Lodge v. Burwell
227 F. Supp. 3d 198
D. Conn.2016Background
- Henry Lodge, a Medicare Part B beneficiary, had oral cancer treated in 1996 with surgery and radiation; treatment succeeded but caused long-term dry mouth and severe dental problems.
- In 2012 Lodge underwent extraction of six teeth and dental implants following hyperbaric oxygen therapy; he sought Medicare Part B coverage which was denied at initial, redetermination, and reconsideration stages.
- An ALJ initially granted coverage, but CMS sought "own motion" review; the Medicare Appeals Council (MAC) reversed, concluding the services were excluded by the statutory dental-services exclusion, and Lodge appealed to federal court.
- Central statutory text: 42 U.S.C. § 1395y(a)(12) excludes payment for services "in connection with" care, treatment, filling, removal, or replacement of teeth; agency regulations and manuals provide interpretive guidance, including an "incident-and-integral" exception in the Medicare Benefit Policy Manual (MBPM).
- Lodge argued (1) the exclusion covers only "routine" dental services (so his non-routine, medically necessary procedures are covered), (2) his services fit the MBPM "incident-and-integral" exception, and (3) the 1973 regulatory amendment deleting the word "routine" violated APA notice-and-comment. The Secretary defended the MAC decision and moved for summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of §1395y(a)(12) dental exclusion | "Dental exclusion applies only to ‘routine’ dental services; non-routine medically necessary dental care is covered" | The statute excludes services "in connection with" dental care broadly; no routine/non-routine distinction | Court: exclusion does not distinguish routine vs non-routine; statutory text and history reject Plaintiff's narrow reading |
| Applicability of MBPM "incident-and-integral" exception | Lodge's dental work is incident to and integral to his cancer treatment and thus covered (argues exception should not require same physician/same occasion) | Exception is narrow: must be incident to and integral to a covered procedure performed by the same dentist on the same occasion; Lodge's care was years after cancer treatment and by different providers | Court: exception does not apply—services were removals/replacements of teeth, performed long after cancer treatment by different clinicians, so excluded |
| Deference owed to agency interpretations (Chevron vs Skidmore) | Agency manuals (MBPM) deserve Chevron deference as authoritative agency interpretation | Manuals lack force of law; regulation parrots statute and manuals are interpretive guidance—Chevron inappropriate; at most Skidmore weight | Court: Chevron deference inappropriate because the agency merely paraphrased ambiguous statute in regulation and relied on manuals; agency guidance gets limited Skidmore weight |
| APA notice-and-comment for 1973 regulation change (deleting "routine") | Deletion of "routine" broadened exclusion and lacked fair notice, violating APA notice-and-comment (logical outgrowth) | Proposed rule sought to conform regulations to statutory amendments; deletion merely conformed rule to statute and was a logical outgrowth | Court: No APA violation—the final rule conformed regulation to statute; deletion of "routine" was a logical outgrowth and did not materially change scope |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (agency deference framework) (establishes Chevron two-step)
- Gonzales v. Oregon, 546 U.S. 243 (2006) (agency cannot claim deference for regulations that merely parrot statute)
- Christensen v. Harris County, 529 U.S. 576 (2000) (interpretations in manuals and opinion letters lack Chevron force; receive only respect under Skidmore)
- United States v. Mead Corp., 533 U.S. 218 (2001) (limits when agency interpretations warrant Chevron deference)
- Barnhart v. Walton, 535 U.S. 212 (2002) (factors for assessing persuasiveness of agency interpretation)
- Fournier v. Sebelius, 718 F.3d 1110 (9th Cir. 2013) (contrasting decision on dental-exclusion deference and scope)
- Estate of Landers v. Leavitt, 545 F.3d 98 (2d Cir. 2008) (agency policy manuals entitled to Skidmore weight rather than Chevron)
- Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) (final rule must be a logical outgrowth of proposed rule under APA)
- National Black Media Coalition v. FCC, 791 F.2d 1016 (2d Cir. 1986) (notice must fairly apprise interested persons of issues in rulemaking)