Lawsuit targets Medicare denial of dental care

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Medicare's refusal to cover extensive dental treatment that is often needed to treat patients with diseases such as oral cancer and Sjögren's syndrome is unreasonable and arbitrary, according to a lawsuit pending in U.S. federal court.

The litigation, originally filed in 2008 on behalf of one plaintiff, was recently amended by the Center for Medicare Advocacy (CMA) in the U.S. District Court for the District of Arizona against U.S. Health and Human Services Secretary Kathleen Sebelius on behalf of three Medicare beneficiaries who needed medically related dental care stemming from underlying medical conditions.

Medicare policy, which excludes coverage of "routine" dental care, does cover dental services when they are "incident to and an integral part of" eligible medical care. Dental procedures that are covered include extractions in preparation of radiation treatment of neoplastic disease, reconstruction of ridges that are performed simultaneously with the surgical removal of oral tumors, and the wiring of teeth if done in connection with jaw fractures.

"We have argued that this is a misinterpretation of the Medicare statute," said CMA attorney Sally Hart, who filed the suit. "We think that beneficiaries who require extensive dental services because of damage from Sjögren's syndrome, as well as cancer radiation treatment and other conditions that destroy the production of saliva, should not fall within the exclusion."

CMS does not comment on pending litigation, CMS spokesman Tony Salters told

Why coverage denied

Each of the plaintiffs in the CMA lawsuit suffered a serious medical condition, resulting in impairment of salivary gland function, with resulting damage to the mouth and teeth that threatened their overall health, according to the complaint.

But in each case, they were denied coverage, for reasons ranging from "Medicare does not cover most dental services" to "when an excluded dental service is the primary procedure involved, coverage is excluded regardless of the complexity of the procedure."

“If you have a leg amputated because you have diabetes, they'll certainly pay for a prosthetic limb.”
— James Sciubba, DMD, PhD

In one case, even though the Medicare Appeals Council agreed that the beneficiary's need for dental services was provoked by a medical condition, "the fact that there was a relationship between a medical condition and the dental services does not, by itself, qualify the dental services for Medicare coverage. ... In order to be covered by that exception, the dental services would have to be furnished along with another covered procedure performed by the dentist on the same occasion."

One of the plaintiffs, Ron Fournier, developed squamous cell cancer in his tonsils that metastasized to his neck nodes. His chemotherapy and radiation treatments resulted in muscositis, altered salivary gland function, and dental infections. He has extensive caries, and his teeth have broken off at gum level, leaving him unable to eat solid food, according to the complaint.

His oral surgeon prescribed the extraction of all 21 of Fournier's teeth, but the Centers for Medicare and Medicaid Services (CMS) and the Medicare Appeals Council denied coverage because extractions are covered only in three scenarios: for patients undergoing transplants, to prepare the jaw for radiation treatment for cancer, or in emergency treatment of injuries to the jawbone or surrounding tissues.

Another plaintiff, Delores Berg, was diagnosed with Sjögren's syndrome and suffers from related autoimmune disorders Raynaud's disease, limited scleroderma, and hypoththyroidism. She has lost saliva production, developed gingivitis, her teeth have broken off, and her ability to chew and swallow has been impaired, the lawsuit alleges.

Medicare coverage for her treatment was denied, with the CMS citing a policy not to pay for services involving "the care, treatment, filling, removal, or replacement of teeth or structures directly supporting the teeth," the complaint states.

And Thomas DiCecco Jr., received an allogeneic bone marrow transplant to treat his chronic myelogenous leukemia. The transplant subsequently caused graft-versus-host disease (GVHD), ending his ability to produce saliva, according to the complaint. In addition, his gums receded, resulting in infection and caries, his teeth cracked off at the roots, and his ability to eat was affected, the lawsuit alleges.

Coverage for his dental treatment was denied because the services were not performed at the same time and by the same dentist as the treatments for his covered medical condition, according to the complaint.

Exorbitant costs

"Medicare has dodged this bullet for a long time, and it must be addressed," said James Sciubba, DMD, PhD, an oral pathologist in Baltimore who is vice president of Support for People with Oral and Head and Neck Cancer, another advocacy group.

CMS consistently denies this type of coverage because of the exorbitant costs associated with often extensive dental treatments, Dr. Sciubba told Medically related dental treatments can cost more than the surgery and radiation treatment for the underlying medical conditions, he added.

For example, if a patient has part of the maxilla or mandible removed, and it has to be reconstructed with a metal bar or vascularized bone graft. Implants may then be placed into the grafted bone, followed by prosthetic reconstruction, which can often cost many thousands of dollars, Dr. Sciubba said -- more, in fact, than the cancer surgery and radiation therapy.

"That's part of the problem, and the Medicare folks certainly understand that," he said.

It is easier to get Medicare reimbursement for dental treatment related to oral cancer cases than other conditions, according to Dr. Sciubba.

"It becomes a bit more fuzzy and gray when it comes to things like Sjögren's syndrome because it involves routine dentistry, and that's going to be hard to win," he said.

Patients with Sjögren's syndrome or GVHD, which is rare and also impacts salivary functions, require much more preventive routine dentistry than normal people, Dr. Sciubba said.

"But that argument [for Medicare coverage] can be very, very hard to sell," he said. "Reimbursement for cancer-related dental treatment, while difficult to obtain, is generally easier to argue for, no question."

The same-time, same-provider Medicare requirement for coverage has been overcome by some of Dr. Sciubba's colleagues, he noted. For example, if a patient is hospitalized for partial recession of the lower jaw, surgeons will take a piece of fibula with soft tissue from the leg, transfer it to the mandible, reattach it to arteries and veins, and wire it in place, Dr. Sciubba explained. Then an oral surgeon or prosthodontist places implants into the grafted bone.

Such procedures are often reimbursable, he said, even though the surgeon who did the tumor resection didn't place the implants.

"But it's not uniform, and if they don't submit those claims appropriately with the right language, they're not likely to get reimbursed," Dr. Sciubba noted.

For example, if the patient is seen postsurgery on an outpatient basis, oral surgeons or prosthodontists can reconstruct either a removable or fixed appliance to the implants, CMS will usually refuse such claims, he explained.

"But that's what should be covered," Dr. Sciubba said.

Medically related dental care to completion is usually not performed at the same time of surgical resection of the tumor and bony reconstruction and by the same provider for the underlying medical condition, the lawsuit noted. This makes the Medicare requirement a "Catch-22" situation.

"If you have a leg amputated because you have diabetes, they'll certainly pay for a prosthetic limb, and this is precisely the same thing," he said.

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