to use a name specified in the permit in connection with the holder's practice, as specified. (BPC Section 1962) 9)Establishes the Moscone-Knox Professional Corporation Act, which regulates the formation and operation of professional corporations, and defines a professional corporation as a corporation organized under the general corporation law, as specified, or a corporation that is engaged in rendering professional services in a single profession. (Corporations Code (CC) Section 13400 et seq.) 10)Authorizes an RDHAP to submit, or allow to be submitted, any insurance or third-party claims for patient services performed as authorized by relevant sections of the BPC, as specified. (BPC Section 1928) THIS BILL 1)Permits an alternative dental hygiene practice established within a certified shortage area to continue regardless of certification. 2)Eliminates the requirement for an RDHAP to obtain written verification, including a prescription for dental hygiene AB 502 Page 5 services, that his or her patient has been examined by a dentist or physician and surgeon. 3)Exempts professional corporations, rendering professional services by persons duly licensed by the DHCC, from the requirement to obtain a certificate of registration in order to render those professional services, and specifies that RDHAPs may be shareholders, officers, or directors of an RDHAP corporation, and that licensed dentists and dental assistants may be professional employees of an RDHAP corporation. 4)Requires health care service plan contracts covering dental services, specialized health care service plan contracts covering dental services, health insurance policies covering dental services, and specialized health insurance policies covering dental services issued, amended, or renewed on or after January 1, 2016, to reimburse RDHAPs for performing dental hygiene services that may lawfully be performed by registered dental hygienists (RDH) and that are reimbursable under the contracts or policies, and would require the plan or insurer to use the same fee schedule for reimbursing both registered dental hygienists and RDHAP. 5)Makes other clarifying and conforming changes. FISCAL EFFECT: Unknown. This bill is keyed fiscal by the Legislative Counsel. COMMENTS 1)Purpose. This bill is sponsored by the California Dental Hygienists' Association. According to the author, "A number of situations reduce access to RDHAPs. First, California law AB 502 Page 6 allows [RDHs]to open practice in geographic areas where people have no access to regular preventive oral care due to an absence or shortage of dentists. However, under current law, RDHAPs who practice in dental health shortage areas can no longer practice in those areas once they are no longer designated a dental shortage area. Second, many dental insurance companies recognize dentists in a dental practice as the billable provider of dental hygiene services and even though RDHAPs provide the same billable services that an RDH provide, billed by the dentist, the insurance companies are denying RDHAP's reimbursement for services. This forces patients who cannot easily access care in a traditional dental office to pay out of pocket for the services of a RDHAP or not receive the care due to finances. Additionally, any patient who goes directly to an RDHAP for preventative services must obtain a dentist's or doctor's prescription to continue those services once they pass 18 months of service with the RDHAP. This is problematic in areas where dentists are in short supply creating a barrier for patients to obtain much needed services. Finally, the [BPC] authorizes RDHAPs to incorporate. Corporation law would protect the RDHAP's business, however, there is not language in the Corporations Code authorizing RDHAPs to establish corporations, leaving them without critical protections. [This bill] would address these issues and ensure that the public has access to quality dental hygiene services." 2)Background. In 1986, the OSHPD created the RDHAP. In 1993, the professional designation was made permanent in statute. An RDHAP must have been engaged in the practice of dental hygiene as a registered dental hygienist in any setting, including educational settings and public health settings, for a minimum of 2,000 hours during the immediately preceding 36 months, complete 150 additional hours of education courses, and pass a written exam. An RDHAP has a unique distinction in that they can work for a dentist or as an employee of another RDHAP as an independent contractor, as a sole proprietor of an alternative hygiene practice, or other locations such as AB 502 Page 7 residences of the homebound, schools, residential facilities, and in underserved dental shortage areas, as determined by OSHPD. They may also operate a mobile dental clinic or operate an independent office or offices. 