Class Sues Blue Shield for Denying Surgeries

SAN FRANCISCO (CN) - Blue Shield of California refuses to cover reconstructive surgeries despite "normal appearance" tests that permit the procedures, a woman seeking breast and eyelid treatment claims in a federal class action.

Lisa Burton claims California Physicians' Service dba Blue Shield of California violates California Health & Safety Code section 1367.63 by refusing to cover surgeries to return disfigured patients to a normal appearance.

The statute requires that health plans cover reconstructive surgeries "when a physical deformity will either resolve a functional problem or create a normal appearance," and orders that decisions regarding normal appearance to be made by a reconstructive surgeon, Burton says in the lawsuit.

But Blue Shield opposed the statute and denied valid surgery requests, she claims.

"Blue Shield has engaged in a pattern and practice of denying requests for reconstructive surgery on the basis they are not 'medically necessary' - they do not present significant functional problems - and has refused to consider whether the statute's alternative 'normal appearance' test has been met," the 9-page complaint states. "Blue Shield has also denied certain reconstructive surgery requests regardless of whether they meet either test and has failed to have the question of normal appearance decided by a reconstructive surgeon."

Blue Shield opposed the law upon its introduction in 1998, claiming "language in AB [Assembly Bill] 1621, which allows the treating physician to determine the need for reconstructive surgery without obtaining authorization from the plan, might encourage some physicians to claim they are providing reconstructive surgery for procedures that are purely cosmetic in nature," according to the complaint.

Burton says she was covered by Blue Cross under her private employer's group policy.

She requested a mammoplasty and blepharoplasty, through her medical group, Palo Alto Medical Foundation, which she says were denied.

Burton did not specify why she needed the treatments.

Blue Shield, on appeal, told Burton the requests "did not meet the medically necessary criteria," she says.

The insurer's decisions were not made by a reconstructive surgeon or a reconstructive surgeon who was not advised of the statutory criteria, Burton says.

"Blue Shield's practices violate section 1367.63 because Blue Shield: a) disregards the normal appearance standard and does not have requests for reconstructive surgery considered by a reconstructive surgeon under the normal appearance prong; b) allows its medical group's to deny requests without considering the normal appearance standard and without review by a reconstructive surgeon; and c) does not consider certain forms of reconstructive surgery to be covered under either the normal appearance or functional standards," the complaint states.

Burton seeks the denied benefits, a clarification of class members' rights to benefits, and an accounting.

She is represented by Robert Gianelli with Gianelli & Morris, of Los Angeles.

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