Fournier v. Sebelius

• Citation: 718 F.3d 1110
• Decision Date: 31 May 2013
• Docket Number: No. 12–15478.,12–15478.
• Parties: Ronald FOURNIER, Plaintiff, and Delores Berg; Thomas DiCecco, Jr., Plaintiffs–Appellants, v. Kathleen SEBELIUS, Secretary of the Department of Health and Human Services, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

718 F.3d 1110

Ronald FOURNIER, Plaintiff,andDelores Berg; Thomas DiCecco, Jr., Plaintiffs–Appellants,

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

No. 12–15478.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2013.

Filed May 31, 2013.

Gill Deford (argued), Wey–Wey Kwok, Alice Bers, Center for Medicare Advocacy, Inc., Willimantic, CT, for Plaintiffs–Appellants.

Sushma Soni (argued), Attorney, Civil Division, Stuart F. Delery, Acting Assistant Attorney General, Dennis K. Burke, United States Attorney, Michael S. Raab, Attorney, Civil Division, United States Department of Justice, Washington, D.C., for Defendant–Appellee.

Ruth Szanto, Arizona Center for Disability Law, Phoenix, AZ, for Amici Curiae.

Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, Chief District Judge, Presiding. D.C. No. 2:08–cv–02309–ROS.

Before: ALFRED T. GOODWIN, KIM McLANE WARDLAW, and RONALD M. GOULD, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Appellants Delores Berg and Thomas DiCecco are Medicare beneficiaries who suffer from medical conditions that caused significant dental problems, and they received dental services to correct those problems. But the Secretary of the Department of Health and Human Services (HHS) denied coverage for those services. Appellants contend that this denial was premised on the Secretary's unreasonable interpretation of the Medicare Act, which contravenes the intent of Congress and violates Appellants' right to equal protection under the Fifth Amendment. We affirm the district court, holding (1) that the statute under which the Secretary denied coverage is ambiguous on the question Appellants raise; (2) that Chevron deference applies; (3) that the Secretary's interpretation of the statute is reasonable; and (4) that the denial does not violate Appellants' Fifth Amendment rights.¹

I

Berg is a Medicare Advantage beneficiary. She suffers from Sjogren's Syndrome, which has left her unable to produce saliva. As a result, she lost teeth, her gums deteriorated, and her bite collapsed. Berg's lack of saliva made her prone to gum infections, which put her at risk of a life-threatening heart infection. In response to the grave conditions and risks caused by Sjogren's syndrome, Berg's dentist recommended a treatment plan that would “develop and reconstruct a leveled bite,” with procedures including a partial denture, several crowns, and bridgework. Berg underwent the recommended procedures on February 27, 2008, at a total cost of $28,750.00.

Berg submitted a claim for these services to her Medicare Advantage provider. Her provider denied the claim because Berg was enrolled in a plan that did not cover “[r]outine dental care (such as cleanings, fillings, or dentures) or other dental services.” Berg's provider sent her appeal to an independent outside review entity, which told Berg that the dental services related to Sjogren's syndrome do not fall within the limited dental coverage of her Medicare Advantage plan and denied her appeal. Berg then appealed to an Administrative Law Judge (“ALJ”), who ruled that the services Berg received were excluded by Medicare's dental-services exclusion. Although the plan representatives and the ALJ acknowledged that Berg's dental problems stemmed from her Sjogren's syndrome, the ALJ concluded that the services at issue did not fall under any exception to the dental exclusion because Berg's “dental work was the primary procedure, rather than necessary to or incident to any Medicare covered procedure.” The Medicare Appeals Council (“MAC”) adopted the ALJ's decision and denied Berg's appeal, explaining, “Services performed in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth are not covered and, to the extent coverage is provided, it is only under limited circumstances not applicable to this case.”

