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Report on TDA Governance

Article Objectives: one, update you on what is happening in the TDA; two, explain the most important and fundamental reason to be a member; and three, convince you to donate (more) to DENPAC. Read more

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Editor’s Corner May 2017

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Editor’s Corner February 2017

Jonathon Kimes 5-13Regulatory Update

As the 85th Texas Legislature is now in session, you will soon be deluged with information about the legislative session and the State Board of Dental Examiners Sunset Bill.  There are still a few interesting things going on outside of downtown Austin though.

Buda Re-Fluoridates its Community Water Supply

During the November 2015 elections, San Marcos residents voted to stop the fluoridation of their community water supply.  Some surrounding communities were also inadvertently affected.  The City of Buda, for example, buys about half of its water from the same San Marcos plant that stopped fluoridation.  Buda has taken the issue up on its own and will begin fluoridating its water again.  The city has been working with the Texas Fluoridation program since 2015, in preparation for the need.  There was some initial resistance from one Buda City Council member, but his efforts were overcome.  A win for the dental health of the people of Buda!

The EPA has Announced a Final Rule on Amalgam Separators

With the purpose of reducing the amount of environmental mercury contamination, the EPA has announced their final rule, which will require dental offices to have amalgam separators in place within the next 3 years.  The rule also requires submission of a one-time compliance report (not available as of press time) as well as implementation of two ADA best management practices, one that prohibits the discharge of scrap amalgam, and the other which prohibits the use of line cleaners that may lead to the dissolution of solid mercury when cleaning chair-side traps and vacuum lines.  The rule does not apply to mobile units or offices where the practice of dentistry consists only of the following dental specialties: oral pathology, oral and maxillofacial radiology, oral and maxillofacial surgery, orthodontics, periodontics, or prosthodontics.  For more information, visit www.epa.gov/eg/dental-effluent-guidelines

Class Action Lawsuit against Major Dental Suppliers Moves Forward

Early last year, a class action lawsuit was filed against Henry Schein, Patterson, Burkhart, and Benco Dental Suppliers with claims of price-fixing and violation of anti-trust regulations.  More recently, a federal judge refused to dismiss the case, and the prosecution has asked for a jury trial.  Allegations against the dental suppliers are that they have been “illegally engaging in a conspiracy to boycott competitor dental product distributors and other entities that do business with such competitors, in order to allow Defendants to maintain and extend their dominant collective market power in the market for the distribution of dental supplies and dental equipment (collectively, ‘dental supplies’) in the United States.”  The companies are also accused of blocking the entry and expansion of “lower-margin, lower-priced, rival dental distributors into the market” by engaging in a “concerted and collusive effort that involved threats to boycott collectively, and actual group boycotts of, dental supply and equipment manufacturers, state dental trade associations, dental practices, and other industry participants that chose to deal with or sell to lower-priced dental distributors.”  No trial date has been set.

By Jonathon R. Kimes, DDS

Jonathon Kimes 5-13

Editor’s Corner January 2017

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Editor’s Corner November 2016

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Editor’s Report October 2016

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Sunset Review – Part III

The latest info to come out of the Sunset Advisory Commission regarding our state Dental Board is the “Sunset Staff Report with Commission Decisions.”  This report contains the final decisions of the Commission which will form the basis of the agency’s Sunset Bill during Legislative Session, which begins January 10, 2017.

Issue 1 – The Unusually Large Dental Board Inappropriately Focuses on Issues Unrelated to Its Public Safety Mission.

The original recommendations were for a reduction in the total size of the board from 15 to nine, with a reduction in the number of dentist board members from eight to four.  The final recommendation was somewhat of a compromise, recommending a reduction to a total size of 11 members, including six dentists, three hygienists, and two public members.

The Board will also be directed to create a more detailed system for stakeholder input as well as informal settlement hearings, both of which aim at increasing the Boards concentration on public safety

Issue 2 – State Regulation of Dental Assistants Is Unnecessary to Ensure Public Protection and Is an Inefficient Use of Resources.

Again a compromise between current regulation and the original recommendation.  The final decision, in lieu of the original recommendation to discontinue the licensure of dental assistants, is to combine the board’s four dental assistant certificate programs into one registration for dental assistants.  This one registration will cover radiology, nitrous monitoring, sealants, and coronal polishing.  Whether or not current dental assisting licensees with be grandfathered in or will be required to show proof of CE or take a new examination remains unclear.  Dental assistant registrations will be renewed biennially.

