May 2020 Volume LV Number 3


Legislative and Regulatory Update

March 2020 Volume LV Number 2

Unless otherwise noted, for further information on any of these issues please contact Chief Operating Officer and General Counsel C. Scott Litch at (312) 337-2169 or
Federal News
Congress passed two legislative spending bills on December 19, 2019 totaling $1.4 trillion to keep the government running through the remainder of fiscal year 2020. The bills include funding for the AAPD’s key appropriations issue.
H.R. 1865, known as the domestic priorities and international as- sistance appropriations minibus, totaled $540.4 billion and was made up of eight appropriations bills: Labor-Health and Human Services- Education, Agriculture, Energy and Water Development, Interior- Environment, Legislative Branch, Military Construction-Veterans Affairs, State-Foreign Operations, and Transportation-Housing and Urban Development. H.R. 1158, the national security appropriations minibus, totaled $860.3 billion and includes the Defense, Commerce- Justice-Science, Financial Services and General Government, and Homeland Security appropriations bills. President Trump signed both measures into law on December 20, 2019 as P.L. 116-94 and P.L. 116-93.
In terms of AAPD’s top funding priority, Title VII pediatric den- tistry, the following favorable report language from House Committee Report 116-621 from May 15, 2019 is now official:
The Committee recommends $40,673,000 for Oral Health Training programs, the same as the fiscal year 2019 enacted level and $40,673,000 above the fiscal year 2020 budget request. These programs serve to increase the number of medical graduates from minority and disadvantaged backgrounds and to encourage students and residents to choose primary care fields and practice in underserved urban and rural areas.
The Committee includes not less than $12,000,000 for General Dentistry Programs and not less than $12,000,000 for Pediatric Dentistry Programs. The Com- mittee directs HRSA to provide continuation funding for predoctoral and postdoctoral training grants initially awarded in fiscal year 2015, and for section 748 Dental Faculty Loan Program (DFLRP) grants initially awarded in fiscal years 2016, 2017, 2018 and 2019. The Commit- tee continues to support DFLRP awards with a preference for pediatric dentistry faculty supervising dental students or residents and providing clinical services in dental clin- ics located in dental schools, hospitals, and community- based affiliated sites."
Report language from House Committee Report 116-62 is now official as well; this urges CMS to appoint a chief dental officer and instructs auditors of dentists to utilize the clinical guidelines, best prac- tices and policies of the AAPD and ADA. This language was strongly supported by the ADA and AAPD.
In anticipation of a new HRSA grant cycle and in our effort to promote a robust number of pediatric dentistry applications, AAPD prepared a free webinar pediatric dental program directors on grant writing and planning. This was presented live by Academic Trustee at- large Dr. Homa Amini on October 11, 2019 and is available for online viewing/listening at any time for AAPD members.2
When the HRSA Notice of Funding Opportunity (NOFO) for Postdoctoral Training in General, Pediatric, and Public Dentistry was released on November 13, 2019, the AAPD immediately notified pedi- atric dentistry program directors of  the February 12, 2020 application deadline. According to HRSA:
"The program provides funding to improve access  and delivery of  oral health care services for all individu- als, particularly vulnerable populations and individuals located in rural and/or underserved areas. Eligible ap- plicants include entities that have programs in dental schools, or approved residency or advanced education programs in the practice of  general, pediatric or public health dentistry, which may include dental schools, public or private not-for-profit hospitals, or other public or private non-profit entities, including faith-based and com- munity based organizations."
HRSA expects approximately $13,000,000 to be available in  FY 2020 to fund an estimated 28 eligible grantees. The AAPD was pleased that the HRSA NOFO adopted many AAPD recommen- dations that such grants focus on program quality upgrades that improved care for under-served areas and populations instead of merely expansion of positions. The following aspects of the NOFO were highlighted:
  • "The NOFO supports the development or enhancement of existing residency training programs to incorporate and test new and innovative models of care delivery for rural, underserved and vulnerable populations."
  • There are three primary areas of focus to plan, develop and implement projects in community-based training sites that focus on one or more of the following three areas:
    • caring for underserved and/or vulnerable populations
    • developing/expanding rural training sites, or
    • dental public health.
  • If multiple residency programs at a dental school are interested in the grant they should do a collaborative application and be eligible for $650,000 per year as opposed to $450,000 per year. This is especially important because multiple applications from an organization are not allowed.
  • For programs applying for a planning year, initial accreditation must be received at or before, July 1, 2021, and maintained for the remainder of the project period."
  • "Additionally, applications may include some faculty development for the purpose of preparing program completers for roles as community-based clinician educators and mentors."
  • "Applicants are encouraged to target programs towards dentists who are likely to provide care for underserved groups and com- munities."
