Month  Date  Year 

Your Insurance Company’s Name 

PO Box

City, State, Zipcode

Telephone #: (xxx) xxx-xxxx

Fax #: (xxx) xxx-xxxx

 

IN REFERENCE TO:         APPEAL OF DENIAL OF SERVICE FOR

Request for Pre-approval for Laparoscopic Gastric Bypass 

(CPT-4 Code = 43846)or open use code________________

                                    As Treatment for Morbid Obesity / Clinically Severe Obesity 

(ICD-9 Code = 278.01)

Member:                       Ms. Your First Name  Your Last Name                                     Your Address                                                                                    

MEMBER ID #:                    

Note: (Patient meets both Milliman and Robertson and U.S. Federal Guidelines -

1.        Milliman and Robertson Guidelines for the Gastric Surgery for Clinically Severe Obesity 15 CPT-4: 43842, 43846 and 

2.        U.S. Federal Clinical Practice Guidelines for the Treatment of Obesity 16 set down in National Institutes of Health Consensus Conference.  Released June 17, 1998, the Federal guidelines on the obesity were by the National Heart, Lung, and Blood Institute (NHLBI), in cooperation with the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK)). 

 

Dear Sir or Madam:

I am writing to appeal the denial of service request prior approval for laparoscopic gastric bypass for Ms. Your First Name  Your Last Name .  Generally denial of service for gastric bypass by insurance companies are of one of two types claims that gastric bypass is an non-covered service (usually through contract exclusion) or a determination of lack of medical necessity.  In the following detailed appeal I will provide compelling evidence that in Ms. Your Last Name ’s case neither is a

reasonable or rational justification for the denial of the service for this patient.

First I will deal in detail for the issue of medical necessity. Obesity is probably the most common chronic disease in our country. As much as 33% of U.S. the population is over-weight, with the percentage higher among women and minorities. Obesity has been unequivocally been shown to increase the risk of hypertension, coronary artery disease, non-insulin-dependent diabetes mellitus, gallbladder disease, sleep apnea, gout, and certain types of cancer (e.g., prostate cancer). Although obesity is a chronic disease with adverse health consequences, in our society it carries such a stigma that many people -- including health professionals -- don't believe that the obese person deserves any sympathy at all, let alone medical treatment for the condition. Obesity is a physical disability that is intensely stigmatized in our society. Studies have shown a striking inverse relationship between obesity and socioeconomic status, especially among women. Being overweight has a particularly deleterious effect on socioeconomic attainment. The relationship between overweight (body-mass index above the 95th percentile for age and sex -- which in many cases is not even obese) and educational attainment, marital status, household income, and self-esteem in 10,039 randomly selected individuals aged 16 to 24 years of age. To assess the social consequences of obesity, the investigators compared disability from obesity with that associated with other forms of chronic illness. 

The prevalence of overweight was 3.4% in males and 3.0% in females (5.8% in black females versus 2.5% in non-Hispanic whites). Seven years later, the overweight women were less educated (0.3 fewer years of school), less likely to be married (10%), had lower household incomes ($6,710 less), and had 10% higher rates of household poverty than women who had not been overweight, independent of baseline socioeconomic status and aptitude test scores. Similar trends were found among the men. It has been said that obesity is due to low socioeconomic status, yet the results of this study indicate that the inverse is also true: low socioeconomic status is caused by obesity. 

Subjects with chronic health problems who were not obese did not suffer from the same low attainments. Obesity is a stigma that results in discrimination is the explanation for this social disability. It is the public nature of obesity that invites discrimination. (Gortmaker SL et al. N Engl J Med. 1993: 329: 1008-1012.) In a recent issue of JAMA, Robert Yaes wrote, "Certainly, at a time when it is fashionable to claim that alcoholism and drug abuse are illnesses whose treatment should be covered by health insurance, it is inconsistent to blame fat people for their own condition." Yaes, a physician who is himself obese, concluded, "In our culture, obesity is perceived as more of a cosmetic problem than a medical problem.“ (Yaes RJ. JAMA. 1993; 270: 1423.)  

We hold these truths to be self evident that all are created equal and are deserving of our compassion. This includes obese persons who might be regarded as disabled or handicapped. The importance of a person does not reside in the functioning of the body or mind or in the person's ability to contribute to society, but rather in his or her intrinsic humanity.

All people, including obese persons, are equitable treatment for their illness. The role of the physician and the responsibility of the

insurance company are to provide fair and equal appropriate medical care to the individuals for whom they are responsible. Our response should be characterized by an attitude of compassion, free of condescension and marked by action. It is our combined responsibility to serve our patients with compassion.  

Poking fun at overweight people is routine for some, and discrimination against the overweight is common.  In the United States, heavy people frequently are targets of ridicule.  "I don't feel there's a reason for anybody to let themselves go that badly," one woman said. Another woman said it makes her laugh.  "Right now, it seems more acceptable to talk about hatred of weight than any other factor like gender, race, ethnicity, etc.," said Professor Esther Rothblum, a Stanford University researcher. "Some people have said it seems to be our last area where it's absolutely legitimate to discriminate."  It's not easy to challenge weight discrimination. In Michigan such discrimination is outlawed. Everywhere else, alleged victims are turning to another tool, the Americans with Disabilities Act, which has been used successfully to support that obesity is a disability. 

The Medical Necessity for the Surgical Treatment of Ms. Your Last Name ’s Clinically Severe Obesity

As I stated in my original letter Ms. Your Last Name  is a 58 year old White Female. Ms. Your Last Name  is 5 feet 6 inches tall and weighs 310 lbs.  This gives her a Body Mass Index (BMI) of 50.  