Issue 3 – The Board Lacks Key Enforcement Tools to Ensure Dentists Are Prepared to Respond to Increasing Anesthesia Concerns.

The Board will be authorized to conduct inspections of dentists administering parenteral sedation in office settings.  The Board will also establish four levels of sedation permits, with appropriate education and standards for each, with an additional limitation to be placed on pediatric and high-risk patients.

Dentists with one or more anesthesia permits will also be required to maintain adequate written emergency plans, and will have requirements for necessary equipment and drugs prior to administering sedation/anesthesia.

A nine-member board-appointed standing Advisory Committee on Dental Anesthesia will be created to advise the Board on the development and revision of rules related to dental sedation and anesthesia.  The board will track and report anesthesia-related data and to make publicly available on its website aggregate enforcement data by fiscal year and type of license.

The Board is directed to define portability, methods to obtain a portability permit, and establish advanced didactic and clinical training requirements for the permit.

Issue 4 – Key Elements of the State Board of Dental Examiners’ Licensing and Regulatory Functions Do Not Conform to Common Licensing Standards.

The Board will be required to monitor licensees for adverse licensure actions, and be allowed (i.e. encouraged) to deny applications to renew a license if an applicant is not compliant with a board order, be allowed to require evaluations of licensees suspected of being impaired, and be allowed to remove unnecessary qualifications required of applicants for licensure or registration.

There is also a recommendation to stagger registration renewals, but the details have not been given yet.  Maybe every two years?

Previous recommendation didn’t address any prescription drug issues, but the final decisions do contain a Prescription Monitoring Program.

As of September 1, 2018, dentists will be required to search the Prescription Monitoring Program and review a patient’s prescription history before prescribing opioids, benzodiazepines, barbiturates, or carisoprodol.  A dentist who does not check the program before prescribing these drugs will be subject to disciplinary action by the Dental Board.

The Board will be required to query the Prescription Monitoring Program on a periodic basis for potentially harmful prescribing patterns among its licensees.  The Board will work with the Pharmacy Board to establish potentially harmful prescribing patterns that the Board should monitor by querying the database for dentists who meet those prescribing patterns.  Based on the information obtained from the Prescription Monitoring Program, the Board will be authorized to open a complaint for possible non-therapeutic prescribing.

By Jonathon R. Kimes, DDS
Editor, CADS

 

 

 

 

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Editor’s Corner September 2016

Jonathon Kimes 5-13

Sales and Use Tax

As a young(er) dentist, I learn something almost every day about practice ownership.  More often than not, it is some obscure regulation and I often have no idea if I’ve been doing the thing correctly or not, and for how long!  The issue of sales tax and use tax was recently brought to my attention, and I quickly realized that not only was I unsure of my own practice’s compliance, but I was unsure of even the true meaning of any of it.

For those unaware, sales tax is basically a tax on the sale of goods or certain services and is paid by the customer to the vendor and then remitted to the state by the vendor.  Use tax, in the case of a dental practice, is tax remitted to the state by the dentist when he or she purchased a taxable item and didn’t pay sales tax on it.  Fortunately for the average dental practice, almost everything we “sell” is not taxable.  According to the Texas Administrative Code (TAC),

“Sales or use tax is not due on the sale, lease, or rental of medical equipment meeting the definition of a dental device. Sales tax is not due on replacement parts designed specifically for such devices and appliances. A dental device is defined as an artificial replacement of one or more teeth or a dental appliance worn on the teeth to correct irregularities of growth or position. The term dental device does not include toothbrushes, toothpaste, dental floss, mouth mirrors, or other devices used to prevent cavities or plaque build-up or removal.”

Drugs and medicines are also exempt from sales and use taxes, as long as they contain a FDA required “Drug Fact” label.  In the case of a dental office, this is where things can get tricky.  Non-fluoride toothpaste, for example, is taxable as defined as a dental device, whereas fluoride toothpaste is tax exempt as defined by a Drug or Medicine.  Whitening gel is taxable, unless it contains a FDA label stating that it “mitigates, treats, or prevents disease.”

