Opinion
C.A. No. 05A-10-002(CHT).
Assigned: March 20, 2006. Argument Presented: July 28, 2006.
Decided: August 1, 2006.
On The Appellant's Appeal of the Decision of the Division of Medicaid and Medical Assistance, Delaware Department of Health and Social Services.
Mary B. Musumeci, Esquire, Disabilities Law Program, Community Legal Aid Society, Inc., Wilmington, DE, Attorney for Appellant.
A. Ann Woolfolk, Esquire, Deputy Attorney General, Department of Justice, Wilmington, DE, Attorney for Appellee.
OPINION AND ORDER
Before the Court is the appeal of Kandase Urban, by and through her mother, Elizabeth Barben, asking the Court to reverse the decision of the Department of Health and Social Services by and through the Division of Medicaid and Medical Assistance refusing the request for a reduction mammoplasty surgery (bilateral breast reduction) for Kandase.
Pursuant to authority conferred by 31 Del. C. §§ 502(5), 503(b) and 505(3), the Division of Medicaid and Medical Assistance ("DMMA"), Delaware Department of Health and Social Services ("DHSS"), operates the Delaware Medical Assistance Program ("DMAP") to provide Medicaid benefits under Title XIX of the Social Security Act. The DMMA contracted with Delaware Physician's Care, Inc. ("DPCI"), a managed care organization, to administer benefits under the DMAP. The Division of Social Services Manual ("DSSM") § 5304.3 expressly states that DPCI is governed by the same rules, regulations, and principles that would otherwise govern the DMMA.
STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
The instant odyssey began with the referral of Kandase by her pediatrician, Dr. Vijaya Yezdani, to Dr. Lawrence Chang, a plastic surgeon and Kandase's treating physician at all times relevant to this appeal. Dr. Chang diagnosed Kandase with bilateral symptomatic macromastia and noted that she suffered from upper chest, upper mid-back pain, inframammary rashes, shoulder grooving and poor back posture. Given those problems, Dr. Chang concluded that a breast reduction was the appropriate course of treatment. At the time, Kandase was seventeen years old and entering the twelfth grade. She was 5 foot 2 inches in height, weighed 198 pounds and her breasts measured by Dr. Chang as size "38DDD". By letter dated December 22, 2004, he requested authorization from DPCI to perform Kandase's reduction surgery. However, he noted as well:
My overall impression is symptomatic bilateral macromastia with associated obesity. She would benefit from a reduction mammoplasty, but her weight should ideally come down to the 160 range if possible, or show no increase in size. I feel the better option would be to refine with diet and exercising. However, the exercising may be difficult due to enlarged breasts. The mother states that they will work on the diet program, but we will submit this for preauthorization for reduction mammoplasty. . . .
Joint app. at A-29.
On January 18, 2005, DPCI denied Dr. Chang's request. The basis for the decision was stated as follows:
The patient is obese (BMI 36). Weight reduction would likely be in her best health interests as well as instrumental in reducing breast size. Therefore, bilateral breast reduction cannot be approved. The procedure must "be directly related to the diagnosed condition or the effects of the condition of the beneficiary . . . and be provided to the beneficiary only."
Kandase then asked for, and received, an internal appeal of that decision. On February 15, 2005, DPCI reaffirmed the denial of the benefits sought. Up to that point in time, Kandase had not been afforded the opportunity to appear personally or present testimony on her behalf.
DPCI stated that "weight reduction would likely be in the member's best health interests as well as instrumental in reducing breast size." The surgery, the notice indicated, failed to meet the state medical necessity definition in that it was not the most appropriate care or service that [could] be provided. . . ." In addition, the notice seems to suggest that the denial was based as well on the requirement that the procedure be recognized as "either the treatment of choice or common medical practice by the practitioner's peer group or the functional equivalent of other care and services that are common provided." Joint app. at A-18.
On May 13, 2005, Kandase again saw Dr. Chang upon referral from Dr. Yezdani. At that second visit, Dr. Chang observed that although Kandase had lost fifteen pounds, the size of her breasts remained unchanged and she continued to suffer from the same problems he noted during his first contact with her. He concluded that because her weight had improved, it was reasonable at that point in time to proceed with the proposed surgery. By letter bearing that same date, Dr. Chang repeated his request that the surgery be approved.
Shortly before her last appointment with Dr. Chang, Kandase filed a request with DMMA for a "Fair Hearing," seeking a reversal of the aforementioned decision by DPCI. That proceeding was held on August 15, 2005, before a hearing officer appointed for that purpose. On September 2, 2005, the hearing officer on behalf of DMMA, affirmed the refusal by DPCI to authorize the surgery requested. Testifying at the "Fair hearing" were Dr. Phillip Waldor, Dr. Benjamin Cooper and Ms. Barben.
The record reflects that request was filed on April 11, 2005.
DSSM § 5304 provides jurisdiction for a hearing of an adverse decision of a Managed Care Organization. A hearing officer presided over the proceeding and rendered the decision in question.
