By Jennifer Goodrum, CDA Director of Government Relations
From the Summer 2019 Journal of the Colorado Dental Association
Nearly 600 bills were considered during the Colorado General Assembly’s 2019 session, with more than 85 bills that had potential impacts for dentistry. The CDA monitors all dental-related activity at the Capitol during the session and advocates daily on your behalf.
2019 brought a new governor, administration and party control in the Senate. Coupled with nearly one-third of the assembly being first-time legislators and 40% being new to their positions, there was a steep learning curve, a general void in healthcare acumen and one of the bumpiest processes witnessed in recent memory. Healthcare providers were under significant scrutiny this session given leadership priorities of addressing the high costs of healthcare. Bills to examine hospital costs, health insurance costs, insurer practices and provider billing were under daily consideration and conversations did not always reflect favorably on providers.
Despite these obstacles, the CDA was able to achieve some very meaningful outcomes this session for dentistry. Some highlights from the session are shared below.
It was a highly successful year for dental funding increases in Colorado. An aggregate $15M increase ranks 2019 among the CDA’s top three most fruitful appropriations years at the state Capitol.
- The CDA celebrated a significant success in increasing the annual cap on services for Medicaid adults from $1,000 to $1,500. The new annual max of $1,500 took effect for patients and providers on July 1. This $11M increase to the Medicaid adult dental cap will help patients receive more timely services and address an ongoing frustration about interruption of care by providers. Dentistry also saw an across-the-board 1% rate increase to all Medicaid fees, equaling $3M in total. The CDA helped add dental coverage for pregnant moms in the state’s CHP+ program (House Bill 1038), which took effect July 1. Finally, the CDA supported an effort to increase funding for the state’s low income senior dental program (House Bill 1326) by $1M. All these funding increases will work to ensure that patients get timely and needed dental care that will contribute greatly to their overall health and well-being.
Professional Licensing and Liability
Progress was made in the areas of licensing and liability with new CE requirements for opioid prescribing, practice act reorganizations and a new option for addressing medical errors. Highlights in the professional licensing arena this year include:
- In seeking to address Colorado’s ongoing opioid crisis, Senate Bill 228 added a new continuing education (CE) requirement for all prescribers of opioids, including dentists. The Colorado Dental Board is charged with enacting rules that address how many CE hours are required for dentists each license renewal cycle (up to a maximum of 4 credit hours), what topics must be covered in the training and which entities will be authorized to offer the training. Exemptions from the CE requirements are provided for dentists who do not prescribe opioids or those who have a national board certification that includes equivalent training to the Dental Board requirements. While still undetermined, compliance with the new CE requirements will likely be demonstrated through an attestation during the license renewal process (that can be randomly audited by the Dental Board, similar to current clinical CE requirements). While Senate Bill 228 “takes effect” on Oct. 1, 2019, the new requirements in Senate Bill 228 only affect professionals as of their next license renewal. DORA has indicated that the implantation and compliance period for dentists will be extended, since the next license renewal period is scheduled for February 2020 and rulemaking on this bill is expected to conclude in January 2020. With this, compliance with the CE requirement will be expected from dentists at the February 2022 license renewal.
- House Bill 1172 reorganized Title 12 in Colorado law—the section that contains the practice acts for all regulated occupations and professions (including dental). This will result in new numbers and new citations for the Dental Practice Act in January 2020, but no other meaningful changes were made. As a result of this bill, extensive rewrites to rules and policy will be required to update references wherever previous Title 12 references were in effect. These rulemaking efforts should remain non-substantive, where no meaningful changes are made alongside the cleanup. However, the CDA will closely monitor rulemaking to make sure this intent is honored. The CDA was hoping to run a simultaneous, but separate, bill to reorganize the flow of the Dental Practice Act, but the unlikely politics of House Bill 1172 prevented this additional clean-up. The CDA plans to complete this Dental Practice Act-specific reorganization during the 2020 legislative session.
- Senate Bill 201, the Communication AND Optimal Resolution Act (CANDOR), added a new process in the state to address medical errors. CANDOR is a process that can be facilitated by any healthcare provider’s liability carrier to allow the provider to have an open conversation with the patient or the patient’s representative after a medical error. There are legal protections for CANDOR communications, making them not admissible in litigation or state board processes, and any financial settlement under the process is protected and not reportable to the National Practitioner Data Bank (NPDB). In states where CANDOR has been implemented, liability claims, and associated costs have been significantly reduced and patients and providers are both happier with the outcomes of settlements. This bill took effect on July 1 and liability carriers may now begin offering it as an option for resolving complaints.
Drugs and Prescribing
Opioid prescriptions continued to come under scrutiny during this year’s state legislative session. Other hot topics included pricing transparency and the cost of prescription drugs.
