Issued and entered April 22, 2003 by Frances K. Wallace, Chief Deputy Commissioner

ORDER

I
PROCEDURAL BACKGROUND

On January 9, 2002, XXXXXXXXXXXX, Petitioner, filed a request for external review with the Commissioner of the Office of Financial and Insurance Services under the Patient’s Right to Independent Review Act, MCL 550.1901 et seq.

Petitioner’s material was accepted for review on January 14, 2002. Since a determination on medical issues was required, the case was assigned to Permedion, an independent review organization (IRO) to provide its recommendation to the Commissioner.

On January 14, 2002, Health Alliance Plan (HAP), the successor to SelectCare HMO, sent OFIS a copy of the information it used in making its adverse determination. In rebuttal, Petitioner submitted additional information on January 24, 2002. She disagreed with the information submitted by SelectCare (HAP) concerning certain physician contacts, clinical notes and her alleged non-attendance at a 1999 internal grievance hearing. This information was forwarded to Permedion January 24, 2002. The IRO completed its review January 29, 2002.

II
ISSUE

Whether SelectCare HMO, through its successor Health Alliance Plan (HAP), properly denied coverage for bariatric surgery?

III
ANALYSIS

Petitioner’s Argument

Petitioner’s employer contracted with SelectCare HMO to provide medical coverage. When Petitioner filed her internal grievance, she was a member of SelectCare. As a result, the SelectCare Certificate of Coverage applies in this matter even though SelectCare was acquired by HAP on or about October 1, 2001.

Petitioner’s Physical Condition

Petitioner is 5’6” tall and weighs 311 pounds. She has a Body Mass Index (BMI) greater than 50. In 1995, she was diagnosed with Sarcoidosis, a life-threatening medical condition that caused lesions to form on her heart, lungs and other organs. She argues the Bariatric Surgery is medically necessary as a precursor to undergoing heart surgery to replace damaged valves and treatments for lung damage due to the Sarcoidosis.

Petitioner noted her weight gain was due to prescription steroids to treat Sarcoidosis. The steroids and other medical complications have prevented her from losing weight. She has tried Weight Watchers, McCongalls Diet, Dr. Atkins Diet, SlimFast, NutraSystems and acupuncture to control her weight, with little or no success.

Petitioner’s BMI exceed the standard 35 BMI cited by the National Institutes of Health Consensus Criteria as one medical indicator for Bariatric or Gastric Bypass Surgery. Petitioner’s BMI of greater than 54 is categorized as Class III Morbid Obesity. It carries an extremely high risk for serious morbidity and premature death.

Petitioner’s comorbidities include the following:

• Weight related depression
• Shortness of breath
• Chronic fatigue
• Sleep apnea
• Chronic hypertension
• Advanced Sarcoidosis (affecting the heart and lungs –diagnosed 6 ½ years ago)
• Fibromyalgia
• Asthma
• Arthritis (knees, elbows, and shoulders)

Petitioner’s primary care physician (PCP) supported her request for bariatric surgery. The PCP wrote the following:

This letter [is] regarding my patient [Petitioner], who has been a patient in our practice for the past two years. She has a significant past medical history of morbid obesity with a BMI greater than 50. Despite multiple attempts over the years to lose weight she has been unsuccessful. She has been on trials of Lonomin, Xenical, and Meridia along with various anti-depressants in an attempt to assist her weight loss. This has severely complicated her chronic hypertension and advanced Sarcoidosis.

In closing, I feel [Petitioner] has made multiple attempts at weight loss and is definitely a candidate for Bariatric Surgery.

Acrimony between Petitioner and Respondent’s Physicians

The extensive case file included evidence the relationship between Petitioner and Respondent soured. The deterioration occurred when SelectCare (HAP) requested Petitioner to be evaluated by HAP’s physicians. Petitioner believes HAP and its doctors misstated facts relating to these medical evaluations.

First, Petitioner stated she never made an appointment with or saw Dr. XXXXXXXXXXXXXXX of XXXXXXXXXXXXXXXX, whom SelectCare (HAP) alleges evaluated her for surgery. Second, SelectCare’s (HAP) surgeon from XXXXXXXXXXXXXXXX, Dr. XXXXXXXX, briefly met with Petitioner on one occasion. He produced some clinical notes and believed Petitioner was not a candidate for bariatric surgery. Petitioner however, alleged Dr. XXXX did not evaluate her in any meaningful way. She alleged he did not take a medical history, perform an examination, or perform any tests. She believed Dr. XXXX improperly made a clinical decision without any clinical information.

Third, HAP referred Petitioner to Dr. XXXXXXXXXX (surgeon from XXXXXXXXXXXXX) for evaluation for bariatric surgery. Petitioner stated Dr. XXXXXX made only a cursory review. He ordered tests but did not evaluate them or wait to receive the results before deciding she was not a candidate for bariatric surgery. Petitioner believed he made a clinical decision without conducting a medical examination. She implied Dr. XXXXX was improperly predisposed to denying the request for surgery.

