BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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  








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            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.  








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          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  








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            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  








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            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  








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            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  








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            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  








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            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  








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            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.  









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            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  








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            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 










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          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." 








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          "?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. 









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          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,  








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          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.  


          








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          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




















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