Bohlen v. Weinberger

• Decision Date: 15 August 1973
• Docket Number: No. 72-1884.,72-1884.
• Citation: 483 F.2d 918
• Parties: Emma BOHLEN, Appellee, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

483 F.2d 918 (1973)

Emma BOHLEN, Appellee, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellant.

No. 72-1884.

United States Court of Appeals, Third Circuit.

Argued May 25, 1973.

Decided August 15, 1973.

Roland J. Artigues, Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., for appellee.

Harlington Wood, Jr., Asst. Atty. Gen., Carl J. Melone, U. S. Atty., Walter H. Fleischer, James C. Hair, Jr., Attys., Department of Justice, Washington, D. C., for appellant.

Before ALDISERT and ADAMS, Circuit Judges and STAPLETON, District Judge.

OPINION OF THE COURT

ADAMS, Circuit Judge.

The Court is asked on this appeal to determine the narrow issue whether, under the Medicare provisions of the Social Security Act,¹ prior to the 1972 amendment, the denial by a carrier of reimbursement to an individual for dental care is subject to administrative review. The district court held, in an exhaustive opinion,² that, under the Medicare Act, an individual denied reimbursement for the kind of dental care involved here may seek review by the Secretary of Health, Education and Welfare. The Secretary disagrees and has filed this appeal.

Plaintiff, Emma Bohlen, was injured in an automobile accident in August, 1968. She suffered two dislocated hips, a fractured right hip, a laceration of the arm, a broken nose and a fractured jaw. While in the hospital, the fractured jaw was reduced by an oral surgeon, and the cost of that dental procedure was covered by Medicare.³ Later, Mrs. Bohlen engaged the services of another dentist for follow-up dental work in the nature of realigning and grinding her teeth to correct the separation of the maxilla (jaw) from the cranium, a condition which had so changed her "bite" that her upper and lower teeth did not meet. As a result of this improper "bite," Mrs. Bohlen was unable to chew and eat adequately and her fracture was not healing correctly. In letters, which are part of the record in this case, the second dental surgeon described the work he had performed on Mrs. Bohlen as "absolutely necessary post-operative treatment" that was "in no way related to normal dental care or maintenance. . . ."

Mrs. Bohlen submitted to Pennsylvania Blue Cross-Blue Shield⁴ a Request for Medicare Payment for the services performed by the dental surgeon. The carrier rejected the claim on the ground that the dental services involved were not covered under Medicare. During an informal review, her claim was again denied by the carrier, and subsequently by a Medicare Fair Hearing Officer. Mrs. Bohlen was then advised by the Social Security Administration that no further review could be sought by her since the Social Security Act does not provide for administrative or judicial review from a determination concerning the type of claim presented by Mrs. Bohlen.

Although this appeal turns solely upon the issue whether the denial of reimbursement is subject to review, it is important to place the problem presented in a perspective appropriately illuminated by the issue upon which review is sought.

Mrs. Bohlen was seeking reimbursement based upon part B of the Medicare Act that provides benefits for "medical and other health services."⁵ The Act limits such benefits to "professional services performed by physicians. . . .,"⁶ and defines "physician," in part, as "a doctor of dentistry . . . who is legally authorized to practice dentistry . . . but only with respect to (A) surgery related to the jaw or any structure contiguous to the jaw or (B) the reduction of any fracture of the jaw or facial bone. . . ."⁷

The Act excludes from coverage under part B "any expenses incurred for items or services (12) where such expenses are for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth."⁸ It was on the basis of this exclusion that the carrier and the Fair Hearing Officer determined that Mrs. Bohlen's dental treatment was not covered under Medicare.⁹

Whether Mrs. Bohlen does or does not have a statutory right of review under the Medicare Act depends upon an interpretation of § 1395ff of the Act.¹⁰ That section, prior to the 1972 Amendment, see note 14 and accompanying text, infra, provides, in relevant part:

"(a) The determination of whether an individual is entitled to benefits under part A or part B, and the determination of the amount of benefits under part A, shall be made by the Secretary in accordance with regulations prescribed by him.

