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June 19, 1972

Elliot L. RICHARDSON, Secretary of Health, Education and Welfare

Edward R. Becker, District Judge.

The opinion of the court was delivered by: BECKER

Under the provisions of part B of Medicare, *fn1" the right of a senior citizen who has been denied benefits for medical services to obtain administrative and subsequent judicial review of that decision turns upon whether the determination which results in the denial of benefits relates to the claimant's entitlement to those benefits (in which case there is a right of review), or merely to the amount of the benefits (in which case there is not). We have reviewed the Medicare statute and its legislative history as well as the nascent caselaw in the field. However, none of these sources establishes the demarcation point between what constitutes a question of entitlement and a question of amount. Since that determination is the touchstone of this case, we must distill from the legislative history and the statute sufficient guidelines to enable us to make it.

 The case involves plaintiff's claim for reimbursement for sums which she expended for certain dental services. The dental services involved the grinding and realignment of teeth in order to permit the proper healing of fractures and to insure proper bite and eating function. Plaintiff's reimbursement claim was denied on the grounds that these services were excluded from part B coverage because they were essentially routine or normal dental care. This lawsuit is bottomed on the contention that the services were not properly excluded because of the following attendant circumstances: (1) the services were the necessary sequelae of treatment for the fractures which had been traumatically induced and surgically reduced; (2) the surgery itself (performed in a hospital) was covered by Medicare parts A and B; and (3) the claim would have been allowed, under the applicable regulations, had the services been performed by the dentist who reduced the fracture.

 The decision to exclude the services was made by Pennsylvania Blue Shield ("Carrier"), acting as agent for the Department of Health, Education and Welfare ("HEW"). Plaintiff thereupon sought a hearing in the nature of an appeal from the Carrier's determination, but the Social Security Administration refused to afford a hearing to her. As indicated above, this complaint followed. We must therefore decide whether the issue drawn by the denial of plaintiff's claim for reimbursement for these dental services raises a question of entitlement to benefits, which would afford her administrative and judicial review, or a question of amount, which would not.

 The case is presently before us on cross motions for summary judgment and on the Secretary's motion to dismiss. While plaintiff's complaint challenges the constitutionality of the Medicare part B statutory scheme on a number of bases, *fn2" because we find that plaintiff's claim raises a question of entitlement, we need not, and do not, reach the constitutional issues. Explication of the grounds of our decision (see infra) first necessitates a discussion of the statutory scheme and, of course, the facts of record.


 The Medicare Act was promulgated in 1965 to provide a hospital insurance program for the aged under the Social Security Act with a supplementary health benefits program and an expanded program for medical assistance. The health insurance and medical care provisions of the Act contain two principal parts. Part A (42 U.S.C. §§ 1395c-1395i) provides the senior citizen with reimbursement of his claims for inpatient hospital services, post-hospital services, post-hospital extended care services, post-hospital home health services, and outpatient hospital diagnostic services. Part B (42 U.S.C. § 1395j et seq.), the voluntary supplementary insurance plan, insures the elderly for the cost of physicians' services, chiropractic and podiatrists' services, home health services, and numerous other medical and health services in and out of medical institutions, as set forth in 42 U.S.C. § 1395k.

 Part B (in § 1395k) provides for benefits for "medical and other health services." Section 1395x(s) states that "medical and other health services" includes, inter alia, physicians' services, which is defined in § 1395x(q) to mean "professional services performed by physicians. . . ." Section 1395x(r) defines "physician." In pertinent part, it provides:

"The term 'physician,' when used in connection with the performance of any function or action, means . . . (2) a doctor of dentistry or of dental or oral surgery who is legally authorized to practice dentistry in the State in which he performs such function but only with respect to (A) surgery related to the jaw or any structure contiguous to the jaw or (B) the reduction of any fracture of the jaw or any facial bone. . . ."

 Moreover, § 1395y(a)(12) operates as a further limitation of the coverage under part B by excluding "any expenses incurred for items or services (12) where such expenses are for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth," notwithstanding any other provisions of parts A or B.

 In order to provide for the administration of the benefits with maximum efficiency and convenience, and with a view to furthering coordination of the administration of parts A and B, Congress has authorized the Secretary to enter into contracts with carriers, such as Pennsylvania Blue Cross -- Blue Shield, to perform functions such as: (1) making determinations of the rates and amounts of payments; (2) receiving, disbursing, and accounting for funds; (3) auditing of records of providers of services; (4) serving as a channel of communication of information relating to the administration of the Act, and (5) otherwise assisting in discharging administrative duties necessary to carry out the purposes of part B. 42 U.S.C. § 1395u(a). In addition, § 1395u(b)(3)(C) states that each contract shall provide that the carrier establish and maintain procedures for a fair hearing by the carrier when payments are denied. The Secretary has established such procedures, *fn3" which entitle the claimant, inter alia, to an initial determination by the carrier, an informal review of that determination by the carrier with the opportunity to present written evidence and contentions as to fact or law, and ultimately, a hearing before an impartial hearing officer appointed by the carrier with the opportunity to call witnesses, submit briefs, and present oral arguments.


 In August 1968, the plaintiff, Emma Bohlen ("Mrs. Bohlen"), was injured in a motor vehicle accident. She sustained two dislocated hips, a fractured right hip, a laceration of the arm, a broken nose, and a fractured jaw. The maxilla (jaw) was separated from the cranium as the result of which her bite was so changed that her teeth did not meet. In addition, the left mandibular condyle was completely fractured away and had to be removed [letter of Martin Entine, D.D.S. to Carrier, April 25, 1969]. While she was in the hospital, her fractured jaw was reduced by an oral surgeon, the cost of which was paid for by Medicare pursuant to 42 U.S.C. §§ 1395k and x(q), (r) and (s). Subsequent to this surgery (in November 1968 and January 1969), Mrs. Bohlen engaged the services of Martin Entine, D.D.S. for follow-up dental work. Dr. Entine performed work in the nature of realigning and grinding her teeth in order that she would have the proper bite so as to permit function and proper healing of the fractures and to allow Mrs. Bohlen to chew and eat properly [Fair Hearing Officer's Decision, Feb. 3, 1970].

 In a letter to Mrs. Bohlen's attorney dated May 15, 1970, which is part of the record, Dr. Entine recited more specifically the nature of the work he performed on Mrs. Bohlen. He first stated that he had equilibrated the occlusion and cut down live teeth on the lower jaw to adjust the chewing mechanism so as to remove the constant irritation and jarring to the temporomandibular joint, which was being caused when the jaws closed improperly. The improper closing of the jaws was caused by the fracture and broken off condyle. Dr. Entine related that this surgical cutting of the teeth was a surgical necessity without which the temporomandibular joint may not have healed properly. In addition, the pain in chewing would be practically intolerable had the surgical trimming of the teeth not been done. Dr. Entine further stated that his work was an absolutely necessary post-operative treatment as a continuance of the fracture reduction and was necessary to prevent extreme temporomandibular joint pain and temporomandibular synovitis, ...

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