Early and Periodic Screening, Diagnosis and Treatment Program

Subject:

Requested By: Sarah T. Morrow, Secretary, Department of Human Resources

Questions: Does the prior approval process under the 1979-81 Appropriations Act, 1979 Session Laws, Chapter 838, Section 23, apply to dental services which are provided under the Early Periodic Screening, Diagnosis and Treatment Program?

 

1.  
2. Does the co-payment process under the 1979-81 Appropriations Act, 1979 Session Laws, Chapter 838, Section 23, apply to the dental services which are provided under the Early Periodic Screening, Diagnosis and Treatment Program?

    

Conclusions: No, although the prior approval process applies to most dental services under Medical Assistance, dental services which are part of the Early and Periodic Screening, Diagnosis and Treatment Program are distinct and separate and are not subject to prior approval.

 

1.  
2. No.

    

The question is whether the prior approval process, which was established by the General Assembly in the 1979-81 Appropriations Act as a means to control the utilization of certain Medical Assistance (Medicaid) services, applies to those dental services which are provided under Medicaid’s Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT)? The answer is no, prior approval is not required for those dental services which are part of the EPSDT program. We reason as follows.

Title XIX of the Social Security Act creates the Medicaid program. There are seventeen different types of medical care and services which a state can include within Medicaid. These types of care and services are listed in Section 1905(a) of the Social Security Act, 42 U.S.C. § 1396d(a). Most of these seventeen kinds of care and services are optional, but several must be included within the State’s program. Social Security Act, § 1902(a) (13)(B); 42 U.S.C. § 1396a(a)(13)(B).

One of the types of care and treatment which is authorized by the Social Security Act is "early and periodic screening and diagnosis of individuals who are eligible under the (Medicaid) plan and are under the age of twenty-one." Social Security Act, § 1905(a)(4)(B); 42 U.S.C. § 1396d(a)(4)(B). Another of the possible Medicaid services is "dental services." Social Security Act § 1905(a) (10); 42 U.S.C. § 1396d(a)(10). Of these two services, the former, EPSDT, is mandatory while the latter, dental services, is optional. Social Security Act, § 1902(a)(13)(B); 42 U.S.C. § 1396a(a)(13)(B).

The Social Security Act provides that the Secretary of Health and Human Services may promulgate regulations defining the content of the EPSDT program. Social Security Act, § 1905(a)(4)(B); 42 U.S.C. § 1396(a)(4)(B). Among the mandatory EPSDT services are dental screening and treatment for children who have been directly referred to a dentist, 42 C.F.R. §

441.56. These dental services which are part of EPSDT are plainly distinct from the dental services which are provided for in § 1905(a)(10) and 42 C.F.R. § 440.100 and which are made optional for the states by § 1902(a)(13)(B) and 42 C.F.R. § 440.210.

In short, the Social Security Act and the Code of Federal Regulations clearly distinguish between dental services which are part of Medicaid’s mandatory EDSPT Program and other dental services which are among Medicaid’s options. The question to be answered is whether the requirement of prior approval for dental care applies to both the mandatory EPSDT dental services and the optional ordinary dental services. For the following reasons, we conclude that prior approval only applies to ordinary dental services, not to EPSDT dental services. In the 1979-81 Appropriations Act, 1979 Session Laws, Chapter 838, Section 23, the General Assembly spoke separately as to "Dental Services" and EPSDT Screening Services." In drawing this clear distinction, the General Assembly conformed our law to the Social Security Act. Speaking specifically to its appropriation for dental services, the General Assembly said (as it was permitted to say under 42 C.F.R. § 440.230 (c)(2)) the following:

"Funds appropriated to the Department of Human Resources for dental services shall be dispensed only with prior approval as required by this paragraph. . . ."

This language just quoted is the so-called "prior approval" requirement for dental services. No comparable language is attached to the appropriation for EPSDT services.

From the text of the Appropriations Act, we can only conclude that the General Assembly has placed a prior approval requirement on ordinary dental services but not on EPSDT dental screening and treatment. We note in passing that this distinction between EPSDT dental work and all other dental services is all the more reasonable in that all EPSDT dental work is done by "direct referral." Given this requirement for referrals, there is concomitantly less need for prior approval by the Medicaid agency.

Turning to the second question, we believe that the co-payment process does not apply to dental services under the EPSDT program. The Code of Federal Regulations clearly identifies those services for which co-payments may be allowed. According to 42 C.F.R. § 447.53(a)(1), "The (State Medicaid) plan must provide that the Medicaid agency does not impose any deductible, co-insurance, co-payment, or similar charge upon categorically needy individuals for those services listed in sections 440.10-440.50 and 440.70 of this subchapter." (Emphasis added.) EPSDT program services are defined in § 440.40(b) and, therefore, are among the services for which a co-payment may not be charged to the categorically needy. As to the medically needy, 42

C.F.R. § 447.53(b) says, "The plan may impose a deductible, co-insurance, co-payment or similar charge upon medically needy persons for any service under this plan." Thus, the State could charge a co-payment to medically needy persons for EPSDT services, if it chose to do so. However, the State chooses not to do so. The Appropriations Act, 1979 Session Laws, Chapter 838, Section 23, says, "no co-payment is required for EPSDT related services. . . ." Therefore, as to both the categorically needy and the medically needy, the prohibition against a co-payment applies to EPSDT services, including EPSDT dental services. The fact that the co-payment requirement does apply to the other dental services is irrelevant because, as we have seen, these other dental services are distinct from EPSDT dental services.

Rufus L. Edmisten Attorney General

Steven Mansfield Shaber Assistant Attorney General