Wood, Floyd v. Thompson, Tommy G.

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2711

Floyd Wood,

Plaintiff-Appellant,

v.

Tommy G. Thompson,*/ as Secretary

of the Department of Health

and Human Services,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 99-C-760-S--John C. Shabaz, Chief Judge.

Argued November 16, 2000--Decided April 12,

2001

Before Cudahy, Coffey, and Evans, Circuit

Judges.

Cudahy, Circuit Judge. This case is

almost as hard as pulling the teeth of

Floyd Wood, who lost a final decision of

the United States Department of Health

and Human Services Secretary Tommy

Thompson that the extraction of his

diseased teeth was not reimbursable under

Part B of the Medicare program, 42 U.S.C.

sec. 1395 et seq. We now affirm the

district court’s decision to uphold the

Secretary’s ruling.

I.

Wood, an enrollee in the Medicare

program, needed a heart valve

replacement. At the time his physician

determined the need for this procedure,

Wood had severe infection in the tissue

supporting his teeth. His

cardiologistdetermined that Wood’s severe

periodontal disease presented a

significant risk of bacterial infection

to his artificial heart valve after

implantation of the device. Because of

his poor dental health--and the

possibility of infection--Wood’s doctor

recommended that he undergo dental

extractions prior to his surgery. On June

6, 1994, a dentist removed 14 of Wood’s

diseased teeth and recontoured his upper

and lower jaw (a procedure designed to

prepare the tooth sockets for future

denture construction). On September 13,

Wood was admitted to a St. Paul,

Minnesota hospital to undergo the heart

valve replacement surgery. The doctor who

performed the operation, Lyle Joyce, said

he would not have performed the procedure

if Wood had not undergone the tooth

removal prior to surgery because of the

risk of bacterial infection.

After removing Wood’s teeth, Wood’s

dentist submitted a $1,156 claim for

dental services to MetraHealth Companies,

a Medicare carrier,/1 which denied

coverage of the services. Wood appealed

this determination to a Medicare Part B

hearing officer, who upheld the carrier’s

decision. Wood then appealed to a social

security administrative law judge (ALJ),

who affirmed the hearing officer’s

determination. The ALJ decided that Wood

was not qualified for coverage because

services in connection with the treatment

of teeth were not covered under Part B of

the Medicare Act, Title XVIII of the

Social Security Act, 79 Stat. 290, as

amended, 42 U.S.C. sec. 1395 et seq.

Congress, the ALJ concluded, specifically

excluded dental care from coverage under

Medicare. See Social Security Act sec.

1862(a), 42 U.S.C. sec. 1395y(a). The ALJ

did identify three exceptions to this

exclusion: dental care in preparation for

radiation of the jaw; a covered medical

procedure performed by the same physician

doing the dental work; and inpatient

dental examinations conducted in

preparation for kidney transplant

surgery. While the ALJ did not dispute

that Wood’s extractions were medically

necessary, he concluded that this

procedure did not fall within one of the

exceptions to the blanket denial of

dental coverage under Medicare. Wood

requested review of the ALJ’s decision by

the Medicare Appeals Council, but the

Council declined to review the case,

stating that the ALJ’s decision would

stand as the final decision of the

Secretary.

Because the Medicare Appeals Council

adopted the decision of the ALJ, that

decision stands as the final decision of

the Secretary. Judicial review of such

final decisions lies in the appropriate

district court under 42 U.S.C. sec.

405(g). Wood thus appealed to the

District Court for the Western District

of Wisconsin, which affirmed. We review

the ALJ’s decision with the deference due

to final decisions of agencies./2 Under

42 U.S.C. sec. 405(g), "findings of the

Secretary . . . if supported by

substantial evidence, shall be

conclusive, and where a claim has been

denied by the Secretary . . . the court

shall review only the question of

conformity with [the Secretary’s]

regulations and the validity of such

regulations." See also Johnson v.

Heckler, 741 F.2d 948, 952 (7th Cir.

1984). "Substantial evidence" is "more

than a scintilla" but less than a

preponderance of the evidence, and is

"such relevant evidence as a reasonable

mind might accept as adequate to support

a conclusion." Kapusta v. Sullivan, 900

F.2d 94, 96 (7th Cir. 1990) (quoting

Richardson v. Perales, 402 U.S. 389, 401

(1971)).

