Issued and entered April 25, 2003 by Frances K. Wallace, Chief Deputy Commissioner

ORDER

I
PROCEDURAL BACKGROUND

On June 28, 2002, XXXXXXXXXXX, (Petitioner) filed a request for external review with the Commissioner of Financial and Insurance Services (Commissioner) under the Patient’s Right to Independent Review Act (PRIRA), MCL 550.1901 et seq. After a review of the material submitted, the Commissioner accepted the request on July 8, 2002. The case required a determination of medical issues. It was assigned to National Medical Reviews (NMR), an independent review organization (IRO), to provide its recommendation to the Commissioner. The IRO completed its review and sent a report to the Commissioner.

II
FACTUAL BACKGROUND

Petitioner is a member of Priority Health. She seeks coverage for bariatric surgery to treat morbid obesity. She is 5’6” and weighs 315 pounds. Her Body Mass Index (BMI) is approximately 51.

Priority Health offered Petitioner coverage for the medical management of her obesity through the XXXXXXXXXXXXXXXX, but denied coverage for bariatric surgery alleging she did not meet its medical criteria.

III
ISSUE

Whether Priority Health properly denied Petitioner authorization and coverage for bariatric surgery?

IV
ANALYSIS

Petitioner’s Argument

Petitioner suffers numerous physical and medical problems stemming from her morbid obesity. These medical conditions are known as “co-morbidities.” In particular she suffers from sleep apnea, degenerative joint disease, hyperlipidemia, and gastroesophageal reflux disease. She is being treated for hypertension, acid reflux, irregular menstrual cycles and depression, all of which she claims are caused by obesity.

Petitioner has pain in her weight bearing joints, specifically her knees. She also has had many surgeries to remove bone spurs that have been aggravated by her weight. She has sinus problems and difficulty in performing daily activities as a result of her obesity.

Petitioner submitted evidence of medically supervised weight loss attempts. She is very worried about her health because morbid obesity causes numerous problems. She believes the bariatric surgery would give her a chance to lead a normal and full life.

Petitioner claims that several members of her family have died at an early age and have suffered major illnesses as a result of weight problems. Specifically, Petitioner’s father died at age 53 of a heart attack and he had a history of high blood pressure, high cholesterol and GERD. Her maternal aunt died at age 34 as a result of a sudden heart attack. Her maternal uncle died at age 54 as a result of a sudden heart attack. Her paternal grandfather died at the age of 52 also as a result of a sudden heart attack. Her maternal grandfather died as result of uncontrolled diabetes; he also had one leg amputated as a result of diabetes. Also, her paternal grandmother had a history of high blood pressure and died of a stroke.

Moreover, several of Petitioner’s current family members have weight-related health problems. Her mother is diabetic, has high blood pressure and had a hysterectomy by age 26 due to endometriosis. Her brother is 29 and suffers from hypertension and thyroid problems. Her sister is 33 and suffers from hypertension and had a hysterectomy by age 26 due to endometriosis. Her maternal uncle has survived two heart attacks.

Petitioner has attempted to lose weight all of her life. At age 10 she was enrolled in Weight Watchers. In her late teens her doctor put her on medication to lose weight. In her mid twenties, she again enrolled in Weight Watchers. She has been placed on medications numerous times, including the drug Phen-Phen.

Petitioner has tried several weight loss programs that were “physician directed diets,” but all were ineffective. She also indicates she has tried many exercise programs. Petitioner states that Priority Health offered her their medically supervised weight loss program, but she does not want to participate in the program because she has already tried such programs before and failed.

Petitioner indicates that in XXXX and XXXX she was under the direction of Dr. XXXXXXX XXXX in XXXXXXXXX for reduction of weight. His method of reduction consisted of appetite suppressants, nutritional counseling and weekly B-12 injections. Petitioner indicates she tried to obtain Dr. XXXXXX medical records but was unable to do so since he is not any longer practicing in Michigan and his medical records are not available.

Petitioner indicates that in XXXX and XXXX she saw Dr. XXXXXXXXXXXX of XXXXX XXXXXX for weight control. His treatment consisted of appetite suppressants, nutritional counseling, and monthly B-12 injections.

