Attorney On Law

Legislative Postmortem

NYSDA scores positives in current State Budget in an otherwise anemic legislative session.

Lance Plunkett, J.D., LL.M.

The 2021 legislative session turned out to be rather slim on priority dental issues, a distinct turnaround from the success tallied at the end of the 2020 session last December (the teledentistry legislation). However, the State Budget for 2021-2022 proved to be the highlight of this year’s session for NYSDA.

With the ongoing novel coronavirus (CO- VID-19) pandemic crisis triggering a potential multi-billion-dollar shortfall in state revenues, the governor had proposed across-the-board one percent reductions in Medicaid reimbursements, including all dental services. In addition, the NYSDA Dental Demonstration Project (DDP) appeared doomed, as cuts to such optional funding items were being threatened and the DDP was never mentioned in the governor’s budget or any early legislative budget proposals. Nevertheless, NYSDA prevailed, eliminating all cuts to Medicaid reimbursements and securing funding for another year for the DDP.

Other highlights coming directly from the State Budget include:

• Telehealth can now be delivered anywhere the patient is in the state by a qualified healthcare provider from anywhere in the United States.

• All changes to the excess malpractice insurance program were eliminated and the program continues for just another year as usual.

• Medicaid expense reports from the New York State Department of Health will now be issued quarterly instead of monthly.

• The Department of Health “Family Plus Health Program” is replaced by the Department of Health “Basic Health Program,” and dental and vision services will now be part of the Basic Health Program, with the Commissioner of Health determining exactly what services will be covered and with no cost-sharing allowed for dental services.

• Residential healthcare facilities must spend 70% on direct resident care, which is defined to include spending on dental services, among many other spending items. NYSDA was also able to have the New York

State Senate unanimously pass S.6694 (Harckham), the NYSDA bill to amend the Dental Practice Act so that dental hygienists certified to use nitrous oxide and local infiltration anesthesia may do so to assist a dentist with any dental procedure. Currently they may only do so for dental hygiene procedures. It also allows registered dental assistants to place and remove temporary restorations. Unfortunately, the Senate passed the bill on June 9 and there was not enough time to move the bill out of the Assembly Higher Education Committee for a vote by the full Assembly. The Assembly adjourned its session on June 11. Assemblyman John McDonald indicated the identical Assembly bill—A.7754-A (McDonald)—would go forward in the 2022 legislative session.

Health Centers and HEROs

The New York State Senate and Assembly unanimously passed A.1587 (Gottfried)/S.2127 (Rivera) to allow schoolbased health centers to choose between being paid via Medicaid managed care or Medicaid fee-for-service. The NYSDA Council on Dental Benefit Programs had reviewed this bill and determined NYSDA should monitor it but take no position in either support or opposition. This bill has still not been sent to the governor for his action.

And the Legislature did manage to successfully pass the Health and Essential Rights (HERO) Act—the acronym is a nice invention. On May 5, Gov. Cuomo signed it into law [A.2681-B (Reyes)/S.1034-B (Gianaris)] as Chapter 105 of the Laws of 2021. You can read details on the law in my column in the June/July New York State Dental Journal.

Since then, the United States Occupational Safety and Health Administration (OSHA) adopted its Emergency Temporary Standard (ETS) for Healthcare Workers to deal with COVID-19 workplace protections. These two items form a strange matrix. The New York State Department of Labor has stated that persons subject to the OSHA ETS are exempt from the HERO Act. However, most dentists (but not all) are not subject to the OSHA ETS. Dentists who screen people entering their offices for COVID-19 and turn away those who screen positive for the virus are exempt from the OSHA ETS.

The State Department of Labor has been asked if it would be possible to authorize exemption from both the OSHA ETS and the HERO Act, but it has not responded positively so far and such a double exemption is not literally part of the HERO Act, which covers all infectious airborne diseases and not just COVID-19. NYSDA will be watching this issue closely, but for now, those dentists who are exempt from complying with the OSHA ETS need to comply with the HERO Act.

The NYSDA definition-of-dentistry bill was introduced by Assemblyman Peter Abbate as A.7195 and Sen. Andrew Gounardes as S.6383. Both bills remove language that has been misconstrued by the New York State Education Department to effectively eliminate the maxillofacial area from dentistry and limit dentists to the teeth and mouth.

Neither bill advanced out of the Higher Education Committee in either the Assembly or Senate.

Wrong-Headed Decision

Speaking of the Education Department misconstruing legislation, the single biggest governmental affairs issue in 2021 has been the March 9 opinion of the Education Department purporting to analyze dental scope of practice to exclude any testing for COV- ID-19. This opinion was issued despite both the governor and the New York State Department of Health already recognizing that dentists can, under the New York State Public Health Law, perform laboratory tests that are CLIA-waived (Clinical Laboratory Improvement Amendments Act) if the dentist is registered with the Department of Health’s Physician Office Laboratory Evaluation Program (POLEP). Many point-of-care COVID-19 tests are CLIA-waived, and a significant number of dentists were already registered with POLEP before COVID-19 came into existence.

NYSDA responded to the Education Department that this incorrect and poorly researched and analyzed opinion could not be followed, as it required doing actual harm to patients. In any event, the federal government has overruled the Education Department and continues to authorize dentists to perform COVID-19 testing and to administer COVID-19 vaccinations under the federal Public Readiness and Emergency Preparedness (PREP) Act. Nevertheless, the inability of the Education Department to intelligently regulate the profession of dentistry is an issue that will not go away and will need NYSDA’s full attention going forward.

Even a relatively innocuous legislative session still contains its pearls, and regulatory issues took center stage this year in any case. Many items are already being reviewed by NYSDA for the 2022 legislative session, including the proposed single-payer New York Health Plan Act. That bill is being studied by multiple NYSDA councils to form a policy position as to how the plan intends to treat dentistry, which the plan includes. If that plan advances in the Legislature in 2022, NYSDA will be ready. It is a bill where no predictions can be made, because the singlepayer concept has an intellectual life of its own, despite having only been tried in this country in a failed effort in Vermont. Obviously, the New York bill tries not to replicate the problems experienced in Vermont.

The material contained in this column is informational only and does not constitute legal advice. For specific questions, dentists should contact their own attorney.