ASSOCIATION

UTAH LEGISLATIVE EFFORTS INVOLVING DENTISTRY – PAST AND PRESENT

(including the 2021 Legislative session)

From polling 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.

Recognizing this 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 NonCovered 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. Many dental plans are federally regulated.

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 the 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 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 Denial allows insurance companies 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 thirdparty payer a certain amount determined by the insurance company. It’s my understanding that often, the third-party payer strips out the “over-paid” 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 Retro 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 third-party 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 31A-22-650 .

Virtual Credit Cards:

This is a term given to the process where an insurance company requires dentists to accept payment 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 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 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 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. 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 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. Now the dental office is contracted with more plans than they are often aware. The dentist may not have even been aware of dental plans of which they are 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

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session (HB 359 sponsored by Representative Jim Dunnigan and Senator Karen Mayne). See UCA 31A-22-646.1

In the Fall of 2020, Dr Rob Thorup of “My Practice, My Business”, contacted the UDA with ideas of insurance reform that they wanted help in creating legislation. The ideas presented included two topics that were finally included with the plans already underway for a Network Leasing bill. Many hours of work with Representative Jim Dunnigan, the UDA and Dr Rob & Tracey Thorup were put in to finally create 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 thirdparty 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 (Thorups).

Other Dental related legislation during the 2021 Legislative session:

Senator Todd Weiler sponsored a bill for the Utah Dental Hygiene Association for 2021. SB 103 requests Medicaid to reimburse a dental hygienist directly for certain services provided through the Medicaid program. After observing the progress Physician’s Assistants were making in the legislation session to open up their practices to be more independent from physicians, it became apparent this year’s legislative body would probably pass any bill that claimed to give “Access to Care” to the underserved population. A Collaborative Agreement with a dentist is still required for a hygienist to work in public health setting. SB 103 redirects payment directly to a hygienist, if requested, for services a hygienist performs in a Public Health Setting as long as it remains within the hygienist’s Scope of Practice.

The ADA recently announced new CDT coding that facilitates Teledentistry and could be applied to the codes a hygienist could bill when requesting direct payment from Medicaid. CDT codes for radiographs have previously and traditionally included diagnosis. Since legal diagnosis is outside the scope of practice for a hygienist, new codes have been introduced that would allow a hygienist to take a radiograph without diagnosis (see CDT codes 0701 to 0709). There is also a CDT code for a dentist to read and diagnose from a radiograph taken by another provider (see CDT code 0391).

For dentists willing to engage with a dental hygienist in a Collaborative Agreement to provide hygiene dental care in a public health setting, they should become familiar with the process and documentation necessary in order to eliminate frustration and miscommunication and abide within Utah law. This would include the following:

Text to: 801 -261 -5315

1. Include your First and Last Name 2. Your interests to get involved:

a) House of Delegates - Governance b) UDA Action Committee - Publications c) UDPAC Committee – Legislation d) I know my legislators – Name them & connection e) I’d be willing to be a Collaborative Dentist Utah law allows a Utah licensed dental hygienist to practice dental hygiene on a patient in a public health setting prior to that patient receiving a dental examination by a dentist when the following conditions are met: 1. The dental hygienist has a written agreement with a Utah licensed, resident dentist stating that: • The dental hygienist will practice in a public health setting. • The dentist will be available for consultation as necessary in person, by phone, or by electronic communication. • The dental hygienist will refer each patient with a dental need beyond the dental hygienist’s scope of practice to a licensed dentist, and • The dental hygienist will obtain from each patient an informed consent form stating that the patient is receiving treatment by the dental hygienist within the scope of hygiene practice, but not a dental examination by a dentist.

2. The dental hygienist practices in a public health setting: • An individual’s residence if that individual is unable to leave the residence

• A school as part of a school-based program • A nursing home • An assisted living or long-term care facility • A community health center • A federally qualified health center, or • A mobile dental health program that employees a Utah licensed dentist Two sample forms are available from the UDA that relate to these guidelines: • Agreement for dental hygiene practice in a public health setting (for signatures of the dentist and dental hygienist)

• Informed Consent for dental hygiene treatment in a public health setting (for signature of the patient or other responsible party) [see UCA 58-69-102(6), 58-69-102(8), 58-69-501(2), and 58-69-801(4)]

If you would like to be a collaborative dentist, please contact the UDA Office.