The body mass index is calculated by dividing a person's weight in kilograms by their height in meters squared. When a man's BMI is over 27.8, or woman's exceeds 27.3, that person is considered obese. The degree of obesity associated with a particular BMI ranges from mild obesity at a BMI near 27, moderate obesity at a BMI between 27 - 30, severe obesity at 30 - 35, to very severe obesity for patients with a BMI of 40 or greater 1,2,3.  Therefore, Ms. Your Last Name  may be classified as being very severely obese. The major health risks of obesity increase in a curvilinear relationship, with prevalences increasing progressively and disproportionately with increasing weight. Weight increases beginning during adulthood and continuing for many years have the greatest adverse affects. The annual number of deaths in America attributable to obesity has been estimated to be 300,000 deaths per year4, 5.  With her abnormally high BMI Ms. Your Last Name  is at an estimated 204 percent increased risk of death at her present weight. 

 Ms. Your Last Name   has tried several diets to lose weight. The outcome of these efforts was that Ms. Your Last Name  lost some amount of weight but then regained all of the lost weight and more. The patient states that she has tried numerous weight loss programs including TOPS, Weight Watchers, Nutrisystems, Physician's Weight Loss Centers, Metabolic Research Center, Texas Nutrition Center, Weight Loss by Lois, Optifast, Metracal, AYDS, Slim Fast, Herbs, Dexamyl, Fastin, Fen-Phen, Redux, Pondimin, Meridia, many low fat diets, Bible programs, Hypnosis, and every popular diet she has heard about.  She states that on every diet that she has tried, she has lost 5-50 pounds but as soon as she stoppe

In addition, Ms. Your Last Name   has tried to exercise to lose weight.  Unfortunately, there was only minimal success and size has prevented her

from continuing these efforts.  The patient has participated in many kinds of exercise programs including walking, gym programs, bicycle riding, weight lifting, water aerobics, and home exercise machines.    Ms. Your Last Name   has tried counseling and support groups to lose weight, again with limited success.  Ms. Your Last Name  has been treated with medications in an attempt to control her obesity. The results of drug treatment were minimally effective. She states that she has tried Redux, Pondimin, fen-phen, and Meridia.  The patient would lose weight as long as she was tThe appetite suppressants fenfluramine (Pondimin) and dexfenfluramine (Redux) have now been withdrawn from the market. The diet drugs were taken off the market in response to reports that they were linked with serious heart valve damage and pulmonary hypertension, a lung disorder. 

Obesity interferes with Ms. Your Last Name 's performance of the normal and routine tasks of daily living, such as work, household tasks and recreation.  Mrs. Your Last Name  states that she has trouble doing anything that requires her to be on her feet.  She has trouble "squeezing" into the seats in planes and in some cars.  She cannot hold her grandchildren in her lap and rock or read to them because she has no lap.  The patient states that she has trouble climbing stairs, cooking for company, or cooking holiday meals.    Ms. Your Last Name  suffers from dyspnea on exertion related to her obesity.  Obesity limits her ability to walk, climb stairs or to participate in normal activities that require anything beyond minimal effort.   The shortness of breath occurs when she climbs stairs or when she is rushing. Ms. Your Last Name  suffers from sleep apnea related to her obesity.  She states that she was diagnosed with sleep apnea at a sleep center last year.  She has tried a C-PAP machine for three months but could not get accustomed to it.  She is now wearing a mouthpiece which helps some, but does not control the sleep apnea. The typical sleep apnea patient is overweight. Sufferers often experience daytime sleepiness, and impaired memory and concentration. Complications arising from sleep apnea can include high blood pressure, increased risk of heart attacks and stroke, and other types of heart diseases such as arrhythmias and sudden death. Ms. Your Last Name  has Thyroid disease.  Ms. Your Last Name  also has arthritis by report.  She is currently taking the following medications:  Cytomel, Lasix, Avapro, Ortho-Est, EC=Naprosyn, Cyclobenzapr, Trazodone, Prilosec, Imitrix shots as needed for migraines, and other vitamins and herb supplements.

FAMILY HISTORY

Numerous studies have shown that morbid obesity has a major genetic component. While common wisdom has held that obesity results from 'gluttony and sloth', a number of studies have indicated physiological causes of underlying the pathogenesis of obesity.  Several twin and adoption studies as well as animal models have confirmed obesity’s genetic constituent.  Studies by Comuzzie et al (14) show convincing evidence of linkage of a region of chromosome 2 with serum leptin levels and indicate that this gene likely contains a human obesity gene. Recently, the obese gene in the ob/ob mouse was cloned, along with its human homologue. The specific production of the obese protein by adipose tissue suggested that it may function in a feedback loop from fat tissue to the hypothalamus to control energy intake and/or energy expenditure, and that it may play a role in the pathogenesis of human obesity. The patient has a marked family history of obesity.   Mrs. Your Last Name 

states that her mother has been 10-40 pounds overweight, her paternal grandfather was 50 pounds overweight, her brother and son are about 40 pounds overweight, and a great aunt and cousins were/are overweight.  

Mrs. Your Last Name  has had the following surgeries:  1957-appendectomy; 1964-Labyrenthitis; 1969-D&C; 1970-vaginal hysterectomy; 1973&1977-Laminectomies; 1985-migraines; 1988-heel spur removal. The patient has a family history of hypertension.  Diabetes

Economic costs of Obesity

Medical researchers calculate that 88 to 97 percent of all cases of Type II (non-insulin dependent) diabetes, 57 to 70 percent of coronary heart disease cases, 11 percent of breast cancers, and 10 percent of colon cancers that are diagnosed in overweight Americans are attributable to obesity. Further, about a third of all cases of hypertension are thought to be due to obesity, while 70 percent of gallstone cases are attributable to being overweight. What's more, unhealthy weight is associated with osteoarthritis and gout, along with a number of other disabling conditions. Overweight is one of the most pervasive health risks affecting Americans today and is also a multibillion-dollar drain on the U.S. economy. Medical researchers, using prospective studies and national health statistics, put the cost of obesity at more than $100 billion annually. This includes $45.8 billion in direct costs, such as hospital care and physician services-or 6.8 percent of all health care costs. Further, obesity costs the economy $18.9 billion a year for such indirect costs as lost output caused by death and disability from weight-related diseases. The number of workdays lost to illness attributable to obesity amounts to 53.6 million days per year. This lost productivity costs employers an additional $4.06 billion annually. 

