Does Arkansas's cleft-palate and craniofacial insurance coverage law apply to Medicaid, and how much dental work does it require an insurer to cover?

Subject

Whether a Medicaid program is a “health benefit plan” under Arkansas's cleft and craniofacial coverage statute, and when the statute requires dental coverage.

Plain-English summary

Representative Carlton Wing asked whether Medicaid falls within the “health benefit plan” definition in A.C.A. § 23-79-1501. The AG answered, “Sometimes.” Medicaid comprises programs with different structures. The definition does not expressly include or exclude Medicaid, although other Arkansas statutes do. The AG says a program qualifies if it is an individual, blanket, or group plan, policy, or contract for healthcare services, issued or delivered in Arkansas by one of the insurer or plan entities listed in the definition.

The opinion describes traditional fee-for-service Medicaid and private Marketplace plans used by many Medicaid expansion beneficiaries. PDF footnote 4 also cites Arkansas statutes on private risk-based provider organizations and the state's PASSE program; footnote 9 notes that another statute says a health benefit plan may be offered by a PASSE risk-based provider organization. The AG does not decide whether traditional Medicaid, a Marketplace plan, or any PASSE product meets § 23-79-1501's definition. His answer requires examining each program's actual structure.

On dental care, a covered health benefit plan must cover care related to reconstructive surgery when an approved cleft-craniofacial team determines it is medically necessary to improve a functional impairment caused by a craniofacial anomaly. The AG says comprehensive dental care could qualify if that team makes the required determination. He cannot decide whether it is necessary in a particular case.

What this means for you

If your child has a craniofacial anomaly

Identify the specific coverage program and ask which terms apply to it. The AG did not decide whether a named Medicaid program falls under this Arkansas insurance mandate. For a plan that does fall under it, the relevant question for dental care is whether an approved cleft-craniofacial team determines that the care is related to reconstructive surgery and medically necessary to improve the anomaly's functional impairment.

If you are part of a cleft-craniofacial team

The opinion places the medical-necessity determination with an approved team. It says comprehensive dental work may qualify in some cases, but the AG cannot make a patient-specific finding. Its coverage test links the dental care to reconstructive surgery and the functional impairment resulting from the anomaly.

If you administer a Medicaid program or health plan

Apply the three elements of § 23-79-1501's “health benefit plan” definition to your specific program. The funding label “Medicaid” alone does not decide the issue. Footnotes about PASSE and Marketplace arrangements illustrate different structures; they do not classify either arrangement under this particular mandate.

If you are reviewing a dental claim

For a plan within the statute, the AG reads the dental-care requirement together with the team's medical-necessity finding. The opinion does not say that every dental service is covered or rule out comprehensive care where a team finds it necessary on the statutory terms.

Common questions

Is Medicaid automatically included or excluded?

Neither. The AG answered “Sometimes” and said eligibility under the definition depends on how the particular Medicaid program operates.

Did the AG conclude that PASSE plans are covered?

No. PDF footnote 4 mentions PASSE, and footnote 9 cites a separate statute under which a health benefit plan may be offered by a PASSE risk-based provider organization. The AG did not apply § 23-79-1501's three elements to a specific PASSE plan.

Did the AG conclude traditional fee-for-service Medicaid is excluded?

No. He describes it as a system in which the state generally pays providers directly, but does not expressly classify it under § 23-79-1501.

Can the mandate ever cover comprehensive dental care?

Yes, if an approved cleft-craniofacial team determines that the care is related to reconstructive surgery and medically necessary to improve a functional impairment resulting from the anomaly. The AG does not decide whether that test is met for any patient.

Can the AG decide whether a particular dental procedure is necessary?

No. He says the scope of necessary dental care is fact-bound and that his office does not make those findings in an opinion.

Background and statutory framework

A.C.A. § 23-79-1501(2)(A) defines a “health benefit plan” by the kind of plan or contract, its issuance or delivery in Arkansas, and the type of issuing entity. The definition's listed inclusions and exclusions do not name Medicaid. PDF footnote 3 contrasts other Arkansas definitions that expressly include Medicaid with one that expressly excludes it; footnotes 4 and 9 identify different Medicaid program structures without resolving their classification here.

A.C.A. § 23-79-1502(a)(1) requires covered plans to pay for reconstructive surgery and related medical care for a person with a craniofacial anomaly, conditioned on the approved team's finding of medical necessity to improve a resulting functional impairment. Subsection (b) includes dental care within medical care. The AG reads these conditions together.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2025-014
April 29, 2025
The Honorable Carlton Wing
State Representative
2513 McCain Boulevard, Suite 208
North Little Rock, Arkansas 72116
Dear Representative Wing:
I am writing in response to your request for my opinion about Act 373 of 2015 and Act 955 of 2021. You ask:

1. Under A.C.A. § 23-79-1501, is Medicaid considered a "health benefit plan"?

Brief response: Sometimes. Medicaid comprises multiple programs, each of which operates differently. Whether any specific Medicaid program in Arkansas fits the definition of "health benefit plan" in A.C.A. § 23-79-1501 will depend on how that program operates.

2. Under A.C.A. § 23-79-1501, does "dental care" mean comprehensive dental care for the patient's entire oral cavity or just the part of the mouth affected by the cleft palate or craniofacial problem?

