Latest Update on CA Reconstructive Surgery (no medical necessity) law suit

"Quick" recap of litigation in California regarding mandated coverage of reconstructive surgery with NO medical necessity: I submitted for reconstructive surgery, was approved for one of the four recommended surgeries, and denied the others for lack of medical necessity.  I appealed the denials to Health Net.  During the appeals process, I discovered that there is a 1999 statute MANDATING coverage of reconstructive surgery with NO medical necessity, when: * There are abnormal structures of the body * Caused by a disease * For which reconstructive surgery and provide EITHER an improvement in function OR an improvement in appearance, to the extent possible * Where the improvement in appearance is more than minimal. I asked two plastic surgeons to sign letters I wrote tracking the statute and submitted my appeals to the CA Dept. of Managed Health Care as a grievance (to get the DMHC attorneys to interpret the statute) rather than as a request for Independent Medical Review (because the IMR reviewers are doctors, who always upheld the denials, based on the impermissible basis of lack of medical necessity). The DMHC agreed with my interpretation of the statute and ordered Health Net to authorize ALL of my surgeries.  And Health Net refused.  That case is now pending at the DMHC Division of Enforcement. I then contacted a class action attorney, who filed a class action law suit against HN on behalf of me and everyone who has been denied coverage of reconstructive surgery since 1999. I just received the first response by HN to the filing of the class action suit.  They are trying to get the case dismissed, saying that the DMHC has jurisdiction.  (The class action lawyer says he doesn't think they will win.)  But one interesting thing was disclosed by Health Net in this filing -- they said that the DMHC (presumably as part of their enforcement action) has instituted a "Non-Routine Medical Survey" of Health Net using (which I assume is BRAND NEW) "the official 2008 assessment protocol entitled 'Technical Assistance Guide for the Focused Review of Reconstructive Surgery Compliance'".  Folks, this appears to be a DIRECT result of my case! So what is a TAG?  It is a protocol by which a medical managed health care consultant hired by the DMHC is giving HN a regulatory colonoscopy.  From the response: "The TAG contains the following protocols for conducting the survey:       '[R]eview a random sample of 50 grievance/appeal files related to reconstructive and/or cosmetic surgery from the past 12-24 months ... Review grievance and appeal policies and procedures related to denials of cosmetic or reconstructive surgery ... Look for a pattern of reconstructive and/or cosmetic surgery appeals from ... enrollees to determine the categories of appeals and complaints experienced by the Plan ... [I]s there a cluster of appeals where a procedure is denies as cosmetic and there is a dispute about whether the patient started with a normal or abnormal condition?  Or whether the expected outcome in improvement in appearance is significant or insignificant." "MHU [the consultant] selected 170 separate 'requests by Health Net enrollees' covering the past 24 months, from a larger group of approvals, denials and grievances." Particularly interesting is this: "With respect to the impact of the concept of 'medical necessity' on the determination of covered 'reconstructive surgery' and excluded 'cosmetic surgery,' the TAG states:        If a proposed surgery meets the definition of reconstructive surgery, it can not then be denied if it is 'not medically necessary.'  A plan may not cite its medical necessity policy as support for the functional requirement in its denial letters to enrollees.  [NB: that's EXACTLY what HN did to me.]  This policy would not ve consistent with the plain language of Section 1367.63 [the statute that mandates coverage of reconstructive surgery] which requires coverage for some surgeries that are performed solely to create a normal appearance, to the extent possible.  The statute can be thought of as either broadening the definition of medical necessity to include some surgeries that are not needed to improve function or to provide and exception to the common coverage exclusion for such surgeries.  In either case, a policy that requires the surgery to be inted to improve function is not in compliance with the statute.  Medical necessity is only allowed to bve a consideration insofar as it applies to the requirements of Section 1367.63.  For example, if the procedure is found not to be medically necessary because it does not improve fucntion or help create a normal appearance, such reference to medical necessity is not objectionable." This survey started with an onsite review at Health Net's offices on March 28, 2008.  It was completed April 9th.  The results of the survey (to which Health Net can provide comments), is due to be publicly reported within 180 days, but must be given to HN for those comments 90 days before release to the public. Folks, IMNSHO, Health Net is going to lose this case.  The door is going to b WIDE OPEN for all Californians who have excess skin caused by massive weight loss to get reconstructive surgery COVERED BY INSURANCE.  If you are in the process of getting reconstructive surgery, get your surgeon to write a letter stating that you have abnormal structures of the body, caused by a disease, for which the recommended procedures will improve appearance to the extent possible, and that the improvement in appearance will be more than minimal.  Then appeal to the DMHC -- it is likely that they will ORDER your insurance company to cover your surgeries! And if you previously were denied, contact Rob Gianelli, the class action attorney: rob.gianelli AT gmlawyers DOT com.  They are looking to file suits against ANY CA insurance companies that are refusing to comply with the statute.

I love this!  You are my hero!

Great work, Diana!

And your adult son has vacated my apartment, right?! Way to go!

Yup, he's out!  Come on down! (Or up?)

Way to fight the good fight, Diana! Thanks for keeping us all informed. Nicolle

Diana, Will you PLEEZZZZEEE move to Illinois?? LOL Way to go girl.

Can you come kick some ass in Alabama, now, too?!  hehe!

 

Question, if I established residency in California, the DHMC could order Medicare to cover my plastics?

I'm not POSITIVE, but I think CA DMHC does NOT regulate Medicare, which is Federal.  But ask and find out!  Call the DMHC hotline:1-888-HMO-2219 1367.63.  (a) Every health care service plan contract, except a specialized health care service plan contract, that is issued, amended, renewed, or delivered in this state on or after July 1, 1999, shall cover reconstructive surgery, as defined in subdivision (c), that is necessary to achieve the purposes specified in paragraphs (1) or (2) of subdivision (c).  Nothing in this section shall be construed to require a plan to provide coverage for cosmetic surgery, as defined in subdivision (d).    (b) No individual, other than a licensed physician competent to evaluate the specific clinical issues involved in the care requested, may deny initial requests for authorization of coverage for treatment pursuant to this section.  For a treatment authorization request submitted by a podiatrist or an oral and maxillofacial surgeon, the request may be reviewed by a similarly licensed individual, competent to evaluate the specific clinical issues involved in the care requested.    (c) "Reconstructive surgery" means surgery performed to correct or repair abnormal structures of the body caused by congenital defects, developmental abnormalities, trauma, infection, tumors, or disease to do either of the following:    (1) To improve function.    (2) To create a normal appearance, to the extent possible.    (d) "Cosmetic surgery" means surgery that is performed to alter or reshape normal structures of the body in order to improve appearance.    (e) In interpreting the definition of reconstructive surgery, a health care service plan may utilize prior authorization and utilization review that may include, but need not be limited to, any of the following:    (1) Denial of the proposed surgery if there is another more appropriate surgical procedure that will be approved for the enrollee.    (2) Denial of the proposed surgery or surgeries if the procedure or procedures, in accordance with the standard of care as practiced by physicians specializing in reconstructive surgery, offer only a minimal improvement in the appearance of the enrollee.    (3) Denial of payment for procedures performed without prior authorization.    (4) For services provided under the Medi-Cal program (Chapter 7 (commencing with Section 14000) of Part 3 of Division 9 of the Welfare and Institutions Code), denial of the proposed surgery if the procedure offers only a minimal improvement in the appearance of the enrollee, as may be defined in any regulations that may be promulgated by the State Department of Health Services.