Download Comments to Proposed Changes to 130 CMR § 420.000 Dental

30 Winter Street, Suite 1004
Boston, MA 02108
Telephone: 617-338-5241
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HealthLawAdvocates
Fighting for Health Care Justice
s
November 26, 2007
BOARD OF DIRECTORS
Wendy E. Parmet
Ellen A. Bruce
Jeffrey N. Catalano
Michael S. Dukakis
Paul W. Finnegan
Ruth Ellen Fitch
Daniel J. Jackson
Diane Bissonnette Moes
John E. McDonough
S. Stephen Rosenfeld
Thomas P. Sellers
Eleanor H. Soeffing
EXECUTIVE DIRECTOR
Barbara Anthony
VOLUNTEER LEGAL DIRECTOR
S. Stephen Rosenfeld
STAFF ATTORNEYS
Matt Selig
Lorianne Sainsbury-Wong
Rebecca Brink
Georgia Maheras
Aimee Dendrinos
Carolyn Pointer
PARALEGALS
Elaine Griffin
Chris Haner
OFFICE MANAGER
Irene Nicolaides
ADMINISTRATIVE ASSISTANT
Laura Healey
Tom Dehner, Medicaid Director
EOHHS
One Ashburton Place, Rm. 1109
Boston, MA 02108
Re:
Comments to Proposed Changes to 130 CMR § 420.000,
Dental Regulations
Dear Mr. Dehner:
Enclosed please find Health Law Advocates’ comments on proposed regulatory
changes for 130 CMR § 420.000. We appreciate the opportunity to comment
on these proposed regulations and work with MassHealth to increase access to
oral health services for children in the MassHealth program.
Sincerely,
Barbara Anthony, Esq.
Executive Director
Georgia J. Maheras, Esq.
Dental Access Attorney
30 Winter Street, Suite 1004
Boston, MA 02108
Telephone: 617-338-5241
PageFax:
2 617-338-5242
www.healthlawadvocates.org
HealthLawAdvocates
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 2
Fighting for Health Care Justice
s
COMMENTS RELATIVE TO
BOARD OF DIRECTORS
Wendy E. Parmet
Ellen A. Bruce
Jeffrey N. Catalano
Michael S. Dukakis
Paul W. Finnegan
Ruth Ellen Fitch
Daniel J. Jackson
Diane Bissonnette Moes
John E. McDonough
S. Stephen Rosenfeld
Thomas P. Sellers
Eleanor H. Soeffing
130 CMR § 420.000 Dental Regulations
Before the
Division of Medical Assistance
November 26, 2007
Testimony of Health Law Advocates
Regarding 130 CMR § 420.000
EXECUTIVE DIRECTOR
Barbara Anthony
VOLUNTEER LEGAL DIRECTOR
S. Stephen Rosenfeld
STAFF ATTORNEYS
Matt Selig
Lorianne Sainsbury-Wong
Rebecca Brink
Georgia Maheras
Aimee Dendrinos
Carolyn Pointer
PARALEGALS
Elaine Griffin
Chris Haner
OFFICE MANAGER
Irene Nicolaides
ADMINISTRATIVE ASSISTANT
Laura Healey
by
Health Law Advocates
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 3
Health Law Advocates has been active in oral health since 2000 when we filed a complaint against
the state of Massachusetts, HCFA v. Romney. HLA is now working with the state in the
remediation phase of the lawsuit and is committed to ensuring that the goal of the lawsuit is met
and children are receiving the oral health care services they need and are entitled to. The judgment
requires the state to develop a coordinated system that provides children with access to appropriate
dental care. We submit these comments to the proposed regulations concerning dental services
which were announced on November 5, 2007.
