March 1, 2012

Medicare Coverage of Dental Services

    It is generally assumed that Medicare does not cover dental services.  However, in situations where the dental services are not "routine," Medicare coverage may be available.  Recognizing these situations, and understanding how to characterize them in claims, will enhance beneficiaries' ability to obtain coverage of needed services.


    Medicare Statute


    The Medicare statute excludes coverage of dental services in the following language: 

    No payment may be made [by Medicare] . . . for any expenses incurred for items or services – . . . where such expenses are for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth . . .  42 U.S.C. § 1395y(12).


    This language excludes coverage of ordinary dental services, and Congress placed it in a section of the Medicare statute that excludes coverage of a number of other medical services that are generally considered to be routine, such as common screening tests, personal comfort items, physical checkups, eyeglasses, hearing aids, and immunizations that are not specifically covered.  For this reason, the Medicare statute can be read as allowing coverage of dental services that are not "routine," such as the special care necessitated by the effects of radiation and chemotherapy treatments prescribed to treat oral, head and neck cancer.


    This interpretation is supported by legislative history.  The Senate Report of 1965 explained that:

    Payments would not be made for routine physical examinations or for eyeglasses, hearing aids, or the fitting expenses or other costs incurred in connection with their purchase.  The committee bill provides a specific exclusion of routine dental care to make clear that the services of dental surgeons covered under the bill are restricted to complex surgical procedures.  Thus…a routine annual or semiannual checkup would not be covered…Similarly, too, routine dental treatment - filling, removal, or replacement of teeth or treatment of structures directly supporting teeth - would not be covered. S.Rep. No. 89-404 (1965), reprinted in 1965 U.S.C.C.A.N. 1943, 1989-1990 (emphasis added).


    Medicare Agency Policy


    The Medicare Benefits Policy Manual (MBPM), CMS Pub 100-02 at, allows for exceptions to the usual exclusion of dental services.  It specifies that a service should be covered if it is "incident to and an integral part of a covered service performed by the dentist."  An application of this "incident to and an integral part of" rule that is provided in the Manual is reconstruction of a ridge that can be used to prepare the mouth for dentures if it is done at the same time as surgical removal of a tumor, but not if it occurs afterwards. MBPM, Chap. 15, § 150.


    The MBPM also allows Medicare coverage of certain other dental services that are related to cancer treatment.  For example, Medicare will cover the extraction of teeth to prepare the jaw for radiation treatment of neoplastic disease.  However, the MBPM manual warns that coverage of such extractions is an exception to the usual rule that the dental service must be "incident to and an integral part of a covered procedure or service performed by the dentist."   MBPM, Chap.16, § 140.  Coverage of such an extraction is considered an exception because the extraction does not occur simultaneously with the radiation treatment.  Thus, the Centers for Medicare & Medicaid Services (CMS) admits that the "incident to and an integral part of" requirement is not applied consistently.


    Judicial Interpretations


    Some helpful clues as to how dental services should be structured in order to obtain Medicare coverage can be found in court decisions.   Although the courts in these cases have not agreed in their outcomes, with some ordering coverage and some upholding the Medicare agency's denial of coverage, their reasoning provides some guidelines for beneficiaries and their advocates.


    The court's decision in Currier v. Thompson, 369 F.Supp. 67, 71 (D.Me. 2005), did not directly involve dental services but supports an interpretation of the Medicare statute as excluding coverage of dental services only in routine situations.  Plaintiff Currier needed a video monitor to enhance his vision because he suffered from macular degeneration.  The court ruled that the statutory exclusion of coverage for eyeglasses and dental services applies only to Medicare coverage of routine eye and dental care.  It based this decision on the language of the statute itself, as well as the statements Congress made about what it intended in the statute.  Since the video monitor was not "routine" eye care, the court reasoned that the Medicare statute did not preclude coverage


    Wood v. Thompson, 246 F.3d 1026 (7th Cir. 2001), resulted in an unfavorable decision, but the court's reasoning opens the door to more liberal coverage decisions.  The appeal was brought by an individual who required dental extractions prescribed before heart valve surgery because of the risk of infection posed by his severe periodontal disease.  The court first held that the exclusion of dental services in the Medicare statute is ambiguous, and thus it could proceed to conduct an analysis of the agency rule in the Medicare Benefits Policy Manual.  However, the court then found that the exclusion of coverage in the MBPM was reasonable.  Another court in a different situation could examine the inconsistent rules in the MBPM, and refuse to apply the "incident to and an integral part of" requirement.


