By Jennifer Goodrum, CDA Director of Government Relations
From the Summer 2017 Journal of the Colorado Dental Association
Colorado’s 2017 state legislative session began Jan. 11 and ended on May 10. Key themes during the 2017 legislative session included insurance reform, transportation, construction defects, marijuana, school finance reform and balancing a very constrained state budget. In spite of a legislative session filled with many issues competing for legislators’ attention, the CDA was able to secure some major wins for members this year. Colorado’s 2017 state legislative session began Jan. 11 and ended on May 10.
Key themes during the 2017 legislative session included insurance reform, transportation, construction defects, marijuana, school finance reform and balancing a very constrained state budget. In spite of a legislative session filled with many issues competing for legislators’ attention, the CDA was able to secure some major wins for members this year.
This legislative session was a particularly busy one for the dental profession, with the CDA monitoring the nearly 700 bills considered by the state legislature. This year, more than 80 introduced bills had direct or indirect impacts on dentists and dental offices, and the CDA was actively engaged advocating for CDA members on more than a dozen bills.
- Advanced insurance reforms needed to address current systemic inequities
Health insurance reform was a top topic of conversation this year at the state Capitol. In addition to conversations at the federal level about the future of the Affordable Care Act, state-level bills addressed coverage mandates, carrier-provider relations and even a sunset review of the state office that regulates insurance. Some of the key insurance reform bills pertinent to dentists included:
- Senate Bill 190, which PASSED, will stop carriers from dictating fees for services they do not cover in dental plans. The practice of dental plans dictating fees for noncovered services has been an ongoing concern for many dental offices, as it can disrupt patient choice of dental services and the patient-provider relationship. It can also interfere in fair delivery of dental services for patients across the state, creating cost shifting and barriers to care. The bill passed the Colorado legislature, has been signed by the governor and takes effect on Aug. 9, 2017.
- Senate Bill 88, which PASSED, addresses the growing trend of narrow networks with restricted provider panels. This bill requires carriers and any intermediaries used to manage or administer health benefits to disclose the standards used to select network providers and tier providers in tiered plans. The bill passed the Colorado legislature, has been signed by the governor and takes effect on Jan. 1, 2018.
- House Bill 1173, which PASSED, will help address situations where a carrier retaliates against a provider who disagrees with a medical policy or patient policy determination. The bill would prohibit an adverse action (such as termination of a provider’s contract) if a provider testifies, files a complaint, participates in an investigation or communicates with a public official or law enforcement about the carrier’s policy. There have been reports about dental carriers retaliating against dentists for such activities in the past. The bill passed the Colorado legislature, has been signed by the governor and takes effect on July 1, 2017.
- A number of other network and insurance reform efforts were pursued in 2017, including HB 249, a sunset review of the Division of Insurance that regulates carriers.
- Additional insurance reform bills were pursued but did not pass. Senate Bill 133 would have required the state Division of Insurance to investigate provider complaints against insurers, especially when there are patterns of complaints, and would have required notification to the complaining provider about the outcome or resolution of the complaint. House Bill 1247 would have addressed patient choice of provider and allow any willing provider to adhere to the terms of a carrier’s contract to participate in the carrier’s network. Senate Bill 206 would have addressed charges and patient notice for services delivered by an out-of-network provider at an in-network facility, a situation sometimes encountered by oral surgeons and other dentists who provide hospital or facility-based care. The bill would have required that health insurance plans pay either the billed charges or 80% of regional usual and customary fees to out-of-network providers that render services at in-network facilities, and created a dispute resolution process for cases where the provider feels these payment criteria were not met.
These 2017 insurance bills represent a first step in a broad conversation the CDA will continue to have with legislators in coming years about needed reforms to dental plan design and dental care delivery.
- Promoted reasonable standards and efficiency in healthcare licensure and regulation
- House Bill 1010, which PASSED, made a few technical changes to the Dental Practice Act, based on recommendations of a joint task force between the CDA and Colorado Dental Hygienists Association (CDHA). The bill addressed some clean-up items on lasers, dental hygiene prescribing and liability coverage requirements in follow-up to changes made during the 2014 Sunset Review. This bill passed, was signed by the governor, and takes effect Aug. 9, 2017. Under the signed bill, the Colorado Dental Board will have a bit more flexibility to write rules on laser usage by dental hygienists, though any changes must comply with existing scope of practice. The bill clarified that dental hygienists may maintain emergency drugs relevant to their scope of practice when acting in collaboration with a licensed dentist. The Colorado Dental Board will be conducting rulemaking related to this bill in coming months, starting at its July 12 meeting.
- House Bill 1165, which PASSED, better outlines timelines and notification processes related to disciplinary actions handled by the state Department of Regulatory Agencies (DORA), the state agency that includes the Colorado Dental Board. The bill could help ensure a bit more consistency and efficiency in DORA processes for both dentists responding to a complaint and any patients involved. The bill passed the Colorado legislature, has been signed by the governor and is currently in effect.
- House Bill 1254, which DID NOT PASS, was a bill that sought to remove current limits to non-economic damages in cases of wrongful death of a child under the age of 21. This bill could have affected liability coverage premiums for healthcare providers, as the bill did not initially exempt healthcare cases (which fall under different and much tighter limits in current law). The healthcare community worked jointly to amend the bill to exempt healthcare providers in the House, and to ultimately kill the bill in the Senate.
