The Medicare Appeals Council has decided, on its own motion, to review the Administrative Law Judge's (ALJ's) decision dated December 17, 2003, because there is an error of law. See 20 C.F.R. �� 404.967 and 404.970, incorporated by reference in 42 C.F.R. � 405.856.

The Council has carefully considered the record which was before the ALJ, as well as the memorandum from the Centers for Medicare & Medicaid Services (CMS) dated January 22, 2004 (mistakenly dated 2003). The Council has also considered the letter dated March 11, 2004 from the appellant's attorney. The CMS memorandum, the Council's notice of review, and the attorney's March 11, 2004 letter are hereby entered into the record in this case.

The ALJ found that Medicare payment may be made for outpatient hospital services associated with the extraction of two infected teeth on October 16, 2001, at Conemaugh Memorial Medical Center in Johnstown, Pennsylvania. While the ALJ cited the applicable statutory and regulatory authority for the exclusion from coverage of dental services, he did not directly relate his findings or conclusions to those provisions or discuss why the services at issue were an exception to the general statutory exclusion from coverage of outpatient dental services. Moreover, his evaluation of the evidence addressed only why the services were medically reasonable and necessary, a factor which is not determinative of coverage in this case where the services are categorically excluded from coverage.

The Medicare Appeals Council incorporates herein by reference the ALJ's statements as to the pertinent provisions of the Social Security Act and Medicare regulations, the issues in the case, and the evidentiary facts. However, the Council does not adopt the ALJ's conclusion that the outpatient services at issue were covered. We reverse the ALJ on this point and conclude that the services at issue were excluded from coverage under section 1862(a)(12) of the Act and 42 C.F.R. � 411.15(i).

The beneficiary is a 35-year-old male with uncontrolled gross motor movements from drug-induced dystonia, and mental retardation. The beneficiary was originally seen by an oral and maxillofacial surgeon in the surgeon's office for examination on September 18, 2001, due to complaints of pain and swelling in his mouth. However, due to the beneficiary's underlying medical condition, the examination in the surgeon's office could not be completed. The examination was rescheduled on an outpatient basis in the hospital where further procedures could be done under general anesthesia. The physician asserted in a letter to the appellant's attorney that patients undergoing similar treatment who have the beneficiary's condition have been known to undergo respiratory arrest and other severe life-threatening complications when only local anesthesia is used. It is clear from the record that the care which the beneficiary received as an outpatient on October 16, 2001, could not have been safely performed in an office setting.

In general, dental services are excluded from Medicare coverage. Section 1862(a) of the Social Security Act states, in pertinent part:

Notwithstanding any other provision of this title, no payment may be made under Part A or Part B for 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, except that payment may be made under Part A in the case of inpatient hospital services in connection with the 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.

(Italics added.) Applicable regulations state that -

The following services are excluded from coverage.

(i) Dental services in connection with the care, treatment, filling, removal or replacement of teeth or structures directly supporting teeth.

42 C.F.R. � 411.15.

Based on the above, it is clear that the services associated with removing two infected teeth in order to relieve pain and swelling in the mouth were clearly related to the care, treatment, and removal of teeth and fall within Medicare's definition of dental services.

As indicated in the statutory provision quoted above, there is an exception to the dental exclusion. Payment may be made under part A for certain inpatient hospital services in connection with such dental procedures, when inpatient hospitalization is required because of the individual's underlying medical condition and clinical status or because of the severity of the dental procedure. No such exception is allowed for outpatient hospital services related to dental procedures billed under Medicare part B, even if the hospital facilities are used because of similar conditions or clinical status.

A hospital inpatient, for Medicare purposes, is defined in section 210 of the Medicare Hospital Manual as a person admitted to a hospital for bed occupancy for purposes of receiving inpatient hospital services. ⁽¹⁾ A hospital outpatient, for Medicare purposes, is defined in section 3112.1 of the Medicare Intermediary Manual and Section 230.1 of the Medicare Hospital Manual as a person who has not been admitted by the hospital as an inpatient but is registered on the hospital records as an outpatient and receives services (rather than supplies alone) from the hospital.

The record establishes that the services at issue were provided on an outpatient basis in the ambulatory surgery unit. The hospital admission and discharge summary clearly states that it is for "outpatient services" and the beneficiary was both admitted and discharged on the same date, October 16, 2001. Ex. 1, at 2. The online inquiry system of the Medicare contractor shows the "TOB" (type of bill) to be coded 130; section 460 of the Medicare Hospital Manual indicates that the second digit of the "TOB" code, 3, designates outpatient services. Ex. 2, at 2. Thus, the hospital billed these services to Medicare part B as outpatient services. There is no evidence that the beneficiary was admitted as an inpatient.

For the reasons stated above, it is clear that the outpatient dental services at issue are excluded from coverage. In making such finding, we are not questioning whether the services were medically reasonable and necessary or whether they were provided in the most appropriate setting. We are simply finding that they are not a covered Medicare service, because they are excluded dental services. The Medicare Appeals Council has no authority to grant an exception to the dental exclusion provisions, as suggested by the appellant's attorney in his March 11, 2004 letter, regardless of how sincerely compelling the circumstances.

FINDINGS

The Medicare Appeals Council has carefully considered the entire record and makes the following findings:

1. The treating physician admitted the beneficiary on an outpatient basis to Conemaugh Memorial Medical Center on October 16, 2001, for the examination and extraction of two infected teeth.
   
   
2. The hospital services received were scheduled and performed on an outpatient basis.
   
   
3. The hospital services received were directly related to the care or treatment of the teeth.
   
   
4. Outpatient hospital services in connection with dental procedures are excluded from coverage pursuant to section 1862(a)(12) of the Act.
   

DECISION

It is the decision of the Medicare Appeals Council that the dental services received by the beneficiary on October 16, 2001, on an outpatient basis from Conemaugh Memorial Medical Center are not covered by Medicare.

Date: March 22, 2004.

Clausen J. Krzywicki
Administrative Appeals Judge

Bruce P. Gipe
Administrative Appeals Judge

1. Effective October 1, 2003, manuals issued by the Centers for Medicare & Medicaid Services (CMS) can be found at http:\\www.cms.hhs.gov\manuals.