California’s Slippery Slope of Legislating Health Care

Few of us today were alive during the New Deal Era when the U.S. Supreme Court Justice Louis Brandeis spoke about states being the laboratories of democracy. California above all other states embodies that sentiment and leads the nation in turning progressive ideas into public policy reforms. But something is quietly brewing in California’s laboratory with ill effect on consumers and special concern for health care professionals.

AB 1998 was introduced by Assemblyman Evan Low ostensibly to protect consumers from the innovative and popular orthodontic treatment using clear aligners that entered the dental care market 6 years ago, cutting costs for such treatment by more than half and relieving patients from office visits. Despite this orthodontic treatment being used by more than 1 million consumers already, AB 1998 first required that a patient could not receive any orthodontic treatment without first having a dental office visit.

Then COVID-19 hit and necessity effectively demonstrated that dentists find new ways to evaluate and treat patients out of the office through technology. That is when this laboratory experiment went horribly wrong.

Last month, amendments were made to AB 1998 that would preclude orthodontic care innovations through a new troubling provision. This amendment codifies in law a standard of care establishing a standing order for x-rays for orthodontics, removing the treating dentist from the decisions regarding diagnostic testing and treatment for the patient.

This would be the first law in the nation that replaces the professional discretion of a treating dentist or doctor for patient health care decisions with that of legislators.

As a health care professional, I am deeply troubled by any attempt to codify any standard of care. A standard of care is closely dependent on circumstances and appropriate treatment based on scientific evidence and collaboration between medical professionals involved in the treatment of a given condition. This standard of care can change between patients who present differently with the same complaint or in different locations within the same state where medical technologies or available care may vary. Ultimately, it is the duty of the regulatory licensing boards to determine if the standard of care has been met pursuant to a patient’s complaint.

AB 1998 would push California out on a slippery slope where a standard of care no longer is dependent on circumstances or scientific evidence and where the Legislature pre-empts the judgement of dentists and orthodontists with up to 11 years of post-secondary education and training – a high degree of training that Assemblyman Low certainly cannot claim as he attempts to mandate oral care for Californians.

The FDA jointly with the American Dental Association nearly a decade ago released guidelines on the use of dental x-rays. They are clear that a patient’s oral and medical history along with the patient’s vulnerability to environmental factors that may affect oral health should guide the dentist in the determination of the type of imaging, frequency and number of images to obtain. More importantly, those guidelines caution that x-rays should be taken “only when there is an expectation that diagnostic yield will affect patient care.” Dentists are trained to judge whether or not a patient requires an x-ray. Subjecting young, healthy, periodontally sound patients to unnecessary radiation is reckless and unprofessional. Thirty years of dental experience has given me the ability to make these judgement calls and do what is best for my patients.

AB1998 removes the treating dentist from this important decision as to whether or not to expose a patient to potentially harmful radiation. In contrast, there is no such standing order for x-rays with very invasive dental procedures such as implants and root canals. The movement of teeth through clear aligner therapy that the Assemblyman is trying to run out of California is both non-invasive and reversible. All of us who got braces as kids and did not wear our retainer saw our teeth revert to their genetic default.

Curiously, the California Dental Association has not raised concerns about AB 1998, though they seem to see the importance of teledentistry, even going so far as helping its member code claims via telehealth. One would think that the CDA should be more concerned about of the “bad medicine” in the legislation and the troubling precedent it sets.

We hope that the California Senate sees through this very concerning precedent that could lead to more legislating of care rather than allowing health care providers do what they do best – determine the best care for each of their patients.