We commend the Division for clarifying many of the requirements for approval of dental
treatments and eliminating prior authorization requests for several of these treatments. We also
comment the Division for simplifying the language used in these regulations. We appreciate the
formalization of the acceptance of many of the proposals made in September 2006 by the
MassHealth Dental Advisory Committee that resulted in simplification of many treatment options
for MassHealth members. However, there are several areas of concern that we would like to
address:
1. The inclusion of a definition for EPSDT in section 130 CMR § 420.402 indicates that
MassHealth could limit benefits for certain classes of children on MassHealth at some
point in the future.
2. The changes to § 420.406 Caseload Capacity do not properly assess the impact of a provider
limiting the number of MassHealth patients in his or her practice.
3. In these proposed regulations, there are several references to Subchapter 6. The proposed
version of this companion document is not available as part of this notice and comment
period.
4. The changes to § 420.421 (C) include language that seems contrary to other sections of these
proposed regulations.1
5. The changes to § 420.456 (F) Mouth Guards for Sports, do not provide enough clarification
on the definition of “organized sport.”
1
Note: In an email received on 11/26/07, MassHealth Counsel Nancy Savoie indicated that there was a typographical
error in this subsection of the proposed regulations and it should read: “over age 21” instead of “under age 21”.
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 4
6. The language used in § 420.426 (A)(3) regarding when a Pulpotomy can be reimbursed is
ambiguous.
7. The changes to § 420.428 regarding Dentures did not properly address the proposals of the
MassHealth Dental Advisory Committee recommended in September 2006. Specifically
Proposal 5 and Proposal 6 were not addressed.
8. The changes to § 420.426(B)(2)(a) for root canal therapy did not include the removal of the
prior authorization for root canal therapy. The MassHealth Dental Advisory Committee
recommended the removal of this prior authorization in September 2006 and MassHealth
declined to accept this recommendation.
9. The changes to § 420.xxx of these regulations, regarding oral prophylaxis, eliminated the
provision that allowed a provider to request additional oral prophylaxis for patients in need of
these services.
10. There are several technical corrections to these regulations.
For the reasons which follow, we urge you to reconsider and revise the proposed regulations with
respect to the above issues.
1. The inclusion of a definition for EPSDT in section 130 CMR § 420.402 indicates that
MassHealth could limit benefits for certain classes of children on MassHealth at some
point in the future.
Proposed regulations found at 130 CMR 420.402 and 130 CMR 420.421 address MassHealth’s
treatment of certain children covered under the Commonwealth’s 1115 demonstration waiver, also
known as “expansion” populations. Prior to these proposed regulations, there was no distinction
made between EPSDT eligible and non-EPSDT eligible populations. The inclusion of an EPSDT
definition in these regulations can be interpreted as an indication that MassHealth is considering
reducing the benefits offered to non-EPSDT eligible children: those on Family Assistance, Basic,
and Limited. The language in 130 CMR 420.421 would allow MassHealth to limit the benefits for
non-EPSDT eligible children. We are very concerned that MassHealth may be contemplating
limiting dental benefits for any children on the MassHealth program. The current regulations do
not create any distinctions between the children on the different MassHealth programs. All
children on MassHealth should be afforded the opportunity to get a tooth restored once dental
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 5
caries have been identified. If this regulation is promulgated as it stands, children on Family
Assistance, Basic and Limited will not have that reassurance. This will be a disincentive to the
families to seek dental care. (Please see, attached as Exhibit A, an excerpt from Health Law
Advocates’ comments submitted on November 7, 2007 regarding regulation 130 CMR § 450.000
for further discussion of our concerns regarding these regulatory changes.)
2. The changes to § 420.406 Caseload Capacity do not properly assess the impact of a
provider limiting the number of MassHealth patients in his or her practice.
The proposed changes in 130 CMR 420.406 on Caseload Capacity help to clarify the obligations of a
MassHealth Dental Provider. Unfortunately, these requirements do not go far enough. The system
of opening and closing a dental practice is intended to be fluid and accommodating to the dental
providers to maximize provider participation. However, we need appropriate assessments on whether
or not providers find this system user-friendly and MassHealth members are not being adversely
affected by this policy. We recommend implementing a requirement that providers need to indicate
why they are closing their practice when they notify the MassHealth agency that they are closing their
practice. This information could then be captured in a tracking report so that the impact of caseload
capacity can be analyzed.
