Fournier v. Sebelius

• Decision Date: 14 February 2012
• Docket Number: No. CV 08–2309–PHX–ROS.,CV 08–2309–PHX–ROS.
• Citation: 839 F.Supp.2d 1077
• Parties: Ronald FOURNIER, et al., Plaintiffs, v. Kathleen SEBELIUS, Secretary of the Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Arizona

839 F.Supp.2d 1077

Ronald FOURNIER, et al., Plaintiffs,

v.Kathleen SEBELIUS, Secretary of the Department of Health and Human Services, Defendant.

No. CV 08–2309–PHX–ROS.

United States District Court, D. Arizona.

Feb. 14, 2012.

Gill Deford, Wey–Wey E. Kwok, Ctr. for Medicare Advocacy Inc., Willimantic, CT, for Plaintiffs.

Michael A. Johns, U.S. Attorney's Office, Phoenix, AZ, for Defendant.

ORDER

ROSLYN O. SILVER, Chief Judge.

Plaintiffs appeal the final decisions of the Secretary of Health and Human Services (“Defendant” or “Secretary”) denying Plaintiffs' claims for Medicare coverage for dental services. For the reasons below, the Court affirms the Secretary's decisions regarding Berg and DiCecco, and dismisses Fournier's claim as moot.¹

BACKGROUND

Plaintiffs Ronald Fournier (“Fournier”), Delores Berg (“Berg”), and Thomas DiCecco (“DiCecco”) (“Plaintiffs”) lost salivary functioning due to medical conditions and treatment. The loss of salivary function damaged Plaintiffs' teeth. Plaintiffs sought Medicare coverage for dental services to repair or extract damaged teeth. Plaintiffs' respective claims for coverage were denied, and Plaintiffs sought administrative review. The denials were upheld, and Plaintiffs appealed the Secretary's decisions.

After this lawsuit was filed, on November 1, 2009, the ALJ issued a favorable decision in Fournier's claim, which became the final decision of the Secretary. (Doc. 77 at 2–3). The ALJ found Fournier's requested treatment was for a serious infection, and therefore covered because it was medically “reasonable and necessary for the ... treatment of an illness or injury or to improve the functioning of a malformed body member” pursuant to 42 U.S.C. § 1395y(a)(1)(A). (Doc. 85, Ex. A at 10).² As discussed below, in light of the decision to approve coverage, Fournier's claim is moot.

Berg was diagnosed with Sjogren's syndrome in 2003 while she was enrolled in a Medicare Advantage (“MA”) plan under Medicare Part C. Because of the syndrome, she lost saliva production and her teeth decayed and began to break off. (Doc. 54 at 7). Berg presented to Dr. Steven S. Swidler, D.D.S., who prepared a treatment plan that included partial dentures and crowns. ( Id.). Berg sought coverage for abutments and a partial denture and testified she needed bridges. (AR 458, 466, 784). On March 3, 2008, Plaintiff Berg's MA plan denied coverage and upheld its denial on review. (AR 471). On November 18, 2008, the ALJ denied her appeal, stating although Berg's dental problems were caused by her disease, the dental work was the primary procedure and did not fall under any exclusion. (AR 478). On March 27, 2009, the MAC denied Berg's appeal from the ALJ's decision. (Doc. 77 at 3, AR 437). The MAC cited the general exclusion of dental services under Medicare, and noted coverage is provided “only under limited circumstances not applicable to this case.” ( Id.) (citing Medicare Benefit Policy Manual (“MBPM”) (CMS Pub. 100–2), Chap. 15, § 150 (dental services) and Chap. 16, § 140 (dental service exclusion)). “[I]n particular,” the MAC noted, “when an excluded dental service is the primary procedure involved, coverage is excluded regardless of the complexity of the procedure.” ( Id.) (citing MBPM, Chap. 16, § 140).

DiCecco received an allogeneic bone marrow transplant and a donor lymphocyte infusion as part of his chronic myelogenous leukemia treatment in the 1990s. (Doc. 77 at 3–4; AR 858). As a result of the treatment, DiCecco developed chronic graft versus host disease (“GVHD”). The GVHD affected his saliva production and caused his teeth to decay and break off at the roots a decade later. DiCecco was denied coverage for the dental services his doctor prescribed. The MAC affirmed the denial of coverage. The MAC acknowledged DiCecco's need for dental services that were caused by his medical condition, but stated:

Nonetheless, the fact that there was a relationship between a medical condition and the dental services does not, by itself, qualify the dental services for Medicare coverage.... In order to be covered by [the] exception, the dental services would have to be furnished along with another covered procedure performed by the dentist on the same occasion (AR at 795) (emphasis in original).

