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1 XXXX, APPELLANT v. DEPARTMENT OF HEALTH AND MENTAL HYGIENE BEFORE RICHARD F. ROTHENBURG, AN ADMINISTRATIVE LAW JUDGE OF THE MARYLAND OFFICE OF ADMINISTRATIVE HEARINGS OAH No.: DHMH-MCP DECISION STATEMENT OF THE CASE ISSUE SUMMARY OF THE EVIDENCE FINDINGS OF FACT DISCUSSION CONCLUSIONS OF LAW ORDER STATEMENT OF THE CASE The Department of Health and Mental Hygiene (Department) determined that the reduction mammoplasty (breast reduction) procedure requested by the Appellant was not medically necessary. The Appellant opposed the determination by filing a request for a hearing on July 24, I held a hearing on September 13, 2007 at the Office of Administrative Hearings, Gilroy Road, Hunt Valley, Maryland Code of Maryland Regulations (COMAR) The Appellant represented herself. Mary Welcome, Assistant Attorney General, represented the Department. Procedure in this case is governed by the contested case provisions of the Administrative Procedure Act, the Procedures for Fair Hearing Appeals under the Maryland State Medical Assistance Program, and the Rules of Procedure of the Office of Administrative Hearings. Md.

2 Code Ann., State Gov t through (2004 & Supp. 2006); COMAR ; and COMAR ISSUE Did the Department of Health and Mental Hygiene properly determine that the Appellant was not eligible for a reduction mammoplasty procedure because it was not medically necessary? SUMMARY OF THE EVIDENCE Exhibits The Department submitted the following documents, which were admitted into evidence: DHMH # 1 - Department record of transactions regarding the Appellant s case (pages 1-9) DHMH # 2 - Department record of transactions regarding the Appellant s case (page 10) DHMH # 3 - Letter to Appellant from Amerigroup, dated July 27, 2007 DHMH # 4 - Memorandum to Nadine Smith, R.N. from Dr. Michael Peskin, dated June 26, 2007 DHMH # 5 - Letter to the Appellant from the Department, dated July 13, 2007 DHMH # 6 - Photographs of the Appellant s breasts DHMH # 7 - Radiology report of an MRI 1 of the Appellant s spine, dated June 26, 2007 DHMH # 8 - Letter to Dr. Dennis from Dr. Ludwig, dated July 5, 2007 DHMH # 9 - Report of medical evaluation of the Appellant on June 26, 2007 The Appellant did not submit any documents. 1 Magnetic Resonance Imaging. 2

3 Testimony The following individuals testified on behalf of the Department: Ellen Mulcahy-Lehnert, Department Supervisor, Complaint Resolution Unit Dr. Virginia Moore, Associate Medical Director, Amerigroup The Appellant testified on her own behalf FINDINGS OF FACT I find the following facts by a preponderance of the evidence: 1. The Appellant is a 22-year old female Medical Assistance recipient who receives her medical care from Amerigroup, a managed care organization (MCO). 2. The Appellant has large breasts and wears a D cup bra, which is not considered a developmental or congenital anomaly. 3. The Appellant reported that she suffers from back pain and wants to alleviate it by having a breast reduction. 4. The Appellant had been evaluated by a plastic surgeon at Johns Hopkins Hospital who reported to the MCO that the Appellant was a candidate for a mammoplasty because of pain and that she was postpartum. 5. On July 2, 2006, the MCO denied the Appellant s request for a breast reduction. The MCO advised the Appellant that the procedure she requested was more mastopexy 2 than a reduction mammoplasty and noted that the Appellant was postpartum 3. 2 Breast surgery for cosmetic reasons, according to the Department s witness, Dr. Moore. 3 According to Dr. Moore, hormonal changes in a mother before birth cause the breasts to enlarge. Postpartum, the enlargement subsides after breast feeding ceases. As Dr. Moore noted, because the Appellant was postpartum, any recommendation for mammoplasty was suspect. 3

