The Court has determined that it can resolve the issues presented in this matter 1

without the need for oral argument. 

Hyperlipidemia is a medical condition which leads to abnormally elevated levels 2

of lipids. An individual with osteopenia typically has lower than usual bone mineral

density. Periodontal disease is a disease that affects teeth supporting structures. 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02507-PAB

DIXIE BORN,

Plaintiff, 

v. 

KATHLEEN SEBELIUS, Secretary of Health and Human Services,

Defendant.

ORDER

This matter is before the Court on plaintiff Dixie Born’s complaint [Docket No. 1],

filed on September 23, 2011. Plaintiff seeks review of the final decision of defendant

Kathleen Sebelius, in her capacity as the Secretary of Health and Human Services (the

“Secretary”), denying plaintiff’s claim for Medicare Part B benefits under Title XVIII of

the Social Security Act (the “Act”), 42 U.S.C. § 1395 et seq. The Court has jurisdiction

to review the Secretary’s final decision pursuant to 42 U.S.C. §§ 405(g), 1395ff(b).1

I. BACKGROUND

Plaintiff was born on February 28, 1942 and is 71 years old. R. at 15. She has a

history of hyperlipidemia, osteopenia, and periodontal disease. R. at 44. Because of 2

her medical conditions, Ms. Born’s mandible has low bone density, she has nutritional

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The mandible is the lower jaw or lower jawbone. 3

2

difficulties, as well as problems chewing and digesting food. In 1985, Ms. Born 3

underwent surgery to have hydroxyapatite filler placed in her posterior mandible to

prevent further bone loss caused by her medical ailments. R. at 71, 73. Although the

hydroxyapatite filler ameliorated Ms. Born’s condition, the hydroxyapatite added to her

mandible slowly eroded. R. at 73. In 2004, Dr. Robert T. Spencer, Associate Professor

of Medicine at the University of Colorado, Dr. Celinde Strohl, Ms. Born’s internal

medicine doctor, and Dr. William J. Garehime, D.D.S., opined that it was medically

necessary for Ms. Born to undergo surgery to have dental implants for her mandible in

order to reduce bone loss and optimize her nutritional intake. R. at 42, 73, 115. 

In 2007, Drs. Strohl and Spencer again endorsed dental implants as medically

necessary to improve Ms. Born’s health and nutrition. R. at 43, 116. In addition, Dr.

Timothy Masterson, D.D.S., Ms. Born’s family dentist, recommended dental implants to

improve Ms. Born’s ability to chew and digest food. R. at 99. Dr. Masterson opined

that the bone grafts and hydroxyapatite would “improve [Ms. Born’s] dental and medical

health.” Id. In addition, Kristi McLaughlin, Advanced Oral & Maxillofacial Surgery’s

Implant Treatment Coordinator, added that Ms. Born required bone grafts and dental

implants for “optimal stabilization of [the] upper and lower prosthesis.” R. at 74.

Based on these recommendations, on June 20, 2007, August 1, 2007, and

October 24, 2007, Dr. James R. Lessig and Dr. Masterson performed surgery on Ms.

Born, which consisted of bone grafts and reconstruction of the mandible. R. at 41, 68. 

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TrailBlazer initially upheld the denial of Ms. Born’s request for coverage on April 4

27, 2010. See R. at 284-288. However, because of errors in the initial letter,

TrailBlazer sent Ms. Born an amended letter on October 29, 2010. R. at 268. 

Under the Medicare program, QICs perform independent reviews of

5

beneficiaries’ case files to determine whether the services claimed are covered under

Medicare guidelines. R. at 252.

3

The doctors performed Ms. Born’s surgery at Advanced Oral & Maxillofacial Surgery’s

clinic, id. at 68, for a total cost of $36,325.00. R. at 46. 

