Emma Bohlen v. Caspar Weinberger, Secretary of Health, Education and Welfare , 483 F.2d 918 ( 1973 )

OPINION OF THE COURT

ADAMS, Circuit Judge.

The Court is asked on this appeal to determine the narrow issue whether, under the Medicare provisions of the Social Security Act,¹ prior to the 1972 amendment, the denial by a carrier of reimbursement to an individual for dental care is subject to administrative review. The district court held, in an exhaustive opinion,² that, under the Medicare Act, an individual denied reimbursement for the kind of dental care involved here may seek review by the Secretary of Health, Education and Welfare. The Secretary disagrees and has filed this appeal.

Plaintiff, Emma Bohlen, was injured in an automobile accident in August, 1968. She suffered two dislocated hips, a fractured right hip, a laceration of the arm, a broken nose and a fractured jaw. While in the hospital, the fractured jaw was reduced by an oral surgeon, and the cost of that dental procedure was covered by Medicare.³ Later, Mrs. Bohlen engaged the services of another dentist for follow-up dental work in the nature of realigning and grinding her teeth to correct the separation of the maxilla (jaw) from the cranium, a condition which had so changed her “bite” that her upper and lower teeth did not meet. As a result of this improper “bite,” Mrs. Bohlen was unable to chew and eat adequately and her fracture was not healing correctly. In letters, which are part of the record in this case, the second dental surgeon described the work he had performed on Mrs. Bohlen as “absolutely necessary post-operative treatment” that was “in no way related to normal dental care or maintenance. . . . ”

Mrs. Bohlen submitted to Pennsylvania Blue Cross-Blue Shield⁴ a Request for Medicare Payment for the services performed by the dental surgeon. The carrier rejected the claim on the ground that the dental services involved were not covered under Medicare. During an informal review, her claim was again denied by the carrier, and subsequently by a Medicare Fair Hearing Officer. Mrs. Bohlen was then advised by the Social Security Administration that no further review could be sought by her since the Social Security Act does not provide for administrative or judicial review from a determination concerning the type of claim presented by Mrs. Bohlen.

Although this appeal turns solely upon the issue whether the denial of reimbursement is subject to review, it is important to place the problem presented in a perspective appropriately illuminated by the issue upon which review is sought.

Mrs. Bohlen was seeking reimbursement based upon part B of the Medicare Act that provides benefits for “medical and other health services.”⁵ The Act limits such benefits to “professional services performed by physicians. .,”⁶ and defines “physician,” in part, as “a doctor of dentistry . who is legally authorized to practice dentistry . . . but only with respect to (A) surgery related to the jaw or any structure contiguous to the jaw or (B) the reduction of any fracture of the jaw or facial bone. . . . ” ⁷

The Act excludes from coverage under part B “any expenses incurred for items or services (12) where such expenses are for services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth.” ⁸ It was on the basis of this exclusion that the carrier and the Fair Hearing Officer determined that Mrs. Bohlen’s dental treatment was not covered under Medicare.⁹

Whether Mrs. Bohlen does or does not have a statutory right of review under the Medicare Act depends upon an interpretation of § 1395ff of the Act.¹⁰ That section, prior to the 1972 Amendment, see note 14 and accompanying text, infra, provides, in relevant part:

“(a) The determination of whether an individual is entitled to benefits under part A or part B, and the determination of the amount of benefits under part A, shall be made by the Secretary -in accordance with regulations prescribed by him.

“(b) Any individual dissatisfied with any determination under subsection (a) of this section as to entitlement under part A or part B, or as to amount of benefits under part A where the matter in controversy is $100 or more, shall be entitled to a hearing thereon by the Secretary to the same extent as is provided in section 405(b) of this title, and in the case of a determination as to entitlement or as to amount of benefits where the amount in controversy is $1,000 or more, to judicial review of the Secretary’s final decision after such hearing as is provided in section 405(g) of this title.”

Thus, the issue whether Mrs. Bohlen qualifies for a statutory right of review narrows itself to whether the claim she submitted for the second dental procedure raises a question of “entitlement” or one of “amount.”