3)As a result, RDHAPs may practice in settings outside of the traditional dental office, and allow patients to receive the same type of professional preventive care they would receive in a dental office in schools, skilled and residential care facilities, hospitals, private homes, and in some instances in an RDHAP's own office. A 2009 survey of California RDHAPs found that more than two thirds of their patients had no other source of oral health care. RDHAPs also struggle to find referrals to dentists for patients in need of more advanced care and charge lower fees than dentists. The DHCC licenses and regulates approximately 509 RDHAPs. Prescription Requirements. BPC Section 1931 allows a RDHAP to provide dental hygiene services to a patient without referral by a dentist for up to 18 months. However, after 18 months a patient needs to have a prescription from a dentist or a physician and surgeon in order to continue dental hygiene services with the RDHAP. The prescription is valid for up to 2 years. According to the author, this is problematic in areas where dentists are in short supply creating a barrier for patients to obtain much needed basic preventive care services. According to the author, RDHAPs have proven to be safe providers who refer patients to dentists when major dental issues arise outside of their scope of practice to treat. There is no precedent for requiring a practice agreement for licensure, nor for services delivered within a professional's own scope of practice. This is unique in that most AB 502 Page 8 restrictions requiring a prescription of one provider to another are for specialty care, not for primary preventive health care services. In practice, this is simply an administrative hurdle, time consuming for providers, and has not been shown to contribute to positive patient outcomes. The author indicates that patients should have their choice of dental hygiene care provider, and the public should not need a prescription to receive basic preventive care. According to the sponsors, an RDHAP is the only oral health care provider a patient has access to, and if a prescription is not obtained, the patient cannot even continue to receive preventative dental hygiene care, even though the need for and benefits of that care still exist. Dental Health Professional Shortage Areas (DHPSAs). According to OSHPD, DHPSAs are based on the evaluation of criteria established through federal regulation to identify geographic areas or population groups with a shortage of dental providers. The federal DHPSA designation identifies areas as having a shortage of dental providers on the basis of availability of dentists and other dental auxiliaries. To qualify for designation as a DHPSA, an area must be: 1) a rational service area; have a population to general practice dentist ratio of 5,000:1 or 4,000:1 plus population features demonstrating "unusually high need"; and 3) a lack of access to dental care in surrounding areas because of excessive distance, overutilization, or access barriers. According to OSHPD, there are 53 DHPSAs. Approximately 5% of Californians live in a DHPSA. The DHCC noted in their 2014 Sunset Review Report that problems have arisen when the shortage area in which an RDHAP sets up a practice is redesignated as a non-shortage area. Existing law requires the RDHAP to close down the practice when this occurs. The DHCC views this as "counterproductive...as the closure of the practice would leave patients with no access to dental hygiene services." According to the sponsors, when a DHPSA in San Luis Obispo was faced with losing its designation status, RDHAPs in that area AB 502 Page 9 fought to keep the designation area so that patients could continue to be served. This bill seeks to prevent patients from losing access to established dental care should an area lose its DHPSA. Reimbursement for Services. Currently, many dental insurance companies recognize dentists in a dental practice as the billable provider of dental hygiene services and even though RDHAPs provide the same billable services that an RDH provide, billed by the dentist, the insurance companies are denying RDHAP's reimbursement for services. In its 2014 Sunset Review Report, the DHCC identified as a barrier to RDHAP practice the inability for RDHAPs to collect payment for services rendered. The DHCC noted that RDHAPs have difficulty collecting payment for services from insurance companies based outside of California. This is because not all states have the RDHAP provider status making them ineligible for reimbursement. As a result, some patients who cannot easily access care in a traditional dental office are forced to pay out of pocket for the services of a RDHAP or not receive care due to financial constraints. Professional Corporations. A professional corporation is an organization made up of individuals of the same trade or profession. The Moscone-Knox Professional Corporations Act of 1968 authorized the formation of professional corporations to obtain certain benefits of the corporate form of doing business, such as limited legal liability. At that time, only medical, law and dental professional corporations were envisioned; there are