Thomas DiCecco, Jr., is a Medicare beneficiary under Parts A and B. In 1996, several years before becoming eligible for Medicare, DiCecco received an allogeneic bone-marrow transplant to treat chronic myelogenous leukemia. He received a donor lymphocyte infusion in June 1999. As a result of these treatments, DiCecco developed graft-versus-host disease, with a resulting loss of salivary function. As it did with Berg, DiCecco's lack of saliva led to tooth loss. DiCecco's tooth decay was so severe that it caused “certain teeth to just crack off,” and forced him to use a feeding tube for nearly a year. More than a decade after DiCecco's bone-marrow transplant, his dentist prescribed a course of treatment, responding to the graft-versus-host disease with frequent examinations and restorative dental work such as fillings and crowns. DiCecco had this treatment from April to July 2008. DiCecco then submitted a claim for reimbursement for resin, crown, and fluoride treatments to his Medicare Part B contractor. His contractor denied the claim in full, and an independent contractor upheld the denial. DiCecco appealed to an ALJ, who recognized that DiCecco needed the dental care because of his graft-versus-host disease but upheld the denial because “dental services are excluded from Medicare coverage regardless of the medical need for those services.” The MAC adopted the ALJ's decision and acknowledged that DiCecco's need for dental services was provoked by a medical condition. But the MAC explained that the relationship between DiCecco's graft-versus-host disease and his dental services does not, by itself, qualify the dental services for Medicare coverage. DiCecco's treatments would be covered only if they were furnished along with a covered procedure that was performed by the dentist on the same occasion.

Berg and DiCecco joined a lawsuit filed by Ronald Fournier, who raised similar claims to those of Berg and of DiCecco.² The plaintiffs challenged the MAC decisions, which were the Secretary's final decisions in their cases, and sought declaratory and injunctive relief advocating the views that the Secretary's decision to deny coverage for their extraordinary, medically related dental services violated HHS policy, the Medicare Act, and their right to equal protection. The district court held (1) that substantial evidence supported the Secretary's decisions denying coverage to Berg and DiCecco, (2) that the Secretary's statutory interpretation excluding coverage was reasonable, and (3) that the Secretary's policy does not violate the equal protection guarantee in the Fifth Amendment's due process clause. This appeal followed.

II

This appeal centers on the broad exclusion of dental services from Medicare coverage, so we discuss the development of that exclusion. Congress established Medicare in 1965 as Title XVIII of the Social Security Act (“Medicare Act”). Pub. L. No. 89–97, 79 Stat. 286 (1965). Medicare provides medical services to (1) the aged, (2) the disabled, and (3) those who have end-stage renal (kidney) disease. 42 U.S.C. § 1395c. The Secretary of Health and Human Services administers the program, and she has authority to prescribe necessary regulations, § 1395hh(a)(1), and determine which claims will be covered, § 1395ff(a). The Secretary may issue National Coverage Determinations to define what services are considered reasonable and necessary. § 1395ff(f)(1)(B).

Medicare provides institutional care, including inpatient hospital services, through Part A, § 1395d(a), and authorizes payment for supplemental and outpatient services in Part B, § 1395k. Part C, known as Medicare Advantage, allows beneficiaries to receive services authorized under Parts A and B through managed-care or fee-for-service plans. § 1395w–22(a)(1)(A), (a)(1)(B)(i).

Medicare coverage is broadly limited to services that are medically “reasonable and necessary.” See§ 1395y(a)(1)(A)-(C). Medicare coverage is also subject to specific restrictions, one of which, prominent here, excludes most dental services from reimbursement. That exclusion denies payment for any expenses incurred:

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 of this subchapter in the case of inpatient hospital services 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;

§ 1395y(a)(12). The exclusion, without the exception for inpatient services under Part A, was included in the initial form of the Medicare Act. See Pub.L. No. 89–97, § 1862(a)(12), 79 Stat. 286, 325 (1965). The Senate Report accompanying the Medicare Act said that this exclusion was intended “to make clear that the services of dental surgeons covered under the bill are restricted to complex surgical procedures” and that “routine dental treatment—filling, removal, or replacement of teeth or treatment of structures directly supporting the teeth—would not be covered.” S.Rep. No. 89–404, at 49 (1965), reprinted in 1965 U.S.C.C.A.N. 1943, 1989–90. This explanation moves us towards the core of the problem presented on this appeal. When the Secretary first promulgated regulations under the dental exclusion in § 1395y(a)(12), she added the word “routine” to the statutory exclusion, excluding coverage for “[r]outine dental services in connection with the care, treatment, filling, removal, or replacement of teeth, or structures directly supporting the teeth.” 31 Fed. Reg. 13534, 13535 (Oct. 20, 1966).

Congress also limited coverage for dental services in a second way: by restricting the definition of “physician.” The Medicare Act distinguished between complex, covered dental procedures and common, excluded procedures by defining “physician” to include...