In May 2009, Ms. Born submitted claims for Medicare payments to TrailBlazer

Health Enterprises, LLC (“TrailBlazer”), a Medicare contractor, requesting

reimbursement for the costs of the surgery and implants. R. at 301-309; R. at 269. 

Specifically, Ms. Born submitted seven claims for jaw reconstruction (Current

Procedural Terminology (“CPT”) code 21248) and eight claims for bone grafts (CPT

code 20900). R. at 301-309; R. at 28. TrailBlazer denied Ms. Born’s claims, initially

and on subsequent review, on the grounds that the surgery and implants were excluded

from coverage as dental procedures under Medicare Part B. R. at 268-276. 4

On October 11, 2010, Ms. Born requested reconsideration of TrailBlazer’s ruling

from Q2 Administrators, the Medicare Qualified Independent Contractor (“QIC”) in

charge of her case. R. at 280-282. In her request for reconsideration, Ms. Born 5

argued that her surgeries were not routine dental procedures, but constituted medical

treatment necessary to improve her overall health. R. at 280. On November 27, 2010,

the QIC denied Ms. Born’s claims on the grounds that services performed in connection

with the care of teeth or structures directly supporting teeth, including treatment,

removal, or replacement, are excluded from coverage under Medicare. R. at 254. The

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4

QIC explained that, unlike other health related services, Congress explicitly excluded all

dental services from Medicare coverage and did not limit this exclusion to “routine”

procedures. Id. Moreover, the QIC noted that Ms. Born’s treatment did not qualify

under two exceptions to the general prohibition against coverage for dental services.

See, e.g., Centers for Medicare & Medicaid Servs., Dep’t of Health & Human Servs.,

Medicare Benefit Policy Manual (“MBPM”), Pub. 100-02, Chap. 16, § 140 (stating that

Medicare coverage is available for “[t]he extraction of teeth to prepare the jaw for

radiation treatments of neoplastic disease”), available at 

http://cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c16.pdf;

Centers for Medicare & Medicaid Servs., Dep’t of Health & Human Servs, Medicare

National Coverage Determinations Manual (“NCD”), Pub. 100-03, Chap. 1, Part 4,

§ 260.6 (stating that Medicare coverage is available for oral examination services

before a beneficiary undergoes kidney transplant to prevent risk of infection), available

at

http://cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/ncd103c1_Pa

rt4.pdf. Because the QIC found that the dental services Ms. Born received did not

qualify under these exceptions, it held that she was not entitled to Medicare coverage. 

R. at 255. 

On December 31, 2010, Ms. Born timely appealed the QIC’s decision and

requested an administrative hearing. R. at 247-249. On March 7, 2011, Administrative

Law Judge (“ALJ”) Bennett S. Engelman held a hearing at which Ms. Born testified. R.

at 24. On March 16, 2011, the ALJ rendered a favorable decision to Ms. Born,

concluding that her surgeries were covered under Medicare Part B because they did

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Under 42 C.F.R. § 405.1110(b), a QIC may refer an ALJ decision to the Council 6

for review if the QIC believes that an ALJ decision contains an error of law material to

the outcome of the claim. 

Ms. Born’s objections were filed by the Medicare Rights Center, a national non- 7

profit organization. R. at 46.

5

not constitute dental services. R. at 25. In reaching this conclusion, the ALJ relied on

documentation from Ms. Born’s physicians who opined that the bone grafts and

reconstruction of the mandible were not simple dental services, but rather necessary

treatment to improve Ms. Born’s overall health and ability to digest food. R. at 25. The

ALJ reasoned that reconstruction of the mandible and the bone grafts were procedures

similar to those identified in NCD, Chap. 1, Part 4, § 260.6. Id. Accordingly, the ALJ

concluded that Ms. Born was entitled to coverage under Medicare Part B and ordered

reimbursement for her dental services at the appropriate Medicare rate. Id. 

