Thursday, December 02, 2010

Are Ontario's bariatric surgical wait times legal?

Did you know that if you apply for out-of-country bariatric surgery and you're rejected (as is automatic nowadays with a form letter directing you to apply through the bariatric registry) that you have the right to an appeal under section 20(1) of the Health Insurance Act, Revised Statutes of Ontario, 1990, Chapter H.6?

Many people don't.

Many people also don't know that from the date that you receive your rejection, your window to launch an appeal is only a scant 15 days.

So how does this process work?

Thankfully, I was recently given a tour by a gentleman whose wife launched a successful appeal of her rejection of her pre-approved gastric bypass, and given the system itself fails to inform patients of their right to an appeal with their rejections, I feel it's my duty to do so and to steer you a bit as to how to organize it.

Bottom line, the process is likely to take up to a year, but given the waits for bariatric surgery in Ontario are likely to soon be as long as 3-4 years, it may still be a worthwhile process. I'll get into the nitty gritty of it all below but first, are there grounds for an appeal?

I think so.

Let's look at wait times. The province of Ontario has published guidelines on wait times and they've ranked those wait times in terms of priority levels.

For general surgery, a priority level 2 procedure involves a condition with:

  • Constant, frequent or severe pain/symptoms (biological, psychological)

  • Significantly impacts ability to perform usual activities

  • High probability of disease progression with morbidity that might affect function or life expectancy

  • Recurring unscheduled visits i.e. ED/primary care physician/surgeon.

Sure sounds like morbid obesity to me. The access target (recommended maximal wait time) for a priority 2 general surgery procedure? 4 weeks. But to be fair, bariatric surgery is a procedure that does in fact require a great deal of pre-operative patient screening, education and preparation and consequently will certainly require more time than a month.

So how long should a maximal wait for bariatric surgery be? I posed that question to Dr. Nicolas Christou, Director of Bariatric Surgery, McGill University Health Center. His answer?
"I have asked this question from many colleagues and the answer varied from 30 days to maximum 6 months based on the increased mortality risk. In our negotiations with the Ministry of Health we settled on a MAXIMUM wait of 1 year from the time a patients contacts a Bariatric Surgical Center of Excellence."
And when I asked Dr. Arya Sharma, Scientific Director of the Canadian Obesity Network he suggested triage would matter in that,
"I would say this depends on age, comorbidity, employment, etc."
Though of course in Ontario, the maximal recommended limits even on a priority 4 general surgery case, the lowest level of priority with "minimal risk of morbidity incurred by waiting" is 6 months, and it's difficult to imagine why the wait for bariatric surgery, a priority 2 case, should exceed that.

Furthermore, prior to the establishment of Ontario's bariatric registry system, patients were regularly granted access to out-of-country services based on the facts that wait times here in Ontario were 1-2 years in length, and that obesity and its comorbidities most certainly increase mortality and lead to cumulative, irreversible tissue damage. Given that obesity hasn't suddenly become benign and with wait times now reflecting 900 new monthly referrals for a procedure that Ontario's hoping to perform 2,200 of, I'd argue that those shut doors have been shut prematurely.


Because according to Section 28.4 of Regulation 552 of the Health Insurance Act, R.S.O. 1990, c. H.6access to out-of-country services must be provided by OHIP so long if:
a. The treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person;


b. Either,

i. That kind of treatment is not performed in Ontario by an identical or equivalent procedure,


ii. That kind of treatment is performed, but it is necessary that the insured person travel outside of Canada to avoid a delay that would result in death or medically significant irreversible tissue damage.
And indeed, bariatric surgery is indisputably a generally accepted and appropriate procedure for the treatment of morbid of obesity in Ontario, and delays certainly may result in death or medically significant irreversible tissue damage - either directly as a consequence of the physical effects of the weight itself, or indirectly due to a weight-related comorbidity that in turn leads to cumulative, irreversible damage (diabetes, hypertension, hyperlipidemia, etc.).

As well, it's also potentially worth noting in any appeal of an out-of-country rejection, that the current system has physicians who due to their belief that their patient is at a significant increase in risk of death or irreversible tissue damage with the current wait times, apply for their patient to have out-of-country surgery, receive a form letter back instructing them to apply to have the patient seen at a bariatric assessement centre. What that means is that effectively Ontario's new policy forces patients to experience a significant delay in treatment that may in fact lead to significant irreversible tissue damage or death, simply in order to be evaluated for surgical suitability this despite their licensed Ontario physician's own assessment of urgency, an assessment which just 12 months ago, was accepted regularly at face value (and well it should - physicians don't sign off on forms like that lightly).