We may also set aside the Secretary’s

denial of coverage if the denial was

based on legal error. See Stevenson v.

Chater, 105 F.3d 1151, 1153 (7th Cir.

1997). When interpreting a statute, we

first determine whether the intent of

Congress is unambiguous. See Chevron

U.S.A., Inc. v. Natural Resource Defense

Council, Inc., 467 U.S. 837, 842 (1984).

If the meaning of the statute is clear,

no deference is due an agency’s

interpretation. If the meaning of the

statute is ambiguous, an agency’s

interpretation will be deferred to if it

is reasonable. See id. at 844. If the

agency’s interpretation conflicts with

its prior interpretation, the current

interpretation is "’entitled to

considerably less deference’ than a

consistently held view." INS v. Cardoza-

Fonseca, 480 U.S. 421, 446 n.30 (1987)

(quoting Watt v. Alaska, 451 U.S. 259,

273 (1981)).

II.

Title XVIII of the Social Security Act,

42 U.S.C. sec. 1395 et seq., established

Medicare as a federally funded and admin

istered health insurance program for

eligible persons who (1) are 65 or older

and entitled to social security

retirement benefits; (2) are disabled and

entitled to social security disability

benefits; or (3) have end stage renal

(kidney) disease. See 42 U.S.C. sec.

1395c. The Secretary of Health and Human

Services administers the Medicare program

through the Health Care Financing

Administration (HCFA), which enters into

agreements with private contractors to

administer payments of funds to hospitals

and providers for covered services on

behalf of eligible beneficiaries. See 42

U.S.C. sec.sec. 1395h, 1395u(a).

The Medicare program is divided into

three major components. Part A, the

hospital insurance benefits program,

provides coverage for inpatient hospital

care, post-hospital care in skilled

nursing facilities and post-hospital home

care services. See 42 U.S.C. sec.sec.

1395c to 1395i-5. Part B generally

provides coverage for outpatient

physician services, physical and

occupational therapy services, outpatient

rehabilitation facility services, and

medical equipment and services provided

at rural health clinics and qualified

health centers. See 42 U.S.C. sec.sec.

1395j to 1395w-4, 1395x(s); 42 C.F.R.

sec. 410.3. Part B does not provide

reimbursement for dental services.

Expenses excluded from Part B coverage

include those that are incurred:

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 of this subchapter in the case of

inpatient hospital services . . . .

42 U.S.C. sec. 1395y(a)(13). Part C is a

new component of the Medicare statute,

and the parties agree that it has no

bearing on this case. See 42 U.S.C. sec.

1395w-21 et seq. Part B is the only

section of the statute under which Wood’s

procedure could arguably fall, because

the extraction did not involve inpatient

hospital care. However, as noted, the

statute clearly excludes dental

procedures from coverage under Part B.

There is only one exception to the

exclusion of dental services under Part

B. Section 2136 of the Medicare Carriers

Manual/3 states that otherwise

noncovered services performed by a

dentist "as incident to and as an

integral part of a covered procedure or

service" will be covered by Medicare.

Medicare Carriers Manual sec. 2136. Both

the dental and the covered procedure

under this provision must be furnished by

the same provider. An example of this,

provided in the manual, is when the

reconstruction of a ridge, which is

normally a non-covered procedure, is

performed "as a result of and at the same

time as the surgical removal of a tumor

(for other than dental purposes)." See

id. In such a situation, "the totality of

surgical procedures would be a covered

service." See id. Citing this--the "same

physician rule"--the ALJ concluded that

the case here neither fits within the

rule’s purview nor falls within any

corollaries to that rule.

There are two corollaries to the "same

physician rule," under which dental

procedures will be covered under Part B

even if the covered procedure is

performed by someone other than a

dentist. The first is outlined in sec.

2136 of the Medicare Carriers Manual: the

extraction of teeth to prepare the jaw

for radiation treatment of abnormal jaw

growths (neoplastic disease). The second

corollary allows for Medicare coverage of

an inpatient dental examination performed

"as part of a comprehensive workup prior

to renal [kidney] transplant surgery."

Medicare Coverage Issues Manual sec. 50-

26./4 The ALJ concluded that Wood’s

procedure fit within neither of these

corollaries, and that therefore Wood

could not escape the exclusion for dental

services.

III.