"(b) Any individual dissatisfied with any determination under subsection (a) of this section as to entitlement under part A or part B, or as to amount of benefits under part A where the matter in controversy is $100 or more, shall be entitled to a hearing thereon by the Secretary to the same extent as is provided in section 405(b) of this title, and in the case of a determination as to entitlement or as to amount of benefits where the amount in controversy is $1,000 or more, to judicial review of the Secretary\'s final decision after such hearing as is provided in section 405(g) of this title."

Thus, the issue whether Mrs. Bohlen qualifies for a statutory right of review narrows itself to whether the claim she submitted for the second dental procedure raises a question of "entitlement" or one of "amount."

Having carefully considered the record, and the various contentions, we conclude that the district court correctly determined that "a question of entitlement is one which raises the issue of whether regardless of the amount of benefits in question, the claimant has the right to receive any payment for the services rendered, or, conversely, whether the claim is to be excluded entirely."¹¹

The district court, meticulously examining the legislative history of § 1395ff, noted the reasons suggested in Congress¹² for allowing review in "entitlement" matters but not in those involving "amount," and articulated several reasons fathomed by the district judge sua sponte to support such a distinction.¹³ From its analysis, the district court concluded that Mrs. Bohlen's claim for reimbursement raises an issue of "entitlement," not "amount." It would serve little, if any, purpose for this Court to reiterate the cogent bases for the lower court's conclusion concerning Mrs. Bohlen's claim since they are set forth in considerable detail in the trial judge's opinion, 345 F.Supp. 124. Rather, we hold simply that, for the reasons stated by the district judge, Mrs. Bohlen is entitled to review by the Secretary.

While affirming the judgment of the district court, we are not unmindful that subsequent to the opinion of the lower court in this case Congress amended the Social Security Act in such a way that those now raising claims such as Mrs. Bohlen's in the present case would apparently not be entitled to administrative review by the Secretary.¹⁴ Thus, under the present version of § 1395ff, it would seem that the concept of "entitlement" relates, as the Secretary has argued throughout this litigation, only to the right of an individual to participate, vel non, in the Medicare program, and not to the right of an enrollee to reimbursement.¹⁵

But cases must be decided on the basis of a statute's language and, where appropriate, resort may be had to legislative history at the time of the relevant enactment's passage. We thus agree with the recent decision by the Court of Appeals for the Fourth Circuit holding that "determinations as to entitlement to benefits are properly subject to . . . review . . .," notwithstanding the 1972 Amendment.¹⁶ While subsequent legislative history may shed light upon the intent earlier embodied in a given piece of legislation, the remarks of a single proponent of the amending legislation¹⁷ do not, without more, compel the reversal by us of the district court's well-reasoned judgment. Indeed, one might well argue that the 1972 amendment, and Senator Bennett's remarks in support thereof, indicate that the 1962 legislation does not express a restrictive notion of reviewability. Thus, nothing in the 1972 Amendment nor the legislative history accompanying it convinces us that the district court erred in concluding that, under the statute as originally enacted, Mrs. Bohlen raised a claim of "entitlement" and therefore was protected by the Act's review provision.

The judgment of the district court will be affirmed.

ALDISERT, Circuit Judge (dissenting).

Blue Shield is an insurance carrier under contract with the Social Security Administration to administer a portion of the Medicare program. We are to decide whether the denial by Blue Shield of reimbursement to an individual for dental services necessitated by a broken jaw raises (a) a question of "entitlement" for which there is a statutory right of administrative review by the Secretary of Health, Education and Welfare and thereafter judicial review or, (b) a question of "amount", for which there is no such statutory right of review. Concededly there is ambiguity over the meaning of the word "entitlement" as used in the statute.

The Secretary interprets the word to mean eligibility to participate in the Medicare program, i. e., eligibility for any benefits of Medicare. Thus, if an applicant is denied the coverage of the Medicare provisions of the Social Security Act, he is entitled to an appeal to the Secretary and thence to the federal courts. The interpretation of Mrs. Bohlen, accepted by the district court and the majority, and by the Fourth Circuit in Ridgeley v. Secretary of HEW, 475 F.2d 1222 (4th Cir., 1973), is that the word means eligibility not only to participate in the Medicare program, but eligibility for a certain benefit; and that therefore, when the applicant is denied a certain requested Medicare benefit, he has a right to exhaustive administrative and judicial review.

To solve this issue we must wade into the morass of statutory construction; and I am the first to concede that a reasonable case can be...