Petitioner’s primary care physician, XXXXXXXXXXXXXXXX, M.D., indicated in a XXX XXXXXXXX, letter to Priority Health, that Petitioner did fairly well as long as she was taking her medicines; however as soon as she stopped taking her medications, she gained her weight back. Dr. XXXXXXXX also indicated that in view of Petitioner’s medical problems and her inability for keeping weight off with a medical program, he believed that surgery would be in her best interest.

Petitioner provided other letters of support for her bariatric surgery. In a letter dated XXXX XXXXXX, Ms. XXXXXXXXXXXX, ACSW, CSW of XXXXXXXXXXXXXXXXXXXXXX in XXXXXXXXX indicated she is treating Petitioner for depression and eating issues related to her obesity. After completing a psychosocial history on Petitioner, Ms. XXXXXXX determined Petitioner would be a good candidate for bariatric surgery.

In a letter dated XXXXXXXXXXXX, Dr. XXXXXXXXXXXX, M.D. of XXXXXXXXX XXXXXXXXXXXX in XXXXXXXXX indicated he had been treating her for sleep apnea due to her morbid obesity. Dr. XXXX indicated the best treatment for Petitioner would be aggressive attempts at weight loss. Dr. XXXX further indicates that since she has difficulty losing weight with the usual measures, bariatric surgery would be a very reasonable option for Petitioner.

In a letter dated XXXXXXXXXX, Dr. XXXXXXXXX, XX, of XXXXXXXXXXXX, indicated Petitioner had seen him in the XXXXXXXXXXXXXXXXXXXXXXXX in XXXX and XXXX for its weight loss management program.

Petitioner requests that a physician in the MMPC Center perform her bariatric surgery. The MMPC Center is Priority Health’s own contracted bariatric surgery provider.

Priority Health’s Argument

In its final adverse determination, Priority Health denied coverage for bariatric surgery, but approved coverage for treatment of Petitioner’s obesity through a medically supervised weight loss program. Priority Health stated it denied coverage for bariatric surgery because Petitioner did not meet its medical criteria for the surgical treatment of morbid obesity.

Priority Health refers to its Certificate of Coverage at subsection (17) of section 6, Coverage Limitations, to support its case:

(17) Obesity. Medical and surgical treatment of extreme obesity is Covered when Medically/Clinically Necessary, as determined according to our medical policies. All treatment for extreme obesity must be approved by us in advance and provided by a provider or facility approved by us. Physician-supervised weight loss programs are Covered if obtained from a program approved by Priority Health and if the services are approved in advance by us.

Surgical treatment will only be considered with evidence of at least 6 months of supervised medical treatment that has failed, along with other criteria set forth in our medical policies. Noncompliance with treatment regimens may limit future benefits.

Coverage for bariatric surgery is limited by the Copayment as shown in the Schedule of Copayments and any rider enclosed with this Certificate.

Priority Health also refers to its Medical Policy No. 91435-R1, titled “Extreme Obesity,” which states:

COVERAGE:

Extreme obesity is defined as a body mass index (BMI) > 40. Medical or surgical treatment for extreme obesity may be a covered benefit for the indications described below. The treatment of co-morbidities (e.g. diabetes mellitus, hypertension) associated with extreme obesity is a covered benefit in accordance with the limitations and language in the Certificate of Coverage.

All services for weight management programs, both medical and surgical, require prior authorization.

* * *

LIMITATIONS/INDICATIONS:

* * *

Surgical Treatment of Extreme Obesity
All of the following criteria must be met:

1. Age > 18 years
   
2. The surgery must be performed by a surgeon who is part of an integrated weight management program (see definition below) approved by Priority Health that will provide guidance concerning the necessary dietary regimen, appropriate physical activity, and behavioral and social support both prior to and after the surgical procedure.
   
3. Pre-operative care and evaluation – all of the following must be met:
   1. Complete medical evaluation by PCP or other physician:
   2. Evidence that all other alternatives have been discussed with and offered to patient, and that all reasonable non-surgical options have been tried. The requirement includes active participation in a medically supervised program as outlined above for at least six months.
   3. Preoperative psychological evaluation. The psychological evaluation must include an assessment of the patient’s likelihood of compliance to post-operative demands. The results of the assessment must be communicated to Priority Health for review by the medical director for a final authorization decision.
      
