STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF JOHNSTON 07 INS 1319

|Nettie C Minshew, |) | |

|Petitioner, |)) | |

| |))))| |

|vs. | |Decision |

| | | |

|North Carolina State Health Plan, | | |

|Respondent | | |

This contested case came on to be heard before Beecher R. Gray, Administrative Law Judge, on March 14, 2008 in Raleigh, North Carolina. Respondent filed a proposed decision on August 12, 2008. Petitioner has not filed any response to the proposed decision.

APPEARANCES

For Petitioner: Nettie C. Minshew, appearing pro se

959 Honeycutt Road

Willow Spring, North Carolina 27592

For Respondent: Brandon L. Truman

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

ISSUE

Whether the surgical placement of dental implants and related services and treatment rendered to Petitioner Nettie C. Minshew (hereinafter “Petitioner”) are covered benefits under the North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan (hereinafter “State Health Plan” or “Respondent”).

FINDINGS OF FACT

From the sworn testimony of the witnesses, the exhibits, the other competent and admissible evidence, and the record as a whole, it is found as facts that:

1. The parties received notice of hearing by certified mail more than fifteen days prior to the hearing and each stipulated on the record that notice was proper.

2. The State Health Plan is the North Carolina state agency responsible for administering the health care benefits provided for North Carolina state employees and retired state employees.

3. Blue Cross Blue Shield of North Carolina is the claims administrator for the State Health Plan.

4. Petitioner has been a member of the State Health Plan at all times relevant herein. Petitioner is a member of the State Health Plan’s indemnity benefits plan.

5. Petitioner is a former cancer patient who suffered cancer in the lower jaw, for which she was treated in the year 1968 with a hemimandibuloectomy, a rib graft, and the placement of dental implants and dental supported lower appliances.

6. Petitioner suffers from advanced dental caries and she contends that her remaining teeth are non-restorable and that her previous dental implants have failed.

7. The following requests for benefits were made to the State Health Plan on behalf of Petitioner by her medical providers for the services and treatment at issue in this matter:

a. In a letter dated May 24, 2007, from Nancy R. Chaffee, D.D.S. (hereinafter “Dr. Chaffee”) to the State Health Plan, Dr. Chaffee requested the State Health Plan to pay benefits for the removal of Petitioner’s remaining teeth and of her previous failing dental implants, the placement of new dental implants, dentures, connector bars, and related services and treatment.

b. In an invoice statement in the amount of $5,984.99, dated January 23, 2008, Dr. Anthony R. Immediata requested payment for services and treatment rendered to Petitioner periodically from February 16, 2007, through July 24, 2007, related to a bone graft, the extraction of teeth, the placement of dental implants and related services and treatment.

8. The State Health Plan reviewed the request materials submitted on Petitioner’s behalf and by a May 31, 2007, letter, the State Health Plan denied Petitioner’s foregoing requests for coverage, except for the extraction of certain teeth. The State Health Plan denied Petitioner’s request for coverage on the basis that, with the exception of extraction of teeth, her services and treatment were not covered under N.C. Gen. Stat. §§ 135-40.6, 135-40.7, and the State Health Plan’s Medical Policy Number SU0160 (hereinafter “Medical Policy Number SU0160”).

9. In a letter dated June 18, 2007, Dr. Chaffee, on Petitioner’s behalf, appealed the State Health Plan’s May 31, 2007, benefits denial letter.

10. After the State Health Plan conducted a subsequent review of whether Petitioner’s services and treatment should receive coverage, the State Health Plan sent a final decision letter to Petitioner dated July 12, 2007, denying benefits for Petitioner’s services and treatment. The final decision letter informed Petitioner of her right to appeal the State Health Plan’s decision by filing a petition with the Office of Administrative Hearings.

11. On August 13, 2007, Petitioner appealed the Plan’s final decision letter by filing a Petition for Contested Case Hearing with the Office of Administrative Hearings.

12. Petitioner did not present expert witness testimony at the hearing.

13. Fred Holt, MD, (hereinafter “Dr. Holt”) testified as an expert witness for the State Health Plan. Doctor Holt was found qualified and was accepted as an expert in the field of head and neck surgery, including head and neck cancer surgery with reconstruction.

14. Dr. Holt additionally serves as a Medical Director for the State Health Plan. In this capacity, he is familiar with the applicable provisions of North Carolina General Statutes, Chapter 135, including but not limited to N.C. Gen. Stat. §§ 135-40.6 and 135-40.7, and with Medical Policy Number SU0160.

15. In Dr. Holt’s expert opinion, Petitioner’s bone graft, removal of prior dental implants, placement of new dental implants, dentures, connector bars, and related services and treatment constitute tooth replacement procedures.

16. Petitioner’s bone graft, removal of prior dental implants, placement of new dental implants, dentures, connector bars, and related services and treatment constitute tooth replacement procedures.

17. Dr. Holt gave expert opinion testimony at the hearing that Petitioner’s services and treatment do not meet the statutory and State Health Plan medical policy provisions for dental and oral surgical benefits.

18. Coverage for a limited amount of oral surgery and related services benefits can be available under the North Carolina General Statutes. Under N.C. Gen. Stat. § 135-40.6(5)(c), the State Health Plan will pay benefits for oral surgery “services which are within the scope of practice of both a doctor of medicine and a dentist, such as excision of tumors and lesions of the mouth, treatment of jaw fractures and surgery to correct injuries of the mouth structure other than teeth and their supporting structure.” (Emphasis added.)

