Utah Dental Association Legislative Successes Recent Years to the Present

(Reprinted from Earlier edition of the UDA Action)

From listening to dentist’s and their dental team members across the nation year after year, there is always a particular theme that surfaces to identify the most common #1 frustration in a dental office. That frustration is generally a frustration with dental insurance companies. More correctly identified as third-party payer companies. They are usually the #1 frustration in dental offices nationwide. Utah dentists and their dental team members definitely agree, third-party payers are their biggest frustration.

Although the ADA nor UDA cannot dissolve the contracts a dentist has signed to be a PPO provider and accept lower reimbursements, the organization is still actively engaged in finding some resolve to the issues. Recognizing the dentist’s frustration, the ADA expanded the attempts a few years ago, to get involved with Insurance Reform across the nation. Several key topics began to surface, and efforts were put forth to see where changes or improvements could be made. Lots of effort was made to communicate state to state with successes and wording to initiate legislation in each state in regards to insurance reform. One of the early topics was Non-Covered services.

Non-Covered Services:

In 2016, the UDA with the help of Senator Allen Christensen and the ADA, proposed a bill that would be presented to the 2017 Utah Legislature. This bill passed the 2017 legislature and became law (statute) and went into effect Jan 1, 2018. Similar Non-Covered Services laws were passed in over 40 states. Showing the US Congress the importance and the need to address this in the US Congress and make this applicable to federally regulated third-party payers.

For Utah, passing this bill in 2017 means: • A dental insurer is prohibited from setting fees for dental services that are not covered services under the dental insurance. • A contract between a dental plan and a dentist to provide covered services may not prohibit a dentist from offering or providing noncovered dental services to a covered individual at a fee determined by the dentist and the individual who will receive the noncovered services. • This does not apply to a dental plan that is regulated by federal law. • For exact language of the law, see Utah statute 31A-22-

646.

• The state laws only apply to state regulated insurance plans. There are many dental plans that are under federal regulation.

More Recent Insurance Reform:

In the years since 2017, the ADA has been working on other third-party payer issues that continue to be a frustration to the dental team. The ADA identified several key frustrations and formed Dental Insurance Reform messages to assist states in achieving legislation that could ease some of the frustrations of the dental team, in regards to third-party payers. Four of those key topics developed with the help of the ADA, are:

• Retroactive Denials of Coverage • Prior Authorization • Virtual Credit Cards • Network Leasing

Let’s go over the significance of each of these areas and how the UDA has been able to make progress in Utah for dental offices on each of these common frustrations.

Retroactive Denials:

For those that may not understand what this term means, you all may be familiar with the actions that occur that are defined as Retroactive Denials. I myself, have been a victim of these efforts by third-party payers. Retroactive Denials are when an insurance company tries to require dentists to repay claims already paid to them when insurers discover they paid a claim mistakenly, even if the claim was processed years prior. In other words, an expected covered treatment is performed on a patient and the claim is processed and paid by the third-party payer. Then years later, the dental office receives a letter saying the office was overpaid and the office now owes the third-party payer a certain amount determined by the insurance company. It’s my understanding that often, the third-party payer strips out the “overpaid” balance out of other pending claims from other patients. This alleged overpayment notice comes at a time when an office can no longer legally go back to the original patient to bill for the performed services. In my case, the letter of “over payment” was received three years after treatment was performed.

There is now a law in Utah that prevents this. The current recoveries language on Retroactive Denials applies to healthcare and is found in UCA 31A-26-301.6(14). This law is already on the books and does not allow an insurance company to come back years later to try to reclaim overpayments or claim disputes long after the date of service. The state Representative we have been working with, says the third-party payers only have 1 year from date of payment to try to reclaim the money. This time period is doubled for Medicaid claim overpayments.

Prior Authorizations:

In discussing Prior Authorizations, we should explain the difference between Prior Authorization and Pre-Treatment estimates. Usually, Pre-Treatment estimates occur when an office staff calls the third-party payer and tries to find out the extent of coverage, if certain procedures are performed. This pre-treatment estimate is not technically a Prior Authorization. A Prior Authorization means the thirdparty payer has agreed to make payment for the services being sought prior to treatment (usually this is done in writing, and possibly after dental consultant review).

The concern with dental offices is an increasing number of insurers are denying claims for services previously authorized, reversing their agreement with both patients and dentists. In 2019, SB 264 regarding to Prior Authorizations passed. The Bill was sponsored by Senator Evan Vickers and Representative Suzanne Harrison. This Legislative bill spelled out that a Prior Authorization, if done correctly, would be more like a commitment or contract by the third-party payer for payment. When a dental office has received a prior authorization and the third-party payer elects to not honor that prior authorization, the office should appeal to the third-party payer company citing the Utah law, reminding them the law states they are committed to the payment they acknowledged in the prior authorization. See statute UCA 31A22-650 .

Virtual Credit Cards:

This is a term given to the process where an insurance company reimburses a dental office through a virtual credit card, which can include a per-transaction fee of as much as five percent. In some cases, insurance companies even share in the revenue generated from these fees. You likely have seen this as a letter that contained a credit card number that your office is to run the number through your credit card services as if you were being paid with an actual credit card. This results in an additional loss of income since a percentage was removed by the credit card services company.

In the 2020 Utah Legislative session, the UDA advocated for language in HB 37, that would allow a dentist to opt out of Virtual Credit card payment methods. Thus, saving the office from the credit card fees associated with credit card payments. Representative Jim Dunnigan and Senator Curtis Bramble sponsored an insurance Amendments bill and worked with the

Photo: Image licensed by Ingram Image

UDA to give dental offices an option to accept or opt out of Virtual Credit card payments methods.

