Discussing Obesity and the Law with Walter Lindstrom

| March 7, 2008

Mr. Lindstrom is from the Obesity Law and Advocacy Center, the first practice of its kind and the leading advocate for the rights of persons suffering from obesity and morbid obesity, and is a member of the faculty of training courses for the American Society of Metabolic and Bariatric Surgery and the American College of Surgeons, specializing in training practices, surgeons, and hospitals in the areas of reimbursement and risk management.


Where do you think we will be in five years with regard to insurance approval for weight loss surgery?
We will celebrate our 12th year dedicated to helping patients and bariatric practices obtain meaningful access to surgery on March 1, 2008. Clearly in those years I have witnessed remarkable changes, both positive and—sadly—negative. Payers have sometimes reluctantly expanded the perception of providing coverage while at the same time making the “hoops” so onerous as to actually make it more difficult than when I first began this practice. On the other hand, more payers are opting to cover bariatric surgery than ever before. However, there are still far too many outright exclusions to these lifesaving procedures.
It is my belief that showing the health and economic benefits of bariatric surgery to employers, such as unions and other self-insured entities, is going to be the best avenue for increasing coverage. We are involved in some of those efforts now and hopefully these will bear fruit over the next five years. Although it is unfair for obesity-related treatments such as surgery to be held to a higher standard to prove worthiness of insurance coverage than other modalities treating other diseases (some of which are far less effective either clinically or from a cost-benefit standpoint), that unfairness is our reality. I think that surgeons and their supporters will work very hard to provide convincing scientific and economic data to prove that weight loss surgery is something that must be covered, and—in the face of that data if it develops—the employer purchaser of insurance plans and those who make coverage decisions for self-insured plans will overcome their natural bias against providing this coverage and increase access. At least that is my hope and where we spend a great deal of energy.

Do you foresee bariatrics being a covered procedure by all insurance carriers if the surgery is performed at a site that is considered a center of excellence (COE)?
I think a COE approach is going to be part of the equation, but it will continue to be an evolving concept. Surgical Review Corporation has been a thought leader in developing the concept and certainly the American College of Surgeons is working hard to identify high-volume practices with excellent outcomes, but even that isn’t necessarily carrying enough weight with payers. Too many insurers are relying on their own concept of a COE–their own “bariatric networks” so to speak–and while some of them truly seem to place an emphasis on quality patient care, a number of payers seem to equate COE with whether or not a program is willing to accept their abysmal reimbursement for these procedures….and that is not a true COE.

What would you tell healthcare professionals about dealing with patients and prevention of legal problems? Do you have individual advice for the different disciplines?
As a patient population, we come with a great deal of “baggage,” and our first contact with a compassionate medical practice often comes when we seek out surgical intervention—at least it should be compassionate. There are studies that demonstrate that the greatest bias we patients of size experience comes from our healthcare providers. If a practice recognizes that and strives to communicate in a positive and supportive fashion, that communication goes a long way to being a very solid risk management strategy. If a practice communicates a consistent and compassionate message through every member of its multidisciplinary team, that gives patients confidence that everyone is on the same page. Generally, surgeons and most nurses know and appreciate that their conduct gives rise to potential liability. I think that the other members of the multidisciplinary team need to understand that they too must actively be aware of risk management issues and communicate with their team leader (who usually will be the surgeon[s]) with questions they may have. One thing not to ignore? Stay up to date! Know your field; go to American Society for Metabolic and bariatric Surgery (ASMBS) meetings regularly and strive to be excellent in the role you have. That is common sense, but surely it will help avoid liability exposure for the whole practice.

What is your experience with bariatric surgery as a patient?
I had an open gastric bypass in 1994 at a time when pouches were constructed far differently than today; I lost significant weight and kept it off for quite some time. There is substantial disagreement as to what constitutes a “success” or a “failure” in this field. Having said that, between having a larger pouch and a gastro-gastric fistula, my volume increased substantially over time and I needed a revision. But there is no doubt my bypass was an extraordinary tool given that my preoperative BMI approached 60. However, as I regained weight I sought the opinions of experts all over the world and read the literature about complications and risks relative to revisional surgery. Only after careful research and a clinical evaluation that my anatomy would support the procedure did I decide to get a LAP-BAND®, and in 2003 I was one of the early patients to have a banded gastric bypass.
I have stated often in public that for me the LAP-BAND® provided a superior sense of “satiety” than my gastric bypass…the bypass made me “full” but not satiated. The band is different for me. My current BMI is the lowest it ever has been and I continue to slowly lose weight with my combination of procedures. I keep emphasizing the for me aspect of this because I firmly believe that there is no one-size-fits-all procedure for patients—some will respond to one operation better than another; hopefully research will allow surgeons to develop tools that allow them to better define what surgery is going to be better for a particular patient. What I hate seeing—and what still happens too often between patients and between surgeons—is the “my procedure is better than yours” argument. I remember back to my first International Federation for the Surgery of Obesity (IFSO) meeting in Cancun and Dr. Mal Fobi, a true pioneer and legend in this field, tried to remind the surgeons arguing among themselves in the audience that no matter which of the “accepted” procedures they are performing, they are likely to achieve results that are an improvement for a patient suffering the ravages of morbid obesity and its comorbid conditions. As a patient I wholeheartedly agree with that.