On appeal, Wood advances a three-step

argument: (1) the dental services

exclusion in the statute is ambiguous;

(2) the HCFA’s interpretation of the

statute is unreasonable; and (3) the

legislative history is inconsistent with

the over-broad interpretation of the

exclusion and HCFA’s interpretation of

the other medically necessary exceptions

to it.

In reviewing an agency’s interpretation

of a statute, we first determine whether

that statute is ambiguous. See Chevron,

467 U.S. at 842; United Transp. Union-

Ill. Legislative Bd. v. Surface Transp.

Bd., 183 F.3d 606, 613 (7th Cir. 1999).

The Secretary appears to concede that the

statute is ambiguous on this point: he

begins by arguing for the reasonableness

of his articulated exceptions and the

exclusion of Wood’s procedure. As

described above, the statute delineates

the type of dental services that can be

covered under Part A, and does not

indicate any exceptions to the exclusion

from coverage under Part B./5 Because

there are exceptions, Wood reasons, the

statute must be ambiguous and the

Secretary does not appear to view the

exclusion as absolute. This is not an

entirely outlandish argument. That a

statute has several articulated

exceptions does not necessarily mean it

is ambiguous, but it does suggest the

need for a possible concession on the

part of the administrator of the statute

as to ambiguity. The Secretary argues

that the HCFA has interpreted the

Medicare Act and its legislative history

to allow for coverage of dental

procedures in a few limited

circumstances--and has not felt free to

make further exceptions to the exclusion,

even if it believes the added exceptions

would not undermine Congress’ goals. The

Secretary fails to explain why the

existing exceptions, and not others,

serve any express intent of Congress to

exclude procedures such as Wood’s. We

thus consider the statutory exclusion of

dental coverage to be ambiguous, and

consider whether the Secretary’s

interpretation of the statute in the

present case is reasonable.

IV.

Wood argues that the HCFA’s

interpretation of the statute is

unreasonable, and attempts to show that

the Secretary’s proposed list of

exceptions to the Part B exclusion is not

exhaustive. This argument is two-pronged:

first, he argues that the HCFA’s current

interpretation of the statute is

inconsistent with prior interpretations,

and second, that the rationale behind the

other exceptions applies here. Wood

claims the exclusion of procedures like

his is inconsistent with prior

interpretations because those interpreta

tions are premised on the idea that life-

saving procedures are or should be

covered by Medicare. Because dental

services received prior to a kidney

transplant are covered under an

administrative interpretation of the Act,

see National Coverage Decision sec. 50-

26, Medicare Coverage Issues Manual, Wood

believes that coverage for dental

services prior to a heart valve

replacement is a "logical extension." He

reasons that the rationale of the kidney

transplant exception would apply in his

case as well:

[T]he [dental] examination is for the

identification, prior to a complex

surgical procedure, of existing medical

problems where the increased possibility

of infection would not only reduce the

chances for successful surgery but would

also expose the patient to additional

risks in undergoing such surgery.

National Coverage Decision sec. 50-26,

Medicare Coverage Issues Manual. But, as

the Secretary notes, the kidney

transplant exception applies to inpatient

dental examinations, a significantly

worded application, considering that

inpatient hospital services in connection

with dental care are explicitly covered

by the statute under Medicare Part A.

Further, the Medicare Act itself singles

out end-stage kidney disease for special

treatment: it is the only disease that

explicitly entitles an individual to

Medicare coverage. See 42 U.S.C. sec.

1395c./6 While this alone may not be

sufficient to justify the narrowness of

the sec. 50-26 exception, it does provide

some indication that an extension of it

to include heart valve surgery is not

what Congress intended. All medically

necessary procedures are not covered

under the Act. It is simply too long a

stretch to extend this exception for an

inpatient examination in connection with

renal transplant surgery to outpatient

treatment prior to heart valve surgery on

a rationale of the comparable complexity

and seriousness of the respective

surgeries. In addition, the renal disease

exception specifically applies to an

"examination," not to treatment.

The Secretary notes that while the HCFA

has outlined limited exceptions to the

general exclusion, each exception is

consistent with the language of the

Medicare Act and congressional intent.

The only statutorily explicit coverage of

services related to dental procedures

does not actually cover the dental

services at all; it merely

reimbursesproviders of inpatient hospital

services in connection with dental

procedures. Also, the corollary to the

"same physician rule" in Medicare

Carriers Manual sec. 2136 is for the

extraction of teeth to prepare the jaw

for radiation treatment of oral tumors.

