C.R.S. § 10-16-121.5: Prohibited contract provisions in contracts between carriers and providers for dental care services - definitions.

(1) A contract between a carrier and a dentist licensed to practice under article 220 of title 12 must not require, directly or indirectly, that a dentist who is a participating provider provide services to a covered person at a fee set by, or subject to the approval of, the carrier unless:

(a) The services are covered services under the person's policy; and

(b) The carrier provides payment for the services under the person's policy in an amount that is reasonable and not nominal or de minimis.

(2) The dentist may charge the covered person for noncovered items or services in any amount determined by the dentist and agreed to by the patient that is equal to, or less than, the usual and customary amount that the dentist charges individuals who do not have coverage for such items and services.

(3) If the commissioner determines that a carrier has not complied with this section, the commissioner shall institute a corrective action plan that the carrier shall follow or may use any of the commissioner's enforcement powers to obtain the carrier's compliance with this section.

(4) As used in this section:

(a) "Affirmative consent" means a dental provider's express consent to a third party accessing the dental provider's dental care services and contractually agreed-upon discounts. The terms of the affirmative consent must be clear and readily understandable. Affirmative consent must include the dental provider's signature. The signature may be an electronic signature if the form of the signature is recognized as a valid signature under applicable federal or state law, including checking a box indicating affirmative consent.

(b) "Covered services" means dental care services for which:

(I) Reimbursement is available under a covered person's plan contract; or

(II) A reimbursement would be available but for the application of contractual limitations, such as deductibles, copayments, coinsurance, waiting periods, annual or lifetime maximums, frequency limitations, alternative benefit payments, or any other contractual limitations.

(c) "Third party" means an entity that enters into a third-party network lease agreement with a carrier or a dental benefits administrator.

(d) "Third-party network lease agreement" means an agreement or contract entered into between a carrier or a dental benefits administrator and a third party to gain access to the dental care services and contractually agreed-upon discounts provided by a participating provider that has entered into a contract with the carrier or the dental benefits administrator.

(5) A carrier shall not enter into a third-party network lease agreement to provide access to dental care services or contractually agreed-upon discounts provided by a dental provider who is contracted as a participating provider with the carrier, unless the participating provider gives affirmative consent to allow the third party to access the participating provider's dental care services and contractually agreed-upon discounts.

(6) A carrier shall not cancel or otherwise terminate a contract with a participating provider on the grounds that the participating provider refuses to allow access by a third party to the dental care services and contractually agreed-upon discounts provided by the participating provider. When initially contracting with a dental provider, a carrier shall not refuse to contract with the dental provider solely on the basis that the dental provider does not consent to allow a third party to access the dental provider's dental care services and contractually agreed-upon discounts.

(7) If a participating provider gives affirmative consent to allow a third party to access the participating provider's dental care services and contractually agreed-upon discounts through a third-party network lease agreement entered into between a carrier and a third party, the carrier shall:

(a) Allow the participating provider the option of contracting directly with the third party instead of allowing the third party to access the participating provider's services and contractually agreed-upon discounts through the third-party network lease agreement;

(b) Require that the third-party network lease agreement obligate the third party to comply with all applicable terms, fee schedules, limitations, and conditions of the contract between the carrier and the participating provider;

(c) At the time a contract between a carrier and a participating provider is entered into, renewed, or extended, or whenever there is a material modification to the contract relevant to granting access to a third party through a third-party network lease agreement:

(I) Give to the participating provider, in writing or electronically, a list of all third parties known by the carrier to which the carrier has provided or will provide access to the dental care services and contractually agreed-upon discounts provided by the participating provider; and

(II) Allow the participating provider to remove consent to participate in a third-party network lease agreement;

(d) Maintain a website through which the participating provider may obtain a list, reviewed every ninety days and, if needed, updated, of all third parties that have access to the participating provider's dental care services and contractually agreed-upon discounts;

(e) Require a third party to identify on each remittance or explanation of payment sent to the participating provider the source of any contractual discount in rates taken by the third party;

(f) Notify the participating provider at least thirty days before the effective date of a new third-party network lease agreement;

(g) Notify each third party described under subsection (7)(c)(I) or (7)(d) of this section of the termination of the contract between a carrier and a participating provider at least thirty days before the effective date of the termination; and

(h) Make available to the participating provider within thirty days after the participating provider's request a copy of the contract currently in force that was relied upon by the carrier in the adjudication of the participating provider's claim.

(8) The notice required under subsection (7)(f) or (7)(g) of this section may be provided by any reasonable means, including written notice or electronic communication.

(9) Subject to any applicable continuity of care requirements, agreements, or contractual provisions, a third party's right to access a dental provider's services and contractually agreed-upon discounts terminates on the date the contract between the carrier and the provider is terminated.

(10) This section does not apply if:

(a) A provider network contract for dental services is provided to beneficiaries of programs for medical assistance sponsored by the state, including programs administered pursuant to the "Children's Basic Health Plan Act", article 8 of title 25.5, and the "Colorado Medical Assistance Act", articles 4, 5, and 6 of title 25.5, to the extent the provider network contract is provided to beneficiaries of these programs; or

(b) Access to a provider network contract is granted to a carrier or an entity operating in accordance with the same brand licensee program as the contracting entity, and a list of the carriers or entities with the same brand licensee program as the contracting entity is made available to a provider on the contracting entity's website.