19. The State Health Plan’s Medical Policy Number SU0160 on dental and oral surgical services provides, in part: “Definition: Dental and oral surgical procedures are those which are within the scope of practice of both a doctor of medicine and a doctor of dentistry, such as the excision of tumors and other lesions of the mouth, treatment of jaw fractures, and surgery for diseases of the mouth and adjacent tissues and to correct injuries of the mouth structure other than the teeth and their supporting structures.” (Emphasis added.)

20. Coverage for a limited amount of oral surgery benefits can be available under Medical Policy SU0160. Under paragraph two of Medical Policy SU0160, the following benefits are provided: “2. Oral Surgery: Benefits include excision of cysts, tumors, and other lesions of the mouth; surgery involving cheeks, lips, tongue, and roof and floor of mouth; and procedures involving the jaw, including treatment of fractures, but excluding teeth or tooth structure.” (Emphasis added.)

21. The North Carolina General Statutes set forth express exclusions from oral surgical benefits.

A. Under N.C. Gen. Stat. § 135-40.6(6)(a), “no benefits are provided for dental prostheses such as crowns, or dentures; . . . treatment of dental caries, . . . removal of exostosis and tori preparatory to fitting of dentures, correction of malocclusion by orthognathic surgery or other procedures by repositioning of bone tissue expect as permitted pursuant to G.S. 135-40.6(5)(c); removal of cysts incidental to apicoectomies or extraction of teeth.”

B. Under N.C. Gen. Stat. § 135-40.7 (11), the following services and treatment, among other services and treatment, are expressly excluded: “Charges for or in connection with any dental work or dental treatment except to the extent that such work or treatment is specifically provided for under the Plan. Excluded is payment for surgical benefits for tooth replacement, such as crowns, bridges or dentures; . . . treatment for tooth decay, . . . repositioning soft tissue, reshaping bone, and removal of bony projections from the ridges preparatory to fitting of dentures; . . . or other dental procedures involving teeth and their bones or tissue supporting structure.”

21. Medical Policy SU0160, in paragraphs six and nine of its Limitations and Exclusions section, provides that the following services and treatment are excluded:

6. Oral surgical benefits are excluded for:

a. Tooth replacement prostheses such as crowns, bridges, and dentures . . .

h. Treatment of dental caries . . .

k. Vestibuloplasties, alveoplasties, and removal of exostosis and tori prepatory to fitting of dentures . . .

m. Other procedures involving teeth and the bones or tissue supporting structure.

9. Benefits are excluded for charges for, or in connection with, any dental work or dental treatment except to the extent that such work is specifically provided for under the Plan.

CONCLUSIONS OF LAW

From the foregoing Findings of Fact, the undersigned Administrative Law Judge concludes as a matter of law that:

1. The Office of Administrative Hearings has jurisdiction in this matter.

2. The State Health Plan is the North Carolina state agency under the North Carolina General Statutes responsible for administering the health care benefits provided for North Carolina state employees and retired state employees. The State Health Plan provides hospital and medical benefits for its members subject to the limitations described in Chapter 135 of the North Carolina General Statutes and the State Health Plan’s medical policies.

3. The burden of proof is on Petitioner to show that the above services and treatment are covered under the State Health Plan benefits.

4. Under N.C. Gen. Stat. § 135-40.1(1a), the phrase “Covered Services” is synonymous with allowable expenses and benefits.

5. Under N.C. Gen. Stat. § 135-39.5(20), the Executive Administrator and Board of Trustees of the State Health Plan have the power and duty to: “[Determine] administrative and medical policies that are not in direct conflict with Part 3 of this Article upon the advice of the Claims Processor and upon the advice of the Plan's consulting actuary when Plan costs are involved.” These policies are not subject to the rule making procedures of the North Carolina Administrative Procedure Act. See N.C. Gen. Stat. § 150B-1(d)(7).

6. N.C. Gen. Stat. §§ 135-40.6 and 135-40.7, and Medical Policy SU0160, adopted by the Executive Administrator and Board of Trustees of the State Health Plan, have a bearing on the issue of whether or not Petitioner’s expenses are covered.

7. Petitioner’s bone graft, removal of prior dental implants, placement of new dental implants, dentures, connector bars, and related services and treatment, fall within the exclusions set forth in N.C. Gen. Stat. §§ 135-40.6 (6)(a) and 135-40.7 (11), Board Medical Policy SU0160.

8. The evidence shows that the services and treatment Petitioner received are excluded from coverage under N.C. Gen. Stat. §§ 135-40.6 (6)(a) and 135-40.7 (11), and Board Medical Policy SU0160, which exclude benefits for dental implants and other tooth replacement procedures.

9. The services and treatment for which Petitioner seeks payment in this proceeding do not qualify as covered dental and oral surgical services under the North Carolina General Statutes and the State Health Plan medical policies applicable to this proceeding.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, Respondent’s decision to deny Petitioner’s request for benefits for her bone graft, removal of prior dental implants, placement of new dental implants, dentures, connector bars, and related services and treatment, is supported by the evidence and is AFFIRMED.

ORDER

It hereby is ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6714, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in N.C. Gen. Stat. § 150B-36(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

The agency that will make the final decision in this contested case is the North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan.

This the 8th day of September 2008.

_____________________________

Beecher R. Gray

Administrative Law Judge

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