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Biting the Hands that Feed “the Alligators”: A Case Study in Morbid Obesity Extremes, End-of-Life Care, and Prohibitions on Harming and Accelerating the End of Life
Published online by Cambridge University Press: 06 January 2021
Abstract
Obesity, recognized as a disease in the U.S. and at times as a terminal illness due to associated medical complications, is an American epidemic according to the Centers for Disease Control and Prevention (“CDC”), American Heart Association (“AHA”), and other authorities. More than one third of Americans (39.8% of adults and 18.5% of children) are medically obese. This article focuses on cases of “extreme morbid obesity” (“EMO”)—situations in which death is imminent without aggressive medical interventions, and bariatric surgery is the only treatment option with a realistic possibility of success. Bariatric surgeries themselves are very high risk for EMO patients. Individuals in this state have impeded mobility and are partially, if not entirely, bedridden, highly vulnerable, and dependent upon caregivers who often are enablers feeding their food addictions. The article draws from existing Centers for Medicare and Medicaid Services (“CMS”) and Social Security Administration (“SSA”) policies and procedures for severe obesity treatment and disability benefits. The discussion also encompasses myriad areas in which the law imposes a duty to report on professionals to protect vulnerable individuals from harm from others, and constraints and prohibitions on accelerating the end of life. The article proposes, among other law and policy measures, to introduce an obligation on medical professionals to investigate and report instances of enablement when food addiction has put the lives of individuals at risk of imminent death. The objectives of the proposals are to give providers more leverage to prevent food addiction enablers from impeding treatment and to enable EMO patients to comply with treatment protocols, to save lives and, ironically, to empower enablers to stand firm against the demands of individuals whose lives have been consumed by their food addictions.
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References
1 See My 600-lb Life (TLC television broadcast). For the first season, patients were filmed over a period of seven years, from 2004 to 2011. Starting with the second season, patients were filmed for one year.
2 Lisa Swan, The Untold Truth of My 600-lb Life, List, http://www.thelist.com/58296/untold-truth-600-lb-life/ [https://perma.cc/Z7UY-5RHZ].
3 See id.; My 600-lb Life, supra note 1.
4 The commonly shared rubric for determining obesity, Body Mass Index (“BMI”), is discussed infra at notes 23-28 and accompanying text. To define the term EMO for this article, I applied TLC weight baseline for its dozens of patient stories (case studies) aired over the last five seasons, 600 pounds, and accompanied by life-threatening health complications. See generally My 600-lb Life, supra note 1. This translates to a BMI of 88.6 or higher for an average size man and 103 or higher for an average size woman in the U.S. BMI Calculator, Nat'l Inst. Health, https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm [https://perma.cc/LMS6-WK8D].
5 See infra notes 59-61 and accompanying text; Swan, supra note 2. Absent overriding individual patient health considerations, Dr. Now imposes a maximum starting weight limit of 600 pounds; many other providers set limits at substantially lower weights. See Dr. Now MD: Weight-Loss and Beyond, Dr. Now MD, http://drnowmd.com/ [https://perma.cc/2XF9-B7XR]; Swan, supra note 2 (“For example, the University of California at San Francisco Medical Center has a weight limit of 450 pounds, due to that being the biggest weight their x-ray machines can measure. Also, the more somebody weighs, the more the risks increase, as with any surgery.”).
6 As it progresses, lymphedema causes skin to thicken and harden, and blisters and wart-like growths may develop, in addition to open sores, which often cause excruciating pain. See Christian Nordqvest, What is Lymphedema?, Med. News Today, http://www.medicalnewstoday.com/articles/180919.php [https://perma.cc/D8VS-7W9E] (last updated Dec. 20, 2017).
7 See infra notes 47-52 and accompanying text.
8 See generally My 600-lb Life, supra note 1; infra notes 57-61 and accompanying text (describing the standard treatment protocol for severe obesity and the limitation on treatment options).
