Wood v. Thompson

• Decision Date: 12 April 2001
• Docket Number: PLAINTIFF-APPELLANT,No. 00-2711,DEFENDANT-APPELLEE,00-2711
• Citation: 246 F.3d 1026
• Parties: (7th Cir. 2001) FLOYD WOOD,, v. TOMMY G. THOMPSON, <A HREF="#fr1-*" name="fn1-*">* . AS SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1026

246 F.3d 1026 (7th Cir. 2001)

FLOYD WOOD, PLAINTIFF-APPELLANT, v. TOMMY G. THOMPSON,^*. AS SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE.

No. 00-2711

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued November 16, 2000

April 12, 2001

Appeal from the United States District Court for the Western District of Wisconsin. No. 99-C-760-S--John C. Shabaz, Chief Judge. [Copyrighted Material Omitted] Mitchell Hagopian (argued), Sarah Orr, Elder Law Center of the Coalition of Wisconsin Aging Groups, Madison, WI, for plaintiff-appellant.

Peggy A. Lautenschlager, Office of the U.S. Attorney, Madison, WI, C. Douglas Ferguson (argued), Department of Health and Human Services, Office of the General Counsel, Region V, Chicago, IL, for defendant-appellee.

Before Cudahy, Coffey, and Evans, Circuit Judges.

Cudahy, Circuit Judge

This case is almost as hard as pulling the teeth of Floyd Wood, who lost a final decision of the United States Department of Health and Human Services Secretary Tommy Thompson that the extraction of his diseased teeth was not reimbursable under Part B of the Medicare program, 42 U.S.C. sec. 1395 et seq. We now affirm the district court's decision to uphold the Secretary's ruling.

I.

Wood, an enrollee in the Medicare program, needed a heart valve replacement. At the time his physician determined the need for this procedure, Wood had severe infection in the tissue supporting his teeth. His cardiologistdetermined that Wood's severe periodontal disease presented a significant risk of bacterial infection to his artificial heart valve after implantation of the device. Because of his poor dental health--and the possibility of infection--Wood's doctor recommended that he undergo dental extractions prior to his surgery. On June 6, 1994, a dentist removed 14 of Wood's diseased teeth and recontoured his upper and lower jaw (a procedure designed to prepare the tooth sockets for future denture construction). On September 13, Wood was admitted to a St. Paul, Minnesota hospital to undergo the heart valve replacement surgery. The doctor who performed the operation, Lyle Joyce, said he would not have performed the procedure if Wood had not undergone the tooth removal prior to surgery because of the risk of bacterial infection.

After removing Wood's teeth, Wood's dentist submitted a $1,156 claim for dental services to MetraHealth Companies, a Medicare carrier,¹. which denied coverage of the services. Wood appealed this determination to a Medicare Part B hearing officer, who upheld the carrier's decision. Wood then appealed to a social security administrative law judge (ALJ), who affirmed the hearing officer's determination. The ALJ decided that Wood was not qualified for coverage because services in connection with the treatment of teeth were not covered under Part B of the Medicare Act, Title XVIII of the Social Security Act, 79 Stat. 290, as amended, 42 U.S.C. sec. 1395 et seq. Congress, the ALJ concluded, specifically excluded dental care from coverage under Medicare. See Social Security Act sec. 1862(a), 42 U.S.C. sec. 1395y(a). The ALJ did identify three exceptions to this exclusion: dental care in preparation for radiation of the jaw; a covered medical procedure performed by the same physician doing the dental work; and inpatient dental examinations conducted in preparation for kidney transplant surgery. While the ALJ did not dispute that Wood's extractions were medically necessary, he concluded that this procedure did not fall within one of the exceptions to the blanket denial of dental coverage under Medicare. Wood requested review of the ALJ's decision by the Medicare Appeals Council, but the Council declined to review the case, stating that the ALJ's decision would stand as the final decision of the Secretary.

