COVID-19, tele-dentistry and dental insurance
In response to the COVID-19 pandemic, orders from Gov. Mike DeWine, the Ohio Department of Health and the Ohio State Dental Board have mandated that Ohio dentists defer all non-essential and elective procedures in order to preserve the availability of personal protective equipment (PPE) and prevent inadvertent spread of the coronavirus. Dentists are expected to continue to provide for their patients’ emergency dental needs and in doing so help keep those patients out of the state’s hospital emergency rooms.
In addition to requesting that dentists donate surplus personal protective equipment and supplies to their local emergency management agency (https://webeoctraining.dps.ohio.gov/ohiocountyEMADirectorList/countyemalist_web.aspx) the government’s directive has specifically called on Ohio dentists to reschedule elective procedures including, but not limited to:
- Any cosmetic or aesthetic procedures, such as veneers, teeth bleaching, or cosmetic bonding.
- All routine hygiene appointments.
- Any orthodontic procedures not including those that relieve pain and infection or restore oral function or are trauma-related.
- Initiation of any crowns, bridges, or dentures that do not address or prevent pain or restore normal oral functioning.
- Any periodontal plastic surgery.
- Extraction of asymptomatic non-carious teeth.
- Recall visits for periodontally healthy patients.
- Delay all appointments for high risk patients, including ASA 2 and 3 patients, unless it is an emergency.
The OSDB also called upon the dentists to, among other dental practice management controls, use cell phone triage whereby the patient or parent/guardian texts a cell phone picture of the area to the dentist.
Questions have been raised relative to if and how dental insurance companies and other third-party payers could or would provide reimbursement to dentists who follow the OSDB’s cell phone triage protocol.
Ohio’s tele-dentistry law
Tele-dentistry is generally defined as the use of a broad variety of technologies and means to deliver virtual dental services. It is a collection of systems and methodologies and not a specific service.
Ohio does have a specific tele-dentistry law as a result of an ODA access to care legislative initiative. This law, however, does not have much practical relevance to the discussion of providing reimbursement for emergency dental services given the restrictions that are currently in place in Ohio.
The law allows dentists who hold a permit to delegate to qualified dental hygienists and expanded function dental auxiliaries (EFDAs) the ability to perform services without the dentist being physically present at a location where the service is to be provided. The services that are permitted under this law, however, are largely prohibited to be done by anyone, including dentists, under the current provide-emergency-dental-care-only restrictions.
Insurance company responses to pay dentists
Many insurance companies have already begun reimbursing dentists for providing care via tele-dentistry technology. They have done so without the need for the OSDB to take any action relative to Ohio’s tele-dentistry law. They have simply changed their payment code criteria in order to provide reimbursement.
During the time of this public health emergency, providing a patient’s dental benefit plan does not specifically exclude it and the patient still has coverage and/or benefits available, many carriers will provide benefits for the D0140 (problem focused limited oral evaluation) whether the service is provided in a dental office or virtually. Some plans provide reimbursement whether the evaluation is done via audio or video technology. Others will only provide benefits if a video component is used as part of the evaluation.
Some payers consider the D0170 (limited re-evaluation) and D0171 (post-operative office visit re-evaluation) procedure codes to be inclusive in the prior treatment or consultation while others provide reimbursement for these codes.
Most insurance companies do not provide separate reimbursement for either of the two tele-dentistry procedure codes, D9995 (synchronous, real-time encounter) and D9996 (asynchronous, information stored and forwarded to dentist for subsequent review). It is important to note, however, that a number require the appropriate tele-dentistry code accompany the submission of the D0140, D0170 or D0171 procedure codes as a descriptor in order for the dentist to be reimbursed for providing the D0140, D0170 or D0171 service.
Most insurers do not provide benefits for the D9311 (consultation with a medical health care professional) procedure code.
A very wide variety exists between dental insurers relative to how they are handling frequency limits on the use of the D0140, D0170 and D0171 procedure codes.
A best practice is to verify coverage whenever possible given the fluid nature of the unusual circumstances facing everyone, the interim nature of the insurers’ policies and the carriers’ statements that they intend to continually evaluate the situation.
The American Dental Association and the ODA have reached out to numerous dental insurers to determine their benefit policies and are working with them to ensure appropriate benefits are delivered to all involved.
Dental benefit plan administrators have reported that a large number of their staff are now working remotely. Some carriers have had to retrain entire units after personnel have fallen ill or been forced into self-quarantine. While these occurrences have not largely impacted the processing of electronic submitted claims, they have adversely affected the timeliness of processing paper claim submissions and handling other matters that require human intervention.
HIPAA and tele-dentistry
The governmental entity within the federal government charged with enforcing certain provisions of the HIPAA Privacy, Security and Breach Notification Rules, the U.S. Department of Human Services (HHS) Office for Civil Rights (OCR), has announced it “will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.” This notification became effective immediately on March 17, 2020.
This applies to tele-dentistry provided for any reason, regardless of whether the service is related to the diagnosis and treatment of health conditions related to COVID-19.
Under OCR’s notice, dentists may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Skype or Zoom, to provide tele-dentistry without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA rules related to the good faith provision of tele-dentistry during the COVID-19 nationwide public health emergency. OCR has encouraged practitioners to notify their patients that these third-party applications potentially introduce privacy risks and that dentists should enable all available encryption and privacy modes when using such applications.
While the following does not represent official or ODA recommended language, it is provided as a sample to assist ODA members in developing a notice they may use with their patients: “I agree that (name of practice) may communicate with me electronically using remote communications technology (e.g., cell phone, text, video conferencing, email). I understand that there is some level of risk to electronic communication and accept that risk/waive any HIPAA concerns. I understand that (name of practice) will use reasonable care in securing information provided via these forms of communication. I am responsible for providing the practice any updates to my cell phone and my email address. I may withdraw my consent to electronic communications by notifying the office.”
While OCR instructed that dentists who “seek additional privacy protections for [tele-dentistry] while using video communication products should provide such services through technology vendors that are HIPAA compliant and will enter into HIPAA business associate agreements (BAA) in connection with the provision of their video communication products” it also indicated that it “will not impose penalties against [dentists] for the lack of a BAA with video communication vendors or any other noncompliance with the HIPAA Rules that relates to the good faith provision of telehealth services during the COVID-19 nationwide public health emergency.”
The OCR notice does not address email or text communications. The ADA has reported that while HIPAA does not prohibit using email or text communications, dentists who wish to communicate with their patients in this manner must conduct a written risk analysis and implement reasonable and appropriate safeguards. Dentists may contact email@example.com for some examples of safeguards.
OCR also indicated that practitioners should NOT utilize Facebook Live, Twitch, TikTok or similar video communication applications that are public facing to provide tele-dentistry services.
“While not all inclusive, some final points to remember relative to accurate clinical documentation come to us from Dr. Charles Blair,” said Dr. Manny Chopra, chairman of the Ohio Dental Association Council on Dental Care Programs and Dental Practice. “Properly documenting each encounter is essential to establishing emergency cases. Dentists should consider documenting the method of interaction, such as whether the services were provided live, either via video or photo and telephone, the reason for the encounter/diagnosis and condition of the patient. Dentists should also securely store any photos that their patients submit so that they may become a permanent part of the patient’s clinical record.”