9 See infra notes 47-52 and accompanying text.
10 See generally discussion infra Part II.B.
11 Dr. Now elaborated on his patient-interaction philosophy in a May 2017 People Magazine interview: “There are times where I think it's necessary for some tough love and I have to be stern with them…. They are the patient because they need help and it's my job to help them no matter what.” Brittany King, My 600-Lb. Life Dr. Nowzaradan on Why It's Difficult for Patients to Keep the Weight Off, People (May 30, 2017, 11:33 AM), http://people.com/bodies/my-600-lb-life-dr-nowzaradan-why-difficult-patients-keep-weight-off/ [https://perma.cc/3GBT-C8Q4].
12 Dr. Now explains to his patients in advance that the surgery alone will only keep them from eating a lot at one time, which is why he imposes a surgery prerequisite: patients must lose weight on their own before surgery to adjust their mindsets and lifestyles. My 600-lb Life: Zsalynn's Story (TLC television broadcast Jan 7, 2014).
13 Id.
14 See, e.g., infra Part III.A.
15 See My 600-lb Life: James K's Story (TLC television broadcast Mar. 15, 2017); see also infra notes 146-47 and accompanying text.
16 See generally infra Part II.A.
17 See generally supra Parts I.
18 See infra notes 179-83 and accompanying text.
19 See infra notes 171-72 and accompanying text.
20 My 600-lb Life: James K's Story, supra note 15. James K's story is discussed infra at Part III.A, and similar cases of enablement are discussed infra at Part III.B.
21 Adult Obesity Prevalence Maps, Ctrs. Disease Control, https://www.cdc.gov/obesity/data/prevalence-maps.html (last updated Apr. 10, 2017) (consistent with poverty levels, the rates of obesity are highest in Alabama, Louisiana, Mississippi, and West Virginia, although every state in the nation experiences an obesity rate greater than 20%).
22 See infra note 61 and accompanying text.
23 Defining Adult Overweight and Obesity, Ctrs. Disease Control, https://www.cdc.gov/obesity/adult/defining.html [https://perma.cc/Z4UT-FEBY] (last updated June 16, 2016). One may calculate his or her own BMI by visiting http://asmbs.org/calculate-your-bmi/ [https://perma.cc/SS33-4F3Y]. Assistance interpreting BMIs is available at Body Mass Index Table 1, Nat'l Heart, Lung & Blood Inst., https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmi_tbl.htm [https://perma.cc/7NCM-DNH4].
24 Id.; see Cynthia Ogden et al., Prevalence of Obesity Among Adults and Youth: United States, 2011-2014, Nat'l Ctr. Health Stat. (2015), https://www.cdc.gov/nchs/data/databriefs/db219.pdf [https://perma.cc/PG99-JDRZ]. The BMI rubric has been criticized for not considering muscle mass. See What is Obesity?, Obesity Soc'y, http://www.obesity.org/obesity/resources/facts-about-obesity/ [https://perma.cc/9PB8-A7J7]. However, “most people are not athletes, and for most people, BMI is a very good gauge of their level of body fat.” Why Use BMI?, Harv. Sch. Pub. Health, https://www.hsph.harvard.edu/obesity-prevention-source/obesity-definition/obesity-definition-full-story/ [https://perma.cc/E6LZ-W543].
25 Defining Adult Overweight and Obesity, supra note 23; The Practical Guide: Identification, Evaluation, and Treatment of Overweight and Obesity in Adults, Nat'l Heart, Lung & Blood Inst. (Oct. 2000), https://www.nhlbi.nih.gov/files/docs/guidelines/prctgd_c.pdf [https://perma.cc/3H2M-WPAX].
26 According to the CDC, the average height for men in the U.S. is five feet, nine inches, and the average height for women is five feet, four inches. See QuickStats: Mean Weight and Height Among Adults Aged 20--74 Years, by Sex and Survey Period--United States, 1960--2002, Ctrs. Disease Control (Aug. 12, 2005), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm5431a5.htm [https://perma.cc/J7L6-3H3W]. An average height man (69 inches) with a BMI index of 30 would weigh 203 pounds, whereas an average height woman (64 inches) with a BMI of 30 would weigh 174 pounds. See Body Mass Index Table 1, supra note 23.
27 An average height man (69 inches) with a BMI index of 35 would weigh 236 pounds, while an average height woman (64 inches) with a BMI of 30 would weigh 204 pounds. Id.
