BILL ANALYSIS Ó
AB 502
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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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