May 2016 – Medicare’s Coverage of Oral Health & Other Issues

MEDICARE’S COVERAGE OF ORAL HEALTH  

Current Centers for Medicare & Medicaid Services (CMS) policy[1] broadly bars Medicare coverage for practically all dental services.  The Center for Medicare Advocacy firmly believes that CMS has the legal authority under the Medicare statute to cover medically necessary oral health care – that is, treatment deemed necessary by a physician when a patient’s medical condition is or will likely be complicated by an untreated oral health problem.

The Medicare Dental Exclusion is Limited and Should be Interpreted Narrowly

First, the dental exclusion in the Medicare statute only excludes 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)]. Nothing in this language restricts coverage for dental services furnished in connection with the medically necessary treatment or diagnosis of an illness or injury, the ramifications of which extend beyond the teeth and supporting structures. 

CMS acknowledged this in some way when it authorized Medicare payment for oral or dental examinations prior to kidney transplant surgery.  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.  In a separate policy provision, CMS construes 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

Secondly, Congress only meant for the dental exclusion to apply to routine oral health care, such as annual check-ups, regular cleanings, and fillings, extractions, dentures, bridges and crowns – in other words, services widely and frequently utilized by beneficiaries. This is evident by where the exclusion is posited – among a list of other relatively routine, cosmetic, personal, custodial or comfort items and services.  Moreover, the Senate Report accompanying the legislation states:

“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, . . . a routine annual or semiannual checkup 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).

A reading of the entire section of the committee report reveals Congress’ clear intent to limit the dental exclusion to routine services[2] in order to reserve coverage for medically necessary circumstances.[3]  This was 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. [4]

Third, the availability of Medicare coverage for medically necessary oral health care is also established by the fact that the statute has always defined “physician” to include dentists. See 42 U.S.C. § 1395x(r) (2).[5]  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.”[6]  Notably, the House Report to that amendment repeatedly reinforced that the dental exclusion only applies to “routine dental services.”[7]

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).  Although 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 stipulates 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 would only be granted in extremely limited circumstances, usually in connection 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. Id.  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. 

Conclusion

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, can be covered by Medicare 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.

For more information, see the Center’s website at: https://www.medicareadvocacy.org/medicare-info/dental-coverage-under-medicare/.

ADMINISTRATIVE UPDATE

Proposed Rules

      Part B Drug Demonstration

As discussed in a previous Alert, on March 11, 2016 the Centers for Medicare & Medicaid Services (CMS) published a proposed rule aimed at reforming how Medicare pays for drugs covered under Part B. CMS states that its main objective is to ensure that physicians are prescribing the most effective prescription drugs in order to improve patient treatment and to rein in drug spending.

Under the proposed rule, CMS will implement a two-phase payment model over five years. In Phase I, CMS will decrease the add-on payment included in physician reimbursements for administering Part B drugs from 6 percent to 2.5 percent, plus a $16.80 flat fee. In Phase II, CMS will implement value-based pricing strategies, including reference pricing, indications-based pricing, risk-sharing agreements based on outcomes, discounting or eliminating patient cost sharing, and feedback on prescription patterns and online decision support tools.

The Center will submit comments, and has signed on to a letter supporting the demonstration along with 24 other organizations, including AARP, other consumer advocates, unions, and health plans.

The proposed rule, CMS-1670-P, is at 81 Fed. Reg.13230 (Mar. 11, 2016), available at: https://www.gpo.gov/fdsys/pkg/FR-2016-03-11/pdf/2016-05459.pdf.   Comment period closes May 9, 2016.

Hospital Payment (Including NOTICE Act relating to Observation Status)

In the proposed rules to update Medicare reimbursement to acute care hospitals, CMS includes revisions to the Medicare hospital inpatient prospective payment systems (IPPS), and proposed policy updates to the Hospital Value-Based Purchasing (VBP) Program, the Hospital Readmissions Reduction Program, and the Hospital-Acquired Condition (HAC) Reduction Program.