28 An average height man (69 inches) with a BMI index of 40 would weigh 270 pounds, and an average height woman (64 inches) with a BMI of 40 would weigh 232 pounds. See id.
29 What is Morbid Obesity?, Univ. Rochester Med. Ctr.: Highland Hosp., https://www.urmc.rochester.edu/highland/bariatric-surgery-center/questions/morbid-obesity.aspx [https://perma.cc/CM7B-KMMH] (emphasis added).
30 Christopher J.L. Murray & Marie Ng, Nearly One-Third of the World's Population is Obese or Overweight, New Data Show, Inst. Health Matrix & Eval., http://www.healthdata.org/news-release/nearly-one-third-world%E2%80%99s-population-obese-or-overweight-new-data-show [https://perma.cc/M9LB-977N].
31 Sumayah Aamir, Americans Take Obesity as Seriously as Cancer, I4U News (Nov. 1, 2016, 1:28 PM), https://www.i4u.com/2016/11/116911/americans-take-obesity-seriously-cancer [https://perma.cc/QZ3B-SDXQ]; see Maggie Fox, America's Obesity Epidemic Hits a New High, CNBC: Health Care (June 8, 2016, 8:27 AM), http://www.cnbc.com/2016/06/07/americas-obesity-epidemic-hits-a-new-high.html [https://perma.cc/3VUX-HD8N] (discussing the increasing prevalence of obesity in America); Amir Khan, America Tops List of 10 Most Obese Countries, U.S. News: Health (May 28, 2014, 7:00 PM), http://health.usnews.com/health-news/health-wellness/articles/2014/05/28/america-tops-list-of-10-most-obese-countries stating that the US tops the list of the most obese countries in the world); Franco Sassi, How U.S. Obesity Compares With Other Countries, PBS: News Hour (Apr. 11, 2013, 10:54 AM), http://www.pbs.org/newshour/rundown/how-us-obesity-compares-with-other-countries/ [https://perma.cc/K2EL-GY8R] (stating that obesity rates in the U.S. are still on the rise).
32 See Craig M. Hales et al., Prevalence of Obesity Among Adults and Youth: United States, 2015-2016, Ctrs. Disease Control, https://www.cdc.gov/nchs/products/databriefs/db288.htm [https://perma.cc/4BED-ZU2H] (last updated Oct. 13, 2017); see also Adult Obesity Facts, Ctrs. Disease Control, https://www.cdc.gov/obesity/data/adult.html [https://perma.cc/EV7B-FSR] (last updated Sept. 1, 2016) (stating that more than one third of American adults have obesity); Sarah Hedgecock, Yes, America's Obesity Rates Are Still (Slowly) Rising, Forbes (May 27, 2016, 8:00 AM), https://www.forbes.com/sites/sarahhedgecock/2016/05/27/yes-americas-obesity-rates-are-still-slowly-increasing/#2c946a00d8a [https://perma.cc/G4SG-AJM2] (discussing the increasing obesity rates in the US); Obesity Demographics, Lahey Hosp. & Med. Ctr., http://www.lahey.org/Departments_and_Locations/Departments/Surgical_Weight_Loss_Center/Obesity_Demographics.aspx [https://perma.cc/C6KY-JT8D] (providing obesity demographics for the U.S.); Ogden et al., supra note 24; Understanding the American Obesity Epidemic, Am. Heart Ass'n, http://www.heart.org/HEARTORG/HealthyLiving/WeightManagement/Obesity/Understanding-the-American-Obesity-Epidemic_UCM_461650_Article.jsp#.WS2WDGjyvIU [https://perma.cc/3F45-89UH] (last updated March 9, 2016) (discussing increases in the U.S. obesity rate between 1962 and 2006).
33 See Understanding the American Obesity Epidemic, supra note 32; Adult Obesity Facts, supra note 32; Hales et al., supra note 32; see also Ogden et al., supra note 24 (discussing the prevalence of obesity among American adults and children).
