§ 43-28-28 — Joint negotiations by dental providers with dental insurers

North Dakota § 43-28-28

• Jurisdiction: North Dakota
• Title 43: Occupations and Professions
• Ch. 43-28: Dentists

Text

1. As authorized under this section, a dental provider and a dental insurer may enter into
voluntary non-fee-related joint negotiations. Before commencing voluntary joint
negotiations, a joint negotiation representative shall notify the attorney general of its
intent to engage in voluntary joint negotiations. The notice must be in writing and
include:
a. The matters, including terms and conditions, to be negotiated;
b. The identity and location of all dental providers participating in the voluntary joint
negotiations;
c. The identity, location, and market share of the dental insurer the dental providers
seek to engage in voluntary joint negotiations;
d. A statement explaining the circumstances create the need for voluntary joint
negotiations and the benefits anticipated from the voluntary joint negotiations;
and
e. The joint negotiation representative's procedures to ensure compliance with this
section.
2. At the time of the filing with the attorney general, the joint negotiation representative
shall provide a copy to the dental insurer of its notice and any other materials
submitted to the attorney general. The dental insurer may provide additional
information to the attorney general regarding matters described in this section.
3. The attorney general shall review the notice to determine whether the proposed
voluntary joint negotiations comply with law and public policy, and shall, within ninety
days, unless a thirty day extension is approved by the parties, notify the joint
negotiation representative and the dental insurer whether voluntary joint negotiations
are authorized under this section. The attorney general, in determining whether
voluntary joint negotiations are authorized, shall consider the following factors:
a. The stated necessity and anticipated benefits of voluntary joint negotiations;
b. The market and bargaining power of the parties;
c. A party's ability to control or steer consumers, dictate terms of contracts, impose
final or nonnegotiable terms, or dictate or limit products or services available or
offered to consumers;
d. The contract terms to be negotiated, and the contract terms' potential effect on
the ability to provide quality care or medically appropriate care without delay and
difficulty;
e. The risk of anticompetitive effects; and
f. The potential effect on price, quality, choice, or access to products or services for
consumers or others.
4. The attorney general may request additional information from the parties at any point
during the process or during the parties' negotiations.
5. Upon a determination by the attorney general that voluntary joint negotiation is
authorized under this section, and after a duly authorized officer of the dental insurer
and all dental providers seeking voluntary joint negotiations have granted written
consent, two or more dental providers practicing in the service area of the dental
insurer may jointly engage in voluntary negotiations with the dental insurer regarding
the following non-fee-related matters:
a. Definition of medical necessity and other conditions of coverage.
b. Utilization management criteria and procedures.
c. Clinical practice guidelines.
d. Preventative care and other medical management policies.
e. Patient referral standards and procedures.
f. Drug formularies and standards for prescribing off-formulary drugs.
g. Quality assurance programs.
h. Liability terms for a dental provider and dental insurer.
i. Administrative procedures.
j. Credentialing standards and procedures for selection, retention, and termination
of participating dentists.

k. Mechanisms for resolving disputes between the dental insurer and dental
providers.
l. Inclusion or alteration of a contractual term or condition, unless the inclusion or
alteration is otherwise required by federal or state law.
6. As used in this section, "fee-related matters" includes the amount of payment, the
amount of discount, procedure codes or descriptions of services covered by payment,
appropriate grouping of procedure codes, and any other matter directly relating to the
amount of reimbursements paid to or revenue received by dental providers.
7. a. Upon a determination by the attorney general that voluntary joint negotiations are
authorized under this section, dental providers may communicate with each other
and a joint negotiation representative authorized to negotiate on behalf of the
dental providers with the dental insurer concerning any contractual term or
condition to be negotiated, subject to any limitations imposed by the attorney
general. As used in this section, a "joint negotiation representative" means a
representative selected by two or more independent dental providers to engage
in voluntary joint negotiations with a dental insurer on behalf of the dental
providers.
b. The dental providers may agree to be bound by the terms and conditions
negotiated by the joint negotiation representative.
8. A person may not act as a joint negotiation representative without express permission
from the office of the attorney general.
9. a. Upon the joint negotiation representative and dental insurer determining a
voluntary agreement has been reached on contractual terms or conditions that
are the subject matter of the negotiations, the joint negotiation representative
shall submit to the attorney general, for its determination, a copy of the proposed
contract or agreed upon terms between the dental providers and the dental
insurer. At the time of the submission to the attorney general, the joint negotiation
representative shall provide a copy of the proposed materials submitted to the
attorney general to the dental insurer, which may provide additional information to
the attorney general regarding the matters in this section.
b. Within ninety days of receipt of the proposed contract or agreed upon terms, the
attorney general shall review the proposed contract or agreed upon terms and
provide a determination.
c. The attorney general may consider the following factors in reviewing a proposed
contract or term, a negotiated contract or term, and the plan of action for
implementing a negotiated contract or term under this section:
(1) Fairness of the contract and whether the contract terms are consistent with
applicable laws and regulations;
(2) Details provided about the negotiation process;
(3) The market and bargaining power of the parties;
(4) The contract terms and the benefits achieved by the parties;
(5) Potential benefit to consumers and other purchasers of dental insurance;
(6) Risk of harm to consumers and others, including the likelihood of increase in
prices or reduction in quality, choice, or access to dental care or dental
insurance;
(7) Risk of anticompetitive effects and potential effects on third parties, including
creation of barriers to entry for new market participants, unfair competition,
or exclusionary effects; and
(8) Promotion of increased infrastructure and innovation in a market.
d. Upon request from the attorney general, the joint negotiation representative, a
participating dental provider, and the dental insurer shall provide additional
information to inform the attorney general's determination under this section.
10. The attorney general may adopt rules and procedures as necessary to carry out the
responsibilities of this section.
11. This section does not apply to dental benefit plans providing covered services
exclusively or primarily to individuals who are eligible for medical assistance.

12. This section may not be construed to:
a. Permit a coordinated cessation, reduction, or limitation of dental services.
b. Affect government approval of, or otherwise restrict activity by, dental providers
which is not prohibited under federal antitrust law or require approval or contract
terms to the extent the terms are exempt from state regulation under federal law.