In addition, CMS also announces how it intends to implement the Notice of Observation Treatment and Implication for Care Eligibility Act (NOTICE Act). Effective August 6, 2016, the NOTICE Act requires that hospitals provide written and oral notice, within 36 hours, to patients who are in observation or other outpatient status for more than 24 hours.  The notice must explain the reason that the patient is an outpatient and describe the implications of that status both for cost-sharing in the hospital and for subsequent “eligibility for coverage” in a skilled nursing facility (SNF).

In the proposed rules, CMS announces that it will require hospitals to use a new standardized notice, the Medicare Outpatient Observation Notice (MOON), which it has submitted to the Office of Management and Budget for approval.   As discussed in our April 27 Alert, the Center has significant concerns about the proposed rules relating to the notice required by this Act, including:

• The proposed rule does not require the hospital to explain in the MOON the specific reason the patient is being considered an outpatient;
• While all Medicare notices of coverage determinations other than the MOON give beneficiaries an opportunity to appeal to Medicare for a determination of coverage, only the MOON defines the coverage issue as non-appealable;
• The MOON will not be required for patients whose hospitals choose not to code their “outpatient” Medicare bills as Observation Status; about half of long-stay outpatients are not considered observation status, however, solely because the hospital chose not to bill Medicare for observation hours (the consequences for patients is the same: whether the hospital billed Medicare for observation hours or not, the patient’s post-hospital care in the SNF is not covered because the patient was classified as an outpatient by the hospital). 

The MOON notice (CMS Form Number CMS-10611) can be found here:  

https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing-Items/CMS-10611.html?DLPage=1&DLEntries=10&DLSort=1&DLSortDir=descending

The proposed rules, CMS-1655-P, is at 81 Fed. Reg. 24945 (April 27, 2016), available at https://www.gpo.gov/fdsys/pkg/FR-2016-04-27/pdf/2016-09120.pdf.

• Comments are due June 17, 2016.

Skilled Nursing Facilities

On April 25, 2016, proposed rules were published in the Federal Register to update Medicare reimbursement rates for Skilled Nursing Facilities (SNFs) for fiscal year 2017 (which begins July 1, 2016).  Also included were updates and requests for public comment on the SNF Value-Based Purchasing Program (mandated by §215 of the Protecting Access to Medicare Act of 2014); SNF Quality Reporting Program (mandated by Improving Medicare Post-Acute Care Transformation Act of 2014); and SNF Payment Models Research (i.e., revisions to reimbursement methodology for therapy and nursing). 

The proposed rule, CMS-1645-P, is at 81 Fed. Reg. 24229 (April 25, 2016), available at: https://www.gpo.gov/fdsys/pkg/FR-2016-04-25/pdf/2016-09399.pdf.

• Comments are due June 20, 2016.

MACRA (Physician Payment)

On April 27, 2016, CMS released a proposed rule outlining new physician payment systems created by the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA).  The proposed rule will be published in the Federal Register on May 9, 2016.  CMS also issued a press release discussing the proposed rule.

MACRA repealed the flawed sustainable growth rate (SGR) methodology previously used to calculate physician payment in the Medicare program. SGR is replaced by a new Merit-based Incentive Payment System (MIPS) for MIPS eligible clinicians or groups. The proposed rule would establish the MIPS and also would establish incentives for physician participation in certain alternative payment models (APMs).

• Comments are due June 27, 2016.

Durable Medical Equipment and Dual Eligibles

There is a serious and persistent obstacle to obtaining durable medical equipment (DME) among people with Medicaid and Medicare benefits. While having both types of coverage should enhance benefits, the logistical problems created by the misalignment of Medicare and Medicaid coverage lead to barriers in accessing needed care among vulnerable older adults and people with disabilities.