These costs, while staggering, can clearly be reduced with aggressive treatment. Central to this effort is the need to change public perceptions of obesity from an appearance problem to a disease that can be treated and successfully managed. The obese individual has functional impairment in the activities of daily living. This dysfunction is related to sleep, recreation, work and social interactions. Obese patients also have physical incapacity due to back and joint problems and shortness of breath. This contributes to their proneness to fatal accidents. In the severely obese, there is an increased incidence of absenteeism and unemployment. Discrimination against obese persons is common in both academic and work settings. Obesity has been shown to directly increase the costs of health care.  In an article in the March 9, 1998, issue of the Archives of Internal Medicine 17,118 members of the Kaiser Permenente Medical Care Program were studied to determine the association between body fatness and health care costs. The results showed those patients with BMIs greater than 30 had a 2.4 times greater risk for increased inpatient and outpatient costs than patients with BMIs under 30.  For patients with BMIs greater than 30, the study also showed increases in health care costs related to diabetes and hypertension. 

A recent article in Obesity Research calculated the cost to society for obesity at $99.2 billion in 1995. That estimate did not factor in the $33 billion spent each year on diet products and services, which had been calculated into previous cost estimates. Even without these diet-related costs, the new calculations find that obesity now accounts for

$51.6 billion in direct costs, such as hospital care and physician services — or 5.7 percent of all health care costs. Further, the new estimates put the indirect costs of obesity, including lost work days and restricted activity, at $47.56 billion a year, which is comparable to the impact of cigarette smoking. The number of workdays lost in illness attributable to obesity amounted to 58.5 million in 1995. This lost productivity cost employers $5.7 billion in that one year alone. Besides providing updated figures on the costs of obesity, the new estimates also provide compelling evidence that expenditures for unhealthy weight continue to escalate. At the same time, lost work days jumped from 52.5 million in 1988 to 58.5 million in 1995 and physician office visits went up by 88 percent — from 42.9 million to 81.2 million in 1994."If there was any question that obesity has reached crisis proportions in this country, these new cost estimates should put these doubts to rest. Obesity is now a pervasive public health problem that can no longer be overlooked," said Dr. C. Everett Koop.  Because there is a clear link between obesity and many of the major diseases affecting Americans, the economists calculated the costs attributable to obesity for a range of conditions. Using 1995 data, these costs include: ·  $63 billion for Type II diabetes -- $32.4 billion in direct costs and $30.74 in indirect costs ·  $6.99 billion in direct costs for coronary heart disease ·  $2.59 billion in direct expenditures and $151.3 million in indirect expenses for gallbladder disease ·  $840 million in direct expenditures and $1.48 billion in indirect costs for breast cancer ·  $286 million in direct costs and $504 million in indirect costs for endometrial cancer ·  $1.01 billion in direct expenses and $1.78 billion in direct costs for colon cancer ·  $4.3 billion in direct costs and $14.01 billion in indirect expenses for osteoarthritis "The economic impact of obesity is now comparable to that of diabetes and ranks along with what this nation spends on heart disease and hypertension," said Dr. Koop. What is especially disturbing is that women are paying significantly higher costs for their obesity, both in terms of health expenditures and their quality of life. In terms of physician office visits, the health economists found that women spend significantly more time and money seeing a doctor for obesity-related conditions than do men. Specifically, in 1994, 67 percent of office visits were for obese women. The researchers further found that 70 percent of lost work days were taken by obese women and these women accounted for 89 percent of total restricted activity days and 98 percent of total bed days in 1994. At the same time, the economists found that obese women are disproportionately afflicted by diseases associated with obesity — diseases that worsen as the degree of obesity increases or improve as the obesity is treated. Specifically, the economists found that 63.5 percent of the cases of Type II diabetes were diagnosed in obese women. Further, women at an unhealthy weight had a two-fold greater risk for developing osteoarthritis, especially in the knee.  According to Barbara J. Moore, Ph.D. 

Noninsulin-dependent diabetes mellitus (NIDDM)

Even moderate obesity, particularly abdominal obesity, can increase the risk of non-insulin dependent diabetes mellitus (NIDDM) ten-fold. Ms. Your Last Name  already has diabetes in association with her obesity.  For years, the patient reports, she had trouble with low blood sugar and had dizzy and fainting spells.  Twelve years ago, during a hospitalization visit for gallbladder and migraine problems, it was discovered that she had somewhat elevated blood sugar.  She followed a

strict diet for this. In addition to being a morbid and lethal disease diabetes has been shown to be very expensive to care for.  Rubin et. al. in a study in 1992 (13) showed that yearly health care expenditures for confirmed diabetics ($11,157) were more than four times greater than for nondiabetics. In 1992, diabetics constituted 4.5% of the U.S. population but accounted for 14.6% of total U.S. health care expenditures ($105 billion). Confirmed diabetics constituted 3.1% of the U.S. population but accounted for 11.9% of total U.S. health care expenditures ($85 billion). Health care expenditures for people with diabetes constituted about one in seven health care dollars spent in 1992. Health care insurers should take note of these findings.  Gastric Bypass has been shown to cure diabetes and thus it is cost effective for insurers to pay for surgery to cure diabetes and prevent its complications.     Nearly 80 percent of patients with NIDDM are obese.9 Much of the estimated $11.3 billion dollars spent each year to diagnose, treat, and manage NIDDM, including treatment for diabetic ketoacidosis, diabetic coma, diabetic eye disease, and diabetic kidney disease, stems from obesity. 9 Weight reduction in the obese NIDDM will lead to improvement of glycemic control as well as improvement of concomitant medical problems such as hypertension or hyperlipidemia.

