Q & A: Coverage of Gastric Bypass Surgery

Executive Summary

This Q&A discusses the possibility of requiring Medicaid coverage of gastric bypass surgery.

Question: T.R.?s physician submitted a request for Medicaid coverage of gastric bypass surgery. T.R. is 43 years old, weighs approximately 415 pounds and has a body mass index of 44. T.R.?s doctor says he is medically eligible for gastric bypass surgery because he has a body mass index over 40 and is more than 100 pounds overweight. He also suffers from diabetes, heart problems, and depression. His doctor says that, without this surgery, T.R. is in danger of suffering a fatal heart attack. The Medicaid agency has denied the request for coverage, and an administrative hearing has been scheduled. Should Medicaid cover the surgery? 
Brief Answer: Probably. In making your case to the administrative law judge (ALJ), stress your client?s medical needs and make clear that the surgery is not for aesthetic or cosmetic reasons. Submit a memorandum to the ALJ that explains the legal support for Medicaid coverage and points out that other insurers cover obesity treatments. As you work through the issue and arguments, remember that the process you are using here can be applied broadly to a number of Medicaid service questions involving, for example, weight loss treatments, gynecomastia, mammaplasty, keloid removal, and smoking cessation. 
Discussion: The Medicaid Act requires participating states to cover some services, including inpatient hospital and physician services, see 42 U.S.C. §§ 1396a(a)(10), 1396d(a), and allows states to cover other services, such as prescription drugs,2 see id. Beyond the requirements and options for the benefits package, coverage policies may vary from state to state as long as they are consistent with the federal regulatory guidelines governing services for individual over age 21.3 These guidelines require states to establish reasonable standards for determining the extent of medical assistance to be provided. See 42 U.S.C. § 1396a(a)(17). Each service must be covered ?sufficient in amount, duration and scope to reasonably achieve its purpose,? 42 C.F.R. § 440.230(b), and states may not arbitrarily deny or reduce the amount, duration and scope of a required service solely because of the diagnosis, type of illness or condition, id. at § 440.230(c). States can place limits on services that are based on such criteria as ?medical necessity or on utilization control procedures.? Id. at § 440.230(d). Federal Medicaid law does not mention coverage of gastric bypass surgery; however, the components of the surgery?inpatient hospital and physician services?are required Medicaid services. See 42 U.S.C. §§ 1396a(a)(10), 1396d(a). 
State courts have applied these guidelines to decide whether Medicaid coverage of gastric bypass surgery is required. State law claims may also be available, so you should check your state Medicaid statute and regulations for helpful coverage rules. Usually, the cases have resulted from an appeal of a state Medicaid agency decision to deny coverage of the surgery because it is considered an aesthetic or cosmetic procedure. For example, in McCoy v. Idaho Dep?t of Health and Welfare, 127 Idaho 792, 907 P.2d 110 (1995), the court reviewed a request for gastric bypass surgery. It noted that surgery was medically necessary if ?there is a stabilization or improvement in the functioning of a body part, or if the procedure removes pain.? 907 P.2d at 113. The court then held that exclusion of all treatments for obesity was overly broad and violated the Medicaid Act. Id. at 114. The case was remanded to the agency for a new decision consistent with the court?s ruling. 
Some administrative tribunals have ordered state Medicaid programs to cover gastric bypass surgery as medically necessary for an individual claimant. See, e.g., Todhunter v. Washington Dep?t of Soc. and Health Servs., No. 7696-5-1 (Wash. Ct. App. 1980), reprinted in Medicare & Medicaid Guide (CCH) ¶ 30,583; In re Cleo M (New Hampshire Division of Welfare Fair Hearings Decision July 1, 1980). These cases order coverage of the surgery as medically necessary for the patient?looking at a person?s body mass index, weight, and other health problems. Because of the high risk of complications, gastric bypass is generally considered a last resort for obese people. Thus, these cases have noted that coverage also depends on whether the person has tried and failed at other weight loss strategies. These cases may be particularly persuasive to the ALJ, and copies can be obtained from the National Health Law Program. 

Tribunals have placed great weight on whether the person?s physician has deemed the surgery to be medically necessary. E.g., McCoy, 907 P.2d 110, 127 Idaho 792 (1995); In re George Bailey, Case No. 339-010868 (Ohio 1988); see generally Morgan v. Idaho Dep?t of Health and Welfare, 813 P.2d 345, 120 Idaho 6 (1991) (ordering Medicaid agency to pay for prescribed weight loss program). Courts quote from the legislative history of the Medicaid statute in according great deference: ?The Committee?s bill provides that the physician is to be the key figure in determining utilization of health services.? S.Rep. No. 404, 89 Cong., 1st Sess., reprinted in 1965 U.S.C.C.A.N. 1943, 1986. 

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