    Another appeal produced a mixed result.  Chipman v. Shalala, 894 F.Supp. 392 (D.Kan. 1995), aff'd 90 F.3d 421 (10th Cir. 1996), was brought by a beneficiary who needed bone augmentation surgery and dental implants to correct atrophy of the jaw with ensuing chronic pain and nutritional deficits.   The administrative law judge held that the bone augmentation surgery was not subject to the dental services exclusion but the implants were.  On appeal, the court held that Medicare was justified in denying coverage of the beneficiary's porcelain veneer crowns because they were not "incident to or an integral part of" the covered bone augmentation surgery. 


    However, the timing requirement of the "incident to and an integral part of" criterion in the MBPM need not be determinative.  This is illustrated by two apparently contradictory judicial decisions, as follows. 


    First, Bick v. Secretary of Health and Human Services, 1996 WL 393656 (C.D.Cal. 1996), was brought by a beneficiary who needed root canals and crowns because of damage to his gums following radiation treatments for head and neck cancer.  The court gave "considerable deference" to the Medicare Carrier Manual (a predecessor to the MBPM), and found that Bick's dental procedures were not "incident to or an integral part of" the radiation treatments.  The facts underlying this finding were: 1) the dental procedures were performed four years after the appellant's radiation treatments, and 2) the dental services were not provided or prescribed by his oncologist. 


    Second, Maggio v. Shalala, 40 F.Supp.2d 137 (W.D.N.Y. 1999), was brought by a beneficiary who needed crowns and prosthesis to address nutritional deficiencies affecting his treatment for leukemia and thrombocytopenia.  The court found that the dental services at issue were "incident to and an integral part of" the covered treatment that the beneficiary was receiving for his leukemia.  A key fact was the role of the claimant's primary oncologist, who directed and supervised the dental services   This decision provides an excellent precedent for coverage of dental care resulting from radiation treatments, because the court refused to interpret the "incident to and an integral part of" language as limiting coverage to dental services provided at the same time and by the same provider as the underlying treatment.


    Increasing the Possibilty of Coverage


    The likelihood of obtaining Medicare coverage for non-routine dental care can be increased by taking certain steps.  First, a treatment plan established at the outset by the primary physician providing covered medical services should include provision for ancillary dental care.  As dental services are needed, the physician should record the fact that they are incident to and necessary for the patient's primary treatment, and prescribe the specific dental services.  This will take such dental services out of the exclusion for routine care, and show that they are "incident to and an integral part of" a covered course of treatment.


    In order to obtain a successful decision, it may be necessary for the beneficiary to go through a number of unsuccessful lower levels of administrative appeal before reaching the ALJ or federal court levels.  At these higher levels of appeal, the beneficiary or her advocate will have an opportunity to overcome the presumption that Medicare never covers dental services.   Testimony and medical records from the beneficiary's physicians should be presented to show that the dental services were ordered and supervised by them as part of the claimant's covered treatment.   Legal arguments can be made that 1) the controlling Medicare statute, as shown by its legislative history, excludes only coverage of routine dental services; 2) the manual requirement that services be "incident to and an integral part of" covered services was met; or if not met, 3) the interpretations of the statute in the manual are too inconsistent and unreasonable to be given deference.


    Additional Resources


    Memorandum of Law in Support of Appeal Regarding Medicare Coverage of Medical-Related Dental Services (.pdf will open in a new window)

    Favorable Decision by Administrative Law Judge in Appeal of Medical Related Dental Services (.pdf will open in a new window. File is large, and will take some time.)