When a child gets a dental exam or dental treatment under North Carolina's Medicaid EPSDT program (Early Periodic Screening, Diagnosis and Treatment), do the regular Medicaid prior-approval rules and copayment rules apply, or are EPSDT dental services treated separately?

Plain-English summary

NC Department of Human Resources Secretary Sarah Morrow asked the AG to clarify a Medicaid administrative question that affected pediatric dental access. The 1979-81 Appropriations Act had imposed a "prior approval" requirement on Medicaid dental services to control utilization. The question: did the prior-approval requirement also apply to dental services provided as part of EPSDT (Early and Periodic Screening, Diagnosis and Treatment), the federal-mandate program that screens Medicaid children and treats what is found? And what about copayment, did Medicaid recipients owe a copay on EPSDT dental?

Assistant AG Steven Shaber, for AG Edmisten, said no to both. EPSDT dental was distinct from ordinary dental services under both federal and state law, and the prior-approval / copay rules for ordinary dental did not apply to EPSDT dental.

The federal framework draws a clear line. The Social Security Act treats EPSDT (§ 1905(a)(4)(B)) and general dental services (§ 1905(a)(10)) as separate categories. EPSDT is mandatory; general dental services are optional. The implementing regulations follow the same distinction: 42 C.F.R. § 441.56 governs EPSDT dental treatment after a direct referral, while 42 C.F.R. § 440.100 governs general dental services. The 1979-81 NC Appropriations Act mirrored the federal structure by treating "Dental Services" and "EPSDT Screening Services" as separate appropriation categories.

On prior approval: the Appropriations Act language applying prior approval read, "Funds appropriated to the Department of Human Resources for dental services shall be dispensed only with prior approval . . . ." The General Assembly placed no comparable language on the EPSDT appropriation. The textual contrast meant the General Assembly had imposed prior approval on ordinary dental only, not on EPSDT dental. The AG also noted a substantive reason for the distinction: EPSDT dental work is always preceded by a "direct referral" from a screening provider, so there is built-in gatekeeping that makes additional prior approval unnecessary.

On copayment: federal regulation at 42 C.F.R. § 447.53(a)(1) bars copayments on EPSDT services for the categorically needy. For the medically needy, the state could impose a copay if it chose to, but the Appropriations Act expressly said "no co-payment is required for EPSDT related services." So no copay for EPSDT dental regardless of recipient category. The fact that copay did apply to ordinary dental services was irrelevant because the two service categories were distinct.

This was a Medicaid access opinion. The practical effect was to make EPSDT dental care, the route by which NC's Medicaid-eligible children would get cavities filled and braces evaluated and oral surgery handled, immediately available on the dentist's clinical judgment, without a county DSS pre-authorization hurdle and without an out-of-pocket cost barrier. EPSDT's whole rationale was early detection and prompt treatment; an opinion to the contrary would have largely defeated that purpose.

Currency note

This opinion was issued in 1981. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Federal Medicaid law has been substantially amended since 1981, including by OBRA 1989 (which significantly strengthened EPSDT), the ACA (which expanded Medicaid eligibility in many states), and ongoing rulemaking on cost-sharing rules. NC's specific Medicaid administrative provisions are now in different statutory and regulatory locations, and the prior-approval / copay framework has evolved. Anyone administering or relying on current NC Medicaid EPSDT rules must consult the current 42 C.F.R. provisions and the current NC Medicaid state plan and bulletins.

Background and statutory framework

Title XIX of the Social Security Act establishes Medicaid as a joint federal-state program. States that participate (all of them now, but participation is voluntary) receive federal match dollars for medical assistance provided to defined eligible populations. The Act lists seventeen categories of medical care that a state may cover; some are mandatory and some are optional.

EPSDT is one of the mandatory categories. It requires the state to provide periodic screening for all Medicaid-eligible children under age 21, including dental screening, plus treatment for conditions identified through the screening. The treatment requirement is broad: any service that could be covered under Medicaid generally, even if the state has not elected to cover it as an optional service for adults, must be provided to EPSDT-eligible children when needed.

