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  1. 1. Page 1 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Classes 5, 6 Jurisprudence Marquette School of Dentistry Managed Care and Dentist’s Control of Practice Duties to Provide Care Government Programs, Fraudulent Billing and Price Fixing Table of Contents: Barnes, Introductory Notes on Managed Care Henry T. Greely, Direct Financial Incentives in Managed Care: Unanswered Questions, 6 HEALTH MATRIX 53 (1996) Elizabeth Mertz & Edward O’Neil, The Growing Challenge of Providing Oral Health Care to All Americans, HEALTH AFFAIRS, Vol. 21, No. 5 at 65 (2002) *** Bragdon v. Abbott, 524 U.S. 624 (1998) *** Wood v. Thompson, 246 F. 3d 1026 (2001) Elizabeth J. Fowler, SmileCare v. Delta Dental: Aberration or Signpost fo rthe Future of Antitrust Enforcement in the Supplemental Insurance Industry? 82 Minn. L. Rev. 173 (1997) U.S. v. Alston, 974 F. 2d 1206 (1992)
  2. 2. Page 2 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 These readings will serve for the last two classes in the Jurisprudence Course. While each is a topic of interest in itself, the interrelated nature of the three will be emphasized. Anticipated breaks in the readings for each class meeting are indicated below. Managed Care and Professional Control of Practice Managed care and costs in dentistry have received less attention in recent years than the soaring cost of medical and hospital care. Significant reasons include the erroneous perception of dental care as optional, and the absence of inflation in costs for services that approaches the changes in medical and hospital care. Nevertheless, dental care is undeniably part of the relatively new “health care industry”, dentists are included in relevant statutes in many states as “health care providers”, and cost constraints have (relatively) quietly been adopted into the structure of payment for dental services. Managed care refers to any method of payment for health care services that includes strategies to limit or reduce costs. The U.S. government anticipated private sector initiatives at managed care when it implemented four demonstration projects in Medicare in 1982. That model, which included a capitated payment per enrollee per month, has been widely replicated in the private sector for health and dental services. The demonstrations themselves were largely unsuccessful since they were rife with fraud, including such tactics as enrolling “Medicare beneficiaries” from the obituaries in the newspaper and buttonholing elders on the street the sign them up. Prior to the implementation of managed care, health care and dental payments were fixed based on a reasonable charge identified by the health care professional, which included the cost of care, time, expertise, and desired profits. Fee for service was identified as inflationary within five years of the implementation of Medicare and Medicaid. Managed care utilizes two basic payment strategies to improve on the basic fee for service model. Whenever possible, a payer (i.e., an insurer or HMO) contracts with a health care provider for capitated payments (a set amount per patient per month) that covers all the services of specified kinds. The payment is fixed, regardless of the patient’s need for care. Thus, if the services the patient needs cost more than the monthly payment, the heath care provider is at risk of losing total income.
  3. 3. Page 3 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 The corporate structures of managed care may be contrary to the doctrine of corporate practice of medicine, which prohibits anyone who does not have a license to practice from directing individuals who do. The doctrine applies to dentistry. Although a corporation is considered a legal person, it cannot of course hold a professional license. Little is written about corporate practice in Wisconsin. Rather, this is one of the many states that have the law and seem at the moment to be content to ignore it. 9 No. 5 HTHLAW 18: Wisconsin *Wisconsin's corporate practice of medicine doctrine extends only to for-profit corporations. *See: OAG 39-86 (10-21-86) [states that business corporations may not provide medical services through employed physicians as to do so would violate Wisconsin's fee splitting statute, Wis.Stat. § 448.08(1), and licensure statute, Wisc.Stat. §§ 448.03(1), 448.08(1), and 448.05]. *OAG 31-86 (states that hospitals and medical education and research organizations may employ physicians subject to certain restrictions). Most patients and many insurers know little about managed care incentives to limit care. The following reading sheds some light on the conflicts of interest created by such incentives. Henry T. Greely, Direct Financial Incentives in Managed Care: Unanswered Questions, 6 HEALTH MATRIX 53 (1996) Case Western Reserve University Health Matrix: Journal of Law-Medicine Winter, 1996 6 Health Matrix 53 SYMPOSIUM: ON PHYSICIAN DECISION-MAKING AND MANAGED CARE: DIRECT FINANCIAL INCENTIVES IN MANAGED CARE: UNANSWERED QUESTIONS Henry T. Greely
  4. 4. Page 4 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Professor of Law, Stanford Law School. I want to thank Professor Mehlman for the opportunity to participate in the workshop from which this article is drawn and all the participants for their thoughtful and stimulating presentations. … I. WHAT WE (DO NOT) KNOW ABOUT DIRECT FINANCIAL INCENTIVES Before probing the consequences for patients of direct financial incentives in managed care, we need to understand more about these incentives. This section first describes the direct financial incentives used in managed care. It then surveys what we know about the extent to which managed care uses different direct financial incentives. Finally, it looks at the actual incidence of direct financial incentives on the physicians who provide patient care. A. What Are Direct Financial Incentives? Managed care has become a vague term for almost any system in which third parties pay for medical care, other than the "traditional" system of nearly unquestioning payment on a fee-for-service basis for anything ordered by a licensed physician. n6 In fact, there are three basic approaches that payors take toward managing care: micro-management, panel selection, and direct financial incentives. Micro-management encompasses a variety of ways in which the payor "second guesses" a physician's recommendation and a patient's decision. The most common form of micro-management is through various types of utilization review. Prospective review requires approval by the payor, or its agent, of a physician's recommendation before the action is undertaken, whether it is an expensive procedure or a hospitalization. Concurrent review in hospitals or elsewhere most commonly is applied to inpatient care. It requires approval for continuing the patient's stay in the institution. Retrospective review involves deciding, after the fact, [*56] whether or not the provided services were "proper" and hence, whether they will be reimbursed.
  5. 5. Page 5 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 The second approach that payors take towards managing care is through panel selection. In a panel selection (and "deselection") system, the payor "manages" care indirectly by encouraging or requiring its customers to use only particular physicians or facilities. It then selects the providers that are part of its plan based, among other things, on their costs to the payor. These costs encompass both the amount of the fees charged by the provider, often heavily discounted, and the cost of that provider's style of practice. The providers are encouraged to be economical not by direct micro-management, but by knowing that they will no longer be on the panel should they fail to meet the plan's standards for the cost of practice style. This creates an indirect financial incentive for physicians as such de-selection, presumably, would cut the number of the physicians' patients and reduce their incomes. Panel selection and micro-management are often combined, but they need not be. The third method of managing care is through direct financial incentives. These can take many forms, but the key is structuring the physician's compensation in ways that create incentives to practice economically. Direct financial incentives in medicine are by no means new. The traditional fee-for-service system was a system of direct financial incentives; the more a physician did, the more the physician got paid. The financial incentives in a managed care system are aimed at discouraging the physician from doing everything possible, and instead aim at encouraging the physician to provide the "right" amount of care. Direct financial incentives also can be combined with panel selection and micro-management. If the incentives are strong enough, however, they should make the other systems unnecessary. But what are these incentives? One federal statute defined a "physician incentive plan" for Medicare and Medicaid purposes so broadly as to be of questionable value, to wit: "any compensation arrangement between an eligible organization and a physician or physician group that may directly or indirectly have the effect of reducing or limiting services provided with respect to individuals enrolled with the organization." n7 As that definition [*57] implies, financial incentives can take many forms, but four general approaches are commonly used: salary, capitation, profit sharing, and bonus. n8 Each can be combined with others in a variety of forms. Under a salaried system, the physician's income is set by the plan, generally annually, through a salary. A salaried physician has no incentive to do "too much" for patients in order to make more money. Her incentive to do what the managed care plan considers "the right amount" comes from the fact that her salary could be raised or lowered, or she could be fired, depending on the cost of her practice patterns. Under a capitated system, the physician is paid a certain amount, generally on a monthly basis, for each of the managed care plan's patients for whom she is responsible. In its purest form, if the doctor spends less than the capitated amount, she makes a profit on that patient; if she spends more, she takes a loss. Capitation comes in a dizzying number of forms, with the variations spreading over at least two dimensions.
