By Guest Expert: Jeanine Lehman, Attorney
During the February 28, 2014 meeting of the Texas State Board of Dental Examiners, Board members put sleep Dentistry in Texas squarely back into the spotlight. The Board has addressed sleep Dentistry issues in a public hearing and all four Board meetings in 2013. After the November 2013 Board meeting, it appeared a rule was close to adoption. Subsequently, at the February 2014 Board meeting, it was disclosed communications were received by the Board from the offices of the Governor, House Speaker Joe Strauss and State Sen. Jane Nelson, concerning sleep Dentistry and that discussions were occurring with the Texas Medical Board concerning the rule. Central concerns included the scope of practice of Dentistry versus the scope of practice of medicine and the need for collaboration between the TSBDE and the Texas Medical Board.
The Board Chair revised the prior proposed rule to attempt to address these concerns and presented a new proposal at the meeting. There was discussion that the Dental Practice Act definition of the practice of Dentistry allows the sleep Dentistry rule. Board members discussed the new proposed rule and sleep Dentistry at length, called upon public commentators and drafted revisions to the proposed rule during the meeting.
Proposals included adding examples of validated subjective and objective tools for use by Dentists for screening patients for sleep disorders and adding a mandatory education requirement for Dentists to perform sleep Dentistry services. A Dentist, who treats or monitors benign snoring or obstructive sleep apnea (OSA), will be required to complete a minimum basic education in sleep-disordered breathing of 12 hours (a combination of clinical and didactic) and 3 hours per year from an educational venue. The proposed rule does not have a delayed effective date for the education requirement – so presumably, the minimum education would be necessary immediately when the rule passes. Adequate patient follow-up by the Dentist of the orthotics, occlusion and orofacial musculoskeletal system is required under the proposed rule and is to be no less than an annual visit.
There was discussion that there can be a shared relationship between the Dental and medical scopes of practice – using sedation as an example. Examples of collaboration between Dentists and physicians include Dentists screening for oral cancers and hypertension. Overall, there was discussion and work to delineate areas that are the ambit of Dentistry and areas that are the ambit of medicine. Under the proposed rule, sleep studies must be interpreted by a Texas licensed physician. Also, a distinction is drawn between benign snoring, with no apneic episodes and OSA.
Under the proposed rule, a Dentist may treat benign snoring with an oral appliance, after consideration of referral to a Texas licensed physician, where appropriate, within the standard of care. By contrast, a Dentist may not diagnose, treat or monitor OSA, without collaboration with a Texas licensed physician. Additionally, the proposed rule proposes, an oral appliance shall only be fabricated by a Texas licensed Dentist or by a Dental lab under a prescription or work order prepared by a Dentist.
Concern was expressed that the Texas Medical Board have a coordinating rule with teeth in it, to require that Dentists (and presumably labs pursuant to Dentist order), not physicians, fabricate oral appliances for sleep therapy. Board staff indicated such a coordinating rule was discussed with Texas Medical Board staff, but apparently not yet presented to the Texas Medical Board members. The next Texas Medical Board meeting was scheduled for May 1 and 2, 2014 and all Board meetings are open to the public.
The new proposed Dental Board sleep Dentistry rule will be published in the Texas Register for a 30-day public comment period and slated for consideration at the May 9, 2014 Board meeting. Participation of the public, including interested Dentists, is encouraged in the rulemaking process and an update on the results of this meeting will be coming.
Other actions, at the February Board meeting, included a proposed rule on use of patient restraints, which will affect Dentists treating pediatric and special needs patients, a proposed amended rule extending the retention period for Dental records and indication that a new anesthesia rule would be on the May agenda.
Also, improvements are ongoing for the online Dental license renewal questionnaire concerning Dental Service Organizations (DSOs). These include clarifying definitions/ instructions and abilities to see the full questionnaire before answering questions, to review answers before submitting and to print out the final submission, as well as to receive a confirmatory email that the questionnaire was received. The Board staff is also communicating with State Rep. Lois Kolkhorst, who sponsored House Bill 3201, requiring information on DSOs, to confirm that the information being collected is what the legislature wants.
Jeanine Lehman is an Austin Dental and health law attorney. She can be reached at (512) 918-3435 or Jeanine@Jeanine.com. © Jeanine Lehman 2014.