OGC Opinion No. 06-08-08

The Office of General Counsel issued the following opinion on August 3, 2006, representing the position of the New York State Insurance Department.

Re: Insurance Coverage for the Non-Surgical Treatment of Temporomandibular Joint Disorders.

Questions Presented:

1. May a health insurer exclude coverage for the non-surgical treatment of Temporomandibular Joint (TMJ) disorders?

2. May a dental insurer exclude coverage for the non-surgical treatment of TMJ disorders?

3. If a dental insurer denies coverage entirely for the non-surgical treatment of TMJ disorders, must the dental insurer apply the insured's payment towards satisfying the annual deductible under the dental policy?

Conclusions:

1. A health insurer may not specifically exclude coverage for the non-surgical treatment of TMJ disorders. When assessing whether coverage for a TMJ disorder is available under a medical policy, the health insurer must make a factual determination on a case-by-case basis as to whether the TMJ disorder is dental or medical in nature. If the condition is determined to be medical, the health insurer must provide coverage, subject to the terms of the contract. If the condition is dental in nature, the insurer may exclude coverage based upon the permissible dental exclusion in Section 52.16(c) of N.Y. Comp. Codes R. & Regs. tit. 11, Part 52 (Regulation 62).

2. It depends upon the terms of the insurance contract.

3. It depends upon the terms of the insurance contract. However, dental insurers do not typically apply the costs of uncovered services toward satisfying any deductibles required by the contract.

Facts:

The inquirer is a dentist who states that he has been treating patients with TMJ disorders for 27 years and has witnessed a progressive deterioration of coverage under both major medical and dental insurance contracts. In recent years, when claims are submitted to health insurers they have increasingly denied benefits. When claims are submitted to dental insurers, they too have denied benefits. He would like to know whether coverage for the non-surgical treatment of TMJ disorders may be legally excluded from both medical and dental insurance contracts. He would also like to know whether, under circumstances where a dental insurer has denied coverage for the non-surgical treatment of TMJ disorders, the dental insurer must apply the insured's payment towards satisfying the annual deductible under the dental insurance contract.

Analysis:

Question No. 1

A health insurance policy issued in New York State may not contain a blanket exclusion for the treatment of TMJ disorders. N.Y. Comp. Codes R. & Regs. tit. 11, § 52.16(c) of Regulation 62 prohibits an accident and health insurance policy from limiting or excluding coverage by type of illness, accident, treatment or medical condition, except as delineated in that section. Thus, a New York authorized health insurer may not specifically exclude coverage for the non-surgical treatment of TMJ disorders.

However, section 52.16(c)(9) permits an exclusion for dental care or treatment, except for such care or treatment due to accidental injury to sound natural teeth within 12 months of the accident and except for dental care or treatment necessary due to congenital disease or anomaly. This exclusion is permitted because medical coverage is designed to provide coverage for illnesses and accidents and not necessarily to include coverage for dental services. However, there are questions regarding whether TMJ disorders and their non-surgical treatment are medical or dental in nature and whether a health insurer may properly deny a claim for TMJ disorder services based upon the permissible dental exclusion contained in Section 52.16(c)(9) of Regulation 62.

In Masella v. Blue Cross and Blue Shield of Connecticut, Inc., 936 F.2d 98 (2d Cir. 1991), plaintiff's health insurer denied claims for non-surgical treatment of plaintiff's TMJ disorder on the ground that the health insurance contract excluded coverage for dental treatments. 936 F.2d at 100. The United States Court of Appeals relied upon expert testimony that the plaintiff presented in the district court, which stated that the temporomandibular joint is essentially similar to any other joint in the body. Id. at 105. The treatments commonly used for TMJ disorders, such as physical therapy and transelectrical neural stimulators (TENS) treatment, are similar to the treatment of joint problems elsewhere in the body and are primarily medical in nature. Id. However, the experts also recognized that TMJ disorders can have a dental component, since the operation of the teeth can have an effect on the operation of the jaw joint. The experts explained that an orthotic, like the one given to the plaintiff, used the teeth to reposition the temporomandibular joint, but did not treat the teeth themselves. Id. at 105-106.

