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Obtaining Insurance Benefits After A Bariatric Surgery Denial

“How Can Insurance Benefits For Bariatric Surgery Be Obtained After A Denial?” is taken from Medical Law Perspectives’ January 2019 Special Report entitled “Heavy Liabilities: Obesity, Weight Control, and Treatment Risks” and is reprinted with permission from Wordsworth Law Publications.

“Bariatric surgery is well-established as the standard of care treatment for appropriately selected patients affected by severe obesity when non-surgical modalities have not resulted in permanent weight loss. When a surgeon, usually in consultation with a team of other integrated health care professionals, determines bariatric surgery is medically necessary, the usual practice is to request authorization from the patient’s insurer on a pre-service basis. Unfortunately, these requests are frequently denied improperly, at least from our perspective as patient advocates, and are often devastating to patients.

Care must be taken to avoid a knee-jerk response before evaluating what happened and why so an appropriate appeal can be submitted. While it is reasonable to hope treatment will be approved as the health plan’s response to its member’s internal appeal, the best chance of getting a denial overturned may be during the independent, external review that can be requested if the plan upholds its denial.

The reasons payers most often cite as grounds for denying bariatric surgery are: (1) a lack of medical necessity based on the payer’s medical criteria; and (2) bariatric surgery is excluded as a benefit. While seemingly simple, appealing these denials will fail unless the true underlying reasons are addressed. Experienced advocates in the world of bariatric surgery understand that many payers rely on clinical criteria that is outdated, reflecting coverage prerequisites, which have been rejected by bariatric specialists.

Examples of arbitrary, clinically unsupportable medical criteria cited by payers include:

  • Participation in so-called “mandatory” non-surgical weight loss programs even though the American Society for Metabolic and Bariatric Surgery (ASMBS) has demonstrated these programs harm patients by delaying treatment;
  • Arbitrary requirements concerning how severe comorbid diseases such as type 2 diabetes, obstructive sleep apnea, hypertension, lipid disorders, etc. must be in order to justify surgery. Payer criteria often requires a patient almost be too sick to be operated on rather than using standards developed by bariatric experts; and
  • Arbitrary requirements that ignore the positive impact bariatric surgery has on some diseases to artificially restrict coverage.

Payers demonstrate a particular hostility to patients seeking additional surgical intervention after the failure of a prior operation. Here are just a couple of examples of how aggressively payers try to limit second procedures:

  • Medical policies that are not part of the member’s contract that assert coverage is limited to “one surgery per lifetime” regardless of whether the present insurer covered the original procedure;
  • Agreements to cover the reversal of a procedure, such as removing a failed gastric band, but denying a revision to a new intervention even when no other restrictions on revisions exist for orthopedics or comparable limits to a single type of cancer intervention; and
  • Placing blame on the patient for his or her supposed failure to comply with a treatment plan as a rationale for denying a revision. This is tantamount to saying “You had your one chance and you blew it!” No other surgical treatments covered under these health plans similarly limit physicians to a single opportunity to treat a disease.

The introduction of new technology in the form of FDA-approved medical devices used in the surgical treatment of severe obesity will usually lead to a payer claiming use of the technology, whatever it might be, is “experimental” or “investigational.” They rely upon these labels even when the plan Definitions for these terms are found inapplicable and the device or technology is well-established.

Contract exclusions form the other major category of barrier faced by bariatric patients. Careful analysis of the language must be done to make sure the plan is not claiming an exclusion applies when in fact the actual denial is based on medical necessity. Experienced advocates have to grasp a great deal of clinical nuance to establish situations when medical judgment is required—thus making the case a medical necessity denial as opposed to a contract exclusion. The key reason for that is because exclusions are not subject to independent review; medical necessity and experimental/investigational denials have that as the next available option to challenge a denial.

The independent review organization (IRO) process is supervised by an agency with appropriate accreditation, which identifies an impartial medical expert in the same discipline as the requesting physician – in this case, a bariatric surgeon. They review the documentation and determine whether or not the surgery should be approved. Their importance rests with the fact they are not bound by the payer’s medical criteria. For example, a health plan’s medical policy might require a bariatric patient complete a six-month medically supervised weight loss program to establish medical necessary. The IRO reviewer is free to disregard that criteria knowing that there is no evidence-based standard that provides a benefit is gained by delaying care. Because medical criteria used by payers is so often outdated, the IRO is often the most powerful tool patients have to combat wrongful denials predicated on arbitrary and outdated medical criteria.

All too often bariatric surgery providers try to avoid payer denials at all costs—even if the payer’s criteria has no clinical support. There are dangers to playing the payer’s game because bariatric surgery, unlike accepted treatments for any other disease, isn’t always going to be part of a member’s coverage. Providers and patients alike must act quickly and decisively to seek approval by submitting all available supporting medical documentation whenever possible.

But it is more important to not delay submitting the preauthorization request to the health plan, even if their arbitrary criteria isn’t met because a patient’s existing coverage for bariatric surgery insurance cannot be taken for granted. It is coverage that may disappear while a patient tries to jump through just one more hoop. Among the most tragic mistakes we see are patients who are forced to meet arbitrary medical policies—taking months and months to do so, only to have bariatric surgery excluded when their new plan is issued.”

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