Having carefully considered the record, and the various contentions, we conclude that the district court correctly determined that “a question of entitlement is one which raises the issue of whether regardless of the amount' of benefits in question, the claimant has the right to receive any payment for the services rendered, or, conversely, whether the claim is to be excluded entirely.” ¹¹

The district court, meticulously examining the legislative history of § 1395ff, noted the reasons suggested in Congress ¹² for allowing review in “entitlement” matters but not in those involving “amount,” and articulated several reasons fathomed by the district judge sua sponte to support such a distinction.¹³ From its analysis, the district court concluded that Mrs. Bohlen’s claim for reimbursement raises an issue of “entitlement,” not “amount.” It would serve little, if any, purpose for this Court to reiterate the cogent bases for the lower court’s conclusion concerning Mrs. Bohlen’s claim since they are set forth in considerable detail in the trial judge’s opinion, 345 F.Supp. 124. Rather, we hold simply that, for the reasons stated by the district judge, Mrs. Bohlen is entitled to review by the Secretary.

While affirming the judgment of the district court, we are not unmindful that subsequent to the opinion of the lower court in this case Congress amended the Social Security Act in such a way that those now raising claims such as Mrs. Bohlen’s in the present case would apparently not be entitled to administrative review by the Secretary.¹⁴ Thus, under the present version of § 1395ff, it would seem that the concept of “entitlement” relates, as the Secretary has argued throughout this litigation, only to the right of an individual to participate, vel non, in the Medicare program, and not to the right of an enrollee to reimbursement.¹⁵

But cases must be decided on the basis of a statute’s language and, where appropriate, resort may be had to legislative history at the time of the relevant enactment’s passage. We thus agree with the recent decision by the Court of Appeals for the Fourth Circuit holding that “determinations as to entitlement to benefits are properly subject to review . . .,” notwithstanding the 1972 Amendment.¹⁶ While subsequent legislative history may shed light upon the intent earlier embodied in a given piece of legislation, the remarks of a single proponent of the amending legislation¹⁷ do not, without more, compel the reversal by us of the district court’s well-reasoned judgment. Indeed, one might well argue that the 1972 amendment, and Senator Bennett’s remarks in support thereof, indicate that the 1962 legislation does not express a restrictive notion of reviewability. Thus, nothing in the 1972 Amendment nor the legislative history accompanying it convinces us that the district court erred in concluding that, under the statute as originally enacted, Mrs. Bohlen raised a claim of “entitlement” and therefore was protected by the Act’s review provision.

The judgment of the district court will be affirmed.

1 . 42 U.S.C. § 1395j et seq. (part B). Although the plaintiff also raised a number of constitutional questions, since we decide that plaintiff is entitled to administrative review of the denial of her claim, we, like the district court, need not reach them. The major issue confronting the Court concerns the proper interpretation to be given 42 U.S.O. § 1395ff, the review provision of the Act. In October, 1972, this section was amended by Congress to obviate the kind of problem presented in this ease. See notes 10 & 14, infra. All references in the text to § 1395ff refer to that section as originally enacted, and not as amended, unless otherwise specifically stated.

2 . Bohlen v. Richardson, 345 F.Supp. 124 (E.D.Pa.1972).

3 . These services were paid for pursuant to 42 U.S.C. §§ 1395k and 1395x(q), (r) and (s).

4 . To provide for efficient and .convenient administration, Congress authorized the Secretary to enter into contracts with carriers such as Pennsylvania Blue Cross-Blue Shield to perform certain functions. 42 U.S.C. § 1395a. Section 1395u(b) (3) (C) states that such contracts shall provide that the carrier establish and maintain procedures for a fair hearing by the carrier. Such procedures have been established. 20 C.F. R. § 405.801 et seq.

5 . 42 U.S.C. § 1395k.

6 . Id. §§ 1395x(s), 1395x(q).

7 . Id. § 1395x(r) (2).

8 . Id. § 1395y(a) (12).