The Secretary argues that the ALJ

reasonably limited this exception to its

facts. We agree. A possibly questionable

exception promulgated by the HCFA is no

argument that the exception should be

expandedfurther.

Section 2136 contains a reference to

another section that Wood argues

indicates an intent to extend coverage to

his kind of procedure. That section, sec.

2020.3 of the Medicare Carriers Manual,

indicates that Medicare Part B pays for

"otherwise covered" services furnished by

a doctor of dental surgery or dental

medicine if those services would be

covered as physicians’ services when

performed by a doctor of medicine. The

section indicates further that "otherwise

covered services" include "treatment of

oral infections and interpretations of

diagnostic X-ray examinations in

connection with covered services." But

the section goes on to note that "the

general exclusion of payment for dental

services has not been withdrawn." The

Secretary argues that interpreting this

provision in the way Wood suggests would

open the door to coverage of any

extraction performed by a dentist to

treat an infected tooth. He suggests, as

an alternative, that this section should

be interpreted to refer to "treatment of

oral infections using antibiotics," as

suggested in an Institute of Medicine

report. Institute of Medicine, Extending

Medicare Coverage to Preventive and Other

Services 63 (2000). This counter-argument

of the Secretary is only modestly

convincing. But, in the absence of more

specific support for Wood’s claim, we

cannot extend coverage to dental

procedures simply because they are

necessary for heart valve replacement

surgery.

Wood also attempts to find support in

the HCFA’s Rural Health Clinic and

Federally Qualified Health Centers

Manual. That manual defines coverage for

services offered at such facilities,

which provide services that can be

covered under Medicare Part B. See 42

U.S.C. sec. 1395k(a)(2)(D). The manual,

as Wood notes, has a provision nearly

identical to sec. 2136 of the Medicare

Carriers Manual, with a significant

exception:

A dental examination for patients

requiring certain complex surgical

procedures may be covered. To date, the

only identified procedures for which

dental examinations are covered are

kidney transplants and heart valve

replacements.

Rural Health Clinic and Federally

Qualified Health Centers manual sec. 442

(emphasis added). First, this provision

is not applicable to Wood, as he was not

treated at either a rural health clinic

or a federally qualified health center.

Second, this reference to heart valve

replacements indicates their specific

inclusion within the general exception to

the exclusion for examinations in

connection with surgical procedures.

While this reference lends some weight to

Wood’s argument, it appears in an

isolated corner of the administrative

provisions and is not strong enough to

prevail over the authority to the

contrary. And, again, the Manual

specifically covers an "examination," not

"treatment."

Wood also notes that, had the services

been provided after December 1, 1996 and

in Wisconsin, he would have been covered

under the Wisconsin Physicians Service’s

Local Medical Review Policy. He did not

rely on this policy in his arguments

before the ALJ or the Medicare Appeals

Council, and he has therefore waived this

argument. See Johnson v. Apfel, 189 F.3d

561, 562 (7th Cir. 1999). Even if the

argument had not been waived, this policy

would be of no use to Wood. It does

indeed state that Medicare covers dental

extractions due to infections prior to

heart valve replacement surgeries. See

Wisconsin Physicians Serv. Local Med.

Review Policy, DENT-002./7

Unfortunately, even on the assumption

that this plan was approved by the HCFA,

the WPS policy is not controlling

authority. The policy was adopted more

than two years after the dental services

in this case were provided--and they were

performed in Minnesota, not Wisconsin. In

addition, as the Secretary notes, local

medical review policies may not conflict

with national policy, and allowing Part B

coverage of dental extractions in

connection with procedures other than

radiation treatment conflicts with the

Medicare Act. Wood argues that the local

policy means that the HCFA approves of

coverage of procedures like his, but he

has presented no evidence that the HCFA

has approved the policy. Indeed, a report

by the Institute of Medicine--

commissioned by Congress to report on

certain aspects of Medicare coverage--

cites the WPS policy as an example of a

local policy that conflicts with national

coverage policy. Institute of Medicine,

Extending Medicare Coverage to Preventive

and Other Services 64-65 (2000).

