A 51–year–old woman, who was approximately five feet three inches tall, and weighed 445 pounds, had a body mass index was over 60, and she was considered morbidly obese. She qualified for the Montana Medicaid program as categorically needy because she was legally blind. She suffered from a host of medical ailments including hypertension; diabetes mellitus type 2; edema/venous insufficiency; advancing osteoarthritis of the shoulders, hips, and knees; arthritis of the spine and a disc bulge pressing on her spinal cord; atypical chest pain; hypoventilation syndrome/asthma; obstructive sleep apnea; hypothyroidism; and significant restless leg syndrome.
The woman had attempted to lose weight by participating in the Weight Watchers and Take Off Pounds Sensibly programs. She also participated in a year-long weight loss study through a community medical center. She had some success using diet pills, which were later taken off the market. She lost fifty pounds due to a low-carbohydrate diet and exercise. However, her many injuries and medical conditions limit her exercise ability.
Her three physicians wrote letters to the Department of Public Health and Human Services (DPHHS) stating that the woman was a good candidate for gastric bypass surgery. None of the physicians specifically stated that gastric bypass surgery was necessary or the only means by which the woman's condition could be improved.
One of the woman’s physicians asked the DPHHS to authorize gastric bypass surgery for the woman. The request was denied because gastric bypass surgery was a non-covered service under DPHHS administrative rules. The woman requested an administrative hearing, at which she argued that the DPHHS's blanket exclusion of gastric bypass surgery from Medicaid coverage was unreasonable and contrary to federal law. The hearing officer determined that the DPHHS's basis for excluding gastric bypass surgery was rational and reasonable, because it was based on fiscal necessity. The hearing officer also determined that although the DPHHS had excluded certain treatments, it had not “singled out obesity as a non-covered condition” or discriminated on the basis of obesity. The Board of Public Assistance adopted the decision of the Hearing Officer. The woman sought judicial review of the administrative denial. The First Judicial District Court for the County of Lewis and Clark affirmed the department’s denial.
The Supreme Court of Montana affirmed. The court held that an administrative rule excluding all invasive procedures undertaken for the purpose of weight reduction, including gastric bypass surgery, from coverage under the Montana Medicaid program was reasonable and complied with federal law, and expert testimony was required for the court to conclude that the excluded obesity treatments were the only possible treatment methods.
An administrative rule excluding all invasive procedures undertaken for the purpose of weight reduction, including gastric bypass surgery, from coverage under the Montana Medicaid program was reasonable and complied with federal law. A state participating in Medicaid must provide categorically needy individuals with financial assistance in obtaining medical treatment within certain mandatory service areas including inpatient hospital services; outpatient hospital services; laboratory and x-ray services; nursing facility services; and services furnished by a physician, nurse midwife, or nurse practitioner. A state is not required to provide coverage for every procedure falling within a mandatory Medicaid service area. The court noted that, while serious statutory questions might be presented if a state Medicaid program were to exclude medically necessary treatments, it is well within a state's discretion to exclude unnecessary, though perhaps desirable, medical services. Categorical exclusion of all treatments for a certain condition, or of the only available treatment for that condition, would be arbitrary, unreasonable, and inconsistent with the objectives of Medicare.
Expert testimony was required for the court to conclude that the excluded obesity treatments were the only possible treatment methods. Certain services are excluded from coverage under the Montana Medicaid program, including dietician services; nutritional services; dietary supplements; and all invasive medical procedures undertaken for the purpose of weight reduction such as gastric bypass, gastric banding, or bariatric surgery, including all revisions. Expert testimony explaining the range of possible treatments for obesity and their feasibility for patients considered morbidly obese was required for the court to conclude that the surgical procedures, nutritional and dietician services, and dietary supplements from Medicaid coverage were the only possible methods of treating obesity such that exclusion of all of them would be overly broad and unreasonable, and therefore impermissibly discriminate on the basis of condition or diagnosis. The court noted that if the woman had provided evidence that dietician services, nutritional services, dietary supplements and all invasive medical procedures undertaken for the purpose of weight reduction encompassed all of the available treatments for morbid obesity, then the court would have found that Montana had impermissibly excluded all treatments for morbid obesity.
The Supreme Court of Montana affirmed the trial court’s affirmation of the Department of Public Health and Human Services’ denial of the woman’s request for Medicaid authorization for gastric bypass surgery.
See: Bailey v. Montana Dept. of Public Health and Human Services, 2015 WL 557173, 2015 MT 37 (Mont., February 10, 2015) (not designated for publication).
See also Medical Law Perspectives, September 2012 Report: Cosmetic Surgery Gone Wrong: High Hopes Meet Unexpected Results
See also Medical Law Perspectives, May 2014 Report: Diabetes and Its Complications: Malpractice and Other Liability Issues