34 See Hales et al., supra note 32; Brian W. Ward et al., Early Release of Selected Estimates based on Data from the 2015 National Health Interview Survey, Ctrs. Disease Control (May 2016), https://www.cdc.gov/nchs/data/nhis/earlyrelease/earlyrelease201605.pdf [https://perma.cc/SYA3-GM58].
35 Fox, supra note 31.
36 Roland Sturm & Aiko Hattori, Morbid Obesity Rates Continue to Rise Rapidly in the U.S., 37 Int'l J. Obesity 889, 890 (2013).
37 Id. (noting that sample size for this obesity subpopulation is innately smaller).
38 Fact Sheet: Obesity in America, Am. Soc'y Metabolic & Bariatric Surgery, http://asmbs.org/wp/uploads/2014/07/asmbs_fs_obesity.pdf?/newsite07/media/asmbs_fs_obesity.pdf [https://perma.cc/KP9C-R2LW] (last updated June 2010); Obesity in America, Am. Soc'y Metabolic & Bariatric Surgery (Nov. 2013), https://asmbs.org/resources/obesity-in-america [https://perma.cc/8VKPHZNZ].
39 Kelly Fitzgerald, Obesity is Now a Disease, the American Medical Association Decides, Med. News Today, http://www.medicalnewstoday.com/articles/262226.php [https://perma.cc/695A-DH44] (last updated Aug. 17, 2013).
40 Id.
41 Id. The AMA debated internally on the matter. After their Council on Science and Public Health studied the issue for over a year, the Association ultimately rejected the conclusion that “obesity should not be classified as a disease because the measure that is used to categorize obesity (body mass index, BMI) is flawed, given that it does not measure overall fat or muscle (lean tissue).” Id. See generally Facts About Obesity, Obesity Soc'y (2016), http://www.obesity.org/obesity/resources/facts-about-obesity/ [https://perma.cc/3UXM-E3XP] (providing public educational materials with background facts and information about obesity).
42 Behavior, Environment, and Genetic Factors All Have a Role in Causing People to be Overweight and Obese, Ctrs. Disease Control, https://www.cdc.gov/genomics/resources/diseases/obesity/index.htm [https://perma.cc/5HHP-5R8C] (last updated May 10, 2013); see Adult Obesity Causes and Consequences, Ctrs. Disease Control, https://www.cdc.gov/obesity/adult/causes.html [https://perma.cc/7979-4MSQ] (last updated Aug. 29, 2017) (stating that genetics do seem to play a role in development of obesity); Obesity and Genetics: What We Know, What We Don't Know, and What It Means, Ctrs. Disease Control, https://www.cdc.gov/genomics/resources/diseases/obesity/obesknow.htm [https://perma.cc/8N72-3U84] (comparing what is known and what remains unknown about the role of genetics in obesity); Overview: Etiology – Genetic Factors of Overweight and Obesity, Université Laval: Research Chair in Obesity, http://www.obesity.ulaval.ca/obesity/generalities/genetic.php [https://perma.cc/6LKT-NRLP] (“Science shows that genetics plays a role in obesity. Genes can directly cause obesity in disorders such as Bardet-Biedl syndrome and Prader-Willi syndrome.”).
43 See, e.g., Chronic Diseases: The Leading Causes of Death and Disability in the United States, Ctrs. Disease Control (Feb. 23, 2016), https://www.cdc.gov/chronicdisease/overview/index.htm [https://perma.cc/2DYW-YBC8] (“Chronic diseases and conditions … are among the most common, costly, and preventable of all health problems.”).
44 U.S. Dep't. Health & Human Servs., CMS Manual System Pub. 100-03 Medicare National Coverage Determinations, Transmittal 23 (2004), https://www.cms.gov/Regulations-andGuidance/Guidance/Transmittals/downloads/R23NCD.pdf [https://perma.cc/4ZVA-8E2L]; see Fitzgerald, supra note 39.
45 Adult Obesity Causes and Consequences, supra note 42.
46 World Health Report, Overview: Enemies of Health, Allies of Poverty, World Heath Org. (2002), http://www.who.int/whr/2002/overview/en/index1.html [https://perma.cc/6MK8-8RZ3].
