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You are here: Home . rules . 2004 . 0524-059
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Subchapter BB. Dental Care Benefits

28 TAC §§21.3601-21.3606

The Commissioner of Insurance adopts new Subchapter BB, §§21.3601 - 21.3606, concerning dental care benefits in health insurance policies. Sections 21.3604 and 21.3605 are adopted with changes to the proposed text as published in the March 12, 2004 issue of the Texas Register (29 TexReg 2548). Sections 21.3601 ­ 21.3603 and 21.3606 are adopted without change and will not be republished.

The adopted rules are necessary to clarify Insurance Code Article 21.53 and the allowable standards for the payment of benefits or reimbursement for the cost of dental care services provided by contracting and non-contracting dentists. The department is aware that some insurers are contracting with dentists for reduced fees when providing dental care services to insureds. This practice has caused confusion regarding the requirement that health insurance policies pay or reimburse non-contracting dentists using the same standard as contracting dentists. The rules clarify that a payment or reimbursement standard expressed as a percentage of a contracting or non-contracting dentist´s charges is acceptable if it is uniformly applied to contracting and non-contracting dentists.

The department changed proposed §§21.3604 and 21.3605 as published; however, the changes do not introduce new subject matters or affect additional persons than those subject to the proposal as originally published. Specifically, in response to a commenter´s request, the department added the term "maximums" to §21.3604(a) regarding payment of benefits for dental care services to further clarify that benefits in a dental policy may not differ based upon whether the dental care services were provided by a contracting or non-contracting dentist. Also, the department changed the effective date of the subchapter in §21.3605 to accommodate policy form filings made necessary by the rules.

New §21.3601 outlines the scope of the rules. Section 21.3602 defines terms relating to dental care benefits. Section 21.3603 states that a health insurance policy may not prevent an insured from selecting the dentist of his choice or interfere with the diagnosis or treatment of a dentist practicing within the scope of the dentist´s license. Section 21.3604 prohibits a health insurance policy from containing a different level of payment of benefits for covered dental care services based on whether the services were provided by a contracting or non-contracting dentist. The section makes clear that the policy benefits, including the payment or reimbursement percentage, must not vary based on whether the services were performed by a contracting or non-contracting dentist. This results in a single standard for payment to all dentists under the health insurance policy. The section clarifies that the payment or reimbursement standard may be expressed as a percentage of a dentist´s charges and that the charges to which the percentage will be applied may be defined as both a contracted rate and a usual and customary rate. This may result in different monetary amounts being paid to dentists depending on whether the dentist contracts with the insurer. The amount paid to a dentist, as well as out-of-pocket expenses for an insured, may ultimately differ based upon whether the dentist is a contracting or non-contracting dentist. However, the differences in amounts are based upon the amount charged by the dentist, which the insurer may cap through the use of contracted rates or a usual and customary amount as determined by the insurer. The section also states that an insurer is not required to make payment to a non-contracting dentist that is greater than the amount charged for the service. Section 21.3605 states that the requirements of the rules are applicable to health insurance polices containing benefits for dental care services issued or renewed on or after July 1, 2004. The adoption does not requi re insurers to make any changes to existing policies upon renewal if the policies were otherwise in compliance with Article 21.53. Section 21.3606 contains a severability clause indicating that if any provision in the rules is found to be invalid, those provisions that can otherwise be given effect will not be affected.

SUMMARY OF COMMENTS AND AGENCY´S RESPONSE TO COMMENTS.

General

Comment: A commenter expressed support for the rule and commended the department particularly for addressing concerns regarding flexibility in how plans may apply a reimbursement percentage to contract rates for contracting dentists and the same reimbursement percentage to "usual and customary fees" (or whatever the dentist charges, if lower than "usual and customary") to non-contracting dentists.

Agency Response: The department appreciates the comment.

§21.3604(a):

Comment: A commenter suggested that because the term "cost-sharing" is not defined in §21.3602, the term could be subject to varying interpretations by plans and therefore requested removal of the term.

Agency Response: The department declines to make the suggested change. This provision is simply a clarification of the department´s consistent interpretation of Article 21.53 in relation to Article 3.70-3C, which does not allow for dental preferred provider benefit plans. As such, the rule makes clear that deductibles, maximums, co-insurance percentages, and other cost-sharing provisions affecting the benefits paid under the policy may not differ based upon whether the services were provided by a contracting or non-contracting dentist.

Comment: A commenter asked that the department consider allowing some flexibility in plan design relating to deductibles between services provided by contracted versus non-contracted providers.

Agency Response: The department declines to make the suggested change. The rule makes clear that deductibles, maximums, co-insurance percentages, and other cost-sharing provisions affecting the benefits paid under the policy may not differ based upon whether the services were provided by a contracting or non-contracting dentist.

