By Andrea Faverio, Miram Harmatz, and Brett Brumund
Background on oral health coverage in Medicare:
When the Medicare Program was created in 1965, the major connection between oral health and overall wellness was not as well understood, and the Program excluded coverage of medically necessary dental care. While the connection between oral health and overall health outcomes is now proven, many people who rely on Medicare have limited access, or no access, to dental care.
Florida has over four (4) million Medicare beneficiaries.1 Many are on a fixed income. Although some Medicare beneficiaries have a limited dental benefit through their enrollment in a Medicare managed care plan, the coverage provided under those plans is limited, does not include all medically necessary dental care, and is costly for anything other than basic services like cleanings. While Florida took a huge step forward in expanding adult dental services for Medicaid recipients, most Medicare beneficiaries do not qualify for Florida’s limited Medicaid program.
Although the American Dental Association recommends at least one visit per year, almost half of all Medicare beneficiaries did not have a dental visit in 2016 and even higher rates were reported among those who are black or Hispanic, have low incomes, have poor health, and live in rural areas. Over 68% of elderly individuals suffer from periodontal disease which can lead to other health complications. Finally, it is now well established that poor oral health is linked to diabetes, heart diseases and other worsened health outcomes, particularly for the elderly who are at increased risk for these serious health conditions.2
Given the now well-understood importance of covering oral health care for Medicare beneficiaries, there are multiple efforts at the national level to address the need. These efforts include a bi-partisan administrative request, two Senate bills, and three House bills. Each is described below:
1) Bi-partisan administrative request
A bi-partisan request by members of Congress to the federal Agency that administers Medicare, the Centers for Medicare and Medicaid Services (CMS), has been submitted. Significantly, this request would not require a change to the law. Instead, it would provide a path to affordable dental care because CMS can authorize coverage for medically necessary dental benefits in limited circumstances where oral disease affects another Medicare-covered condition; for example, when oral infection prevents someone from safely undergoing surgery for another condition. While not comprehensive coverage, if adopted, this would provide dental services to those whose health is at most risk if the dental services are not provided.
A copy of the most recent bi-partisan request in the House of Representatives from September 17, 2018 is linked here. The most recent bi-partisan request in the Senate from September 20, 2018 is linked here.
Those leading this effort, including Representative Gus Bilirakis from Florida’s 12th Congressional District, underscore the need for bipartisanship. The plan for moving forward with this request is that for each Republican who signs on, there will be a Democratic signee, and vice versa. Continued pressure from Congress is necessary to keep this effort moving forward.
2) Senate bill: The Medicare Dental Benefit Act of 2019, S. 22
Senator Benjamin Cardin introduced the first major legislation that would provide for inclusion of a comprehensive dental benefit in Medicare Part B. Leading national advocacy groups sent a letter of support clearly spelling out the benefits of including a dental benefit in Medicare.
3) Companion House Bill: The Medicare Dental Benefit Act of 2019, H.R. 2951
Representative Nanette Diaz Barragán introduced this companion bill and the bill is supported by leading advocacy groups such as Families USA, American Association of Public Health Dentistry, American Dental Hygienists’ Association, Center for Medicare Advocacy, Children’s Dental Health Project, Community Catalyst, Justice in Aging, National Dental Association and the Santa Fe Group.
4) House Bill: Medicare Dental, Vision, and Hearing Benefit Act of 2019, H.R. 1393
Representative Lloyd Doggett introduced the bill to amend title XVIII of the Social Security Act to provide for coverage of dental, vision, and hearing care under the Medicare program. The bill was introduced in February of 2019.
5) House Bill: Seniors Have Eyes, Ears, and Teeth Act, H.R. 576
Representative Lucille Roybal-Allard introduced this bill to expand Medicare coverage to include eyeglasses, hearing aids, and dental care. Introduced in January of 2019, the bill has been referred to the Subcommittee on Health.
6) Senate Bill: Medicare and Medicaid Dental, Vision, and Hearing Benefit Act of 2019, S. 1423
Senator Robert Casey, Jr. introduced this bill to amend titles XVIII and XIX of the Social Security Act to provide for coverage of dental, vision, and hearing care under the Medicare and Medicaid programs. The bill was introduced in May of 2019 and has been referred to the Committee on Finance.