9 . The Fair Hearing Officer reasoned, inter alia, that because the second dentist did not perform the in-hospital oral surgery reducing the fracture of Mrs. Bohlen’s jaw, the services rendered by him fell within the exclusion of § 1395y(a)(12). See note 8 and accompanying text, supra. According to the carrier, the second dental procedure would be covered “only when [it is an] integral part of the reduction of the fracture and [is] performed by the dentist who reduced the fracture.” Mrs. Bohlen’s legal problem thus arose because she used two dental surgeons instead of one. From the testimony taken by the Fair Hearing Officer, it would appear that the first dentist, an oral surgeon, had advised Mrs. Bohlen to consult another dentist to perform the additional dental work she required.

10 . 42 U.S.C. § 1395ff. This section was amended in October, 1972. 42 U.S.C.A. § 1395ff (Supp.1973). See text accompanying note 14, infra.

11 . 345 F.Supp. at 129.

12 . Although the legislative history does not indicate what Congress, when enacting the Medicare Act, meant by “entitlement,” it does suggest that Congress did not provide review “of a determination concerning the amount of benefits under part B [because such] claims will probably be for substantially smaller amounts than under part A.” 1965 U.S.Code Cong, and Admin.News, Yol. 1, p. 1995. It should be noted that at the time of filing the complaint Mrs. Bohlen’s bill for the second dentist’s services was $400; by June, 1971, she had spent $600 and, the dentist estimates that Mrs. Bohlen will spend more than $1,000 for Ms services. Bohlen v. Richardson, 345 F.Supp. 124, 131, n.6 (E.D.Pa.1972).

13 . The district court perceived reasons other than the one suggested in Congress for limiting review of “amount” questions but not “entitlement” issues. The former are typically “questions of fact that are within the competence of a carrier to find and decide” while the latter “tend to be questions of policy which are broader. . . . [and] are more fundamental than amount questions and usually involve legal analysis or statutory construction ... on which the Secretary or the courts, as opposed to a carrier staffed by laymen, should have the last word.” 345 F.Supp. at 130. The court concluded that Mrs. Bohlen’s claim raised questions of the latter sort.

14 . 42 U.S.C.A. § 1395ff (Supp.1973). The government contends, inter alia, that the judgment reached by the district court, and by this Court here, would be productive of much litigation. Of course, the courts must always be alert to such possibilities. But, even assuming, arguendo, that a court could properly decide appeals on the basis of the volume of litigation that might be produced by a given decision in a particular case, there has been no showing that the result we reach in this case will in fact produce more cases of this kind. There has been no indication, for example, that the decisions in Ridgely v. Secretary of HEW, 475 F.2d 1222 (4th Cir. 1973), see note 14, infra, or Cardno v. Finch, 311 F.Supp. 251 (E.D.La. 1970), have in any way confirmed that the possibility of increased litigation is anything more than speculative. Congress could, of course, decide not even to run the risk of overburdening our dockets, but, as the government admitted at oral argument, § 1395ff, prior to the 1972 amendment, was at best ambiguous and, in any event, did not clearly reflect a congressional concern about the docket, or in any way manifest an intent that cases of the present kind be placed in the non-reviewable “amount”, category.

15 . See 118 Cong.Rec.S. 17048-49 (daily ed. Oct. 5, 1972) (remarks of Senator Bennett) ; H.Rep.No.92-1605, 92d Cong., 2d Sess., p. 61 (Conference Report).

16 . Ridgely v. Secretary of H.E.W., 475 F.2d 1222 (4th Cir. 1973). The Ridgely court was faced with a determination that certain nursing care received by the enrollee was “custodial,” not “skilled,” in nature and thus excluded from Medicare coverage under 42 U.S.C. § 1395y(a) (9). At issue was whether such question was one of “entitlement” or “amount” for purposes of § 1395ff. The court concluded that under the legislation prior to the amendment the case presented an “entitlement” issue subject to review.

17 . See Note 15, supra. Senator Bennett’s statement is set out in extenso in Judge Al-disert’s dissenting opinion.