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Teledentistry in New York: Its Past, Present and Future
Marc Craw, Esq. and Matthew Lamb, Esq.
Teledentistry in New York is a relatively recent practice, with the laws that recognize and codified it having only been enacted in 2014 and 2015. Chapter 550 of the New York Laws of 2014 required health insurers and Medicaid to cover the provision of telehealth services, including dental services rendered through telehealth, in the same manner as those services would be provided in an in-person setting. In 2015, the Legislature modified the previous year’s law implementing payment parity for health services provided via telehealth and telemedicine technology in response to the Governor’s request for certain clarifications to the statutes.
More specifically, as a result of the 2014 and 2015 legislation, a new article in the New York State Public Health Law (PHL) was created. PHL article 29-G, Telehealth Delivery of Services, contains the primary New York statutes governing teledentistry. Dentists are recognized in PHL section 2999-cc as a “Telehealth provider” and thereby officially authorized to provide teledentistry within the rules and guidelines set forth in PHL article 29-G and other New York State laws and regulations applicable to teledentistry.
When 2020 arrived and the Covid-19 pandemic swept through New York, starting at the beginning of March, the PHL telehealth article 29-G saw its first significant revisions since 2015. Chapter 328 of the New York Laws of 2020, signed by Governor Cuomo on December 15, 2020, added new subdivisions 3 and 4 to PHL section 2999-dd.
Subdivision 3 specifically addresses teledentistry in New York. This new subdivision mandated that dental telehealth services adhere to standards of appropriate patient care as is required in other dental healthcare settings, including but not limited to appropriate patient examination, taking of x-rays and review of the patient’s dental and medical history. Furthermore, the new law requires all teledentistry providers to identify themselves to patients, including providing the teledentistry provider’s New York State license number.
Subdivision 3 also prohibits any teledentistry provider from attempting to waive liability for its telehealth services in advance of delivering such services. In addition, teledentistry providers are prohibited from attempting to prevent a patient from filing any complaint with any governmental agency or authority. This new statute also stipulates that this subdivision is not to be construed as diminishing requirements for other telehealth services.
Finally, subdivision 4 expressly states that nothing in article 29-G shall be deemed to allow any person to provide any service for which a license, registration, certification or other authorization under NY Education Law title 8 THE PROFESSIONS (which includes dentists under the Medicine section of title 8) is required and which the person does not possess.
The Present Status of Teledentistry
According to the University at Albany’s Center for Health Workforce Studies (CHWSNY) 2023 report , teledentistry can be employed as a method to conduct dental appointments that involve triage, consultation, diagnosis, referral, follow-up, and health education. The CHWSNY report examined state laws, regulations and policies related to teledentistry in the 50 states and Washington, D.C., with respect to eight categories. These eight categories consisted of the following: source of authority to provide teledentistry services; types of allowable services; required modality for synchronous teledentistry; other modalities allowed (for example, mobile apps, email); patient of record required; patient informed consent required; allowed providers; and Medicaid reimbursement for Current Dental Terminology (CDT) codes D9995 and/or D9996 .
As mentioned above, New York’s source of authority to provide teledentistry services derives from a telehealth statute. New York allows both synchronous and asynchronous teledentistry services. PHL section 2999-cc (5) expressly states that “telemedicine means the use of synchronous, two-way electronic audio-visual communications to deliver clinical healthcare services.” Asynchronous telehealth services in New York are permitted under PHL section 2999-cc (6) as “store and forward technology,” which is defined as “asynchronous, electronic transmission of a patient’s health information.” New York’s required modality for synchronous teledentistry consists of video or audio only, not just video as in some states. New York also permits the use of other modalities, such as mobile apps or email. Teledentistry in New York does not require a patient of record, and there is no specific patient informed consent required for teledentistry in the state. The only allowed providers of teledentistry in New York are dentists. Finally, New York does not allow Medicaid reimbursement for CDT codes D9995 or D9996 .
The Future of Teledentistry
Assemblymember Linda Rosenthal has introduced a bill, A365, that would require health insurance coverage for store and forward telehealth (which includes teledentistry). Store and forward teledentistry, also known as asynchronous teledentistry, commonly occurs through the acquisition of patient imaging, oral health screening and assessment, and recording of a patient’s medical history by a dental hygienist in a remote location such as a nursing home or school4. The process then involves forwarding the dental patient’s records to a dentist, who will diagnose and conduct treatment planning5.
Assembly bill A365, which currently does not have a companion bill in the New York State Senate, could have a significant positive impact on teledentistry’s use of this asynchronous process to deliver telehealth by increasing the financial incentive for this process.
Another legislative measure, which is also pending and has not yet been passed into law but could potentially increase the use of teledentistry, is Assemblymember Aileen Gunther’s bill A4584-A. Unlike A365, Assemblymember Gunther’s bill has a Senate companion with Senator Fernandez sponsoring S3526 in that legislative house.
While the current law does mandate that health insurers cover teledentistry, it does not explicitly require on a permanent basis that health insurance coverage for teledentistry be reimbursed at the same rate as an in-dental office visit. Bills A4584-A/S3526 would implement this requirement on a permanent basis, which could provide a financial incentive for dentists to more frequently use teledentistry.
