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One of the core considerations of the Center
for Medicare Advocacy’s Medicare
Platform is to expand Medicare coverage to include oral health and dental
care for all beneficiaries. We have also long advocated for coverage of
medically necessary oral health care, which we think is currently supported
by the Medicare statue but is, unfortunately, significantly limited in
practice due to CMS policy.
Below is an updated Issue Brief outlining the
problem, statutes and interpretations, and advocacy tips.
The Problem
Mr. Jones tripped and fell on his driveway,
fracturing his cheek and jaw, tearing the musculature, and crushing several
teeth. He was stabilized in the emergency room on the day of the
accident, but in the days that followed he required assessments and
procedures to repair damage and restore function to his face and mouth.
Medicare covered nearly all of his treatment, but denied coverage of the
extractions and a crown for his shattered teeth on the basis that payment for
dental care is excluded by the Medicare statute.
Similar coverage denials are encountered by
Medicare beneficiaries who need dental services to medically manage or treat
an underlying and immediate injury, illness, or disease.
Background
When Congress established the Medicare
program in 1965, it excluded payment for certain items and services that are
not commonly associated with illness, but are needed in the normal process of
aging. Excluded items and services include routine check-ups, hearing and eye
examinations, hearing aids, eyeglasses, orthopedic shoes, and dental
treatment. However, the legislative history made clear that Congress did not
intend for these exclusions to apply when the item or service was medically
necessary to diagnose a specific complaint or treat a serious ailment.
Despite the strong clarification that the
payment exclusions should apply only in routine situations, the Center for
Medicare & Medicaid Services (CMS), which administers the Medicare
program, has interpreted the statutory exclusion broadly with respect to
dental services since the inception of the program. Thus, beneficiaries like
Mr. Jones may be denied payment for medically-related dental services that
Congress likely intended for Medicare to cover.
Medicare Policy on Dental
Services
Traditional Medicare does not cover
preventive dental services like exams, cleanings, and x-rays. Nor does
it cover basic or major restorative services and items like fillings,
extractions, root canals and dentures. When such dental work must be
performed in a hospital setting due to the severity of the procedure or the
patient’s underlying medical condition or clinical status, Medicare will
cover the costs of hospitalization (including room and board, anesthesia, and
x-rays), but not the procedure itself or fees for the dentist and other
physicians.
Under CMS’ policy, Medicare will cover
extractions needed to prepare the jaw for cancer radiation therapy, and
inpatient oral examinations (but not treatment) prior to kidney transplants
and, in certain settings, heart valve replacements. The Medicare Benefits
Policy Manual (Policy Manual) also recognizes that payment must be made for a
non-covered dental procedure when it is “incident to and an integral part of
a covered service performed by the dentist.” However, the policy requires
that the dental procedure be carried out at
the same time and
by the same dentist who performs the primary covered service.
Coverage is granted only in rare circumstances under this exacting test. An
example given in the Policy Manual is that Medicare will pay for
reconstruction of a ridge when performed as a result of and at the same time
as the surgical removal of a tumor (a covered procedure), but not to prepare
the mouth for dentures or other dental purpose.
In the above case of Mr. Jones, depending on
the facts, there may be an argument that the dental services he required are
entitled to coverage because they were “incident to and an integral part of”
the reduction of his fractured jaw or cheek bone.
Judicial Interpretation of
Medicare Dental Policy
The “same time/same dentist rule” is viewed
by some as being unduly restrictive, as well as flawed from a clinical
perspective. The rule hinges Medicare coverage on the timing of the dental
procedure, who administers it, and the anatomical location of the primary
covered procedure, rather than taking into account clinical standards and
protocols and whether the procedure is, medically-speaking, incident to and
an integral part of a covered medical procedure or course of treatment.
Recently, in Lodge v. Burwell, 227 F.Supp.3d 198 (D. Conn.
2016), a federal district court cautioned against “a too-literal application”
of the incident-and-integral coverage rule to require that services be
performed by the same doctor and on the same occasion. The decision states
that rigid adherence to the same-time/same-dentist rule “is not compelled by
the language of the Act and could under certain circumstances lead to results
at odds with the purpose of the Act[.]” It further suggests that the
strict requirements of the rule “stand in tension” with the remedial ends of
the Act, which would “permit payment for dental services whose primary
purpose is not merely the care or treatment of teeth.”
In an earlier case, Maggio v. Shalala, 40
F.Supp.2d 137 (W.D.N.Y. 1999), a beneficiary won coverage for dental items
and services needed to address nutritional deficiencies that affected his
treatment for leukemia and thrombocytopenia. The court in Maggio found that the
crowns and prosthesis at issue were “incident to and an integral part of” the
beneficiary’s covered treatment for leukemia. A key fact was that the
claimant’s primary oncologist ordered and supervised the dentist’s work.
Importantly, the court refused to accept CMS’ interpretation of
incident-and-integral services as limiting coverage to dental procedures
performed at the same time and by the same provider as the underlying covered
medical service.
Advocacy Note
Advocates should consider the following when
assisting Medicare beneficiaries who have medically-related dental issues.
Conclusion
There is strong and growing public interest
in expanding Medicare coverage for oral and dental care. Increasingly, older
adults value having healthy teeth and gums, and understand the importance of
oral health to overall health. Despite this, the large majority of the
Medicare population has no dental coverage. Lack of coverage and the
high cost of dental care lead many beneficiaries to delay or forgo necessary
dental care altogether. There are currently bills introduced in Congress
that, if passed and enacted, would remove the statutory dental exclusion and
add oral health benefits to the Medicare program. In the meantime, CMS should
exercise its authority to expand coverage for oral and dental services that
are vital to the medical management or treatment of serious underlying
diseases, illnesses, and injuries.
References
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