Original Notice.

     Preproposal statement of inquiry was filed as WSR 03-08-086 and 03-12-054.

     Title of Rule: Part 1 of 4, chapter 388-535 WAC, Dental services, amending WAC 388-535-1050 Definitions, 388-535-1060 Clients who are eligible for dental-related services and 388-535-1070 Dental-related services provider information; and new section WAC 388-535-1065 Coverage limits for dental-related services provided under state-only funded programs.

     Purpose: To avoid federal penalties, the department is amending these rules to be HIPAA-compliant (P.L. 104-191) by October 16, 2003. To comply with requirements of the 2003-2005 State Omnibus Operating Budget (ESSB 5404), the department is incorporating into rule the 25% reduction in adult dental benefits.

     Statutory Authority for Adoption: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.530.

     Statute Being Implemented: RCW 74.04.050, 74.04.057, 74.08.090, and 74.09.530; ESSB 5404 (chapter 25, Laws of 2003 1st sp.s.).

     Summary: See Purpose above.

     Reasons Supporting Proposal: See Purpose above.

     Name of Agency Personnel Responsible for Drafting: Kathy Sayre, P.O. Box 45533, Olympia, WA 98504, (360) 725-1342; Implementation and Enforcement: Gini Egan, P.O. Box 45506, Olympia, WA 98504, (360) 725-1580.

     Name of Proponent: Department of Social and Health Services, governmental.

     Rule is necessary because of federal law, Public Law 104-191 (Health Insurance Portability and Accountability Act of 1996).

     Explanation of Rule, its Purpose, and Anticipated Effects: See Purpose above.

     The purpose is to meet federal and state requirements, to incorporate rule changes to reflect the 25% reduction in dental-[related] services for adults, and to incorporate changes required by HIPAA.

     The anticipated effect is compliance with federal and state requirements and easier to understand rules.

     Proposal Changes the Following Existing Rules: Proposal incorporates state legislative changes in adult dental-related services and the changes required by HIPAA. The rules change and add to existing definitions, amend sections in and add new sections to chapter 388-535 WAC. WAC 388-535-1120 will be repealed.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the proposed rules, and, to the best of the department's knowledge, the rule will not place more than a minor economic impact on small businesses.

     RCW 34.05.328 applies to this rule adoption. The department has determined that the proposed rule meets the definition of a "significant legislative rule." The department has analyzed the proposed amendments and concludes that the probable benefits are greater than the probable costs and has prepared a cost benefit analysis (CBA) memo regarding these rule changes. A copy of the CBA memo is available from Gini Egan, Division of Medical Management, Medical Assistance Administration, Department of Social and Health Services, P.O. Box 45506, Olympia, WA 98504-5506, phone (360) 725-1580.

     Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on August 26, 2003, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Andy Fernando, DSHS Rules Coordinator, by August 22, 3003 [2003], phone (360) 664-6094, TTY (360) 664-6178, e-mail fernanaax@dshs.wa.gov [fernaax@dshs.wa.gov].

     Submit Written Comments to: Identify WAC Numbers, DSHS Rules Coordinator, Rules and Policies Assistance Unit, mail to P.O. Box 45850, Olympia, WA 98504-5850, deliver to 4500 10th Avenue S.E., Lacey, WA, fax (360) 664-6185, e-mail fernaax@dshs.wa.gov by 5:00 p.m., August 26, 2003.

     Date of Intended Adoption: Not sooner than August 27, 2003.

July 17, 2003

Brian H. Lindgren, Manager

Rules and Policies Assistance Unit

     "Access to baby and child dentistry (ABCD)" is a program to increase access to dental services in targeted areas for Medicaid eligible infants, toddlers, and preschoolers up through the age of five. See WAC 388-535-1300 for specific information.

     "American Dental Association (ADA)" is a national organization for dental professionals and dental societies.

     "Adult" for the general purposes of the medical assistance administration's (MAA) dental program, means a client twenty-one years of age or older (MAA's payment structure changes at age nineteen, which affects specific program services provided to adults or children).

     "Anterior" means teeth and tissue in the front of the mouth.

     (1) "((Lower)) Mandibular anterior((,)) teeth" - incisors and canines: teeth twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, and twenty-seven; and

     (2) "((Upper)) Maxillary anterior((,)) teeth" - incisors and canines: teeth six, seven, eight, nine, ten, and eleven.

     "Asymptomatic" means having or producing no symptoms.

     "Base metal" means dental alloy containing little or no precious metals.

     "Behavior management" means managing the behavior of a developmentally disabled client ((during treatment using)) or a client age eighteen or younger to facilitate the delivery of dental treatment with the assistance of one additional dental professional staff((, and professionally accepted restraints or sedative agent, to protect the client from self-injury)).

