Dental Medicaid's Routine Violation to 42 USC 1396a(30)(A)
Dental Medicaid’s Routine Violation to 42 USC 1396a (30)(A)
By: Michael W. Davis, DDS*
?
Federal statute 42 USC-1396a(30)(A)1? which has been tested and upheld by the US Supreme Court2 ?requires state dental Medicaid programs ensure “payments are sufficient to enlist enough providers so that care and services are available under the plan at least to the same extent as they are available to the general population.” This is irrespective of travel distance to access providers, who may or may not be currently accepting new Medicaid patients into their practices. For many state’s dental Medicaid programs, compliance with the federal statute will require a substantial elevation from the minimalist government fee schedule and policies offered dental providers and disadvantaged beneficiaries today.
?
The American Alliance for Dental Insurance Quality (AADIQ) has a defined mission.3 ??“… to enhance the quality of dental benefit plans throughout the United States. Our primary objective is to foster collaboration among patients, dentists, dental organizations, government agencies, and various stakeholders.
?
The AADIQ offers five specifics for dental Medicaid reform:4
Firstly, they point to states’ failure to comply with the aforementioned federal 42USC-1396a(30)(A) statute. States are also in non-compliance because they do not even compare the availability of “Care and Services” to the “General Population” in a geographic area.
?
Secondly, 42USC-1396d(r)(3) reads “…which shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health.” States’ dental Medicaid programs fail to meet compliance because they deny treatments that professional standards of care qualify as necessary for dental health maintenance.
?
Thirdly, states’ Medicaid plans frequently fail to cover necessary treatments as federally required. Under 42USC-1396(r)(5) “…such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.”
?
Officials in the states’ departments of dental Medicaid, as well as managed care organizations (MCOs) retained by states to administer dental Medicaid programs, are all trained to believe they must follow the state plan’s limitations. They are not trained to make exceptions as required under the Federal Medicaid Act (e.g., a patient, possibly one with a mental disability, lost their denture within a time limitation and needs another denture for function, self-esteem, and ability to better integrate in society).
?
As an example, under terms of a proposed class action lawsuit, New York State5 was required to issue a legal notice for alleged failure to meet the Federal Medicaid Act.6 “In 2018, multiple people (the “Plaintiffs”) sued the Commissioner of the New York State Department of Health (“DOH”) in a federal class action lawsuit, alleging that they were denied medically necessary dental care due to NY Medicaid’s ban on coverage for dental implants and strict limits on coverage for replacement dentures, root canals, and crowns. The Plaintiffs claim that this denial was illegal. The lawsuit is titled Ciaramella et al. v. McDonald, No. 18 Civ. 6945 (MKV).”
?
Fourthly, 42USC-1396(a)(8) reads: “… provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” Disturbingly, most states fail to comply because their contracted MCOs take far too long to make determinations on necessary dental care.
?
Lastly, individual states often engage in diagnosis discrimination. Under 42 CFR § 440.230 7,8 and under subsection “c” it reads “The Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under 440.210 and 440.220 to an otherwise eligible beneficiary solely because of the diagnosis, type of illness, or condition.”
?
In theory as written and passed by the US Congress1? ?and upheld by the US Supreme Court,2?? ?the dental Medicaid design is likely better than almost any dental insurance in existence today. Unfortunately, the troubling manner in which the states and their contracted MCOs manage dental Medicaid renders the program an abusive boondoggle.
?
In former years, states frequently operated their dental Medicaid programs in-house. Currently, almost all dental Medicaid administration is contracted out by states under competitive bidding, to independent MCOs. A large portion of overall taxpayer funding goes into the pockets of MCOs, and not any specific dental provider.9 ?Moreover, MCOs are answerable to the states which directly fund them, and not the federal government which sets most of the Medicaid rules.
?
While some states opt to contract with several MCOs for a set contract period, others limit their dental MCO administrator to a single MCO for that timeframe. By limitations on competition, some may contend that corruption between an MCO and state government may be encouraged.
?
An ethics violation was substantiated between a former director of MassHealth and the MCO DentaQuest, LLC (not to be confused with 501c(3) nonprofit entities like DentaQuest Institute, Inc., DentaQuest Partnership for Oral Health Advancement, Inc., and DentaQuest Care Group, Inc.), and which was the only dental Medicaid MCO operational in Massachusetts at that time.10
?
President of the AADIQ? and Chair of the Massachusetts Dental Society’s (MDS’s) Practice and Benefits Committee, Dr. Mouhab Rizkallah offered the following interview.
?
Davis: Why do you believe states are largely in non-compliance w/ the federal statutes?