3. In these proposed regulations, there are several references to Subchapter 6. The proposed
version of this companion document is not available as part of this notice and comment
period.
These proposed regulations refer to a second document entitled Subchapter 6, which is part of the
MassHealth Dental Provider Manual. Many of the proposed changes in 130 CMR 420.000 involve
removing prior authorizations and other treatment requirements, information also found in Subchapter
6. We request that the changes made to Subchapter 6 also go through a notice and comment period,
since providers will rely heavily on this document for approvals. We are concerned that the
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 6
substantial changes in these regulations could not be accurately reflected in Subchapter 6. Further,
advocates and providers should have easy access to this subchapter even though it does not fall
under the rubric of a regulation. This Subchapter should also be made available to advocates use in
assisting MassHealth members.
4. The changes to § 420.421 (C) include language that seems contrary to other sections of
these proposed regulations.
This change provides a blanket exclusion for several services if the member is over 21 years of
age. However, there are several instances when a person over 21 could qualify for one or more of
these services due to exceptional need. A provider, member or advocate can be confused by this
language and assume the services are not covered when there are these exceptions. For example,
orthodontic services could be provided for an individual to repair a broken jaw. We recommend
that these regulations include language indicating there are exceptions and requiring prior
authorizations to determine when these can be applied.
5. The changes to § 420.456 (F) Mouth Guards for Sports, do not provide enough
clarification on the definition of “organized sport.”
We appreciate the clarification that MassHealth will pay for custom-fitted mouth guards for
MassHealth members under age 21 who are engaged in an organized contact sport. Unfortunately, it
is unclear what the Division means by “organized contact sport”. There are several sports for which a
mouth guard is not considered necessary, but are organized. Conversely, there are some sports, like
basketball, which are not intended to be so-called contact sports, but where the prevalence of elbow
injuries makes a mouth guard critical. It should be clear which sports are considered contact sports
and at a minimum this list should include: basketball, soccer, football, hockey, and lacrosse.
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 7
6. The language used in § 420.426 (A)(3) regarding when a Pulpotomy can be reimbursed is
ambiguous.
The proposed regulation uses the phrase “same period of treatment” to limit the coverage of this
benefit. This phrase is not defined in 130 CMR 420.402: Definitions. We recommend that this
language be changed to say “same date of service.” There are instances where a patient could
come into a provider’s office on Monday in need of a pulpotomy as part of a root canal or
treatment of an abscess that develops several days or weeks later. The provider should be
reimbursed separately for this separate treatment and the effort expended in the effort to save the
tooth.
7. The changes to § 420.428 regarding Dentures did not properly address the proposals of the
MassHealth Dental Advisory Committee recommended in September 2006. Specifically
Proposal 5 and Proposal 6 were not addressed.
In September, 2006, the MassHealth Dental Advisory Committee made recommendations
regarding 18 specific proposals generated through the Judgment in HCFA v. Romney. MassHealth
then accepted some and rejected others of these proposals on May 31, 2007. The accepted
proposals should be implemented in the current promulgation of 130 CMR 420.000. It is our
understanding that Proposal 5 was accepted by MassHealth. This proposal said that MassHealth
will pay for the fabrication of a new denture in two years from placement of the denture, if there
has been a reline on the denture. The proposed regulation requires a MassHealth member to wait
seven years for the new denture, regardless of whether or not there has been a reline. This is
contrary to the intent of Proposal 5.
The MassHealth Dental Advisory Committee also recommended that MassHealth eliminate the six
month rule that prohibits providers from obtaining reimbursement when a denture needs to be
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 8
relined in the first six months of placement. MassHealth did not accept this recommendation.