  6. 6. Page 6 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 One dimension is the range of services included in the capitation. Capitation to a primary care physician almost always will include primary care services. It may or may not include the costs of specialty or hospital services. It may include or exclude laboratory or radiological services. It could, but rarely does, include mental health services or pharmaceutical costs. If a service is excluded from the capitation agreement, its costs are not charged against the capitated physician, but are paid from some other pool of funds. The second dimension is the degree to which the physician is at risk even for the capitated services. At the extreme, the risk could be total. A physician receiving ninety dollars per month as "global" capitation (physician services and hospital services) might be held financially responsible for the entire $ 150,000 or higher costs if he prescribes high dose chemotherapy with autologous bone marrow transplantation, for example. More commonly, however, the risk is shared. The physician might be responsible for higher costs only up to a certain point, defined either in terms of dollars per patient or patient pool (through stop-loss insurance n9 ) or in terms of a percentage of the capitated amount (through withheld funds). In the alternative, the physician, in turn, may spread the risk through capitated arrangements with other providers, such as hospitals or specialists. A concrete example might make this more clear. Stanford University offers its employees a choice among three health maintenance organizations and the University's own "triple option" plan. n10 The three options in the triple option plan are: 1) to receive care on an HMO basis from physicians with whom the University has contracted; 2) to receive care on a "preferred provider" basis from certain other physicians, while paying a deductible and a twenty percent copayment; or, 3) to go entirely outside the network to any licensed provider, but pay a higher deductible and a forty percent copayment. n11 The University contracts with three physician groups to provide the HMO-level care. These physician groups would receive approximately ninety dollars per month to cover all physician and hospital services for a middle-aged individual. The physicians then contract with a local hospital to cover all hospital ser- [*59] vices for about forty dollars per month. The University's plan administrator withholds a percentage of the capitated payment to each physician group. This "withhold" pool is used to pay for services members receive under the second and third options, as well as for unanticipated expenses. At the end of the year, if money remains in the "withhold" pool, it is shared between the physician group, which receives eighty percent of the pool, and the University, which keeps the balance. If no money remains in that pool, the physician group is left with only the payments it has already received, but it is not responsible for any cost overrun. A third strategy is the bonus. The physicians may be paid during a fixed period under any system: salary, capitation, or fee-for-service. At the end of that period, physicians receive a bonus based on the plan's financial results that year and the physicians' contribution to them. The manner of determining the bonus can vary widely.
  7. 7. Page 7 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 One method sometimes used to determine the bonus makes up the last approach to direct financial incentives in managed care, that is, profit sharing. Under this method, the physicians receive a negotiated share of the plan's profits. They may receive that share as owners of the plan or otherwise. The details of the profit-sharing plan may vary widely. In reality, all of these systems can be used and most of them can be combined. A salary system usually will have some kind of bonus, including possibly some profit sharing, to add to the incentives provided by the salary-setting mechanism. The bonus itself may be determined as a result of some comparison with expected capitation results. A capitation system also may have a bonus, determined in a myriad of ways. The number of possible systems of direct financial incentives is virtually unlimited. Our next problem is to determine how often each method is actually being used.
  8. 8. Page 8 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Because of the on-line formatting of this HEALTH AFFAIRS QUARTERLY article, a number of irrelevant entries cannot be deleted. The entire article will be relevant to the 2 classes remaining. For Class 5, please take note in particular of the headings: The Oral Care Workforce and Practice Characteristics. Elizabeth Mertz & Edward O’Neil, The Growing Challenge of Providing Oral Health Care to All Americans, HEALTH AFFAIRS, Vol. 21, No. 5 at 65 (2002) Select a different combination of databases to search. Marquette University Libraries | Help 0 marked items Databases selected: Multiple databases... Document < Previous Document 34 of 41 Publisher « Back to Results View Next > Information Mark Document Abstract , Full Text The growing challenge of providing oral health care services to all Americans Elizabeth Mertz, Edward O'Neil. Health Affairs. Chevy Chase: Sep/Oct 2002.Vol.21, Iss. 5; pg. 65 » Jump to full text » Translate document into: » More Like This - Find similar documents Subjects: Statistical analysis, Demographics, Health care access, De demand, Ratios Classification Codes 9190 United States, 9130 Experimental/theoretical, 8320 Health care industry, 122
  9. 9. Page 9 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Locations: United States, US Author(s): Elizabeth Mertz, Edward O'Neil Document types: Feature Publication title: Health Affairs. Chevy Chase: Sep/Oct 2002. Vol. 21, Iss. 5; pg. 65 Source type: Periodical ISSN/ISBN: 02782715 ProQuest document ID: 187442131 Text Word Count 5386 Document URL: http://0-proquest.umi.com.libus.csd.mu.edu:80/pqdlink? did=187442131&sid=1&Fmt=3&clientId=1953&RQT=309&VName=PQD Abstract (Document Summary) By many measures, the practice of dentistry has improved for the dentist over the past decade. Hours of work are down, and compensation is increasing. However, there is a growing disconnect between the dominant pattern of practice of the profession and the oral health needs of the nation. To address these needs, the profession will need to take some radical steps toward redefinition, or the responsibility for many for these needs and special populations may shift to other providers and other institutions. A recent surgeon general's report cataloged the advances that have been made in the technology and science of oral health care but also clearly showed that there are worsening disparities in the oral health status for certain population groups. Underserved groups include people who are low-income or indigent; live in rural communities; are racial or ethnic minorities, non-English speaking, children, or elderly; and are developmentally disabled or have major medical problems. Full Text (5386 words) Copyright The People to People Health Foundation, Inc., Project HOPE Sep/Oct 2002
  10. 10. Page 10 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 [Headnote] ORAL HEALTH CARE The current practice model of dentistry, which serves insured patients and those who can pay out of pocket, must be changed to include the rest of the population. PROLOGUE: Frustrations over the difficulty of improving health care in the United States often reflect a sense that the system's overwhelming complexity is our worst enemy. In the following overview of the state of the nation's oral health, it is apparent that even in a relatively simple subdomain of the health enterprise, our cherished preference for harnessing private institutions to the pursuit of public goals brings success only at the price of endless tensions and trade-offs. Elizabeth Mertz and Edward O'Neil find that better preventive care and patient habits have helped improve oral health "for many parts of the population." At the same time, the number of dental hygienists in the workforce has grown steadily and is expected to increase by 37 percent between 2000 and 2010. But the U.S. dentist-to-population ratio declined during the 1990s, and the amount of time that dentists spend with patients every week has also been declining-partly a result of the increasing use of hygienists. This apparent signal of market equilibrium is misleading. The authors find "abundant evidence that a sizable segment of the population does not have access" to private care, while the dental safety net is "poorly defined and underdeveloped." Dentists' participation in Medicaid is not robust; community health centers and public health facilities have scant dental capabilities; and Medicare offers no dental coverage. "Radical steps" will be needed to correct "a growing disconnect between the dominant pattern of practice...and the oral health needs of the nation," the authors write, including new practice settings for dental care, integration of oral and primary health care, and expanded scope of practice for hygienists and other allied professions. Mertz is project director at the Center for the Health Professions, University of California, San Francisco (UCSF), and has written and lectured extensively on oral health and workforce issues. She received her master's degree in public affairs from the University of Minnesota. O'Neil is director of the center and a professor of dentistry and public health at UCSF. He is a national authority on workforce issues and holds a doctorate in American studies from Syracuse University. ABSTRACT: By many measures, the practice of dentistry has improved for the dentist over the past decade. Hours of work are down, and compensation is increasing. However, there is a growing disconnect between the dominant pattern of practice of the profession and the oral health needs of the nation. To address these needs, the profession will need to take some radical steps toward redefinition, or the responsibility for many for these needs and special populations may shift to other providers and other institutions. DENTAL DISEASE HAS BEEN WIDESPREAD, recognizing few barriers of class, ethnicity, or economic status. By the middle of the twentieth century the acute manifestations of caries and advanced periodontitis left large numbers of persons with no options except extensive removal of teeth, restoration of the remaining
  11. 11. Page 11 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 teeth, and either fixed or removable prostheses. As the profession emerged from the Second World War, it was equipped with the skills for extracting teeth and manufacturing a vast array of mechanical structures fabricated from a variety of materials. The 1950s witnessed the rise of a much more focused approach to science in all of health care. Through this movement the profession began to understand the systemic causes of infection and disease, which led to more scientific evaluation of existing treatments and new evidence-based approaches to prevention and therapy. Key among the preventive developments was the recognition of the efficacy of fluoride in preventing the onset of disease and the application of fluoride through water supplies as a population health strategy. Also contributing to prevention was the widespread information sharing among dentists, dental hygienists, and educators about the causes of infection and the corresponding change in patterns of self-care and treatment in large parts of the population. New restorative techniques, coupled with the middle-class cultural expectation of the annual dental check-up and the disposable income to pay for these preventive and therapeutic services, led to improved oral health for many parts of the population.' Although these improvements in oral health are a great success story for the dental profession, science, and the public, patterns of current and incipient oral disease and disability lie outside much of the traditional focus of practice and policy. Emerging concerns for the nation's oral health include access to care for low-income and underserved minority groups, oral diseases related to tobacco use, chronic facial pain, craniofacial birth defects and trauma, and the emergent health needs of an aging population that will need services in new locations and in new forms.2 To assess how these epidemiological, social, and economic challenges will confront dentistry, we begin with an assessment of the current dental professional workforce and contrast it, where possible, to the physician
