Volume 6, No. 10, October 2017

Volume 6, No. 10, October 2017 Pennsylvania Capitol Dome IN THIS ISSUE ADEA Releases its Second Annual State-by-State Opioid Prescription Drug and Opioid Abuse Summary Congress Failed to Reauthorize CHIP Funds by Deadline, Putting States in Limbo Arizona Dental Therapy Debate Heats Up Licensing for Dental Professionals and Other Health Professions Under Review FTC Task Force to Host Roundtable on Occupational Licensing An Update on State Dental Regulations Legal News You Can Use Report of Interest State Resources ADEA State Update Volume 6, No. 10, October 2017 Page 1

ADEA Releases its Second Annual State-by-State Opioid Prescription Drug and Opioid Abuse Summary Prescription drug abuse is a growing public health concern. Each day, 91 people die from overdosing on opioids, according to the Centers for Disease Control and Prevention. Many states looking to reduce prescription drug abuse, overdose and misuse have enacted legislation and proposed new rules and regulations to address the issue. For the second year in a row, ADEA staff has conducted a comprehensive review and analysis of state legislation recently enacted as well as state rules and regulations either pending or finalized regarding prescription drug and opioid abuse. The information has been compiled into a chart organized stateby-state, in alphabetical order. The chart also provides links to resources with additional information. To stay updated as relevant opioid legislation is introduced for the 2018 legislative cycle, please visit the ADEA United States Interactive Legislative Tracking Map and the ADEA United States Interactive Regulatory Tracking Map; select Prescription Drug Monitoring from the drop-down menus. Information on the ADEA interactive maps is updated daily. Congress Failed to Reauthorize CHIP Funds by Deadline, Putting States in Limbo Congress failed to reauthorize funding for the Children s Health Insurance Program (CHIP) by the Sept. 30 deadline, thus allowing funding to lapse. CHIP is funded jointly by states and the federal government. Although CHIP benefits are different in each state, all states provide comprehensive coverage, including dental and vision care, routine check-ups, immunizations and prescriptions for 8.9 million children. Most states have enough money remaining from the last appropriation to keep children insured under CHIP through the end of the year. Ten states are expected to exhaust their funding by the end of 2017, and 22 will do so within the next six months if funding is not reauthorized by Congress. Virginia s governor issued a press release on Oct. 5, stating that the Commonwealth plans to issue CHIP termination notices to parents at the end of November if Congress has not taken any action by then to reauthorize CHIP funding. ADEA State Update Volume 6, No. 10, October 2017 Page 2

On Sept. 13, the National Association of Medicaid Directors (NAMD) sent an urgent message to congressional leadership asking them to make CHIP reauthorization a priority. In the letter to Congress, NAMD stated: Should Congress either reduce CHIP allotments or reduce or eliminate the 23-percentage point enhancement in federal match, states will be left with significant funding shortfalls. Most states will not be in a position to fill such a shortfall without either seeking to shift funds among line items or making supplementary budget requests to their legislatures, which may in turn lead to special sessions to address CHIP funding. State legislatures will face a difficult task in finding additional funds in this scenario. States whose CHIP programs are fully funded by the federal government (due to the enhanced Federal Medical Assistance Percentage (FMAP)) have no mechanism for funding the program should federal funding commitments change on short notice. States that pay a state share of CHIP spending, would see a significant increase in unanticipated and unplanned-for state spending. On Oct. 4, congressional committees advanced two CHIP reauthorization bills. The Senate Finance Committee passed the Keeping Kids Insurance Dependable and Secure (KIDS) Act (S. 1827) by voice vote. Additionally, the Energy and Commerce Committee advanced the Helping Ensure Access for Little ones, Toddlers, and Hopeful Youth by Keeping Insurance Delivery Stable (HEALTHY KIDS) Act (H.R. 3921). ADEA State Update Volume 6, No. 10, October 2017 Page 3

