NEW JERSEY REGISTER
VOLUME 33, NUMBER 11
Monday, JUNE 18, 2001
RULE PROPOSAL

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
NEW JERSEY STATE BOARD OF DENTISTRY
DENTAL DECISIONS AFFECTING TREATMENT; OBLIGATIONS; PROFESSIONAL MISCONDUCT

Additions are indicated by <<+ Text +>>; deletions by <<- Text ->>. Changes in tables are made but not highlighted.


Proposed New Rule: N.J.A.C. 13:30-8.18

Authorized By: New Jersey State Board of Dentistry, Kevin B. Earle, Executive Director.

Authority: N.J.S.A. 45:6-3.

Proposal Number: PRN 2001-216.

Take notice that, pursuant to N.J.S.A. 52:14B-4(a)3, the New Jersey State Board of Dentistry (the Board) will hold a public hearing on the notice of proposal that follows. The hearing shall be held by the Board as set forth below:

Date: Monday, July 23, 2001
Time: 10:00 A.M.
Location: Division of Consumer Affairs
Hudson Conference Room, 6th Floor
124 Halsey Street
Newark, New Jersey 07101

The public hearing shall be conducted by a hearing officer. A verbatim transcript of the hearing will be prepared by a certified stenographic reporter. Interested parties may obtain a copy of the transcript by ordering it directly from the reporter at the hearing or thereafter. Requests to speak should be submitted in writing to Kevin B. Earle, Executive Director, New Jersey State Board of Dentistry, PO Box 45005, Newark, New Jersey 07101 no later than one week prior to the public hearing. Specific presentation times will be assigned. Individual presentations will be limited to five minutes. Those who do not preregister to speak will be given an opportunity to speak only if time permits. Individual speakers are requested to provide at least sixteen copies of their prepared remarks to the hearing officer on the day of the public hearing.

Submit written comments by August 17, 2001 to:

Kevin B. Earle, Executive Director
New Jersey State Board of Dentistry
PO Box 45005
Newark, NJ 07101
The agency proposal follows:

Summary

On April 24, 1996, the New Jersey State Board of Dentistry received a petition for rulemaking from the New Jersey Dental Association ("Association"), seeking the promulgation of a regulation by which insurance companies and various other medical entities would be required to adhere to certain standards established by the Board of Dentistry and subject to its jurisdiction. See 28 N.J.R. 4276(a). Specifically, the regulation that the Association had sought would require a determination by an insurance company or service plan regarding the appropriateness of dental services rendered by a dentist to be made by a New Jersey licensed dentist. Further, that licensed dentist would be required to maintain a written record containing information specified by the regulation.

In reply to the publication of the petition for rulemaking, the Board received correspondence from Blue Cross Blue Shield of New Jersey objecting to the regulatory proposal, contending among other things that the adjudication of dental claims does not constitute the practice of dentistry. While the Board would not contend that decisions concerning the scope of a given policy (such as whether a certain procedure was excluded from policy coverage) necessarily call into question issues of professional judgment, it does believe that determinations concerning diagnoses and the selection of appropriate plans of treatment are part of the practice of dentistry as that term is defined at N.J.S.A. 45:6-19 and require the application of professional expertise. In instances where a reviewer may need to evaluate the appropriateness of a diagnosis and the relative merits of a plan of treatment, such dental decisions should be made by those possessing training and experience in dentistry. Thus, the Board fully concurs with the Association that there is a need to protect New Jersey consumers from persons who make dental decisions without this expertise and training and that in order to do so these decision makers must be accountable to the Board.

In order to further assess that need, the Board published in the July 20, 1998 New Jersey Register, at 30 N.J.R. 2603(a), notice of an informal conference to be held on August 5, 1998 for solicitations of public input on the issue. Specifically, the Board wanted to gather the public's view regarding the manner in which dental decisions are being made in connection with dental benefit coverage determinations by insurance companies and others providing dental benefits. Written comments were received by the Board prior to the informal conference and on August 5, 1998, oral presentations were made.

Generally, the comments received in support of the petition for rulemaking or its intended goal expressed the general belief that individuals making decisions for insurance companies and dental benefit providers regarding dental benefit coverage should be accountable to the New Jersey State Board of Dentistry in order to ensure that the receipt of appropriate and necessary dental treatment is not compromised by an inappropriate determination regarding the treatment required and subsequent denial of a dental benefit. Several commenters made this point by way of specific example regarding their own experience either as a patient who had been denied coverage or the treating dentist who was rendered unable to offer timely and effective treatment in light of the length of the review process and/or the ultimate denial of benefits. Opponents of the petition argued, in summary, that it is the dentist's experience and training which makes him or her qualified to serve as a dental consultant and not his or her status as a New Jersey licensed dentist, that the requirement of New Jersey licensure for dental claim reviewers and the enhanced recordkeeping requirements would unnecessarily increase costs for the insurance companies and other dental benefit providers, and finally that insurance company dental consultants do not practice dentistry but, rather, merely make contract determinations.