Wood next contends that the rationale

behind the exceptions to the dental

exclusion for certain medically necessary

services should extend to the services

performed in this case. Because all the

exceptions appear to be aimed at dental

services that are medically necessary

under the circumstances, Wood reasons,

there is an implied intent to extend

coverage to all medically necessary

dental services. The common thread among

the narrow exceptions, Wood argues, is

the purpose to avoid creating "an

impediment to accessing covered

services." All the exceptions, he notes,

involve "dental services [that] are

medically necessary components of the

treatment of underlying medical

conditions." But the "common thread"

seems actually to be that the exceptions

involve dental services that are

requisite to performing a procedure

involving the mouth or jaw. The only

exception to this logic is the coverage

of an inpatient dental examination prior

to kidney transplant surgery./8 But,

the Secretary argues, this latter

exception is only the Secretary’s

reasonable interpretation of the Part A

coverage for inpatient hospital services

in connection with certain dental

procedures. Medicare Part A will cover

inpatient hospital services in connection

with dental services if the claimant has

an underlying medical condition that

requires hospitalization, or if the

severity of the dental service itself

requires hospitalization. See 42 U.S.C.

sec. 1395y(a)(12). The Secretary also

notes that the "underlying medical

condition" exception is applicable only

to claims for inpatient services--not

claims such as this one, brought under

Part B for outpatient dental work. See

id. We agree.

Finally, Wood argues that a decision of

a social security ALJ supports his

view./9 In that case, the claimant

needed to have a defibrillator implanted,

and was required to have his diseased

teeth removed prior to the surgery. The

ALJ held that the extractions were

covered because "the claimant’s dental

work would fall under an exception to the

dental services exclusion in the

regulations because the dental work was

required secondary to a severe heart

condition." App. at 49-54. Because of the

scanty record, the details of the case

are a mystery, but it appears that the

claimant had received inpatient dental

surgery, which would distinguish the

circumstances from those before us and

would justify a recovery under Part A. If

the ALJ awarded benefits under Part B, he

did so erroneously. Even if we knew

enough about the case to receive guidance

from it, the decision would not authorize

an exception adverse to HCFA policy. See

Friedrich v. Secretary of Health & Human

Serv., 894 F.2d 829, 835 (6th Cir. 1990)

(single decision of the Medicare Appeals

Council was "not significant" enough to

support the plaintiff’s argument that the

Secretary had not followed a consistent

policy for denying coverage); Homemakers

N. Shore, Inc. v. Bowen, 832 F.2d 408,

413 (7th Cir. 1987) ("’The Secretary’s

position’ is the position of the

Department as an entity, and the fact

that people in the chain of command have

expressed divergent views does not

diminish the effect of the agency’s

resolution of those disputes.")

(citations omitted).

The bottom line is that the statute is

clear, with clear exceptions, and an

argument based only on the rationale

supporting the exceptions, absent some

constitutional argument, cannot prevail.

As the Secretary repeatedly notes, not

all medically necessary services are

covered by Medicare, and the Medicare Act

specifically excludes dental coverage,

with a few narrowly defined exceptions.

Whether the case before us looks like one

of those exceptions or not (and the

Secretary argues persuasively that it

does not), we are not armed with power to

fashion a new exception:

We have held that "the enumeration of

specific exclusions from the operation of

a statute is an indication that the

statute should apply to all cases not

specifically excluded." . . . Hence we

are bound by the particular rules enacted

by Congress and are not free to carve out

our own exceptions merely because we

believe they would not undermine

Congress’ goals.

Central States Southeast & Southwest

Areas Pension Fund v. Bellmont Trucking

Co., 788 F.2d 428, 433 (7th Cir. 1986)

(quoting In re Cash Currency Exchange,

762 F.2d 542, 552 (7th Cir. 1985), cert.

denied, 474 U.S. 904 (1985)). When

Congress has chosen specific rules aimed

at a particular goal, "[a]ny rule of this

character will overshoot in some respects

and fall short in others . . . . Yet a

court may not convert a rule into a

general standard without reversing the

choice Congress made." United States v.

Medico Indus., Inc., 784 F.2d 840, 844

(7th Cir. 1986). The Secretary’s

interpretation is reasonable, and Wood

has failed to demonstrate that the denial

of coverage for his procedure was based

on an erroneous reading of the statute or

a misapplication of HCFA regulations.