The court also considered the statements of Connecticut Society of Oral and Maxillofacial Surgeons, appearing as amicus curiae, which described TMJ disorders and their treatment as being focused on a disorder of the jaw rather than of the teeth. Id. at 106. The court held that the plaintiff's health insurer was required to pay for non-surgical treatment of a TMJ disorder because the treatment performed on the plaintiff focused on the joint that connects the skull to the jaw rather than on the teeth and was, therefore, medical and not dental in nature. The Masella decision seemed to imply that all TMJ disorders and their non-surgical treatment are medical and not dental in nature; however, the decision did little to clarify the issue and other courts have wrestled with it. ¹

In view of the questions surrounding the medical or dental nature of TMJ and the permissible dental exclusion contained in Section 52.16(c)(9), when assessing whether coverage for TMJ disorders is available under a health insurance policy, the health insurer must make a factual determination on a case-by-case basis as to whether the problem is dental or medical in nature. The Department does not have the expertise to determine whether a given condition or treatment is medical or dental in nature.

If the condition is determined to be medical in nature, the health insurer must provide coverage, subject to the terms of the contract. Coverage for the TMJ services must be provided to the same extent that coverage would be furnished for any other medical condition. In such instance, the dental exclusion in Section 52.16(c) may not be the basis for a denial of coverage. If the condition is dental in nature, the health insurer may exclude coverage based upon the permissible dental exclusion in Section 52.16(c).

In assessing whether coverage for TMJ disorders is available under a health insurance policy, claims relating to TMJ should not be reviewed with any preconception of the medical or dental nature of the condition. The licensure of the provider (i.e. physician or dentist) rendering services for TMJ disorder should not be dispositive in determining whether the condition is a medical problem. Reimbursement must be provided under a health insurance contract for services rendered by a dentist acting within the scope of his or her license if the TMJ disorder is medical in nature and the services performed are covered under the contract when furnished in treatment of a medical condition.

Question No. 2

In regard to dental insurers, a dental insurance contract may be designed to cover only certain limited dental services, which may not include those ordinarily provided in the treatment of TMJ. Thus, the question of whether a dental insurer may properly exclude coverage for TMJ would depend on the terms of the insurance contract.

Question No. 3

Whether a dental insurer must apply the insured's payment towards satisfying the annual deductible under the dental insurance contract would also depend on the terms of the insurance contract. However, dental insurers do not typically apply the costs of uncovered services toward satisfying any deductibles required by the contract.

For further information you may contact Associate Attorney Pascale Jean-Baptiste at the New York City Office.

¹  See also Goss v. Medical Service of Dist. of Columbia, 462 A.2d 442 (D.C. 1983) (holding that the dental exclusion in the insurance contract did not apply since plaintiff's treatment for TMJ, which involved the insertion of acrylic splints that fit over plaintiff's teeth, was medical and not dental in nature and that TMJ is not a condition of the teeth); Tait v. Pilot Life Ins. Co., 465 So. 2d 888 (La. Ct. App. 2d Cir. 1985) (holding that the dental exclusion in the insurance contract did not apply because plaintiff's treatment for TMJ, which involved capping the plaintiff's teeth, did not constitute dentistry and that treatment for TMJ syndrome has traditionally been medical); Landry v. Travelers Ins. Co., 488 So. 2d 379 (La. Ct. Ap. 3d Cir. 1986) (holding that the dental exclusion in the insurance contract did not apply since plaintiff's TMJ condition was orthopedic and not dental); Blair v. Metropolitan Life Insurance Company, 974 F.2d 1219 (10th Cir. 1992) (holding that plaintiff's treatment for TMJ was covered under the insurance contract since the exclusion for "dental services" in the plan was ambiguous, but that it was not establishing a general rule regarding coverage for TMJ since different policy provisions could yield different results and further stating that plaintiff's treatment for TMJ, which involved the use of a spacer, orthodontic/orthopedic appliances and reconstructing and repositioning teeth, was medical and not dental in nature); But see Huston v. Principal Health Care, 17 Employee Benefits Cas. 1855 (D. Kansas 1993) (holding that a specific exclusion for TMJ disorders in an insurance contract issued by a Kansas insurer was sufficient to exclude medical treatment rendered for TMJ disorders).