On May 11, 2011, the QIC filed a referral to the Medicare Appeals Council (the

“Council”). In its referral, the QIC stated that the Council should review ALJ 6

Engelman’s decision because the ALJ erred as a matter of law when he found that

Medicare coverage existed for Ms. Born’s dental services. R. at 29. On June 3, 2011,

Ms. Born filed objections to the QIC’s referral. R. at 46-48. Ms. Born argued that the 7

ALJ did not commit a clear error of law because he correctly found that the surgeries

were performed to remedy a “congenital osteoporotic condition” and that the dental

implants were not the purpose of the surgery. R. at 47.

On March 16, 2011, the Council reviewed the ALJ’s decision on its own motion

and, on July 22, 2011, issued an order reversing the ALJ. R. at 2-12. The Council

concluded that mandible reconstruction and bone grafts are not covered under

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6

Medicare. R. at 7. The Council found that Ms. Born’s surgeries did not fall within the

narrow exception in MBPM Chap. 16, § 140, which allows for jaw reconstruction in

preparation for cancer radiation treatments. R. at 7-8. In addition, the Council found

that Ms. Born’s surgeries were not covered under NCD Chap. 1, Part 4, § 260.6, which

allows for oral examinations in preparation for a kidney transplant. R. at 8. After review

of the medical evidence, the Council concluded that Ms. Born’s medical records

indicated that the mandible reconstruction and bone grafts were provided in connection

with the treatment of her teeth or structures supporting her teeth and therefore were not

covered under Medicare Part B. R. at 11. The Council also noted that, although the

dental services had the collateral effect of improving Ms. Born’s overall health, this

alone was not sufficient to convert non-covered dental procedures into covered

procedures. R. at 10. The Council’s decision stands as the final decision of the

Secretary. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). 

II. ANALYSIS

A. Standard of Review

Once the Secretary has rendered a final decision on a Medicare claim, judicial

review of that decision is available in the same manner as provided in 42 U.S.C.

§ 405(g) for old age and disability claims arising under Title II of the Social Security Act. 

Heckler v. Ringer, 466 U.S. 602, 605 (1984); 42 U.S.C. § 1395ff(b)(1)(A) (stating that

“any individual dissatisfied with any initial determination under subsection (a)(1) of this

section” is entitled to reconsideration, a hearing by the Secretary, and “to judicial review

of the Secretary’s final decision after such hearing as is provided in section 405(g)”). 

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7

Under § 405(g), review of the Secretary’s finding that a claimant is not entitled to

Medicare benefits is limited to whether the Secretary’s finding is supported by

substantial evidence. Chipman v. Shalala, 90 F.3d 421, 422 (10th Cir. 1996). The

district court may not reverse the Secretary simply because the court may have

reached a different result based on the record; the question instead is whether there is

substantial evidence showing that the Secretary was justified in her decision. See 

Andrade v. Sec. of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). 

Substantial evidence is more than a mere scintilla and is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. See Via Christi

Reg’l Med. Center, Inc. v. Leavitt, 509 F.3d 1259, 1271 (10th Cir. 2007). 

B. The Medicare Program

The Medicare statute, enacted in 1965, is a federal health insurance program

primarily benefitting those 65 years of age or older. See Social Security Amendments

of 1965, Pub. L. No. 89-97, 79 Stat. 286 (codified as amended at 42 U.S.C. §§ 1395 to

1395kkk-1). To be eligible, an individual must be (1) 65 years of age or older; (2)

disabled and entitled to social security disability benefits; or (3) medically determined to

have end stage renal (kidney) disease. 42 U.S.C. § 1395c. The Centers for Medicare

and Medicaid Services (“CMS”) is the agency within the Department of Health and

Human Services charged with the administration of Medicare. See Sw. Pharm.

Solutions, Inc. v. Ctrs. for Medicare and Medicaid Servs., 718 F.3d 436, 439 (5th Cir.