While we understand that there can be concern that a provider is responsible for the need to reline
the denture, providers should not bear the financial burden of repairing something that is not their
fault. Additionally, MassHealth can easily control the coverage of these repairs through a prior
authorization process. Part of the fee paid to a provider should include follow-up visits to make
sure the denture fits appropriately. However, there are times when a reline or major adjustment is
required and this should be reimbursed separately. For example, when several teeth are extracted
at once, there is significant trauma to the mouth and the bones and tissue go through a significant
period of adjustment. There are times when the provider cannot predict what natural adjustments
the mouth will make that necessitate relining of the denture.
We also request that MassHealth change the requirement that a denture cannot be replaced unless
it is seven years old or fulfills very specific criteria. A denture undergoes significant wear and
tear, and relining and rebasing may not repair the damage caused by such constant use. Within
two to three years of the placement of the denture, approximately 90% of the changes that will
occur in a person’s mouth do occur. A MassHealth member should not have to wait an arbitrary
amount of time to replace a denture that caused pain and damage and limits the ability to eat and
speak.2
8. The changes to § 420.426(B)(2)(a) for root canal therapy did not include the removal of the
prior authorization for root canal therapy. The MassHealth Dental Advisory Committee
recommended the removal of this prior authorization in September 2006 and MassHealth
declined to accept this recommendation.
2
Rhode Island offers replacement dentures every 5 years if necessary.
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 9
MassHealth requires prior authorizations for all root canal therapies. Any delay in the processing of a
root canal therapy request is harmful to MassHealth members. It is often hard to re-schedule a
MassHealth patient given the limited providers who take MassHealth. It is also likely that a treatment
could be delayed so much that a root canal is no longer an option and the member is forced to have
that tooth extracted. In addition to the potential for bad health outcomes, there is significant evidence
that retrospective review of claims is a better way to guarantee high quality delivery of services.
While we appreciate the concern that providers could be submitting fraudulent claims, the vast
majority of dental providers are honestly treating their patients. It is a considerable burden on all
providers to require prior authorizations when the same information can be gathered through
retrospective review. The commercial dental market utilizes retrospective review of claims and audits
providers who appear to be delivering inappropriate services and achieve great success with this
method of review. We urge MassHealth to reconsider the requirement for prior authorizations for
root canal therapy and in the alternative provide a 24 hour a day/7 day a week hotline where a
MassHealth provider can speak with a dentist in the prior authorization unit of Doral to get
immediate approval for patients in need.
9. The changes to § 420.424 of these regulations, regarding oral prophylaxis, eliminated the
provision that allowed a provider to request additional oral prophylaxis for patients in need
of these services.
The proposed regulatory changes eliminated the provision allowing a provider to request additional
oral prophylaxis for patients in need. An oral prophylaxis, or cleaning, is a critical element in
maintaining good oral health. While many individuals are able to maintain good oral health receiving
cleanings twice a year, there are also those who need extra cleanings. Many of the people on
MassHealth for developmental, physical, and psychological disabilities are not capable of cleaning
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 10
their teeth sufficiently well due to their disabilities. Further, there are many individuals who have
experienced side effects from their medications that cause dry mouth and resulting damage to the
teeth and gums. We request that MassHealth restore the original language that allows coverage for
this service for certain populations.
10. There are several technical corrections to these regulations:
a. Section 420.402. Under the definition for pre-orthodontic work-up, there is an extra
comma after photographs.
b. Section 420.403. In subsection (B), there is an extra comma after “(EAEDC)”.
