Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Doctors are frequently asked to fill out a variety of forms. No one loves doing it. But it’s part of the job.
Two recent questions by our members highlighted situations when the “ask” goes beyond what is “allowed.”
The first situation addressed a patient wanting to tap into her FSA account. FSA stands for Flexible Spending Account. It lets an employee put away pre-tax dollars for qualified medical expenses. Employers may make contributions to FSA accounts. If you don’t use it, you lose it.
Qualified medical expenses seems like a straightforward term. But does it apply to an elective cosmetic surgery? Meaning, can a routine cosmetic surgery be covered by a FSA? If the surgery is performed strictly for cosmetic reasons, the answer is generally no. And since FSA are covered by IRS regulations, the same caveat applies to Health Savings Accounts (HSAs).
In accordance with IRS regulations regarding taxable medical deductions, IRC 213(d) is especially relevant in regards to the eligibility of certain medical expenses like cosmetic procedures. Under IRS 213(d), medical care refers to:
“The term “medical care” means amounts paid for the diagnosis, cure, mitigation, treatment or prevention of a disease, or for the purpose of affecting any structure or function of the body.”
This particular definition is vital in helping benefits administrators determine whether a specific medical procedure is eligible for reimbursement through consumer-directed healthcare accounts like FSAs, HSAs and HRAs. In the vast majority of cases, cosmetic procedures are not meant to prevent or treat a specific medical condition or are simply done for “general health” purposes, so therefore they are rarely covered by most consumer spending accounts.
A cosmetic surgery/procedure is any surgery/procedure that is directed at improving the patient’s appearance and does not meaningfully promote the proper function of the body or prevent or alleviate an illness or disease.
Are there exceptions to this rule?
Yes.
If the cosmetic procedure is performed to address a medical problem, such as a congenital abnormality, or reconstruction after an accident or disfiguring illness, it will likely be covered, assuming it is covered by a letter of medical necessity. This letter must outline how an account holder’s medical condition necessitates a specific cosmetic procedure, how the treatment will be used to alleviate the issue.
If the cosmetic procedure is elective and unrelated to an underlying medical condition, then no letter of medical necessity can/should be written. And such a procedure will likely not be covered by FSA or HSA.
Onward to paperwork for Family and Medical Leave Act (FMLA).
From the Department of Labor’s website:
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:
- Twelve workweeks of leave in a 12-month period for:
- the birth of a child and to care for the newborn child within one year of birth;
- the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- to care for the employee’s spouse, child, or parent who has a serious health condition;
- a serious health condition that makes the employee unable to perform the essential functions of his or her job;
- any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;”
OK, is elective cosmetic surgery a serious health condition?
Again, from the Dept. Of Labor:
Serious health condition means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115. Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not “serious health conditions” unless inpatient hospital care is required or unless complications develop. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of § 825.113 are met.
See a theme?
Elective cosmetic surgery not addressing some underlying medical condition generally does not warrant reimbursement under FSA accounts, HSA accounts, or protected leave under the Family and Medical Leave Act. That does not mean your patients will not ask. But be careful about certifying eligibility unless the core conditions are met.
What do you think?
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
What is actually meant by cosmetic surgery?
Rhinoplasty to fix a deviated septum caused by an injury?
Breast implants for breast hypoplasia which carries significant psychological risks?
Can we get away from third parties as payors that think they can dictate what patients can spend their own funds for.
FSA funds are in large part contributed to by withholdings from the patient.
Ditto for HSA funds.
Paraphrasing the tag line from a JG Wentworth commerical…”Its your cash use it when you need it. ”
Why does the government get to choose what a patient does with their healthcare dollars that they paid for? Can we end the nanny state.
I generally agree with “retired”s sentiments regarding this issue. It IS your money, if you don’t use it, the government confiscates it, and they should not even offer, let alone encourage such gambling. In the examples he gave, a rhinoplasty for a deviated septum should (and I believe is) covered if a case can be made that it is obstructing breathing or affecting sleep, regardless of whether acquired or traumatic. In fact, it is generally covered by insurance in these circumstances.
FSAs can specifically cover dermatologist’s fees and prescription medicines, so Botox administered by a dermatologist should be an allowable expense; especially if headaches or strabismus can be claimed. I am surprised at the rather loose wording of 213(d)(1)(A) “prevention of a disease, or for the purpose of affecting any structure or function of the body” which phrase is not further defined.
Almost any cosmetic surgery procedure affects the STRUCTURE of the body, and it could surely be argued that improvement of unpleasant facial or body features affect the social functions of such parts….and in some cases, even prevents medical conditions such as for example intertrigo from pendulous breasts or pannus, in which case mammopexy, liiposuction and/or abdominoplasty might be justifiable. How about laser ablation of hypertrichosis (which could result from POS or result IN sycosis barbae)? It seems to me that this wording is so vague as to allow broad interpretation if the provider wishes to provide the verbiage. And who judges? The employer’s HR department? Do the regulations allow the employer to retain any part of the bounty if the employee overestimates FSA witholding, or cannot get treatments approved by them? COI indeed. If the provider bills for writing the letter, would this be covered?
When I read the IRS regs, I thought the same as Doc Andrew – “…for the purpose of affecting any structure or function of the body.” is nebulous and would allow any medical procedure. If a doc accepts HSA funds in an unapproved manner, can the IRS confiscate these funds from the physician and impose a penalty…? Excellent content here. Thank you!