4. Weight criteria – Member must meet “a” or “b”:
   1. Body Mass Index > 40, and one of the following:
      • One acutely life-threatening co-morbidity (e.g. uncontrolled diabetes mellitus or severe cardiopulmonary condition), or
      • Two life-threatening co-morbidities, one of which is poorly controlled diabetes mellitus on standard therapy. Other co-morbidities may include: hypertension that is inadequately controlled with conventional treatment, uncontrolled hyperlipidemia, or sleep apnea uncontrolled with CPAP.
   2. Body Mass Index > 55, with one or more serious co-morbidities directly related to obesity. If this criterion is met, criterion 3b will not apply.
5. Absence of surgical contraindications such as:
   1. Pregnancy/lactation
   2. Severe psychopathology
   3. Medical conditions that make patient a prohibitive risk
   4. Terminal disease

Limitations:

Roux-en-y gastrojejunostomy is the only bariatric procedure that will be authorized.

Coverage for surgical treatment is limited to a lifetime maximum benefit of one bariatric procedure, even if a previous procedure was covered by another insurer.

Priority Health claims that all medical options for losing weight must be tried prior to surgical intervention. Priority Health believes that “…co-morbidities that are related to an obesity diagnosis should be treated non-surgically, if at all possible, and, if such co-morbidities can be controlled by less invasive means than bariatiric surgery, bariatric surgery should not be seen as the treatment of choice for such co-morbidities… .”

The Priority Health June 21, 2002, final adverse determination letter simply noted Petitioner did not meet its medical criteria for bariatric surgery.

IRO Review

A practicing, board-certified General Surgeon reviewed this matter for the IRO. The IRO physician has experience/qualifications in treating patients with medical conditions similar to Petitioner’s. The physician recommended reversing Priority Health’s denial of coverage for gastric bypass surgery.

The IRO physician indicated that current literature showed almost no long term success with the very low calorie diet approach used by Priority Health in its medically supervised diet program. The IRO physician pointed out that the 1991 National Institutes of Health Consensus Conference on Treatment of Morbid Obesity concluded that the morbidly obese were different from the simply obese. In particular, only 2-3% of them would maintain the weight loss achieved in any medically supervised diet plan.

The expert physician acknowledged Priority Health’s policy that co-morbidities should be medically treated unless shown to be “life threatening.” The expert indicated that while symptoms can be controlled for some patients, the disease process resulting from them gradually worsens producing disability or disease that cannot be remedied in the long run. The physician believes bariatric surgery is very effective in producing long-term weight loss and resolves co-morbidities in morbidly obese patients.

The expert physician also commented on Priority Health’s position regarding co-morbidities. In particular, the expert believes Priority Health’s position is shortsighted because the treatment of the co-morbidities eventually becomes quite expensive, and the patient bears most of this burden.
The IRO physician believes Petitioner has established an adequate history of medically supervised weight loss programs. She experienced the typical early success, but long-term failure with the programs. The National Institutes of Health (NIH) report that morbidly obese people have only a 2-3% chance of successfully achieving long-term weight loss in such programs. As a result, the IRO physician concluded that Priority Health’s requirement that Petitioner must first complete a medically supervised weight loss program is neither a reasonable nor effective health management requirement.

The expert physician noted the current NIH criterion regarding weigh loss programs. The physician stated, “…before a patient undergoes surgery, she should be knowledgeable about nutritional issues, and she should have tried and failed reasonable diet and exercise approaches to weight loss.” The IRO physician concluded that Petitioner “clearly demonstrates fulfillment of this criterion.”

The IRO physician further stated that Priority Health’s approach requiring life-threatening co-morbidities (except for BMI greater than 55) is a limitation that is not supported by the current literature. The physician believed Priority Health should develop a more appropriate response to co-morbidities because, according to XXXXXXXXX, M.D., “It can be stated with assurance that morbid obesity is second only to cigarette smoking as the underlying cause of death in the United States.”