  12. 12. Page 12 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 workforce. The Oral Health Care Workforce There are approximately 150,000 clinically active dentists in the United States.' The number of dentists has been increasing for the past twenty years, but the growth has leveled off in comparison with the growth in the U.S. population, resuiting in a decreasing dentist-to-population ratio (Exhibit 1). * Dentist-to-population ratio. From 1950 to 1970 the dentist-to-population ratio hovered at 50 per 100,000.4 With increasing demand for dental services and growing state and federal investment in education, there was a sharp rise in the ratio through 1990 when it peaked at close to 60 dentists per 100,000 population. In the late 1970s and 1980s there was a growing perception of oversupply in practitioners by many dental professionals, in both practice and education.5 Partly in response to this, applications to dental schools declined sharply during the period. A number of schools closed during this period, and others reduced class sizes. The size of the entering dental class reached an all-time high in 1978 at 6,301, but by 1989 it had fallen by just over a third to 3,979.6 This dramatic decline had an almost immediate impact, as dentist-to-population ratios began to fall in the decade of the 1990s. By 2020 this ratio is projected to drop back to 52.7, which translates into one dentist for every 1,898 people. In contrast, the physician-to-population ratio has been increasing for the past forty years and now stands at 286 per 100,000, about one physician for every 349 people.8 Between 1960 and 1998 the physician population grew by 198.6 percent, while the total population increased only 56.3 percent. Both the physician and dentist ratios vary greatly by region and state. * Age and sex distribution. The dentist workforce is aging, and a good portion will reach retirement age in the next decade. As shown in Exhibit 2, there are fewer
  13. 13. Page 13 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 young dentists in practice and fewer dentists working past age sixty-five in comparison to physicians. Just 12.5 percent (19,089) of dentists and 38 percent (4,300) of the entering dental students were women in 1996.9 In the same year, women were 21 percent (157,387) of the physician population, 35 percent (34,100) of residents/ fellows, and close to 43 percent (6,918) of the entering medical school class.lo * Racial/ethnic composition. The racial/ethnic distribution of the dentist workforce is among the least diverse of health professions. Approximately 13 percent of dentists are nonwhite, compared with 22 percent of physicians and 29 percent of the population (Exhibit 3).11 Blacks, Hispanics, and Native Americans are generally considered to be underrepresented minorities in the health professions. Dentistry contains 6.8 percent underrepresented minorities, compared with 8.5 percent of physicians and 24.8 percent of the population.12 First-year dental students in 1999 were 34 percent nonwhite; however, just 10.2 percent of this entering class were underrepresented minorities.13 In medicine, 36 percent of first-year students in 1998 were nonwhite, and 14 percent were underrepresented minorities.14 * Workforce size. The dentist workforce is much smaller than the physician workforce. It is growing at a slower rate in comparison to the population, and it tends to be more middle-aged (40-55), more male, and less ethnically diverse. Practice Characteristics The vast majority of dentists, more than 80 percent, are in general practice. The remainder are subspecialists, including orthodontists (5.8 percent), oral and maxillofacial surgeons (4.1 percent), periodontists (3.1 percent), pediatric dentists (2.4 percent), endodontists (2.2 percent), public health dentists (0.8 percent), and oral and maxillofacial pathologists (0.2 percent).15 This contrasts to the distribution in medicine, where approximately one-third practice the general
  14. 14. Page 14 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 medicine specialties of family medicine, internal medicine, or general pediatrics.6 * Hours worked per week. Private dental practitioners spent an average of 36.5 hours per week in their offices in 1998. Of these, an average of 33.3 hours were spent treating patients; this figure was 33.4 hours for generalists and 33.0 for specialists." By contrast, physicians in 1999 spent an average of 51.6 hours per week treating patients and an additional 4.7 in other professional activities.18 * Full time versus part time. The majority of dentists work full time; however, there has been a trend toward increased part-time work. The number of part-time dentists has increased at a greater rate than the number of full-time practitioners. In 1982 only 14.2 percent of dentists worked part time, compared with 23.8 percent in 1995.19 In conjunction with this trend, the average number of hours spent in the office for both full- and part-time practitioners has fallen, although the average number of hours spent treating patients has increased slightly. Therefore, although there has been an increase in overall numbers of dentists in the past few decades, the American Dental Association (ADA) found only "modest gains in the total number of office hours and the total number of treatment hours available to address the dental care needs of all Americans."20 E Solo versus group practice. of all dentists in private practice in 1998, 66.3 percent were solo practitioners working in an incorporated or unincorporated practiCe.21 Generalist dentists (673 percent) were somewhat more likely to work in a solo practice than specialists were (61.5 percent). Women made up a larger percentage of non-solo practice dentists (13.9 percent) than solo practitioners (7.6 percent).22 An estimated 92 percent of dentists owned their own practices; 76.5 percent were sole proprietors. Most dentists worked in only one office (90.0 percent), while 3.2 percent worked in three or more offices. In contrast, in 1999 only a quarter (25.5 percent) of physicians in active practice were in solo self- employed practice.23
  15. 15. Page 15 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 * Income. Independent dentists' median net income from all dental sources in 1998 was $135,000-$125,520 for general dentists and $192,000 for specialists.24 The median net income, after expenses and before taxes, for physicians in 1998 was $164,000; however, the medians across subspecialties ranged from $120,000 for pediatrics to $205,000 for orthopedic surgeons.25 * Patients' characteristics. Of patients in private dental practices in 1998, 21.5 percent were under age fourteen, 58.4 percent were ages fifteen to sixty-four, and 20.2 percent were age sixty-five or older. Almost 56 percent of patients were female.26 It is interesting to note the high percentage of patients older than age sixty-five, as this age category represents only 12.7 percent of the U.S. population. Given that Medicare does not cover dental care and that Medicaid dental benefits are not available in all states even for the elderly who have coverage, this may account for a large portion of out-of-pocket payments.27 On average, 63.7 percent of patients were covered by private insurance in 1998, 5.7 percent were covered by public insurance, and 30.6 percent were uninsured.28 In 1998, $53.8 billion in private funds was spent on dental services, nearly half of which took the form of out-of-pocket payments.29 * Summary of comparisons. Overall, the practice of dentistry has become a more lucrative and less time-consuming profession over the past decade. In comparison to physicians, dentists work more independently, have a higher rate of solo practice, and have greatly increased their earnings, in some cases surpassing the net income of physicians. Dentistry has remained a "cottage industry," which has fought incorporation into larger systems of managed care and capitated payments that have permeated medical groups. The Allied Dental Health Workforce * Hygienists. Dental hygienists are licensed health care professionals who
  16. 16. Page 16 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 provide preventive, educational, and therapeutic services for the control of oral diseases and the promotion of oral health. All registered dental hygienists (RDHs) graduate from a minimum two-year college program that includes classroom studies and supervised clinical experience. Dental hygienists also must pass a national written exam and a state clinical exam to earn the RDH license. Most dental hygienists practice as independent contractors, and many work part time or for more than one practice. The Bureau of Labor Statistics (BLS) estimated that more than 90,000 hygienists practiced in the United States in 2000, with a mean salary of $48,150.(30) * Assistants. Dental assistants work chairside with the dentist, in the business office, and in the dental laboratory. Many states do not require formal training or licensure for dental assistants. However, there are many certified dental assistant training programs, mostly at the community college level, as well as expanded practice dental assistant certifications in many states. The BLS estimates that there were 175,160 dental assistants employed in the United States in 2000, with an average salary of $24,130.(31) * Laboratory technicians. Dental laboratory technicians are responsible for filling prescriptions from dentists for bridges, dentures, crowns, and other dental prosthetics. According to the BLS, dental technicians held about 43,000 jobs in 2000, mostly in small dental laboratories. The average salary for a dental technician was $26,915.(32) Formal training for this profession is available primarily through community and vocational programs; however, most dental technicians learn their trade "on the job." In 2000 there were thirty accredited programs in the United States, although in most states certification is not mandatory.33 * Job growth. The rate of growth in new jobs in health care occupations is projected to be 28.8 percent between 2000 and 2010. However, among the five
  17. 17. Page 17 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 health occupations with the lowest rate of growth are dentists (5.7 percent) and dental laboratory technicians (6.3 percent). In contrast, the number of hygienist jobs will grow by 37.1 percent.34 Approximately 62 percent of solo dentists employed at least one part-time or full- time dental hygienist in 1998, compared with 54 percent in 1986.35 Dentists in nonsolo practice tended to employ more hygienists; only 16 percent employed no hygienist. Also, 93.4 percent of all solo general practice dentists employed at least one dental assistant. All nonsolo practices had at least one dental assistant, and more than half employed three or more.36 The projected growth in hygiene positions may indicate a trend for dentists to use more auxiliary staff for preventive and basic restorative care so they can concentrate on more specialized, highly reimbursable procedures. However, although the use of auxiliary staff has increased, these workers are more likely to be employed in group settings or practices, which are still relatively uncommon in dentistry. An increasing number of states are exploring expanded practice rights for dental hygienists, usually for the purpose of providing preventive care for underserved populations. This is allowable by law in only a few states, and independent hygiene practice is still relatively rare. Dental Services In the Public Health Sector There is abundant evidence that a sizable segment of the population does not have access to dental care through the traditional private practice model." Yet there is a poorly defined and underdeveloped dental -safety net." The result is that a growing number of people, many of them children, are unable to get regular dental care through the dental public health system or any other way. The Health Resources and Services Administration (HRSA) estimates that in 1998 there were only 2,032 public health dental workers employed in federal or
