Doctor concerned with health care law

Breaking news and expert analysis on legal and compliance issues

[Back To Home][Back To Archives]

From Health Law Daily, September 26, 2013

Surgical repair of deteriorated mandible not covered by Medicare

By Jenny M. Burke, JD, MS

An osteopenic woman with low bone density in her mandible was unable to obtain coverage for dental implants, even though her mandible had eroded and she had problems chewing and digesting food (Born v Sebelius, September 24, 2013, Brimmer, P). Physicians performed the surgery consisting of bone grafts and reconstruction of the mandible for a total cost of $36,325. Trailblazer Health Enterprises, LLC, the Medicare contractor denied the Medicare claims from the surgery on the grounds that the surgery and implants were excluded from coverage as dental procedures under Medicare Part B. This decision is affirmed.

Implant surgery. Dixie Born (Born) is a 71 year old woman with a history of hyperlipidemia, osteopenia, and periodontal disease. As a result of these diseases, she has nutritional deficiencies resulting from her problems chewing and digesting food. Initially, Born had surgery to have a filler placed in her mandible to prevent further bone loss caused by the diseases. When that surgery deteriorated over time, Born and her physicians determined that it was medically necessary for her to undergo surgery to have dental implants for her mandible in order to reduce bone loss and optimize her nutritional intake. The surgery was performed in 2007 and Born submitted seven claims for jaw reconstruction and eight claims for bone grafts.

These claims were denied by the Medicare contractor, then upon reconsideration, denied again. Born appealed and requested an administrative hearing. At the hearing, the Administrative Law Judge (ALJ) agreed with Born, concluding that her surgeries were covered under Medicare Part B because they did not constitute dental services. The Medicare contractor appealed that decision to the Medicare Appeals Council (MAC). The MAC reversed the ALJ, concluding that mandible reconstruction and bone grafts are not covered under Medicare, and Born’s surgeries did not fall within the narrow exceptions listed. The MAC’s decision represents the final decision of the Secretary of Health and Human Services, and as such, was eligible for judicial review.

Dental coverage. Medicare covers services that are “reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member” and are not excluded by any other provision. Dental services, however, are not covered as a general rule. There are four basic exceptions: (1) dental services provided in a hospital setting in connection with an underlying medical condition may be covered under Medicare Part A; (2) beneficiaries may receive benefits for the extraction of teeth to prepare the jaw for radiation treatments of neoplastic disease; (3) benefits may be provided for oral examinations performed in a hospital before a beneficiary undergoes surgery for a kidney transplant; and (4) coverage is available if an otherwise noncovered procedure or service is performed by a dentist as incident to and as an integral part of a covered procedure or service performed by the dentist.

Ms. Born’s procedures did not qualify for one of the four exclusions under Medicare, because the medical records provide substantial evidence that the procedures were performed in connection with the treatment of her teeth and teeth supporting structures. Ms. Born argued that her surgeries should be covered because her dental services were performed to improve the functioning of her mandible, which she determined was a malformed body member, and would therefore qualify under the fourth exception. According to the court, because the regulations do not state that non-routine dental services similar to those Ms. Born received are covered under Medicare Part B, substantial evidence exists to exclude the services from coverage. Therefore, Ms. Born’s coverage appeal was denied.

The case number is 11-cv-02507-PAB.

Attorneys: Teresa H. Abbott (Law Office of Teresa Abbott P.C.) for Dixie Born. William George Pharo, U.S. Attorney's Office, for Kathleen Sebelius, Secretary of Health and Human Services.

MainStory: TopStory CoverageNews PartBNews ExclusionsNews MedicareContractorNews ColoradoNews

Health Law Daily

Introducing Wolters Kluwer Health Law Daily — a daily reporting service created by attorneys, for attorneys — providing same-day coverage of breaking news, court decisions, legislation, and regulatory activity.

A complete daily report of the news that affects your world

  • View full summaries of federal and state court decisions.
  • Access full text of legislative and regulatory developments.
  • Customize your daily email by topic and/or jurisdiction.
  • Search archives for stories of interest.

Not just news — the right news

  • Get expert analysis written by subject matter specialists—created by attorneys for attorneys.
  • Track law firms and organizations in the headlines with our new “Who’s in the News” feature.
  • Promote your firm with our new reprint policy.

24/7 access for a 24/7 world

  • Forward information with special copyright permissions, encouraging collaboration between counsel and colleagues.
  • Save time with mobile apps for your BlackBerry, iPhone, iPad, Android, or Kindle.
  • Access all links from any mobile device without being prompted for user name and password.