ERISA-Fifth Circuit Rules That Surgery To Alleviate Obesity Is Not Covered By A Medical Plan

In Dupre v. Employee Benefit Services of Louisiana, Inc., No. 09-30990 (5th Cir. 2010), the plaintiff, Jennifer Dupre (“Dupre”), sought to have gastric bypass surgery, known as ROUX-En-Y, paid for by the self-funded ERISA plan offered by her husband’s employer (the “Plan”). Dupre is classified as morbidly obese. At the time she requested the surgery, she suffered from numerous dysfunctions and diseases, such as gastroesophageal reflux disease (“GERD”), and hypertension. One defendant, the Employee Benefit Services of Louisiana, Inc. (“EBS”), is the Plan’s third-party administrator. EBS refused to approve the Plan’s payment for the gastric bypass surgery, on the grounds that a particular provision of the Plan disallows coverage for surgery in connection with obesity. Dupre brought suit under ERISA, seeking a declaration that the gastric bypass surgery is covered by the plan. The District Court granted summary judgment in Dupre’s favor, and the defendants appealed.

In analyzing the case, the Fifth Circuit Court used a deferential review of EBS’s decision to refuse to approve the Plan’s payment for Dupre’s surgery, because the Plan gave EBS discretion to construe the Plan’s terms. Under this review, EBS’s decision must be upheld if it is fair and reasonable and supported by substantial evidence. Here, the decision was based on a provision of the Plan which says that “[n]o benefits are provided under this plan for expenses incurred for or in connection with: . . . [o]besity, or in connection with obesity, weight reduction, or dietetic control.” The plain language of the Plan, therefore, shows that EBS may deny benefits for a surgery connected to weight loss. EBS had evaluated the evidence submitted by Dupre pertaining to the surgery, including two letters from Dupre’s physicians, and concluded that the surgery was not a last resort for treating GERD or some other disorder. Instead, it’s purpose was to help Dupre lose weight. As such, EBS’s decision must be upheld. The Fifth Circuit Court overturned the District Court’s summary judgment in Dupre’s favor, and entered judgment in the defendant’s favor.

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