ADA submits comments in DOJ review of state laws affecting competition 

The ADA submitted formal comments Sept. 15 to the U.S. Department of Justice and the National Economic Council, urging greater scrutiny of state laws the Association said hinder competition in the dental insurance and care sectors and have adverse effects on interstate commerce. 

Signed by ADA President Brett Kessler, D.D.S., and Elizabeth Shapiro, D.D.S., J.D., the letter was in response to the department’s Aug. 15 request for information on state laws that may have significant adverse effects on the national economy or interstate commerce, particularly as they impact small businesses. Drs. Kessler and Shapiro emphasized the challenges faced by dental professionals, many of whom are small business owners operating under a patchwork of inconsistent state regulations. 

The ADA’s main concern centers on how some state-level insurance regulations continue to shield dominant insurers from competition, even after Congress passed the Competitive Health Insurance Reform Act in 2020. This legislation removed a longstanding antitrust exemption for health and dental insurers, subjecting them to the same competition laws as other industries. However, Drs. Kessler and Shapiro said some state laws still enable anticompetitive practices. 

Among the issues raised were territorial restrictions, barriers to provider participation and contractual provisions such as most-favored-nation clauses and caps on noncovered services. Drs. Kessler and Shapiro said these provisions allow insurers to control pricing and access, contrary to the Competitive Health Insurance Reform Act’s intent. 

The letter also flagged emerging concerns about insurer ownership of dental practices, citing the acquisition of the Cherry Tree Dental practice group by Delta Dental of Wisconsin. Drs. Kessler and Shapiro warned of potential conflicts of interest when large insurance companies operate simultaneously as both payer and provider. 

“Without appropriate safeguards, this can result in treatment options being guided more by cost-control strategies than by clinical judgment,” they wrote. 

The ADA called for Department of Justice and National Economic Council coordination with federal and state agencies such as the Federal Trade Commission and Department of Health and Human Services to enhance transparency, clarify regulatory boundaries and prevent insurer dominance from distorting competition. 

“The ADA supports DOJ and NEC in their effort to identify and address state laws that impose significant adverse effects on interstate commerce and small businesses,” Drs. Kessler and Shapiro wrote. “In dental insurance, inconsistent state regulation and legacy state practices that entrench insurer dominance all have national implications.”