STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ALAMANCE 10 INS 6322

______________________________________________________________________________

DIANE W. HARDEE )

Petitioner, )

)

vs. ) DECISION

)

BLUE CROSS BLUE SHIELD )

OF NORTH CAROLINA )

Respondent. )

______________________________________________________________________________

On February 7, 2011, the undersigned conducted an administrative hearing in this case in Fayetteville, NC. At the conclusion of the hearing, the undersigned ruled in favor of the Respondent and directed Respondent to submit a proposed decision. Having received a hardcopy of Respondent’s proposed decision, the record in the case is now closed.

APPEARANCES

For the Petitioner: Diane W. Hardee

12 Albion Street

Lumberton, NC 28358

For the Respondent: Heather H. Freeman

Assistant Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, NC 27602-0629

ISSUE

Did the Respondent act erroneously when it denied the Petitioner’s claim for payment for the removal of breast implants?

RELEVANT STATUTES AND POLICIES

N.C. Gen. Stat. §135, including N.C. Gen. Stat. § 135-45.8; N.C. Gen. Stat. Chapter 150B, Article 3; Respondent’s medical policies, including BCBS Corporate Medical Policy titled “Breast Surgeries” and the State Health Plan PPO Benefit Booklet.

EXHIBITS

For Petitioner: Exhibit 1

For Respondent: Exhibits 1, 2, 3

WITNESSES

For Petitioner: Diane W. Hardee

For Respondent: Donna Williams

FINDINGS OF FACT

Based on a review of the witness testimony, exhibits and the record as a whole, it is found as a fact that:

1. Respondent is an agency of the State of North Carolina, and offers health care benefits to eligible active and retired employees and their enrolled dependants in accordance with the applicable North Carolina General Statutes, the benefit booklet for Respondent’s preferred provider organization (hereinafter “PPO”) plan, and Respondent’s health care policies.

2. At all times relevant to the issues in this contested case, Petitioner was a member of Respondent’s Standard PPO plan.

3. Blue Cross Blue Shield of North Carolina (BCBSNC) is the claims processing contractor for the State’s PPO plan.

4. During the 2010 PPO plan year, Petitioner sought prior authorization from the State Health Plan for payment of bilateral breast implant removal. Prior to her procedure, the State Health Plan notified Petitioner that the requested surgery was excluded from coverage under her PPO plan.

5. On August 11, 2010, Petitioner underwent surgery for bilateral breast implant removal.

6. Petitioner timely appealed the denial of payment for the August 11, 2010 surgery by the Plan. (Respondent’s Exhibit 3.)

7. In determining this appeal, BCBSNC reviewed Petitioner’s medical records from the August 11, 2010 surgery, 1978 medical records provided by Petitioner, and other documentation. Based on a review of Petitioner’s medical records and other documentation, Petitioner’s appeal request for authorization was denied. (Respondent’s Exhibit 3.)

8. Petitioner’s appeal was denied and notice was provided by letter dated September 24, 2010. (Respondent’s Exhibit 3.)

9. The basis for the denial, as set forth in the September 24, 1010 letter from the State Health Plan, was contractual and determined by the benefits as set forth in the benefit booklet and BCBSNC Corporate Medical Policy, entitled “Breast Surgeries.” (Respondent’s Exhibit 3.)

10. Under the section entitled “WHAT IS NOT COVERED?” on page 29 of Respondent’s benefit booklet, it states that Petitioner’s health benefit plan does not cover “services, supplies, drugs or charges” that are: “not medically necessary”; from “side effects and complications of noncovered services, except as specifically covered by your health benefit plan or except for emergency services in the case of an emergency”; or, “for cosmetic purposes.” (Respondent’s Exhibit 2.)

11. BCBSNC’s Corporate Medical Policy on “Breast Surgeries” contains a section entitled “Section V- Insertion and Removal of Breast Implants.” It states the following:

When Insertion and Removal of Breast Implants are covered

• Insertion is covered for post surgical mastectomy reconstruction.

• Removal is covered when it is medically necessary due to complications from an implantation for a covered indication (i.e. not primarily cosmetic).

When Insertion and Removal of Breast Implants are not covered

• Insertion of the implant is not covered for primarily cosmetic enhancement of the breast in the absence of mastectomy for breast cancer or other breast disease.

• Removal of the implant is not covered for asymptomatic patients desiring removal.

• Removal of the implant is not covered when the original implant surgery was primarily for cosmetic reasons or other non covered indications.

(Respondent’s Exhibit 1.)

12. Donna Williams, Appeals Team Lead for BCBSNC testified on behalf of Respondent. Mrs. Williams testified that Petitioner provided medical records which documented that she had breast implants surgically inserted in 1978. Petitioner’s 1978 medical records documented that she was admitted for surgery for elective breast augmentation. Mrs. Williams testified that based on the medical records and documentation provided by Petitioner, the reason for Petitioner’s 1978 breast implant surgery was cosmetic.

13. Mrs. Williams further testified that Petitioner’s August 11, 2010 breast implant removal surgery was not medically necessary.

14. Petitioner failed to present any evidence that her August 11, 2010 surgery was medically necessary.

15. A preponderance of the evidence and a reasonable interpretation of the PPO benefit booklet and the BCBSNC Corporate Medical Policy entitled “Breast Surgeries” shows that there is no coverage for breast implant removal when the original implant surgery was primarily for cosmetic reasons or when the breast implant removal was not medically necessary.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over this contested case and the parties thereto.

2. In N.C. Gen. Stat. Chapter 135, the General Assembly created a State Health Plan for the benefit of its state employees, retired employees and certain of their eligible dependants. Pursuant to N.C. Gen. Stat. Chapter 135, Respondent is to provide comprehensive medical coverage under a group plan and benefits are to be provided under contracts between the Plan and the claims processor.

3. Blue Cross Blue Shield of North Carolina (BCBSNC) is the claims processor for the State’s PPO Plan which Petitioner was a member.

4. Petitioner has the burden of proof in this matter by a preponderance of the evidence regarding the issues presented in this contested case. N.C. Gen. Stat. § 150B-34(a).

5. Respondent’s State Health Plan Benefit Booklet for the Standard PPO Plan sets forth the benefits available to members.

6. Petitioner did not meet her burden of proving that Respondent acted erroneously by denying Petitioner’s claim for payment for the removal of breast implants.

DECISION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that the final decision maker should AFFIRM Respondent’s denial of Petitioner’s request for payment of claims related to breast implant removal surgery.

NOTICE AND ORDER

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 the 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 26th day of April, 2011.

______________________________

The Honorable Donald W. Overby

Administrative Law Judge

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