Health Law Daily Dental work connected with cancer treatment appropriately excluded from Medicare Part B coverage
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Tuesday, January 3, 2017

Dental work connected with cancer treatment appropriately excluded from Medicare Part B coverage

The ambiguities in the language of Medicare Part B’s dental services exclusion and the incident-and-integral exception to the exclusion do not open the door for a Medicare beneficiary to receive benefits for non-routine dental work, including extractions and implants performed to alleviate the side effects of cancer treatment 14 years after the successful conclusion of treatment. Likewise, where the HHS Secretary announces the amendment of regulations to reflect changes to the Medicare Act in order to conform to statute, the announcement meets the notice requirements of the Administrative Procedures Act (APA) (Lodge v. Burwell, December 30, 2016, Arterton, J.).

The Medicare beneficiary, who had years prior been diagnosed with cancer of the mouth, brought a motion for summary judgment to reverse a determination of the Medicare Appeals Council (MAC), which denied him Medicare Part B coverage for dental extractions and implants performed to alleviate the side effects of radiation therapy, some 14 years after his successful cancer treatment. He based his motion for summary judgment on two causes of action. In his first cause of action, he argued: (1) that the statutory language unambiguously provides for coverage of the dental services he received; and, (2) in the alternative, the dental services he received fell into the incident-and-integral exception to the dental services exclusion. In his second cause of action, he argued that fair notice of proposed amendments to Medicare implementing regulations relative to excluded dental services had not been provided, in violation of the Administrative Procedure Act (APA). The HHS Secretary brought a cross-motion for summary judgment.

Medicare Part B excludes from coverage dental services in connection with the care, treatment, filling, removal, or replacement of teeth, or structures directly supporting the teeth, except for inpatient hospital services in connection with such dental procedures when hospitalization is required because of (1) the individual’s underlying medical condition and clinical status; or (2) the severity of the dental procedures. The language of the Medicare Act does not draw a distinction between routine and non-routine dental services; rather, it "is part of a comprehensive statutory scheme that generally excludes payment for routine and non-routine dental services alike, but permits payment for complex surgeries." The incident-and-integral exception articulated in the Medicare Benefit Policy Manual (MBPM) provides that an otherwise non-covered procedure has to satisfy three requirements in order to be covered—the procedure would have to be performed (1) as incident to and as an integral part of a covered procedure; (2) by the same person who performed the covered procedure; and (3) on the same occasion as the covered procedure.

In the case at hand, the primary purpose of the Medicare beneficiary’s dental services was to remove and replace teeth, and not to treat the cancer or perform some other covered procedure; therefore, the dental services fell within the exclusion, even where the exclusion’s "in connection with" language is ambiguous. The Medicare beneficiary’s dental services cannot plausibly be interpreted as "in connection with" his ongoing treatment for cancer; therefore, they must be understood as services rendered in connection with the care, treatment, removal, and replacement of teeth—services specifically excluded by the language of the Act. Finally, the notice-and-comment rulemaking requirements of the APA require an agency to provide interested parties with notice of and an opportunity to comment on amendments to regulations. The HHS Secretary provided more than a general notice of the adoption of a new standard announcement; she announced that the regulations would be amended to reflect changes to the Medicare Act, including the dental services exclusion. Though not ideal, it was sufficient to put interested persons on notice of the amendment. The district court denied the Medicare beneficiary’s motion for summary judgment on both counts and granted the Secretary’s cross-motions for summary judgment.

The case is Civil No. 3:15-cv-390 (JBA).

Attorneys: Wey-Wey Kwok (Center for Medicare Advocacy) for Henry Lodge. Carolyn Aiko Ikari, U.S. Attorney's Office, for Sylvia Mathews Burwell, Secretary, U.S. Department of Health and Human Services.

Companies: U.S. Department of Health and Human Services

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