Rizkallah: It is common knowledge across the nation that state Medicaid dental programs do not enlist enough providers so that care and services are available to the extent that they are available?to the general population. But that standard is the legal requirement of 42 USC 1396a (30)(A).
?
DentaQuest reports delivered to the Massachusetts Medicaid Agency (MassHealth) do not even analyze the "care and services" legal access standard. Instead, they analyze access to the doorknob (distance from beneficiary to provider).?DentaQuest manages over 30 state?Medicaid Dental programs.?Presumably DentaQuest provides similar?flawed reporting in other states as well.
?
DentaQuest will likely state that they are "just meeting the requirements of their contract," but their contract also requires them to advise MassHealth to alter their contract to meet (federal) Medicaid laws.?DentaQuest knows, or should know, that their reports violate the law and mislead the public.
?
领英推荐
I believe they do know. They are a very sophisticated company, and I have seen them use that sophistication to benefit the profitability of their private insurance affiliates,?while simultaneously disenfranchising patients.
?
Davis: Is it economically feasible for states to come into compliance?
Rizkallah: I always find that funding-feasibility question strange when it comes to Medicaid statutes like 42 USC 1396a (30)(A). The?economic feasibility is irrelevant, because case law (Health Care for All vs. Romney11) has made clear that "full compliance" with 42 USC 1396a is the standard that any state receiving federal Medicaid funds must meet - it is not an option.??
States usually get around 50% federal funds for their Medicaid program. (Author’s note: The actual percentage on federal contribution to a state Medicaid program is variable allowing higher federal reimbursements to a state with lower per capita incomes.12 .)? ?If a state takes those federal funds, it must fund its approximately 50% portion and it must also fully comply with all Medicaid laws.?This is not an option.?It is the financial-agreement.?It is the law.
So how does a state meet that heavy requirement? It must pass a responsible budget that "fully complies" with 42 USC 1396a (30)(A).
How does it fund that budget? It needs to prioritize taxes to fund these legal requirements first.
A responsible budget must fund its legal requirements, and then fund other priorities, in that order.
And if it runs out of funds doing so, it needs to cut non-essentials, or raise more taxes.
But the budgeters may not implement illegal budget-balancing remedies.?
?
Davis: What assistance can a group such as the MDS, American Association of Pediatric Dentistry (AAPD), or AADIQ lend to the states to assist compliance?
Rizkallah: I see the American Dental Association Health Policy Institute (ADA HPI) as the best-poised group to do this work.
At the October 2024 ADA House of Delegates, I will be requesting that the ADA-HPI do a state by state "access compliance audit" of all Medicaid dental programs, with respect to 42 USC 1396a (30)(A), and then report its findings to the Center for Medicare and Medicaid Services (CMS), with the expectation that CMS will require "full compliance" of non-compliant states, as required by federal law.
If, however, the ADA HPI does not take this critical project on, as President of AADIQ, I will adopt this project and AADIQ will do this ourselves in all 50 states. AADIQ leaders launched and won Massachusetts Question 2 (state voter initiative on insurance dental loss ratios), and we are here to do whatever it takes to impactfully improve oral health across the nation.
?
References (accessed 5-26-2024)
9.??? https://www.dhirubhai.net/pulse/lobbyist-money-from-dental-medicaid-third-party-texas-davis-dds/ ??
??
?
*Michael W. Davis, DDS writes and lectures on topics related to dental policy, economics, and law. He continues to be active as a licensed general dentist in New Mexico. He also serves law firms with consulting and expert witness work. Dr. Davis may be reached on email: [email protected]
?
?
?
?
?
?
?
?
?
? ??
Medical Professional
9 个月Very well written indeed!
With my expertise, I'm here to guide dentists in leveraging note investing as a powerful tool for wealth creation, allowing you to focus on your practice while your investments work for you.
9 个月Well researched and written article, thank you Dr. Davis!
President-elect at Illinois Academy of General Dentistry
9 个月I love these kinds of well-researched expose's. Dr Davis is Dentistry's best investigative journalist. I hope Dr Rizkallah succeeds in getting ADA's Health Policy Institute to perform an access compliance audit of the states. From there, we can advocate for the program to function as it was designed and put into law. Dr Rizkallah is an amazing researcher, too, supporting his case for compliance as a matter of law. I am not that kind of researcher, so when I asked the ADA Task Force on Medicaid to look into this "failure to have an adequate Medicaid provider network", it was only my opinion that they ought to do so. Kudos to Dr Rizkallah. I wish he was next in line at the Reference Committee hearing to hammer home the point because it is actually already in the law... But the states are not enforcing the law.