Digestive and Gallbladder disease

Tha patient states that she has a hiatal hernia and fairly severe reflux.  She had also, in past years, had incidents of vomiting small amounts of blood and bloody bowel movements.  She now takes Prilosec to keep this under control.  The incidence of symptomatic gallstones soars as a person's body mass index (BMI) goes beyond 29.10 Nearly $2.4 billion dollars or 30 percent of the total amount spent annually on gallbladder disease and gallbladder surgery are related to obesity.10 By age 60, nearly one-third of obese women can be expected to have developed gall bladder disease. She states that she has had several "attacks" over the years that her doctor feels are gall bladder attacks, but tests never show gall stones or sediment.  According to her symptoms, however, her doctor still feels that she is having gall bladder attacks.

Heart disease

Obesity is a well-recognized risk factor for heart disease. For each 10% increase in body weight there is approximately a 20% increase in the incidence of coronary artery disease. For every 10% increase in relative body weight, systolic blood pressure increases 6.5 mm/Hg, plasma cholesterol 12 mg/dL and fasting blood glucose 2 mg/dL. Nearly 70 percent of the diagnosed cases of cardiovascular disease are related to obesity. Obesity raises cholesterol and triglyceride levels, raises blood pressure, lowers HDL ("good cholesterol"), and can cause the onset of diabetes. By losing weight, obese people can improve their heart abnormalities, which can help reduce their risk for heart disease. Obesity accounts for $22.2 billion, or 19 percent, of the total cost of heart disease10.  In a study of obese patients treated with gastric surgery for weight loss. Obese patients had higher blood pressure levels, greater left ventricular mass, and increased relative wall thickness than non-obese patients. According to an article in The Journal of the American Medical Association (JAMA). Samuel Z. Goldhaber, M.D., from Brigham and Women's Hospital, Boston, Mass., and colleagues studied 112,822 patients who were free of diagnosed heart disease to

assess the relationship of body mass index (BMI). The authors write: "In this large prospective study … increased BMI was associated with a strong and statistically significant elevated risk of pulmonary embolism. The level of risk increased as the BMI increased.” Obese women with a BMI of 29 or more were nearly three times as likely to suffer a pulmonary embolism than non-obese women.

Studies have shown that the more weight lost by obese patients, the greater the improvements in heart abnormalities. After obese patients lost weight, left ventricular wall thickness decreased significantly.   Researchers have found that weight loss was better at improving left ventricular disease than even blood pressure reduction. Rather than focusing on reducing blood pressure levels, obese people should focus on weight loss, an approach that may improve abnormalities of the heart. Weight loss therefore should be considered a primary goal for obese patients trying to improve the condition of their heart. This study shows what clinicians have recognized for a long time, that to prevent or improve abnormal heart structure in obese people, weight control should be the primary goal11. 

High blood pressure

Hypertension is commonly associated with of obesity. In overweight young adults, age 20-45, the prevalence of hypertension is 6 times that of their normal-weight peers. Obesity more than doubles a patient’s chances of developing high blood pressure, which affects approximately 26 percent of obese American men and women. The annual cost of obesity-related high blood pressure is close to $1.5 billion dollars.10  Studies also demonstrate that weight loss results in decreased blood pressure12.  Ms. Your Last Name  has been diagnosed as having high blood pressure and is being treated. The patient reports that she has had moderately high or borderline high blood pressure since her 30's.  It is controlled by medication.  

Obesity and Pulmonary Abnormalities

There are several abnormalities in pulmonary function in obese individuals. The most severe are patients with so-called Pickwickian syndrome, or the obesity-hypoventilation syndrome, which is characterized by somnolence and hypoventilation; it eventually leads to cor pulmonale. The reports significant shortness of breath and dyspnea on exertion.  The patient reports the she has sleep apnea.     In all obese patients there is a uniform decrease in expiratory reserve volume and a tendency to reduction in all lung volumes. A low maximum rate of voluntary ventilation is also present. As an individual becomes more obese, the muscular work required for ventilation increases. In addition, respiratory muscles may not function normally in obese individuals. 

Obesity and Arthritis

The patient reports severe joint pains related to her obesity.   Mrs. Your Last Name  states that she seems to have osteoarthritis in her knees and feet.  Her hands get sore and her finger joints are enlarging; however, her rheumatologist says that it is not arthritis.  She has been diagnosed with Fibromyalgia which mimics arthritis.  She also has carpal tunnel in both wrists.  The prevalence of gout goes up dramatically in

obese patients.   Body weight adds trauma to weight bearing joints and is a major predictor of osteoarthritis. This is a mechanical problem and not a metabolic one. Weight loss will markedly decrease the chance of developing osteoarthritis. 

cancer

Almost half of breast cancer cases are diagnosed among obese women.  An estimated 42 percent of colon cancer cases are diagnosed among obese individuals. Obesity-related breast cancer and colon cancer account for 2.5 percent of the total costs of cancer, or $1.9 billion dollars, annually.10 Studies have shown that obesity is linked to pancreatic cancer. In addition to increasing the risk of diabetes and heart disease, obesity also appears to increase the risk for pancreatic cancer--by as much as 50 to 60%--according to the results of a study reported in the Journal of the National Cancer Institute (Nov. 18, '98). The finding--which for the first time revealed a significant interaction between body mass index and total caloric intake in relation to pancreatic cancer risk--was true, regardless of gender, for both blacks and whites. Researchers at the National Cancer Institute (NCI) became curious about the possibility of a link between obesity and digestive tract cancers after noticing that between 1976 and 1991 the number of overweight adults in the U.S. increased from 25 percent to 33 percent while the prevalence of esophageal and gastric cancers also rose during the same period.  They examined 589 people with esophageal and gastric cancer and found that rising body mass index (BMI) is, indeed, connected to these cancers. The link was especially strong for younger people and non-smokers.