2013). The Medicare program is divided into four major components – Parts A, B, C,

and D. Part A of the program provides for hospital insurance services, including

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8

inpatient hospital services, post-hospital extended care services, home health services,

and hospice care. 42 U.S.C. § 1395d(a). Part B is a voluntary program that provides

supplemental benefits to Medicare participants to cover the costs of, among other

things, home health services, physician services, and outpatient physical therapy

services. 42 U.S.C. § 1395k. Part C, the “Medicare + Choice” (M+C) program, allows

eligible participants to opt out of the traditional Part A fee-for-service system and

instead obtain various benefits through Medical Advantage Organizations, which

receive a fixed payment from the United States for each enrollee. 42 U.S.C. §§ 1395w21, w-29. Part D of the program provides a prescription drug benefit program. 42

U.S.C. §§ 1395w-101 et seq. 

This appeal concerns Medicare Part B. The central dispute between the parties

is whether the Council’s finding that Ms. Born’s mandible reconstruction and bone grafts

are not covered services under Medicare Part B is supported by substantial evidence.

Ms. Born argues that she is entitled to coverage under Medicare Part B because her

dental surgeries were “incident to and an integral part” of the treatment of her

osteopenia. Docket No. 8 at 11. She contends that her surgeries were reasonably

necessary to treat the “abnormality or malformation of her jaw caused by her

osteopenic condition.” Id. Moreover, she claims that the surgeries fall under the rare

exception to the blanket denial of dental coverage under Medicare because they were

not routine dental procedures. Id. 

The Secretary does not dispute the medical necessity of Ms. Born’s dental

services. Docket No. 11 at 10; see Fournier v. Sebelius, 839 F. Supp. 2d 1077, 1082

(D. Ariz. 2012) (noting that “Medicare excludes from coverage specific services,

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9

including those related to dental care, regardless of whether those services are

considered medically necessary”) (citation omitted). Instead, the Secretary claims that

the dental services Ms. Born received are not covered under Medicare Part B. Id. 

In order to establish entitlement to Medicare coverage, a beneficiary must show

that his or her medical procedures were (1) medically necessary and (2) fall within the

coverage guidelines. See Goodman v. Sullivan, 891 F.2d 449, 451 (2d Cir. 1989)

(noting that Medicare does not cover all medically necessary services); Wood, 246 F.3d

at 1032 (“All medically necessary procedures are not covered under [Medicare]”).

Medicare covers services that are “reasonable and necessary for the diagnosis or

treatment of illness or injury or to improve the functioning of a malformed body member”

and are not excluded by any other provision of the Act. 42 U.S.C. § 1395y(a)(1)(A). 

As a general rule, Medicare does not provide coverage for dental services. See,

e.g., 42 U.S.C. § 1395y(a)(12) (noting that “no payment may be made under part A or

part B of [Medicare] for any expenses incurred for items or services . . . where such

expenses are for services in connection with the care, treatment, filling, removal, or

replacement of teeth or structures directly supporting teeth”); 42 C.F.R. § 411.15(i)

(noting that excluded services include “[d]ental services in connection with the care,

treatment, filling, removal, or replacement of teeth, or structures directly supporting the

teeth”). However, Medicare has exceptions to the general prohibition against coverage

for dental services. Under the first exception, dental services provided in a hospital

setting in connection with an “underlying medical condition” may be covered under

Medicare Part A. 42 U.S.C. § 1395y(a)(12) (stating that “payment may be made under

Part A of this subchapter in the case of inpatient hospital services in connection with the

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Edentulous means “without teeth; having lost some or all natural teeth.” R. at 8

11.

10

provision of such dental services if the individual, because of his underlying medical

condition and clinical status or because of the severity of the dental procedure, requires

hospitalization in connection with the provision of such services”); Chipman, 90 F.3d at

422-23. Under the second exception, beneficiaries may receive benefits for the

“extraction of teeth to prepare the jaw for radiation treatments of neoplastic disease.” 

