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“The Tooth of the Matter: a Update on State Oral Health Dental Education

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“The Tooth of the Matter: a Update on State Oral Health Dental Education Volume 3, No. 10, October 2014 Delaware State Capitol IN THIS ISSUE: • Governor of California Signs Teledentistry Bill into Law • U.S. Supreme Court Set to Hear North Carolina Teeth Whitening Case on October 14 • National Governors Association to Focus on Medicaid Transformation • Governor of Virginia Launches Healthy Virginia Plan • Important Dates for the Health Insurance Marketplace • Governor of California Signs Bill to Protect Patient Premiums • National Governors Association Announces Leadership for Education and Health Committees • DEA Announces Tighter Restrictions on Hydrocodone Combination Products as States Continue Working to Reduce Prescription Drug Abuse • State Policy Updates • Reports of Interest • ADEA is Accepting Requests for Advocacy Workshops • ADEA State Advocacy Toolkit • ADEA United States Interactive Legislative Tracking Map • ADEA AGR Twitter Account • ADEA/Sunstar Americas, Inc./Harry W. Bruce, Jr. Legislative Fellowship • ADEA/Sunstar Americas, Inc./Jack Bresch Student Legislative Internship *** Governor of California Signs Teledentistry Bill into Law On September 27, Gov. Jerry Brown (D-CA) signed into law A.B. 1174. The new law adds teledentristy to a list of specialty health care services for which face-to-face contact is not required in order to claim reimbursement from Medi-Cal, the state’s Medicaid program. The legislation will take effect on January 1. According to a bill analyses/fiscal summary of A.B. 1174 by the Senate Appropriations Committee, the intent of the bill is to expand, statewide, components of a pilot program that has allowed allied dental professionals to provide additional functions in community settings as part of a telehealth-enabled dental care team. The pilot program referenced by the committee is the Virtual Dental Home system, developed almost five years ago by the Pacific Center for Special Care at the Arthur A. Dugoni School of Dentistry. The Center partnered with a number of funding organizations to implement a statewide demonstration project to bring oral health services to underserved populations using the Virtual Dental Home system.1 These populations range from children in Head Start Centers and elementary schools to older or disabled adults in residential care settings or nursing homes throughout California. In addition, the new law also permanently expands the list of procedures that dental hygienists and certain dental assistants can perform without a dentist being present onsite. For example, the new law authorizes “specified registered dental assistants in extended functions, registered dental hygienists, and registered dental hygienists in alternative practice to determine which radiographs to perform and to place protective restorations,” as further detailed in the text of A.B. 1174. U.S. Supreme Court Set to Hear North Carolina Teeth Whitening Case on October 14 The U.S. Supreme Court is scheduled on October 14 to take up a case brought by the North Carolina Board of Dental Examiners against the Federal Trade Commission (FTC). As you recall, on March 3, the U.S. Supreme Court agreed to hear North Carolina Board of Dental Examiners v. FTC during its October 2014 term. In this case, the North Carolina Board of Dental Examiners is challenging a lower court ruling and an order by the FTC, which said that the board engaged in unfair competition in the market for teeth-whitening services by excluding individuals not licensed to practice dentistry from the market for teeth-whitening services. According to court documents, beginning in the 1990s, dentists began providing teeth-whitening services in North Carolina. In about 2003, non-dentists also began offering the services, often at a reduced price. The board became aware of the performance of teeth whitening services by persons not licensed to practice dentistry, and also began receiving complaints from dentists. Several consumers suffered from adverse side effects, including bleeding or “chemically burned” gums, after receiving teeth whitening from non-dentists. In addition, consumers complained that the non-licensed 1 The Virtual Dental Home creates a community-based oral health delivery system in which people receive preventive and simple therapeutic services in community settings where they live or receive educational, social or general health services. It utilizes the latest technology to link practitioners in the community with dentists at remote office sites. ADEA State Update Volume 3, No. 10, October 2014 Page 2 individuals performing services were doing so without gloves or masks, thereby increasing the risk of side effects. As a result of the board receiving a number of complaints, an investigation was conducted and more than 40 cease-and-desist letters to non-dentist teeth-whitening providers were issued. The FTC’s original complaint against the board was issued on June 17, 2010, alleging that the board was harming competition by preventing non-dentists from providing teeth-whitening services in North Carolina. The board appealed, arguing that the FTC overstepped its authority. Specifically, the board argued that it is exempt from the federal antitrust laws under the “state action” doctrine. Under this doctrine, the antitrust laws “do not apply to anticompetitive restraints imposed by the states ‘as an act of government.’” The board has lost several appeals of the FTC’s decision, including a 2013 ruling by the U.S. Court of Appeals for the Fourth Circuit, which upheld the right of non-dentists to offer teeth-whitening products and services in the state. Click here to view documents associated with the board’s appeals to the FTC. Justice Barbara Keenan, of the U.S. Court of Appeals for the Fourth Circuit, stated in her concurring opinion, that “the fact that the board is comprised of private dentists elected by other private dentists, along with North Carolina’s lack of active supervision of the board’s activities, leaves us [the court] with little confidence that the state itself, rather than a private consortium of dentists, chose to regulate dental health in this manner at the expense of robust competition for teeth whitening services. Accordingly, the board’s actions are those of a private actor and are not immune from the antitrust laws under the state action doctrine.” The question before the U.S. Supreme Court is whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants. The U.S. Supreme Court’s decision in this case could significantly impact how states regulate varied fields – from dentistry to health care to law. National Governors Association to Focus on Medicaid Transformation The National Governors Association (NGA) announced that Alabama, Nevada and Washington will participate in a year-long project to examine ways to spur changes in how states pay for Medicaid and other health care services. Participating states will work with experts within the NGA Center for Best Practices, other national experts and peers to identify ways to accelerate the pace of statewide Medicaid reforms. They will examine financing issues, stakeholder relations, data analytics, quality reporting, performance metrics and evaluation, the role of managed care and workforce development. The project will culminate in individual “agreements in concept” tailored to the specific needs of each participating state and designed to help states reach successful agreements with the U.S. Department of Health and Human Services. The agreements in concept could take the form of waivers, state plan amendments, performance partnerships or other mutually agreed-upon arrangements between a state and the federal government and include the following core elements: ADEA State Update Volume 3, No. 10, October 2014 Page 3 • The potential for systemic payment and delivery reform across a state focused on improving health outcomes, improving the delivery of care and lowering health care costs; • Shared risk between states and the federal government including, for example, the ability for states to benefit from the savings generated in Medicaid, Medicare or other federal programs; and • A comprehensive quality and accountability strategy. “Governors are uniquely situated to look across their entire health systems to create solutions that span both the public and private markets,” said Gov. Robert Bentley (R-AL). “Through collaborative efforts among state agencies, communities, stakeholders, payers and providers, governors can steer action towards a common vision of a transformed health care system for a state.” According to the National Conference of State Legislatures, Medicaid is overwhelming state budgets. In 2012, the states’ share of the joint state-federal program accounted for an average of 15% of state general funds. Additionally, 10 states—California, Colorado, Louisiana, Maine, Maryland, North Carolina, Pennsylvania, Tennessee, Washington and West Virginia—made mid-year revisions to close 2012 Medicaid budget gaps. Governor of Virginia Launches Healthy Virginia Plan On September 8, Gov. Terry McAuliffe (D-VA) announced his 10-step plan to expand health care services to over 200,000 Virginians. Following the Virginia General Assembly’s failure, during legislative and special sessions, to pass legislation expanding Medicaid under
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