• Medicare generally does not provide prior authorization for coverage of DME. Medicare provides a coverage decision only after delivery of the DME. Therefore, suppliers are unsure if Medicare will cover DME prior to their delivery of the item. Without the delivery of the DME to trigger the Medicare coverage decision, suppliers are usually unable to bill Medicaid.
• Because Medicaid programs, in fulfilling their requirement to be payer of last resort, most frequently choose to avoid costs for claims for which another party, such as Medicare, could be liable, state Medicaid agencies usually require that a bill be submitted to Medicare first, and only pay after there is a Medicare decision. DME suppliers generally cannot bill Medicaid until they receive a coverage decision from Medicare.
• Without any assurance that the DME will be covered by Medicare, and without the ability to bill Medicaid absent a Medicare decision, some suppliers express concern that they will not be paid by either agency. When a supplier refuses delivery of DME, dually eligible beneficiaries must either incur liability for expensive DME or forgo necessary use of such equipment.
• Often, these problems arise when beneficiaries transition from Medicaid-only status to dual Medicare-Medicaid status. In these instances, individuals who previously had no difficulty obtaining their DME through Medicaid, may face vendors who refuse to deliver the same DME once they become eligible for Medicare.

Some solutions exist, such as the Medicaid prior authorization solution in Connecticut, and the California approach of providing the State Medicaid Agency with a list of DME that is not covered by Medicare.

We are looking for more examples of this problem, and any suggested solutions to support our advocacy.  Please contact Kata Kertesz at kkertesz@medicareadvocacy.org.

Administration on Community Living Grant – For Medicare Beneficiaries Under age 65

An update on the activity generated by Center’s Administration for Community Living grant to expand SHIP/SMP outreach opportunities to Medicare beneficiaries Under Age-65:

In the first six months of the grant, the Center for Medicare Advocacy (the Center) created an Advisory Team for this project made up of individuals with varied backgrounds and high levels of expertise in working with individuals in this hard-to-reach population – including membership from our three target states: CT, LA, and CA. The Advisory Team has members from the Administration for Community Living, the Centers for Medicare and Medicaid Services, the Social Security Administration, multiple disease group and other advocate group representatives, and staff and volunteers from various State Health Insurance Programs (SHIPs). The Advisory Team meets approximately every other month to discuss next steps in the project and report on accomplishments between meetings.

The Center created a web-page on the Center’s website (www.MedicareAdvocacy.org) dedicated to issues for people who are under the age of 65 and who are eligible for Medicare benefits. This web-page is available to SHIPs and SMPs and all beneficiaries and advocates of beneficiaries who are looking for information to Medicare beneficiaries who are under age 65. Currently the web-page includes resources and events that will benefit this hard-to-reach population.

The Center established connections with the SHIP Training Center and the SMP Training Center to utilize and leverage the libraries accessed by SHIP and SMP staff and volunteers. Center events and information links are posted to the libraries.

The Center, and colleagues of the Center (Justice in Aging), have presented two webinars for Medicare beneficiaries who are under the age of 65. The Center hosted and presented a webinar on An Overview of Eligibility, Enrollment and Payment on January 21, 2016. Approximately 350 people registered for this webinar. The Center hosted, and Justice in Aging presented, a webinar on Medicare for Dually Eligible and Low Income People Under Age 65 on March 17, 2016. Approximately 1,000 people registered for this webinar.

The Center has plans for six additional webinars, to be presented over the remaining course of the grant – approximately every other month. The webinars will address topics that have been identified as concerns (through survey and Advisory Team feedback) to Medicare beneficiaries under age 65. The next webinar will take place on May 17, 2016 and will address Medicare Part D, prescription drug coverage, with special emphasis on concerns for this hard-to-reach population.

The Center developed and conducted a survey with the assistance of the Administration for Community Living (ACL).  The Center also assisted another ACL grantee to conduct a survey for their hard-to-reach population. The over-arching goal of the Center’s survey was to determine the baseline of knowledge and available information that SHIPs and SMPs have to assist Medicare beneficiaries who are under the age of 65. Survey respondents came from 42 states and territories. The results of the survey showed that the great majority of people in SHIPs and SMPs (over 80%) feel that they need more and better information to serve Medicare beneficiaries who are under age 65. Most survey respondents would like to have information provided to them through webinars and posted materials.

In the first six months of the project, the Center continued to introduce ourselves to SHIPs and SMPs who are learning to count on the Center as a resource, particularly in our target states of California, and Louisiana. (We have long partnered with the Connecticut SHIP, known as CHOICES.)

• For more information, see: https://www.medicareadvocacy.org/under-65-project/.