Dr. Waldor, DPCI Medical Director, appeared on behalf of the State. He testified that he denied the application for surgery because Kandase was obese, having a Body Mass Index ("BMI") over 30. Dr. Waldor went on to opine that significant weight loss was medically necessary and in Kandase's best interest. In doing so, Dr. Waldor referenced Dr. Chang's initial request which also recommended that Kandase reduce her weight to 160 pounds. At that weight, her BMI would be less than 30 and she would be eligible for the surgery. He did however, approve several visits to the A.I. DuPont Nutrition Clinic to provide guidance for Kandase on proper diet and weight loss regimes.
Though he attempted on multiple occasions to confirm Kandase's weight prior to the hearing, Dr. Waldor admitted that he never examined her.
Dr. Cooper, like Dr. Chang, a plastic surgeon, testified on behalf of Kandase. Based upon an examination of Kandase he conducted on May 26, 2005, along with a review of her medical history, Dr. Cooper concluded that she had dense breasts which he estimated were size 42DDD and that she suffered from back pain as well as rashes because of their size. Dr. Cooper determined that weight loss would not have an impact under the circumstances given the density of her breasts and the fact that she reported losing eleven pounds without any noticeable reduction in their size. He noted that weight loss was generally recommended to obese patients to avoid possible surgical complications.
Dr. Chang was not available to testify at the hearing for reasons which are not apparent to the Court.
Dr. Cooper did not measure Kandase's breasts and suggested that could account for the difference in his finding as compared to Dr. Chang's report of 38DDD.
Dr. Cooper opined that the requested surgery was medically necessary to satisfactorily address Kandase's physical complaints. The procedure in question was chosen because it conformed with the applicable standard of care. According to Dr. Cooper, reduction surgery is the treatment of choice amongst his peers to reduce problems associated with macromastia, citing an American Society of Plastic Surgery survey in support of that conclusion.
Ms. Barben testified that Kandase was referred to Dr. Chang with severe back pain, shoulder grooving and rashes under her breasts. Ms. Barben also discussed Kandase's difficulty performing simple tasks and the ridicule she experienced from others due to the size of her breasts. According to her, Kandase's breast size increased by one and one-half inches notwithstanding the eleven pound weight loss referenced above.
The sole issue considered by DMMA with respect to coverage for surgery in question was whether, under the circumstances, it was a medically necessary procedure as set forth by the DMAP. That determination required that each of nine criteria be established and that in this case, there were two that were controverted. Again, they were whether the surgery was the most appropriate care or service to be provided as well as if it was recognized as either the treatment of choice or common medical practice within the specialty in question. The first inquiry was answered in the negative which was fatal to the request. The hearing officer therefore concluded that the surgery was not the least costly, appropriate, available health service alternative.
It appears that the hearing officer found that the surgery was in fact recognized as the treatment of choice for the condition in question.
In this regard, the hearing officer relied upon the fact that both plastic surgeons who examined Kandase and recommended surgery, did so while at the same time suggesting that weight loss was appropriate. The applicable regulations also militated against surgery where the patient was obese. The fact that Dr. Waldor would approve the surgery once Kandase achieved 160 pounds or a BMI below 30 was a critical factor as well. Although the request to approve the surgery had been denied, it remained an option which could be exercised in the future. In any event, DPCI's denial was deemed reasonable because the course of treatment that was recommended, weight loss, was deemed less expensive and appropriate under the circumstances as they existed at that point in time.
Finally, the hearing officer concluded that the notice afforded Kandase was not defective since adequate reasons for the denial, including specific responses to the complaints raised on behalf of Kandase, were provided. To the extent that DPCI failed to consider at least two of the issues so raised, the hearing officer found that it was legally correct. Specifically, DPCI could only consider matters raised by the applicant in his or her request for the Fair Hearing.
Delaware Social Services Manual ("DSSM") § 5304 provides that only issues raised in the denial notice, the fair hearing summary, or the request for a fair hearing may be reviewed at the hearing.
DISCUSSION
Standard of ReviewSection 5405(5) of the DSSM provides that the decision of the hearing officer is the final decision of the DHSS. That decision is subject to judicial review pursuant to 31 Del. C. § 520. The appropriate standard of review is whether the decision of the Hearing Officer is supported by substantial evidence and free of legal error. The Superior Court reviews de novo the application of the law by DHSS in determining the qualifications of the applicant for assistance through the Medicaid program.
Bowden v. Department of Health and Social Services, Division of Social Services, 1993 Del. Super. LEXIS 304, at *5.
Id.
If the procedure employed to determine eligibility is not fatally flawed, the Court must proceed to the question of sufficiency of the evidence to support the decision. Thus, the analysis begins with a review of the procedure applied in making the determination of eligibility before any substantive evidence is analyzed. The Court shall decide all relevant questions and matters involved, and will sustain any factual findings that are supported by substantial evidence in the record as a whole. This Court may not remand on appeal a case brought to it under § 520 for further findings as the statute does not grant the Court that power.
