02/25/2010
Statehouse update: Prescription drug issues, other legislation could affect dentists

Keith Kerns, Esq.
ODA Director of Legal and Legislative Services

The Ohio Dental Association continues to follow a variety of initiatives in Columbus that could impact dental offices throughout the state.

Hygiene supervision
Substitute House Bill 190, a measure that was introduced in late May 2009 by Rep. Lorraine M. Fende (D-Willowick) and won unanimous approval by the Ohio House of Representatives in June, is now awaiting Senate approval. The Senate Health, Human Services and Aging Committee unanimously recommended the bill for passage last month. The ODA supports the bill, which creates a new level of supervision of dental hygienists operating in underserved locations such as nursing homes, clinics and public schools.

The new level of supervision created by the bill will allow dentists to send properly trained hygienists to certain designated underserved locations outside the dental office and see patients without the dentist present. It also ensures the dentist remains actively involved in patient care at the outset and assumes full responsibility for all care delivered. Dentists will be required to review the health history of each patient prior to the provision of dental hygiene services to make certain those services can be provided safely.

Patients seen by a hygienist under the new level of supervision will have a subsequent appointment set with the dentist for the purposes of a diagnosis and treatment plan. A second set of hygiene services is not permitted until a dentist performs a diagnosis and treatment plan for the patient.

In addition to the creation of the new supervision level, the bill also changes the disciplinary process for the late renewal of a dental license and for continuing education (CE) violations. Current law mandates an automatic suspension be imposed on dentists who do not renew timely or fail to obtain the requisite amount of CE. Substitute House Bill 190 will revise that structure and allow the Ohio State Dental Board the option to initiate a separate disciplinary action for any alleged late renewals or CE violations, rather than imposing an automatic suspension.

Finally, the bill also creates a structure for hygienists to temporarily retire a license and increases hygienists' CE requirements to 24 hours (from 12) every 2 years, a request from the Ohio Dental Hygienists' Association.

Due process protections
In June 2009, Reps. Tom Letson (D-Warren) and Robert Mecklenborg (R-Green Township) introduced House Bill 215 to reform the Ohio State Dental Board's administrative and disciplinary procedures.

Among other things, the bill would create a two-year statute of limitations on dental board investigations, provide enhanced discovery rights for dentists and make the board's authority related to subpoenaing records more consistent with other regulatory boards.

The ODA supports the bill and believes it will ensure dentists are provided with appropriate due process rights, while also protecting the ability of the OSDB to enforce the Dental Practice Act.

In October, HB 215 passed the House Health Committee and is now pending before the entire Ohio House of Representatives.

In addition to these developments on dental hygiene supervision and dental board due process legislation, the ODA is also monitoring the following statehouse initiatives that could impact the practice of dentistry.

Prescription forms
Introduced in August 2009 by Rep. Clayton Luckie (D-Dayton), House Bill 267 would establish the "Ohio official prescription program" under the purview of the Ohio State Board of Pharmacy. The program would allow the board to establish an official prescription form and mandate its use by all prescribers. House Bill 267 is assigned to the House Health Committee.

The official state prescription form would have to contain certain tamper-proof safeguards, including measures to prevent the duplication of blank forms and modification of completed forms. Once the Pharmacy Board creates the form, health care providers would be prohibited from prescribing drugs unless the prescription is written on the official state form. Electronic or oral orders and orders from prescribers working at a hospital or other designated facilities would be exempt from the mandates.

The Pharmacy Board would be charged with issuing forms to prescribers for use, and it would have the discretion to determine the appropriate quantities and intervals at which to provide the forms to prescribers.

All authorized prescribers would be required to pay an annual maintenance fee of $250 to the Pharmacy Board to sustain the program.

Ambulatory surgical facilities and circulating nurses
House Bill 205, introduced by Rep. Tom Letson (D-Warren), would require that a circulating nurse be assigned to each procedure performed in an operating room of an ambulatory surgical facility. A circulating nurse is a registered nurse who is trained in perioperative nursing and is responsible for coordinating nursing care and safety needs of a patient in an operating room.

Ambulatory surgical facilities are exempted from the requirement only in those instances where a patient is not placed under anesthesia and the procedure is an endoscopy, LASIK surgery, shock wave therapy or is performed for the primary purpose of relieving pain.

The bill is pending in the House Health Committee.

Prescription monitoring
The Buckeye State Sheriffs' Association is working with the Ohio State Board of Pharmacy to promulgate a change in Ohio law to require all prescribers, including physicians, dentists and others, to consult a state drug database prior to issuing a prescription to any patient.

Details of the sheriffs' group's discussion with the Pharmacy Board appear to be at the formative stages, and no legislation has been introduced to implement the change. However, several major news outlets have reported on the groups' efforts.

The drug database at issue is the Ohio Automated Rx Reporting System (OARRS), which was created through legislation passed by the Ohio General Assembly in 2005. The legislation required pharmacies to collect detailed prescription information and provide it to the Pharmacy Board for input into the database. The database could then be utilized by law enforcement entities to monitor the misuse and diversion of controlled substances.

Information retained in OARRS includes:

• Patient identification
• Prescriber identification
• Date the prescription was issued by prescriber
• Date the prescription was dispensed
• Whether the prescription dispensed is new or a refill
• The name and strength of the drug dispensed
• Quantity of drug dispensed
• Number of days' supply of drug dispensed
• Source of payment for the prescription

Prescribers are currently permitted to utilize the OARRS system in order to obtain prescription information for their patients. However, nothing in the law requires a prescriber to obtain information on a patient through OARRS.

The Buckeye State Sheriffs' Association and Pharmacy Board seek to change that by mandating that prescribers utilize the database prior to issuing a prescription.

It has been reported that the proposed mandate would allow law enforcement officials to pursue prescribers who fail to utilize OARRS in addition to those actually engaged in drug diversion.

The groups believe this mandate will help curb drug diversion and abuse. Currently, only the state of Nevada imposes such a mandate on prescribers.

According to the Pharmacy Board, around 5,500 of the 42,000 licensed prescribers in the state are currently registered to utilize OARRS.

For additional information on these or other legislative matters, or to learn more about OARRS, please contact the ODA department of government affairs at (800) 282-1526.