STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ALAMANCE 05 INS 1062

SUSAN B. CLAYTON, )

Petitioner, )

)

v. ) DECISION

)

STATE OF NORTH CAROLINA )

TEACHERS’ AND STATE )

EMPLOYEES’ COMPREHENSIVE )

MAJOR MEDICAL PLAN, )

Respondent. )

THIS MATTER came on for hearing on November 3, 2005 before the undersigned Administrative Law Judge, Augustus B. Elkins II, in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Susan B. Clayton, Pro se

2723 Mine Creek Road

Burlington, North Carolina 27217

For Respondent: Lori A. Kroll

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

ISSUE

Whether the State Health Plan correctly denied payment for a dental service that Petitioner asserts was medically necessary for the maintenance of good physical health for her five year old child; or whether the dental service was excluded under North Carolina General Statute as a non-covered benefit.

APPLICABLE STATUTES AND POLICIES

  1. The State Health Plan for the State of North Carolina provides hospital and medical benefits for its members subject to the limitations described in Chapter 135 of the North Carolina General Statutes. Under N. C. Gen. Stat. § 135-40.1 (1a), the phrase “Covered Services” is synonymous with allowable expenses and with benefits.
  1. 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).
  1. The medical policy adopted by the State Health Plan, SU0410 (Anesthesia), SU0160 (Dental and Oral Surgery), SU0410 (Orthognathic Surgery), have bearing on the issue of whether Petitioner’s expenses are covered.
  1. N. C. Gen. Stat § 135-40.6(6), Limitations and Exclusions to Surgical Benefits, states:

a. No benefits are provided for dental prostheses such as crowns, or dentures; orthodontic care; operative restoration of teeth (fillings); dental extractions (whether impacted or not impacted); apicoectomies; treatment of dental caries, gingivitis, or periodontal diseases by gingivectomies or other periodontal surgery; vestibuloplasties, alveoplasties, removal of exostosis and tori preparatory to fitting of dentures; correction of malocclusion by orthognathic surgery or other procedures by repositioning of bone tissue except as permitted pursuant to N.C.G.S. §135-40.6(5)(c); removal of cysts incidental to apicoectomies or extraction of teeth.

5. N. C. Gen. Stat § 135-040.6(5)(c) deals with oral surgery, and states:

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. Developmental and congenital orthognathic surgery procedures will be covered under the Plan, provided such surgery is medically necessary, is the only method of treatment which will correct the patient's deformity, is not performed for cosmetic reasons, and is approved in advance by the Claims Processor on the basis of the surgeon's documentation that the correction of the deformity is medically necessary for the maintenance of good physical health.

6. N. C. Gen. Stat § 135-40.6(4), Outpatient Benefits, addresses dental services and is applicable.

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, along with the documents and exhibits received and admitted into evidence (Respondent’s Exhibits 1-14) and the entire record in this proceeding, the Undersigned makes the following Findings of Fact. In making the Findings of Fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witnesses, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1.  Petitioner, Susan Clayton, was a covered dependent of a State employee, and member of the North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan (State Health Plan) who resides in North Carolina. Her son was an eligible enrolled dependent with the Plan during the relevant time period.

2.  Respondent North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan is the state agency responsible for administering the health care benefits provided for State employees and retired State employees by the North Carolina General Assembly. Blue Cross Blue Shield of North Carolina is the Claims Administrator for the State Health Plan.

3.  Petitioner’s five (5) year old son had abnormal oral development with two ankylosed lower primary molars (baby teeth) that failed to erupt properly. Ankylosed teeth are teeth that are attached to the bone. He also had two partially covered lower permanent molars. This resulted in a worsening occlusal plane.

4.  It was the opinion of the Petitioner’s dentists, Dr. Jerry G. Bayliff, Jr. and Dr. Christopher L. Davis that this worsening of the occlusal plane would result in significant bite problems if left untreated. It was recommended that the ankylosed teeth be extracted and that the soft tissue covering the two permanent molars be removed.

5.  Given the patient’s age, this procedure was performed by an oral surgeon using general anesthesia in June 2004. Petitioner sought coverage for the dental extractions in September 2004, in the amount of $695.00 for the extraction and $405.00 for the anesthesia. The Respondent Health Plan denied coverage of the dental services as a benefit exclusion.

6.  As a dependent of an enrolled employee of the State, the Petitioner’s son has health coverage with the Respondent Health Plan. The Plan does not offer dental benefits except for limited circumstances. Petitioner sought review of the Respondent Health Plan’s decision. Petitioner followed the internal appeals procedures for the Respondent and submitted letters of support from the child’s pediatrician, Dr. Jeffrey D. Greene, his dentist, Dr. Jerry Baliff and the oral surgeon, Dr. Christopher Davis.

7.  Initially, Petitioner’s appeal was denied as untimely. However, when it became apparent that the Agency had made an error in the appeals process, Petitioner was permitted to file her appeal as timely. Petitioner believed that due to the initial error and based on a series of telephone calls that she made to Respondent, that the claim was not given the proper attention and review. Her last telephone conversation before receiving the denial letter occurred on May 12, 2005, when Petitioner spoke with Jill Bell, RN, who informed Petitioner that the office was having administrative changes, and running behind, and that a decision had not been made on her claim.

