Were the Odds Ever in Our Favor? 2018 Legislative Wrap-Up

Kelsey CreehanFeatured News

By Jennifer Goodrum, CDA Director of Government Relations
From the Summer 2018 Journal of the Colorado Dental Association

Colorado’s 2018 state legislative session began on Jan. 10 and ended on May 9. Legislators considered several bills that affect dental offices. Bills with the greatest impact on dentists are detailed below.

Dental Hygiene Authorization to Administer Silver Diamine Fluoride

In 2017, the Colorado Dental Board opined that dental hygienists could not apply silver diamine fluoride (SDF), even under supervision. Given its safety and efficacy profile, and potential benefits for underserved populations, there was interest among the dental and public health communities in extending authorization to dental hygienists to administer this treatment. The CDA assumed the legislative lead in guiding a bill of this nature, House Bill 1045, through the process. After consulting with stakeholders and the dental community, the CDA drafted a bill consistent with the following principles:

  • Allow dental hygienist administration under direct, indirect or telehealth supervision (collaborative agreement with a dentist required);
  • Include training with both didactic and clinical instruction, administered by an entity approved to offer CE to dentists; and
  • Require disclosure that mirrors the ITR procedure and also addresses the staining of teeth involved.

House Bill 1045 passed in March and was signed into law by the governor on March 22, 2018. This bill took effect on Aug. 14, 2018.

Opioid Prescribing Reforms

Any dentist who prescribes opioids for dental pain should take note of this section. The state legislature recently passed Senate Bill 22, a bill that limits initial prescriptions for opioids (that don’t meet certain defined exceptions) to a seven-day fill. Unless an exception is met, the prescriber is required to check the Prescription Drug Monitoring Program (PDMP) before issuing additional fills, of which the second fill is also limited to seven days. The bill only limits the two initial opioid fills for an opioid naïve patient, beyond which a provider may use his/her discretion to prescribe in accordance with the standard of care. These limits do not apply, if, in the judgment of the prescriber, the patient:

  • is experiencing post-surgical pain, that, because of the nature of the procedure, is expected to last more than 14 days;
  • has been diagnosed with cancer and is experiencing cancer-related pain;
  • or has chronic pain that typically lasts longer than 90 days or past the time of normal healing, as determined by the prescriber, or following transfer of care from another prescriber who prescribed an opioid to the patient.

Once in effect, dentists who repeatedly fail to comply with the requirements of this bill will be subject to potential disciplinary action by the Colorado Dental Board.
These prescribing reforms were just one of many bills that passed this legislative session in an attempt to address a nationwide opioid abuse epidemic. In addition to Senate Bill 22, which addressed prescriber behavior, five additional bills passed this session, including bills that work to increase community awareness as well as access to mental health services and treatment options. House Bill 1279, a bill to require mandatory e-prescribing for opioids starting in 2021 (with an additional one-year extension for dentists), was also proposed during the 2018 legislative session but was unsuccessful. We anticipate additional e-prescribing mandate bills to be proposed in future legislative sessions.

Fee Disclosure

In this legislative session, the CDA worked to oppose efforts to mandate additional provider fee disclosures through House Bill 1358, especially given the very recent enactment of 2017’s Senate Bill 65 (which required the posting of a provider’s top 15 average fees). House Bill 1358 would have required annual publication of providers’ full maximum fee schedules and prevented billing patients should there be a lack of compliance with the bill’s requirements. The bill did not pass. However, a ballot initiative on this topic, Initiative 146, has been filed and may be considered by voters in the fall 2018 election. The CDA is working with other stakeholders to oppose this ballot effort. While transparency is a core value of the CDA, disclosure must be provided in a manner that provides relevant and necessary information to the intended audience in a meaningful way, while imposing as few disruptions to the discloser as possible. Both House Bill 1358 and Initiative 146 fail to hit that mark.

Adult Medicaid Dental Benefit and Funding for Oral Health

The CDA was successful in preserving the adult Medicaid dental benefit in a year where there was substantial change and uncertainty. Both federal efforts to reform the Affordable Care Act (ACA) as well as state budget (constrained by unique Colorado TABOR limits that restrict general fund growth) were of significant concern, especially since adult dental coverage is an optional program. Federal healthcare reform discussions, which included contemplation of block grants for state Medicaid programs, were a big uncertainty at the beginning of 2018 and might have had the effect of eliminating the optional adult dental program. At the state level, there were also repeated conversations among the state’s Joint Budget Committee about changing the funding source for the Medicaid adult dental benefit from the Unclaimed Property Trust Fund to the state general fund. While current legislators seem to be committed to funding the adult dental benefit from another source, any change introduces program scrutiny and uncertainty about future continuation. No action was ultimately taken this year, and for now, the funding source remains unchanged. However, this conversation will likely continue in the future. In the 2018-2019 state fiscal year, all Medicaid providers will receive a small 1% provider rate increase. Oral health funding through the state department of health was expanded by $500,000. These funds are expected to go toward a community grants program to improve oral health. Additional funding was secured to slightly expand dental loan forgiveness funds, where cuts had been expected.

Medicaid Fraud Prosecution

House Bill 1211, a bill giving the state Attorney General’s office formal authority to prosecute Medicaid fraud, passed this legislative session. The CDA worked hard to revise this bill to ensure due process for providers, and ultimately achieved a more provider-friendly process in the adopted bill.

Data Privacy Breaches

The CDA worked to amend another bill, House Bill 1128, which requires that data privacy breaches be reported to the State Attorney General, to avoid duplicative requirements for providers already subject to HIPAA standards. While the stakeholder community did not achieve the full exemption sought for HIPAA providers, we minimized the compliance burden, with a streamlined reporting process created for HIPAA compliant providers.

Patient Referrals

Senate Bill 115 proposed to expand federal Medicare and Medicaid Stark laws, which substantially restrict patient referrals. The CDA worked with partners to stop this bill, and it ultimately did not pass.

In what was originally anticipated to be a lighter healthcare policy year, the 2018 legislative session was very busy. This session, more than 60 bills were introduced that had either a direct or indirect impact on dental practices. In a year of many divisive issues and extreme tensions at the statehouse, the CDA was fortunate to be able to accomplish many of its key objectives. Overall, it was a successful year for the CDA and dentists, though also a year of compromise and positioning. A report on the full list of bills monitored by the CDA in 2018 is available at cdaonline.org/BillStatus.

2018 is an election year, where state senators and state representatives in your area will be elected to serve and direct policy for the next two to four years. We encourage you to get to know your local elected officials and engage them early to learn about and support key dental issues. Mark your calendar to vote in the upcoming Nov. 6 general election. CODPAC, the CDA’s political action committee, is currently engaged in a thorough review of all statehouse candidates and will provide more information about endorsements and candidate support in the fall Journal of the Colorado Dental Association.