SJC lets dental insurance question proceed to ballot

THE NOVEMBER BALLOT is coming into focus  as the Supreme Judicial Court on Wednesday ruled that a question regulating dental insurance can proceed to the ballot.  

The ballot question would require dental insurers to spend at least 83 percent of premiums on clinical costs and quality improvements, rather than administrative costs. This is referred to as a medical loss ratio, and is similar to an existing rule for health insurance, which was put in place by President Obama’s Affordable Care Act. 

The question is pitting dentists, who support the question, against insurers, who oppose it. 

Kevin Monteiro, executive director of the Massachusetts Dental Society, said the group is pleased with the SJC’s decision. “The Massachusetts Dental Society endorses this measure to ensure that, just like medical patients, dental patients’ premium dollars are spent on their care, with critical components guaranteeing transparency and accountability,” Monteiro said in a statement. “This ballot measure continues to gain momentum and support, and we’re confident voters will approve it in November.” 

The SJC challenge, filed by Lory-San Clark and Wendy Sutter, argued that the ballot question includes two unrelated public policy goals. One part would establish rules limiting how much insurers can pay for administrative expenses; the second would require insurers to file annual financial reports. Under state law, a ballot question introduced through an initiative petition can only include subjects that are “related or mutually dependent.” 

In a 14-page unanimous decision, written by Justice Elspeth Cypher, the court agreed with Attorney General Maura Healey, who certified the question and said the different sections of the ballot question would create “an integrated regulatory scheme that would comprehensively address dental insurance rates that are excessive, inadequate, or unreasonable.” 

Cypher wrote that the rules setting up the medical loss ratio and the reporting rules share a common purpose. The reporting requirements give the insurance commissioner the information needed to enforce the medical loss ratio and determine whether the insurer is meeting the goals of reducing plan costs and improving quality. 

“Here, the financial disclosures required…relate not to a separate, general goal of transparency but to the common purpose of enabling the commissioner to implement and monitor compliance with the new [medical loss ratio] scheme,” Cypher wrote. 

Supporters of the ballot question say it is a way to save consumers money by limiting the amount of money dental insurers can use to pay salaries, cover overhead, and take in profits, similar to the law in place for health plans. Massachusetts laws for health plans, which are slightly stricter than the national standards, require health plans to spend 88 percent of premiums on clinical costs and quality improvements. Any excess premiums must be returned to consumers. 

But opponents say dental plans are different from medical plans. Their premiums are lower – generally, 5 to 10 percent of the cost of health plans – but plans still have many of the same fixed costs for enrolling patients, processing claims, preventing fraud, maintaining office space, etc. So on a percentage basis, the insurers say a greater percentage of premium money needs to go toward administrative expenses. In a court brief, opponents of the question worried that implementing a “medical loss ratio” would lead to higher premiums and make dental insurance less affordable and accessible.  

The ballot question was sponsored by a group of orthodontists, a dentist, and several patients, led by orthodontist Mouhab Rizkallah, who has been sued by Attorney General Maura Healey for submitting false claims to MassHealth.  

The Board of Trustees of the Massachusetts Dental Society, a trade association representing dentists, announced Monday that it was supporting the ballot question. Dr. Meredith Bailey, president of the Massachusetts Dental Society, said in a statement, “Patient dollars should be required to be spent in support of their oral health, and patients deserve visibility into how much of their dental insurance premiums are paying for care as opposed to administrative costs.” 

Chris Keohan, a spokesperson for the ballot question committee, The Committee on Dental Insurance Quality, said the committee is happy with the ruling and eager to continue its campaign. “Patients pay too much in premiums and out of pocket expenses for dental insurers to spend it on lavish executive bonuses instead of patient care,” Keohan said. “This policy would save patients money, cover more procedures, and force dental insurers to prove where the money is going.”

Exactly who is opposing the question is a bit murky, but most of the opposition appears to have come from the insurance industry. The SJC challenge was filed by two individuals – Clark is a former dental office manager and Sutter’s interest in the matter is unclear.  

Two national insurance trade associations which have Massachusetts members – America’s Health Insurance Plans and the American Council of Life Insurers – filed a court brief opposing the ballot question. The Massachusetts Association of Health Plans has also testified against the proposal.  

Jason Aluia, vice president of government and external affairs at the Massachusetts Association of Health Plans, testified before a legislative committee that the proposal “would impose unprecedented requirements on dental plans that we fear will increase costs for families and small businesses.” 

 A ballot committee formed to oppose the question, the Committee to Protect Access to Quality Dental Care, was organized by political strategist Meredith Lerner Moghimi and attorney Louis Rizoli. As of the end of 2021, the committee had not yet reported any donations. Kyle Sullivan, a coalition spokesperson, said it is a coalition of “dental plans and others” who are “partnering with other individuals and organizations who are concerned about rising costs for consumers and small businesses and decreased access to dental care.” 

The committee, in a statement, called the ballot question “an anti-consumer proposal that will increase costs for Massachusetts families and employers and can result in denying thousands of residents access to much needed dental care,“ the statement said. “With consumer prices soaring to all-time highs, the Commonwealth doesn’t need this added regulation that will only increase costs and decrease choice for patients across the state,” the committee said. 

After Wednesday’s decision, the lineup of ballot questions that will appear in November is becoming clearer. In addition to approving the dental insurance question, the SJC on Monday allowed a question reforming the state’s liquor licensing scheme to proceed. On Tuesday, the court threw out a question governing the employment status of drivers for ride-hailing companies on the grounds that it included two unrelated policy provisions. A constitutional amendment increasing the tax rate on income over $1 million is expected to be on the ballot, although the SJC has not yet ruled in a case that could change the language of the summary that appears on the ballot. 

One wild card is whether the Massachusetts Republican Party and its allies will gather enough signatures to get a referendum on the ballot repealing the recently passed law allowing individuals without legal immigration status to get a Massachusetts driver’s license.