Lodge v. Burwell
| Decision Date | 30 December 2016 |
| Docket Number | Civil No. 3:15–cv–390 (JBA) |
| Citation | 227 F.Supp.3d 198 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Henry LODGE, Plaintiff, v. Sylvia Mathews BURWELL, Defendant. |
Angela D. Ciottone, Wey–Wey Kwok, Alice Bers, Gill W. Deford, Margaret M. Murphy, Center for Medicare Advocacy, Inc., Willimantic, CT, for Plaintiff.
Carolyn Aiko Ikari, U.S. Attorney's Office, Hartford, CT, for Defendant.
RULING ON CROSS–MOTIONS FOR SUMMARY JUDGMENT
Plaintiff–Appellant Henry Lodge ("Plaintiff" or "Mr. Lodge") moves for an entry of summary judgment reversing a determination of the Medicare Appeals Council ("MAC") that denied Medicare Part B coverage for dental extractions and implants performed in connection with particularly devastating side-effects of radiation therapy for squamous cell cancer in Mr. Lodge's mouth. Defendant–Appellee Sylvia Mathews Burwell, Secretary of Health & Human Services ("Defendant" or "Secretary") cross-moves for an entry of summary judgment affirming the MAC's decision as supported by substantial evidence and comporting with the Medicare statute, regulations and applicable policies.
For the reasons set forth below, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.
Plaintiff Henry Lodge is a 71–year-old cancer survivor who lives in Bristol, Connecticut. At all relevant times, he was a Medicare beneficiary enrolled in Medicare Part A and Part B. In 1996, Mr. Lodge was diagnosed with cancer in his mouth and subsequently treated by a team of doctors at the Head and Neck Cancer Oral Oncology Program at the Neag Comprehensive Health Center at the University of Connecticut Health Center. ("Def.'s 56a(2) Stmt.")1 The treatment for his condition included removal of a tumor at the base of Mr. Lodge's tongue, removal of his lymph nodes, removal of the mastoid muscle in his neck, radiation seed implants at the base of the back of his tongue, and radiation treatment in the head and neck area. (Id. at ¶¶ 8–13). After this surgery and radiotherapy, the cancer has not returned.2 Administrative Record ("AR") at 415–416.
This treatment, while successfully combatting the cancer, had severe side-effects, including the loss of the ability to produce saliva which can lead to cavities and tooth decay. As one of his treating physicians, Dr. Spiro, noted, 3 AR at 123. See also Letter from Dr. Eric Ruiz, AR at 131.
Some fourteen years after conclusion of his cancer treatment, in September 2010, Mr. Lodge visited Easwar Natarajan, D.D.S., a member of Mr. Lodge's original treating team, with complaints of oral ulcers, a dry mouth, and candidiasis. Mr. Lodge stated that he was unable to eat comfortably and had suffered weight loss as a result. (Def.'s 56a(2) Stmt, ¶ 16; AR 90.) Over the course of the next year, Mr. Lodge lost another 40 lbs. due to discomfort while eating, and during visits to various doctors was diagnosed with dry mouth and severe cavities. During these visits, Mr. Lodge saw Dr. Ellen Eisenberg, D.M.D., David M. Schafer, D.M.D. and Eric Ruiz, D.D.S. (AR 94.)
Based on this diagnosis, Dr. Shafer extracted six of Mr. Lodge's teeth on or about January 10, 2012 and performed dental implant surgery on April 3, 2012. .) Prior to the extraction, Dr. Shafer ordered 20 days of hyperbaric oxygen chamber treatment and ten days of hyperbaric treatment post-extraction. ). Mr. Lodge requested Medicare coverage for the extractions and the implant surgery which were initially denied (AR 221) and then denied at both the redetermination and the reconsideration levels of appeal.
