As we’ve previously noted, the past 20 months have brought about sweeping changes – not only in our society – but especially within the Dental profession. While other healthcare professionals were alternately inundated with tidal wave of acute COVID-19 cases, or learning how to swiftly pivot their modalities of care, many others, like Dentists and ophthalmologists found themselves up a creek without a paddle…or for some, even a canoe!
Some Dental practices adapted to the new world of teledentistry agilely, while others found themselves unprepared either technologically or in staffing and struggled to regain the ground lost to the pandemic. And sadly, too many privately-owned practices simply closed. This, in itself, is another harbinger of the changing face of Dentistry in the 21st Century.
However, rise of corporate Dentistry is a topic for another discussion, as we have received the latest signal that teledentistry IS indeed here to stay. In an announcement handed down by the General Counsel of the Texas State Board of Dental Examiners (TSBDE) a couple of weeks ago, the Office of the Governor has proposed permanent regulations and standards for the practice of teledentistry. So, whether you have lovingly embraced – or perhaps vehemently resisted – this trend, it is now an unavoidable part of the discussion.
In an excerpt from the full rule change Texas State Board of Dental Examiners, Title 22 Texas Administrative Code §108.16 addressing possible questions, they have put forth this preemptory Q&A:
To facilitate the Regulatory Compliance Division’s review of the proposed rule, the Board provides answers to the following questions.
1. Briefly describe the proposed rule. Following the changes made to Chapter 111, Texas Occupations Code by House Bill 2056 during the 87th Regular Legislative Session, the Board proposed 22 TAC §108.16.
The proposed rule establishes the standards of practice for teledentistry, which include requiring dental health professionals to establish a practitioner-patient relationship, adhere to the standard of care and recordkeeping requirements in 22 TAC §§108.7-108.8, prevent fraud and abuse, provide notice on how patients may file a complaint, and issue valid prescriptions.
2. What is the purpose of the proposed rule?
The proposed rule expands patient access to care and establishes the standards of practice for teledentistry.
3. Describe any relevant factual background to the proposed rule and the impetus for the state agency to consider rulemaking.
In the 2017 legislative session, the house and senate unanimously passed Senate Bill 1107, addressing telemedicine and telehealth services. However, dentistry was not included in the legislation. During the COVID-19 pandemic, many dentists were seeking guidance on teledentistry dental services. House Bill 2056 allows dental health professionals to communicate and share patient information allowing rural residents additional access to healthcare professionals, and helps reduce the number of visits and travel time to see a dental specialist in a more urban area. House Bill 2056 amends the current telehealth statute to include teledentistry, dental health professionals, and gives authority to the Board to promulgate rules. House Bill 2056 amends current law relating to the practice of dentistry and the provision of teledentistry dental services.
4. Describe the legal authority for the proposed rule. a. Is the proposed rule specifically required or authorized by state statute? If so, list the statute(s).
Yes. Chapter 111, Texas Occupations Code. b. Is the proposed rule within the scope of the state agency’s general authority to regulate in a given occupation or industry? If so, describe how the proposed rule is within the scope, and reference the applicable state statute(s). Yes. Pursuant to Texas Occupations Code §254.001(a)(2), the Board “may adopt and enforce rules necessary to ensure compliance with state laws relating to the practice of dentistry to protect public health and safety.” The proposed rule is within the scope of the Board’s authority to regulate because it implements the requirements of Chapter 111, Texas Occupations Code pertaining to dental health professionals providing teledentistry dental services.
5. Describe the process that the state agency followed in developing the proposed rule, including any public hearings held, public comments invited, studies conducted, and data collected or analyzed.
Board staff reviewed similar telehealth rules adopted by the Texas Medical Board, and other state dental boards as resource information. Board staff held a stakeholder meeting prior to proposal of the rule, and received both oral and written comments from stakeholders. Board staff also conferred with the Texas Pharmacy Board in accordance with Texas Occupations Code §111.006 to propose 22 TAC 108.16(g), which establishes the determination of a valid prescription.
6. Describe the harm that the proposed rule is intended to address and how the proposed rule will address the harm.
Teledentistry is a tool that allows dental health professionals to provide greater access to care and continuity of care for dental patients.
7. Do any less restrictive alternatives to the proposed rule exist for addressing the same harm? If so, include a comparison of the proposed rule to the alternatives and a justification for not pursuing a less restrictive alternative. If no less restrictive alternatives exist, explain why.
Not applicable.
8. Indicate how the proposed rule affects market competition (See Section 57.105(d), Texas Occupations Code).
The proposed rule may create barrier to market participation in the state and result in higher prices or reduced competition for a product or service provided by or to a license holder in the state. The proposed rule allows, but does not require, dental health professionals to provide teledentistry dental services. It may both create a barrier to market competition and result in higher prices or reduced competition because it allows dental health professionals to utilize technology in a new way, which may affect certain license holders who are less savvy with technology and therefore may limit their ability to see patients.
9. Describe the specific impact that the proposed rule will have on market competition and how that effect is consistent with state policy as established by the Legislature in state statute.
See Response 8 above.
10. Does the proposed rule relate to a question that is the subject of an opinion request pending before the Office of the Attorney General? Does the proposed rule relate to an opinion previously issued by the Office of the Attorney General?
No and no.
11. Does the proposed rule relate to a matter on which there is pending litigation or a final court order?
No.
12. Is there anything else that the state agency would like the Regulatory Compliance Division to know about the proposed rule?
The Board anticipates no changes to the proposed text of the rule before adoption at its February 18, 2022 meeting.
Those who wish to make their voices heard on this groundbreaking leap into the brave new world of teledentistry – AND its regulation – have until December 13, 2021. Time to speak now, or forever hold your peace…because like it, OR NOT, teledentistry IS most assuredly now a permanent part of the professional discussion!