LITIGATION UPDATE

• Barrows v. Burwell (formerly Bagnall v. Sebelius) (Observation Status) No. 3:11-cv-01703 (D. Conn., filed 11/3/2011). In November 2011, the Center for Medicare Advocacy and Justice in Aging filed a class action lawsuit on behalf of individuals who have been denied Medicare Part A coverage of hospital and nursing home stays because their care in the hospital was considered "outpatient observation" rather than an inpatient admission. When hospital patients are placed on observation status, they are labeled "outpatients," even though they are often on a regular hospital floor for many days, receiving the same care as inpatients.  Because patients must be hospitalized as inpatients for three consecutive days to receive Medicare Part A coverage of post-hospital nursing home care, people on observation status do not have nursing home coverage.  They must either privately pay the high cost of nursing care or forgo that skilled care.  The number of people placed on observation status has greatly increased in recent years.

  On September 23, 2013, a federal judge in Connecticut granted the government’s motion to dismiss the lawsuit.  Plaintiffs appealed, but limited the appeal to the issue of the right to an effective notice and review procedure for beneficiaries placed on observation status.

  On January 22, 2015, a three-judge panel of the U.S. Court of Appeals for the Second Circuit decided that Medicare patients who are placed on observation status in hospitals may have an interest, protected by the Constitution, in challenging that classification.  The panel held that the district court erred when it dismissed the plaintiffs’ due process claims, and it sent the case back to that court for further proceedings.  Barrows v. Burwell, 777 F.3d 106 (2d Cir. 2015).

  Update: The parties have almost completed discovery on the question of whether plaintiffs have a “protected property interest” in Part A coverage of their hospital stays, such that they would have due process rights. Plaintiffs have received voluminous documentation from the government and conducted depositions of witnesses from the Department of Health and Human Services, Medicare contractors, and some of the hospitals that treated the named plaintiffs. The law firm of Wilson Sonsini Goodrich & Rosati, which has helped the Center in previous litigation, is providing pro bono assistance. Summary judgment briefing will commence soon, with the government’s opening brief due June 16, 2016.

  • For more information about this decision, including a link to the opinion, see: https://www.medicareadvocacy.org/appeals-court-allows-hospital-patients-in-observation-status-to-continue-court-case/ 
  • For more information about observation status, including pending legislation   see: https://www.medicareadvocacy.org/medicare-info/observation-status/.
• Exley v. Burwell (formerly Lessler v. Burwell), No. 3:14-cv-1230 (D. Conn.) (ALJ Delays) The Medicare statute and regulations require that an administrative law judge (ALJ) issue a decision within 90 days the filing of a request for hearing. While the Chief ALJ has stated that individual beneficiary cases should not be delayed, still most of the Center’s cases were exceeding statutory timelines for decisions.

  On August 26, 2014, the Center filed a nationwide class action lawsuit in United States District Court in Connecticut: Lessler v. Burwell, No. 3:14-cv-1230 (D. Conn.). The named plaintiffs, from Connecticut, New York and Ohio, all waited longer than the statutory 90-day limit for a decision on their Medicare appeals. The complaint is available here: https://www.medicareadvocacy.org/wp-content/uploads/2014/08/00083998.pdf.

  On January 29, 2015, defendant’s motion to dismiss was denied.  On June 10, 2015, the court granted the plaintiffs’ motion for certification of nationwide class of Medicare beneficiaries who have been or will be waiting more than 90 days for a decision on their timely-filed request for an ALJ hearing.  The parties also conducted discovery.

  Update: In March 2016 the court preliminarily approved a settlement.  The proposed settlement addresses delays that Medicare beneficiaries have been experiencing at the ALJ level of review. Among other things, the settlement calls for the Office of Medicare Hearings and Appeals (OMHA) to continue its policy of providing all beneficiary appellants with priority over other appellants in receiving ALJ decisions, to designate a Headquarters Division Director to oversee inquiries about appeals initiated by beneficiary appellants and to address any complaints or questions concerning the processing of those appeals. OMHA will also establish a toll-free help line for beneficiary appellants to be answered by the Division Director’s staff. OMHA will introduce a new, more user-friendly ALJ hearing request form that allows beneficiaries to self-identify, and will also publish data about the length of processing time for beneficiary appeals. After approval, the government sought to slightly change the terms of the agreement. Plaintiffs’ counsel is now considering the proposed changes. A fairness hearing is scheduled for May 31, 2016. A link to the class notice is below; we invite you to distribute information about the settlement and fairness hearing to beneficiaries and their advocates.

