SCOTUS Denies Petition from Patients Refused Oral Surgery Medicare Coverage

The U.S. Supreme Court has denied Delores Berg’s and Thomas DiCecco’s petition for certiorari on a class action suit contending that the Medicare Benefit Policy Manual misinterprets the dental exclusion provisions of 42 USC 1395y(a) and 42 CFR 411.15. Berg and DiCecco suffer from autoimmune disease, which has destroyed their salivary glands, teeth, gums, and has led to life-threatening infections. However, according to the HHS manual, oral surgery is not included in their coverage. “When an excluded service is the primary procedure involved, it is not covered regardless of its complexity or difficulty,” states the manual. The district court and Ninth Circuit accorded Chevron, U.S.A., Inc. v Natural Resource Defense Council, Inc. deference to the Secretary’s interpretation and rejected Berg and DiCecco’s claims.

Legislative History

According to the petition, Congress never intended for the dental exclusion to deny coverage in instances of extraordinary oral surgical work, but for routine dental care. “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 semi-annual checkup would not be covered…Similarly, too, routine dental treatment – filling, removal, or replacement of teeth or treatment of structures directly supporting the teeth, would not be covered,” stated Senate Report No. 89-104 (1965). However, the Ninth Circuit found that the dental exclusion provisions were ambiguous and found the Secretary’s interpretation to be reasonable under Chevron.


In their petition, Berg and DiCecco argued that the Supreme Court should grant certiorari because the Ninth Circuit’s decision conflicts with other appellate court rulings that preclude Chevron deference in instances where agency actions lack the “force of law.” Specifically, they argued that Medicare Appeals Council decisions and manual provisions lack precedential authority, and therefore cannot be subjected to Chevron deference. Further, Berg and DiCecco asserted that the Ninth Circuit’s decision “establishes an irrational policy and misconstrues” Barnhart v Walton. “Nothing in Barnhart alludes to or suggests that a ‘process of adjudication’ supports Chevron deference to an administrative review system’s decisions that lack the force of law,” stated the petition. Nevertheless, the Supreme Court denied the petition.

Highlight on Wisconsin: CMS Approves BadgerCare Reform Waiver

CMS has approved Wisconsin’s BadgerCare Reform Waiver, expanding the state’s access to health care beginning April 1, 2014. According to the Wisconsin Department of Health Services (Department), the waiver will: (1) offer standard plan benefits to all BadgerCare Plus members; (2) abolish the BadgerCare Plus Core Plan; (3) eliminate the existing enrollment cap for childless adults under 100 percent of the federal poverty level; and (4) require transitional medical assistance qualified parents and caretakers to pay monthly premiums.

“For the first time in our state’s history, everyone living in poverty will have access to health care through Medicaid in 2014,” stated Governor Scott Walker in a Department news release. “Wisconsin has a long history of providing quality care to its residents. Our reforms maintain Medicaid as a safety net for our state’s most vulnerable and ensure there is no gap in health care coverage in Wisconsin,” he said.

The waiver makes BadgerCare Plus coverage available to people who: (1) are between 19 and 64 years old; (2) are not eligible for BadgerCare Plus for Families or Medicaid; (3) are not qualified for Medicare; (4) meet all non-financial requirements of Medicaid, such as citizenship, Social Security number, etc.; and (5) have a gross income that does not exceed 100 percent of the federal poverty level.

Department Secretary Kitty Rhoades noted, “The approval of the BadgerCare Reform waiver is the last step needed to allow us to implement Governor Walker’s Entitlement Reform Plan and provide all Wisconsin citizens with access to affordable health care.” The Governor’s Entitlement Reform Plan was signed into law on June 30, 2013, and was part of his 2013-2015 biennial budget. Secretary Rhoades continued, “The Governor’s reforms will strengthen health care in Wisconsin and provide Wisconsin residents with opportunities in the commercial health care market and will reduce Wisconsin’s uninsured rate in half.”

