Coverage for Medically Necessary Oral Health Care Is Unduly Restricted By Medicare’s Dental Policy
Medicare coverage for medically necessary oral health care is supported by the Medicare statute, its legislative history and, in some instances, even CMS policy. For this purpose, “medically necessary oral health care” refers to treatment deemed necessary by a physician when a patient’s medical condition or treatment is or will likely be complicated by an untreated oral health problem.
The Medicare Dental Exclusion is Limited and Should be Interpreted Narrowly
The statutory dental exclusion bars Medicare payment for services “in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth…” [Section 1862(a)(12) of the Social Security Act [42 U.S.C. § 1395y(a)(12)]. The exclusion is limited to routine dental work that is primarily for the care of the teeth. Nothing in the statutory language restricts coverage of oral health care for the medically necessary treatment or diagnosis of an illness or injury. As such, the dental exclusion does not apply to procedures that are deemed medically essential to diagnose, treat, or manage serious health problems that extend beyond the teeth and supporting structures.
CMS acknowledged this when it authorized Medicare payment for an oral or dental examinations prior to kidney transplant surgery. It rationalized that coverage in that instance does not run afoul of the dental exclusion because the “purpose of the examination is not for the care of the teeth or structures directly supporting the teeth. Rather, the examination is for the identification, prior to a complex surgical procedure, of existing medical problems where the increased possibility of infection would not only reduce the chances for successful surgery but would also expose the patient to additional risks in undergoing such surgery.” Medicare National Coverage Determination Manual (MNCDM) Pub. 100-03, Ch. 1, Part 4, § 260.6. Consistent with this, the agency has also construed the general dental exclusion as limiting payment for the services of dentists “to those procedures which are not primarily provided for the care, treatment, removal, or replacement of teeth or structures directly supporting the teeth.”(Emphasis added). Medicare General Information, Eligibility and Entitlement Manual, Pub. 100-01, Ch. 5, §70.2.
Moreover, the legislative history of the dental exclusion manifests Congress’ intent for it to apply only to routine oral health care. The Medicare program would not cover basic dental care, such as the annual check-ups, regular cleanings, and fillings, extractions, dentures, bridges, crowns, and veneers – in other words, services routinely utilized by most beneficiaries outside of the context medical illness and injury. This intention is evidenced by the dental exclusion’s location within a list of similarly excluded basic, cosmetic, supportive, custodial or comfort items and services. The Senate Report accompanying the legislation expressly limits the scope of these exclusions:
“Payments would not be made for routine physical examinations or for eyeglasses, hearing aids, or the fitting expenses or other costs incurred in connection with their purchase. The committee bill provides a specific exclusion of routine dental care to make clear that the services of dental surgeons covered under the bill are
restricted to complex surgical procedures. Thus, payment would be made under the supplementary plan for the physician’s services connected with the diagnosis of a specific complaint and the treatment of the ailment, but a routine annual or semiannual checkup would not be covered. Similarly, the diagnosis and treatment by an ophthalmologist of, say, cataracts would be covered but the expenses of an eye examination to determine the need for eyeglasses and charges for prescribing and fitting eyeglasses or contact lenses would not be covered. Similarly, too, routine dental treatment — filling, removal, or replacement of teeth or treatment of structures directly supporting teeth – would not be covered.” S.Rep.No. 89-404 (1965), reprinted in 1965 U.S.C.C.A.N. 1943, 1989-90. Emphasis added.
This statement evinces Congress’ clear intent to distinguish between oral health care furnished on a routine basis, which is not covered, versus medical treatment in the mouth that will be covered. Thus, § 1395y(a)(12) of the Medicare Act was not meant to be an absolute bar or blanket exclusion on all oral health care. As stated above, the legislative goal was to clarify that oral procedures in complex, non-routine, medically necessary circumstances would be covered. This is in alignment with the Medicare program’s fundamental, remedial purpose to help the elderly and disabled in their time of greatest need by affording them access to necessary medical care. 
Furthermore, the availability of Medicare coverage for medically necessary oral health care is also supported by the fact that the statute has always defined “physician” to include dentists. See 42 U.S.C. § 1395x(r)(2). In 1980, Congress even expanded that definition, “when used in connection with the performance of any function or action, [to mean] … (2) a doctor of dental surgery or of dental medicine … who is acting within the scope of his license when he performs such functions.” Notably, the House Report to that amendment reinforced that the dental exclusion only applies to “routine dental services.”