The Henry J. Kaiser Family Foundation released an issue brief comparing the two bills. Both the current Senate and House versions: 1) Extend CHIP funding for 5 years. 2) Phase out the 23-percentage point enhanced match by 2021. 3) Extend the state maintenance of effort requirement for children below 300% of the federal poverty level. 4) Extend express lane eligibility. However, several key differences between the two bills remain. The House version provides $1 billion in Medicaid financing to Puerto Rico and contains details regarding offsets (how CHIP will be paid for), but the Senate version currently contains no such language. ADEA Advocacy and Government Relations will keep you updated on the status of funding reauthorization for this critical program. Arizona Dental Therapy Debate Heats Up Arizona s sunrise review process provides a mechanism for health professions to request regulation or expansion in scope of practice. On Sept. 1, the dental coalition Dental Care for Arizona submitted a sunrise application to initiate legislation to authorize the use of dental therapists. The sunrise application will go before the Health Committee of Reference (COR) for review and consideration. According to COR staff, the date of the next Health COR meeting has been tentatively set for Nov. 28. The Health COR, composed of subsets of the House and Senate Health Committees, will hear testimony and make a recommendation on whether legislation to create scope of practice and licensure for dental therapy should be considered by the full Arizona Legislature. This 10-member committee will have a significant say in whether the other 80 members of the state House and Senate will be able to consider and debate this proposal. In 2016, a similar sunrise application was submitted. However, during last year s Health COR meeting, the motion to adopt the dental therapy sunrise application as written failed to pass. During that meeting, one Health COR member voted for the motion to adopt the sunrise application, eight members voted against the motion and one member abstained. ADEA State Update Volume 6, No. 10, October 2017 Page 4

Licensing for Dental Professionals and Other Health Professions Under Review Eleven states have been selected to participate in the National Occupational Licensing Learning Consortium. The consortium will focus in part on the reciprocity issues faced by licensed dental and other health care professionals desiring to relocate to another state and practice. According to the National Conference of State Legislatures (NCSL), A growing body of economic research has shown that occupational licensing government approval to work in a specific field may not effectively increase consumer safety and instead serves as a significant barrier to employment for many Americans. The following states will convene this December to work on this policy issue, with the support of the NCSL, the National Governors Association Center for Best Practices (NGA) and The Council of State Governments (CSG): Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah, and Wisconsin. Specifically, the consortium states will focus on some of the populations most burdened by occupational licensing, including active duty military, veterans and their spouses and unemployed and dislocated workers. Each state will work to identify areas of their occupational licensing policy that may create extra barriers to entry for these populations and will examine potential solutions to reduce related barriers. According to NCSL policy staff, membership of each participant state s team is currently being formed and will continue to evolve over the coming months in preparation for the December meeting. This collaborative effort among elected officials and state and national experts will produce the playbook for policymakers in every state to address some of the barriers that are hindering the full potential of the American workforce and American worker, said NCSL President Senator Deb Peters (R-SD). ADEA State Update Volume 6, No. 10, October 2017 Page 5

