Puerto Rico Court strikes down Insurance Commissioner’s ruling requiring health plans to pay PPE fee
Vol. 40 - September 2023 | ©2023 by Vidal, Nieves & Bauzá, LLC. All rights reserved.
On September 22, 2023, the Puerto Rico Court of Appeals determined that Ruling Letter No. CN-2023-335-D issued by the Insurance Commissioner on May 12, 2023, was null and void. The Insurance Commissioner’s Ruling Letter required commercial health plans in Puerto Rico to continue paying dental providers in Puerto Rico a fee for COVID-19 related Personal Protection Equipment (PPE) following the American Dental Association’s CDT (Code on Dental Procedures) Code D1999 for “unspecified preventive procedures.”
The payment of this highly controversial fee to dentists in Puerto Rico (Puerto Rico was the only U.S. jurisdiction mandating its payment during the COVID emergency) to cover the cost of PPE had originally been imposed on commercial health plans shortly after the outbreak of the COVID-19 pandemic and the formal declaration by the government of a public health emergency. As a result, on June 16, 2020, the Insurance Commissioner issued an initial ruling letter requiring health plans to pay a $35.00 fee per dental office visit to cover PPE. This “COVID fee”, as it became known, was adopted to be in force until the end of the Covid emergency period or its suspension by the Commissioner of Insurance, whichever occurred first.
Nearly a full three years after commercial health plans were first ordered to pay the $35.00 COVID fee, --on May 11, 2023--, the Governor of Puerto Rico declared the end to the COVID-19 emergency. However, just one day after the COVID emergency was officially ended, --on May 12, 2023--, the Insurance Commissioner decided to issue a new ruling letter which repealed the prior $35.00 COVID fee in force during the emergency but which, in its stead, required commercial health plans in Puerto Rico to continue paying dental providers a COVID fee in an amount which needed to be notified, be fair and negotiated with the participating provider. (Emphasis added).
Delta Dental Plan of Puerto Rico, Inc., a dental plan subject to the payment of both the previous and the new COVID fee imposed by the Insurance Commissioner after the end of the COVID-19 emergency, through the Insurance Practice attorneys at Vidal, Nieves & Bauzá LLC, challenged the validity of the Insurance Commissioner’s new ruling letter requiring the continued payment of a COVID fee after the end of the COVID-19 emergency.
On July 12, 2023, they filed a Writ of Judicial Review before the Puerto Rico Court of Appeals requesting that the court declare the Insurance Commissioner’s ruling letter null and void since it mandated and imposed additional binding legal obligations upon regulated health plans and, as a result, was a legislative rule adopted by the administrative agency without complying with the notice and comment requirements of the Administrative Procedures Act of Puerto Rico.
In its appearance before the court, the Insurance Commissioner argued that the ruling letter challenged by Delta Dental was merely a “policy guide” that instructed insurers and health services organizations on the recommendations and guidelines of the ADA and CDC and, specifically, only recommended that Code D1999 continued to be used to cover [PPE] costs and strongly urged providers and insurers to negotiate the amount of the [COVID] fee as part of their contractual relationship. (Emphasis added).
The Court of Appeals, however, disagreed with the Insurance Commissioner’s interpretation of the clear language found in the challenged ruling letter and, in so doing, also considered the subsequent actions Delta Dental notified the court were being taken by the Office of the Insurance Commissioner with respect to the same.
In striking down the ruling letter the court emphasized that the language used in CN-2023-335-D with respect to the fee is, without a doubt, one of an obligation and not a mere recommendation. … it has prompted at least two (2) requests for investigation by dental healthcare providers regarding compliance with CN-2023-335-D relying on the premise that the same has the force of law and imposes an obligation to negotiate the fee. (Emphasis added). As a result, the court concluded that the challenged ruling letter is a legislative rule and not a policy guide as the [Insurance Commissioner] argued.
The Court of Appeals, therefore, issued a judgment in favor of Delta Dental of Puerto Rico, Inc. which held that Ruling Letter CN-2023-335-D was null and void with respect to the obligations it imposed on health insurers to continue to pay and negotiate a COVID fee to dental providers.
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