Finally, the statute permits payment for dental services “furnished as an incident to a physician’s professional services” as defined in 42 U.S.C. § 1395x(s)(2)(A). While CMS recognizes this, it interprets the provision in conjunction with the dental exclusion to allow coverage for a dental procedure when it is performed incident to and as an integral part of a primary, covered non-dental procedure. To qualify, however, the agency requires that the secondary dental procedure must be performed at the same time and by the same dentist who is performing the covered non-dental procedure. MBPM Pub. 100-02, Ch. 15 § 150. Under this exacting test, dental coverage is only granted in extremely limited circumstances, usually in conjunction with jaw surgery. The agency’s “same time/same dentist rule” is unduly restrictive and arbitrarily hinges coverage on the timing of the dental procedure and who administers it, rather than taking into account clinical standards and protocols and whether the procedure is, from a medical perspective, incident to and an integral part of a covered procedure or course of treatment.
Even CMS saw the need to depart from its same time/same dentist rule when it authorized coverage for tooth extractions to prepare the jaw for radiation treatment of neoplastic disease. The obvious justification for allowing an exception in this circumstance is that the medically necessary extractions are incident to the covered radiotherapy notwithstanding that they are performed at a different time and by a different type of physician. Similarly, CMS could and should ensure that coverage is available in other circumstances in which dental services and oral health care are medically integral to a covered treatment or procedure.
CMS has the authority to modify its overly broad interpretation of the statute. Revising CMS policy to clarify that medically necessary oral health care, including essential, non-routine dental procedures, is covered would not expand coverage beyond what the Medicare statute allows. To the contrary, it would uphold the general statutory exclusion for basic, routine dental care while fulfilling Congress’ goal of covering medically necessary health care, including oral health care.
March 2, 2017 – W. Kwok
 Although the agency has sometimes maintained that all work on the teeth and supporting structures is, by nature and definition, “routine” and never a complex surgical procedure, it nonetheless justifies covering dental examinations prior to kidney transplantation because the latter is a “complex surgical procedure”. MNCDM, Pub. 100-03, Ch. 1, Part 4, § 260.6.
 It is noteworthy that the agency’s original regulation barred payment for “Routine dental services in connection with the care, treatment, filling, removal, or replacement of teeth, or structures directly supporting the teeth.” 20 C.F.R. § 405.310(i), added 31 F.R. 13534, 13535 (Oct. 20, 1966). A few years later, the agency removed the word “routine” from the provision without public notice and comment. The agency has asserted that removal of the term “routine” was a logical outgrowth of the proposed regulation, which intended to amend the regulation to conform to Congress’ 1972 and 1973 statutory amendments to the dental exclusion. However, those statutory amendments simply authorized payment for certain Part A hospital inpatient services when a patient’s underlying condition or the severity of the dental procedure required that it be performed in the hospital. Because the amendments did not affect whether the dental procedure itself would be covered under Part B, they had no impact upon the routine dental exclusion.
 “The Medicare statute, remedial in nature, is to be broadly construed.” Hirsch v. Bowen, 655 F. Supp. 342, 344 (S.D.N.Y., 1987) (citing Gartman v. Secretary of U.S. Depart. Of Health and Human Services, 633 F. Supp. 671, 679 (E.D.N.Y., 1986). Moreover, “exclusions from coverage should be narrowly construed lest they inadvertently encompass the qualifications for benefits.” Westgard v Weinberger, 391 F. Supp. 1011, 1019 (NDND 1975) (citing Coe v. Secretary of Health, Educ. and Welfare, 502 F.2nd 1337, 1340 (4th Cir. 1974).
 Of note, although this subsection qualifies the scope of actions performed by doctors of podiatry, optometry, and chiropractor, see 42 U.S.C. § 1395x(r)(3)-(5), it places no similar restrictions on the actions of dentists that may be covered. Id., § 1395x(r)(2).
 Pub. L. No. 96-499, § 936(a), 94 Stat. 2599, 2639-2640 (1980) (amending 42 U.S.C. § 1395x(r).
 H.R. Rep. No. 96-1167 at 372 (1980), reprinted at 1980 U.S.C.C.A.N. 5526, 5735.