CMS, Pub. 100-02, Chap. 16, § 140. The third exception allows for the receipt of

benefits for oral examinations performed in a hospital before a beneficiary undergoes

surgery for a kidney transplant. CMS, Pub. 100-03, Chap. 1, Part 4, § 260.6. The

fourth exception notes that Medicare coverage is available “[i]f an otherwise

noncovered procedure or service is performed by a dentist as incident to and as an

integral part of a covered procedure or service performed by the dentist.” CMS, Pub.

100-02, Chap. 15, § 150. Because the Secretary does not dispute the medical

necessity of Ms. Born’s surgeries, the Court’s analysis will focus on whether her dental

services fall within Medicare Part B’s coverage guidelines. 

In this case, the Court finds that the Council’s conclusion that Ms. Born’s

surgeries were not covered under Medicare Part B is supported by substantial evidence

because the medical records establish that Ms. Born’s procedures were performed in

connection with the treatment of her teeth and teeth supporting structures. See, e.g.,

R. at 74 (Ms. McLaughlin describing her condition as “fully edentulous in the maxilla 8

and partially edentulous in the mandible”); R. at 102 (Dr. Masterson noting that surgery

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Occlusal means “pertaining to the contacting surfaces of opposing teeth or of 9

opposing occlusion rims, or to the masticating surfaces of the premolar and molar

teeth.” R. at 11. 

11

would improve Ms. Born’s “occlusal function” ); R. at 126 (Dr. Nuray Bilir writing to Ms. 9

Born: “I do understand that you would like to have a bone surgery in your jaw to be able

to improve your chewing”); R. at 8-10 (listing additional opinions). As such, Ms. Born’s

mandible reconstruction and bone grafts are not covered under Medicare Part B

because they qualify as services performed in connection with the “care, treatment,

filling, removal, or replacement of teeth or structures directly supporting teeth.” 42

U.S.C. § 1395y(a)(12). Because her dental services fall within the general exclusion to

coverage, Ms. Born is not entitled to Medicare coverage unless she can show that an

applicable exception to the general rule applies. 

Ms. Born’s dental services do not qualify for the exception available under NCD

Chap. 1, Part 4, § 260.6 because her surgeries were not in preparation for a kidney

transplant. Similarly, Ms. Born cannot avail herself of the exception in MBPM Chap. 16,

§ 140 because her dental services were not in connection with radiation treatments. 

Ms. Born argues that her surgeries are covered under MBPM Chap. 15, § 150

because her dental services were performed to “improve the functioning of a malformed

body member,” namely, her mandible. 42 U.S.C. § 1395y(a)(1)(A); see Docket No. 8 at

11. Ms. Born claims that, because her mandible qualifies as a malformed member, her

dental services are covered under the MBPM, which allows for Medicare coverage of an

otherwise “noncovered procedure or service” performed by a dentist that is “incident to

and [ ] an integral part of a covered procedure or service performed by the dentist.” 

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The Court notes that there is some ambiguity with respect to Ms. Born’s 10

arguments. Under the MBPM, the phrase “incident to and as an integral part of” refers

to a “noncovered procedure or service” performed by a dentist. CMS, MBPM, Chap.

15, § 150. However, Ms. Born’s argument appears to conflate a “covered procedure”

with a qualifying “underlying condition” as she argues the services she received were

integral to the treatment of her osteopenia. See, e.g., Docket No. 8 at 11 (“dental

surgery was to treat the abnormality or malformation of her jaw”). However, under the

MBPM, the focus is not on the condition that will be treated, but whether a noncovered

procedure is performed in connection with a covered procedure. Here, Ms. Born does

not identify a covered procedure performed in connection with her dental surgeries. 