     "By report" - a method of ((payment for a covered service, supply, or equipment which:

     (1) Has no maximum allowable established by MAA,

     (2) Is a variation on a standard practice, or

     (3) Is rarely provided)) reimbursement in which MAA determines the amount it will pay for a service when the rate for that service is not included in MAA's published fee schedules. Upon request the provider must submit a "report" which describes the nature, extent, time, effort and/or equipment necessary to deliver the service.

     "Caries" means tooth decay through the enamel or decay of the root surface.

     "Child" for the general purposes of the medical assistance administration's (MAA) dental program, means a client twenty years of age or younger. (MAA's payment structure changes at age nineteen, which affects specific program services provided to children or adults.)

     "Comprehensive oral evaluation" means a thorough evaluation and recording of ((the hard and soft tissues in and around the mouth, including the evaluation and recording of the client's dental and medical history and a general health assessment)) a client's dental and medical history to include extra-oral and intra-oral hard and soft tissues, dental caries, missing or unerupted teeth, restorations, occlusal relationships, periodontal conditions (including periodontal charting), hard and soft tissue anomalies, and oral cancer screening.

     "Conscious sedation" is a drug-induced depression of consciousness during which clients respond purposefully to verbal commands, either alone or accompanied by light tactile stimulation. No interventions are required to maintain a patent airway, spontaneous ventilation is adequate, and cardiovascular function is usually maintained.

     "Coronal" is the portion of a tooth that is covered by enamel, and is separated from the root or roots by a slightly constricted region, known as the cemento-enamel junction.

     "Coronal polishing" is a procedure limited to the removal of plaque and stain from exposed tooth surfaces.

     "Crown (((artificial)))" means a restoration covering or replacing the major part, or the whole of, the clinical crown of a tooth.

     "Current dental terminology (CDT)((, third edition (CDT-3),))" a systematic listing of descriptive terms and identifying codes for reporting dental services and procedures performed by dental practitioners. CDT is published by the Council on Dental Benefit Programs of the American Dental Association (ADA).

     "Current procedural terminology ((2002 (CPT 2002),)) (CPT)" means a description of medical procedures and is available from the American Medical Association of Chicago, Illinois.

     "Decay" is a term for caries or carious lesions and means decomposition of tooth structure.

     "Deep sedation" is a drug-induced depression of consciousness during which a client cannot be easily aroused, ventilatory function may be impaired, but the client responds to repeated or painful stimulation.

     "Dental general anesthesia" ((means the use of agents to induce loss of feeling or sensation, a controlled state of unconsciousness, in order to allow dental services to be rendered to the client.)) See "general anesthesia."

     "Dentures" ((are a set of artificial teeth, including overdentures. See WAC 388-535-1240 for specific information)) means an artificial replacement for natural teeth and adjacent tissues, and includes complete dentures, immediate dentures, overdentures, and partial dentures.

     "Endodontic" means ((a)) disease and injuries to the pulp requiring root canal ((treatment)) therapy and related follow-up.

     "EPSDT" means the department's early and periodic screening, diagnosis, and treatment program for clients twenty years of age and younger as described in chapter 388-534 WAC.

     "Extraction" See "simple extraction" and "surgical extraction."

     "Flowable composite resin" is a light-cured, low viscosity composite resin that is used in cervical lesions and other small, low stress bearing restorations.

     "Fluoride varnish or gel" means a substance containing dental fluoride, applied to teeth.

     "General anesthesia" is a drug-induced loss of consciousness during which clients are not arousable even by painful stimulation. The ability to independently maintain ventilatory function is often impaired. Clients may require assistance in maintaining a patent airway, and positive pressure ventilation may be required because of depressed spontaneous ventilation or drug-induced depression of neuromuscular function. Cardiovascular function may be impaired.

     "High noble metal" means a dental alloy containing at least sixty percent pure gold.

     "Limited oral evaluation" means an evaluation limited to a specific oral health condition or problem. Typically a client receiving this type of evaluation has a dental emergency, such as trauma or acute infection.

     "Major bone grafts" means a transplant of solid bone tissue(s).

     "Medically necessary" see WAC 388-500-0005.

     "Minor bone grafts" means a transplant of nonsolid bone tissue(s), such as powdered bone, buttons, or plugs.

     "Noble metal" means a dental alloy containing at least twenty-five percent but less than sixty percent pure gold.

     "Oral evaluation" ((is a comprehensive oral health and developmental history; an assessment of physical and oral health development and nutritional status; and health education, including anticipatory guidance.)) See "comprehensive oral evaluation."

     (("Oral health assessment or screening" means a screening of the hard and soft tissues in the mouth.))

     "Oral hygiene instruction" means instruction for home oral hygiene care, such as tooth brushing techniques or flossing.