Obesity and Endocrine Abnormalities

Obese women, especially those with upper body obesity, show more irregularity in menstrual cycles as well as greater frequency of other menstrual abnormalities than normal weight women. They also have more problems during pregnancy with an increased frequency of toxemia and hypertension.  

Indirect costs:

Americans spend an additional $33 billion dollars annually on weight-reduction products and services, including diet foods, products, and programs. Most of these expenditures, as is evidenced in Ms. Your Last Name ’s case, are not effective.  Rather it can expected that Ms.Your Last Name  will continue to gain weight over the ensuing years and add to her present list of obesity associated illnesses.  

claim that gastric bypass is an non-covered service

Frequently treatment of obesity is denied based upon the fact that it is specifically excluded from the member’s contract.  Legal review of this issue of allowing insurance companies to exclude certain types of care from the contract have been addressed in the courts and clearly it is within the purview of the company to withhold or limit coverage for certain types of care.  Thus in it regulations for Title III 

The US Equal Opportunity Commission, responding to complaints of widespread discrimination against obese persons, has now declared

obesity a protected category under the federal Americans With Disabilities Act.

The Americans With Disabilities Act (ADA) was enacted in 1990 as providing broad protection against disability discrimination, including discrimination against individuals infected with the human immunodeficiency virus (HIV). What Is the Americans with Disabilities Act?

The Americans with Disabilities Act (ADA) is landmark civil rights legislation protecting America's 49 million citizens with disabilities against discrimination based upon that disability. 

The ADA, passed by large bipartisan majorities in both houses of Congress, was signed into law by then President Bush in 1990. It prohibits discrimination on the basis of disability in employment, services rendered by state and local government, places of public accommodation, transportation and telecommunications. 

Like Section 503 and Section 504 of the 1973 Rehabilitation Act, the ADA requires employers and state and local government agencies to accommodate the individual needs of persons with disabilities when necessary to ensure equal opportunity.

In the ADA act the congress found that:

“        (1) Some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;

        (2) Historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

        (3) Discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

        (4) Unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;

        (5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and  communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

        (6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

        (7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;

        (8) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and

        (9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free  society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

    (b) Purpose.--It is the purpose of this Act--

        (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

        (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

        (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and

        (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.”

Americans with Disabilities Act ADA Title III Technical Assistance Manual, Covering Public Accommodations and Commercial Facilities provided by the Department of Justice states that “Insurance offices are places of public accommodation and, as such, may not discriminate on the basis of disability in the sale of insurance contracts or in the terms or conditions of the insurance contracts they offer. Because of the nature of the insurance business, however, consideration of disability in the sale of insurance contracts does not always constitute "discrimination." An insurer or other public accommodation may underwrite, classify, or administer risks that are based on or not inconsistent with State law, provided that such practices are not used to evade the purposes of the ADA. 

Thus, a public accommodation may offer a plan that limits certain kinds of coverage based on classification of risk, but may not refuse to insure, or refuse to continue to insure, or limit the amount, extent, or kind of coverage available to an individual, or charge a different rate for the same coverage solely because of a physical or mental impairment, except where the refusal, limitation, or rate differential is based on sound actuarial principles or is related to actual or reasonably anticipated experience. The ADA, therefore, does not prohibit use of legitimate actuarial considerations to justify differential treatment of individuals with disabilities in insurance.”

What Kinds of Disabilities "Qualify" Under ADA?

The ADA broadly defines the term disability to include the following: one who has a physical or mental impairment that substantially limits one or more major life activities. Any physical or mental condition which significantly limits at least one major life activity, such as caring for oneself, eating, dressing, learning, working, walking and seeing, is covered as a disability under the ADA. 

There are two types of disability discrimination: a) disparate treatment, which discriminates directly and openly on the basis of the disability; or b) disparate impact, differential treatment which indirectly discriminates by its effect on persons with disabilities.

In North Carolina the Department of Administration houses the N.C. Office on the Americans with Disabilities Act.  The North Carolina Office on the Americans with Disabilities Act is headed by Robert Owens, coordinator.  The N.C. General Assembly created the North Carolina Office on the Americans with Disabilities Act in 1994 to provide consultative services to state and local governments, business and industry in complying with the Americans with Disabilities Act (ADA) of 1990.  The office is promoting compliance with the ADA through training, technical assistance and the establishment of an alternative dispute resolution process.  

Obesity Discrimination Claims Under State Law

 

The New York Court of Appeals held that "morbid obesity" was an impairment under New York’s Human Rights Law in State Division of Human Rights v. Xerox Corp., 65 N.Y.2d 213 (1985). The plaintiff’s morbid obesity diagnosis satisfied the Human Rights Law requirement. Additionally diagnoses of hypertension, coronary insufficiency, heart palpitations, shortness of breath, and twisted and bruised ankles, when combined with the doctor’s morbid obesity diagnosis, satisfied the New York City law’s disability requirement.

ADA Impact on Health Plans Twelve Interim Rules Pending Regulatory Guidance 

The Equal Employment Opportunity Commission (EEOC) has recently indicated that it intends to issue proposed guidelines on the application of the Americans With Disabilities Act (ADA) to various health insurance provisions. The following general principles have emerged: 

Equal Access to Health Benefits - It must provide the same coverage to its employees with disabilities. Employees with disabilities must be given equal access to whatever insurance or other benefit plans the employer provides. 

Denying Health Insurance - An employer cannot deny insurance to an individual with a disability or subject an individual with a disability to different terms or conditions of insurance, based on disability alone, if the disability does not pose increased insurance risks. Nor may the employer enter into any contract or agreement with an insurance company or other entity that has such an effect. 

Pre-existing Condition Clauses - The ADA does not affect pre-existing condition clauses included in health insurance policies offered by employers. Thus, employers may continue to offer policies that contain such clauses, even if they adversely affect individuals with disabilities, so long as the clauses are not used as a subterfuge to evade the purposes of the ADA. 

