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By Daniel J. Schulte
MDA Legal Counsel
Published in the September 2006 issue of the Journal

Question: I am in a dispute with a dental plan over certain billings for my services. In the discussions, the dental plan has threatened to make a report to the National Practitioner Data Bank. They tell me that a report will jeopardize my ability to participate with dental plans in the future. Can they do this when no complaint has been made regarding the treatment I provided?

Answer: The dental plan most likely cannot make this reporting, for two reasons. First, adverse actions taken by a dental plan based only on the economics of your billing practices are not reportable because they do not involve your professional competence or conduct. Second, the dental plan is not likely a "health care entity" as defined by the federal law that created the Data Bank.

These technical reasons notwithstanding, no one should use a Data Bank reporting as a bargaining chip in a negotiation to resolve a dispute. The Data Bank was created for use only by health care professionals, medical malpractice insurers and payers, and state licensing authorities. The purpose of the Data Bank is to act as a clearinghouse to collect and release reported information about the professional conduct of health care professionals. Those who are required to report to the Data Bank by law should do so regardless of the effect it may have on a negotiation.

You should clarify that the dental plan’s complaint deals only with the economics of billing (e.g., using the wrong procedure code, untimely submitting of claims, using an improper claim form, etc.) and not your professional competence or conduct (e.g., you were over-treating, your dental treatment records are incomplete, you should have used different materials, etc.).

The law that created the Data Bank allows reporting only by an entity that makes a medical malpractice payment; a board of medical examiners; a state licensing board; a professional society; or a health care entity that takes adverse action against a health care professional.

Your dental plan would only be able to make a Data Bank report if it is a health care entity. To be such a health care entity the dental plan must both provide health care services and engage in formal peer review activities. If your dental plan does both, it will be considered a health care entity and have the obligation to report adverse actions that relate to your competence or professional conduct.

Does your dental plan provide health services as required by the Data Bank test? Typically, dental plans act as an intermediary and contract with dentists to provide dental services for the dental plan’s customers (for example, the employers of the dental plan’s enrollees). The dental plan does not actually deliver the dental services directly, and therefore likely cannot be said to be actually delivering dental services. Hence, even if the dental plan’s network performs peer review it likely will not qualify as a health care entity as defined by the Data Bank law.

Unfortunately, there is no procedure to verify whether your dental plan is a "health care entity" with the right and obligation to report to the Data Bank. The Data Bank relies on self-certification forms submitted by entities that assert that they are "health care entities" — in other words, that they perform peer review and provide health services. Over the years there have been several disputes in which health professionals have challenged the validity of adverse action reports filed by dental and other health plans where it is not entirely clear whether the plan is a "health care entity" as defined by the Data Bank law. The outcome of these cases has been decided on a case-by-case basis and turn on the terms of the particular plan involved.

The best practice when a threat such as this is made is to inform the dental plan that you are aware of your rights and who may make a report to the Data Bank.

Posted in: Billing Issues

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