The dental piece of EPSDT was, at the time of this 1981 opinion, governed by 42 C.F.R. § 441.56. The regulation required dental services for EPSDT children when there was a direct referral to a dentist (i.e., when the screening had identified a dental concern that needed evaluation or treatment). This made EPSDT dental a downstream service triggered by upstream screening, with the screening as the gatekeeping mechanism.

General Medicaid dental services for adults (§ 1905(a)(10) and 42 C.F.R. § 440.100) were optional. NC had elected to cover them but was free to impose utilization controls. The 1979-81 Appropriations Act's prior-approval requirement was one such control: dentists had to get DHR approval before delivering certain dental services to ensure that limited Medicaid dollars went to medically necessary care.

The AG's opinion did the basic statutory-construction work of treating two categories the law treats as distinct as in fact distinct. The temptation, especially under budget pressure, was to apply the prior-approval rule to all dental work to maximize administrative oversight. The AG resisted that temptation by following the legislative and regulatory architecture: separate categories, separate rules, EPSDT exempt from the controls placed on the optional service.

Common questions

Could a dentist see an EPSDT child without DHR pre-authorization?

Yes. The dentist's clinical judgment after receiving the direct referral from the EPSDT screener was the only authorization needed. The dentist would later bill Medicaid for the services rendered. Prior approval from DHR was not part of the EPSDT dental pathway.

Did EPSDT cover only emergency dental?

No. EPSDT dental treatment included preventive care (cleanings, fluoride), restorative care (fillings, crowns), and corrective care (extractions, orthodontia where medically necessary). The breadth followed from the federal mandate to treat conditions identified through screening.

Could the state limit EPSDT dental in other ways?

The state had limited room to limit EPSDT services because of the federal mandate. NC could require providers to be enrolled in Medicaid, set fee schedules, and impose reasonable utilization review on a post-payment basis. What NC could not do was impose front-end prior approval that effectively gated access.

Did this opinion cover orthodontia?

The opinion did not address orthodontia specifically, but the EPSDT mandate covers orthodontic services when medically necessary. NC's Medicaid orthodontia coverage has its own rules and approval processes for specific orthodontic procedures, separate from this 1981 prior-approval / copay opinion.

Source

• Landing page: https://ncdoj.gov/opinions/early-and-periodic-screening-diagnosis-and-treatment-program/

Citations

• Social Security Act § 1902(a)(13)(B); 42 U.S.C. § 1396a(a)(13)(B)
• Social Security Act § 1905(a)(4)(B); 42 U.S.C. § 1396d(a)(4)(B)
• Social Security Act § 1905(a)(10); 42 U.S.C. § 1396d(a)(10)
• 42 C.F.R. §§ 440.10–440.50, 440.70
• 42 C.F.R. § 440.40(b)
• 42 C.F.R. § 440.100
• 42 C.F.R. § 440.210
• 42 C.F.R. § 440.230(c)(2)
• 42 C.F.R. § 441.56
• 42 C.F.R. § 447.53
• 1979 N.C. Sess. Laws ch. 838, § 23

Original opinion text

Requested By: Sarah T. Morrow, Secretary, Department of Human Resources

Questions: Does the prior approval process under the 1979-81 Appropriations Act, 1979 Session Laws, Chapter 838, Section 23, apply to dental services which are provided under the Early Periodic Screening, Diagnosis and Treatment Program?

• Does the co-payment process under the 1979-81 Appropriations Act, 1979 Session Laws, Chapter 838, Section 23, apply to the dental services which are provided under the Early Periodic Screening, Diagnosis and Treatment Program?

Conclusions: No, although the prior approval process applies to most dental services under Medical Assistance, dental services which are part of the Early and Periodic Screening, Diagnosis and Treatment Program are distinct and separate and are not subject to prior approval.

• No.

The question is whether the prior approval process, which was established by the General Assembly in the 1979-81 Appropriations Act as a means to control the utilization of certain Medical Assistance (Medicaid) services, applies to those dental services which are provided under Medicaid's Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT)? The answer is no, prior approval is not required for those dental services which are part of the EPSDT program. We reason as follows.

Title XIX of the Social Security Act creates the Medicaid program. There are seventeen different types of medical care and services which a state can include within Medicaid. These types of care and services are listed in Section 1905(a) of the Social Security Act, 42 U.S.C. § 1396d(a). Most of these seventeen kinds of care and services are optional, but several must be included within the State's program. Social Security Act, § 1902(a) (13)(B); 42 U.S.C. § 1396a(a)(13)(B).