  • For information about the proposed settlement on the Center’s website, see:  https://www.medicareadvocacy.org/judge-preliminarily-approves-class-action-settlement-about-alj-hearing-delays-for-medicare-beneficiaries/.
  • Proposed Settlement Agreement: https://www.medicareadvocacy.org/wp-content/uploads/2016/03/Filed-Proposed-Settlement-Agreement-for-posting-00175611xC6348.pdf.
  • Notice to Class with Fairness Hearing Information: https://www.medicareadvocacy.org/wp-content/uploads/2016/03/Approved-Notice-to-Class-with-Fairness-Hearing-Date-00175221xC6348.pdf.
• Jimmo v. Sebelius, No. 5:11-cv-17 (D. Vt.) (Improvement Standard).  As reported during previous Alliance calls, the settlement in Jimmo was approved on January 24, 2013 during a fairness hearing.  CMS has issued revisions to its Medicare Benefit Policy Manual to clarify that Medicare coverage is available for skilled maintenance services in the home health, nursing home and outpatient settings.  CMS also implemented a nationwide education campaign for all who make Medicare determinations to ensure that beneficiaries with chronic conditions are not denied coverage for critical services because their underlying conditions will not improve. Pursuant to the settlement, counsel for the parties are meeting twice a year to discuss problems with implementation and possible solutions, and are in regular contact between meetings.

  Update: On March 1, 2016, the Center and its co-counsel, Vermont Legal Aid, filed a Motion for Resolution of Non-Compliance with the Settlement Agreement.  The filing comes after three years of urging the Centers for Medicare & Medicaid Services (CMS) to fulfill its obligation to end continued application of an “Improvement Standard” by Medicare providers, contractors and adjudicators to deny Medicare coverage for skilled maintenance nursing and therapy.  Defendant has filed an opposition, and plaintiffs’ reply memorandum is due May 13^th, 2016. Oral argument on the motion is set for May 26^th, 2016 in Burlington, Vermont.

  If truly implemented and enforced, the settlement should improve access to skilled maintenance nursing and therapy for thousands of older adults and people with disabilities whose Medicare coverage for skilled care is denied or terminated because their conditions are “chronic,” “not improving,” “plateaued,” or “stable.” Unfortunately, providers and contractors continue to illegally deny Medicare coverage and care based on an “Improvement Standard,” resulting in beneficiaries nationwide failing to obtain needed skilled nursing and therapy coverage. This continued loss of skilled care based on an improvement requirement is occurring despite the assertion by CMS that it has completed the education campaign required by the Settlement. That campaign, however, has clearly failed to educate key components of the provider community and Medicare decision-making system.

  • For more information, see the Center’s website at: https://www.medicareadvocacy.org/medicare-info/improvement-standard/.
• Hull v. Sebelius, No. 3:14-cv-801 (D. Conn.) (Lower level Medicare appeals) On June 4, 2014, the Center filed a complaint in United States District Court in Connecticut against Kathleen Sebelius, Secretary of Health and Human Services (at that time), on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action on behalf of Connecticut Medicare beneficiaries seeking home health care coverage, and the four named plaintiffs represent the thousands of beneficiaries who cannot get a meaningful review of their cases. Instead, Medicare beneficiaries receive almost automatic denials of coverage, which is essentially “rubber stamped” at both the Redetermination and Reconsideration levels. The problem persists throughout the country.

  On December 8, 2014, the court granted the government’s motion to dismiss on the grounds that the named plaintiffs, who are dual-eligibles, lack standing because they received coverage of the services at issue from Medicaid.  Plaintiffs filed a motion for reconsideration. On July 6, 2015, the court reconsidered its order but adhered to its decision that the plaintiffs lack standing.  In its reconsideration, the court noted that the Supreme Court has granted certiorari in a case that may shed light on the standing issue at dispute. See Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (2015) (granting cert on the following question presented: Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.).

