Observe: The memo under is the marginally edited model utilized by the coaltion of by a coalition of organizations in search of to broaden Medicare protection for medically vital dental therapies.
Medicare protection for medically essential oral well being care is supported by the Medicare statute, its legislative historical past, Facilities for Medicare and Medicaid Providers (CMS) coverage, and precedent established by podiatry protection.
The Medicare Dental Exclusion is Restricted and Must be Interpreted Narrowly
The Medicare statute excludes cost for providers “in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth…” Part 1862(a)(12) of the Social Safety Act [42 U.S.C. § 1395y(a)(12)]. The supply bars cost when the first function of the dental work is to tackle the tooth and supporting buildings.
Importantly, the plain language of the statutory provision doesn’t prohibit cost for dental providers wanted “in connection with” remedy of medical points that reach past the tooth and supporting buildings. For instance, medical requirements and protocols for sure coated medical procedures (e.g., some organ transplants, cardiac surgical procedures, chemotherapies) require that dental infections be handled to scale back the danger of great and dear problems.
Furthermore, the legislative historical past displays Congress’ intent to restrict the dental exclusion to routine dental care. Medicare Half B covers “medical and other health services,” 42 U.S.C. § 1395okay(a)(2)(B), together with “services and supplies … furnished as an incident to a physician’s professional service,” id. § 1395x(s)(2)(A), and which are “reasonable and necessary,” id. § 1395y(a)(1)(A). Underneath this governing framework, protection would solely be out there for gadgets and providers related to the analysis and remedy of medical sickness, damage, and illness. Therefore, the protection exclusions listed underneath § 1395y(a) are gadgets and providers usually thought-about routine, beauty, supportive, preventive, comfort-related, or related to the traditional course of getting old.
The Senate Report accompanying the laws, nevertheless, expressly qualifies the scope of those 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.
The complete part of the Senate Report repeatedly acknowledges there might be medical conditions by which an excluded merchandise or service is medically crucial (i.e., not merely routine, beauty, comfort-related, and so on.) and clarifies firmly that protection can be obtainable in these situations.
Medicare protection for medically essential oral procedures is additional supported by the truth that the statute has all the time outlined “physician” to embrace dentists. See 42 U.S.C. § 1395x(r)(2). Later, 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 Home Report to that modification strengthened that the dental exclusion solely applies to “routine dental services.”
Accordingly, the dental exclusion shouldn’t be broadly construed to preclude protection for dental procedures in all circumstances, as this was not the legislative intent. A narrower interpretation additionally aligns with Medicare’s elementary, remedial function to assist beneficiaries entry and afford remedy for main medical issues.
CMS Acknowledges However Considerably Limits Protection for Medically Necessary Dental Providers.
Regardless of concern that CMS doesn’t have the authority to cowl medically mandatory dental providers, the Company has already exercised such authority by allowing Medicare cost for an oral or dental examination prior to kidney transplant surgical procedure. As defined, the statutory exclusion doesn’t prohibit protection on this occasion 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 Nationwide Protection Willpower Guide (MNCDM) Pub. 100-03, Ch. 1, Half four, § 260.6.
In keeping with this, the company additionally construes the overall dental exclusion as reserving cost for the providers 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 Basic Info, Eligibility and Entitlement Guide, Pub. 100-01, Ch. 5, §70.2. Based mostly on this correct understanding of the exclusion’s restricted scope, the company might authorize protection in a broader vary of medical contexts the place dental remedy is medically required.
Lastly, the statute permits cost for dental providers “furnished as an incident to a physician’s professional services” 42 U.S.C. § 1395x(s)(2)(A). CMS has interpreted the supply together with the dental exclusion to cowl a dental process carried out incident to and as an integral a part of a main, coated non-dental process. MBPM (Medicare Advantages Coverage Guide), CMS Pub. 100-02, Ch. 15, § 150.
Nevertheless, the company has additionally adopted a coverage that requires the dental service to be carried out concurrently and by the identical dentist who performs the non-dental process. Id. Underneath this exacting check, protection for the dental service is granted in very restricted circumstances (i.e., contemporaneous with coated jaw surgical procedure or tumor removing). The “same time/same dentist rule” is seen by many as unduly restrictive, in addition to flawed from a medical perspective. The rule hinges protection on the timing of the dental process, who administers it, and the anatomical location of the first coated process, quite than bearing in mind medical requirements and protocols and whether or not the process is, medically-speaking, incident to and an integral a part of a coated medical process or course of remedy.