Oral health is an important part of health care, and until Medicare includes an oral health benefit, beneficiaries will continue to suffer. If you or a loved one has been impacted by the lack of dental coverage, we want to hear from you. Through the Florida Health Justice Project STORIES initiative, we will work with you in sharing your “story” with national leaders in oral health advocacy, including Justice in Aging and Families U.S.A.3
The work on this brief was supported through funding from The Florida Bar Foundation and Catalyst Miami.
1 Kaiser Family Foundation. 2018. https://www.kff.org/medicare/state-indicator/total-medicare-beneficiaries/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D.
2 Kaiser Family Foundation. 2019. https://www.kff.org/medicare/issue-brief/drilling-down-on-dental-coverage-and-costs-for-medicare-beneficiaries/.
3 Two national nonprofits providing expertise and advocacy leadership at the national level include Justice in Aging (JIA) and Families USA. Both groups have helpful materials and updates on their websites.
Center for Medicare Advocacy and Florida Health Justice Project Sue to Obtain “Off-label” Part D Prescription Drug Coverage for Beneficiary
FOR IMMEDIATE RELEASE
April 16, 2018
Center for Medicare Advocacy – Kata Kertesz: 202-293-5760, KKertesz@MedicareAdvocacy.org
Florida Health Justice Project – Miriam Harmatz: 786-853-9385, Harmatz@FloridaHealthJustice.org
On April 6, 2018 the Center for Medicare Advocacy and Florida Health Justice Project filed a lawsuit in the United States District Court for the Southern District of Florida on behalf of a 49-year-old Florida resident seeking Medicare coverage for the “off-label” (non-FDAapproved) use of a critically needed medication (Dobson v. Azar, 4:18-cv-10038-JLK).
Donald Dobson needs Dronabinol to control his debilitating nausea and vomiting. His symptoms result from severe pain after multiple surgeries he required due to a workplace injury. After numerous medications failed to provide relief, Mr. Dobson’s doctor prescribed Dronabinol, which significantly relieved his nausea and vomiting and allowed him to resume many activities of a normal life. However, when Mr. Dobson became eligible for Medicare Part D, his plan denied coverage because his particular use of the medication is not FDA-approved. After exhausting Medicare’s appeal system, Mr. Dobson is now seeking help in federal court as his only hope to receive this critically important and medically necessary treatment for his debilitating symptoms.
Kata Kertesz, an attorney with the Center for Medicare Advocacy said, “The Medicare agency is using an overly narrow interpretation of the law to deny coverage of a drug that it does not dispute is medically necessary for Mr. Dobson. The doctor prescribed this medication because it is the only one that has worked to control Mr. Dobson’s symptoms. But, he cannot afford it without Medicare Part D coverage.”
Mr. Dobson’s Medicare Part D plan should cover the Dronabinol because his use of the drug is supported by one of the “compendia” of medically-accepted indications listed in the Medicare law. Medicare looks to the compendia for acceptable off-label uses of medications, and the symptoms of nausea and vomiting are listed in an entry for Dronabinol. “Mr. Dobson’s position is strongly supported by another recent federal case about a beneficiary who gained Part D coverage of the same medication for very similar symptoms,” said Ms. Kertesz. “However, the Medicare agency is using an inappropriately restrictive reading of the law to claim that coverage cannot be granted for Mr. Dobson.” (See, Tangney v. Burwell, 186 F. Supp. 3d 45 (D. Mass. 2016)).
Miriam Harmatz, Co-Executive Director of the Florida Health Justice Project, stated, “this is an important case, and we hope there will be a clear ruling by the court that’s consistent with Tangney and a Florida Medicaid case, Edmonds v. Levine, 417 F. Supp. 2d 1323 (S.D. Fla. 2006). This will both ensure that Mr. Dobson gets the medication he desperately needs, and help ensure appropriate application of the law governing off label uses in other cases.”
The Center for Medicare Advocacy (www.medicareadvocacy.org) is a national, nonprofit, non-partisan law organization that works to advance access to comprehensive Medicare coverage and quality health care for older people and people with disabilities through legal analysis, education, and advocacy.
The Florida Health Justice Project (www.floridahealthjustice.org) is a new Florida nonprofit that works to ensure access to necessary health care for low-income Floridians.
The Florida Health Justice Project, a nonprofit organization, recognizes that access to quality and affordable health care is a human right and engages in comprehensive advocacy to expand healthcare access and promote health equity for vulnerable Floridians.
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