At the end of the day one of two things is true. Either the system is literally broke and that's why things have been put together they way that they have, or else fatism and weight bias exists among the folks who put this new system together as how else can you explain the fact that it is acceptable to OHIP that bariatric surgeries have access times more than quadruple the Province's aim for the very lowest of priority procedures?

So how do you appeal? Well I'll post a step by step guide below but first some random thoughts that might help should you choose to appeal:

- Once rejected for out-of-country, immediately request a referral to a Bariatric Assessment Center in Ontario. Your own wait time is evidence, so a long appeal process isn't a bad thing.

- I've been told that OHIP in the past has tried to suggest that the time spent waiting after you've had the information session but before you've finished meeting with the team at the bariatric assessment centres for some reason I cannot fathom doesn't count as wait time. Make sure you keep careful records of all of your various dates.

- I've been told that OHIP cooks the books with wait times in that folks who are shuffled to a centre different from the one they were originally waiting for leads OHIP to reset the clock to suggest their wait time was virtually nil.

- It may be helpful, were there an organized group of presurgical patients out there, if they were to keep a public registry of their own of referral dates and wait times which in turn could be used to support the assertion that waits are exceedingly lengthy - an assertion it would seem OHIP tries its best to obscure.

- OHIP will likely point to the fact that their advisory board has recommended that all patients be screened in Ontario to determine surgical suitability. You should know too that their advisory board members are the very same folks who run the screening centres. The fact though remains that the Health Insurance Act spells out the requirement for out-of-country funding, "Is it the right procedure in Ontario? Is done in Ontario? Is the wait too long here?". The Health Insurance Act should trump the recommendations of an advisory board staffed by people with conflicted interests.

- I've been told that you should choose to appeal in writing, as while it may sound enticing to be able to meet your foe in court, writing will allow you to formulate your thoughts and arguments more cogently than you might in the heat of the moment.

- It is illegal for OHIP to present false or misleading evidence under HSARB rule 19.04(1).

- Don't spend a fortune on lawyers or U.S. specialists. Costs are almost never recovered, even if you win.

Ok, so now you're ready to go. Here's a basic step by step guide:

1. You have your physician apply for out-of-country consideration for a gastric bypass (here's the form) whereby your physician believes that delay might lead to either death or irreversible tissue damage.

2. You're rejected by means of form letter that directs your physician to refer you to a bariatric assessment centre.

3. Within 15 days of receipt of your rejection submit a Notice of Appeal - a letter identifying the OHIP decision and saying you intend to appeal because you meet the criteria set out in Section 28.4 of Regulation 552 of the Health Insurance Act, R.S.O. 1990, c. H.6. There's a FAQ and the forms to fill out are available on this page. And don't worry that you'll never be able to get everything together in 15 days, all you need to do in the initial letter is to identify the decision and your intent to appeal. You'll have time to make your arguments later.

4. You will receive a letter from the Health Services Appeal and Review Board stating that they've received your request for an appeal and they'll provide you with a deadline of 2.5 months to submit the details of your case. You will be given the option of a written, teleconference or in-person hearing. You may designate someone else to represent you. You will also be assigned a case officer (who in the case of the gentleman writing to me was noted to be very helpful).

5. Be sure to address all parts of Section 28.4. You need evidence that the specific procedure is appropriate for someone in your circumstances, evidence that a delay will cause irreversible tissue damage or death and evidence there IS a delay. Possible evidence includes the form sent to OHIP, and supporting letters and records from your physician, quoted wait times from your closest surgical centre, etc. Ontario medical opinions are preferred.

6. Once you submit your case, OHIP will be given 2.5 months to file their Grounds of Response.

7. You will receive a copy of their response and you will be given 10 days to respond to it and the gentleman who went through it believes that this will continue until you no longer have a response to their ongoing responses.

8. HSARB will schedule a pre-hearing conference which OHIP may or may not decide to attend.

9. A few months later you'll get a formal hearing date.

You should know too, historically OHIP doesn't lose many appeal, though with thousands of bariatric patients stacking up on waiting lists, I think their record is about to change.

[Sincere thanks to the family that went through all this who has guided me through the ins and outs of HSARB appeals. Here's hoping her surgery is uneventful and her recovery quick!]