CMS appropriately discerned the necessity to depart from its personal rule when it exercised its authority to cowl tooth extractions to put together the jaw for radiation remedy of neoplastic illness. MBPM, Ch. 15, § 150. The logical justification for this protection is that the tooth extractions are incident and integral to the coated radiotherapy, however that the procedures are carried out at separate occasions and by several types of practitioners. The Company might equally acknowledge and authorize protection in different situations the place dental providers are unequivocally integral to a coated medical remedy or process.
CMS Precedent for Protection of Medically Necessary Oral and Dental Care Exists within the Protection of Medically Necessary Routine Foot Care
As set forth in 42 U.S.C. § 1395y(a)(13) – a provision listed immediately after the dental exclusion within the Act– the Medicare program expressly bars cost for “routine foot care (including the cutting or removal of corns or calluses, the trimming of nails, and other routine hygienic care)[.]” Nevertheless, CMS doesn’t interpret this statutory exclusion as stopping its protection of medically-necessary foot care.
In its implementing regulation, CMS permitted exceptions for the remedy of warts and mycotic toenails, and for routine foot care if furnished “[a]s an incident to, at the same time as, or as a necessary integral part of a primary covered procedure performed on the foot” or “[a]s initial diagnostic services (regardless of the resulting diagnosis) in connection with a specific symptom or complaint that might arise from a condition whose treatment would be covered.” 42 C.F.R. § 411.15(l)(2).
In deciphering its regulation, the company’s coverage steerage goes even additional to authorize Medicare cost for routine foot care when “[t]he presence of a systemic condition such as a metabolic, neurologic, or peripheral vascular disease may require scrupulous foot care by a professional that in the absence of such condition(s) would be considered routine (and therefore, excluded from coverage).” MBPM, Ch. 15, § 290. The coverage thus establishes a presumption of protection when there’s documented proof that a affected person has an underlying systemic situation with extreme peripheral involvement. Such medical findings would validate the administration of medically affordable and crucial, and subsequently reimbursable, foot care.
Comparable to the exceptions carved out for foot care, CMS might duly set up exceptions to the dental exclusion based mostly on substantiated medical want. As with the foot care exceptions, the coverage might present a non-comprehensive record of underlying circumstances which may justify protection, and embrace a rubric of pertinent medical findings that might help medical necessity.
Medicare could be improved by offering medically vital protection to tackle oral and dental circumstances that pose a critical danger to a affected person’s well being or medical remedy. This consists of situations the place a doctor has decided that a affected person’s oral an infection or illness will delay or forestall the receipt of, or in any other case complicate the result of, a coated remedy for an underlying medical situation. For instance, medical requirements and protocol might strongly advocate or completely require the decision of oral infections for sure sufferers with diabetes, or pulmonary illness, or who want an organ transplant, immunotherapy, joint alternative, or coronary heart surgical procedure. Untreated dental circumstances in such contexts can show to be not solely medically hazardous to sufferers, but in addition very pricey for the well being care system.
As mentioned above, CMS has already exercised its authority to cowl medically essential oral and dental providers in a number of situations as a matter of coverage. The company doesn’t view the statutory dental exclusion as a barrier to protection in these situations as a result of the providers will not be primarily to care for the tooth, however incident and integral to a coated medical process. By the identical regard, the company might authorize significant protection for dental providers in a broader vary of medical circumstances, very similar to it did for foot care. Revising CMS coverage to outline protection for medically essential oral and dental therapies wouldn’t broaden protection past what the Medicare statute permits. On the contrary, it might uphold the overall statutory exclusion of primary, routine dental care whereas fulfilling Congress’ objective of making certain entry to and protection of medically vital remedy for main well being issues.
 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.
 It’s noteworthy that the company’s unique regulation barred cost 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).
 “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 Providers, 633 F. Supp. 671, 679 (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, 1019 (NDND 1975) (citing Coe v. Secretary of Health, Educ. and Welfare, 502 F.2nd 1337, 1340 (4th Cir. 1974).
 See Lodge v. Burwell, 2016 WL 7493954 (D. Conn. 2016) (cautioning towards “a too-literal application” of the incident-and-integral exception to require that providers be carried out by the identical physician and on the identical event. The choice states that a strict software of 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 additional means that the strict necessities of this rule “stand in tension” with the remedial ends of the Act, which might “permit payment for dental services whose primary purpose is not merely the care or treatment of teeth.”).