The TDA has a nice article outlining some of the basic items that dentists routinely buy and sell and the taxable status of those items.  The article can be found on the TDA website, TDA Today archives, April 2014.  You can also use the following:

https://issuu.com/texas_dental_association/docs/140431_tda_today_nl_apr14

If you’re selling toothbrushes, you should be collecting sales tax.  Also, check that your vendors are charging you sales tax on taxable dental equipment, or you’re also on the hook for the use tax!  The final say is found with the Texas Comptroller and your accountant.  Visit comptroller.texas.gov for the latest information.

By Jonathon R. Kimes, DDS
Editor, CADS

Jonathon Kimes 5-13

Editor’s Corner August 2016

Jonathon Kimes 5-13

More on Sunset

It is time for more Sunset Review action! The next (and likely final) public meeting is tentatively scheduled for August 22. After this meeting, the Sunset Commission will prepare its final recommendations to the Legislature for action during the next session. Since the release of the Sunset Staff Report this April, public comments have been posted on the Sunset website (www.sunset.texas.gov). Reading these comments, which come from a wide range of interested parties, not just dental professionals, gives a clearer indication of what the real issues are, and what each group will be watching closely.

The most important recommendation from the Sunset Commission is that the Board continues to exist. After all, that is the main purpose of Sunset. Unless something very unusual happens, it is likely that we will have a bill passed that allows the State Board to continue. The changes in the Board that are passed along with this bill will be the interesting part.

If you haven’t yet read the Executive Summary of the Sunset Commission, it is a short read and summarizes the issues that the Commission has taken with the current Board. Of the five issues listed, the first two will be the most hotly debated. Issue-3 involves increased regulation of dental anesthesia, and most of the public comments seem to support these recommendations. Issues-4 and -5 are housekeeping recommendations that won’t likely meet much resistance.

Issue-2 calls for the deregulation of dental assistants, claiming that the licensure process is burdensome and of no benefit to public safety. The majority of public comments on this topic are against the recommendation. The Commission claims that there are too few complaints involving dental assistants to justify state regulation. The public consensus however, is that deregulation will create a public safety problem. Allowing anyone to take X-rays or place sealants with no proper education and licensing would most likely result in a decrease in the quality of care to the public. In addition, the deregulation of assistants will create a $1.4 million deficit in the budget from the reduced licensing fees. Interestingly, this recommendation is in direct contradiction with a recommendation from a previous Sunset Review…it seems the state has changed its mind on this one. I think the final recommendation will likely be to change (i.e. simplify) the licensing procedure, but keep the license requirement.

Public comments on Issue-1 reveal a more difficult problem. Issue-1 recommends a drastic reduction in the size of the board, including a reduction in the dentist representation. Current Board size is 15 members, with eight of those positions held by dentist. Sunset recommends reducing board size to nine members, with only four dentists. The Commission claims that the board members don’t have enough to do, so they have been focusing their efforts on regulating business practices instead of public safety. We are very familiar with this in the form of recent controversy regarding sleep dentistry, specialty advertising, etc. The Boards retort is that the board members have plenty to do and are overworked. The notion that the Board is working harder on dentist issues than on public issues is a two-edged sword. On one hand, we should all be proactive in ensuring public safety in our profession, but it is also nice to have a Board that does care about the profession itself. Whether you agree with them or not 100% of the time, you can’t deny that it could be much worse.

There are a significant number of public comments aimed at Issue-1 written by what I would call third parties: lawyers, association executives, etc. that mainly represent the interest of DSOs. In their eyes, a reduction in the dentist representation on the Board is a win for their particular business model. The Board has done its fair share to maintain the integrity of the profession and not allowed various DSOs to run wild. A smaller board with less dentist representation, directed to work on public safety issues instead of dental practice issues, would lead to a clearer path for a broader scope of DSO activity.

Issue-1 is the part of the Review in which all various interest groups (organized dentistry as well) will try to get what they believe is best for their group. Our state leadership has said various times, that Sunset is not to be used to further the agenda of any group, only to validate the Board, so the final recommendation to the legislature, regardless of its language, will not sit well with one group or another. The debates will soon begin and we can only hope that our arguments are heard by rational lawmakers.

By Jonathon R. Kimes, DDS

Editor, CADS

 

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Editor’s Corner April 2016

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Editor’s Report March 2016

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