  Plaintiffs appealed the case to the Second Circuit on September 17, 2015 (Case No. 15-2949), and at plaintiffs’ request the court agreed to hold the appeal in abeyance pending the outcome of Spokeo at the Supreme Court. Spokeo was argued on November 2, 2015.

  • For more information, see the Center’s press release “Lawsuit Challenges Unjust and Inefficient Medicare Appeals Process” (June 5, 2014), available at: https://www.medicareadvocacy.org/lawsuit-challenges-unjust-and-inefficient-medicare-appeals-process/.
• Sherman v. Burwell (formerly Olsen-Ecker v. Burwell), No. 3:15-cv-1468 (D. Conn.) (Lower level Medicare appeals) On October 9, 2015, the Center filed a complaint in United States District Court in Connecticut against Sylvia Mathews Burwell, Secretary of Health and Human Services, on behalf of plaintiffs who have been denied a meaningful review of their Medicare claims at the first two levels of appeal. The case was brought as a class action on behalf of Medicare beneficiaries seeking home health care coverage, and the named plaintiff, like the plaintiffs in Hull, represents beneficiaries who cannot get a meaningful review of their cases. However in this “rubber stamp” case, the plaintiff was not eligible for Medicaid and thus was personally financially liable for the Medicare services under appeal.  The plaintiff filed a motion for class certification on October 23, 2015, and the government filed a motion to dismiss on January 13, 2016.

  Update: Written discovery was served on the government but the court stayed discovery while the motion to dismiss is still pending. Oral argument was held on the government’s motion to dismiss and the plaintiff’s motion for class certification on February 29, 2016. During the hearing the judge indicated that he was likely to reject the government’s motion to dismiss, however he also found plaintiff’s claim for “commonality” among class members problematic, which may spell difficulty for the class certification motion. The judge took the matters under advisement but has not yet issued a decision.

  The Center is interested in hearing about similar problems that beneficiaries are encountering with respect to “rubber stamp” denials of home health or SNF coverage at the first two levels of appeal.  Advocates and beneficiaries are encouraged to contact Ali Bers at abers@medicareadvocacy.org.

• Ryan v. Burwell, No. 5:14-cv-269 (D. Vt.) (Prior Favorable Homebound Determination) On December 19, 2014, the Center for Medicare Advocacy and Vermont Legal Aid filed a class action lawsuit against Sylvia Mathews Burwell, the Secretary of Health and Human Services, to stop Medicare’s practice of repeatedly denying coverage for home health services for beneficiaries on the basis that they are allegedly not homebound, when Medicare has previously determined them to be homebound. (Ryan v. Burwell). The lawsuit was filed in the United States District Court in Burlington, Vermont on behalf of two Vermont residents, Marcy Ryan and John Herbert, as a regional class action lawsuit covering New England and New York.

  On March 25, 2015, the government filed a motion to dismiss on the grounds that plaintiffs lack standing, that the court lacks subject matter jurisdiction, and that plaintiffs have failed to state claim on which relief may be granted.  On July 27, 2015, the court denied the government’s motion to dismiss, finding four separate grounds on which the dually eligible plaintiffs have standing. (Compare Hull, above, in which the court rejected similar standing arguments.) The court also found that it had subject matter jurisdiction and that plaintiffs had stated a claim on which relief could be granted.

  Oral argument on the plaintiffs’ motion for certification of a regional class took place in Rutland, Vermont on September 21, 2015.  Judge Crawford requested additional briefing on whether certain beneficiaries should be included in the class, and whether the class should be “closed,” meaning time-limited to the point where the agency removed a Manual provision which is at issue in the case.

  Update: On December 2, 2015, the court granted plaintiffs’ motion for class certification and, at request of the plaintiffs, issued clarification on the class definition on February 23, 2016.  The regional class is defined as all beneficiaries of Medicare Part A or B in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont (Medicare Administrative Contractor Jurisdiction K): (a) who have received a “favorable final appellate decision” that he or she was “confined to the home,” i.e. homebound, in the appeal of a home health nursing or therapy claim denial; (b) who have subsequently been denied, or will be denied, coverage for additional service on the basis of not being homebound, on or after January 1, 2010; (c) who had a non-lapsed, viable appeal of the subsequent denial for coverage of additional home health services as of March 5, 2015, or had a particularized individual basis for tolling of any applicable appeal deadline; and (d) for whom the claim for Medicare home health coverage was filed on or before August 2, 2015.