  18. 18. Page 18 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 state agencies.38 These workers are responsible for planning, developing, implementing, and evaluating programs to promote and maintain the oral health of the public. Functioning at the federal, state, and local levels, these public health workers are defined officially only by their training in dentistry or dental health. Additional public health staff may work on dental public health issues but under a different official title. The release of Healthy People 2010 and the surgeon general's report on oral health, which discussed the disparate burden of oral disease on the underserved, stimulated more interest in public health dental programs. However, to staff these programs with professionals willing to work in the public sector with underserved populations is an ongoing challenge.39 There are relatively few public health dentists in the United States. Just 0.8 percent of professionally active dentists in 1998 were public health specialists, approximately 1,207 dentists.40 In addition, approximately 400 dentists (in 2002) work for the Indian Health Service, and 258 are serving in the National Health Service Corps.41 While some dentists volunteer their time to help the underserved, the lack of dentists participating in Medicaid continues to be a major access barrier for many low-income populations.42 Community health centers (CHCs), serving 8.6 million people, including 2.8 million Medicaid beneficiaries, were only able to provide 1.2 million patients with preventive and basic dental care in 1998, less than 13 percent of the total clientele.43 Dentists actively fought any Medicare dental benefit when the program was created in the late 1960s. Unless this lack of coverage changes, baby boomers soon reaching retirement age will be faced with no systematic way to finance their dental care. RDHs, with their occupational growth and focus on preventive care, may be the oral health professionals best poised to address issues of access. However, RDHs are restricted in most states from practicing without a dentist's supervision. The growing shortage of dentists in many areas limits hygienists' ability to provide preventive care where it is needed most. The low priority of dental public health
  19. 19. Page 19 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 within public funding mechanisms has also restricted full-scale prevention activities in schools and health care facilities. While many benefit from fluoridated water, only those who can afford regular dental care receive the benefits of regular, comprehensive preventive care. Current Crisis Of Care The recent surgeon general's report cataloged the advances that have been made in the technology and science of oral health care but also clearly showed that there are worsening disparities in the oral health status for certain population groups. Underserved groups include people who are low-income or indigent; live in rural communities; are racial or ethnic minorities, non-English speaking, children, or elderly; and are developmentally disabled or have major medical problems.44 Each of these populations faces sizable barriers to care, and all are at a notable disadvantage with poorer health outcomes. Socioeconomic status tends to be the most important indicator for use of services and health outcomes, regardless of race and gender, while people with dental insurance have a higher likelihood of visiting a dentist than do those without.45 In no small measure, this is attributable to the current practice model of dentistry, which is structured to serve insured patients or patients who have the disposable income to pay for services out of pocket, in areas served by dental providers. Moreover, dental education trains new providers within the current practice model, leaving little room for developing a different type of practitioner that might appropriately address unmet needs. There is limited public financing for oral health care services outside of private dental offices. The dental safety net is small compared with the medical safety net, and many safety-net providers are underfinanced, understaffed, and overburdened.46 Practitioners operating in the traditional delivery service model are able to sustain and increase income while working shorter hours, so they have little financial
  20. 20. Page 20 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 incentive to modify their practice. This lack of incentive, the limited supply of dentists, and the lack of alternatives for delivery and financing of care mean that much of the population with the greatest and fastest-growing set of needs will continue to be underserved by the traditional system of private practice, fee- forservice dentistry. Alternatives To Current Practice A system of dental care that will begin to address the unmet health needs of a growing part of the population will likely need to move beyond the existing system of finance, practice organization, and professional utilization.47 The standard response to the lack of dental services is to suggest increasing the number of dentists. Some increase may be warranted, and perhaps inevitable, but it may be more useful to understand this problem less as a problem of supply of practitioners and more as a poor fit between part of the current practice model, the patterns of disease, and the people needing care. Such a change will raise several critical questions, such as the following: Where do those who have the greatest oral health needs receive other health care? What physical and financial impediments could be removed to facilitate meeting current and future demand? Are there social service or employment settings that might effectively sponsor oral health services? What motivations might bring the underserved more seamlessly into a system of care? How can expectations regarding oral health be raised within the underserved population? * Alternative organizational structures. A variety of strategies have been explored to provide some level of improved access to dental care for underserved populations.48 On the supply side, public dental clinics, whether freestanding or integrated into larger medical clinics, represent the closest alternative to private practice. Dental vans and mobile dental services have become a popular solution for delivering services to rural communities or schools. Increasingly, school-
  21. 21. Page 21 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 based or -linked services organize care at easily accessible sites and emphasize preventive care and screening. Teledentistry enables dentists in remote clinics to communicate with specialists in urban centers, to provide better diagnosis and referral.49 * Increased education about programs. Alternative organizational structures of dental services are only a part of the equation. Many communities have historically underused dental services. To increase participation in oral health care, focused population-targeted programs concentrate their efforts on increasing education and awareness about services within specific population groups. Some programs go further, providing case management for their clients to ensure proper screening, treatment, and follow-up? Policy responses to increasing the supply of and demand for dental services must move beyond funding the traditional models of Medicaid coverage and provider incentives to take more charity cases. A sound policy response would vastly expand the dental public health infrastructure to creatively bring those with unmet need into a system of care. * Integrating oral and primary health care. Another model of care focuses on the reintegration of oral health care into primary health care. This concept is being explored in both the dental and medical communities.51 One of the keys to improving access to care is making dental services visible, affordable, and convenient for underserved populations. Primary care medicine has more routine contact with these populations, providing opportunities for preliminary dental screening and education as well as integration of clinical services. Any strategy to address the barriers to care will need to be a collaborative effort across health care providers, as no single profession can tackle the issue alone.52 For example, the monitoring of oral health could be incorporated into a chronic care model and be offered in systemic primary care carried out by family
  22. 22. Page 22 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 physicians.53 This would be beneficial to Medicare recipients who have no dental coverage. Addition of a dental benefit to Medicare is unlikely in the current fiscal environment, and to date alternative public mechanisms to finance dental care for the elderly are not in sight. Although access to care for underserved populations is on the policy screen, the important issues associated with dental care for the elderly have yet to catch policymakers' attention. * Multidisciplinary approach. The public health system has not been competitive in attracting dentists, so the use of a variety of health professionals and social workers should be considered. Multidisciplinary efforts may better reach underserved populations by combining administrative efforts and public health goals. * Expanded practice for hygienists and assistants. Expanded practice for dental hygienists and assistants is another option being explored as a way to increase access to preventive services and education.54 Pilot studies have shown the expanded practice models to be safe and effective, and these practices have been successful in reaching underserved populations.55 Regulatory change around scopes of practice is a slow process, and few states have implemented major changes. Expanding the roles of allied oral health practitioners could increase the contact points for oral health information and care for numerous populations. * New dental school strategies. It is unlikely that the current dental workforce will be adequate to meet the oral health needs of our communities; therefore, the pipeline for providers is an important issue that must be addressed.56 Dental schools could recruit and support more students from underserved backgrounds, who have been shown to be more likely to work in underserved communities.57 Education programs also should encourage all oral health providers to serve underserved communities throughout their professional careers. Similarly, an
  23. 23. Page 23 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 expansion of dental hygiene and dental assisting education may increase the raw supply of these practitioners, but only if this effort is combined with regulatory change that ensures full use of their skills. * Program evaluation. While experimental interventions to increase demand and alter the structure and financing of care hold promise, evidence of effectiveness is still nascent. For the most part, safety-net programs focus on meeting the enormous volume of demand for services rather than dissipating resources to evaluation. A focused effort on program evaluation, with concentration on cost- effectiveness and patient outcomes, is an important final step for alternative models to gain legitimacy and support. Alternative programs remain a small fraction of all dental services. MEETING THE CHALLENGES of reducing disparities in oral health care will require fundamental redefinitions of how dental practice is organized, financed, and provided. In the long run, it would seem that systems of oral health care must be either directly integrated into larger systems of care or more effectively articulated with them. Financing of care must be realigned to pay for proven and effective interventions. Finally, the education of dental professionals must focus on community health and well-being, in addition to individual treatment and private practice. [Sidebar] "Dentistry has remained a 'cottage industry,' which has fought incorporation into larger systems of managed care." [Sidebar] "Much of the population with the greatest set of needs will continue to be underserved by fee for-service dentistry."
