Henry Lodge was diagnosed with life-threatening head and neck squamous cell cancer in 1996. His treatment involved radical dissection of his neck, implantation of radioactive seeds in the base of his tongue, and 30 days of direct beam radiation. The surgery and the scarring from radiation permanently impaired his ability to speak and swallow, and destroyed his salivary glands, which caused rampant tooth decay and painful oral ulcers. Years later, when the trajectory of these combined problems led to severe weight loss and poor nutrition, his oncology team decided that he required tooth extractions and implant surgery to restore his ability to eat and prevent further deterioration of his jawbone. Hyperbaric oxygen (HBO) therapy prior to and after the extractions was needed to ensure proper wound healing. Medicare covered the HBO therapy but denied payment for the extractions and implants, stating that they fell under Medicare’s exclusion for dental services.
The Center for Medicare Advocacy (the Center) represented Mr. Lodge in his agency appeal. At the third stage of review, an Administrative Law Judge (ALJ) found that the dental procedures were “not routine or of the type which were meant to be excluded by the statute”, but instead “were to restore function to the Appellant’s jaw, and are, in a sense, a continuation of the treatment for the oral cancer”, which had “affected the Appellant’s overall health and ability to eat adequate nutrition.” Disagreeing with this, the agency (CMS) referred the decision to the Appeals Council (final level of agency appeal) for “own motion” review, and the favorable ALJ decision was subsequently overturned.
The Center’s Argument Before the District Court
On Mr. Lodge’s behalf, the Center then sought judicial review by the U.S. District Court in Connecticut. The Center argued that the legislative history of Medicare’s dental exclusion clearly limited it to routine dental care and reserved coverage for medical treatment like the plaintiff’s. Moreover, this limited application of the exclusion was in line with the Medicare Act’s general purpose to pay for items and services reasonable and necessary for the diagnosis and treatment of illness and injury, or to improve the functioning of a malformed body member.
The statute did not qualify where the illness, injury or malformation may occur in the body. The agency’s policy of extending the exclusion to non-routine and medically necessary dental care was not entitled to deference.
The Center also argued that Mr. Lodge’s dental services should be covered as incident and integral to his overall cancer treatment, which included the after-effects of the cancer therapies he received.
The agency recognizes an exception to the dental exclusion for treatment that is incident and integral to a primary covered service. In order to be covered, however, the policy requires that the dental procedures be performed at the same time as the primary covered service, and by the same physician. The Center argued that the same time/same dentist policy was arbitrary, unduly restrictive, and not entitled to deference.
The Center’s third argument was that the agency violated the Administrative Procedure Act (APA) by removing the word “routine” from its original regulation describing the excluded dental services without following proper notice-and-comment procedure.
The District Court’s Decision
On December 30, 2016, Judge Janet Bond Arterton issued a decision upholding the denial of coverage of Mr. Lodge’s claim. The court rejected plaintiff’s APA claim, finding that the proposed rule explanation “put interested persons on notice that the regulations would be amended to conform to the statute.”
On the statutory claims, the court importantly found that neither Chevron nor Skidmore deference should apply to Medicare’s manual provisions interpreting the dental exclusion. However, it concluded that the procedures Lodge received were excluded by the statutory language, which draws no distinction between routine and non-routine dental procedures. The court instead read the legislative history to draw a distinction between routine dental services and covered “complex surgical procedures”, and determined that Mr. Lodge’s extractions and implants did not fall within the latter category.
The court also found that his treatment did not fall within the exception for dental care that is incident to and an integral part of covered non-dental services, citing the fact that his “cancer treatment occurred in 1996, but his teeth were removed in 2012.” The decision did, however, caution against “a too-literal application” of the incident-and-integral exception to require that services be performed by the same doctor and on the same occasion. The decision states that a strict application of this same-time/same-dentist rule “is not compelled by the language of the Act and could under certain circumstances lead to results at odds with the purpose of the Act…”
It further suggests that the strict requirements of this rule “stand in tension” with the remedial ends of the Act, which would “permit payment for dental services whose primary purpose is not merely the care or treatment of teeth.” We hope that CMS will heed the court’s analysis on this point and bring its policy in line with the goal of the statute.
Conclusion
For Mr. Lodge and the many others like him who have medically urgent oral health issues, we are obviously disappointed by the outcome of this case. It highlights the inequity and arbitrariness of Medicare’s refusal to cover essential medical treatment because that treatment occurs in the mouth. If someone in Mr. Lodge’s position cannot get coverage, there is clearly a problem with the law. The Center is committed to working with our many dedicated partners to resolve this inequity and advance access to quality oral health care for Medicare beneficiaries.