Limitation on Procedures and Treatments - It is permissible under the ADA for an employer to offer an insurance policy that limits coverage for certain procedures or treatments (e.g., blood transfusions, x-rays, etc.) to a specified number per year, even if such restrictions adversely affect individuals with disabilities, so long as they are uniformly applied to all insured individuals, regardless of disabilities. 

Lower Coverage for Mental/Nervous Conditions - Health-related insurance distinctions that are not based on disability, and that are applied equally to all insured employees (e.g., lower level of benefits for mental/nervous conditions than for physical conditions), do not discriminate on the basis of disability and so do not violate the ADA. 

Singling Out Particular Disabilities - In contrast, however, health-related insurance distinctions that are based on disability may violate the ADA. A term or provision is "disability-based," according to the EEOC, if it singles out a particular disability (e.g., deafness, AIDS, schizophrenia), a discrete group of disabilities (e.g., cancers, muscular dystrophies, kidney diseases) or disability in general (e.g., non-coverage of all conditions that substantially limit a major life activity). 

Caps on Benefits for Certain Illnesses - The EEOC has taken the position that an employee benefit plan that limits or caps benefits for certain illnesses and diseases, such as AIDS, is unlawful disability discrimination under the ADA. The EEOC has filed a number of lawsuits in this area. 

In the years since its enactment the Department of Justice has brought numerous suits that have been designed to enforce this act. The Supreme Court's first case involving HIV and the acquired immunodeficiency syndrome, Bragdon v Abbott, addressed this trend by ruling that a woman with asymptomatic HIV infection is protected from discrimination in accessing dental services. In doing so, the Court endorsed an interpretation of the ADA that is broadly protective for individuals with disabilities. In addition to the ADA, state laws frequently

prohibit disability discrimination and apply to some employers and others not regulated by federal law. A state-by-state survey of those laws demonstrates that, consistent with Bragdon v Abbott, individuals with asymptomatic HIV have widespread protection on the state level. (Disability Discrimination in America HIV/AIDS and Other Health Conditions Lawrence O. Gostin, JD Chai Feldblum, JD David W. Webber, JD JAMA. 1999;281:745-752)

Court Allows Challenge to Health Insurance AIDS Cap – 

As urged by the Department of Justice in an amicus brief, the U.S. District Court for the Northern District of Illinois in Doe v. Mutual of Omaha Insurance Co. ruled that title III prohibits discrimination in the terms and conditions of a health insurance policy against persons with AIDS or Aids Related Complex (ARC). The suit challenges a health insurance policy that contains a maximum lifetime benefit cap for expenses incurred for covered services related to AIDS and ARC of only $25,000 or $100,000 (depending upon the policy) where the same policy provides benefits to a lifetime maximum of $1,000,000 in virtually every other situation. The court, denying defendant s motion to dismiss, ruled that singling out individuals with AIDS or ARC for inferior insurance coverage stated a claim of discrimination under the ADA.

The U.S. Department of Labor Employment Standards AdministrationCode of Federal Regulations Entries from the U.S. Department of Labor

The U.S. Department of Labor sets forth standards designed as federal regulations from the Employment Standards Administration.  In Chapter 60 standard 741.25 of the Code of Federal Regulations the Office of Federal Contract Compliance Programs discrimination is prohibited based upon a person’s disability.  

 

60-741.25 - Health insurance, life insurance and other benefit plans.

 Standard Number: 60-741.25  Standard Title: Health insurance, life insurance and other benefit plans.  SubPart Number: B  SubPart Title: Discrimination Prohibited 

Sec. 60-741.25 Health insurance, life insurance and other benefit plans.

(a) An insurer, hospital, or medical service company, health maintenance organization, or any agent or entity that administers benefit plans, or similar organizations may underwrite risks, classify risks, or administer such risks that are based on or not inconsistent with State law.(b) The contractor may establish, sponsor, observe or administer the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.

(c) The contractor may establish, sponsor, observe, or administer the terms of a bona fide benefit plan that is not subject to State laws that regulate insurance.(d) The contractor may not deny a qualified individual with a disability equal access to insurance or subject a qualified individual with a disability to different terms or conditions of insurance based on disability alone, if the disability does not pose increased risks.(e) The activities described in paragraphs (a), (b) and (c) of this section are permitted unless these activities are used as a subterfuge to evade the purposes of this part.

Thus we can see that the arbitrary exclusion of benefits for the appropriate medically necessary treatment of obesity in the case of Ms. Your Last Name  clearly and unequivocally violates the Americans with Disabilities Act Title III, the Department of Labor Code of Federal Regulations, the EEOC interim Enforcement Guidelines and reasonable standards of fairness.  Similar to the arbitrary and unsupported and unscientific capping of benefits for AIDs treatment that was ruled in violation of the ADA Title III the arbitrary exclusion of benefits for the surgical treatment of o\obesity is based upon bias and overt discrimination against Ms. Your Last Name ’s disability namely her morbid obesity.  It is therefore illegal and is unjustifiable.  According to the EEOC an individual with a disability may not be subject to different terms or conditions of insurance, based on disability alone.  In it’s exclusion of obesity surgery from coverage as a contract exclusion Your Insurance Company’s Name  is violating the spirit and the letter of the ADA Title III.  While it is permissible to create specific limitations and exclusions they may not be specifically related to the disability itself.  “It is permissible under the ADA for an employer to offer an insurance policy that limits coverage for certain procedures or treatments (e.g., blood transfusions, x-rays, etc.) to a specified number per year, even if such restrictions adversely affect individuals with disabilities, so long as they are uniformly applied to all insured individuals, regardless of disabilities.”  In this case exclusion of the surgical treatment of obesity in the contract is obviously not uniformly applied to all individuals but is applied only to those with that disability and therefore is specifically prohibited and should be reversed.  The Act specifically prohibits provisions that single out a disability for limitation.  