4 6. At the time the MCO denied the Appellant s request for a mammoplasty, the MCO noted that there was no evidence of strap grooving or intertrigo On August 2, 2006, the Appellant appealed the denial by the MCO to the Department. 8. The Department evaluated the Appellant s request and informed her on July 13, 2007 that the MCO had correctly denied her request because it was not medically necessary. The Appellant requested a fair hearing. 9. The Appellant had breast reduction surgery in 2002 when she was 17-years old. 10. On March 22, 2007, the Appellant was evaluated at the plastic surgery clinic at the University of Maryland Medical School. The evaluating plastic surgeon found macromastia 5 as well as a history of back pain. The plastic surgeon told the Appellant that there may or may not be a relationship between large breasts and back pain. 11. The Appellant was evaluated by an orthopedic surgeon on July 5, The surgeon diagnosed the Appellant with Thoracic back pain. In the surgeon s opinion, the small central disc herniation at T4-T5 observed on the Appellant s MRI was not symptomatic. The surgeon encouraged the Appellant to get involved in regimented physical therapy. 12. The Appellant underwent a liposuction and tummy tuck procedure on July 10, 2007 for which she paid $3, Defined by Dr. Moore as chronic dermatitis underneath the breasts typically related to sweat which can lead to bacterial infection or a fungal growth. 5 Large breasts. 4

5 DISCUSSION Prior to 1996, Medical Assistance recipients were free to choose their own physicians, and the Medical Assistance Program would reimburse physicians for covered services. In November of 1996, however, all Medical Assistance recipients, with some exceptions (the most significant being those people receiving long-term care benefits), were required to join an MCO. An MCO is the Medical Assistance Program equivalent of a Health Maintenance Organization ( HMO ). The MCO is required to provide all services that were previously provided under the Medical Assistance Program. As to those required benefits, COMAR provides as follows:.01 Required Benefits Package-----In General. A. Except for non-covered services set forth in Regulation.27 of this chapter, an MCO shall provide its enrollees with a benefits package that includes the covered services specified in this chapter when these services are deemed to be medically necessary. Conversely, COMAR A provides: An MCO is not required to provide any of the benefits or services listed in B of this regulation. B. The benefits or services not required to be provided under A of this regulation are as follows: (2) Any service or treatment that is not medically necessary; COMAR provides: An MCO shall provide to an enrollee medically necessary surgery to correct a deformity from disease, trauma, congenital or developmental anomalies, or to restore body functions. At the hearing, the Appellant testified that she had been to three plastic surgeons and they all said she needed plastic surgery. The Appellant did not provide the reports of the plastic surgeons. The Appellant testified that she has severe back pain and sometimes gets grooves on 5

6 her shoulders. The Appellant works with animals and picking then up causes stress on her back. The Department s evidence established that the surgery was not medically necessary. As the Department s witness, Dr. Moore, noted a plastic surgeon at Johns Hopkins Hospital stated that the Appellant was a candidate for surgery and was postpartum. In Dr. Moore s opinion, postpartum is an inappropriate time to consider reduction surgery because hormonal changes have caused the breasts to enlarge. Further, Dr. Moore testified that there was no medical evidence of the pain. An evaluating orthopedic surgeon did not find any cause of the pain. A plastic surgeon at the University of Maryland Medical School evaluated the Appellant at the request of the MCO, and stated that the Appellant s large breasts may or may not be the source of her pain and he recommended physical therapy. Dr. Moore reviewed the photographs of the Appellant s breast and noted the absence of strap grooving and the photographs did not seem to support the need for breast reduction. Dr. Moore characterized what she saw as post birth sag. After the Appellant s request was denied by Dr. Moore on behalf of the MCO, the Appellant s request was reviewed by Dr. Peskin, a Department Medical Advisor who also determined that breast reduction was not medically necessary. In his evaluation, Dr. Peskin noted that while the Appellant has large breasts, a D cup is not considered an anomaly. Dr. Peskin also noted the Appellant did not have a history of strap grooving or infections under her breasts. In Dr. Peskin s opinion, the Appellant s request for a mammoplasty was not medically necessary. The Appellant did not offer any medical evidence that the procedure was medically necessary. On the other hand, the Department established by Dr. Moore s testimony and Dr. Peskin s written evaluation that the procedure was not medically necessary. 6

7 CONCLUSIONS OF LAW Based on the foregoing Findings of Fact and Discussion, I conclude as a matter of law that the Department of Health and Mental Hygiene properly determined that the Appellant was not eligible for a reduction mammoplasty procedure because it was not medically necessary. COMAR ORDER I ORDER that the decision of the Department of Health and Mental Hygiene is AFFIRMED. October 1, 2007 Date Decision Mailed Richard F. Rothenburg, Administrative Law Judge RFR/cm APPEAL RIGHTS If you are not satisfied with this decision, you may appeal it to the Board of Review of the Department of Health and Mental Hygiene within thirty days of the date of this decision. To do so, you must write to the Secretary of the Board of Review, Department of Health and Mental Hygiene, 201 West Preston Street, Baltimore, MD COMAR B(3) and COMAR The Office of Administrative Hearings is not a party to any review process. 7

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