FTC Task Force to Host Roundtable on Occupational Licensing On Nov. 7, the Federal Trade Commission s (FTC s) Economic Liberty Task Force will host a roundtable in Washington, DC, to examine empirical evidence on the effects of occupational licensure. Over the last few years the FTC staff has published comments on a myriad of policy topics related to dentistry. Specifically, the FTC staff has submitted comments and/or guidance on such topics as 1) active supervision by state regulatory boards (FTC guidance) following the U.S. Supreme Court ruling in North Carolina State Board of Dental Examiners v. FTC; 2) state legislation related to increasing access to dental care by expanding scope of practice for dental hygienists (FTC comment); and 3) portability of professional licenses across state lines (FTC Announcement). Currently, the FTC Economic Liberty Task Force is requesting that the public share information with the Task Force related to the following: State-based efforts to review and reform occupational licensing. Experts to consult. Studies to review. Professions undergoing changes in their approach to licensing. Interstate compacts, reciprocity and related efforts. An Update on State Dental Regulations California On April 6, the Dental Board of California held a special meeting and voted to suspend the administration of the Registered Dental Assistant (RDA) practical examination, effective immediately. The Board took this action after reviewing a report by the Office of Professional Examination Services (OPES) of the Department of Consumer Affairs (DCA) that evaluated the RDA practical examination. The report specifically looked at such issues as the inconsistencies in different test site conditions, deficiencies in scoring criteria and poor calibration of examiners. As a result of its findings, the OPES recommended that the Board immediately suspend the administration of the practical examination, and the Board took action to that end. Pursuant to state law at that time, the suspension of the practical examination could only remain in effect until July 1, 2017. After this date, the exam would have been reinstated as a requirement for RDA licensure. ADEA State Update Volume 6, No. 10, October 2017 Page 6

Between April 6 and July 1, 2017, the Board licensed registered dental assistant candidates who had completed all other licensing requirements except passage of the practical exam. Also during this time, the Board sought an author to carry urgency legislation that would continue the suspension of the examination from July 1, 2017 until Jan. 1, 2020, at which time a practical examination or an alternative means of measuring competency would be implemented. This legislation, AB 1707, was signed by the governor and became effective on Aug. 8. The Board will resume licensing applicants who have met all other requirements of licensure except passage of the practical examination, including successful completion of the RDA Written Examination and the RDA Law and Ethics Examination. The Board encourages applicants for RDA licensure to submit applications to the Board. Applicants who submit complete applications will be issued eligibility to take the RDA Written Examination and the RDA Law and Ethics Examination. On Oct. 13, the Board will hold a RDA Practical Examination Alternatives workshop. The workshop is open to the public and will provide a forum for discussion regarding the subcommittee s recommendations and to allow interested parties the opportunity to provide verbal and written comments. 1 The discussion and feedback generated from this workshop will be considered by the subcommittee prior to the submission of their final recommendations at a future Board meeting. Texas The Texas State Board of Dental Examiners proposed new rule 22 Texas Administrative Code (TAC) 100.12, concerning the Advisory Committee on Dental Anesthesia. The new rule establishes the Advisory Committee on Dental Anesthesia and specifies its duties and the appointment of its members. The rule goes into effect Oct. 19, according to Board staff. Washington The Washington Dental Quality Assurance Commission is considering proposed rule amendments for Washington Administrative Code (WAC) 246-817-601 through 246-817-660 dental infection control standards. The commission has determined that current dental infection control standards may be outdated, and amendments are necessary to ensure standards are followed to prevent disease transmission in dental care. The Centers for Disease Control and Prevention (CDC) Summary of Infection Prevention Practices in Dental Settings: Basic Expectations for Safe Care guidelines are the basis for these proposed rules. 1 At its August 2017 meeting, the Board and the Dental Assisting Council (Council) considered a memorandum that was presented by the OPES relating to alternatives for assessing the competency of RDA candidates to perform the clinical procedures necessary for licensure. After the discussion, the Board took action to appoint a subcommittee of the Board to develop alternatives, other than a practical exam, to bring back to the Board and Council for consideration at a future meeting. ADEA State Update Volume 6, No. 10, October 2017 Page 7

