Lodge v. Burwell

No. 3:15-cv-00390-JBA (D.Conn.), filed March 17, 2015

Issue: Whether extraordinary dental care should be covered because the exclusion for coverage of dental care should be limited to routine dental care.

Relief Sought: Reversal of the Secretary’s decision denying coverage to the plaintiff and enjoining the Secretary from relying on a regulation that does not define the coverage limitation with the word “routine.”

Updated: October 13, 2016

Status: After the original complaint was filed challenging an individual denial of coverage for extraordinary oral care, but before the Secretary had answered, plaintiff obtained agreement from the Secretary to file an amended complaint adding an additional claim.  That amended complaint was filed on June 30, 2015.  The additional claim contends that the original regulation defining the dental exclusion explicitly used the word “routine” to describe the excluded care, but that, without notice-and-comment rulemaking as required by the Administrative Procedure Act (APA), the Secretary removed the word “routine” and thus expanded the scope of the exclusion.  Plaintiff therefore contends that, because the APA was not followed, the Secretary cannot apply the amended rule but must use the original rule that limits the exclusion to routine dental care.

Although the Secretary did move to dismiss on the ground that the time to challenge the change to the regulation had passed under the statute of limitations, she withdrew that motion before the Court could rule.  The parties’ cross-motions for summary judgment were argued on September 23, 2016.