Fourth, Petitioner made several allegations of discrimination against Dr. XXXXXX. She said Dr. XXXXXX was upset because she was demanding and she protested the arbitrary deadlines SelectCare HMO set for her to obtain the referral from her primary care physician and to secure a bariatric surgeon. She stated Dr. XXXXXX would not allow her to use pre-operation work-ups that had already been completed by Dr. XXXXXXXXXXXX. As a result, she believed Dr. XXXXXXXX findings were incorrect and biased. He concluded Petitioner was emotionally immature, demanding, and lacking an understanding of the surgery. Petitioner stated the physician notes are misleading and incorrect.

Petitioner’s Psychiatric Condition

Evaluation # 1

Petitioner underwent a psychiatric evaluation to determine her suitability for gastric bypass surgery. The psychiatrist indicated Petitioner was prescribed several medications, including Catapres, Tenrmin, Fentanyl Patch, Thyroid, Cyclosporin, Klonopin 0.5 q. 8 hours ambient, Proventil, Asthmacort, and a steroid cream for dermatological purposes. She had been treated psychiatrically and had been hospitalized 5 times in 1998. He noted the 5 hospitalizations could have included partial hospitalizations along with a medical hospitalization. He indicated Petitioner made 3 suicide attempts, but denied she had been depressed or that she was then currently depressed or suicidal. He stated she was diagnosed with depression and was “at a therapeutic impasse” because she was suffering form a pain disorder due to psychiatric and medical factors. He indicated it was required that Somatization Disorder be ruled out.

The psychiatrist also noted that, considering the many medications and complicated history, Petitioner presented in a remarkably calm, well organized, and comfortable appearing fashion. She was logical and coherent. Her affect was full-range and appropriate, except that he believed she lacked the appropriate anxiety regarding the severity of her problems. He said her mood appeared euthymic and that she did not demonstrate any psychotic phenomena. He stated she seemed of above average intelligence and demonstrated no cognitive defects. He added that she had a good understanding of the bariatric surgical procedures and its complications.

The psychiatrist said the only problematic aspects of Petitioner’s presentation was she would not acknowledge that she was depressed or ever had been, despite her suicide attempts. She would not provide any explanation of the motivation. She also was not worried about the surgery or any problems that might arise as a result of the bariatric surgery.

He believed Petitioner was demonstrating denial regarding possible surgical problems. He could not predict the severity of reactions she would experience if the surgery were denied, including whether or not she would become suicidal. He concluded there was no specific contraindication to Petitioner having the surgery. He believed she was highly motivated and she believed the surgery would save her life.

Evaluation # 2

Petitioner had another psychiatric evaluation on XXXXXXXXXXX and XXXXXXXXXXXX. It was a collaborative report by a limited licensed psychologist and a medical doctor. The report noted Petitioner suffered from chronic moderate to severe depression. The diagnostic impression was she suffered Major Depressive Disorder along with Sarcoidosis. The Sarcoidosis affected her face, body, heart, and liver. The report further noted at times she was very distraught with some suicidal preoccupation, however, she was “very bright, capable, and also motivated enough to make decisions on her own.”

The report emphasized the proposed bariatric surgery had some benefits. The surgery would help decrease Petitioner’s excessive weight. Her weight adds to her depression along with the Sarcoidosis. The surgery would potentially be helpful to her self-image.

The report addressed the issue of suicide. Petitioner admitted attempted suicide but denied any history of depression. She was somewhat defensive and guarded in discussion of suicidal ideation. She stated her suicide attempts had nothing to do with depression---just pain. The physicians believed denial of the bariatric surgery would likely lead to further feelings of hopelessness and potentially increase the likelihood of another suicide attempt. Petitioner believed the surgery was absolutely necessary for her survival and recovery.

The evaluation included several psychological tests. They were used to assess Petitioner’s psychological functioning and capacity to undergo bariatric surgery. The tests were:

1. Minnesota Multiphasic Personality Inventory - Two (MMPI-2)
2. Million clinical Multiaxial Inventory – III (MCMI-III)
3. Wechsler Adult Intelligence Scale – third Edition (WAIS-III).

As a result of the tests, the physicians made the following recommendations:

1. The findings of the current evaluation do not indicate in any manner from a psychological perspective that [Petitioner] should not be permitted to pursue the currently requested surgery. There is no evidence that she is not able to make a fully informed decision based upon the information provided to her. She is judged to be able to act in her own best interest.
   
2. While there are issues that would be beneficial to address in psychotherapy, [Petitioner] is clearly not amenable to psychotherapy. Given her present personality style, psychotherapy would be unlikely to be beneficial at this time. Therefore, it would be judged as little benefit to require psychotherapy prior to the requested surgery. Psychotherapy may be beneficial at some time in the future, but this is likely only if [she] independently comes to the decision to seek such services out. Any recommendation beyond simply letting [her] know that psychotherapy is available if she chooses to avail herself to [sic] that service is likely to be of little or no benefit.
   
3. [She] would likely benefit from consultation with a neurologist to assess for any neurological involvement due to her medical conditions.

Petitioner’s Conclusion

The denial from SelectCare (HAP) stated Petitioner did not meet its coverage criteria. Petitioner wrote several letters disputing the denial. She emphasized that she met the criteria for bariatric surgery and that her physicians believed she had a good understanding of the surgery and necessary postoperative dietary changes. She believes the HAP denial should be reversed.