  24. 24. Page 24 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 [Footnote] The authors acknowledge the California HealthCare Foundation for its support of the California Dental Access Project, as well as the Bureau of the Health Professions for supporting the authors' workforce research through the Center for California Workforce Studies. It was with this support that much of the previous research for this paper was done. [Footnote] NOTES [Footnote] 1. A.B. White, DJ. Kaplan, and J.A. Winetraub, "A Quarter Century of Changes in Oral Health in the United States, Journal of Dental Education 59, no. 1 (1995):19-60. 2. WD. Hendricson and P.A. Cohen, "Oral Health Care in the Twenty-first Century: Implications of Dental and Medical Education," Academic Medicine 76, no. 12 (2001):1183-1185. 3. American Dental Association, Survey Center, The 1999 Survey of Dental Practice (Chicago: ADA Press, 2000). 4. R.W. Valachovic et al., "Trends in Dentistry and Dental Education: 2001,"Journal of Dental Education 65, no. 6 (2001): 539-561. [Footnote] 5. E.H. O'Neil and B.D. Barker, Pew National Dental Education Program Developing an Agenda for Change," Journal of Dental Education 53, no. 8 (1989): 469-474. 6. Valachovic et al., Trends in Dentistry and Dental Education." 7. Ibid. 8. American Medical Association, Physician Characteristics and Distribution in the U.S., 2000 Edition (Chicago: AMA, 2000). 9. ADA, Survey Center, Distribution of Dentists in the United States by Region and State, 1996 (Chicago: ADA, 1998); and Valachovic et al., -Trends in Dentistry and Dental Education. [Footnote] 10. AMA, Physician Characteristics and Distribution in the US.; and Association of American Medical Colleges, "FACTS-Applicants, Matriculants, and Graduates," 24 October 2001, www.aamc.org/data/facts/ famg72001a.htm (9 May 2002). 11. ADA, Survey Center, Distribution of Dentists; AMA, Physician Characteristics and Distribution in the US.; and US. Bureau of the Census, "Resident Population Estimates of the United States by Sex, Race, and Hispanic Origin: April 1, 1990 to July 1, 1999, with Short-Term Projection to November 1, 2000," eire.census.gov/ popest/archives/national/nation3/intfile3-l.txt (8 May 2002). 12. Ibid. 13. valachovic et al., "Trends in Dentistry and Dental Education."
  25. 25. Page 25 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 [Footnote] 14. AAMC, "FACTS-Applicants, Matriculants, and Graduates." 15. ADA, Survey Center, Distribution of Dentists. 16. AMA, Physician Characteristics and Distribution in the LLS. 17. ADA, Survey Center, The 1999 Survey of Dental Practice 18. AMA, Physician Characteristics and Distribution in the LLS. 19. LJ. Brown and V Lazar, "Workforce Trends That Influence Dental Service Capacity,"Journal of the American Dental Association (May 1998): 622. 20. Ibid. [Footnote] 21. ADA, Survey Center, The 1999 Survey of Dental Practice 22. Ibid. 23. J.D. Wassenaar and S.L. Thran, eds., Physician Socioeconomic Statistics, 2000-2002 Edition (Chicago: AMA, 2001). 24. ADA, survey center, The 1999 Survey of Dental Practice. 25. AMA, Physician Socioeconomic Statistics, 1999-2000 Edition (Chicago: AMA Press, 1999). 26. ADA, Survey Center, The 1999 Survey of Dental Practice 27. U.S. Bureau of the Census, "Resident Population Estimates." 28. ADA, Survey Center, The 1999 Survey of Dental Practice [Footnote] 29. Centers for Medicare and Medicaid Services, Health Care Financing Statistics (Baltimore: Office of the Actuary, National Health Statistics Group, 2000). 30. Bureau of Labor Statistics, 1999 Occupational Employment and Wage Estimates, February 2002, www.bls.gov/ oes/1999/oes_29He.htm (9 May 2002). 31. Ibid. 32. BLS, Occupational Outlook Handbook 2002-03 Edition, www.bls.gov/oco/home.htm (9 May 2002). 33. Ibid. 34. Center for Health Workforce Studies, Health Care Employment Projections: An Analysis of Bureau of Labor Statistics Occupational Projections, 2000-2010 (Rensselaer: University at Albany, State University of New York, School [Footnote] of Public Health,January 2002). 35. ADA, Survey Center, The 1999 Survey of Dental Practice. 36. Ibid
  26. 26. Page 26 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 [Footnote] 37 E.A. Mertz et al., Improving Oral Health Care Systems in California: A Report of the California Dental Access Project (San Francisco: UCSF Center for the Health Professions, 2000); and Department of Health and Human Services, Oral Health in America: A Report of the Surgeon General (Rockville, Md.: DHHS, 2000). 38. K. Gebbie, The Public Health Workforce Enumeration 2000 (New York: Center for Health Policy, Columbia University School of Nursing, and Rockville, Md.: Bureau of Health Professions, Health Resources and Services Administration, 2001). 39. Mertz et al., Improving Oral Health Care Systems in California. 40. ADA, Survey Center, The 1999 Survey of Dental Practice. [Footnote] 41. Indian Health Service, "Indian Health Service Dental Program," www.ihs.gov/MedicalPrograms/Dental/index.asp (8 May 2002); and Stan Bastacky, MHSA acting chief, Dental and Special Projects Branch, Division of Medicine and Dentistry, Bureau of Health Professions, HRSA, personal communication, 1 May 2002. 42. U.S. General Accounting Office, Factors Contributing to Low Use of Dental Services by Low-Income Populations, Pub. no. GAO-00-149 (Washington: GAO, 2000). 43. DHHS, Oral Health in America. 44. Ibid. 45. RJ. Manski and L.S. Magder, "Demographic and Socioeconomic Predictors of Dental Care Utilization," Journal of the American Dental Association (February 1998):195-200. [Footnote] 46. North Carolina Institute of Medicine Task Force on Dental Care Access, Report to the North Carolina General Assembly and to the Secretary of the North Carolina Department of Health and Human Services (Durham: North Carolina Institute of Medicine, 1999); and Minnesota Department of Human Services, Dental Access Services Report (St. Paul: Minnesota Department of Human Services, 1999). 47. D. Grembowski, A. Ronald, and C. Meei-shai, "A Public Health Model of the Dental Care Process," Medical Care Review 46, no. 4 (1989): 439-497. 48. R.C. Warren, Oral Health for All: Policy for Available, Accessible, and Acceptable Care (Washington: Center for Policy Alternatives, 1999). 49. Mertz et al., Improving Oral Health Care Systems in California 50. Ibid. 51. M. Drum, D. Chen, and R. Duffy, "Filling the Gap: Equality and Access to Oral Health Services for Minorities and the Underserved," Family Medicine 30, no. 3 (1998): 206-209.
