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Sep 13, 2021

Teledentistry is Legal in Texas... But, Tread Carefully

By: Roger Berger

Gov. Greg Abbott signed a bill into law on June 16, 2021 formally authorizing teledentistry in Texas.  The law passed by the Texas Legislature followed a lawsuit that challenged the Texas Board of Dental Examiners’ interpretation of Rules in a way that all but prohibited teledentistry in Texas. The Board had interpreted a rule requiring “documentation of the findings of a tactile and visual examination of the soft and hard tissues of the oral cavity” as requiring an in-person examination – how else can you do a tactile examination?

HB 2506 amended Chapter 111 of the Texas Occupations Code to include items related to teledentistry.  Among other provisions, HB 2506:

  • Requires informed consent from the patient;
  • Establishes standards of care for teledentistry;
  • Protects patient privacy and confidentiality;
  • Promotes care for underserved areas;
  • Addresses the use of teledentistry use in treating patients with special needs, and;
  • Empowers the State Board of Dental Examiners to set rules for teledentistry.

The new provisions took effect on September 1, 2021.

What the Bill does not do is set forth what the reasonable and prudent dental practitioner is required to do while practicing teledentistry.  In fact, Sec. 111.007(a), titled “Standard of Care for Telemedicine Medical Services, Teledentistry Dental Services, and Telehealth Services” provides:

  1. A health professional providing a health care service or procedure as a telemedicine medical service, a teledentistry dental service, or a telehealth service is subject to the standard of care that would apply to the provision of the same health care service or procedure in an in-person setting.

Although the law allowing the practice of teledentistry is now effective, the Dental Board has not yet passed any rules regarding the practice of teledentistry.  The Board had a “stakeholder meeting” on August 11, 2021 (video available at TSBDE August 2021 Stakeholder Meeting - YouTube), which provided the Board with testimony showing both the potential positive and negative factors regarding teledentistry.  It is often insightful to consider the comments by committee and Board members as it does shed light on how they will consider future complaints.  This is especially important because the Rules proposed at this meeting will be published for public comment and the earliest they can be approved is not until the next Board meeting on December 10, 2021.  The actual deadline by which the Board must enact rules is March 11, 2022.  For this reason, teledental providers may be operating without specific rules for at least the next few months.  For any complaints raised regarding teledentistry before formal rules are enacted, the Board will fall back on the “reasonable and prudent dentist” standard that applies to in person visits.

The number one concern expressed by the Board and its Dental Practice Committee is the prevention of fraud or abuse.  The eventual rules are not likely to be very specific and are more likely to simply require dental providers engaging in teledentistry to practice as a reasonable and prudent dental provider.  It appears likely the Board will not require an in-person examination of a current patient before a teledental encounter, but it may be required for new patients (there was no mention about patients who have not had a recent in-person exam) or they may allow for the first in-person visit to be reasonably soon after a teledental encounter for a new patient (back to the reasonable and prudent dentist standard).

One consideration discussed at the Board’s September meetings was whether the goal of teledentistry is to expand access to dental care to rural areas that are underserved or should be geared more towards emergencies and an evaluation of whether the patient needs further in-person treatment.  It would appear that licensees in Texas can serve both goals via teledentristy.

Dentists will be able to conduct teledental visits for existing patients who are traveling out of state.  If not an existing patient, the dentist must be licensed in the state where the patient was at the time of the teledental encounter; a Texas licensee conducting a teledental encounter for a non-current patient who was out of state at the time of the encounter would be subject to discipline by the Texas Dental Board if there was a complaint that warranted it. 

Also note that insurers will not yet be required to reimburse for teledentistry; rules regarding reimbursement may not be in place until the Board formally votes on and adopts rules, likely at its December 2021 meeting.

Practically, teledentistry should be an effective way for a dentist to conduct a remote evaluation of patients with specific problems, such as toothaches and swollen gums to determine if emergency care is needed. Teledentists can prescribe medication, provide diagnoses, and offer information about oral hygiene and proposed courses of treatments.  If an in-person exam is needed, the teledentist can refer the patient to a brick-and-mortar practice.

Teledentists will be able to supervise dental hygienists who are in an office with the patient.  The dental hygienist can interview and examine the patient, provide data to the dentist who is at a remote location.  The dentist can then conduct a virtual examination and have the hygienist provide hygiene services without the dentist physically being present, but under their guidance and supervision. Dental assistants will need to continue to practice within their same scope of practice as in an office setting

From past experience representing licensees before the Dental Board, it is likely the Dental Board will treat teledentistry as an adjunct and complement to office visits, and not a replacement for in-person evaluations.  In other words, teledentistry is not specifically designed to expand the scope of a dental provider’s practice.  Future complaints regarding teledentistry encounters will likely be judged on whether it was good for the patient, with particular attention to whether the encounter improved the patient’s outcome (not the dental provider’s bottom line). 

Record-keeping will be even more important with teledental encounters than in-person encounters as dentists need to provide detailed documentation to support their decision-making.  Because of the limitations of remote visual examinations, pathology will be missed and treatment decisions will turn out to be wrong in retrospect; detailed documentation of the encounter will be the most important factor in the Board’s decision-making regarding complaints (both in investigations and at Informal Settlement Conferences).  It will be up to the individual provider to determine whether to make a video or photographic record of the encounter (in addition to their written notes) – there are pros and cons each way if that evidence is preserved.  Some Board members suggested that the Rules require that patients be provide with a written document (electronic would suffice) that identifies all persons involved in their teledental visit and a summary of that visit.

Until the Board implements specific rules regarding the practice of telendistry, dental practioners should be cognizant of these considerations and make sure that their documentation is detailed and complete.  At a minimum, any teledental encounters should contain a record of all of the information currently required under Board Rules for an in-person encounter (e.g., 22 Tex. Admin. Code § 108.7 and 108.8).