Legal News You Can Use Earlier this year, the Texas Supreme Court ruled that a resident physician performing duties for the University of Texas Physicians Clinic could not invoke state immunity to defend against a suit alleging claims of medical malpractice. Last month, the Court denied a rehearing of the issues addressed by its earlier ruling. Background In 2010, a resident physician performing duties at the University of Texas Physicians Clinic treated a pregnant patient by prescribing progesterone. 2 The progesterone allegedly caused the patient to have an asthma attack resulting in the death of the patient and her unborn twins. The patient s mother filed suit against the resident physician who treated her daughter alleging claims of medical malpractice. The resident argued that since she was part of a residency program administered and overseen by the University of Texas System Medical Foundation (Foundation)(a government entity), she was a government employee and therefore shielded from liability under Sec. 101.106(f) of the Texas Tort Claims Act. The lower court found the resident s arguments persuasive and dismissed the action. The court of appeals reversed the lower court finding that the resident could not invoke immunity to defend against the medical malpractice suit. Texas Supreme Court Ruling The Texas Supreme Court affirmed the decision reached by the court of appeals and held that the resident could not rely on Sec. 101.106(f) of the Texas Tort Claims Act to defend against claims of medical malpractice because the resident physician was not an employee of the government under state law. The Texas Supreme Court noted that under Texas law, an employee must be both paid by and supervised by an employer. In this case, the Texas Supreme Court found that although the Foundation (a government entity) pays the residents and provides malpractice insurance to them, the day to day supervision of the residents comes from teaching staff who are employees of UTHSCH, not the Foundation. Next Steps Since the Texas Supreme Court denied the resident s motion for rehearing, the case will be sent back to the trial court for further proceedings. 2 The resident physician was in a residency program in obstetrics and gynecology offered by the University of Texas Health Science Center at Houston (UTHSCH). ADEA State Update Volume 6, No. 10, October 2017 Page 8

Report of Interest In a letter sent to the Minnesota Department of Human Services, the Centers for Medicare and Medicaid Services (CMS) notified the state that children enrolled in Medicaid in Minnesota are receiving dental services at a very low rate, and that unless children s access to dental services improves the state is at risk of having federal funding withheld. CMS gave the state 90 days to submit a plan for substantively improving dental care access for Minnesota s children enrolled in Medicaid. According to staff in the CMS Division of Quality and Health Outcomes, CMS has been in contact with the state pursuant to the letter, and is working with the state on their proposed plan. To date no federal funds have been withheld. State Resources ADEA Weekly State Legislative & Regulatory Update The ADEA Weekly State Legislative & Regulatory Update provides a brief snapshot of upcoming committee hearings, floor action and governor action on relevant state legislation, as well as comment period deadlines and public hearings for rules and regulations pertinent to ADEA members. Links are provided to legislative and regulatory activity spotlighted in the weekly update. ADEA Advocacy Website The ADEA Advocacy website is updated daily and contains issues of importance to academic dentistry and dental and craniofacial research. Also, it allows you to communicate with your elected officials by simply entering your ZIP code or address. You can navigate the website by clicking through the drop-down menus at the top of the page. While there, please subscribe to ADEA Action Alerts to maximize your ability to send messages to your elected officials. ADEA State Update Volume 6, No. 10, October 2017 Page 9

ADEA/AGR on Twitter For the latest information on issues affecting dental education and dental and craniofacial research in the state legislatures, please follow us on Twitter at @ADEAAGR. ADEA Day Book The ADEA Day Book provides up-to-the-minute information regarding congressional hearings and briefings, federal agency meetings and webinars and policy conferences that may be of interest. ADEA facilitates your ability to watch, listen or participate. Simply click on the link provided next to the event and then you are connected. Check back often for the most current listing of events. ADEA publishes the ADEA State Update monthly. Its purpose is to keep ADEA members abreast of state issues and events of interest to the academic dentistry and the dental and research communities. 2017 American Dental Education Association 655 K Street NW, Suite 800, Washington, DC 20001 Telephone: 202-289-7201, Website: ADEA.org Jennifer Brown, J.D. ADEA Director of State Relations (BrownJ@ADEA.org) Timothy Leeth, CPA ADEA Senior Director for Federal Relations (LeethT@ADEA.org) Christina McWilson-Thomas, J.D. ADEA Director of Government Affairs (ThomasC@ADEA.org) ADEA State Update Volume 6, No. 10, October 2017 Page 10