May 2019 Volume LIV Number 3


Legislative and Regulatory Update

May 2013 Volume XLVIX Number 3

 Unless otherwise noted, for further information on any of these issues please contact Chief Operating Officer and General Counsel C. Scott Litch at (312) 337-2169 or



Health Care Reform

Affordable Care Act (ACA): Mandatory Offer vs. Purchase Conundrum for Pediatric Oral Health Coverage

The AAPD and the ADA were disappointed that the Department of Health and Human Services, in its Feb. 20, 2013, final regulation on Standards Related to Essential Health Benefits, Actuarial Value and Accreditation, did not adopt our legal reasoning that the intent of the ACA would be thwarted if families were required to purchase a medical insurance plan but not a stand-alone pediatric dental plan. The issue is complex and belois as simple an explanation as possible along with potential next steps. Note that this final regulation, AAPD-ADA comment letters, and other relevant materials are available on the Essential Health Benefits (EHB) Resources website that collects important materials concerning implementation of essential health benefits state-by-state under the ACA. Pediatric oral health is defined under the ACA as an essential health benefit, and federal guidance indicates states can use the Federal Employees Dental and Vision Plan or the state CHIP plan as a benchmark for a stand-alone pediatric oral health plan. Go to:, then log in with your member ID and password.

Based on the Feb. 20, 2013, HHS regulation, the odd result is that:Inside health insurance exchanges, issuers of qualified health plans (QHP) are permitted to exclude the pediatric dental essential health benefit if stand-alone dental plan is offered in the exchange, and nothing in the rule requires purchase of the full set of benefits. Consumers mapurchase a medical plan that does not cover the pediatric EHB without buying a stand-alone dental plan (SADP). Of course, if dental coverage is embedded in the medical plan (QHP), then the dental coverage would already be there;

On the other hand, outside of health insurance exchanges the regulation requires the offer of all 10 benefit categories and purchase of the pediatric dental EHB by everyone in the individual and small group markets. QHPs may offer a product that excludes the pediatric dental EHB if they are "reasonably assured" that such coverage is sold only to consumers who purchase pediatric dental coverage through an exchange-certified standalone dental plan.

The AAPD and ADA recognize that an ideal solution would be a "technical corrections" bill to the ACA. Unfortunately, having federal legislation introduced to address the issue is not currently politically viable due to continued political controversy over the ACA. However, there are other potential avenues for addressing the issue:

If a state is running its own health insurance exchange (state-based), we believe that the state has the legal authority to mandate purchase of the pediatric EHB.

If a states is operating under a federallyfacilitated exchange (FFE) or partnership arrangement, the state still will have a great deal of latitude to address the matter if there is desire to do so. CMS has not to date suggested that it would resist state regulation of FFEs, if not otherwise pre-empted by the ACA.

AAPD members are encouraged to attend the upcoming fall 2013 conference on The Impact of theAffordable Care Act on the Pediatric Dental Practice: A National Conference for AAPD Members asadvertised on page 18 in this issue.


Update on California Medicaid Lawsuit: Ninth Circuit Sides with Government

In March 2012 CSPD Public Policy Advocate (and AAPD CDBP Chair)

Dr. Paul Reggiardo provided an update on pending California lawsuits seeking to block a 10 percent reduction in Medi-Cal payments to physicians, dentists, pharmacists, and other providers. In late 2012, a Ninth Circuit Court of Appeals panel vacated four preliminary injunctions issued by the U.S. District Court for the Central District of California that blocked reimbursement cuts under Medi-Cal. The court essentially supported the interpretation of the HHS Secretary that states are not required to follow any specific procedural steps before reducing rates. Weakening the case was an HHS determination that the state had complied with 42 USC § 1396a (a) (30) (a), a key provision in Medicaid law which requires a state Medicaid plan provide payments that "are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area." This case was before the Ninth Circuit because in Feb. 2012 the U.S. Supreme Court sent the case back without deciding whether providers and Medicaid recipients could maintain a private cause of action under the Supremacy Clause of the Constitution to enforce federal Medicaid law. The case is: Managed Pharmacy Care v. Sebelius, No. 12-55607 (9tCirc. Dec. 13, 2012). As of press time the stand-alone dental plan is offered in the exchange, and nothing in the rule requires purchase of the full set of petitioners, including the California Dental Association, were requesting a rehearing by the full Ninth Circuit court.