12

CMS, MBPM Chap. 15, § 150. Although Ms. Born’s deteriorating mandible may qualify

as a malformed body member, because surgery reconstructing the mandible is

expressly excluded under the Act as “care, treatment, filling, removal, or replacement of

teeth or structures directly supporting teeth,” Ms. Born is not entitled to the costs

associated with her dental services under Medicare Part B. 42 U.S.C. § 1395y(a)(12)

(emphasis added). As the Council accurately noted, Medicare unambiguously

“exclud[es] from [ ] coverage all items or services provided in connection with a

beneficiary’s teeth or their supporting structures.” R. at 10 (emphasis added). Thus,

because reconstruction of the mandible is not a “covered procedure,” Ms. Born’s

reliance on MBPM Chap. 15, § 150 is misplaced. 

10

To the extent Ms. Born argues that her dental services were necessary to treat

her underlying medical condition and, therefore, are covered under Medicare Part B,

the Court disagrees. As noted by the Tenth Circuit in Chipman, the “underlying medical

condition” exception is only available under Medicare Part A. 90 F.3d at 422-23. 

Because Ms. Born raises her coverage claim under Medicare Part B, the exception

available for an underlying medical condition under Medicare Part A is inapplicable. 42

U.S.C. § 1395y(a)(12); 42 C.F.R. § 411.15(i).

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13

Next, Ms. Born asserts that she is entitled to coverage for her dental services

because this case is analogous to Maggio v. Shalala, 40 F. Supp. 2d 137 (W.D.N.Y.

1999), where the court found that dental services that provided a plaintiff with crowns to

stabilize a maxillary prosthesis were covered under Medicare Part B. Ms. Born’s

reliance on Maggio, however, is misplaced. First, that case relied on the “underlying

medical condition” exception to find that the plaintiff was entitled to coverage for dental

services under Medicare Part B. 40 F. Supp. 2d at 142. As noted above, this

interpretation of the Act was rejected by the Tenth Circuit in Chipman. 90 F.3d at 422-

23. Second, the court in Maggio found that the plaintiff’s dental services were covered

under Medicare Part B because the services were related to the plaintiff’s cancer

treatment, provided in a hospital (albeit an outpatient basis), and performed by the

hospital’s cancer dental surgeon on the recommendation of the plaintiff’s oncologist. 40

F. Supp. 2d at 142. By contrast here, Ms. Born’s dental services were not related to

cancer treatment and were not performed in a hospital setting. Thus, because Maggio

conflicts with binding Tenth Circuit precedent and is not factually analogous, it does not

support Ms. Born’s arguments.

Finally, Ms. Born argues that her dental services should be covered because

they were not the sort of “routine dental care that is excluded from coverage” under

Medicare. Docket No. 8 at 11. This argument appears to challenge the Secretary’s

interpretation that the statute unambiguously excludes from coverage all items and

services provided in connection with a beneficiary’s teeth or their supporting structure. 

R. at 10; 42 U.S.C. § 1395y(a)(12). Ms. Born, however, provides no support for the

argument that non-routine treatments – not identified in the aforementioned exceptions

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14

– are excluded from Medicare’s general prohibition for coverage of dental services.

Because neither the Act, the regulations implementing the Act, nor the Secretary’s

manuals state that non-routine dental services similar to those Ms. Born received are

covered under Medicare Part B, the Court finds this argument unconvincing. See

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)

(noting that an agency interpretation of its enacting statute will be afforded deference if

it is reasonable); Wood, 246 F.3d at 1035 (noting that the Medicare Act is “clear, with

clear exceptions, and an argument based only on the rationale supporting the

exceptions, absent some constitutional argument, cannot prevail”). Accordingly, the

Court concludes that the administrative record contains substantial evidence to support

the Council’s conclusion that Ms. Born’s mandible reconstruction and bone grafts were

excluded from coverage under Medicare Part B. Wood, 246 F.3d at 1035.

III. CONCLUSION

For the foregoing reasons, it is 

ORDERED that the decision of the Secretary that plaintiff is not entitled to

benefits under Medicare Part B is AFFIRMED. 

DATED September 24, 2013.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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