- Senate Bill 79 requires e-prescribing of all opioid medications by 2023 for dentists (other prescribers are also included and have shorter implementation timelines). The CDA secured an extended implementation timeframe in the bill for dentists due to some integration limitations for current dental software platforms. The bill exempts very low volume prescribers (less than 24 opioid scripts per year) and practices where implementation would pose a significant financial hardship (formal waiver required). Please keep these requirements in mind as you renew practice management subscriptions and upgrade software systems in the next few years. The CDA expects to offer some partner solutions to Colorado dentists in this space before the 2023 enforcement date.
- House Bill 1131 requires drug manufacturers to disclose wholesale pricing on a prescription drug whenever information is provided to a prescriber about the drug. Wholesale pricing information on at least three generic drugs (as available) from the same prescription class is required to be provided for comparison purposes. This bill takes effect in August.
- Senate Bill 5 allows a Canadian prescription drug import program to be developed in the state, aimed at reducing the price of certain drugs for patients. The Colorado Department of Healthcare Policy and Financing (HCPF) will oversee the program, which is designed to incorporate quality assurance standards. More information will be provided to dentists and patients once the program has fully launched, as expected in August.
It was a good year to be an employee, not an employer, in Colorado. Many priority bills for legislative leadership addressed workers’ protections during this year’s session. Highlights of the most pertinent bills to dentistry include:
- House Bill 1025 addresses the timing of criminal inquiries in the hiring process. Beginning Sept. 2021, employers that have 11 or more employees are prevented from stating that a person with a criminal history may not apply for an advertised position or requiring that criminal history be disclosed on an initial written or electronic application. Employers may still obtain publicly available criminal background reports on applicants at any time. Some exceptions apply, and in particular, there is an exemption for positions where federal, state or local laws or regulations prohibit employing a person in the position that has a specific criminal history. This exception may exempt some healthcare positions. The CDA is investigating the specific intersections of this bill with dentistry and plans to publish more information, along with a best practice guide for hiring, prior to the new law’s implementation date.
- House Bill 1256 will require electronic filing of nearly all business tax returns to the state of Colorado beginning in January 2020, as it authorizes the Secretary of State to impose this requirement. For most dental offices using a financial or accounting firm to file taxes, this should not have a meaningful impact, but self-filers should assess the new law and consult an attorney or financial advisor about any impacts.
- House Bill 1267 assesses felony criminal penalties on an employer for willful failure to pay timely wages, including but not limited acts of paying less than minimum wage, when the amount owed to the employee totals $2,000 or greater. This bill targets human trafficking “employers” in particular, but the CDA will be monitoring any unintended consequences on businesses in other sectors. The bill will take effect in January 2020.
- Senate Bill 85 prohibits pay differences by gender for substantially equal work, regardless of job title, beginning in January 2021. Employers may continue to make pay distinctions on criteria of seniority, merit, performance, geographic location, education and training related to the work in question and travel that is a condition of the work performed. Employers are prohibited from asking for a wage rate history in hiring and may not prohibit employees from disclosing wage information. Violations of these requirements can result in repayment of any unsupported wage difference for up to three years. Employers may protect themselves by conducting comprehensive pay audits of their workforce at least every two years with the specific goal of identifying and remedying unlawful pay disparities. Employers must also keep records of job descriptions and wage rate history for each employee for the duration of employment and two years after the end of employment. For promotions, employers must also make efforts to universally announce or post opportunities to all employees on the same date and prior to deciding. Fines of up to $10,000 can be levied for non-compliance.
- Senate Bill 188 laid the groundwork for an effort to require employers to offer paid personal and family medical leave to employees. This year’s compromise bill enabled a task force to allow for study and an expedited start-up of any program ultimately authorized when the legislature revisits this topic in the 2020 legislative session. The intention is to develop a system that operates similar to workers compensation, where both the employer and the employee pay into a fund that would reimburse employees a percentage of their wages (up to 90% of wages) for a specified period of time (originally proposed as up to 12 weeks per year) for qualifying medical situations (which could include childbirth/adoption or serious health conditions for self or family). The effort, should it pass, would have a multi-year implementation timeline with launch expected around 2024. The CDA will continue to keep members apprised of these efforts.
- House Bill 1210 allowed local governments to set a higher minimum wage than the state minimum wage standard beginning in January 2020. Local governments would need to use a public process (city council, ballot measure, etc.) to enact any increase. While we don’t anticipate much direct impact on dentists, there could be potential for downstream cost impacts with suppliers and other service providers. Please keep the CDA apprised of any local efforts to increase minimum wage, as well as any dental-specific impacts of implemented measures.