  27. 27. Page 27 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 [Footnote] 52. DHHS, Oral Health in America. 53. E.H. Wagner, "Chronic Disease Management: What Will It Take to Improve Care for Chronic Illness?" Effective Clinical Practice 1, no. 1 (1998): 2-4. 54. Dental Health Foundation, Oral Health Access Council, personal communication, 8 May 2002. 55. JR. Freed, D.A. Perry, and J.E. Kushman, "Aspects of Quality of Dental Hygiene Care in Supervised and Unsupervised Practices," Journal of Public Health Dentistry 57, no. 2 (1997): 68-75. 56. Valachovic et al., "Trends in Dentistry and Dental Education." 57. E.A. Mertz and K. Grumbach, "Identifying Communities with Low Dentist Supply in California," Journal of Public Health Dentistry 61, no. 3 (2001): 172-177. More Like This - Find similar documents Subjects: Statistical analysis Demographics Health care access Dental care Labor force Supply & demand Ratios Classification Codes 9190 United States 9130 Experimental/theoretical 8320 Health care industry 1220 Social trends & culture Locations: United States US Author(s): Elizabeth Mertz Edward O'Neil Document types: Feature Language: English Publication title: Health Affairs ^ Back to < Previous Document 34 of 41 Publisher « Back to Results Top Next > Information Mark Document Abstract , Full Text Copyright © 2006 ProQuest Information and Learning Company. All rights reserved. Terms and Conditions Text-only interface
  28. 28. Page 28 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Duties to Provide Care The Americans with Disabilities Act RANDON BRAGDON, PETITIONER v. SIDNEY ABBOTT, ET AL. SUPREME COURT OF THE UNITED STATES 524 U.S. 624; 118 S. Ct. 2196; 141 L. Ed. 2d 540; 1998 U.S. LEXIS 4212; 66 U.S.L.W. 4601; 8 Am. Disabilities Cas. (BNA) 239; 98 Cal. Daily Op. Service 5021; 98 Daily Journal DAR 6973; 1998 Colo. J. C.A.R. 3268; 11 Fla. L. Weekly Fed. S 726 March 30, 1998, Argued June 25, 1998, Decided JUSTICE KENNEDY delivered the opinion of the Court. We address in this case the application of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U.S.C. § 12101 et seq., to persons infected with the human immunodeficiency virus (HIV). We granted certiorari to review, first, whether HIV infection is a disability under the ADA when the infection has not yet progressed to the so-called symptomatic phase; and, second, whether the Court of Appeals, in affirming a grant of summary judgment, cited sufficient material in the record to determine, as a matter of law, that respondent's infection with HIV posed no direct threat to the health and safety of her treating dentist. Respondent Sidney Abbott has been infected with HIV since 1986. When the incidents we recite occurred, her infection had not manifested its most serious symptoms. On September 16, 1994, she went to the office of petitioner Randon Bragdon in Bangor, Maine, for a dental appointment. She disclosed her HIV infection on the patient registration form. Petitioner completed a dental examination, discovered a cavity, and informed respondent of his policy against filling cavities of HIV-infected patients. He offered to perform the work at a hospital with no added fee for his services, though respondent would be responsible for the cost of using the hospital's facilities. Respondent declined.
  29. 29. Page 29 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Respondent sued petitioner under state law and § 302 of the ADA, 104 Stat. 355, 42 U.S.C. § 12182, alleging discrimination on the basis of her disability. The state law claims are not before us. Section 302 of the ADA provides: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who . . . operates a place of public accommodation." § 12182(a). The term "public accommodation" is defined to include the "professional office of a health care provider." § 12181(7)(F). A later subsection qualifies the mandate not to discriminate. It provides: "Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others." § 12182(b)(3). [Procedure omitted] II We first review the ruling that respondent's HIV infection constituted a disability under the ADA. The statute defines disability as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; "(B) a record of such an impairment; or "(C) being regarded as having such impairment." § 12102(2). We hold respondent's HIV infection was a disability under subsection (A) of the definitional section of the statute. In light of this conclusion, we need not consider the applicability of subsections (B) or (C). Our consideration of subsection (A) of the definition proceeds in three steps. First, we consider whether respondent's HIV infection was a physical impairment. Second, we identify the life activity upon which respondent relies (reproduction and child bearing) and determine whether it constitutes a major life activity under the ADA. Third, tying the two statutory phrases together, we ask whether the impairment substantially limited the major life activity. In construing the statute, we are informed by interpretations of parallel definitions in previous statutes and the views of various administrative agencies which have faced this interpretive question. Congress … adopted a specific statutory provision in the ADA directing as follows:
  30. 30. Page 30 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 "Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title." 42 U.S.C. § 12201(a). The directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act. 1. The first step in the inquiry under subsection (A) requires us to determine whether respondent's condition constituted a physical impairment. The Department of Health, Education and Welfare (HEW) issued the first regulations interpreting the Rehabilitation Act in 1977. The regulations are of particular significance because, at the time, HEW was the agency responsible for coordinating the implementation and enforcement of § 504. The HEW regulations, which appear without change in the current regulations issued by the Department of Health and Human Services, define "physical or mental impairment" to mean: "(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or "(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 45 CFR § 84.3(j)(2)(i) (1997). In issuing these regulations, HEW decided against including a list of disorders constituting physical or mental impairments, out of concern that any specific enumeration might not be comprehensive. The commentary accompanying the regulations, however, contains a representative list of disorders and conditions constituting physical impairments, including "such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and . . . drug addiction and alcoholism." In 1980, the President transferred responsibility for the implementation and enforcement of § 504 to the Attorney General. See, e.g., Exec. Order No. 12250, 3 CFR 298 (1981). The regulations issued by the Justice Department, which remain in force to this day, adopted verbatim the HEW definition of physical impairment quoted above. 28 CFR § 41.31(a)(1) (1997). In addition, the representative list of diseases and conditions originally relegated to the commentary accompanying the HEW regulations were incorporated into the text of the regulations. Ibid.
  31. 31. Page 31 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 HIV infection is not included in the list of specific disorders constituting physical impairments, in part because HIV was not identified as the cause of AIDS until 1983. HIV infection does fall well within the general definition set forth by the regulations, however. The disease follows a predictable and, as of today, an unalterable course. Once a person is infected with HIV, the virus invades different cells in the blood and in body tissues. Certain white blood cells, known as helper T-lymphocytes or CD4+ cells, are particularly vulnerable to HIV. The virus attaches to the CD4 receptor site of the target cell and fuses its membrane to the cell's membrane. HIV is a retrovirus, which means it uses an enzyme to convert its own genetic material into a form indistinguishable from the genetic material of the target cell. The virus' genetic material migrates to the cell's nucleus and becomes integrated with the cell's chromosomes. Once integrated, the virus can use the cell's own genetic machinery to replicate itself. Additional copies of the virus are released into the body and infect other cells in turn. [The Court cites numerous articles and treatises.) The virus eventually kills the infected host cell. CD4+ cells play a critical role in coordinating the body's immune response system, and the decline in their number causes corresponding deterioration of the body's ability to fight infections from many sources. Tracking the infected individual's CD4+ cell count is one of the most accurate measures of the course of the disease. The initial stage of HIV infection is known as acute or primary HIV infection. In a typical case, this stage lasts three months. The virus concentrates in the blood. The assault on the immune system is immediate. The victim suffers from a sudden and serious decline in the number of white blood cells. There is no latency period. Mononucleosis- like symptoms often emerge between six days and six weeks after infection, at times accompanied by fever, headache, enlargement of the lymph nodes (lymphadenopathy), muscle pain (myalgia), rash, lethargy, gastrointestinal disorders, and neurological disorders. Usually these symptoms abate within 14 to 21 days. HIV antibodies appear in the bloodstream within 3 weeks; circulating HIV can be detected within 10 weeks. After the symptoms associated with the initial stage subside, the disease enters what is referred to sometimes as its asymptomatic phase. The term is a misnomer, in some respects, for clinical features persist throughout, including lymphadenopathy, dermatological disorders, oral lesions, and bacterial infections. Although it varies with each individual, in most instances this stage lasts from 7 to 11 years. The virus now tends to concentrate in the lymph nodes, though low levels of the virus continue to appear in the blood. It was once thought the virus became inactive during this period, but it is now known that the relative lack of symptoms is attributable to the virus' migration from the circulatory system into the lymph nodes. The migration reduces the viral presence in other parts of the body, with a corresponding diminution in physical manifestations of the disease. The virus, however, thrives in the lymph nodes, which, as a vital point of the body's immune response system, represents an ideal environment for the infection of other CD4+ cells.
  32. 32. Page 32 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 In light of the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection. As noted earlier, infection with HIV causes immediate abnormalities in a person's blood, and the infected person's white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person's hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease. 2. The statute is not operative, and the definition not satisfied, unless the impairment affects a major life activity. Respondent's claim throughout this case has been that the HIV infection placed a substantial limitation on her ability to reproduce and to bear children. Given the pervasive, and invariably fatal, course of the disease, its effect on major life activities of many sorts might have been relevant to our inquiry. Respondent and a number of amici make arguments about HIV's profound impact on almost every phase of the infected person's life. From the outset, however, the case has been treated as one in which reproduction was the major life activity limited by the impairment. It is our practice to decide cases on the grounds raised and considered in the Court of Appeals and included in the question on which we granted certiorari. We have little difficulty concluding that it is. As the Court of Appeals held, "the plain meaning of the word 'major' denotes comparative importance" and "suggests that the touchstone for determining an activity's inclusion under the statutory rubric is its significance." Reproduction falls well within the phrase "major life activity." Reproduction and the sexual dynamics surrounding it are central to the life process itself. 3. The final element of the disability definition in subsection (A) is whether respondent's physical impairment was a substantial limit on the major life activity she asserts. The Rehabilitation Act regulations provide no additional guidance. Our evaluation of the medical evidence leads us to conclude that respondent's infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected. The cumulative results of 13 studies collected in a 1994 textbook on AIDS indicates that 20% of male partners of women with HIV became HIV- positive themselves, with a majority of the studies finding a statistically significant risk of infection. Osmond & Padian, Sexual Transmission of HIV, in AIDS Second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission. Petitioner concedes that women infected with HIV face about a 25% risk of transmitting the virus to their children.
