The Medicare Dental Exclusion: Is it Being Used to Deny Vulnerable Beneficiaries Needed Care?
Government contractors administering Medicare benefits are routinely denying coverage to cancer patients for claims involving the surgical removal of decayed and infected teeth caused by an aggressive course of radiation treatment to the head and neck. The decayed and infected teeth, when left untreated, place these cancer patients at increased risk for infection, thereby decreasing rates of survival. These vulnerable patients are often too ill to challenge these systematic denials through the appeals process.
Radiation treatments are commonly prescribed for individuals who have oral, head, or neck cancer. A common result of aggressive radiation treatment to the head and neck is the destruction of salivary glands, a condition known as Xerostomia or dry mouth. Xerostomia leads to infections in the tooth root as well as at the gum line, causing teeth to literally crumble and break off at the root. Radiation treatment to the head and neck can also cause mucositis, altered salivary gland function, and a risk of mucosal infection. Mucositis is an “inflammation and ulceration of the oral mucosa,” which together with Xerostomia increases susceptibility to infection in cancer patients. Radiation treatment can also cause fibrosis and changes in the bone of teeth, jaws and surrounding tissues.
An inability to access needed dental care can affect the individual’s overall health, increase the risk of infection, and lessen the likelihood of recovery from the cancer. The inclusion of dental services is the standard of care for the treatment of oral cancer, such that the National Cancer Institute of the National Institutes of Health has stated:
It is essential that a multidisciplinary approach be used for oral management of the cancer patient before, during, and after cancer treatment. A multidisciplinary approach is warranted because the medical complexity of these patients affects dental treatment planning, prioritization, and timing of dental care. In addition, selected cancer patients (e.g., status post treatment with high-dose head-and-neck radiation) are often at lifelong risk for serious complications such as osteoradionecrosis of the mandible. Thus, a multidisciplinary oncology team that includes oncologists, oncology nurses, and dental generalists and specialists as well as dental hygienists, social workers, dieticians, and related health professionals can often achieve highly effective preventive and therapeutic outcomes relative to oral complications in these patients.
An appeal filed recently by the Center For Medicare Advocacy in federal court, District of Connecticut, presents an opportunity for the court to review whether surgical treatment to a Medicare beneficiary’s teeth damaged by radiation therapy to the head and neck was 1) properly characterized by an Administrative Law Judge as a covered physician service medically reasonable and necessary as a part of an overall plan of care for cancer or 2) improperly characterized by the government contractor as excluded dental services. These competing interpretations depend upon how the specific treatment is characterized.
Characterization of the treatment as falling within the dental exclusion, 42 U.S.C. §1395y(a)(12), leaves a cancer patient without coverage for surgical removal of the decayed and infected teeth to prevent further infection and increase rates of survival. Characterizing the treatment as physician services supports coverage for medically reasonable and necessary treatment for the cancer patient pursuant to 42 U.S.C. §1395y(a)(1)(A). Federal regulations and Medicare policy support coverage for the surgical removal of decayed and infected teeth as a part of the cancer patient’s overall plan of care.
42 C.F.R. §410.20(a) provides:
Medicare Part B pays for physicians’ services including diagnosis, surgery, consultations, and home, office and institutional call.
Pub. 100-01, Ch. 5, §70.2 (Medicare General Information, Eligibility and Entitlement Manual) provides:
A dentist qualifies as a physician if he/she is a qualified doctor of dental surgery…[a]nd such services include…treatment of oral infections…in connection with covered services.
The provision in the Medicare statute that excludes coverage of dental services is clearly reserved for only routine dental coverage, not reasonable and necessary medical treatment in connection with a covered service and as a part of an overall plan of care for cancer. By way of example, the exclusion of routine dental services is grouped with other excluded services all of which are also routine in nature. This section of the statute reads as follows:
a. Items or services specifically excluded. Notwithstanding any other provision of this subchapter no payment may be made under part A or part B…for any expenses incurred for items or services –
(7) where such expenses are for routine physical checkups, eyeglasses…or eye examinations for the purpose of prescribing, fitting, or changing eyeglasses, procedures performed (during the course of any eye examination) to determine the refractive state of the eyes, hearing aids or examinations therefor, or immunizations…;
(8) where such expenses are for orthopedic shoes or other supportive devices for the feet, other than shoes furnished pursuant to §1395x(s)(12)…;
(9) where such expenses are for custodial care…;
(10) where such expenses are for cosmetic surgery or are incurred in connection therewith, except as required for the prompt repair of accidental injury or for improvement of the functioning of a malformed body member;
(11) where such expenses constitute charges imposed by immediate relatives of such individual or members of his household;
(12) whose such expenses are for services 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 . . . in the case of inpatient hospital services in connection with the provision of such dental services if the individual, because of his underlying medical condition and clinical status or because of the severity of the dental procedure, requires hospitalization in connection with the provision of such services;
(13) where such expenses are for –
(A) the treatment of flat foot conditions and the prescription of supportive devices therefor,
(B) the treatment of subluxations of the foot, or
(C) routine foot care (including the cutting or removal of corns or calluses, the trimming of nails, and other routine hygienic care)…