CMS noted that its approval of the waiver is conditioned on the state’s compliance with special terms and conditions, including compliance with: federal non-discrimination statutes; Medicaid law, regulation, and policy; changes in Medicaid law, regulation, and policy; general reporting requirements; general financial requirements; and public notice, tribal constitution, and consultation with interested parties requirements. Wisconsin was also required by CMS to submit written acknowledgement of the award and acceptance of the CMS special terms and conditions.

Secretary Rhoades submitted the state’s written acknowledgement and acceptance to CMS on January 9, 2014, noting, “The agreement we have reached is historic,” and “we are improving the lives of thousands of Wisconsin residents.”

As the ACA Moves Forward, Focus on the Cost of Advanced Care Continues and So-called “Death Panels” Enjoy Renewed Support

By: Jaime Whitt, University of Kansas-

Actuaries for the Centers for Medicare & Medicaid Services (CMS) have estimated that more than a quarter of overall Medicare spending is dispensed on care for just five percent of the Medicare population—those that die each year.  This trend has appropriately concerned those within as well as those outside of the health care sector for some time.  During fiscal 2012, Medicare benefits paid out $536 billion, which means that approximately $134 billion was paid for the care and treatment of Medicare beneficiaries in their final days.  End of life treatment, often termed “advanced” care, is typically very expensive in nature.  A recent Journal of the American Medical Association (JAMA) study revealed that though there is a trend of more Americans dying at home, still much of our end of life care is being provided in hospital intensive care units (ICUs) where patients are often receiving aggressive care that, because of its acute setting, comes with a hefty price tag.  The study also indicates that, unfortunately, this intensive and often burdensome type of care may not actually improve quality of life or even be consistent with patients’ wishes for their own treatment.  As such, end of life care and the threatened solvency of the Medicare program have been a source of considerable debate in recent years, particularly given that the baby-boomer generation is set to inflate the Medicare-eligible population to 19.6% (up from 12% in 2000) of the total population by 2030.

Advanced Care Planning to Curb Costs

In his 2010 National Magazine Award-winning New Yorker article “Letting Go”, renown surgeon and Harvard School of Public Health professor Atul Gawande explores the difficulties and myriad costs, financial and otherwise, of the kind of poorly coordinated end of life treatment that the American health care system is generally set up to deliver.  Dr. Gawande highlights various initiatives around the country that successfully offer alternatives to the fragmented status quo and instead work to provide integrated and coordinated care to terminal patients, such as Oregon’s Physician Orders for Life-Sustaining Treatment (POLST) program and the Advanced Care Planning program at Gundersen Health System in LaCrosse, Wisconsin, Respecting Choices.  Gawande notes that such programs, which also include innovations from insurance providers such as Aetna’s 2005 hospice experiment, by allowing patients to formally discuss with their physicians and document their wishes for end of life care and treatment, often have the added effect of decreasing health care utilization and expenditures for those participating—not by cutting or limiting care, but instead by planning for it.

Physician Incentives for Advanced Care Planning

Currently, fee-for-service (FFS) Medicare does not reimburse for advance care planning (ACP) sessions with patients, which has created a perverse and backwards default payment structure whereby physicians are not incentivized to hold ACP conversations that may lead to better care and simultaneously decrease health care utilization, but instead to provide reimbursable care and continued treatment for terminal patients.  A September 2013 JAMA Internal Medicine study providing financial incentives to residents for facilitating and documenting ACP sessions with their patients indicates that Medicare reimbursement for advanced care consultations is a workable option.  In the study, compliance with documentation of patients’ end of life treatment wishes increased from 22% to over 90% over a 5-month period after the introduction of financial reimbursement and performance feedback.  Currently, it can be a financial challenge for general practitioners to provide existing care to the elderly and/or disabled population; Medicare FFS reimbursement rates are strict.  It does not seem either feasible or reasonable for providers to attempt time-consuming, meaningful ACP consultations with patients without the possibility of reimbursement for them.  From a business perspective, physicians cannot afford it.  However, from an economic perspective, American health care must.  Something has to give.

