What Larra is alluding to is the fact that I brought the first case to these class action attorneys for coverage of reconstructive surgery under the California law, with myself as the Lead Plaintiff, against Health Net, based on the specific California law CHSC 1367.63* that mandates coverage for reconstructive surgery that does NOT require medical necessity. That case was eventually confidentially settled. The attorneys then used what they learned in my case to go after Anthem Blue Cross - that settlement is public
http://gilardi.com/bluecrosslitigation/pdf/CourtOrderandJudgmentreFinalApproval.pdf - the settlement was $3,200.000.
This case was then filed by the attorneys against Kaiser (NorCal and SoCal). However, the basis of this case seems to be different than the first two - there is NO money being paid. Rather, the decision affects how Kaiser disseminates information to patients about their rights to have reconstructive surgery that does not violate California law. It's rather a disappointing decision, even though the judge was clearly PISSED at Kaiser - in the end, Kaiser was ordered:
(a) to review for compliance all of its bariatric patient materials, all the medical group RG and SG and all internal and external webpages, (b) to use its best efforts to modify those that still have the shortcomings described above, (c) to file monthly compliance reports detailing its efforts until it can represent that all non-compliant materials have been corrected and attach copies of the corrected versions, (d) to have its medical groups disseminate to their PCPs and plastic surgeons the new RG [Referral Guidelines] and SG [Surgical Guidelines] once they are finalized, and (e) to provide a cover letter to the PCPs that they should review these new materials with any post-bariatric patient who presents him or herself with excess skin problems.
Other bases for the complaint were dismissed.
The Lead Plaintiff in this case, Wendy Gallimore, never had reconstructive surgery - and in fact, it was argued she would never have qualified for it based on Kaiser's requirements (which were not at issue) that her BMI be less than 30 (or 35 in some cases?) ("As a result of her 2006 surgery, Plaintiff's weight dropped frommore than 410 pounds to approximately 282 pounds one year after surgery, but by April 2011 her weight had increased to 318 pounds, which resulted in a BMI of approximately 48."). So (unlike in the first two cases), there were no damages.
The Court further opined:
"Given the court's liability determinations, it is clear where the court need not go in terms of remedies. There is no need toJ address the circumstances that would appropriately lead a PCP to refer a patient to a plastic surgeon for a consultation. There is no evidentiary or legal basis for the court to chime in on the issue of what is or is not an "abnormal structure of the body" or one that may be more than minimally improved by surgical procedures. Whatever could be said on such matters cannot be framed on a class-wide basis. Accordingly, the court's only concern is with the statements regarding coverage in materials and classes for bariatric surgical candidates, in the RG and other resources available to the PCPs and in the SG and other materials used by plastic surgeons."
***
"In reaching these conclusions, the court has considered Kaiser's argument that an injunction is not needed because the DMHC has already addressed these issues and any remaining instances of non-compliance have been resolved by Kaiser's efforts up to and including trial. While the court does have discretion to deny injunctive relief in various circumstances, this is not an appropriate. case to exercise such discretion for the benefit of Defendant. The DMHC identified Deficiency #4 in
2011, and it took Kaiser
three years to satisfy the DMHC, and even then Plaintiff has shown Kaiser's efforts fell short of full compliance. Rather it took the actual commencement of trial to move Kaiser to address the additional issues raised by Plaintiff. Under such circumstances, it is unfortunate that an order is required to ensure full compliance with the statutory mandate, but one is indeed required." [italics in the original]
"As for Plaintiff's request that notice be sent to all class members or at least all current Kaiser members who have undergone bariatric surgery, the court is reluctant to require that. It is clear to the court that many of these individuals would not be candidates for the procedures in question because their BMI is too high, they have some, other disqualifying condition, or the cost/benefit analysis would indicate the procedure is not appropriate. The court does not want to see the expectations of this population unduly raised, a flood of requests come in for a consultation and then the vast majority of the persons so contacted turned away for one bona fide reason or another. It would be appropriate, however, to send a notice to all PCPs about the change in criteria, direct them to be alert for patients of theirs with excess skin conditions and request that they discuss the revised criteria with such patients. The court has no doubt that the PCPs would take such a directive seriously and discharge their clinical obligations in accordance with an accurate statement of the statutory mandate."
I hope all of you repost this information to anywhere that post-op Kaiser bariatric patients (and indeed, anyone who has Kaiser now, who had surgery ELSEWHERE - if they are qualified for reconstructive surgery, it doesn't matter when or where it happened) can see it - they should be demanding a referral from their PCPs to Kaiser's reconstructive surgery practices for assessment of whether they are entitled to COVERED reconstructive surgery.
http://cdn2.hubspot.net/hubfs/442422/Gallimore_ruling.pdf?t=1437423732386
* California Health and Safety Code 1367.63. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=HSC§ionNum=1367.63.
(a) Every health care service plan contract, except a specialized health care service plan contract, that is issued, amended, renewed, or delivered in this state on or after July 1, 1999, shall cover reconstructive surgery, as defined in subdivision (c), that is necessary to achieve the purposes specified in subparagraph (A) or (B) of paragraph (1) of subdivision (c). Nothing in this section shall be construed to require a plan to provide coverage for cosmetic surgery, as defined in subdivision (d).
(b) No individual, other than a licensed physician competent to evaluate the specific clinical issues involved in the care requested, may deny initial requests for authorization of coverage for treatment pursuant to this section. For a treatment authorization request submitted by a podiatrist or an oral and maxillofacial surgeon, the request may be reviewed by a similarly licensed individual, competent to evaluate the specific clinical issues involved in the care requested.
(c) (1)
“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.
(2) As of July 1, 2010, “reconstructive surgery” shall include medically necessary dental or orthodontic services that are an integral part of reconstructive surgery, as defined in paragraph (1), for cleft palate procedures.
(3) For purposes of this section, “cleft palate” means a condition that may include cleft palate, cleft lip, or other craniofacial anomalies associated with cleft palate.
(d) “Cosmetic surgery” means surgery that is performed to alter or reshape normal structures of the body in order to improve appearance.
(e) In interpreting the definition of reconstructive surgery, a health care service plan may utilize prior authorization and utilization review that may include, but need not be limited to, any of the following:
(1) Denial of the proposed surgery if there is another more appropriate surgical procedure that will be approved for the enrollee.
(2) Denial of the proposed surgery or surgeries if the procedure or procedures, in accordance with the standard of care as practiced by physicians specializing in reconstructive surgery, offer only a minimal improvement in the appearance of the enrollee.
(3) Denial of payment for procedures performed without prior authorization.