now 15 authorized healing arts professional corporations. Current law specifies which healing arts licensees may be shareholders, officers, directors or professional employees of professional corporations controlled by a differing profession if the sum of all shares owned by those licensed persons does not exceed 49% of the total shares of the professional corporation. AB 502 Page 10 BPC Section 1962 authorizes an association, partnership, corporation, or group of three or more registered RDHAPs to practice under an assumed or fictitious name if the association, partnership, corporation, or group holds a permit issued by the DHCC authorizing the holder to use that name connection with the holder's practice, as specified. According to the sponsors, this section was intended to allow RDHAPs to incorporate to gain the protections afforded by corporation law, most importantly, protection against personal liability. However, conforming changes were not made to the Corporations Code. This bill would specify that RDHAPs may be shareholders, officers, or directors of an RDHAP corporation, and specify that licensed dentists and dental assistants may be professional employees of an RDHAP corporation. 4)Prior Related Legislation. AB 1174 (Bocanegra), Chapter 662, Statutes of 2014, authorized, among others, RDHAPs to determine which radiographs to perform and to place protective restorations, as specified, and provided that face-to-face contact between a health care provider and a patient is not required under the Medi-Cal program for teledentistry, as specified. AB 1245 (Lieu), Chapter 395, Statutes of 2014, extended the operation of the DHCC until January 1, 2019. SB 1202 (Leno), Chapter 331, Statutes of 2012, among other things, authorized, instead of require, the DHCC to seek an injunction against an RDHAPs who provides dental hygiene services to a patient for longer than 18 months without obtaining a prescription for dental hygiene services from a dentist or physician and surgeon, and specified that a violation by an RDHAPs of that requirement is reason for the AB 502 Page 11 DHCC to revoke or suspend his or her license. AB 1334 (Salinas), Chapter 850, Statutes of 2006, authorized an RDHAP to provide services to patients without a prescription from a dentist or a physician and surgeon for the first 18 months after the first date of service, and made that prescription valid for a period not to exceed two years. AB 1334 also made failure to comply with those provisions unprofessional conduct. AB 123, Chapter 549, Statutes of 2003, provided that physicians and surgeons, dental assistants, registered dental assistants, registered dental assistants in extended functions, registered dental hygienists, registered dental hygienists in extended functions, or registered dental hygienists in alternative practice may be shareholders, officers, directors, or professional employees of dental corporations. SB 853 (Perata), Chapter 31, Statutes of 2008, created the DHCC as the separate body within the DBC to oversee the practice of dental hygiene. ARGUMENTS IN SUPPORT AB 502 Page 12 The California Dental Hygienists' Association (CDHA) writes in support, "[This bill]?would strengthen access to dental hygiene care in underserved areas of the state. RDHAPs?have more education and training than [RDHs] and provide dental hygiene care unsupervised and outside of the traditional dental office in order to reach populations who have difficulty accessing care through a traditional dental setting or lack dentists in their area. RDHAPs take dental hygiene care to the patient. RDHAPs work in skilled nursing facilities, homes of the disabled or homebound, in schools or in [DHPSAs]. RDHAPs can have offices or mobile units. RDHAPs are recognized dental providers and have their own National Provider Identification (NPI) number. DentiCal recognizes RDHAPs as billable providers. [This bill] improves access to dental hygiene care for vulnerable populations that cannot easily access a dental office by strengthening the RDHAP practice, thereby improving the RDHAP's ability to take dental hygiene care to patients." ARGUMENTS IN OPPOSITION The California Dental Association (CDA) writes in opposition, "Over the last several years, CDA has been working on a number of initiatives to improve access to dental care and understands the need for innovation and non-traditional approaches. Unfortunately, [CDA] believe the approach [this bill] takes, to remove the requirement for a dentist or physician examination to continue with dental hygiene-specific services after an 18-month time period, is a fundamentally flawed approach to solving access to care concerns. Further, the prescription requirement in current law supports connection between dental team members and promotes the patient to seek the diagnostic and restorative care of a dentist - services that are critical and cannot be provided by a hygienist. Approval for continued hygiene care is the safeguard afforded to protect both patients and