After consideration of the petition for rulemaking and review of public comments presented both orally and in writing at the informal conference, the Board chose not to propose the specific language included in the petition. Rather, the Board has chosen to advance its goal in this instance by proposing a more targeted rule, consonant with its jurisdiction. The proposed rule focuses, with precision, on what the Board recognized as the practice of dentistry--over which it has jurisdiction. Specifically, in the definitional subsection, N.J.A.C. 13:30-8.18(a), "professional dental practice" is defined as the furnishing of dental services which includes traditional hands- on treatment as well as the rendering of "dental decisions." "Dental decisions" are defined to include an opinion or decision, made in the context of a review of benefit/insurance coverage provided by an entity authorized to conduct business in this State, where that opinion or decision deviates from a treatment decision of a treating dentist and relates to the:

i. Quality or appropriateness of dental services rendered by a dentist;

ii. Reasonable necessity for or customary performance of a dental service;

iii. Diagnosis of a dental condition; or

iv. Selection of an alternative plan of treatment in the context of a review of dental treatment or care provided (or proposed to be provided) by a dentist.

It is not the intention of the Board to address the manner by which claims are adjudicated, only to assure that the quality of care to be delivered is not adversely affected by decision making by those unqualified to do so and unaccountable toregulatory oversight. Thus, through the articulation and clarification that the practice of dentistry includes dental decision making, the Board will be ensuring that persons who make dental decisions, either in New Jersey or outside this State for persons receiving treatment in this State, are knowledgeable professionals, accountable to the New Jersey Board of Dentistry, making those decisions based on a review of the quality and appropriateness of dental care.

Subsection (b) ensures that persons who engage in "professional dental practice" first secure a license from the Board. Any one who performs the functions encompassed in that definition without being licensed is on notice that he or she may be subject to prosecution for unlicensed practice. At subsections (c) and (d), the Board is establishing the content for the required record supporting a dental decision and makes clear that such a record must be provided to the patient or the treating dentist upon request. Subsection (e) requires that decisions be supported by the record and consistent with accepted standards of care. The last subsection of the rule, (f), establishes that violation of subsections (c), (d) or (e) of the rule will be deemed professional misconduct.

Social Impact

By this rule, the Board is endeavoring to assure that those making decisions concerning the appropriateness of dental care, in connection with dental benefit coverage determinations by insurance companies and others providing dental benefits, have sufficient knowledge and experience to render such decisions. The Board is aware, through its receipt of consumer complaints and information from dentists, that the diagnoses and treatment decisions of New Jersey treating dentists are being countermanded by persons who are either not trained as dentists or not licensed to practice dentistry in the State of New Jersey. Such determinations may well affect the quality of care being rendered to New Jersey patients. Accordingly, the Board firmly believes that this rule will provide a valuable protection to New Jersey dental consumers by assuring that dental decisions concerning the appropriateness of treatment, the reasonable necessity for a service, the diagnosis of a dental condition, and the selection of a treatment plan, are being made by dentists, fully supported in a reviewable record by individuals accountable to the Board.

Economic Impact

This rule may have an impact on persons making dental decisions who will have to obtain a New Jersey dental license and on all dental decision makers who may be held accountable by the Board for dental decisions which do not comply with appropriate standard of care in New Jersey. Secondarily, this rule may also have an impact on the operation of those entities authorized to do business in New Jersey, which at present have elected to seek dental decisions in the context of a review of benefit/insurance coverage from individuals not licensed in New Jersey, in that those entities will be required to absorb the costs associated with review of certain claims by dentists. Finally, while this may also have some impact on the overall cost of dental benefits, in general the Board believes the rule will have a salutary impact on consumers as the reimburseability for dental services rendered will be grounded on fully supported professional judgments.

Federal Standards Statement

A Federal standards analysis is unnecessary as the proposed rule involves no Federal requirements or standards. The proposed new rule derives its authority in the Board's power to adopt regulations governing the practice of dentistry pursuant to N.J.S.A. 45:6-3.