Mr. Lodge appealed from a decision of the MAC—deemed the final decision of the Secretary of Health and Human Services (the "Secretary") pursuant to 42 C.F.R. 405.1130 —denying coverage under Medicare part B, 42 U.S.C. §§ 1395 et seq ("Medicare" or the "Act") for dental services Mr. Lodge received.4 Prior to the MAC's decision, Mr. Lodge's case moved through a series of determinations in which coverage was initially denied, denied on redetermination by a Medicare contractor, denied on reconsideration by a qualified independent contractor, and then granted by Administrative Law Judge Takos (the "ALJ"). (Def.'s Loc. R. 56a(2) Stmt, ¶¶ 41–43). The Center for Medicare & Medicaid Services (the "CMS"), through which the Secretary administers Medicare, appealed the ALJ's decision to the MAC on "own motion review" because it believed the ALJ had made an error of law in concluding that Mr. Lodge's dental services were covered under Medicare as "non-routine" dental services.
Plaintiff moves for summary judgment on his first cause of action, arguing that the statutory language unambiguously provides for coverage of the services he received. PL's Mem. Supp. at 12. In the alternative, Plaintiff claims the services he received fall into the so-called "incident-and-integral" exception that appears in a Medicare manual interpreting the statutory language. Id. at 14. To set the legal context for these two arguments, the Court will briefly canvass the relevant statutes, regulations, and interpretive rules.
Plaintiff moves for summary judgment on his second cause of action which contends that the amended regulation under which the Secretary denied coverage to the Plaintiff was promulgated without giving fair notice of the proposed amendment in violation of the Administrative Procedure Act (the "APA").
Medicare, Title XVIII of the Social Security Act ("Medicare" or the "Act"), is a program that provides medical insurance for, inter alia, persons age 65 or older. It originally consisted of two parts: part A and part B.5 Part A, 42 U.S.C. §§ 1395c et seq , pays for inpatient hospital and related post-hospital benefits on behalf of eligible individuals. Part B, 42 U.S.C. § 1395j et seq , provides a voluntary supplemental insurance program for payment of various other health services. Mr. Lodge applied for coverage under Part B.
As enacted in 1965, the Act entitled persons enrolled in Part B to have payment made for "medical and other health services," so long as they did not fall under two coverage exclusions: any service that was "not reasonable and necessary for the treatment of illness or injury or to improve the functioning of a malformed body member..." was not covered (42 U.S.C. 1395y(a)(l)(A) ), and, even if services were reasonable and necessary, a person was not entitled to payment if the services were explicitly excluded by any other provision of the Act. Id.
The statutory definition of "medical and other health services" included both "physicians' services" and "services and supplies ... furnished as an incident to a physician's professional service, of kinds which are commonly furnished in physicians' offices and are commonly rendered without charge or included in the physicians' bills...." 42 U.S.C. § 1395x(s)(l); (2)(A). To specify whose services would be covered under "physician's services," the Act then defined ‘physician’ to include "a doctor of dentistry or of dental or oral surgery," 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." Pub. L. No. 89–97, § 1861(r)(2), 79 Stat. 286, 321 (1965). However, this narrow definition has since been amended, and at all times relevant to the dispute, the Act defined ‘physician’ to include "a doctor of dental surgery or of dental medicine who is legally authorized to practice dentistry by the state in which he performs such function and who is acting within the scope of his license when he performs such functions." 42 U.S.C. § 1395x(r).
Notwithstanding this apparent inclusion of dental services within the definition of "physician," the 1965 Act and all subsequent iterations contained a dental services exclusion:
Pub. L. 89–97, § 1862(a) 79 Stat. 286, 325 (1965).
In the 1970s, Congress amended the dental services exclusion to introduce an exception "under part A in the case of inpatient hospital services in connection with a dental procedure." The parties dispute whether this amendment covers only inpatient hospital costs associated with dental services, or whether it covers the dental services themselves, but they agree that since Mr. Lodge did not seek coverage under Part A, this Amendment does not apply to his situation. The full text of the Act in 1972, after Congress passed the amendment, reads:
Pub. L. No....
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