ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 70-2559)
Before: ALDISERT and ADAMS, Circuit Judges and STAPLETON, District Judge.
The Court is asked on this appeal to determine the narrow issue whether, under the Medicare provisions of the Social Security Act,*fn1 prior to the 1972 amendment, the denial by a carrier of reimbursement to an individual for dental care is subject to administrative review. The district court held, in an exhaustive opinion,*fn2 that, under the Medicare Act, an individual denied reimbursement for the kind of dental care involved here may seek review by the Secretary of Health, Education and Welfare. The Secretary disagrees and has filed this appeal.
Plaintiff, Emma Bohlen, was injured in an automobile accident in August, 1968. She suffered two dislocated hips, a fractured right hip, a laceration of the arm, a broken nose, and a fractured jaw. While in the hospital, the fractured jaw was reduced by an oral surgeon, and the cost of that dental procedure was covered by Medicare.*fn3 Later, Mrs. Bohlen engaged the services of another dentist for follow-up dental work in the nature of realigning and grinding her teeth to correct the separation of the maxilla (jaw) from the cranium, a condition which had so changed her "bite" that her upper and lower teeth did not meet. As a result of this improper "bite," Mrs. Bohlen was unable to chew and eat adequately and her fracture was not healing correctly. In letters, which are part of the record in this case, the second dental surgeon described the work he had performed on Mrs. Bohlen as "absolutely necessary post-operative treatment" that was "in no way related to normal dental care or maintenance...."
Mrs. Bohlen submitted to Pennsylvania Blue Cross-Blue Shield*fn4 a Request for Medicare Payment for the services performed by the dental surgeon. The carrier rejected the claim on the ground that the dental services involved were not covered under Medicare. During an informal review, her claim was again denied by the carrier, and subsequently by a Medicare Fair Hearing Officer. Mrs. Bohlen was then advised by the Social Security Administration that no further review could be sought by her since the Social Security Act does not provide for administrative or judicial review from a determination concerning the type of claim presented by Mrs. Bohlen.
Although this appeal turns solely upon the issue whether the denial of reimbursement is subject to review, it is important to place the problem presented in a perspective appropriately illuminated by the issue upon which review is sought.
Mrs. Bohlen was seeking reimbursement upon part B of the Medicare Act that provides benefits for "medical and other health services."*fn5 The Act limits such benefits to "professional services performed by physicians....,"*fn6 and defines "physician," in part, as "a doctor of dentistry... who is legally authorized to practice dentistry... 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 facial bone...."*fn7
The Act excludes from coverage under part B "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."*fn8 It was on the basis of this exclusion that the carrier and the Fair Hearing Officer determined that Mrs. Bohlen's dental treatment was not covered under Medicare.*fn9
Whether Mrs. Bohlen does or does not have a statutory right of review under the Medicare Act depends upon an interpretation of § 1395ff of the Act.*fn10 That section, prior to the 1972 Amendment, see note 14 and accompanying text, infra, provides, in relevant part:
"(a) The determination of whether an individual is entitled to benefits under part A or part B, and the determination of the amount of benefits under part A, shall be made by the Secretary in accordance with regulations prescribed by him.
"(b) Any individual dissatisfied with any determination under subsection (a) of this section as to entitlement under part A or part B, or as to amount of benefits under part A where the matter in controversy is $100 or more, shall be entitled to a hearing thereon by the Secretary to the same extent as is provided in section 405(b) of this title, and in the case of a determination as to entitlement or as to amount of benefits where the amount in controversy is $1,000 or more, to judicial review of the Secretary's final decision after such hearing as is provided in section 405(g) of this title."
Thus, the issue whether Mrs. Bohlen qualifies for a statutory right of review narrows itself to whether the claim she submitted for the second dental procedure raises a ...