Wood’s next effort is an argument that

the legislative history of the statute

supports his proposed interpretation. To

the contrary, the history supports the

Secretary’s view. Wood relies heavily on

a Senate report in which the Senate

Finance Committee discusses the exclusion

of coverage for routine dental services.

S. Rep. No. 89-404 (1965). But the

strongest support for Wood’s argument can

arguably support the Secretary’s

interpretation as well: "The committee

bill provides a specific exclusion of

routine dental care to make clear that

the services of dental surgeons covered

under the bill are restricted to complex

surgical procedures." Id. While Wood’s

procedure probably does not qualify as

"routine dental care," it does not

qualify as a "complex surgical procedure"

either. Later in the report, the

committee notes that "routine dental

treatment--filling, removal or

replacement of teeth or treatment of

structures directly supporting teeth--

would not be covered." Id. This evidence

of congressional intent arguably supports

the Secretary’s view, and certainly is

not authority for us to fashion an

additional exception out of thin air.

V.

Wood finally argues that the Secretary’s

decision was not based on substantial

evidence. We may indeed set aside the

Secretary’s decision on a matter of

Medicare payment if it is not based on

substantial evidence. See Stevenson v.

Chater, 105 F.3d 1151, 1153 (7th Cir.

1997). Wood’s argument centers on the

"overwhelming evidence" that the dental

services he received were a medically

necessary precursor to a heart valve

replacement surgery. That these services

were medically necessary does not appear

to be disputed. The dispute in this case

is whether the Secretary properly denied

coverage for these services, despite the

fact that they were medically necessary.

Thus, this argument is misplaced.

VI.

Wood should lobby Congress or the

Secretary; the judicial branch can be of

no use to him. For the foregoing reasons,

we AFFIRM.

/* Pursuant to Fed. R. App. P. 43(c), Tommy Thompson

is substituted as a party respondent for Donna E.

Shalala.

/1 Under Part B of the statute, "carriers" are

private contractors that administer payments of

funds to providers on behalf of eligible Medicare

beneficiaries for services rendered. See 42

U.S.C. sec.sec. 1395h, 1395u(a).

/2 Wood argues that, under our decision in Groves v.

Apfel, the ALJ findings must be reviewed de novo.

See 148 F.3d 809, 811 (7th Cir. 1998). He misun-

derstands that case; we held in Groves that our

review of a district court’s decision reversing

an ALJ decision--not our review of the ALJ deci-

sion itself--is de novo. See id.

/3 The Secretary has the authority to issue inter-

pretive rules and regulations under the statute.

See 42 U.S.C. sec. 1395ff(a). This takes the form

of regulations, see 42 C.F.R. pt. 411 et seq.,

and manuals. The manual that provides guidance as

to Part B coverage is the Medicare Carriers

Manual.

/4 The second exception is found in the Medicare

Coverage Issues Manual, under which the HCFA

issues national coverage decisions and policy

statements on Medicare coverage for specificmedi-

cal services, procedures or devices. See 42

U.S.C. sec. 1395hh. National coverage decisions

define coverage of specific procedures and are

not general coverage policies.

/5 Medicare Part A will cover inpatient hospital

services in connection with dental services if

the individual has an underlying medical condi-

tion that requires hospitalization, or if the

severity of the dental service itself requires

hospitalization. See 42 U.S.C. sec. 1395y(a)(12).

/6 Section 1395c provides that the Medicare program

provides coverage to (1) individuals who are age

65 or over and are eligible for social security

retirement benefits; (2) individuals who are

disabled and entitled to social security disabil-

ity benefits; and "(3) certain individuals who

did not meet the conditions specified in either

clause (1) or (2) but who are medically deter-

mined to have end stage renal disease." (Emphasis

added.)

/7 A copy of this policy can be found in the Appell-

ant’s appendix to his brief, at pages 38-43.

/8 While the exception notes that such a procedure

would be covered under Part A if performed by a

dentist on hospital staff, or Part B if performed

by a physician, it is always applicable only to

inpatient examinations.

/9 We cannot locate this decision. Both parties cite

to the appellant’s appendix as the only source

for this decision. App. at 49-54. The party

names, docket number and other pertinent informa-

tion have been redacted from this document.

Because we conclude that the decision is not

dispositive and we give it slight weight in our

decision today, we will overlook this obvious

problem.