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.

Arizona Can’t Exclude Planned Parenthood From Medicaid Funding

The United States Supreme Court has let stand a Ninth Circuit decision upholding an Arizona district court’s permanent injunction barring Arizona Medicaid officials from enforcing an Arizona statute prohibiting state Medicaid beneficiaries from obtaining covered family planning services through health care providers who perform abortions in cases other than incest, rape or medical necessity. The Arizona statute would have effectively disqualified providers of elective abortions from receiving Medicaid funding. Arizona’s petition for certiorari was denied.

The Ninth Circuit also held that (1) the Medicaid Act’s free-choice-of-provider requirements at 42 U.S.C. sec. 1396a(a)(23) confer a private right to action under 42 U.S.C. sec. 1983 and (2) the Arizona statute contravenes the Medicaid Act’s requirement that states give Medicaid recipients a free choice of qualified provider by preventing patients from selecting a provider only because the provider separately provides privately funded, legal abortions.


In the spring of 2012, the Arizona legislature enacted House Bill 2800. The bill would have prevented Arizona or any political subdivision of Arizona from entering into a contract or providing a grant to any person that performs non-federally qualified abortions, or maintains or operates a facility where non-federally qualified abortions are performed for the provision of family planning services. The bill defines “non-federally qualified abortion” as one that does not meet the requirements of federal reimbursement. The federal Hyde Amendment, which applies to Medicaid funds, prohibits federal funds from being used for abortions except in the case of danger to the life of the mother, rape, or incest.

After House Bill 2800 was passed, the Arizona Health Care Cost Containment System (AHCCCS) sent letters to all Arizona Medicaid providers, including Planned Parenthood Arizona, Inc. (Planned Parenthood). The letter asked Planned Parenthood to sign a form attesting that as of August 2, 2013, it would not perform any abortions or maintain or operate a facility where any abortion is performed, except in cases of rape, incest or medical need. Failure to return the form would lead to AHCCCS terminating its provider participation agreement, and Planned Parenthood would receive no reimbursement from Arizona for any medical service.

Legal Proceedings

Planned Parenthood and individual plaintiffs filed suit to block House Bill 2800 and the district court granted a preliminary injunction barring implementation of the law. Arizona filed an appeal with the Ninth Circuit, and before it was heard, the lower court granted summary judgment for Planned Parenthood, holding that House Bill 2800 violates the free-choice-of-provider requirement, and permanently enjoined Arizona from enforcing House Bill 2800. Arizona appealed to the Ninth Circuit, and the court consolidated the two appeals.

The Ninth Circuit held that the free-choice-of-provider provision may be enforced through individual lawsuits under 42 U.S.C. sec. 1983, which creates a federal remedy against anyone who deprives a citizen of rights, privileges or immunities secured by the Constitution and laws. As a cooperative federal-state health care program, under 42 U.S.C. sec. 1396a(a)(23(A) states must allow Medicaid recipients to obtain care from any provider who is “qualified to perform the service or services required” and “who undertakes to provide…such services.” Although the word “qualified” is not defined, the court read the term to convey its ordinary meaning, a health care provider having an officially recognized qualification to practice as a member.

Certiorari Petition

Arizona’s petition to the Supreme Court presented two issues: (1) whether the claimed right to choose a “qualified” health care provider, as the Ninth Circuit construed that right, is so vague that its enforcement strains judicial competence, and (2) whether the Ninth Circuit’s definition of “qualified” engenders a Spending Clause violation and strips Arizona of powers reserved under the Tenth Amendment, namely, the power to regulate health care according to state law by disqualifying from Medicaid participation any provider who performs non-federally qualified abortions.

Abortion Rates are Lowest Since 1973 Roe v Wade Decision

After a three year plateau, abortion incidence rates decreased from 19.4 abortions per 1,000 women in 2008, to 16.9 abortions per 1,000 women in 2011, according to a study released by the Guttmacher Institute. The drop in number of abortions represents the lowest abortion rate since 1973, “the year the Supreme Court legalized abortion nationwide,” reported NPR. (For SCOTUS Blog reports on Roe v Wade, click here.)

The 13 percent drop in abortion rates between 2008 and 2011 in women aged 15 to 44, demonstrated a continued downward trend in abortions since the rate plateaued between 2005 and 2008. According to the study’s lead author, Rachel Jones, state abortion restrictions and lower numbers of abortion providers were not linked to the national decline in abortions. “Rather, the decline in abortions coincided with a steep national drop in overall pregnancy and birth rates,” Jones stated in a news release. “Contraceptive use improved during this period, as more women and couples were using highly effective long-acting reversible contraceptive methods, such as the IUD. Moreover, the recent recession led many women and couples to want to avoid or delay pregnancy and childbearing,” she said.

Although state legislation restricting abortion was not linked to abortion rate results in this study, Guttmacher notes that “states enacted 205 abortion restrictions between 2011 and 2013, more than in the entire previous decade combined.” Guttmacher state issues manager Elizabeth Nash stated, “As we monitor trends in abortion going forward, it is critical that we also monitor whether these state restrictions are preventing women who need abortion services from accessing them.”

Carol Tobias, the president of National Right to Life, disagrees, stating, “Abortion remained widely available. But after years of being told that abortion was ‘the best choice’ or ‘their only choice,’ women are learning that there are alternatives to abortion that affirm their lives and the lives of their children,” reported CNN. “The bottom line is simple: the right-to-life movement is succeeding because even after 41 years and more than 56 million abortions, the conscience of our nation knows that killing unborn children is wrong.”

The authors also noted the limitations of the study, including the inability to contact every abortion provider, and some missing early medication abortions. Charlotte Lozier Institute president Chuck Donovan noted, “As welcome as news of this decline is, more information is need,” reported CNN. He went on, “The Guttmacher data is based on completely voluntary reporting by abortion providers. Until we have consistent reporting requirements, inclusive of states with high abortion rates and gathered by publicly accountable bodies, we cannot begin to paint a complete picture of U.S. abortion trends.”

Circuit Split Remains, Deference Afforded to Informal Agency Approvals

The Supreme Court denied California Medical Association’s (CMA) petition for a writ of certiorari that sought review of the Ninth Circuit’s ruling in Managed Pharmacy Care v Sebelius. The question presented to the Supreme Court was whether the Ninth Circuit erred when it gave Chevron, U.S.A., Inc. v Natural Resources Defense Council, Inc. deference to an “implicit and informal” CMS approval of lowered Medicaid reimbursement rates.

As was previously reported, the Ninth Circuit reversed the district court’s preliminary injunction in Managed Pharmacy Care v Sebelius, enjoining the California Medicaid director and CMS from reducing Medicaid reimbursement rates by ten percent. The Ninth Circuit sided with the Third, Fifth, Sixth, and D.C. circuit courts in giving deference to CMS under the Chevron decision. However, the circuit courts are split, as the First, Second, and Eighth Circuits have used a lower level of deference, as set forth in Skidmore v Swift & Co., with regard to informal agency approvals.

CMA’s petition for certiorari argued that the issue presented was important, recurring, and too consequential to not decide. Further, given the lower court split on the level of deference that should be afforded to agency approvals, CMA argued that the Supreme Court’s decision would make an “enormous difference,” as it could impact access to health care for millions of individuals in California alone.