Because the Medicare Appeals Council adopted the decision of the ALJ, that decision stands as the final decision of the Secretary. Judicial review of such final decisions lies in the appropriate district court under 42 U.S.C. sec. 405(g). Wood thus appealed to the District Court for the Western District of Wisconsin, which affirmed. We review the ALJ's decision with the deference due to final decisions of agencies.². Under 42 U.S.C. sec. 405(g), "findings of the Secretary... if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary... the court shall review only the question of conformity with [the Secretary's] regulations and the validity of such regulations." See also Johnson v. Heckler, 741 F.2d 948, 952 (7th Cir. 1984). "Substantial evidence" is "more than a scintilla" but less than a preponderance of the evidence, and is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Kapusta v. Sullivan, 900 F.2d 94, 96 (7th Cir. 1990) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

We may also set aside the Secretary's denial of coverage if the denial was based on legal error. See Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). When interpreting a statute, we first determine whether the intent of Congress is unambiguous. See Chevron U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 842 (1984). If the meaning of the statute is clear, no deference is due an agency's interpretation. If the meaning of the statute is ambiguous, an agency's interpretation will be deferred to if it is reasonable. See id. at 844. If the agency's interpretation conflicts with its prior interpretation, the current interpretation is "'entitled to considerably less deference' than a consistently held view." INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (quoting Watt v. Alaska, 451 U.S. 259, 273 (1981)).

II.

Title XVIII of the Social Security Act, 42 U.S.C. sec. 1395 et seq., established Medicare as a federally funded and admin istered health insurance program for eligible persons who (1) are 65 or older and entitled to social security retirement benefits; (2) are disabled and entitled to social security disability benefits; or (3) have end stage renal (kidney) disease. See 42 U.S.C. sec. 1395c. The Secretary of Health and Human Services administers the Medicare program through the Health Care Financing Administration (HCFA), which enters into agreements with private contractors to administer payments of funds to hospitals and providers for covered services on behalf of eligible beneficiaries. See 42 U.S.C. sec.sec. 1395h, 1395u(a).

The Medicare program is divided into three major components. Part A, the hospital insurance benefits program, provides coverage for inpatient hospital care, post-hospital care in skilled nursing facilities and post-hospital home care services. See 42 U.S.C. sec.sec. 1395c to 1395i-5. Part B generally provides coverage for outpatient physician services, physical and occupational therapy services, outpatient rehabilitation facility services, and medical equipment and services provided at rural health clinics and qualified health centers. See 42 U.S.C. sec.sec. 1395j to 1395w-4, 1395x(s); 42 C.F.R. sec. 410.3. Part B does not provide reimbursement for dental services. Expenses excluded from Part B coverage include those that are incurred:

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....

42 U.S.C. sec. 1395y(a)(13). Part C is a new component of the Medicare statute, and the parties agree that it has no bearing on this case. See 42 U.S.C. sec. 1395w-21 et seq. Part B is the only section of the statute under which Wood's procedure could arguably fall, because the extraction did not involve inpatient hospital care. However, as noted, the statute clearly excludes dental procedures from coverage under Part B.

There is only one exception to the exclusion of dental services under Part B. Section 2136 of the Medicare Carriers Manual³. states that otherwise non-covered services performed by a dentist "as incident to and as an integral part of a covered procedure or service" will be covered by Medicare. Medicare Carriers Manual sec. 2136. Both the dental and the covered procedure under this provision must be furnished by the same provider. An example of this, provided in the manual, is when the reconstruction of a ridge, which is normally a non-covered procedure, is performed "as a result of and at the same time as the surgical removal of a tumor (for other than dental purposes)." See id. In such a situation, "the totality of surgical procedures would be a covered service." See id. Citing this--the "same physician rule"--the ALJ concluded that the case here neither fits within the rule's purview nor falls within any corollaries to that rule.

There are two corollaries to the "same physician rule," under which dental procedures will be covered under Part B even if the covered procedure is performed by someone other than a dentist. The first is outlined in sec. 2136 of the Medicare Carriers Manual: the extraction of teeth to prepare the jaw for radiation treatment of abnormal jaw growths (neoplastic disease). The second corollary allows for Medicare coverage of an inpatient dental examination performed "as part of a comprehensive workup prior to renal [kidney] transplant surgery." Medicare Coverage Issues Manual sec. 50-26.⁴. The ALJ concluded that Wood's procedure fit within neither of these corollaries, and that therefore Wood could not escape the exclusion for dental services.

III.

On appeal, Wood advances a three-step argument: (1) the dental services exclusion in the statute is ambiguous; (2) the HCFA's interpretation of the statute is unreasonable; and (3) the legislative history is inconsistent with the over-broad interpretation of the exclusion and HCFA's interpretation of the other medically necessary exceptions to...