hygienists from conditions that may lead to supervised neglect, whereby, despite hygienic-specific care, the patient's health deteriorates over time from untreated dental disease." AB 502 Page 13 "?The primary reason for the development of the RDHAP license is to bring dental hygiene services to dentally underserved populations and into underserved communities. Should a DHPSA lose its designation, [CDA] believes that guidelines should be in place that describe the circumstances under which an RDHAP can continue operating an established practice to ensure that the practice retains the intent of the law to increase dental services to underserved populations." POLICY ISSUES DHPSAs. The sponsors assert that it is necessary to allow RDHAPs who have established practices in DHPSAs to be able to continue that practice, even if that designation is later removed. However, while there is anecdotal evidence that this is a concern, it does not appear that any DHPSA has in fact been un-designated as a shortage area. Considering that the reason for a RDHAPs expanded scope of practice is to increase access to the most underserved populations, should this bill pass this Committee, the author should consider language that would ensure that this purpose is adhered to. Specifically, the author should include language in the bill that would specify that RDHAPs shall continue to serve those that lack or have limited access to care. For example, the author might require that a RDHAP who continues to practice in an area after it is no longer classified as a DHPSA, provide services to a specified percentage of Medi-Cal patients. AB 502 Page 14 Prescription Requirements for RDHAP Services. RDHAPs play an important role in providing critical dental hygiene services to underserved populations by providing services within their scope of practice independently. However, while the statutory scheme enacting the RDHAP licensure envisioned much freedom for an RDHAP, it still envisioned the RDHAP as part of a dental team. Under existing law, hygienists are required to refer any screened patients with possible oral abnormalities to a dentist for a comprehensive examination, diagnosis, and treatment plan. Additionally, BPC Section 1930 requires the RDHAP to provide to the DHCC documentation of an existing relationship with at least one dentist for referral, consultation, and emergency services. This is because while RDHAPs may assess dental hygiene and develop, plan, and implement a dental hygiene care plan, including oral health education, counseling, and health screenings, it does not include a complete dental diagnosis or comprehensive treatment planning, which may only be performed by a dentist. In addition, RDHAPs are prohibited from inferring that he or she is in any way able to provide dental services or make any type of dental diagnosis beyond evaluating a patient's dental hygiene status. Only dentists are allowed to diagnose oral health problems, plan treatment, and prescribe medication. Existing law requires RDHAPs to obtain a prescription for dental hygiene services from a dentist or a physician and surgeon to provide services for longer than an 18 month period, and that prescription is valid for up to two years. As a result, a patient would only have to obtain one prescription for services within the first prescription period of 42 months, or 3 and 1/2 years. RDHAPs practice in extremely underserved areas and treat vulnerable populations, specifically persons in schools, AB 502 Page 15 residential facilities and other institutions, the homebound, and persons in DHPSAs. As a result, this population may be most in need of a periodic examination, by either a dentist or a physician and surgeon, which allows for a diagnosis of the patient's condition and the development of a treatment plan for a full range of care, if necessary. If this requirement were removed, this more comprehensive diagnosis or examination may not occur. While the sponsors assert that the prescription requirement poses a barrier to care, it is unclear the extent to which patients of RDHAPs have been unable to obtain the necessary prescription requirement. In addition, with the advent of new means of increasing care, such as through the Virtual Dental Home that uses telehealth services to provide access to care, removing the requirement for a more complete diagnosis or examination appears to move away from increasing access to care. As a result, it is recommended that the author strike this provision until it is clearer the extent to which this requirement imposes a barrier to care and the extent to which removing this requirement will benefit, instead of potentially harm, a vulnerable patient is clear. SUGGESTED AUTHOR'S AMENDMENTS Strike Sections 1 and 3 of the bill inclusive. AB 502 Page 16 REGISTERED SUPPORT / OPPOSITION: Support California Dental Hygienists' Association (sponsor) 13 RDHAPs Opposition California Dental Association Analysis Prepared by:Eunie Linden / B. & P. / (916) 319-3301 AB 502 Page 17