Kaiser Plastic Surgery Class Action Lawsuit (Updated)
March 30, 2015In California, a trial is currently underway that could have a major impact on insurance coverage for plastic surgery following massive weight loss. The class action lawsuit, involving more than 10,000 plaintiffs, was filed against Kaiser Foundation Health Plan Inc., alleging that the insurance company violated California Statute - Health and Safety Code section 1367.63 by denying claims for removal of excess skin after bartiatric surgery.
Prior to enactment of the law in 1998, insurance companies claimed such surgeries were cosmetic, and would only provide coverage if surgery restored bodily function, not restore a normal appearance. Section 1367.63 clarified the issue and states "Reconstructive surgery means surgery performed to correct or repair abnormal structures of the body caused by congenital defects, developmental abnormalities, trauma, infection, tumors, or disease to do either of the following: (A) To improve function; (B) To create a normal appearance, to the extent possible.
After undergoing bariatric surgery for the treatment of morbid obesity, plaintiff Wendy Gallimore requested that her insurer, Kaiser, authorize coverage for reconstructive surgery to the remove large amounts of excess skin. Kaiser denied her request. In February 2012, Gallimore filed her complaint with the superior court.
“Kaiser systematically ignores both the functional impairment standard and the ‘normal appearance’ prongs of section 1367.63(c) and, in doing so, systematically violates the statute." - Lawyers representing Gallimore
Cosmetic vs. Reconstructive Plastic Surgery
The California statue follows the same definition as the American Society of Plastic Surgeons (ASPS) which states that "Reconstructive surgery is performed on abnormal structures of the body caused by congenital defects, developmental abnormalities, trauma, infection, tumors or disease. It is generally performed to improve functions but may also be done to approximate a normal appearance."
For many patients the excess skin that remains after massive weight loss can limit function. For example, a large hanging pannus can inhibit walking, cause recurrent skin infections, and interfere with personal hygiene. Excess skin in other areas of the body can cause similar issues and documentation of medical necessity can be provided.
Is Obesity a Disease?
In 2013, the American Medical Association (AMA) classified obesity as a disease. In their decision, the AMA noted the complexities of conditions that contribute to obesity. Obesity is a complex, multi-dimensional problem that is influenced by genetic, environmental, socio-economic, and behavioral factors. The Centers for Medicare and Medicaid (CMS) have also recognized obesity as a disease, and CMS guidelines are the basis for commercial insurer coverage policies.
What is "Normal"?
While reconstructive surgery is well defined, and obesity is classified as disease but what is a "normal appearance"? The trial might hinge on this very question. No body is perfect. Sagging skin can often be a result of aging so it could be considered "normal". However, when a patient loses more than 100 pounds, the remaining skin is more than just saggy and often age and other factors the affect the skin's elasticity and ability to retract.
Did insurance cover your post-op reconstructive surgery? Share your thoughts on the trial in the comments below.
The trial is being held in California’s Alameda County Superior Court and is expected to last two weeks. Trial coverage can be viewed on CVN.
*UPDATE as of 6/17/2015*
The bench trial concluded April 10th, taking nearly double the expected time during which Judge Wynn Carvill stated neither side presented an argument that could be clearly navigated. He chided both parties for spending "too much time on topics like the surgical guidelines and the date of adoption" that were not being contested in the case. The judge advised counsel that "it is just as commonplace as the furniture in your house. For anyone else, it's not." Judge Carvill directed opposing counsel in their closing briefs to do more “heavy lifting” by detailing the facts surrounding the suit and not assume that he knows them, which would leave the heavy lifting to him. The deadline for post-trial briefs were May 12 and 27, a final decision by the judge may take months.
*Decision as of 7/21/2015*
Alameda County Superior Court Judge Wynne S. Carvill ruled that Kaiser could not deem excess skin removal surgery as strictly cosmetic and wrote in his 60-page ruling that doctors can determine if post bariatric weight loss surgery patients seeking removal of excess skin qualify for a referral.
“While not all members of the class may qualify for excess skin removal surgery and many who do may choose not to undergo such a procedure, they all have a common interest in being correctly advised as to the availability of coverage for such procedures and to have their physicians evaluating any request they might make do so under legally correct criteria,” Carvill wrote.
The judge disagreed with Kaisers claim that excess skin is not a disease. He also rejected the plantiff's request to deem denials for every class member violated the law, the judge found denials may have been appropriate in cases and that not all patients desire or seek skin removal surgery.
 | ABOUT THE AUTHOR Sarah (aka Sarahlicious) has been an active member of ObesityHelp since 2003. Her specific areas of interests are Lipedema, Lymphedema, Obesity, and Health Insurance advocacy. Sarah writes about her life experiences at Born2lbFat. She is a member of the Board of Directors of both the Obesity Action Coalition and the Lymphedema Advocacy Group. Sarah has a Masters in Health Law.Read more articles by Sarah Bramblette! |