8.  Petitioner received a latter dated May 11, 2005, from George C. Stokes, Executive Administrator for the State Health Plan, denying benefits for Petitioner’s son, and notifying Petitioner of the right to file a petition with the Office of Administrative Hearings. Petitioner filed a timely appeal with the Office of Administrative Hearings.

9.  It is undisputed that the services at issue are dental services that were medically necessary and appropriate for the Petitioner’s son. It is also undisputed that these dental services, the extractions and the removal of gum tissue, were not the result of an accidental injury, cleft palate or lip.

10.  Dr. Dayna Lucas testified as an expert for Respondent. She is employed as the full time Medical Director in charge of utilization management for the State Health Plan’s claims processor. By reason of Dr. Lucas’ job she is familiar with Board Policies and the governing statutes.

11.  Dr. Lucas testified that the services performed for Petitioner’s son, were dental in nature and did not meet the definition of orthognathic as outlined in Plan Policy SU0410. She testified that the procedure performed was an extraction. Furthermore, under N.C.G.S. 135-40(6) benefits were not provided for the extraction of teeth, whether impacted or not impacted.

12.  Ms. Candace Blackburn-Smith also testified for the Respondent. Ms. Blackburn-Smith has been employed by the Claims Processor as a dental analyst since 1992. She testified that dental services are only covered in very limited circumstances such as accidental injury or trauma. She had personally reviewed all of the records submitted by Petitioner in this case, and found no evidence of accidental injury or trauma. Ms. Blackburn-Smith also testified that the procedure performed was not orthognathic but was an extraction. Under the Plan Policies, SU0410 (orthognathic surgery) this was not a covered benefit.

13.  The Petitioner’s spouse, Billy T. Clayton, II, testified. He is employed by the State Highway Patrol and is the father of Petitioner’s son. He submitted a claim to his dental insurance carrier and had received some reimbursement for these services but he could not recall how much he had already been reimbursed.

14.  The Petitioner testified that her son’s condition was an unusual one, and that if left uncorrected, would have likely caused abnormal development, with future medical bills that would have been covered by the State Health Plan. Petitioner stated that she and her husband’s responsible actions toward their son were done for the proper maintenance of his good physical health and upon recommendation of his health care providers. Petitioner asserted that her actions saved the State Health Plan from paying future claims that would have been associated with her son’s condition had it been left untreated. Petitioner offered no evidence that the services performed were orthognathic or the result of a trauma.

15.  There was an additional charge at issue for anesthesia. The oral surgery of Petitioner’s son could not be accomplished without using general anesthesia. The Plan had denied coverage for the anesthesia because the procedure performed was not a covered service. Dr. Lucas testified that, pursuant to Plan Policy SU0025, anesthesia was not covered when the underlying service being performed was not a covered benefit. In this case, since the extraction was not a covered service, the Plan would not cover the anesthesia used to perform that non-covered service.

BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case. The parties received proper notice of the hearing in the matter. To the extent that the Findings of Fact contain Conclusions of Law, or that the Conclusions of Law are Findings of Fact, they should be so considered without regard to the given labels.

  1. The services that are at issue in this proceeding are services rendered to Petitioner’s son in June 2004. The appeal to the Office of Administrative Hearings was an appeal of the earlier decisions of the State Health Plan and Claims Administrator.
  2. As Petitioner was making an initial claim, the burden of proof is on Petitioner to show that the services at issue are within the health insurance coverage provided by Respondent. The responsible party for the burden of proof must carry that burden by a greater weight or preponderance of the evidence. Black’s Law Dictionary cites that “preponderance means something more than weight; it denotes a superiority of weight, or outweighing.” The finder of fact cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other side.
  3. The legal standards applicable to this case are found within the governing statutes and policies regarding the State Health Plan, specifically N. C. Gen. Stat. 135-40.6(6), 135-40.7(11); and Board of Trustees Policy SU0410 (Anesthesia), SU0160 (Dental and Oral Surgery), SU0410 (Orthognathic Surgery).
  4. Undertaking a statutory and policy analysis with regard to this fact situation, the Undersigned concludes that Petitioner failed in her burden of proof regarding the dental services provided to her son. The evidence presented establishes that the services at issue were dental, not the result of a trauma or accidental injury and did not meet the definition of orthognathic surgery as defined in the Plan Policies and/or the North Carolina Statutes. The services for which Petitioner seeks payment in this proceeding do not qualify for reimbursement under the General Statutes and Board policies applicable to this proceeding. Although Petitioner received care, which was both responsible and appropriate, his dental care was not covered under the Plan.

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the Undersigned makes the following:

DECISION

It is the decision of the Undersigned that Petitioner has failed to carry her burden of proof by a preponderance of the evidence in this matter. There is sufficient evidence in the record to properly and lawfully support the Conclusions of Law cited above. Based on those conclusions, and the facts in this case, the Respondent’s action regarding denial of reimbursement for Petitioner’s claim for the services at issue in was not in error and is hereby affirmed.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).

In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.