Section 420.404. We recommend that the list (A-D) is indented to make it easier to read and
understand.
c. Section 420.405(C)(2). The existing text reads: “undertaking efforts that, include, but not
limited to,…” An “are” should be inserted before the not.
d. Section 420.410 (A)(3)(b). This is the second item in a three item list. The first item had a
semi-colon at the end to differentiate it from the remaining items. Subsection b has a comma
preceding the final “and”. We recommend that subsection b also include a semi-colon so that there
is consistency.
e. Section 420.421 (B)(13). The text reads “any othe4r”. The 4 should not be in the middle
of the word other.
f. Section 420.421 (C)(2). The text reads “occcusal”. There are a variety of different
spellings for the term occlusal throughout these proposed regulations.
g. Section 420.453(G). This subsection on orthognathic surgery refers a person to the section
on dentures. Orthognathic surgery usually involves an orthodontic component to correct the
malocclusion after the surgery has corrected the facial tissue. This subsection should refer to 130
CMR 420.431, orthodontic services instead of 130 CMR 420.428 Dentures.
Conclusion:
We know that dental decay is the single most common disease of childhood, one that can be
prevented when children have access to the care they need. The results of not receiving early and
frequent care are serious and lifelong. Poor oral health causes unnecessary suffering and interferes
with important daily activities, such as eating and sleeping. Poor oral health also prevents children
from performing well in school and, later in life, keeps them out of work. In the worst cases,
untreated dental disease can result in death, as was seen in the tragic case of Deamonte Driver, the
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 11
young boy from Maryland who died from an abscessed tooth because he was unable to access care.
Thank you again for the opportunity to comment on these proposed regulations. MassHealth is in
a unique position to foster and provide access to good dental care for low-income Massachusetts
residents. We believe many of the proposed changes advance that goal. There are some areas,
however, as described herein, where further progressive changes will result in greater access and
better oral health for Massachusetts children and adults.
Sincerely,
Barbara Anthony, Esq.
Executive Director
Georgia J. Maheras, Esq.
Dental Access Attorney
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 12
Exhibit A
1. Children covered by Family Assistance, Basic and Essential categories of MassHealth
should not be denied access to the rights and entitlements of EPSDT, including access to
medically-necessary medical and behavioral health treatment.
Proposed regulations found at 130 CMR 450.105 and 450.150, address MassHealth’s
proposed treatment of certain children covered under the Commonwealth’s 1115 demonstration
waiver, also known as “expansion” populations. As written, children in Family Assistance, Basic,
and Essential eligibility groups will be excluded from the rights and protections of federal EPSDT
provisions and instead grouped together in a separate category known as “Preventative Pediatric
Health-Care Screening and Diagnosis (PPHSD).” This exclusion is further clarified by provisions
which state that only children in MassHealth Standard and CommonHealth are entitled to EPSDT
services. See 130 CMR §§ 450.105(A)(6), (B)(6), (E)(4), (H)(7), (I)(5); and 130 CMR § 450.150. If
these new regulations are promulgated, they will formalize – at least under state law – the exclusion of
over 60,000 children from the rights and benefits of EPSDT.
Under the proposed regulations, children receiving only PPHSD will be eligible to receive
screening and diagnostic services, but will be limited in the availability of treatment for the medical
problems identified through that screening and diagnosis.3 To screen for and diagnose various
medical conditions, only to then advise the affected children and their parents that the needed
treatment for those diagnosed medical conditions will not be covered is poor public policy.
Conditions that are left untreated generally worsen, necessitating more expensive and more intrusive
Under proposed regulation, 130 CMR 450.140(A)(3), EPSDT screening services “include among other things,
health, vision, dental, hearing, behavioral health, developmental and immunization status screening services.
Noticeably missing from the PPHSD screening services at 130 CMR 450.150(B)(2) are behavioral health and
developmental services, despite the fact that, even under the proposed regulations, children in other than Standard and
CommonHealth are entitled to behavioral health and rehabilitation services. See 130 CMR 450.105(B)(1)(e) and (y);
450.105(H)(3)(f) and (bb); and 450.105(I)(1)(d) and (r). While we believe that all children in all coverage groups
should receive full EPSDT coverage, there is certainly no reason to exclude behavioral health and developmental
services from PPHSD screening and diagnosis, as the structure of the proposed regulations suggests.
