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Article 28 Dental Hygiene Collaborative Practice Legislation Passes

Once again the New York State Dental Association (NYSDA) has led the way in passage of important oral health legislation. After many months of lobbying and negotiating with the legislature, the Governor’s office, the New York State Department of Health, and the New York State Education Department, NYSDA has finally achieved passage of its priority legislation to allow dental hygienists working in facilities licensed under Article 28 of the New York State Public Health Law to work under collaborative agreements with dentists having a formal relationship with the same Article 28 facility. Article 28 facilities are primarily hospitals, but also include nursing homes and school based health clinics. The legislation, A.7866 sponsored by Assemblywoman Deborah Glick and S.5757 sponsored by Senator Kemp Hannon, passed overwhelmingly in both the New York State Assembly (138-2) and in the Senate (60-3).  Governor Cuomo signed the legislation into law on Thursday, August 1. (see press release)

What the collaborative agreement system will do in these Article 28 facilities is free the dentist from the current requirement that they must be readily physically available to the location in order to be considered as providing proper general supervision. NYSDA members have complained for many years that the “readily physically available” general supervision standard is impractical and makes little sense in the already heavily regulated Article 28 facility settings. The new legislation frees the dentist from being physically moored to the Article 28 facility when the dental hygienist is working there, substituting instead a collaborative practice agreement arrangement that will allow the dentist and the dental hygienist to work out the supervision protocol most effective for the particular Article 28 setting. Only a dentist who already has a formal relationship, such as hospital privileges at the same hospital, will be allowed to enter into a collaborative practice agreement with a dental hygienist at the same hospital.

With the passage of this law, NYSDA has answered the call for improving access to dental care while at the same time turning aside the ill-advised proposals of dental hygiene to have expanded scope of practice and a collaborative agreement with a dentist who could be practicing hundreds of miles away. This legislation lays to rest those overreaching dental hygiene proposals that made no sense to the Governor or to legislators.

The history of this legislation is very interesting. As far back as 2008, NYSDA had been introducing legislation for collaborative practice arrangements with dental hygienists. However, intent on advancing only their agenda for expanded scope, the dental hygienists opposed NYSDA’s 2008 legislation. In the intervening years, NYSDA has been working with Dr. Jayanth Kumar and the Medicaid Redesign Team led by Jason Helgerson from the Department of Health to fashion some type of acceptable collaborative practice arrangement that would be targeted to areas that made the most sense and would help improve access to dental care for underserved populations in the state. That effort culminated this year with the Governor’s introduction of a collaborative practice proposal as part of his 2013-2014 State Budget. Nevertheless, Assemblywoman Glick had concerns that the Governor’s budget proposal left too much to chance in the regulations that were to be developed by the Department of Health and failed to adequately protect against the fact that dental hygienists do not have adequate diagnostic training for conducting actual dental examinations.

As a result of Assemblywoman Glick’s concerns, the Assembly would not agree to the Governor’s dental hygiene proposals and they were dropped from the State Budget. However, Assemblywoman Glick offered to sponsor her own bill to address the issue of eliminating the “readily physically available” general supervision requirement in Article 28 settings through a collaborative practice arrangement between a dentist and a dental hygienist as advocated by NYSDA . The Education Department was brought into the discussions and ultimately given the primary task of creating the new regulations to implement the law in consultation with the Department of Health. After many months of fine tuning the language in the actual bill it was introduced and moved towards passage in both houses of the Legislature. Much credit is due Assemblywoman Glick for guiding this process forward to a favorable conclusion by bringing all parties to the table and to Senator Hannon for collegially agreeing to move this bill forward in the Senate. The bill was strongly opposed by dental hygienists, but their concerns for wanting expanded practice, likening themselves to nurse practitioners, were not taken seriously by legislators.. Nurse practitioners are trained at a masters and doctoral level with full diagnostic and prescribing education and authority, whereas dental hygienists are trained at an associate degree level with no such education or authority. Legislators did not find that analogy put forward by dental hygienists compelling and even many nurse practitioners were dismayed by the comparison.

NYSDA President Dr. Joel M. Friedman stated: “This is a great legislative victory for dentistry. We have advanced a proposal to make a real difference in creating better access to dental care, while at the same time preserving the critical role of the dentist in delivering such care.

NYSDA Executive Director Dr. Mark Feldman said: “I am very proud of our entire NYSDA governmental affairs team. They worked tirelessly over many months to craft legislation that did the job NYSDA members wanted. At times it seemed like everything would fall through, but their efforts helped make this priority become a reality.”