The dentist needs to notify the third-party payer that they want to opt out of Virtual CC and receive payment by check. The Utah law says they can request the opt out for the dentist from that particular third-party-payer company. The dentist would have to repeat this notification for every third-party payer company they participate with. It is not automatic. The dental office will have Utah law backing them when they request to opt out. See UCA 31A-26-301.6

Some insurance companies were making the dentist specify each patient they were opting out on. The new law says they can tell that Insurance company they opt out for all their payments from that company. The dentist should clarify, they want the Ins Co to pay them by check rather than Virtual Credit card. This applies to state regulated insurance plans. This may not apply to federally regulated plans.

Network Leasing:

Many may not recognize the term Network Leasing. Network Leasing is when third-party payers sell dentists to a different

insurance network often without the dentist’s knowledge or consent. Basically, when a dentist signs up with a third-party payer to be a provider for them, the third-party payer leases that contract to other third-party payers. This can result in the dental office being contracted with additional PPO plans. The dentist may not even be aware of all the dental plans of which they are then contracted. This can significantly impact the insurance benefits available to the patients. This also erodes patient/dentist trust, which can lead to assumptions in treatment plans and costs based on a false understanding of patient coverage.

In preparation for the 2021 Legislative session, the UDA was working with Representative Jim Dunnigan to craft a bill creating transparency and options for a dentist in regards to Network Leasing. The National Council of Insurance Legislators (NCOIL) and the ADA had been working on model legislation that would help solve many dentist’s frustration with Network Leasing. The ADA, various State Legislators, and many Insurance Companies had already vetted this topic for months and had come to several agreements for transparency. The result was the NCOIL Model Legislation. The UDA used this model legislation in initiating a bill for the 2021 legislative session (HB 359 sponsored by Representative Jim Dunnigan and Senator Karen Mayne). See UCA 31A-22-646.1

Since the Fall of 2020, the UDA has worked with Dr Rob and Tracy Thorup of “My Practice, My Business”, in specifically creating legislation regarding HB 359. Their additional ideas presented included two topics that were included in HB359. Many hours of work with Representative Jim Dunnigan, the UDA and Dr Rob & Tracy Thorup were put in to finally create the final version of HB 359. The Thorups, UDA Representatives and Rep Dunnigan virtually met weekly for several weeks and brought in many representatives of the larger insurance companies. The discussions resulted in some understanding of the dentist’s frustrations caused by these third-party payers in regards to Bundling and Downcoding.

As part of 2021’s HB 359, An insurer may not maintain a dental plan that: • based on the provider’s contracted fee for covered services, uses downcoding in a manner that prevents a dental provider from collecting the fee for the actual service performed from either the plan or the patient; or • uses bundling in a manner where a procedure code is labeled as nonbillable to the patient unless, under generally accepted practice standards, the procedure code is for a procedure that may be provided in conjunction with another procedure.

Also, an insurer shall ensure that an explanation of benefits for a dental plan includes the reason for any downcoding or bundling result. See UCA 31A-26-301.7. or HB 359 (2021)

There had been a great deal of significant effort made to negotiate and resolve conflicts with third-party payer companies during all aspects of the crafting of this bill. As a result, HB 359 was placed on consent calendar for both the House and Senate. This essentially means, enough debate and crafting took place before the writing of this bill, that it sailed through legislation unopposed. This was a great “Win” for Utah dental offices on insurance reform topics made possible by the efforts of the UDA and My Practice, My Business (Dr Rob and Tracy Thorup).

McCarren-Ferguson Repeal:

The US Senate on Dec. 22, 2020 voted to repeal the McCarranFerguson antitrust exemption for health insurance companies by passing HR 1418, the Competitive Health Insurance Reform Act.

The ADA has been a “longtime advocate of this bill that would reform the McCarran-Ferguson Act of 1945 to ensure that health insurance companies are subject to the same federal antitrust laws that nearly all other industries must comply with in the U.S.,” the ADA wrote in an email to dental leaders.

ADA News reported: “Our bipartisan bill will allow for greater transparency and oversight into the health insurance industry and help make health insurance more affordable [for Americans] across the country. This is a commonsense bill being signed into law,” said Sen. Daines R-Montana in a news release.

According to the release, the bill “amends the McCarranFerguson Act to restore the application of federal antitrust laws to the health insurance industry, but does not otherwise interfere with or impact the authority of state authorities to regulate health insurance provided under the act.”

“This bill will help address instances of artificially higher premiums, unfair insurance restrictions, and harmful policy exclusions,” the release concluded.

“For leaders and contributors to ADPAC, this was a culmination of years of dentists lobbying and participating in high-level political activity,” ADA said. “Most importantly, dentists engaged in grassroots activism, recently sending over 21,000 communications to legislators” on this issue.

In Summary, although legislation intends to improve and sustain what is best for the public and professions such as dentistry, there are always plenty of groups out there trying to disrupt the status quo. Legislation that will only contribute to sustaining and maintaining the dental profession as we currently know it, is not likely. Between the DIY dental companies, the trend toward mid-level providers, and growing aspects of DSO’s, the profession we love of dentistry is gradually and significantly changing. The UDA is constantly defending and encouraging dentists and their dental team members to provide the best oral care for the public. If we remain united and do not become a fragmented profession, we will be better able to direct Legislative and Congressional successes, maintain public safety and improve sustainable oral health care.

Dr Val L Radmall UDA Executive Director