Brief response: The latter. The law requires coverage for dental care only if an approved cleft-craniofacial team determines it is "medically necessary to improve a functional impairment that results from the craniofacial anomaly." Thus, a health benefit plan must cover comprehensive dental care only if the cleft-craniofacial team makes that determination.

DISCUSSION

Question 1: Under A.C.A. § 23-79-1501, is Medicaid considered a "health benefit plan"?

A.C.A. § 23-79-1501 defines "health benefit plan" as "an individual, blanket, or any group plan, policy, or contract for healthcare services issued or delivered in this state by a healthcare insurer, health maintenance organization, hospital medical service corporation, or self-insured governmental or church plan in this state." Although the statute includes a nonexhaustive list of plans that are explicitly included and excluded from the term "health benefit plan," Medicaid is not listed. This contrasts with other sections in the Arkansas Code that define "health benefit plan" to either explicitly include or exclude Medicaid.

Medicaid comprises multiple programs, each of which operates differently. For example, traditional Medicaid in Arkansas is "almost entirely a fee-for-service system," where "the state pays health care providers directly for each service provided to the Medicaid enrollee." But after the Affordable Care Act's Medicaid expansion, many Medicaid beneficiaries "must enroll in private insurance plans offered through Arkansas's … Health Insurance Marketplace, instead of through traditional Medicaid." For these beneficiaries, only the individual's premiums are covered by Medicaid funds; the State does not directly pay providers for services.

Each Medicaid program's structure determines whether it is a "health benefit plan" in § 23-79-1501. Some Medicaid programs are likely "health benefit plans" in § 23-79-1501; some are likely not. A Medicaid program will be a "health benefit plan" if the program has the following three elements: (1) it is "an individual, blanket, or group plan, policy, or contract for healthcare services" (2) that is "issued or delivered in this state" (3) "by a healthcare insurer, health maintenance organization, hospital medical service corporation, or self-insured governmental or church plan in this state."

Question 2: Under A.C.A. § 23-79-1501, does "dental care" mean comprehensive dental care for the patient's entire oral cavity or just the part of the mouth affected by the cleft palate or craniofacial problem?

Health benefit plans, as defined in A.C.A. § 23-79-1501, must cover "reconstructive surgery and related medical care" for a person "who is diagnosed as having a craniofacial anomaly." But this duty only applies if an "approved cleft-craniofacial team" determines that "the surgery and treatment are medically necessary to improve a functional impairment that results from the craniofacial anomaly." "Medical care" is then defined to "include coverage for … dental care."

Thus, dental care is covered only if it is "related" to "reconstructive surgery" and is "medically necessary to improve a functional impairment that results from the craniofacial anomaly." The scope of "medically necessary" dental coverage is a fact-bound determination that must be made by an "approved cleft-craniofacial team."

It is possible that in some situations an approved cleft-craniofacial team will determine that comprehensive dental care is "medically necessary." But this Office is not a factfinder when issuing opinions, so I cannot opine whether comprehensive dental care will be medically necessary in any specific instance.

Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General

1 A.C.A. § 23-79-1501(2)(A).
2 Id. § 23-79-1501(2)(B)–(C).
3 Compare id. §§ 23-79-1601(2), -1801(1), -2202(2), -2401(3), -2702(5), -2801(1) (explicitly including Medicaid in the definition of “health benefit plan”), with id. § 23-79-2002(1)(B) (explicitly excluding Medicaid from the definition of “health benefit plan”), and id. § 4-88-117(b)–(c) (separately listing health benefit plans and Medicaid).
4 Compare A.C.A. § 20-77-107 (requiring the Department of Human Services to establish and maintain traditional Medicaid program), with id. §§ 20-77-2701 to -2709 (allowing private “risk-based provider organizations” to enroll certain Medicaid beneficiaries and receive “capitated payments” from the State for those services), and PASSE – Provider-Led Arkansas Shared Savings Entity, Ark. Dep’t of Human Services, https://humanservices.arkansas.gov/divisions-shared-services/medical-services/healthcare-programs/passe/ (last visited Apr. 8, 2025). To access the Arkansas Department of Human Services’ “Medicaid Quick Chart,” which identifies over 20 Arkansas Medicaid programs, visit DCO Policies, Ark. Dep’t of Human Services https://humanservices.arkansas.gov/divisions-shared-services/county-operations/division-policies/ (last visited Apr. 10, 2025).
5 Robert B. Leflar, Red-State Health Reform: Threading the Political Needle, 24 Annals Health L. 410, 427 (2015).
6 Ashley Bassel Griffith, Hidden until the End: The Need to Inform Medicaid Enrollees of Estate Recovery Costs before Their Death, 32 Geo. J. on Poverty L. & Pol’y 1, 11 (2024).
7 Leflar, supra note 5, at 417–18.
8 Id. at 418.
9 See A.C.A. § 17-105-125(b) (stating that some “health benefit plan[s] [are] provided by … the Arkansas Medicaid Program”); id. § 17-80-404(b)(3) (same); id. § 23-79-1905(c)(1) (identifying that a health benefit plan may be offered by a risk-based provider organization under the PASSE program).
10 Id. § 23-79-1501(2)(A).
11 Id. § 23-79-1502(a)(1).
12 Id.
13 Id. § 23-79-1502(b).
14 Id. § 23-79-1502(a)(1).
15 Id.
16 E.g., Ark. Att'y Gen. Ops. 2024-092, 2017-088, 2007-308.