STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ORANGE 08 INS 2669

________________________________________________________________________

MARJORIE E. THOMAS, )

Petitioner, )

)

vs. )

) DECISION

NORTH CAROLINA TEACHERS’ )

AND STATE EMPLOYEES’ )

COMPREHENSIVE MAJOR )

MEDICAL PLAN, )

)

Respondent. )

________________________________________________________________________

On March 30, 2009, a contested case hearing in the above entitled matter was conducted before Beecher R. Gray, administrative law judge, in Raleigh North Carolina. Respondent’s motion to amend the caption by removing BCBS of N.C. and substituting the North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan (Plan) as Respondent was allowed. At the conclusion of the hearing, the undersigned ruled that Petitioner did not meet her burden of proof and upheld Respondent’s denial of Petitioner’s request for payment for bilateral breast implant removal and replacement. Respondent filed a proposed Decision with the Office of Administrative Hearings on April 07, 2009. The official record in this case now is closed.

APPEARANCES

For Petitioner: Marjorie Thomas, pro se

7414 Union Grove Church Rd.

Hillsborough, NC 27278 (919) 451-4162

For Respondent: Lotta Crabtree, Assistant Attorney General

North Carolina Department of Justice

PO BOX 629

Raleigh, NC 27602

ISSUES

Whether Respondent acted erroneously or failed to act as required by law or rule substantially prejudicing Petitioner’s rights when it denied Petitioner’s request for coverage of bilateral breast implant removal.

APPLICABLE LAW

The North Carolina Administrative Procedures Act, N.C. Gen. Stat. § 150B-1, et seq., Office of Administrative Hearing Rules 26 NCAC 3.01000, et seq., and N.C. Gen. Stat. § 135-45.8 (14), (21) and (22).

RECORD OF THE CASE

Witnesses

For Petitioner: Marjorie Thomas

For Respondent: Marjorie Thomas, Dr. Andrew Bonin

Exhibits Admitted :

For Petitioner: Exhibit 1

For Respondent: Exhibits 1 – 6

FINDINGS OF FACT

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. Petitioner Marjorie Thomas is a member of the Plan’s Standard PPO arrangement.

3. In 1981 Petitioner had breast implant surgery for cosmetic reasons.

4. Cosmetic procedures are not covered under the State’s PPO Plan.

5. In July 2008, Petitioner was evaluated by Dr. Lynn Damitz for bilateral implant exchange because of misshapen breasts and a notable decrease in the size of the breasts.

6. Pre-authorization sought from the Plan by Petitioner for coverage of the implant exchange was denied.

7. Elective surgery was scheduled for July 17, 2008.

8. At the time of surgery, it was discovered that the silicone implants had ruptured and the silicone material had to be removed from the surgical site.

9. Following removal of the silicone material, saline implants were inserted.

10. Claims for the surgery submitted to the Plan for payment were denied.

11. Petitioner exercised her right to appeal and the appeal was denied by the Plan on September 30, 2008.

12. The appeal was denied on a contractual basis, citing the Benefits Booklet for Your NC Smart Choice Standard Blue Options PPO Plan under the section titled What is Not Covered and specifically the following language: “…[Y]our health benefit plan does not cover services, supplies, drugs or charges that are: Side effects and complications of non-covered services, except as specifically covered by your health benefit plan or except for emergency services in the case of an emergency.”

13. Petitioner sought review of the denial by filing a contested case appeal in the Office of Administrative Hearings.

14. At the hearing held on March 30, 2008, Petitioner testified that she believed that removal of the breast implants should be covered as medically necessary because of rupture of the implants and release of silicone.

15. Respondent’s witness, Dr. Andrew Bonin, medical director for the State Health Plan’s Claims Processor, Blue Cross Blue Shield of North Carolina, testified that although medically necessary, the removal was not covered because the original surgery had been for cosmetic reasons and therefore was not a covered service under the Plan. Complications from noncovered services are not covered under the Plan except for emergencies. Petitioner’s removal and replacement surgery did not quality as an emergency.

CONCLUSIONS OF LAW

1. The parties properly are before the Office of Administrative Hearings.

2. Petitioner has the burden of proof in this case.

3. The policy language from the benefit booklet does not provide coverage for breast implant removal when the original implants were for cosmetic reasons.

4. The coverage at issue also is prohibited by N.C. Gen. Stat. § 135-45.8(21).

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the decision of Respondent to deny Petitioner’s request for coverage of breast implant removal 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, NC, 27699-6714.

NOTICE

The agency that will make the final decision in this contested case is the Board of Trustees of the North Carolina State Health Plan (hereinafter “Agency”). The Agency is required to give each party an opportunity to file exceptions to and written arguments concerning this Recommended Decision. The Agency is further required to serve a copy of the Final Agency Decision on all Parties or their attorneys of record and on the Office of Administrative Hearings.

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. The party aggrieved by the agency’s decision shall be entitled to immediate judicial review of the decision under Article 4 of this Chapter.

This 13th_ day of April, 2009.

______________________________

Beecher R. Gray

Administrative Law Judge

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download