One of the types of care and treatment which is authorized by the Social Security Act is "early and periodic screening and diagnosis of individuals who are eligible under the (Medicaid) plan and are under the age of twenty-one." Social Security Act, § 1905(a)(4)(B); 42 U.S.C. § 1396d(a)(4)(B). Another of the possible Medicaid services is "dental services." Social Security Act § 1905(a) (10); 42 U.S.C. § 1396d(a)(10). Of these two services, the former, EPSDT, is mandatory while the latter, dental services, is optional. Social Security Act, § 1902(a)(13)(B); 42 U.S.C. § 1396a(a)(13)(B).

The Social Security Act provides that the Secretary of Health and Human Services may promulgate regulations defining the content of the EPSDT program. Social Security Act, § 1905(a)(4)(B); 42 U.S.C. § 1396(a)(4)(B). Among the mandatory EPSDT services are dental screening and treatment for children who have been directly referred to a dentist, 42 C.F.R. §

441.56. These dental services which are part of EPSDT are plainly distinct from the dental services which are provided for in § 1905(a)(10) and 42 C.F.R. § 440.100 and which are made optional for the states by § 1902(a)(13)(B) and 42 C.F.R. § 440.210.

In short, the Social Security Act and the Code of Federal Regulations clearly distinguish between dental services which are part of Medicaid's mandatory EDSPT Program and other dental services which are among Medicaid's options. The question to be answered is whether the requirement of prior approval for dental care applies to both the mandatory EPSDT dental services and the optional ordinary dental services. For the following reasons, we conclude that prior approval only applies to ordinary dental services, not to EPSDT dental services. In the 1979-81 Appropriations Act, 1979 Session Laws, Chapter 838, Section 23, the General Assembly spoke separately as to "Dental Services" and EPSDT Screening Services." In drawing this clear distinction, the General Assembly conformed our law to the Social Security Act. Speaking specifically to its appropriation for dental services, the General Assembly said (as it was permitted to say under 42 C.F.R. § 440.230 (c)(2)) the following:

"Funds appropriated to the Department of Human Resources for dental services shall be dispensed only with prior approval as required by this paragraph. . . ."

This language just quoted is the so-called "prior approval" requirement for dental services. No comparable language is attached to the appropriation for EPSDT services.

From the text of the Appropriations Act, we can only conclude that the General Assembly has placed a prior approval requirement on ordinary dental services but not on EPSDT dental screening and treatment. We note in passing that this distinction between EPSDT dental work and all other dental services is all the more reasonable in that all EPSDT dental work is done by "direct referral." Given this requirement for referrals, there is concomitantly less need for prior approval by the Medicaid agency.

Turning to the second question, we believe that the co-payment process does not apply to dental services under the EPSDT program. The Code of Federal Regulations clearly identifies those services for which co-payments may be allowed. According to 42 C.F.R. § 447.53(a)(1), "The (State Medicaid) plan must provide that the Medicaid agency does not impose any deductible, co-insurance, co-payment, or similar charge upon categorically needy individuals for those services listed in sections 440.10-440.50 and 440.70 of this subchapter." (Emphasis added.) EPSDT program services are defined in § 440.40(b) and, therefore, are among the services for which a co-payment may not be charged to the categorically needy. As to the medically needy, 42

C.F.R. § 447.53(b) says, "The plan may impose a deductible, co-insurance, co-payment or similar charge upon medically needy persons for any service under this plan." Thus, the State could charge a co-payment to medically needy persons for EPSDT services, if it chose to do so. However, the State chooses not to do so. The Appropriations Act, 1979 Session Laws, Chapter 838, Section 23, says, "no co-payment is required for EPSDT related services. . . ." Therefore, as to both the categorically needy and the medically needy, the prohibition against a co-payment applies to EPSDT services, including EPSDT dental services. The fact that the co-payment requirement does apply to the other dental services is irrelevant because, as we have seen, these other dental services are distinct from EPSDT dental services.

Rufus L. Edmisten
Attorney General

Steven Mansfield Shaber
Assistant Attorney General