47 U.S. Dep't Health & Human Servs., The Surgeon General's Call to Action to Prevent and Decrease Overweight and Obesity 8 (2001), https://www.ncbi.nlm.nih.gov/books/NBK44206/pdf/Bookshelf_NBK44206.pdf [https://perma.cc/L7ARBD8L] [hereinafter “Call to Action”]. See generally Greenberg, James, Obesity and Early Mortality in the United States, 21 Obesity 405 (2013)CrossRefGoogle ScholarPubMed; Masters, Ryan, The Impact of Obesity on US Mortality Levels: The Importance of Age and Cohort Factors in Population Estimates, 103 Am. J. Pub. Health 1895 (2013).CrossRefGoogle ScholarPubMed
48 Liam Davenport, Obesity Second Only to Smoking as Cause of Premature Death, Medscape (July 24, 2017), http://www.medscape.com/viewarticle/866096. See generally Fact Sheet: Obesity in America, supra note 38.
49 “Excess weight and lack of sufficient physical activity causes between 25% to 33% of common cancers in the U.S. and other industrialized nations, according to the International Agency for Research on Cancer.” Fact Sheet: Obesity in America, supra note 38.
50 “Diabetes kills more Americans every year than AIDS and breast cancer combined … 85.2% of people with type 2 diabetes are overweight or obese.” Fast Facts – Data and Statistics about Diabetes, Am. Diabetes Ass'n (2015), https://professional.diabetes.org/pel/fast-facts-english-1 [https://perma.cc/JRV7-6TP5]; see Health Risks of Being Overweight, Nat'l Inst. Diabetes & Digestive & Kidney Diseases (2012), https://www.niddk.nih.gov/health-information/weight-management/health-risks-overweight [https://perma.cc/23QW-24LC].
51 See Adult Obesity Causes and Consequences, supra note 42; U.S. Soc. Security Admin., Program Operations Manual System (POMS) DI 24570.001, https://secure.ssa.gov/poms.nsf/lnx/0424570001 [https://perma.cc/LUL2-ARA7] (last updated Mar. 24, 2017) [hereinafter POMS]; Call to Action, supra note 47, at 8-9; see also Fact Sheet: Obesity in America, supra note 38; Beth Laurence, Social Security Disability and Morbid Obesity, DisabilitySecrets, http://www.disabilitysecrets.com/conditions-page-2-45.html [https://perma.cc/HS88-TJ9L].
52 Adult Obesity Causes and Consequences, supra note 42.
53 Even conservative studies show that moderate obesity may shorten one's lifespan and lower the quality of life significantly, and extreme obesity exacerbates both. See, e.g., NIH Study Finds Extreme Obesity May Shorten Life Expectancy Up to 14 Years, Nat'l Inst. Health (July 8, 2014), https://www.nih.gov/news-events/news-releases/nih-study-finds-extreme-obesity-may-shorten-life-expectancy-14-years [https://perma.cc/DRU3-VGQZ]; Obesity Could ‘Rob You’ of Twenty Years of Health, NHS.uk (Dec. 5, 2014), http://www.nhs.uk/news/2014/12December/Pages/Obesity-could-rob-you-of-20-years-of-health.aspx [https://perma.cc/3KBB-577Z].
54 See supra note 6 and accompanying text.
55 See supra note 6; infra notes 47-52 and accompanying text.
56 That standard course of treatment for obesity begins with the combination of a low-calorie diet, increased physical activity, and behavioral therapy, which achieves weight loss for the majority of obese patients. See The Practical Guide, supra note 25, at 1. After six months without sufficient responsiveness or in the event of additional health issue risks, providers may introduce pharmacotherapy—primarily sibutrmine to suppress appetite and orlistat to inhibit fat absorption from the intestine, each of which have side effects that may exacerbate obesity-related health issues. Id. at 3. For individuals not sufficiently responsive to these treatment measures who have a BMI ≥ 40, weight-loss surgery is an option. See infra note 62 and accompanying text. See generally Types of Bariatric Surger y, Nat'l Inst. Diabetes & Digestive & Kidney Disease (updated July 2016), https://www.niddk.nih.gov/health-information/weight-management/bariatric-surgery/types [https://perma.cc/6BBK-N2TE].