  33. 33. Page 33 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Petitioner points to evidence in the record suggesting that antiretroviral therapy can lower the risk of perinatal transmission to about 8%. The Solicitor General questions the relevance of the 8% figure, pointing to regulatory language requiring the substantiality of a limitation to be assessed without regard to available mitigating measures. We need not resolve this dispute in order to decide this case, however. It cannot be said as a matter of law that an 8% risk of transmitting a dread and fatal disease to one's child does not represent a substantial limitation on reproduction. [The Court considers whether patient Sydney Abbott poses a direct threat under the ADA as a dental patient to Bradgon.] The determination of the Court of Appeals that respondent's HIV infection was a disability under the ADA is affirmed. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. CONCURBY: STEVENS; GINSBURG; REHNQUIST (In Part); O'CONNOR (In Part)
  34. 34. Page 34 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Government Programs and Fraud Brief class lecture will cover the structure of Medicare and Medicaid, and other public benefits. Floyd Wood, Plaintiff-Appellant, v. Tommy G. Thompson, * as Secretary of the Department of Health and Human Services, Defendant-Appellee. UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 246 F.3d 1026; 2001 U.S. App. LEXIS 6174; 73 Soc. Sec. Rep. Service 263 November 16, 2000, Argued April 12, 2001, Decided OPINIONBY: Cudahy OPINION: [*1028] Cudahy, Circuit Judge. This case is almost as hard as pulling the teeth of Floyd Wood, who lost a final decision of the United States Department of Health and Human Services Secretary Tommy Thompson that the extraction of his diseased teeth was not reimbursable under Part B of the Medicare program, 42 U.S.C. § 1395 et seq. We now affirm the district court's decision to uphold the Secretary's ruling. I. Wood, an enrollee in the Medicare program, needed a heart valve replacement. At the time his physician determined the need for this procedure, Wood had severe infection in the tissue supporting his teeth. His cardiologist determined that Wood's severe periodontal disease presented a significant risk of bacterial infection to his artificial heart valve after implantation of the device. Because of his poor dental health--and the possibility of infection--Wood's doctor recommended that he undergo dental extractions prior to his surgery. On June 6, 1994, a [**2] dentist removed 14 of Wood's diseased teeth and recontoured his upper and lower jaw (a procedure designed to prepare the tooth sockets for future denture construction). On September 13, Wood was admitted to a St. Paul, Minnesota hospital to undergo the heart valve replacement surgery. The doctor who
  35. 35. Page 35 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 performed the operation, Lyle Joyce, said he would not have performed the procedure if Wood had not undergone the tooth removal prior to surgery because of the risk of bacterial infection. After removing Wood's teeth, Wood's dentist submitted a $ 1,156 claim for dental services to MetraHealth Companies, a Medicare carrier, n1 which denied coverage of the services. Wood appealed this determination to a Medicare Part B hearing officer, who upheld the carrier's decision. Wood then appealed to a social security administrative law judge (ALJ), who affirmed the hearing officer's determination. The ALJ decided that Wood was not qualified for coverage because services in connection with the treatment of teeth were not covered under Part B of the Medicare Act, Title XVIII of the Social Security Act, 79 Stat. 290, as amended, 42 U.S.C. § 1395 et seq. Congress, the ALJ concluded, [**3] specifically excluded dental care from coverage under Medicare. See Social Security Act § 1862(a), 42 U.S.C. § 1395y(a). The ALJ did identify three exceptions to this exclusion: dental care in preparation for radiation of the jaw; a covered medical procedure performed by the same physician [*1029] doing the dental work; and inpatient dental examinations conducted in preparation for kidney transplant surgery. While the ALJ did not dispute that Wood's extractions were medically necessary, he concluded that this procedure did not fall within one of the exceptions to the blanket denial of dental coverage under Medicare. Wood requested review of the ALJ's decision by the Medicare Appeals Council, but the Council declined to review the case, stating that the ALJ's decision would stand as the final decision of the Secretary. Because the Medicare Appeals Council adopted the decision of the ALJ, that decision stands as the final decision of the Secretary. Judicial review of such final decisions lies in the appropriate district court under 42 U.S.C. § 405(g). Wood thus appealed to the District Court for the Western District of Wisconsin, which affirmed. We review the ALJ's decision with the deference due to final decisions of agencies. n2 Under 42 U.S.C. § 405(g), "findings of the Secretary . . . if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary . . . the court shall review only the question of conformity with [the Secretary's] regulations and the validity of such regulations." See also Johnson v. Heckler, 741 F.2d 948, 952 (7th Cir. 1984). "Substantial evidence" is "more than a scintilla" but less than a preponderance of the evidence, and is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." II. Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq., established Medicare as a federally funded and administered health insurance program for eligible persons who (1) are 65 or older and entitled to social security retirement benefits; (2) are disabled and entitled to social security disability benefits; or (3) have end stage renal (kidney) disease. The Secretary of Health and Human Services administers the Medicare program through the Health Care Financing Administration (HCFA), which enters into agreements with private contractors to administer payments of funds to hospitals and providers for covered services on behalf of eligible beneficiaries. The Medicare program is divided into three major components. Part A, the hospital insurance benefits program, provides coverage for inpatient hospital care, post-hospital
  36. 36. Page 36 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 care in skilled nursing facilities and post-hospital home care services. Part B generally provides coverage for outpatient physician services, physical and occupational therapy services, outpatient rehabilitation facility services, and medical equipment and services provided at rural health clinics and qualified health centers. Part B does not provide reimbursement for dental services. Expenses excluded from Part B coverage include those that are incurred: in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth, except that payment may be made under Part A of this subchapter in the case of inpatient hospital services . . . . There is only one exception to the exclusion of dental services under Part B. Section 2136 of the Medicare Carriers Manual n3 states that otherwise noncovered services performed by a dentist "as incident to and as an integral part of a covered procedure or service" will be covered by Medicare. Medicare Carriers Manual § 2136. Both the dental and the covered procedure under this provision must be furnished by the same provider. Citing this--the "same physician rule"--the ALJ concluded that the case here neither fits within the rule's purview nor falls within any corollaries to that rule. There are two corollaries to the "same physician rule," under which dental procedures will be covered under Part B even if the covered procedure is performed by someone other than a dentist. The first is outlined in § 2136 of the Medicare Carriers Manual: the extraction of teeth to prepare the jaw for radiation treatment of abnormal jaw growths (neoplastic disease). The second corollary allows for Medicare coverage of an inpatient dental examination performed "as part of a comprehensive workup prior to renal [kidney] transplant surgery." Medicare Coverage Issues Manual § 50-26. n4 The ALJ concluded that Wood's procedure fit within neither of these corollaries, and that therefore Wood could not escape the exclusion for dental services. III. On appeal, Wood advances a three-step argument: (1) the dental services exclusion in the statute is ambiguous; (2) the HCFA's interpretation of the statute is unreasonable; and (3) the legislative history is inconsistent with the over-broad interpretation of the exclusion and HCFA's interpretation of the other medically necessary exceptions to it. In reviewing an agency's interpretation of a statute, we first determine whether that statute is ambiguous.. The Secretary appears to concede that the statute is ambiguous on this point: he begins by arguing for the reasonableness of his articulated exceptions and the exclusion of Wood's procedure. As described above, the statute delineates the type of dental services that can be covered under Part A, and does not indicate any exceptions to the exclusion from coverage under Part B. n5 Because there are exceptions, Wood reasons, the statute must be ambiguous and the Secretary does not appear to view the exclusion as absolute. This is not an entirely outlandish argument. That a statute has several articulated exceptions does not necessarily mean it is ambiguous, but it does suggest the need for a possible concession on the part of the administrator of the statute as to ambiguity. The Secretary argues that the HCFA has interpreted the Medicare Act and its legislative history to allow for coverage of dental procedures in a few limited circumstances--and has not felt free to make further exceptions to the exclusion, even if it
