New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Howard Mills
Superintendent

The Office of General Counsel issued the following opinion on May 2, 2005, representing the position of the New York State Insurance Department.

RE: Discount dental club

Question Presented

Does a prepaid dental services plan, in which the dentist has contractually agreed to provide services at a discounted rate to service plan members who pay a fee to join, constitute insurance?

Conclusion

Such an arrangement would constitute the doing of an insurance business under N.Y. Ins. Law § 1101 (McKinney Supp. 2005) and require a license pursuant to N.Y. Ins. Law § 1102 (McKinney Supp. 2005), unless the fee paid by the members to the dentist for a service dependent upon a fortuitous event covers the cost of delivering the service, including the reasonable overhead.

Facts

The inquirer would like to offer to the inquirer’s patients the opportunity to pay an annual fee to join a dental service club whose members may obtain discounts on fortuitous and non-fortuitous dental services that the inquirer would provide in the office, subject to an annual maximum.

Analysis

N.Y. Ins. Law § 1101(a) (McKinney Supp. 2005) defines the terms "insurance contract" and "fortuitous event" as follows:

(1) ‘Insurance contract’ means any agreement or other transaction whereby one party, the ‘insurer’, is obligated to confer benefit of pecuniary value upon another party, the ‘insured’ or ‘beneficiary’, dependent upon the happening of a fortuitous event in which the insured or beneficiary has, or is expected to have at the time of such happening, a material interest which will be adversely affected by the happening of such event.

(2) ‘Fortuitous event’ means any occurrence or failure to occur which is, or is assumed by the parties to be, to a substantial extent beyond the control of either party.

N.Y. Ins. Law § 1101(b)(1) (McKinney Supp. 2005) further states that ". . . any of the following acts . . . shall constitute doing an insurance business . . .: (A) making, or proposing to make, as insurer, any insurance contract,. . . "

Generally, a discounted dental services plan (the "plan") in which the dentist offers health care at a discount to patients who paid a membership fee to join the plan, would constitute the doing of an insurance business because the benefits that the plan would provide would be dependent upon the happening of a fortuitous event, that being the need for dental care, which is beyond the control of either party. In the past, the Department has opined that the making of a service plan, which for a prepaid fee provides unlimited services dependent upon the happening of a fortuitous event, constitutes the doing of an insurance business under N.Y. Ins. Law § 1101(a) (McKinney Supp. 2005) and requires a license pursuant to N.Y. Ins. Law § 1102 (McKinney Supp. 2005). This is because the dental care provider bears the risk of incurring a loss if the cost of the services provided exceeds the paid fees.

However, a service plan where there is a prepaid membership fee, and certain services occasioned by the happening of a fortuitous event are offered for an additional fee per service but is discounted from the usual fee, does not constitute the doing of an insurance business, and does not require an insurance license by the Department so long as the fees cover the cost of rendering the Service, including reasonable overhead. Additionally, the Department has stated that the prepaid membership fee may include services at no or a nominal separate charge, so long as these benefits are of a non-fortuitous nature.

For example, a routine annual examination, including routine X-rays in the case of dental programs, would not be prohibited because these services are not the result of a fortuitous event. Any additional service for treatment of specific dental problems that arise fortuitously may be performed at a discounted rate, but it must cover the cost of providing the service, including reasonable overhead. Additional opinions that discuss prepaid dental service plans are available on the Department’s website at www.ins.state.ny.us.

For further information one may contact Associate Attorney Jeffrey A. Stonehill at the New York City Office.