Using Teledentistry in Your Practice
The use of teledentistry can come with considerable costs associated with obtaining and maintaining the necessary equipment and software. As with any electronic platform, it can also come with an increased risk of privacy breaches. Additionally, when considering the implementation of this technology, practices must consider their patient population. Specifically, whether the care provided in the practice makes teledentistry a tenable option for care, whether a sufficient number of patients will engage the practice via teledentistry to justify the purchase and maintenance of the platform, and whether the practice’s providers and patients will “buy-in” to the service.
When using teledentistry in your practice, there are a number of legal and risk management considerations to make. We will address a few of them here.
Platform Selection
You should first assess the needs of your providers and patients to determine which teledentistry platform is best suited to your practice. The assessment should include the need for Live Video Conferencing and Asynchronous Video (store and forward) functionality and whether a Mobile Health (mHealth) platform is needed. As part of the selection process, ensure the technology offers a secure, HIPAA-compliant platform that also provides data encryption, which allows you to protect patient data and comply with privacy regulations and disclosure protocols in case of privacy breaches. Platform vendors should also provide you with an executed Business Associate Agreement.
You should consider including key staff and providers in the selection process to determine the best system for your practice and patient population when exploring the ability of vendors to customize options that fit your needs. However, keep in mind that customized options may not function properly after software updates, so ensure your vendor has a process to address any software issues that may arise with an update.
As with in-person visits, communication when practicing teledentistry is an important aspect of all patient encounters, and professionals have a legal obligation to provide care equally. For example, communication with deaf or hearing-impaired patients via your teledentistry platform must be as effective as with any other patient, and you should consider using platforms that provide closed captioning. Also, when language barriers are presented, you should have access to an interpreter and consider using telehealth platforms that allow for three-way communication.
Practical Considerations
Technology requires consideration of “how will my practice function should the technology fail?” A contingency plan should be prepared for use in case of a technological failure. Any disruptions in service that may impact teledentistry (or other care) should be communicated to the patient as soon as possible, and consideration should be made as to whether the patient’s symptoms or complaints warrant the patient coming to the practice or, if needed, seeking appropriate care at the nearest hospital.
Practices should establish a monitoring program and quality improvement process to evaluate patient care outcomes and technical performance issues that should include responses from patient satisfaction surveys regarding the telehealth experience.
Also, both providers and staff should receive ongoing education regarding updates to the practice’s telehealth system, along with refreshers on patient privacy and engaging patients via telehealth.
Patient Selection Considerations
Beyond the need for patients and providers alike to “buy-in” to the teledentistry process, it is important to use the right platform for the right patient and under the right circumstances. Guidelines should be established to effectively answer “Are the patient’s complaints or condition(s) appropriate for a virtual teledentistry encounter, or do they require an in-person visit?”
One such consideration could be a patient’s cognitive abilities and the availability of a support system, including family members or significant others, to assist with the patient accessing the technology.
Patient Encounter Guidelines
Patients must understand privacy breaches can occur from a remote visit, whether from a third party overhearing the encounter or from a potential cybersecurity breach. Practices should create an informed consent process for the use of telehealth services as recommended by the Agency for Healthcare Research and Quality6.
Verify that the patient has sufficient internet access and the appropriate equipment required to participate in the visit, and that their software is compatible with that of the practice, before engaging through teledentistry.
To evaluate the appropriateness of teledentistry visits for senior patients, verify that the patient can see and hear you clearly. Closed captioning and headphones that allow for volume adjustment are effective for those with a hearing impairment.
Documentation of Care
As with in-person visits, you should create and retain formal documentation of all teledentistry patient care. This documentation should be part of the patient’s record, and all aspects of the encounters should be thoroughly documented, including the patient’s agreement to use teledentistry for the encounter.
Licensure
Whether providing dental care in person or through teledentistry, it is imperative to ensure that the person performing the services maintains the necessary license to perform those services. It is considered professional misconduct to delegate responsibilities to a person when the dentist knows or has reason to know that such person is not qualified by training, by experience, or by licensure, to perform those services7. Likewise, for licensure purposes, the location of the patient determines where the care is rendered. In order to avoid allegations of practicing dentistry without a license, dentists should verify that the patient is located in a state where the dentist maintains a license to practice.
It is expected that the prevalence of teledentistry will increase in the coming years as patients and providers become more familiar and comfortable with its use and technology improves to address the current limiting issues. Should you have any questions regarding offering teledentistry in your practice, please do not hesitate to reach out to MLMIC at any time.
MLMIC policyholders can reach our healthcare attorneys for questions regarding teledentistry by calling (877) 426-9555 Monday-Friday, 8am-6pm or by email here. Our 24/7 hotline is also available for urgent matters after hours at (844) 667-5291 or by emailing: hotline@tmglawny.com.
If you are not already a MLMIC insured, learn more about us here.
Endnotes
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Ibid page 12
Ibid
4Ibid Page 7
5Ibid
6https://www.ahrq.gov/health-literacy/improve/informed-consent/index.html
78 NYCRR 29.1(b)(10)
This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.