McCarren-Ferguson Repeal:

The US Senate on Dec. 22, 2020 voted to repeal the McCarran-Ferguson 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 Association 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. I look forward to this 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.

The ADA also thanked Sen. Patrick Leahy, D-VT, Reps. Peter DeFazio, D-Ore., and Paul Gosar, R-Ariz., for getting the bill passed in the House. Rep. Gosar, who is also an ADA member dentist, has been the primary and leading congressional advocate for the bill’s passage since being elected in 2010.

“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 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 Radmall UDA Executive Director

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A BOULDER TO THE ANKLE YEAR

I rode in a dirt bike motorcycle rally last weekend. It was a fun rally that was hosted by the popular YouTuber, EveRide. He took us on a multi-day journey on incredible off-road trails around St. George, Utah.

The second day of the ride, we rode towards the beautiful Toquerville Falls. The route was a single track “motorcycle only” trail that started from Valley Gun Club near Hurricane, Utah. It was a technical trail with cliff exposure, rocky sections and hill climbs. At a steep uphill section, I attempted to make a tight turn. With a six-foot drop on the one side, I didn’t make it and fell. My bike remained on the trail, but I fell down the six-foot drop and landed below. The fall was not bad, but I brought down a 200-pound rock that landed on my left ankle and foot.

It is an inevitable possibility to get injured riding dirt bikes, so I always ride with gear that protects me. And while I may not always be able to prevent injury, I know my gear can go a long way to protect me. On that second day on the trail, that rock could have altered my life in a bad way. But my Sidi Crossfire 3 boots saved my foot from serious damage.

I pushed the boulder off my foot and I scrambled up the hill to my bike. I could feel my ankle swelling and it started to get painful. We rode the rest of the way to the waterfalls and began the trail back to the trucks. Our return trail consisted of more that 25 water crossing that were technical and difficult, and required all of my concentration. Back at the truck, I was barely able to get my foot out of my boot. But, like all dirt bike enthusiasts, I’ll tell you that the ride was worth the pain.

I can’t help but think how my motorcycle experience is similar to this past year. Last year was one of the most surreal years of my life. When I sent my staff home that day in March, I truly was afraid of the possibility we would never open again. The closing of our practices and the uncertainty that the COVID-19 scare has brought to many of our patients, have brought discouragement to many of us over the last year. But they have also shown me many good things I have taken for granted. So, among the “boulders to the ankle” of last year’s COVID-19 events, I would like to share some positives and gratitude from my experiences.

Looking back, I am grateful that we were only closed to 6 weeks. My thanks go to the UDA Board for helping with that. When dentists opened our practices again for treatment in May, patients were waiting and happy to return for dental care!

I admit, I enjoyed the “staycation” vacation. My family got to know our wonderful state of Utah in greater way and spent a lot of enjoyable time together. I was grateful to go backpacking with my kids. I was grateful that we were able to go boating more often. I took for granted going out to dinner, and I enjoy it again with greater appreciation. I enjoyed getting my haircut in a salon.

I am grateful for the PPP loan. It has helped me navigate financial difficulties that the Covid response had invented.

I am grateful to experience “at home” church. I was grateful that we were allowed to go back to church.

I am grateful that I was able to buy and learn to ride a dirt bike.

I was grateful to be able to see family members again who had sheltered because of the risk.

I enjoyed Zoom meetings (almost).

I enjoyed getting better at home-cooked meals, but also going out to dinner again.

I enjoyed seeing patients and friends show the Covid virus who was boss.

I enjoyed eating Keto, and intermittent fasting and getting in better shape to help strengthen my immune system.

I am grateful that I received the Covid vaccine and didn’t turn into a zombie because of it.

I am grateful for the second PPP loan.

I am grateful to learn that the McCarron Ferguson law was overturned, finally removing the anti-trust exemption for insurance companies.

I am grateful that what I once thought could have been the end, is now the beginning of so many good possibilities.

I hope that each of you has been able to negotiate this past year with similar results. While the negative effects of this last year will be felt for a long time, I am positive that we will come out better in the long run. Here is to looking forward with positive expectations for what is to come and to looking back at experiences that have hopefully made us better people than we would have been without them. I wish you all much success and happiness. You are an inspiration to me and many others. Thank you for all that you do.

Dr Rodney Thornell ADA Delegate