Id. See also Zdziech v. Delaware Department of Health and Social Services, 2000 Del. Super. LEXIS 250, at *5.
Id.
Dean v. Delaware Dep't of Health and Social Services, 2000 Del. Super. Lexis 490, at 7-8.
Collins v. Eichler, 1991 Del. Super. LEXIS 105, at *11.
Contentions of the Parties
Kandase argues that the decision contains several errors of law. More specifically, she argues generally that the hearing officer refused to consider federal medicaid law regarding medical necessity, that Dr. Chang's letter regarding her weight loss was ignored, that she was improperly burdened with proving medical necessity and that her right were otherwise violated when due process arguments raised at the hearing were not addressed. Lastly, she further argues that the decision to rely on weight loss and refuse to approve surgery was not supported by substantial evidence in the record. The State, as might be expected, contends that the decision is free from legal error and was supported by substantial evidence.
Procedural Challenges
Given the record before the Court, it is apparent that neither the decision or the proceedings leading up to it, violated the rights afforded Kandace under the Delaware State and the United States Constitutions.
First, Delaware courts recognize that Medicaid benefits are property rights and as such, the recipient may not be deprived of these benefits without due process of law. The rights afforded in this context include fair notice of the scope of proceedings and adherence of the agency to the stated scope of the proceedings. As stated above, only the issues raised in the denial notice, the fair hearing summary or the recipient's request for a fair hearing may be presented for the hearing officer's review. Thus, the scope of the proceedings was in substantial part defined by Kandase. And since she did not raise the matters which she complains of nor cite defects in the process afforded her in reaching the decision as rendered, those arguments were rightfully disregarded. The same holding applies to the suggestion that Goldberg v. Kelley permits Kandace to "advance any argument without interference."
Collins, 1991 Del. Super. LEXIS 105, at *9. See also Brooks v. Meconi, 2004 Del. Super. LEXIS 363, *9.
Id. See also Bell-Atlantic — Delaware, Inc., v. Public Serv. Comm'n of Del., 705 A.2d 601, 605 (Del. Super Ct. 1997).
397 U.S. 254 (1970).
Second, due process was not otherwise offended by placing the burden on Kandase to prove that her surgery was medically necessary. It was Kandase who applied for the benefits in question and had to establish her eligibility for the same. Based upon the evidence presented, the hearing officer determined that at the very least the surgery was not a medical necessity since it was not the least costly or appropriate course of treatment among the available alternatives. It was appropriate for the officer to provide Kandase the opportunity to rebut the DPCI finding. Unfortunately for her, the hearing officer determined that she failed to do so.
Sufficiency of the Record
All of the specialists relied upon in this matter agreed on one significant point, Kandase would benefit from weight loss prior to surgery. Dr. Chang, in his initial request for surgery authorization, suggested that Kandase work toward getting down to 160 pounds. He went on to state, "I feel the better option would be to refine with diet and exercising." Further, Dr. Cooper testified that weight loss was recommended to every obese patient who sought a breast reduction. The record also reflects that once that end was accomplished, the surgery would be a reasonable means to address Kandase's problems.
Kandase contends that legal error was committed where deference was not given to the opinions offered by her treating physicians and Dr. Chang's second letter was not even mentioned in the hearing officer's opinion. Though the arguments sound in legal error, they will be considered here because they go the weight afforded the evidence which Kandase claims was insufficient to support the decision to deny coverage for the surgery proposed.
Joint app. at A-29.
Dr. Waldor, on behalf of DCPI, reviewed the findings of Drs. Chang and Cooper in addition to consulting industry standards regarding obesity. He concluded that Kandase's BMI should be at 30 or below, at the time it was at 36. She was therefore obese according to national criteria and would benefit from the weight reduction. He confirmed that if Kandase achieved the target BMI, she would qualify for the reduction.
The only viable conclusion, given the instant record, is that the findings by Dr. Waldor, Dr. Cooper and Dr. Chang were actually consistent and that the hearing officer's decision was premised as a result upon the opinions of all three doctors. Stated differently, contrary to what Kandase argues, deference was given to the medical testimony she presented, and authorization for the surgery was, in the worst case scenario, only postponed. The Court must, as a result, conclude the initial decision to uphold the denial of surgical benefits was supported by substantial evidence in the record.
Lastly, Kandase complains that the decision was flawed and that the surgery should have been approved as of May 13, 2005, when Dr. Chang authored his second request for approved of that procedure. She is incorrect. The decision being challenged was that rendered on January 18, 2005, and ratified on February 15, 2005. Dr. Chang's second letter was issued five months after the request for the authorization, and as such, had no bearing on the circumstances surrounding the denial of the preauthorization request. The argument that it would have been in the interests of justice to consider that document, as a result, is simply not persuasive. Further, the fact that the hearing officer found surgery to be the treatment of choice did not conflict with the decision to delay surgery given that both specialists that examined Kandase recommended that she lose weight before having the surgery.
CONCLUSION
In light of the foregoing discussion, the decision of Delaware Health and Social Services, must be, and hereby is, affirmed.