57 See, e.g., My 600-lb Life: Chad's Story (TLC television broadcast Jan. 20, 2016).
58 POMS, supra note 51, at 13.
59 For CMS coverage of behavioral therapy for obesity treatment protocols, see infra notes 61, 75 and accompanying text.
60 See generally Swan, supra note 2. See also My 600-lb Life supra note 1. Many of the patient lives probed in episodes of My 600-lb Life attribute food addictions to childhood traumas—from sexual, physical, and mental abuse, to poverty and instability that instilled fixations on food. Id. Some patients put on weight to push sexual perpetrators away (for example, Ashley, who allegedly was sexually abused by her uncle, and Laura, who allegedly was molested by an older cousin beginning when she was 5 years old). Id.; see, e.g., My 600-lb Life: Ashley's Story (TLC television broadcast Feb. 22, 2012); My 600-lb Life: Laura's Story (TLC television broadcast Mar. 18, 2015). Others eat for self-punishment (for example, Kirsten Perez, who blamed herself for being gang-raped when she was a teen), or for control and comfort in response to uncertainty and chaos. See, e.g., My 600-lb Life: Kirsten's Story (TLC television broadcast Jan. 25, 2017).
61 “Presently, bariatric surgery is the only available treatment for morbid obesity that consistently achieves and maintains substantial weight loss, decreases the incidence and severity of obesity-related comorbidities, and improves overall quality of life and survival.” Madura, James A. & DiBaise, John K., Quick Fix or Long-Term Cure? Pros and Cons of Bariatric Surgery, 4 F1000 Rep. Med. 19, 20 (2012)CrossRefGoogle ScholarPubMed (internal citation omitted). A major constraint on treatment, and especially for EMO patients given the added surgical difficulties, is access to surgeons with the requisite skills and who are willing to accept them as patients. Id. “From a practical standpoint, given the vast number of individuals that are potential candidates for surgery, there are an insufficient number of surgeons with sufficient expertise in these procedures to perform the necessary operations.” Id.
62 POMS, supra note 51, at 13-14.
63 See generally discussion infra Part III.A.
64 POMS, supra note 51, at 14.
65 Types of Bariatric Surger y, supra note 56.
66 Although the first bariatric surgery performed in humans was reported in 1954, meaningful uptake of the procedure did not take place until it was enhanced with laparoscopy, which allows surgery to be performed through small incisions, in the mid-1990s. Madura & DiBaise, supra note 61, at 21. A study of a new, non-surgical alternative procedure, endoscopic sleeve gastroplasty (“ESG”), was published in the May issue of the Journal of Clinical Gastroenterology and Hepatology and announced in the popular press on June 6, 2017. See John Torres & Parminder Deo, ‘Sewing Machine’ Surgery Helps Weight Loss Without Cutting, NBC News (June 6, 2017, 11:53AM), http://www.nbcnews.com/health/health-news/sewing-machine-surgery-helps-weight-loss-without-cutting-n768531 [https://perma.cc/A7G9-M6LC] (explaining a newly published promising weight-loss procedure that helped people lose body weight and BMI to a substantial degree). According to these reports, rather than a surgical incision, stiches are sewn into the stomach to reduce its size to that of a banana (the popular press referred to the procedure as “sewing machine surgery”). The procedure takes only 40 minutes to perform, and it is done on an out-patient basis. Id. The procedure shows promise, but more data and potentially considerably more time are prerequisites for standard of care uptake and insurance coverage. Id. Endoscopic sleeve gastroplasty costs the patient $10,000-$15,000. Id.
67 Estimate of Bariatric Surgery Numbers, 2011-2016, Am. Soc'y Metabolic & Bariatric Surgery, http://asmbs.org/resources/estimate-of-bariatric-surgery-numbers [https://perma.cc/UUX4-6EZN].
68 Madura & DiBaise, supra note 61, at 25-26.
69 See Al Harakeh, Ayman B. et al., Natural History and Metabolic Consequences of Morbid Obesity for Patients Denied Coverage for Bariatric Surgery, 6 Surgery Obesity & Related Diseases 591, 595 (2010)CrossRefGoogle ScholarPubMed (explaining that a large number of insurers deny coverage for bariatric surgery despite its positive effect on patients).