     (("Oral health status" refers to the client's risk or susceptibility to dental disease at the time an oral evaluation or assessment is done by a dental practitioner. This risk is designated as low, moderate or high based on the presence or absence of certain indicators. ))

     "Oral prophylaxis" means the preventive dental procedure of scaling and polishing which includes removal of calculus, soft deposits, plaque and stains.

     "Partials" or "partial dentures" means a removable appliance replacing one or more missing teeth in one ((jaw)) arch, and receiving its support and retention from both the underlying tissues and some or all of the remaining teeth. ((See WAC 388-535-1240 for specific information.))

     "Periodic oral evaluation" means an evaluation performed on a patient of record to determine any changes in the client's dental or medical status since a previous comprehensive or periodic evaluation. This includes a periodontal charting at least once per year.

     "Periodontal maintenance" means a procedure for clients who have previously been treated for periodontal disease and starts after completion of active (surgical or nonsurgical) periodontal therapy. It includes removal of the supra and subgingival microbial flora and calculus.

     "Periodontal scaling and root planing" means instrumentation of the crown and root surfaces of the teeth to remove plaque, calculus, microbial flora, and bacterial toxins.

     "Posterior" means teeth and tissue towards the back of the mouth. ((Specifically, only these permanent))

     (1) "Mandibular posterior teeth" - distal to the canines: teeth((:)) one, two, three, four, five, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-eight, twenty-nine, thirty, thirty-one, and thirty-two.

     (2) "Maxillary posterior teeth" - distal to the canines: premolars four, five twelve, thirteen, and molars one, two, three, fourteen, fifteen, and sixteen.

     "Proximal" means the surface of the tooth near or next to the adjacent tooth.

     "Reline" means to resurface the tissue side of a denture with new base material or soft tissue conditioner in order to achieve a more accurate fit.

     "Root canal" is a portion of the pulp cavity inside the root of a tooth and the chamber within the root of the tooth that contains the pulp.

     "Root canal therapy" is the treatment of disease and injuries of the pulp and associated periradicular conditions.

     "Root planing" is a procedure ((designed)) to remove microbial flora, bacterial toxins, calculus, and diseased cementum or dentin ((from the teeth's)) on the root surfaces and pockets.

     "Scaling" ((means the removal of calculous material from the exposed tooth surfaces and that part of the teeth covered by the marginal gingiva)) is a procedure to remove plaque, calculus, and stain deposits from tooth surfaces.

     "Sealant" is a material applied to teeth to prevent dental caries.

     "Simple extraction" means routine removal of tooth structure.

     "Standard of care" means what reasonable and prudent practitioners would do in the same or similar circumstances.

     "Surgical extraction" means removal of tooth structure with cutting of gingiva and bone, including soft tissue extractions, partial boney extractions, and complete boney extractions.

     "Symptomatic" means having symptoms (e.g., pain, swelling, and infection).

     "Tempormandibular joint dysfunction (TMJ/JMD)" means an abnormal functioning of the tempormandibular joint or other areas secondary to the dysfunction.

     "Therapeutic pulpotomy" means the surgical removal of a portion of the pulp (inner soft tissue of a tooth), to retain the healthy remaining pulp.

     "Usual and customary" means the fee that the provider usually charges non-Medicaid customers for the same service or item. This is the maximum amount that the provider may bill MAA.

     "Wisdom teeth" means teeth one, sixteen, seventeen, and thirty-two.

     "Xerostomia" means a dryness of the mouth.

[Statutory Authority: RCW 74.08.090, 74.09.035, 74.09.500, 74.09.520, 42 U.S.C. 1396d(a), 42 C.F.R. 440.100 and 440.225. 02-13-074, § 388-535-1050, filed 6/14/02, effective 7/15/02. Statutory Authority: RCW 74.08.090. 01-02-076, § 388-535-1050, filed 12/29/00, effective 1/29/01. Statutory Authority: RCW 74.08.090, 74.09.035, 74.09.520 and 74.09.700, 42 USC 1396d(a), CFR 440.100 and 440.225. 99-07-023, § 388-535-1050, filed 3/10/99, effective 4/10/99. Statutory Authority: Initiative 607, 1995 c 18 2nd sp.s. and 74.08.090. 96-01-006 (Order 3931), § 388-535-1050, filed 12/6/95, effective 1/6/96.]

     (1) Children eligible for the:

     (a) Categorically needy program (CN or CNP);

     (b) Children's health insurance program (CNP-CHIP); and

     (c) ((Qualified Medicare beneficiary (CNP-QMB);

     (d))) Limited casualty program((/)) - medically needy program (LCP-MNP)((;

     (e) Medically needy program - qualified Medicare beneficiary (MNP-QMB);

     (f) Children's health (the state-funded only program) through September 30, 2002 only; and

     (g) Pregnant undocumented aliens.