Commissioner’s Review

The Commissioner carefully reviewed the file materials and the arguments presented by the parties in this matter. The Priority Health final adverse determination and its Certificate of Coverage guide the analysis in this matter. The final adverse determination was stated in general terms. It said: “Member does not meet Priority Health’s medical criteria for coverage of the surgical approach to weight loss.” In light of the non-specific nature of the final adverse determination, the Commissioner shall focus on the two main points noted by the IRO. First, whether Petitioner’s attempts at weight loss were sufficient. Second, whether Petitioner demonstrated sufficient co-morbidities.

1. Attempts at Weight Loss

Priority Health’s Certificate of Coverage addresses the criterion requiring failed attempts at weight loss programs. It says the patient must have evidence of at least six months of supervised medical treatment that has failed. The case file contains evidence that Petitioner was under the medical care of Dr. XXXX from XXXX through XXXX for weight loss. He prescribed appetite suppressants, vitamin injections and weight counseling.
In addition, in XXXX and XXXX Petitioner treated with Dr. XXXXXXX for weight loss. The treatment was similar to that performed by Dr. XXXX. These attempts at medically supervised weight loss are sufficient to meet the requirement stated in the Priority Health Certificate.

2. Evidence of Co-morbidities

Priority Health’s Certificate of Coverage specifies that a member must demonstrate significant co-morbid conditions. For a patient with a BMI between 40 and 55 (like Petitioner) one must have either: a) one acutely life-threatening co-morbidity, or b) two life-threatening co-morbidities, one of which is poorly controlled diabetes mellitus on standard therapy. These criteria are very conservative and the subject of criticism by the expert physician. The physician noted Priority Health’s standard was shortsighted because continual treatment of significant co-morbidities is financially costly and it takes a great physical toll on the patient. The expert also believed Priority Health should develop a more appropriate response to co-morbidities.

The primary criticism against Priority Health’s co-morbidity standard focuses on the term “life-threatening.” The expert believes this high standard is not supported by mainstream medical literature. Perhaps the most widely accepted medical statement came from the 1991National Institutes of Health (NIH) Consensus Conference on Treatment of Morbid Obesity. This Conference produced practice guidelines for bariatric surgery. They addressed co-morbidities by noting:

Patients whose BMI exceeds 40 are potential candidates for surgery if they strongly desire substantial weight loss, because obesity severely impairs the quality of their lives. They must clearly and realistically understand how their lives may change after operation.

* * *

Other possible indications for patients with BMI’s between 35 and 40 include obesity-induced physical problems interfering with lifestyle (e.g., joint disease treatable but for the obesity, or body size problems precluding or severely interfering with employment, family function, and ambulation). [emphasis added]

The NIH text notes a patient may be a candidate for surgery when obesity-related physical problems interfere with lifestyle. This statement is far more relaxed than the Priority Health standard. It does not use the term “life-threatening” co-morbidities. It is the standard recommended by the expert physician in this case.

The analysis now focuses on whether Priority Health’s “life-threatening” co-morbidity standard is reasonable. Although Michigan health plans (such as Priority Health) have great latitude in establishing standards for bariatric surgery, they must provide such basic health service when medically indicated and in a manner that is not so limiting as to practically eliminate nearly all patients as potential candidates. The “life-threatening” co-morbidity standard requires a patient to be so ill from the co-morbid condition that bariatric surgery becomes too dangerous.

Moreover, as a matter of public policy, the Commissioner is concerned with a health plan provision that grants a particular coverage or medical procedure, but limits its availability to a mere fraction of members who are typically too ill to use it. Such limitation creates the practical effect of disguising a total exclusion. The Commissioner is not accusing Priority Health of any improper tactics, but its “life-threatening” co-morbidity requirement creates a virtual exclusion in a case where the member is indeed a legitimate candidate for the bariatric surgery. The Commissioner therefore finds the “life-threatening” co-morbidity requirement to be unreasonable in this matter.

In the case at hand, the Commissioner will apply the NIH co-morbidity standard. There is ample evidence Petitioner has a number of serious medical problems related to her morbid obesity. She has sleep apnea, hyperlidemia, hypertension, gastroesophageal reflux disease, and degenerative joint disease. These co-morbid conditions are related to Petitioner’s obesity and they clearly interfere with her lifestyle. She has met the NIH standards regarding co-morbidities.

V
ORDER

The Commissioner reverses Priority Health’s June 21, 2001, final adverse determination. Priority Health must authorize and pay for bariatric surgery for Petitioner.

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.