Comment: A commenter requested the addition of the word "maximums" between the words "deductibles" and "or other cost sharing provisions."

Agency Response: The department agrees with this comment and has revised the rule accordingly. The change is consistent with the department´s long-standing interpretation of Article 21.53 in relation to Article 3.70-3C, which does not allow for dental preferred provider benefit plans.

§21.3604(c):

Comment: A commenter suggested inserting the phrase "for contracting dentists" after the phrase "to a contracted rate" and before the word "and" and inserting the phrase "for non-contracting dentists" after the phrase "or words of similar import."

Agency Response: The department declines to make the suggested changes. While addition of the commenter´s suggested language would not result in an inaccurate statement concerning what the rule allows, the language as proposed allows for more flexibility in an insurer´s ability to contract with dentists.

NAMES OF THOSE COMMENTING FOR AND AGAINST THE SECTIONS For, with changes: Delta Dental Insurance Company, National Association of Dental Plans.

The new sections are adopted under the Insurance Code Articles 3.70-3C and 21.53 and §36.001. While Article 3.70-3C generally authorizes preferred provider benefit plans, Section 2 specifically states that it does not apply to provisions for dental care benefits in any health insurance policy. Article 21.53 provides requirements for health insurance polices containing benefits for dental care services, including requirements relating to an insured´s right to choose a dentist and payment or reimbursement standards as applied to both contracting and non-contracting dentists. Section 36.001 provides that the Commissioner of Insurance may adopt any rules necessary and appropriate to implement the powers and duties of the Texas Department of Insurance under the Insurance Code and other laws of this state.

§21.3601. Scope. This subchapter applies to insurers who issue health insurance policies covering dental care services.

§21.3602. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings unless the context clearly indicates otherwise:

(1) Contracting dentist ­ A dentist who, as a contracting provider under a health insurance policy, has entered into a written agreement with an insurer to limit charges for dental care services provided to insureds.

(2) Dental care services ­ Any services furnished to a person for the purpose of preventing, alleviating, curing, or healing human dental illness or injury.

(3) Dentist ­ Any person who furnishes dental care services and who is licensed as a dentist by the state of Texas.

(4) Health insurance policy ­ An individual, group, blanket, or franchise insurance policy or certificate or insurance agreement or rider that is delivered, renewed or issued for delivery in this state and that provides benefits for dental care services.

(5) Insurer ­ An insurance company that is authorized under the Texas Insurance Code to issue, deliver or issue for delivery in this state health insurance policies or certificates.

(6) Non-contracting dentist ­ A dentist who is not a contracting dentist as defined in this section.

§21.3603. Right to Choose Dentist. A health insurance policy providing benefits for dental care services shall not:

(1) prevent an insured from selecting the dentist of his choice to furnish dental care services offered by the policy or interfere with the selection of any dentist, provided the dental care services are within the scope of the dentist´s license; or

(2) authorize any person to regulate, interfere, or intervene in any manner in the diagnosis or treatment rendered by a dentist to a patient for the purpose of providing dental care services, provided the dentist practices within the scope of the dentist´s license.

§21.3604. Payment of Benefits for Dental Care Services.

(a) A health insurance policy shall not provide a different level of payment of benefits or reimbursement, including deductibles, maximums or other cost-sharing provisions, for covered dental care services based on whether the services are provided by a contracting or non-contracting dentist.

(b) A health insurance policy shall define and explain the standard of payment or reimbursement for dental care services. In defining the standard, a policy may express the level of payment or reimbursement as a percentage of charges for dental care services, provided the insurer uses the same percentage for both contracting and non-contracting dentists.

(c) A health insurance policy may, in the same policy, apply the percentage specified in subsection (b) of this section to a contracted rate and a fee expressed as "usual and customary" or words of similar import.

(d) Notwithstanding subsection (a) of this section, an insurer is not required to make payment to a non-contracting dentist that is greater than the actual fee charged for the dental care service.

(e) A health insurance policy must disclose, if applicable, that the benefit offered is limited to the least costly treatment.

(f) A health insurance policy must provide that an insured may assign the right to benefits to a dentist who provides dental care services, in which case, the insurer shall pay benefits directly to the designated dentist, and such payment shall discharge the insurer´s obligation to pay those benefits.

§21.3605. Applicability. This subchapter is applicable to health insurance policies issued or renewed on or after July 1, 2004.

§21.3606. Severability. If any provision of this subchapter or the application thereof to any person or circumstances is for any reason held invalid, the invalidity shall not affect the other provisions or any application of this subchapter that can be given effect without the invalid provisions or application. To this end all provisions of this subchapter are declared severable.



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