After years of failed efforts to pass a dental therapy law in Washington, an Indian tribe took a page from their counterparts in Alaska and exercised their sovereignty to get it done.
The Swinomish Indian Tribal Community accomplished something few others have been able to do: get the powerful dental lobby to stand down, thus paving the way for overwhelming bipartisan support for dental therapists.
“It was truly a battle,” John Stephens, health programs administrator with the Swinomish tribe, told Watchdog. “As George W. Bush would say, ‘[the dental association] ‘misunderestimated the tribal community.’”
Since they have sovereignty, tribal communities do not need state approval for dental therapists. The 2010 Affordable Care Act, however, requires state authorization to use federal funding through the Indian Health Service, which enables Medicaid reimbursement. Washington’s new law allows up to 100 percent federal funding for care provided by dental health aide therapists (DHATs).
Getting there wasn’t easy, as the situation for patients and providers has been dire.
The American Indian Health Commission for Washington state says 79 percent of American Indian and Alaska Native children ages 2 to 4 have tooth decay. About 75 percent of dentists do not accept Medicaid, leaving more than 700,000 Medicaid eligible adults without care. Dentists who do take Medicaid patients are reimbursed 29 cents on the dollar.
That’s on top of a dental health provider shortage. The U.S. Department of Health and Human Services currently identifies 114 dental health provider shortage areas in the state, 33 of which are in Native American populations or at Indian Health Service Facilities.
Similar to nurse practitioners or physician assistants in the medical field, dental therapists are trained and licensed to perform a limited number of the same procedures as dentists. While many public health advocates consider these providers a viable solution to dental care shortages, the American Dental Association (ADA) and its state affiliates, including Washington, generally oppose them.
“Two years ago from the tribal perspective, we saw that the broader statewide authorization was somewhere between dead and on life support,” Stephens said.
So the Swinomish looked to Alaska for guidance. In 2004, Native Alaskans used their tribal sovereignty to implement dental therapy on tribal land without state authorization, surviving a lawsuit attempt by the ADA and Alaska Dental Society.
Health experts say since the DHATs have been working in Alaska, an estimated 45,000 Alaska Natives now have access to dental care. But the language added to the ACA stymies tribal efforts in other states by requiring state authorization for the midlevel providers. According to Stephens, it’s the only piece of federal legislation related to tribes that puts tribes under the auspices of state authorization.
Truly a battle
So the Swinomish readied for the battle with a two-step approach. First, they exercised tribal sovereignty to hire a dental health aide therapist (DHAT) using private funding to pay for it.
“In the long term it was not sustainable,” Stephens said. “However, it did show that tribal sovereignty could be exercised to deliver this service.”
While the dental therapist worked on patients, Stephens and the Northwest Portland Area Indian Health Board (NPAIHB) worked on part two of the plan — developing a tribal licensing system, crafting legislation to satisfy the federal rules regarding reimbursement and getting state policymakers to go along with it.
“We were meeting with the attorney general, as well as the department of health, and we went over in great detail what we were doing, and the framework that we were utilizing to exercise tribal sovereignty,” Stephens said. “We were fully transparent with the state and had actually gotten them to say beforehand that they would not attempt to stop the tribe’s exercise of sovereignty before we made the announcement.”
That caught the dental association flat-footed.
“The Washington State Dental Association (WSDA) did not know that we were doing these things,” Stephens said. “Once we showed that we could exercise sovereignty, going to the legislature, and say ‘we are exercising tribal sovereignty and you have a choice: You can either choose to challenge tribal sovereignty or accept it.’”
Caught flat footed
Seeing the writing on the wall, the WSDA board eventually voted 10-0 to maintain neutrality on the dental therapist bill, which meant it would sail through the Legislature.
“We got a unanimous vote in the Republican-controlled state Senate. That’s almost unheard of. And in the House it was 80-18,” Stephens said. “We acknowledge and appreciate [the WSDA’s] ultimate decision to maintain neutrality and allow this important initiative to move forward.”
The next steps for the Swinomish will be to double the size of the tribe’s clinic. Stephens says the Washington Dental Service Foundation, through insurer Delta Dental, has committed $500,000 over two years for the expansion.
“[The foundation has] had in their own words, ‘a transformational learning process’ with the tribes in Washington,” Stephens said. “They are now totally supportive of what we’re doing and they need to be acknowledged for being willing to do that.”
Oregon is currently the only other of the lower 48 states to dabble with tribal sovereignty, with a pilot program spearheaded by the NPAIHB and reportedly well-received by the Oregon Dental Association.
“It is encouraging that the ODA is on record saying they are going to wait and see what the data looks like, and not oppose our pilot out of the gate,” said NPAIHB project specialist Pam Johnson. “A pilot process allows everybody to step back, see if it’s working, try out different models and then take that information back to the state.”
Dental therapy, however, remains a concern for the ADA.
At a February board meeting, an ADA representative told attendees that more than 20 states may consider dental therapy in 2017, noting a recent failed effort in North Dakota as a positive: “We expect good news from other states as well. In the meantime, therapists are very few in numbers and in very few states. In contrast to therapists, the number of CDHC programs and graduates continue to grow. But, of course, challenges will continue and we will continue to meet them,” the meeting recap stated.
Michael Hamilton, a senior research fellow in health care policy at the free-market Heartland Institute, finds it remarkable that the ADA would consider restricting access to dental care “good news.”
“Organized dentistry’s line that the sky will fall if lawmakers let therapists practice is bogus,” he told Watchdog.org. “Dentists would retain absolute control over their practices, wouldn’t have to hire therapists, and would oversee the care therapists provide. This is a case of the many obstructing the rights of the courageous, enterprising few.”
Hamilton adds that other states facing high-octane opposition to dental therapy should consider Washington’s tribal model.
“Even a limited dental therapy program is better than none because enterprising dentists will hire therapists to treat more patients, driving down costs,” he said. “For best results, though, let the market work.”
“State’s should be looking at everything,” according to Johnson. “We really need to be moving the ball down the court on oral health access.”
“You should be looking at tribal bills, statewide bills, pilot bills — whatever you can do to start getting boots on the ground and increasing that access.”
Kathy Hoekstra is a national regulatory reporter for Watchdog.org. Contact [email protected] and @khoekstra.