Being both a bariatric patient and an advocate, do you think insurance should cover a second bariatric procedure if the first one fails?
Simple answer: YES! We handle a great many revision appeals where the payer is attempting to deny the second procedure because the patient “failed” the first; therefore they are in essence taking the position that the patient is not worthy of a second operation. I think that is ludicrous. What I also think is that bariatric surgeons can and must carefully evaluate a patient coming for a revision and realistically determine whether a second operation is likely to be successful for that patient; but that decision is a medical decision, not an insurance company’s decision.

What are the costs involved with hiring and retaining a lawyer in a bariatric surgery case?
I’m not sure I can answer that except for our own practice. Attorney fees for an insurance specialist hired on an hourly basis, as most lawyers are paid, can be quite expensive, and I think that scares many patients away from seeking help and may even make bariatric practices hesitant to refer patients. Although Kelley—my wife, partner, and boss—and I have a combined 37 years of experience since being admitted to the California State Bar, we honestly do not operate as “lawyers” in the traditional sense in the vast majority of cases we handle. Most often we act as “advocates” and “authorized representatives” for patients. Given that the mission of our practice is to make our services obtainable by anyone, we have a fee structure that is fixed and not hourly. Those fees range from just under $500 to just over $1,000 depending on the type of services needed. We do not accept a case if we don’t think we can assist the patient since people work hard for their money. We certainly are much less expensive than a conventional hourly fee-based firm or a cash-pay bariatric surgery. What bariatric medical professionals looking for representation should seek out is an insurance specialist who is familiar with the appeals process and who knows the nuances of our complicated health insurance system, especially with regard to bariatrics.

How can we include new procedures, like sleeve gastrectomy, in order to be approved by insurance companies?
Payers are generally looking for data demonstrating the safety and effectiveness of the procedure. We’ve seen these battles evolve over the years….payers resisted paying for laparoscopic cases because they remained unconvinced that laparoscopic access when compared with open procedures was equally safe and effective. Eventually solid data and persistence by ASMBS and its members helped overcome that hurdle. Similarly, the LAP-BAND® faced similar challenges until now, when due to efforts of surgeons and patients alike, coverage for bands is nearly coextensive with gastric bypass. Sleeve gastrectomy proponents can and should be prepared in large part to demonstrate safety and long-term efficacy of that procedure through long-term data, similar to the rigors a device like LAP-BAND® faced in its Food and Drug Administration (FDA) clinical trial process and subsequent evaluations by payers, including Medicare.
Right now I dare say there is no general agreement as to how much is enough when it comes to evaluating data on a procedure as opposed to a device. Devices are governed by the FDA’s rules, whereas procedures are evaluated on a more fluid standard. That is not to say it should be less rigorous. Patients should have equal confidence that safety and efficacy has been fairly evaluated. There was recently a consensus conference in New York of surgeons discussing sleeve gastrectomy, and data will soon be published demonstrating the long-term safety, durability, and impact of the procedure in achieving weight loss and resolving comorbid conditions: That is what will drive payers to add the sleeve gastrectomy to their existing medical policies. ASMBS has a position statement on its site that helps, but longer-term data will ultimately help sway payers that this is an accepted procedure that should be covered.

How can our patients fight back insurance denials so that they do not have to travel abroad to have their bariatric surgeries performed?
The answer to that question likely could encompass an entire issue of Bariatric Times. Many patients are receiving high-quality care in non-US settings, but others are receiving care that is probably not up to the standards we have here. It is a mixed bag to be sure. The first key is to actually fight the fight! Too many patients give up too easily, get impatient, and simply opt for a cash-pay alternative. We have seen payers move slowly, sometimes imperceptibly, toward expanding coverage, and often it is the result of many patients constantly fighting these fights through appeals, grievances, and independent reviews and having the payers losing those battles repeatedly. That helps the individual patient willing to invest the energy in the fight and in many cases helps move a payer toward appropriate coverage long-term, which benefits all patients as a whole.

What are the chances of winning an appeal via lawyers?
I am not sure I can fairly answer this except by referencing our own practice. I would love to tell everyone we bat .1000 …we don’t. However, between 80 and 90 percent of the cases we accept in our practice result in an approval by the payer, and Kelley and I are quite proud of how many patients we have been able to help over the years.

Category: Legal Perspective

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