     (2) Clients who receive services under the following state-funded only programs are covered as described in WAC 388-535-1120:

     (a) General assistance unemployable (GAU); and

     (b) Alcohol and drug abuse treatment and support act (ADATSA).

     (3) Clients who receive services under the medically indigent (MI) program are covered for only those medical conditions that are acute and emergent and treated in a hospital.

     (4))).

     (2) Adults eligible for the:

     (a) Categorically needy program (CN or CNP); and

     (b) Limited casualty program - medically needy program (LCP-MNP).

     (3) Clients eligible for medical case services under the following state-funded only programs are eligible only for the limited dental-related services described in WAC 388-535-1065:

     (a) General assistance - Unemployable (GA-U); and

     (b) General assistance - Alcohol and Drug Abuse Treatment and Support Act (ADATSA) (GA-W).

     (4) Clients who are enrolled in a managed care plan are eligible for medical assistance administration (MAA)-covered dental services that are not covered by their plan, under fee-for-service, subject to the provisions of chapter 388-535 WAC and other applicable WAC.

[Statutory Authority: RCW 74.08.090, 74.09.035, 74.09.500, 74.09.520, 42 U.S.C. 1396d(a), 42 C.F.R. 440.100 and 440.225. 02-13-074, § 388-535-1060, filed 6/14/02, effective 7/15/02. Statutory Authority: RCW 74.08.090, 74.09.035, 74.09.520 and 74.09.700, 42 USC 1396d(a), CFR 440.100 and 440.225. 99-07-023, § 388-535-1060, filed 3/10/99, effective 4/10/99.]

     (a) General assistance unemployable (GA-U); and

     (b) Alcohol and drug abuse treatment and support act (ADATSA) (GA-W).

     (2) The medical assistance administration (MAA) covers the dental-related services described and limited in this chapter for clients eligible for GA-U or GA-W only when those services are provided as part of a medical treatment for apical abscess verified by clinical examination, and treated by:

     (a) Open and drain palliative treatment;

     (b) Tooth extraction; or

     (c) Root canal therapy for anterior teeth only.

[]

     (a) Persons currently licensed by the state of Washington to:

     (i) Practice dentistry or specialties of dentistry((;)).

     (ii) ((Practice medicine and osteopathy for:

     (A) Oral surgery procedures; or

     (B) Providing fluoride varnish under EPSDT;

     (iii))) Practice as dental hygienists((;

     (iv) Provide denture services;

     (v) Practice anesthesia or

     (vi) Provide)).

     (iii) Practice as denturists.

     (iv) Practice anesthesia by:

     (A) Providing conscious sedation((, when certified by the department of health and when providing that service in dental offices for dental treatments)) with parental or multiple oral agents, deep sedation, or general anesthesia as an anesthesiologist or dental anesthesiologist;

     (B) Providing conscious sedation with parental or multiple oral agents, deep sedation, or general anesthesia as a Certified Registered Nurse Anesthetist (CRNA), when the performing dentist has the appropriate conscious sedation permit or general anesthesia permit from the department of health (DOH); or

     (C) Providing conscious sedation with parenteral or multiple oral agents, deep sedation, or general anesthesia as a dentist, when the dentist has a conscious sedation permit or general anesthesia permit from DOH.

     (v) Practice medicine and osteopathy for:

     (A) Oral surgery procedures; or

     (B) Providing fluoride varnish under EPSDT.

     (b) Facilities that are:

     (i) Hospitals currently licensed by the department of health;

     (ii) Federally-qualified health centers (FQHCs);

     (iii) Medicare-certified ambulatory surgical centers (ASCs);

     (iv) Medicare-certified rural health clinics (RHCs); or

     (v) Community health centers.

     (c) Participating local health jurisdictions((; and)).

     (d) Border area or out-of-state providers of dental-related services who are qualified in their states to provide these services.

     (2) Subject to the restrictions and limitations in this section and other applicable WAC, MAA pays licensed providers participating in the MAA dental program for only those services that are within their scope of practice.

     (3) See WAC 388-502-0020 for provider documentation and record retention requirements. MAA ((may require)) requires additional dental documentation under specific sections in this chapter and as required by chapter 246-817 WAC.

     (4) See WAC 388-502-0100 and 388-502-0150 for provider billing and payment requirements.

     (5) See WAC 388-502-0160 for regulations concerning charges billed to clients.

     (6) See WAC 388-502-0230 for provider review and appeal.

     (7) See WAC 388-502-0240 for provider audits and the audit appeal process.

[Statutory Authority: RCW 74.08.090, 74.09.035, 74.09.500, 74.09.520, 42 U.S.C. 1396d(a), 42 C.F.R. 440.100 and 440.225. 02-13-074, § 388-535-1070, filed 6/14/02, effective 7/15/02.]

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