  Written discovery has been served. Defendant’s counsel has approached plaintiffs’ counsel about possible settlement.

  • For more information, including a copy of the complaint, see: https://www.medicareadvocacy.org/federal-court-class-action-challenges-medicares-practice-of-repeatedly-denying-home-health-coverage-for-homebound-beneficiaries/.
• Lodge v. Burwell, No. 3:15-cv-390 (D. Conn., filed 3/17/2015) (Medically necessary oral health care). This appeal filed 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. The plaintiff amended the complaint on June 30, 2015 to add a claim under the Administrative Procedure Act (APA), stating that in 1974 the agency removed the word “routine” from the description of excluded dental services without following proper notice-and-comment procedure. Plaintiff requests that the court therefore read the relevant regulation as if the word “routine” had never been removed, which would allow for coverage of his extraordinary, non-routine oral health care.

  The government filed a partial motion to dismiss on October 22, 2015. The motion sought to dismiss the APA claim as barred by the statute of limitations.  Plaintiff’s opposition to the motion to dismiss was filed November 30, 2015. Plaintiff argued that the applicable statute of limitations is not the six-year period measured from final agency action (in this case, 1974), which would be applied to APA claims in the absence of another specified timeframe, but instead is found in 42 U.S.C. §405(g). Section 405(g) is the general review provision for individual Medicare claims which provides 60 days to appeal to federal court counting from a final decision by the Secretary of Health and Human Services (in this case, an adverse decision by the Medicare Appeals Council). The parties also conducted limited written discovery.

  Update: The government requested and was allowed to withdraw its partial motion to dismiss on February 10, 2016.  The parties have fully briefed cross motions for summary judgment, but oral argument is not scheduled until November 16, 2016.

• Bremby v. Burwell, No. 3:15-cv-1397 (D. Conn.) (per se skilled services). This case was filed on September 22, 2015, in the U.S. District Court for the District of Connecticut.  It challenges the denial of Medicare home health coverage for a beneficiary who required monthly Vitamin B-12 intramuscular injections.  Intramuscular injections are, by regulation, a per se skilled service, and the beneficiary in this case has a condition (Total Gastrectomy) for which Medicare policy expressly recognizes B-12 injections to be a medically necessary treatment.  The Center is interested in hearing about similar problems that others are encountering with respect to denials of home health or SNF coverage for per se skilled services listed at 42 C.F.R. 409.33(b).  Advocates and beneficiaries are encouraged to contact Wey-Wey Kwok at wkwok@medicareadvocacy.org.

  Other examples of health care services that are defined by Medicare as skilled in either a Skilled Nursing Facility or for Home Health care include:

(1) Intravenous or intramuscular injections and intravenous feeding.

(2) Enteral feeding that comprises at least 26 per cent of daily calorie requirements and provides at least 501 milliliters of fluid per day.

(3) Nasopharyngeal and tracheostomy aspiration;

(4) Insertion and sterile irrigation and replacement of suprapubic catheters;

(5) Application of dressings involving prescription medications and aseptic techniques;

(6) Treatment of extensive decubitus ulcers or other widespread skin disorder as well as helping remove the existing corns and calluses on your feet.

(7) Heat treatments which have been specifically ordered by a physician as part of active treatment and which require observation by nurses to adequately evaluate the patient's progress;

(8) Initial phases of a regimen involving administration of medical gases;

(9) Rehabilitation nursing procedures, including the related teaching and adaptive aspects of nursing, that are part of active treatment, e.g., the institution and supervision of bowel and bladder training programs.

On December 28, 2015, the government filed a motion to remand the case to the Medicare Appeals Council.

Update: On April 29, 2016, the court granted the government’s motion to remand the case to the Medicare Appeals Council, but retained jurisdiction and ordered defendant to submit a status report on further action taken by the Secretary of Health and Human Services by August 15, 2016.