3
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 13
treatments in the future. Especially in the behavioral health area, it is well documented that early
intervention with proven, evidence-based treatments and therapies is not only clinically effective, but
cost effective as well. Left untreated, many of the children with behavioral health problems will
engage in behaviors that will create problems in school, at home, and/or in the community. Some will
engage in behaviors that will result in commitment to the juvenile justice system, while others will
become the subject of care and protection or CHINS proceedings, resulting in DSS custody and foster
care placements. Others may end up suspended or expelled from school or placed by the school
district in out-of-district residential programs. All of these alternative placements come at great
financial expense to the Commonwealth and tremendous psycho-social expense to the child and
her/his family. If the economic and non-economic benefits to the child of learning to control her/his
behaviors are added in, the benefits of providing treatment far exceed the cost.4
In addition to the obvious benefits to the child, the family and society of providing
comprehensive treatment services, the differentiation between EPSDT and PPHSD covered services
are likely to create problems for providers. The complexity of the different coverage groups and the
scope of covered services for each already pose a challenge for many providers and negatively impact
provider participation. Up until now, MassHealth has provided essentially the same treatment
services for all children, regardless of coverage group.5 To the extent that these regulations are
intended to change this practice, at least with respect to certain behavioral health treatments, they will
create confusion in the provider community. This confusion will inevitably result in the provision of
inconsistent care to children who are equally in need of treatment. It will also lead to numerous
4
We have focused on behavioral health services because these proposed regulations are promulgated largely in
response to the judgment in the Rosie D. litigation.
5
The primary areas of difference in coverage between Standard/CommonHealth and Basic/Essential involve personal
care services, long term care, and home health services. Because virtually all children in need of such services are
disabled, they would qualify for either Standard or CommonHealth. As a result, the coverage limitations have not
generally operated to deny needed care to children.
Comments regarding 130 CMR § 420.000
November 26, 2007
Page 14
billing disputes about good faith efforts by providers to treat their MassHealth patients. These
disputes are likely given both the language of the regulations and the reality that children frequently
move been eligibility groups. Providing EPSDT coverage for all MassHealth children, irrespective of
their coverage group, avoids these problems and makes the system more user-friendly for all
involved.
Including all MassHealth children in EPSDT also makes the administration of children’s
health care easier. Many children move in and out of different coverage groups as their family
income, family composition, or access to private health insurance changes. Many treatments,
especially in the mental and behavioral health areas, extend over many months. To interrupt
treatments in mid-stream is neither cost-effective nor medically acceptable. Yet, that will be the
inevitable result for some children under the regulations as currently drafted. The confusion that these
regulations will create for families, providers and administrators can easily be avoided by extending
EPSDT coverage to all MassHealth children. To do otherwise is fiscally counterproductive for the
taxpayers of the Commonwealth6 and compromises the health of the children whom MassHealth is
charged to serve.
For all of these reasons, the undersigned strongly urge MassHealth to reconsider and revise
the regulations to eliminate the separate and unequal PPHSD program and provide full EPSDT
services to children in all MassHealth coverage groups.7
6
EPSDT has been shown to be cost-effective by identifying, diagnosing and treating medical and psychiatric conditions early,
before they worsen and necessitate more intrusive and costly interventions. Frequently the early provision of appropriate medical
care produces ancillary cost savings for other governmental agencies. For example, the provision of intensive community-based
mental and behavioral health services for children can safely be predicted to provide savings for DSS, DYS and DOE (as well as
local school districts) by reducing the need for foster care placements, juvenile commitments, or costly residential special education
services.
7 While the PPHSD regulation has been on the books for some time and the proposed change removes CommonHealth from the
coverage groups subject to PPHSD, it is our understanding that it has been the practice of MassHealth to provide comparable
coverage to all children, irrespective of the coverage group they are in. We would urge that MassHealth formalize this
commendable practice by specifying in its regulations that all children receiving MassHealth benefits are entitled to EPSDT
services.