Jobs Impact

The proposed new rule may have some impact on jobs in New Jersey. The rule may have an impact on the review practices of some insurance companies authorized to do business in New Jersey, which presently hire non-dentists or dentists not licensed in New Jersey to review and make ultimate determinations concerning dental insurance reimbursement. To the extent that an initial review by a nonlicensed dentist relates to the quality or appropriateness of dental services rendered by a dentist, the reasonable necessity for or customary performance of a dental service, the diagnosis of a dental condition or the selection of an alternative plan of treatment in the context of a review of dental treatment or care provided (or proposed to be provided) by a dentist, there will be a need to have a process in place that assures that a licensed New Jersey dentist undertakes a final review before countermanding or diverging from the treatment plan. If that dentist made such an ultimate decision, he or she would be required to support that decision by creating the required record. Some insurers may choose to restructure their review process to address the new procedure and may need to adjust their personnel needs accordingly.

Agriculture Industry Impact

The Board does not believe that the proposed new rule will have any impact upon the agriculture industry in the State.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act ("Act"), N.J.S.A. 52:14B-16 et seq. requires the Board to give a description of the types and an estimate of the number of small businesses to which the proposed new rule will apply. If, for purposes of the Act, dentists are "small businesses" within the meaning of the statute, the following analysis applies.

The Act requires the Board to set forth the reporting, recordkeeping, and other compliance requirements of the proposed rule including the kinds of professional services likely to be needed to comply with the requirements. The Act further requires the Board to estimate the initial and annual compliance costs and to outline the manner in which it has designed the rules to minimize any adverse economic impact upon small businesses.

Proposed N.J.A.C. 13:30-8.18 will impose recordkeeping requirements on dentists who provide services reviewing claims for entities authorized to do business in this State when they render dental decisions in the context of a review of benefit/insurance coverage affecting New Jersey consumers. The content of the records supporting such determinations are expressly set forth in the rule.

The compliance requirements of the proposed new rule relate to the record described above. Dentists performing such reviews and the insurance/benefit companies may be required to utilize ancillary staff to assist in the preparation of the records required by this rule, and to absorb costs related to record retention and provision of copies of the record when requested. No accounting or legal professional services are necessary for compliance.

Proposed N.J.A.C. 13:30-8.18 is not expected to have any greater impact on businesses of disparate sizes, as it has specialized application to only a particular type of professional services.

Full text of the proposal follows:

<< NJ ADC 13:30-8.18 >>

13:30-8.18<<-(Reserved)->> <<+Dental decisions affecting treatment; obligations; professional misconduct+>>

<<+(a)The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.+>>

<<+"Board" means the New Jersey State Board of Dentistry.+>>

<<+"Dental decision" means an opinion or decision, made in the context of a review of benefit/insurance coverage provided by an entity authorized to conduct business in this State, where that opinion or decision deviates from a treatment decision of a treating dentist and relates to the:+>>

<<+1.Quality or appropriateness of dental services rendered by a dentist;+>>

<<+2.The reasonable necessity for or customary performance of a dental service;+>>

<<+3.The diagnosis of a dental condition; or+>>

<<+4.The selection of an alternative plan of treatment in the context of a review of dental treatment or care provided (or proposed to be provided) by a dentist.+>>

<<+"Professional dental practice" means the furnishing of dental services in New Jersey, as defined in N.J.S.A. 45:6-19, including the offering or rendering of dental decisions, as defined herein, as well as offering or rendering dental decisions relating to the delivery of a dental service to a patient in New Jersey.+>>

<<+(b)Any person who engages in professional dental practice, either within or outside the State, without first securing a license to practice dentistry from the Board to do so shall be deemed to be engaging in unauthorized and unlicensed practice and may be subject to prosecution by the Board and the Attorney General pursuant to N.J.S.A. 45:1-25.+>>

<<+(c)A dentist, in rendering a dental decision, shall prepare a written record, including at a minimum:+>>

<<+1.The dentists full name, address and telephone number (which shall be reflected on any determination transmitted to the patient or treating dentist);+>>

<<+2.A narrative statement specifically identifying the dental and/or medical records reviewed, findings on clinical examination (if one was undertaken), any diagnostic aids used, the findings made, and the resulting determination reached; and+>>

<<+3.A specific justification for determining that a clinical examination was not warranted if such examination was not undertaken.+>>

<<+(d)A legible copy of the written record under (c) above shall be made available, within 14 days, upon the request of the treating dentist, the patient or authorized representative. If the patient is a minor, a parent or guardian who has custody (whether sole or joint) will be deemed to be an authorized representative.+>>

<<+(e)A dental decision shall be reasonably supported by findings within the record as required by (c) and (d) above and consistent with recognized standards of care.+>>

<<+(f)Violations of (c), (d) or (e) shall be deemed professional misconduct pursuant to N.J.S.A. 45:1-21(e).+>>



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