A Maligned ACA Provision Comes Back to Life:  the Rebirth of “Death Panels”

Prior to the passage of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) in March of 2010, the health care bill contained end of life treatment provisions that would allow Medicare reimbursement to physicians for periodic ACP sessions with patients, thus paving the way to standardize such conversations for Medicare beneficiaries.  In the highly-polarized political debate over health care reform, these provisions were regrettably misrepresented as “death panels” or a form of health care rationing, which quickly forced them to be removed from the proposed legislation altogether.

United States House Representative Earl Blumenauer (D-Oregon), who originally sponsored the so-called death panel provisions of the health care reform bill, has not abandoned the fight for end of life or ACP reimbursement for physicians.  Since that original defeat, Rep. Blumenauer continues to advocate for legislative Medicare payment reform that would enable payment for advanced care treatment consultations.  He and 40 other lawmakers have introduced current proposed legislation in the U.S. House of Representatives titled the Personalize Your Care Act of 2013, which would, among other things, amend the Social Security Act to provide for voluntary, periodic ACP for Medicare and Medicaid beneficiaries and allow physicians to be reimbursed for those consultations.

Rep. Blumenauer is not alone in his efforts to bend the cost curve in end of life health care expenditures.  Other members of Congress have sponsored similar bills such as the Patient-Centered Quality Care for Life Act of 2013, which would fund research in palliative care education, including outreach programs to inform patients of their options for treatment.  In January, the Coalition to Transform Advanced Care (C-TAC) held its first national summit, which included bipartisan representation from Congress, to examine and recommend actions to improve end of life treatment in American health care delivery.  With any luck, some measure of cost reform for advanced care planning and treatment will find its way into our current health care initiatives.  Whatever that measure may entail, let us all hope that no one calls it the d-word.

Jaime Whitt is a dual-degree candidate at the University of Kansas, and is expected to graduate in 2015 with a JD from the KU School of Law and a Masters of Health Services Administration from the KU School of Medicine. Prior to that she earned a B.A. at the University of Kansas. She is a Research Assistant with the Department of Health Policy and Management in the KU School of Medicine, studying the economic impact of the ACA’s health insurance marketplaces.

The two remaining posts for the Winter 2013 Law School Legal Scholar program will run on Wednesday, January 22nd and Friday, January 24th.

Kusserow’s Corner: Office of Hearing Appeals Announces Huge Backlogs and Delays on Claims Appeals

The HHS Office of Medicare Hearings and Appeals (OMHA) announced “we anticipate that assignment of your request for hearing to an Administrative Law Judge may be delayed for up to 28 months.” This year an estimated 350,000 requests for ALJ review involving almost 595,000 claims will be received. The 63 ALJs are expected to decide on over 100,000 appeals involving about a quarter million claims. This is over 150% increase of the number of requests for ALJ reviews in 2012, involving about twice the number of claims, however the number of ALJs during this period will not increase. The result of all this is that an overwhelming number of appeals being filed and pending at OMHA will inevitably result in delays. The major backlog problem began and has been increasing since Congress in 2000 changed dramatically the process for Medicare claims denials and established five levels of review. This was followed in 2005 with reforms that created OMHA in HHS to be responsible for handling all “Level 3″ appeals of Medicare claims denials. From the dates of these reforms and changes, the number of appeals escalated, but the resources available for the adjudicative process did not keep pace, leading the rapid increase of the backlog.

Tom Herrmann, who served for six years as an Appellate Judge for the HHS Medicare Appeals Council, stated recently that in the face of this rising backlog a provider can help expedite its claims appeal and improve its chances for a better appeal decision by following a variety of practices, techniques, and methods. Also, there are many things that should be avoided that will work against a provider’s best interest, such as losing an appeal by failing to properly organize and present evidence at the QIC level of review, making it easier for the ALJ to rule against claimants. He also stresses the importance of the manner and submission of a properly prepared “ALJ Appeal Memorandum” or “Prehearing Brief” to the ALJ prior to the scheduled hearing. Proper presentation at this level can be critical to the outcome, but many such presentations historically have fallen very short of what is needed. He notes further that many claimants fail to ensure all legal authority, evidence, technical issues to be decided are properly presented to the ALJ in form, format and content. In short, too much or too little in the presentation can delay or damage an appeal.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2013 Strategic Management Services, LLC. Published with permission.