Health insurance plans came under major scrutiny during the 2019 legislative session, as addressing the high cost of healthcare for patients was a significant priority for the legislature. The end result was a mixed bag with some good news and some not as promising, as both providers and insurers came under fire in several of the bills.
- House Bill 1174 established new standards for out-of-network billing at in network facilities. This bill was designed to address exorbitant fees sometimes charged by in-network hospitals and surgical centers when out-of-network provider support is sometimes utilized. Thanks to last minute amendments orchestrated by the CDA, dentistry at large should not feel much impact from the bill, but facility-based dental providers (hospitalists, oral surgeons and those providing care at hospitals or ambulatory surgery centers) may be impacted. The bill does not apply when a patient voluntarily uses an out-of-network provider, but only in emergency situations or care settings where the patient does not have a choice of providers (e.g., surgical assistants, anesthesiologists, etc.). Beginning in January 2020, disclosures must be provided by all healthcare plans, providers and facilities about the potential costs of receiving services from an out-of-network provider or facility. If a patient requests a written estimate of their financial responsibility from a patient or provider, it must be provided within three business days. The provider is required to bill the out-of-network insurer and not the patient (aside from any allowed deductible or co-pay, which may not be greater than if the patient had obtained services in-network). 10% interest must be paid if the provider over collects from the patient and retains the overpayment for more than 60 days. Within 60 days, the insurer is required to pay the provider a fee based on the higher of inflated (105% to 110%) median in-network rates or average (50th-60th percentile) of usual and customary regional fees. The insurance plan must provide evidence of compliance with payment criteria if requested. The provider and insurer can also negotiate and agree to an independent reimbursement rate and an arbitration process is created for providers who believe payment was not sufficient given the complexity of the services provided.
- House Bill 1211 raised the bar for insurers on prior authorization requirements, requiring disclosure of the criteria used in decision making, notification to providers when prior authorization criteria change and streamlining of processes for providers beginning in January 2020. Under the bill, once a prior authorization by a carrier—including a state-regulated dental plan—has been granted, it is valid for 180 days and cannot be rescinded during this time period so long as the patient does not have a change in coverage or exceed the plan’s limitations. Carriers are required to issue a decision on a prior authorization within five business days (72 hours for an urgent healthcare service) or the request is considered granted. Prior authorization criteria must be current, clinically based and aligned with other carriers. Providers with a history of meeting the carrier’s prior authorization requirements, at an approval rate of 80% or greater over the last 12 months, can be offered an exemption or streamlined process.
- There were several efforts to redesign health insurance to lower premiums: House Bill 1004 commissions a workgroup to recommend design for a public option for Colorado, House Bill 1168 would reactivate a state reinsurance pool to reimburse high cost claims, House Bill 1176 will study single payer and public options, and Senate Bill 4 would allow rural residents to join healthcare cooperatives to negotiate better rates. The CDA is actively involved in ongoing stakeholder discussions on this topic this fall.
Public health measures were generally well supported this legislative session. Efforts to incentive rural practice, improve school nutrition and discourage tobacco use were key highlights.
- House Bill 1088 will indefinitely continue a tax credit to incentivize more rural preceptor sites, even after facing tough scrutiny during this year’s legislative process. The existing tax credit offers dentists and other healthcare preceptors in rural areas a $1,000 personal tax credit to recognize their work in training the next generations of providers, who are often inspired to practice in underserved areas of the state through positive preceptor experiences.
- House Bill 1203 works to increase the number of school nurses through a $3M grant program. Given the CDA’s interest in expanding school dental screenings, we may work—through the grant criteria—to incentivize grantees to include an oral health component in their applications.
- House Bill 1171 works to improve child nutrition through expansion of the school lunch program through grade 12. Improving nutrition could lead to some improvements in child oral health.
- Several bills aimed at reducing youth tobacco use were considered this session, including House Bill 1033 and House Bill 1076. These bills allow local jurisdictions to increase taxes on tobacco products, potentially raise the minimum age for purchase and work to clarify that e-cigarettes and vaping devices are regulated as other tobacco products under state law. An attempt to raise tobacco taxes through a ballot initiative failed (House Bill 1333).
While there continues to be recognition of the burden of educational debt for students, change in this area has been slow. Two 2019 initiatives made small progress amidst the need for greater reform.
- Senate Bill 2 requires a state license for all student loan servicers in Colorado beginning January 2020, addressing a gap that allowed some loan providers to operate unregulated. The bill also imposes customer service standards, assessments of financial viability and criminal history checks for loan servicers and creates a student loan ombudsman to provide assistance to borrowers.
- Senate Bill 95 requires an ongoing five-year review of higher education funding in Colorado with the intent to call attention to major gaps. A report to the governor, state Joint Budget Committee and legislature is required beginning in Nov. 2019 with the hope of drawing meaningful change.