AAPD also send reminders of  a HRSA technical assistance webi- nar on December 13, 2019 and subsequent conference call in January, along with several additional reminders prior to the grant deadline.
On December 13, 2019, the Health Resources and Services Ad- ministration (HRSA) announced in the Federal Register that based upon public feedback, the agency will retain the dental sealant measure for 2020 UDS reporting (Dental Sealants for Children Between 6-9 year). HRSA also decided to not add the fluoride varnish measure for 2020 UDS.3
As reported in the November, 2019 PDT, on August 27, 2019, the AAPD and ADA wrote HRSA urging them not to replace the mea- sure of Dental Sealants for Children Between 6-9 Years. This measure is utilized in HRSA’s oversight of its community health centers pro- gram. HRSA had requested public comment on a proposal to replace this measure with one titled Primary Caries Prevention Intervention  as Offered by Primary Care Providers (CMS74v9). The letter, signed by then-ADA President Jeffrey M. Cole, ADA Executive Director Kathleen T. O’Loughlin, AAPD President Kevin J. Donly, and AAPD Chief Executive Officer John S. Rutkauskas stated: "Research has shown that sealants are effective in preventing occlusal carious lesions in the molars of children when compared with controls without seal- ants." The letter referenced the evidence-based clinical practice guide- line released in 2016 by the ADA and AAPD that found sealants could minimize the progression of noncavitated occlusal carious lesions and effectively prevent and arrest pit-and-fissure occlusal carious lesions of primary and permanent molars in children and adolescents compared with the nonuse of sealants or use of fluoride varnishes. The letter is available on the AAPD website.4
P.L. 116-94 referenced above also included the repeal of several problematic tax provisions.
Permanent repeal of the 2.3 percent medical device tax that was included in the Affordable Care Act. Implementation of this tax had been delayed by Congress several times, but was scheduled to begin in 2020. Many healthcare organizations, including the Organized Dentistry Coalition (coordinated by ADA, of which AAPD is a member) had long advocated for this permanent repeal.
Full repeal of the "Cadillac tax" on high-cost employer-provided health plans. Enacted as part of the Affordable Care Act, the Cadillac tax would have imposed a 40 percent excise tax beginning in 2022 on employer-provided health plans that exceed $11,200 for an individual and $30,100 for a family.
Repeal of the UBIT tax on employee fringe benefits provided by tax-exempt organizations. Originally enacted under the 2017 tax law, this provision required associations and other tax-exempt organi- zations to pay a 21 percent unrelated business income tax (UBIT) on employee benefits, such as parking and transportation. Known as the "church parking tax", there was a two-year advocacy and grassroots campaign by the American Society of  Association Executives (ASAE) and the UBIT Coalition, working towards repeal.
State News
The AAPD, American Dental Association, Nebraska Society of Pediatric Dentistry and Nebraska Dental Association, troubled by  the growing number of Medicaid pediatric dental audits in Nebraska that are harming children’s access to oral care, wrote the state’s Medicaid agency on Nov. 6, 2019, stating that the audits have led to "unfortunate outcomes detrimental to the program’s goal of improv- ing oral health access for children of low-income families." The organizations said they believe that dental auditors were not basing their reviews on AAPD’s accepted clinical recommendations and were "second-guessing clinical decision-making by pediatric dentists absent appropriate peer review by a dentist with equivalent educational training."
The audits have questioned the use of stainless steel crowns in children at high caries risk, many with signs of severe decay on mul- tiple teeth, and requested significant refund of payments for alleged inappropriate treatment. The letter asked the Nebraska Division of Medicaid and Long-Term Care to halt the audits and require all future Medicaid dental auditors to utilize dental profession clinical guidelines, best practices and policies of the appropriate specialty or- ganization, and require contracted auditors to utilize licensed dentists of equivalent education and training as the dentists being audited and to have experience in treating Medicaid patients
There was featured story about the letter in ADA News, including a front page story in the printed version, and AAPD also posted the letter and summary on our website.5
On Dec. 13, 2019, the Nebraska Legislature’s Health and Hu- man Services Committee held a hearing that included testimony on the Medicaid UPIC (Uniform Program Integrity Contractor) dental audits. The dental audit portion lasted for a little under an hour. The witnesses all did an outstanding job; these included pediatric den- tists Drs. Marty Killeen (the first pediatric dentist impacted by these audits), Jill Wallen (head of pediatric dentistry at the University of Nebraska dental school), and Jessica Meeske (former AAPD North- Central Trustee and member of the AAPD’s Committee on Dental Benefit Program and Pediatric Dental Medicaid and CHIP Advisory Committee), along with the mother of a special needs child.
There will likely be legislation introduced to remedy the problem; in addition, a group of pediatric dentists subsequently met with the Governor to ask for immediate executive relief from the pending audits. In a bit of great timing, coordinated between the Nebraska Society of Pediatric Dentistry and AAPD, there was a front page news story Friday morning of the hearing in the Omaha World-Herald and 6 a subsequent editorial supporting the dental community’s position.
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