Is Cosmetic Surgery Ever Medically Necessary?
Surgeries and other treatments and procedures can cost thousands of dollars, so it’s no surprise that health insurance companies only want to cover procedures that are deemed medically necessary. So-called elective surgeries, procedures that people choose to enhance their looks or for other reasons unrelated to treating a medical condition, are not covered. People can pay for these surgeries on their dime but shouldn’t expect any help from their insurance company to cover the costs or even count the expense toward meeting a deductible.
Cosmetic surgery – surgery that is performed to alter or reshape normal structures of the body in order to improve appearance – falls into the elective, non-covered category. But is that always the case? There are times when surgeries are performed to alter appearance – to create or restore a normal appearance – that are considered “reconstructive surgery” as opposed to “cosmetic surgery.” Disputes sometimes arise between the insurer and insured over whether a given procedure is reconstructive (covered) or cosmetic (uncovered). These disputes have even ended up in court. This article looks at the distinctions between the two terms and what it means for a treatment to be “medically necessary.”
Cosmetic or Reconstructive
California law differentiates between cosmetic surgery and reconstructive surgery. Section 1367.63 of the California Health and Safety Code specifically requires “health care service plan contracts” issued in the state to cover reconstructive surgery. The law goes on to define reconstructive surgery while also clarifying that “nothing in this section shall be construed to require a plan to provide coverage for cosmetic surgery” as defined in the law.
Here are the definitions of cosmetic surgery and reconstructive surgery used in California law:
Cosmetic surgery is defined to mean “surgery that is performed to alter or reshape normal structures of the body in order to improve appearance.”
Reconstructive surgery is defined in the statute to mean “surgery performed to correct or repair abnormal structures of the body caused by congenital defects, developmental abnormalities, trauma, infection, tumors, or disease to do either of the following:
- To improve function.
- To create a normal appearance, to the extent possible.”
The statutory definition of reconstructive surgery also specifically includes medically necessary dental or orthodontic services to repair cleft palate, cleft lip and other craniofacial anomalies associated with cleft palate.
The California law still gives the insurer many outs when deciding whether a requested procedure qualifies as reconstructive surgery. Insurers can lawfully deny claims for the following reasons:
- There is another more appropriate surgical procedure that the policyholder would approve
- The proposed procedure would only offer a minimal improvement in appearance
- The procedure was performed without prior authorization
Note, however, that the definitions of cosmetic surgery and reconstructive surgery contain some very similar language – “to improve appearance” on the one hand and “to create a normal appearance” on the other. Insurance disputes often arise over whether a proposed procedure fits within the definition of cosmetic or reconstructive.
But Is It Medically Necessary?
Fighting with the insurance company over whether a procedure qualifies as reconstructive is only one uphill battle in the coverage war. Insurers can still deny an operation by saying it isn’t medically necessary. “Medical necessity” is a term defined in the health plan by the insurance company; they might define it in a very strict, limiting way, or they might leave it vague. A typical insurance company definition of “medically necessary” is a procedure that is:
- Provided for the diagnosis, treatment, cure, or relief of a health condition, illness, injury or disease,
- Necessary and appropriate to that end,
- Within the generally accepted standards of medical care in the community, and
- Not solely for the convenience of the insured
Some policies specifically exclude experimental, investigational and cosmetic purposes. Others expand the definition to include consideration of the cost-effectiveness of the requested treatment and cheaper alternatives.
The definition of medical necessity used by Medicare is more succinct and less limiting: health care services or supplies needed to diagnose or treat an illness, injury, condition, disease, or its symptoms and that meet accepted standards of medicine.
One might also look to state law for a definition of medical necessity, but one is likely to be disappointed. California, for instance, which has been industriously regulating insurance companies and HMOs since passing the Knox-Keene Health Care Service Plan Act of 1975, repeatedly uses the terms “medically necessary” and “medical necessity” without defining them in almost every instance. Changes to California’s mental health parity law in 2020 added a new section to the Health and Safety Code that defined a “medically necessary treatment of a mental health or substance use disorder,” which as far as we can tell is the first (and only) time “medically necessary” or “medical necessity” is given a statutory definition in the California Code. Although not a general definition for all purposes, the legislature adopted a definition that would make sense in a variety of settings. Under that law, “medically necessary treatment” is:
“a service or product addressing the specific needs of that patient, for the purpose of preventing, diagnosing, or treating an illness, injury, condition, or its symptoms, including minimizing the progression of that illness, injury, condition, or its symptoms, in a manner that is all of the following:
(i) In accordance with the generally accepted standards of mental health and substance use disorder care.
(ii) Clinically appropriate in terms of type, frequency, extent, site, and duration.
(iii) Not primarily for the economic benefit of the health care service plan and subscribers or for the convenience of the patient, treating physician, or other health care provider.”
Getting Your Claim Approved
In the end, what you want to know is whether your request for an operation or other treatment will be approved, and what you can do about it if it is denied. In many instances, insurance companies have been known to issue blanket denials of certain procedures, labeling them “cosmetic” or “not medically necessary.” Liposuction is one such example, even though certain forms of liposuction have been used to treat serious medical conditions such as lipedema and clearly fall within California’s definition of reconstructive surgery. Hiding behind a blanket policy provision without looking at an individual policyholder’s needs seems like a dereliction of duty and arguably a bad faith insurance practice, so it’s worthwhile to have an insurance lawyer look at your case in this situation.
Similarly, insurers sometimes hide behind medical group decisions when it comes to determining medical necessity. Insurance companies contract with medical groups and delegate treatment determinations to the medical group. This gives their decisions the aura of a medical determination, but the medical group ostensibly has a conflict of interest, since they have a financial stake in their relationship with the insurer. If the patient’s doctor has submitted a letter of medical necessity, what is the rationale for a medical group to decide the procedure isn’t necessary? This is another situation worth looking into with the help of an experienced insurance law attorney.