Health Alliance Plan’s Argument

Petitioner has sought approval for bariatric surgery since 1998. SelectCare denied the initial appeal on September 28, 1998, arguing the surgery was not a covered benefit under the standard SelectCare HMO contract. It also argued there was no evidence Petitioner completed a physician-monitored weight loss program.

HAP’s January 2, 2002, final adverse determination letter stated:

While the committee empathizes with your current situation, the committee supports the decision of Dr. XXXX and Dr. XXXXXX who have determined that you are not currently a candidate for bariatric (gastric bypass) surgery, additionally, bariatric (gastric bypass) surgery is not a benefit under your HMO contract (Exclusion 4.25). After serious consideration of the information you presented during the grievance hearing, recent clinical information, and recommendations by Dr. XXXX and Dr. XXXXXX indicating that you are not a candidate for bariatric (gastric bypass) surgery, your request remains denied.

IRO’s Recommendation

Two independent medical experts reviewed this case. Their findings are set out below.

Reviewer #1, Physician of Internal Medicine:

A Board-certified internist reviewed this case and recommended upholding HAP’s final adverse determination. The internist indicated Petitioner tried multiple weight loss regimens and used pharmacotherapy for obesity. However, the expert believed there was no convincing evidence of a physician-supervised weight loss program. Sufficient evidence of such a program would include the following data: start date, initial weight, dates of sessions attended, record of prescription medications, stop date, reason for the cessation of the program, final weight and the name of the treating physician. The internist believed the information provided by Petitioner’s physicians was not acceptable proof that she participated in a medically supervised weight loss program. Petitioner’s physicians made statements about treatment, but they did not provide documentation to support their claims.

Reviewer #1, Surgeon:

A Board-certified surgeon reviewed this case and recommended upholding HAP’s final adverse determination. The surgeon stated gastric bypass surgery requires a great deal from patients, including: stability, cooperation, courage, and a dedication to working with medical personnel. The expert stated Petitioner did not have these qualities.

The surgeon believed Petitioner was not a reasonable candidate for gastric bypass surgery for the following reasons:

1. The records present the picture of an extremely disturbed person with at least a severe personality defect.
   
2. She repeatedly misrepresented her medical history: Example:
   
   1. XXXXXX she stated to a psychologist that she had sarcoidosis for six years – but a letter from a treating doctor XXXXXXX said it had been present for 15 years.
   2. On XXXXXX she told Dr. XXXXXX she weighed 95 pounds before her steroid treatments began in XXXX, but a treating doctor said in XXXX that she weighed at least 275.
   3. She said she had been told she needed a heart valve replacement. The record does not support that statement.
      
3. The patient has been non-compliant with medical therapy.
   
4. She has been hostile and manipulative in her dealings with physicians and staff.
   
5. She has repeatedly expressed unrealistic expectations of gastric bypass surgery.
   
6. She has threatened suicide on numerous occasions and may have attempted it on several.
   
7. She repeatedly denied her obvious depression and refused treatment for it.
   
8. In addition to her psychiatric disease she has sarcoidosis that has required treatment with steroids and immunosupressives. These alone would be significant relative contraindications to a major operation.

Commissioner’s Review

This case has, for several years, been charged with emotion and animosity. Unquestionably, the Petitioner is very ill and committed to fighting for health coverage. The Commissioner understands and commends her dedication and desire. The analysis of the case however must be done without considering the emotional elements and it must focus instead on the facts of the case and the opinions of the independent medical experts. These medical reviewers are well qualified and are able to make sound recommendations to the Commissioner. Their opinions therefore will be adopted.

The first independent expert was an internist. This physician noted that although Petitioner tried multiple weight loss programs, none were adequately documented as “physician-supervised.” The internist concluded Petitioner was not a candidate for the bariatric surgery and recommended upholding the HAP denial of coverage.

The second independent expert was a surgeon. This physician focused on the psychological factors affecting Petitioner’s suitability for bariatric surgery. The surgeon believed Petitioner misrepresented certain facts relating to her sarcoidosis, was medically non-compliant and manipulative, was potentially suicidal, had unrealistic expectations about the surgery, and was suffering from a serious case of sarcoidosis. The physician concluded Petitioner demonstrated numerous contraindications for the surgery and HAP’s denial should be upheld.

The Commissioner, although deeply sensitive to Petitioner’s plight, is compelled to adopt the recommendations of the IRO physicians. They objectively analyzed the medical records in this case and concluded HAP’s denial was valid. The final adverse determination in this case is upheld.

IV
ORDER

The Commissioner upholds the final adverse determination issued on January 2, 2001. This is a final decision of an administrative agency. Under MCL 550.1915,any person aggrieved by this Order may seek judicial review no later than sixty days from the date of this Order in the Circuit Court for the county where the covered person resides or in the Circuit Court of Ingham County. A copy of the petition for judicial review should be sent to the Commissioner of the Office of Financial and Insurance Services, Health Plans Division, Post Office Box 30220, Lansing, MI 48909-7720.