This specific exclusion is unquestionably based upon unsupported but widespread opinion that obesity is a failure of character and will power.  That is wrong. It is not at all supported by any medical literature or by anyone knowledgable or expert in the field of the treatment of obesity.  What is true is that each and every expert panel that has been brought together to look at this issue for the NIH to Milliman and Robertson have come to the same conclusion.  Given Ms. Your Last Name ’s medical conditions and weight, obesity surgery is the appropriate treatment.  Thus in every way it can be seen that there is no legal or scientific reason for this denial.  This exclusion is as inappropriate as one that might be based upon Ms. Your Last Name ’s race, gender or religious preference. Ms. Your Last Name  does not have a weak character.  Ms. Your Last Name  is not lazy.  Ms. Your Last Name  suffers from a severe medical illness that has caused her severe disability and has an excellent chance of being cured by a two-night stay in the hospital.  Ms. Your Last Name ’s disease is frequently lethal and denial of treatment is simply not acceptable in this case

because it is obviously based not upon reasonable scientific knowledge.  It is based upon discrimination and mistaken opinion.  We know that because the scientific opinion in the form of the many consensus conferences and medical literature all recommend surgery.  This denial is founded on out of date hearsay and not upon up to date scientific information.  It should be summarily reversed.

Conclusion:

In patients with morbid obesity the recommendation for surgery as the treatment of choice is virtually unanimous. Essentially all scientific studies and medical expert review panels have recommended surgical treatment for clinically severe obesity, including all of the following:   

·         Milliman and Robertson Healthcare Management Guidelines (15)

·         Former U.S. Surgeon General C. Everett Koop, M.D.  

·         American Association of Clinical Endocrinologists (Table 2)

·         National Institutes of Health 

·         The National Heart, Lung, and Blood Institute (NHLBI), a part of the Federal Government's National Institutes of Health. (16) 

·         Mayo Clinic 

·         Johns Hopkins 

·         University of Pennsylvania 

·         University of Texas at Houston 

·         University of Tennessee 

·         American Diabetic Association  

·         American Society for Bariatric Surgery  

·         The Cochrane Library in England 

·         The New England Journal of Medicine 

·         Robert Wood Johnson Medical School 

 

Recommendations for Selecting a Weight-Management Strategy *     Basic treatment with LCD Basic treatment with LCD or VLCD Basic treatment with LCD or VLCD and pharmacotherapy Surgical Treatment 

  BMI > or =25 BMI > or =35 BMI > or =35 BMI >40   Good diet history BMI > or =30 with comorbid conditions BMI > or =30 BMI > or =35 with life-threatening or disabling comorbid condition(s)     Poor diet BMI 27-29 with comorbid conditions Obesity history >5 yr.       Poor diet history No history of alcoholism or major psychiatric disorders         > or =18 yr. Old               

*BMI = body mass index; LCD = low-calorie diet; VLCD = very-low-calorie diet.VLCDs are reserved for non-elderly adults with high health risk due solely to BMI or BMI with serious comorbid condition(s). 

 

Given the widely recognized morbidity of severe obesity many expert groups have reviewed available data to provide guidelines for the treatment of obesity.  The results of all of these analyzes have been the same.  Surgery is recommended for patients who are severely overweight (BMI > 40).  Ms. Your Last Name  has a BMI of 50 and thus clearly falls within these criteria.  These are the conclusions of the NIH Consensus panel, the American Association of Endocrinologists, the American Diabetic Association, the former Surgeon General C. Everett Koop’s group "Shape Up! America", Johns Hopkins, the Mayo Clinic and others.  All recommend surgery in obese patients with a body mass of more than 40 or with a body mass index of more than 35 with significant other associated medical illnesses.

At this time, Ms. Your Last Name  is at her greatest weight yet. The patient is anxious and depressed because of these limitations and is aware of his worsening comorbidities and  significant risk of further health problems if  is not able to permanently lose weight. Ms. Your Last Name   meets both the Milliman and Robertson (M&R) Guidelines for

the Gastric Surgery for Clinically Severe Obesity and the recent U.S. Federal Clinical Practice Guidelines for the Treatment of Obesity16 set down in National Institutes of Health Consensus Conference.  Released June 17, 1998   The Federal guidelines on the obesity were by the National Heart, Lung, and Blood Institute (NHLBI), in cooperation with the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK)). 

Milliman & Robertson, Inc. is in the forefront of analyzing the major issues surrounding virtually all aspects of healthcare. They identify and communicate information regarding best-observed performances, assisting clients to achieve high quality, cost-effective practices. 

They provide a wide range of actuarial and clinical consulting services and resources to their clients who come from all segments of the healthcare arena. They are one of the national leaders in providing guideline development for HMO's and other healthcare organizations.

The M&R Guideline for the treatment of obesity is as follows:

Obesity Guidelines from Milliman and Robertson

Gastric Surgery for Clinically Severe Obesity

CPT-4: 43842, 43846

Patient is at least 100 pounds over ideal weight defined by the Metropolitan Life tables or has a body mass index exceeding 40 kilograms M2, OR 

(Ms. Your Last Name  has a Body Mass Index of 50 exceeding the primary criteria for Gastric Surgery for Clinically Severe Obesity.)

Has a body mass index over 35 kilograms M2 and a clinically serious condition, e.g., obesity hypoventilation, sleep apnea, diabetes, hypertension, cardiomyopathy, or musculoskeletal dysfunction, AND 

Has failed to lose weight significantly or has regained weight despite compliance with a multidisciplinary non-surgical program including a low or very low calorie diet, supervised exercise, behavior modification and support, 

(Ms. Your Last Name  has failed to lose weight despite compliance with a multidisciplinary non-surgical program including a low or very low calorie diet, supervised exercise, behavior modification and support.)

 

AND 

Has no specifically correctable cause for obesity, e.g., an endocrine disorder, 

(Ms. Your Last Name  has no specifically correctable cause for obesity.)

