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What is Illegal About Disclosing Fee Schedules?

June 6, 2022

Question: I have a question about dental plan fees. At least one dental plan pays dentists new to its network less than it pays dentists who have been in its network for several years. Several dental plans pay dentists in different geographic areas different fees for the same services. I have always wanted to know how the fees that I’m paid by the dental plans I participate with measure up to what is paid by other dental plans, in different areas and what the age-based differences are when applicable. Dental plans consistently refuse to publish their fee schedules or even tell me on a percentile basis where my fees are. Some dental plans claim it would be an antirust violation or otherwise illegal to make fee schedule information generally known. Is this true, or just an excuse?

Answer: An excuse.

Why dental plans do not disclose their fee schedules only the dental plans can answer. Perhaps they do not want to make it easy for the competitors to know what they pay, and/or easy for its network dentists to compare these fees to those paid by competing dental plans. In other words, they may fear the competition this would create.

Disclosing fee schedule information, in and of itself, would not be a violation of antitrust or any other law. An antitrust violation occurs when competitors enter into agreements or understanding to engage in activities that unreasonably restrain competition. An agreement between dental plans on what fees they will pay and an agreement between dentists to only participate with certain dental plans and not others would be examples of “per se” violations of the antitrust laws. This means that the very existence of the agreement is all that must be proven; no defense of the agreement is allowed.

Read the complete Q&A in the Journal of the Michigan Dental Association on page 22.

About the author:

Daniel J. Schulte answer questions about health care lawDaniel J. Schulte has more than 25 years of experience helping clients solve tough problems and capitalize on opportunities that require a blend of business and legal expertise. His practice focuses on addressing the legal, business, licensing, and regulatory challenges of health care professionals, organizations, and facilities. Dan understands how legal issues impact business objectives and, as a result, offers his clients practical, results-oriented advice. He is a Certified Public Accountant, former managing partner and current executive committee member of the firm. Dan also serves as co-chair of the firm’s Health Care Practice Group.

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