  37. 37. Page 37 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 believes the added exceptions would not undermine Congress' goals. The Secretary fails to explain why the existing exceptions, and not others, serve any express intent of Congress to exclude procedures such as Wood's. We thus consider the statutory exclusion of dental coverage to be ambiguous, and consider whether the Secretary's interpretation of the statute in the present case is reasonable. IV. Wood argues that the HCFA's interpretation of the statute is unreasonable, and attempts to show that the Secretary's proposed list of exceptions to the Part B exclusion is not exhaustive. This argument is two-pronged: first, he argues that the HCFA's current interpretation of the statute is inconsistent with prior interpretations, and second, that the rationale behind the other exceptions applies here. Wood claims the exclusion of procedures like his is inconsistent with prior interpretations because those interpretations are premised on the idea that life-saving procedures are or should be covered by Medicare. Because dental services received prior to a kidney transplant are covered under an administrative interpretation of the Act, see National Coverage Decision § 50-26, Medicare Coverage Issues Manual, Wood believes that coverage for dental services prior to a heart valve replacement is a "logical extension." He reasons that the rationale of the kidney transplant exception would apply in his case as well: The [dental] examination is for the identification, prior to a complex surgical procedure, of existing medical problems [*1032] where the increased possibility of [**13] infection would not only reduce the chances for successful surgery but would also expose the patient to additional risks in undergoing such surgery. The Secretary notes that while the HCFA has outlined limited exceptions to the general exclusion, each exception is consistent with the language of the Medicare Act and congressional intent. The only statutorily explicit coverage of services related to dental procedures does not actually cover the dental services at all; it merely reimburses providers of inpatient hospital services in connection with dental procedures. Also, the corollary to the "same physician rule" in Medicare Carriers Manual § 2136 is for the extraction of teeth to prepare the jaw for radiation treatment of oral tumors. The Secretary argues that the ALJ reasonably limited this exception to its facts. We agree. A possibly questionable exception promulgated by the HCFA is no argument that the exception should be expanded further. Section 2136 contains a reference to another section that Wood argues indicates an intent to extend coverage to his kind of procedure. That section, § 2020.3 of the Medicare Carriers Manual, indicates that Medicare Part B pays for "otherwise covered" services furnished by a doctor of dental surgery or dental medicine if those services would be covered as physicians' services when performed by a doctor of medicine. The section indicates further that "otherwise covered services" include "treatment of oral infections and interpretations of diagnostic X-ray examinations in connection with covered services." But the section goes on to note that "the general exclusion of payment for dental services has not been withdrawn." The Secretary argues that interpreting this
  38. 38. Page 38 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 provision in the way Wood suggests would open the door to coverage of any extraction performed by a dentist to treat an infected tooth. He suggests, as an alternative, that this section should be interpreted to refer to "treatment of oral infections using antibiotics," as suggested in an Institute of Medicine report. Institute of Medicine, Extending Medicare Coverage to Preventive and Other Services 63 (2000). This counter-argument of the Secretary is only modestly convincing. But, in the absence of more specific support for Wood's claim, we cannot extend coverage to dental procedures simply because they are necessary for heart valve replacement surgery. Wood also attempts to find support in the HCFA's Rural Health Clinic and Federally Qualified Health Centers Manual. That manual defines coverage for services offered at such facilities, which provide services that can be covered under Medicare Part B. See 42 U.S.C. § 1395k(a)(2)(D). The manual, as Wood notes, has a provision nearly identical to § 2136 of the Medicare Carriers Manual, with a significant exception: A dental examination for patients requiring certain complex surgical procedures may be covered. To date, [**17] the only identified procedures for which dental examinations are covered are kidney transplants and heart valve replacements. Rural Health Clinic and Federally Qualified Health Centers manual § 442 (emphasis added). First, this provision is not applicable to Wood, as he was not treated at either a rural health clinic or a federally qualified health center. Second, this reference to heart valve replacements indicates their specific inclusion within the general exception to the exclusion for examinations in connection with surgical procedures. While this reference lends some weight to Wood's argument, it appears in an isolated corner of the administrative provisions and is not strong enough to prevail over the authority to the contrary. And, again, the Manual specifically covers an "examination," not "treatment." Wood also notes that, had the services been provided after December 1, 1996 and in Wisconsin, he would have been covered under the Wisconsin Physicians Service's Local Medical Review Policy. He did not rely on this policy in his arguments before the ALJ or the Medicare Appeals Council, and he has therefore waived this argument. Even if the argument had not been waived, this policy would be of no use to Wood. It does indeed state that Medicare covers dental extractions due to infections prior to heart valve replacement surgeries. Unfortunately, even on the assumption that this plan was approved by the HCFA, the WPS policy is not controlling authority. The policy was adopted more than two years after the dental services in this case were provided--and they were performed in Minnesota, not Wisconsin. In addition, as the Secretary notes, local medical review policies may not conflict with national policy, and allowing Part B coverage of dental extractions in connection with procedures other than radiation treatment conflicts with the Medicare Act. Wood argues that the local policy means that the HCFA approves of coverage of procedures like his, but he has presented no evidence that the HCFA has approved the policy. Indeed, a report by the Institute of Medicine--commissioned by
  39. 39. Page 39 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Congress to report on certain aspects of Medicare coverage--cites the WPS policy as an example of a local policy that conflicts with national coverage policy. Wood next contends that the rationale behind the exceptions to the dental exclusion for certain medically necessary services should extend to the services [*1034] performed in this case. Because all the exceptions appear to be aimed at dental services that are medically necessary under the circumstances, Wood reasons, there is an implied intent to extend coverage to all medically necessary dental services. The common thread among the narrow exceptions, Wood argues, is the purpose to avoid creating "an impediment to accessing covered services." All the exceptions, he notes, involve "dental services [that] are medically necessary components of the treatment of underlying medical conditions." But the "common thread" seems actually to be that the exceptions involve dental services that are requisite to performing a procedure involving the mouth or jaw. The only exception to this logic is the coverage of an inpatient dental examination prior to kidney transplant surgery. n8 But, the Secretary argues, this latter exception is only the Secretary's reasonable interpretation of the Part A coverage for inpatient hospital services in connection with certain dental procedures. Medicare Part A will cover inpatient hospital services in connection with dental services if the claimant has an underlying medical condition that requires hospitalization, or if the severity of the dental service itself requires hospitalization. The Secretary also notes that the "underlying medical condition" exception is applicable only to claims for inpatient services--not claims such as this one, brought under Part B for outpatient dental work. We agree. Finally, Wood argues that a decision of a social security ALJ supports his view. n9 In that case, the claimant needed to have a defibrillator implanted, and was required to have his diseased teeth removed prior to the surgery. The ALJ held that the extractions were covered because "the claimant's dental work would fall under an exception to the dental services exclusion in the regulations because the dental work was required secondary to a severe heart condition." Because of the scanty record, the details of the case are a mystery, but it appears that the claimant had received inpatient dental surgery, which would distinguish the circumstances from those before us and would justify a recovery under Part A. If the ALJ awarded benefits under Part B, he did so erroneously. Even if we knew enough about the case to receive guidance from it, the decision would not authorize an exception adverse to HCFA policy. The bottom line is that the statute is clear, with clear exceptions, and an argument based only on the rationale supporting the exceptions, absent some constitutional argument, cannot prevail. As the Secretary repeatedly notes, not all medically necessary services are covered by Medicare, and the Medicare Act specifically excludes dental coverage, with a few narrowly defined exceptions. Whether the case before us looks like one of those exceptions or not (and the Secretary argues persuasively that it does not), we are not armed with power to fashion a new exception: The Secretary's interpretation is reasonable, and Wood has failed to demonstrate that the denial of coverage for his procedure was based on an erroneous reading of the statute or a misapplication of HCFA regulations.
  40. 40. Page 40 524 U.S. 624, *; 118 S. Ct. 2196, **; 141 L. Ed. 2d 540, ***; 1998 U.S. LEXIS 4212 Wood's next effort is an argument that the legislative history of the statute supports his proposed interpretation. To the contrary, the history supports the Secretary's view. Wood relies heavily on a Senate report in which the Senate Finance Committee discusses the exclusion of coverage for routine dental services. But the strongest support for Wood's argument can arguably support the Secretary's interpretation as well: "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." Id. While Wood's procedure probably does not qualify as "routine dental care," it does not qualify as a "complex surgical procedure" either. Later in the report, the committee notes that "routine dental treatment--filling, removal or replacement of teeth or treatment of structures directly supporting teeth--would not be covered." Id. This evidence of congressional intent arguably supports the Secretary's view, and certainly is not authority for us to fashion an additional exception out of thin air.

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