ANALYSIS

A. Standard of Review

Pursuant to 42 U.S.C. § 405(g) and 1395ff(b), the Court will uphold the findings of the Secretary if supported by substantial evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir.2001). The Court may set aside the Secretary's denial of coverage if the denial was based on legal error. Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir.1997).

B. Fournier

Fournier's second appeal was favorable. He has obtained the coverage he sought to obtain in this appeal. Therefore, his claim for coverage is moot. See Heckler v. Ringer, 466 U.S. 602, 621–22, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (holding the court cannot issue advisory opinions regarding future benefits under the Medicare Act).

C. Berg and DiCecco

The Medicare program, established under Title XVIII of the Social Security Act (“the Act”), 42 U.S.C. §§ 1395 to 1395iii, pays for covered medical care provided to eligible aged and disabled persons. Medicare has two main parts, Part A and Part B. Part A authorizes payment primarily for institutional care, including inpatient hospital care. 42 U.S.C. § 1395d(a). Part B is optional and authorizes payment for outpatient hospital care. 42 U.S.C. § 1395k. Under Medicare Part C, individuals qualified for Medicare enroll in a health plan (MA plan) with a private insurance company. 42 U.S.C. §§ 1395w–21—1395w–29. The MA Plan must enter into a contract with the Secretary of Health and Human Services, 42 U.S.C. § 1395w–27, and agree to provide the same benefits an individual is eligible to receive under Medicare, 42 U.S.C. § 1395w–22(a)(1)(A). Berg was enrolled in an MA plan, while DiCecco received services under Medicare Parts A and B. (Doc. 81 at 3).

To be “covered” under the Act, the medical care must be both “reasonable and necessary” for treatment of illness or injury or to improve the functioning of a malformed body member, and not excluded by any other provision of the Act. 42 U.S.C. § 1395y(a)(1)(A).

Medicare generally does not provide coverage for dental services. The statute at issue, 42 U.S.C. § 1395y(a)(12), excludes from coverage under Parts A and B:

such expenses ... for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth, except that payment may be made under part A ... in the case of inpatient hospitalservices in connection with the provision of such dental services if the individual, because of his underlying medical condition and clinical status or because of the severity of the dental procedure, requires hospitalization in connection with the provision of such services.

The Secretary has taken the position,³ “when a patient is hospitalized in connection with the performance of noncovered dental procedures, but the hospitalization was required in order to assure proper medical management, control, or treatment of a nondental impairment ... the inpatient hospital services would be covered under the hospital insurance program even though the dentist's services are not covered.” (Doc. 81–1, at 5, AR 2982) (emphasis added). But when a patient is hospitalized solely for a noncovered dental procedure, neither the dental services nor the inpatient hospital services are covered. (Doc. 81–1 at 4, AR 2981).

“[W]hen an excluded service is the primary procedure involved it would not be covered regardless of the complexity or difficulty of the procedure.” (Doc. 81–1, at 4, AR 2981). Thus, the complexity of a noncovered dental procedure does not convert it into a covered procedure. When a covered service is performed by a dentist, payment will be made regardless of whether it is inpatient or outpatient, and services and supplies incident to a covered dental service are covered. ( Id.). Therefore, coverage of X-rays, anesthesia and other related procedures by the dentist and her staff depends on whether the underlying dental procedure is covered. ( Id.).

The text of the statute excludes coverage for dental services in connection with the “care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth.” 42 U.S.C. § 1395y(a)(12). Plaintiffs' dental services fall under this exclusion. Unless they show an applicable exception to this exclusion, Plaintiffs' claims are not covered. The Secretary properly denied Berg and DiCecco's claims because each sought excluded dental treatment and failed to demonstrate an exception applied.

The MAC's decision regarding Berg was free from legal error and supported by substantial evidence because Berg sought coverage for abutments and a bridge. (AR at 450, 472–74). This dental treatment was in connection with the care and replacement of teeth, treatment not covered by Medicare under 42 U.S.C. § 1395y(a)(12). The MAC properly held coverage was excluded, regardless of the complexity, because the dental service was the primary procedure involved. Medicare “excludes from coverage specific services, including those related to dental care, regardless of whether those services are considered medically necessary.” Chipman v. Shalala, 894 F.Supp. 392, 396 (D.Kan.1995) (coverage for crown implants denied); Goodman v. Sullivan, 891 F.2d 449, 450 (2d Cir.1989) (“we find the Medicare statute does not require coverage for all medically necessary procedures”). Because Berg's dental services fall under the exclusion “for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth,” coverage was properly denied.

The MAC's decision regarding DiCecco was free from legal error and supported by substantial evidence because DiCecco sought and received treatment of crowns and resins more than...