- House Bill 1121, which DID NOT PASS, would have required all healthcare providers with prescribing authority, including dentists and dental hygienists, to undergo a background check at the time of initial licensure or during the provider’s next license renewal. Background checks are a requirement for licensure of healthcare providers in nearly all U.S. states. The CDA worked hard to streamline this bill and associated processes for dental providers in case it passed. The CDA successfully amended the bill to ensure the background check would be a one-time (as opposed to ongoing) requirement, to give more convenient options for where the check could be done and to ensure that the requirements would not apply to retired licensees. The bill had a lot of consumer and legislator support (though also some opposition in the provider community), but faced a tough road due to a large cost to the state to implement. This bill is expected to be pursued again in future legislative sessions.
- HB 1350, which DID NOT PASS, sought to address opioid prescribing in light of growing attention to the opioid abuse and addiction epidemic. The bill proposed to allow pharmacists to fill a prescription in increments (partial fill) as opposed to in full in order to reduce leftover prescription drugs in medicine cabinets. The bill faced a late introduction and rocky political road, and ultimately failed to address many of the broader topics needed to meaningfully address the opioid epidemic. An interim legislative task force was appointed to invest additional attention into this topic over summer months. The CDA will be participating in these interim task force meetings in hope that productive conversations about improvements to the state’s Prescription Drug Monitoring Program (PDMP), treatment options, and cost sharing parameters for partial fill allowances will be addressed in addition to any prescribing changes or limitations.
- Added measures to improve provider experience and participation with Colorado’s Medicaid dental benefits
There were several bills this legislative session to address Medicaid program integrity and patient communications. With these bills, the CDA sought to streamline processes for both dentists who participate and do not participate with the Medicaid dental benefit. Clearly, work remains to continue to improve provider experience with Medicaid, but the CDA achieved some notable progress this session.
- HB 1139, which PASSED, sought to enhance the section of state law that prevents a healthcare provider, including a dentist, from collecting any fee from a Medicaid patient for a covered service, regardless of whether the provider participates with Medicaid or not. Current state law imposes a penalty on providers who engage in this type of activity, and penalties have historically been applied even when providers mistakenly bill a patient (or were unaware of the patient’s Medicaid coverage status). HB 1139 improved current processes by explicitly allowing the provider a chance to correct mistaken billing before penalties are applied. It also converted the penalty from a percentage of the total fee collected from the patient to a flat $100 fee, making the penalty more predictable for providers when applied (and likely reducing the dollar value of the penalty for dentists in many cases). Also, as a result of negotiations on SB 4, which DID NOT PASS, the CDA was successful in having Medicaid commit to issuing a bulletin clarifying that a non-Medicaid provider may collect a private plan co-pay from a patient who is also covered by Medicaid (so long as the patient has signed an appropriate waiver form) without violating this section of law, an issue that has been a challenge for dentists who treat patients with dual dental coverage in the past. The CDA worked with partners to also amend this bill to specify that this section of law would not apply if a patient misrepresents their Medicaid coverage status and the provider can provide documentation of the misrepresentation. The bill passed the Colorado legislature, has been signed by the governor and is currently in effect.
- Protected dental funding in the state budget
Colorado’s state budget continues to be a substantial concern, especially relative to an optional Medicaid adult dental benefit. In spite of growth in the state’s economy and revenues, the state budget has been in a precarious state in recent years due to TABOR constraints. Uncertainty about federal financing of Medicaid also contributes uncertainty to the benefit. A top CDA priority this session was to protect recent gains with the adult Medicaid benefit—both recent rate increases as well as the benefit in whole. The CDA also protected recent funding gains for dental loan forgiveness programs.
- Added flexibility to fee disclosure requirements for small practices
In 2017, the legislature revisited past efforts to require healthcare providers and facilities to publish a list of cash pay prices for services that a third party carrier (insurer or benefit plan) does not pay for. Under SB 65, which PASSED, a list of the 15 most common healthcare fees provided by the office is required to be made available electronically or on the provider’s website, and would need to be updated annually. Dentists are specifically included in the scope of the bill, though practices with 6 or fewer providers may opt to provide the information by posting in the office, as opposed to providing it electronically or on a website. Disclosure language is required indicating that the fee published is not a guarantee of cost to an individual. Insurers are also prohibited from using the information required in SB 65 to their financial advantage in contract negotiations. There are a number of implementation hurdles that will need to be ironed out in coming months, including the variability in reporting fees for codes versus procedures (which can be comprised of a number of codes that may differ from patient to patient) and managing corresponding patient expectations. The CDA will publish additional information for members on compliance requirements as they become more defined prior to the Jan. 1, 2018 effective date.
- Fixed an interpretation issue related to a tax incentive created in 2016 for preceptors in rural areas
The CDA and other stakeholders ran into some issues with the state Department of Revenue (DOR) interpretation of HB16-1142, a bill that extended tax incentives to certain rural providers, including dentists. DOR’s narrow interpretation meant that rural dentists, along with many other healthcare providers, would not qualify as intended for the credit—at least without universities making major changes to the preceptor programs or reducing the number of rotation slots available to students (and both of these options run contrary to the clear intent of the original bill). The CDA worked diligently through the session to pursue a fix to DOR’s draft rule and ultimately pursued a legislative solution through the nonsubstantive reviser’s bill, SB 294, which PASSED, was signed by the governor and is currently in effect.
Thanks to the many dentists who contacted state legislators and advocated at the state Capitol to help achieve these great results. A full list of bills monitored by the CDA in 2017 is available at cdaonline.org/billstatus.