AND 

Has full growth, 

(Ms. Your Last Name  at age 58 is  full grown.)

AND 

Is being treated in a surgical program with experience in obesity surgery, including, not only surgeons experienced with gastric bypass, or vertical-banded gastroplasty, but also a multidisciplinary approach including all of the following:  Preoperative medical consultation and approval;  

 Preoperative psychiatric consultation and approval;  

 Nutritional counseling;  

 Exercise counseling;  

 Psychological counseling;  

 Support group discussions.  

(Ms. Your Last Name  is to be treated at the Center for Laparoscopic Surgery.  By a surgeon with over 20 years of experience at UNC and now with the Duke Healthcare System at Durham Regional Hospital in the surgical treatment of obesity. Dr. Rutledge is a Fellow of the American College of Surgeons, a Senior Member of the Society of University Surgeons and the Association of Academic Surgeons, a member of the American Society for Bariatric Surgery and many other local, regional and national medical and surgical organizations. 

 

Ms. Your Last Name  has participated in Preoperative psychiatric consultation and approval;   Nutritional counseling;   Exercise counseling;  Psychological counseling;  and  Support group discussions.)

 

In addition to fulfilling the criteria set down by M&R the patient meets the criteria set down in the U.S. Federal Clinical Practice Guidelines for the Treatment of Obesity 16 created by the National Institutes of Health Consensus Conference.  Released June 17, 1998, the Federal guidelines on the obesity were by the National Heart, Lung, and Blood Institute (NHLBI), in cooperation with the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK)).

At this time, Ms. Your Last Name  is at her greatest weight yet. The patient is anxious and depressed because of her limitations and is aware of her worsening comorbidities and her significant risk of further health problems if she is not able to permanently lose weight.

I believe that Ms. Your Last Name  is a good candidate for laparoscopic gastric bypass. I believe that many of her present health problems would be ameliorated by significant weight loss of 100 or more pounds, and that the future health consequences of her increasing weight would be prevented.

I have discussed in detail with Ms. Your Last Name  the benefits and risks of this surgery, including bleeding, infection, leakage of stomach contents into the abdomen, pulmonary embolus and death. I have described to her the need for long-term follow up and the requirement that she take supplemental vitamins for the rest of her life.  The patient understands these benefits and risks and wishes to proceed with the operation.

I would appreciate an early reconsideration and response to this request, as we would like to schedule Ms. Your Last Name  for surgery.  If you need further information, please contact me.

 

 

Sincerely,

__________________________ 

 

 

References:  

1. Weighing the Options: Criteria for Evaluating Weight-Management Programs. Institute of Medicine, National Academy of Sciences. 1995; 50-51.  

2. Kuczmarski, R.J., Johnson, C.L., Flegal, K.M., Campbell, S.M. Increasing prevalence of overweight among US adults. Journal of the American Medical Association. 1994; 272:205-211.  

3. Troiano, R.P., Kuczmarski, R.J., Johnson, C.L., Flegal, K.M., Campbell, S.M. Overweight prevalence and trends for children and adolescents: The National Health and Nutrition Examination Surveys, 1963 to 1991. Archives of Pediatrics and Adolescent Medicine,1995; 149:1085-1091.  

4. Daily dietary fat and total food-energy intakes: Third National Health and Nutrition Examination Survey, Phase I, 1988-1991. MMWR Morbidity and Mortality Weekly Report. 1994; 43:116-117, 123-125.  

5. Weight control: What works and why. Medical Essay. Mayo Foundation for Medical Education and Research, 1994.  

6. Methods of Voluntary Weight loss and Control. National Institutes of Health Technology Assessment Conference Statement, March 30-April 1, 1992. Copies are available from the Office of Medical Applications Research, National Institutes of Health, Federal Building, Room 618, Bethesda, MD 20892.  

7. McArdle, W.D., Katch, F.I. & Katch, V.L. Exercise Physiology: Energy, Nutrition & Human Performance. Philadelphia, Pa: Lea & Febiger; 1991.  

8. McGinnis, J.M. & Foege, W.H. Actual causes of death in the United States. Journal of the American Medical Association. 1993; 270:2207-2212.  

9. Diabetes in America, 2nd Edition, The National Institutes of Diabetes and Digestive and Kidney Diseases, 1995, NIH publication number 95-1468.  

10. Colditz, G.A. Economic costs of obesity. American Journal of Clinical Nutrition, 1992; 55:503-507s.

11. Effects of obesity and weight loss on left ventricular mass and relative wall thickness: survey and intervention study", British Medical Journal, Number 7113, Volume 315, October 11, 1997.

12. Body Weight, Weight Change, and Risk for Hypertension in Women,  Annals of Internal Medicine, 15 January 1998. 128:81-88. Zhiping Huang, MD, PhD; Walter C. Willett, MD, DrPH; JoE. Manson, MD, DrPH; Bernard Rosner, PhD; Meir J. Stampfer, MD, DrPH; Frank E. Speizer, MD; and Graham A. Colditz, MBBS, DrPH 

13. Rubin RJ, Altman WM, Mendelson DN , Health care expenditures for people with diabetes mellitus, 1992.,  J Clin Endocrinol Metab 1994 Apr;78(4):809A-809F 

14. Comuzzie AG, Hixson JE, Almasy L, Mitchell BD, Mahaney MC, Dyer TD, Stern MP, MacCluer JW, Blangero J , A major quantitative trait locus determining serum leptin levels and fat mass is located on human chromosome 2., Nat Genet 1997 Mar;15(3):273-6 

15. Milliman and Robertson Healthcare Management Guidelines, Milliman & Robertson, Inc. Client Services, 1301 Fifth Avenue, Suite 3800, Seattle, Washington 98101-2605, Phone: (206) 624-7940 or (888) 464-4746 

16. "Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in Adults", NHLBI Information Center, P.O. Box 30105, Bethesda, MD 20824-0105.