42 U.S.C. § 1395y (Emphasis added).
Mischaracterizing treatment for the consequence of radiation therapy, a covered medical service, as routine dental services without considering a cancer patient’s life-threatening condition as a whole is an improper interpretation of the Medicare statutory scheme. “The Medicare statute, remedial in nature, is to be broadly construed.” 42 U.S.C. §§1395 et seq. Hirsch v. Bowen, 655 F. Supp. 342 (S.D.N.Y., 1987) (citing Gartman v. Secretary of U.S. Department of Health and Human Services, 633 F. Supp. 671 (E.D.N.Y., 1986)).
Furthermore, “exclusions from coverage should be narrowly construed lest they inadvertently encompass the qualifications for benefits.” Westgard v Weinberger, 391 F.Supp. 1011, at 1019 (D.C.N.D., 1975) (citing Coe v. Secretary of Health, Educ. and Welfare, 502 F.2nd 1337, 1340 (4th Cir. 1974). See also Hibbs v. Winn, 542 U.S. 88, 101 (2004); The Wilderness Society v. U.S. Fish & Wildlife Service, 353 F.3d 1051, 1060-61 (9th Cir. 2003) (en banc) (“[i]t is … a fundamental canon that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”) (internal quotation marks and citation omitted).
The fact that the dental exclusion in the Medicare statute, 42 U.S.C. § 1395y(a)(12), is placed in the midst of a list of health services that are truly routine is evidence that this exclusion was also intended to apply to routine dental services rather than reasonable and necessary medical treatment for cancer patients that could directly affect patient survival.
In addition, the mischaracterization of treatment for the consequence of radiation therapy in cancer patients as an excluded dental service rather than as a covered physician service for the sole reason that it concerns “teeth” operates to deprive those patients of Medicare coverage for potentially life-saving ongoing treatment as a part of their overall plan of care.
These “extreme” dental and oral medical treatments fall within 42 U.S.C. §1395y(x) and should be covered by Medicare. The medical care is clearly not within the “routine” dental exception as anticipated by the law. Continuing to pretend otherwise denies very sick and vulnerable people coverage for medically necessary treatment they absolutely require, simply because it involves their mouths and teeth.
A. Ciottone – May, 2015
 Other cancer treatments, including certain chemotherapies and immune suppressing drugs used after bone marrow transplants, also cause devastating damage to the mouth, teeth and jaw. Currently, these oral injuries resulting from cancer treatments are rarely covered by Medicare.
 See e.g., The National Cancer Institute, “Complications of Chemotherapy and Head/Neck Radiation (PDQ) at http://www.cancer.gov/cancertopics/pdq/supportivecare/oralcomplications/HealthProfessional/page1 and Xerostomia, The Oral Cancer Foundation at http://www.oralcancerfoundation.org/complications/xerostomia.php.
 Pamela J. Hancock, Joel B. Epstein & Georgia Robins Sadler, Oral and Dental Management Related to Radiation Therapy for Head and Neck Cancer, 69 J. Can. Dental Assn. 585 (2003).
 Id., 586-587.
 Id., 585-587.
 The National Cancer Institute, “Complications of Chemotherapy and Head/Neck Radiation (PDQ) at http://www.cancer.gov/cancertopics/pdq/supportivecare/oralcomplications/HealthProfessional/page1
 National Cancer Institute PDQ, see footnote 2 above.
 42 U.S.C. §1395y(a)(1)(A) provides: “Notwithstanding any other provision of this title, no payment may be made under part A or part B of this subchapter for any expenses incurred for items or services—(1) (A) which, except for items and services described in a succeeding subparagraph or additional preventive services…, are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member…”