70 See generally Madura & DiBaise, supra note 61.
71 See Jamie Ponce et al., New Procedure Estimates for Bariatric Surgery: What the Numbers Reveal, ASMBS: Connect (May 2014), http://connect.asmbs.org/may-2014-bariatric-surgery-growth.html [https://perma.cc/E7CT-LBMJ] (explaining only about 1% of adults who are qualified for the bariatric surgery actually underwent the surgery).
72 See id.; Madura & DiBaise, supra note 61, at 23 (listing several factors that limit the availability of bariatric surgery).
73 See Metabolic and Bariatric Surgery Accreditation and Quality Improvement Program, Am. College Surgeons, https://www.facs.org/quality-programs/mbsaqip [https://perma.cc/L4YW-8GKJ].
74 See generally Madura & DiBaise, supra note 61, at 25 (noting insurers have adopted certification developed by ACS and ASMBS for bariatric surgery coverage).
75 Id.
76 Id.
77 See U.S. Dep't of Treasury, Internal Revenue Serv., 2016 Instructions for Schedule A (Form 1040), Examples of Medical and Dental Payments You Can Deduct A-2 (2016) (includes “[a] weight-loss program as treatment for a specific disease (including obesity) diagnosed by a doctor”).
78 See CMS Manual System Pub. 100-03, supra note 44, at sec. 100.1 (noting obesity related to certain medical conditions are covered by Medicare); U.S. Dep't of Health & Human Servs., Ctrs. for Medicare & Medicaid Servs., Bariatric Surgery for Treatment of Co-Morbid Conditions Related to Morbid Obesity, CMS.gov (2013), https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/downloads/MM8484.pdf [https://perma.cc/ZQY3-8CDS] [hereinafter Bariatric Surgery for Treatment of Co-Morbid Conditions]; U.S. Dep't of Health & Human Servs., Ctrs. for Medicare & Medicaid Servs., Bariatric Surgery for the Treatment of Morbid Obesity National Coverage Determination, Addition of Laparoscopic Sleeve Gastrectomy (LSG), CMS.gov (2014), https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/downloads/MM8028.pdf
[https://perma.cc/53G9-5XE2] [hereinafter Bariatric Surgery for the Treatment of Morbid Obesity]. Medicare covers intense behavioral therapy to treat morbid obesity in many cases, although it did take a step back from broadly mandating coverage. See generally CMS Manual System Pub. 100-03, supra note 44. Also, at this time, CMS is hesitant to reimburse for the sleeve procedure due to the relative (compared with the band and bypass procedures) lack of long-term (> 5 years) follow-up data and a paucity of data in individuals over 65 years of age, as is discussed infra note 92. See Madura & DiBaise, supra note 61; see also United Healthcare Medicare Advantage Policy Guideline, Bariatric Surgery for Treatment of Morbid Obesity (NCD 100.1) (Feb. 8, 2017), https://www.unitedhealthcareonline.com/ccmcontent/ProviderII/UHC/en-US/Main%20Menu/Tools%20&%20Resources/Policies%20and%20Protocols/Medicare%20Advantage%20Policy%20Guidelines/Bariatric_Surgery_TX_Morbid_Obesity.pdf [https://perma.cc/R2K4-8FF8] (noting some medical condition related obesity treatments are covered by Medicare).
79 NIH Obesity Research Task Force, Nat'l Inst. Diabetes & Digestive & Kidney Diseases, https://www.niddk.nih.gov/about-niddk/advisory-coordinating-committees/nih-obesity-research-task-force/Pages/default.aspx [https://perma.cc/8NAJ-VKNR]; see NHLBI Obesity Research, Nat'l Heart, Lung & Blood Inst. (2016), https://www.nhlbi.nih.gov/research/resources/obesity/ [https://perma.cc/K4G2-GCDL] (explaining NIH established a research task force to accelerate progress in obesity research). Still, given its prevalence and impact on both individual and public health, greater provider education and training in the field of obesity is needed. See Caulfield, Timothy, Obesity, Legal Duties, and the Family Physician, 53 Can. Fam. Physician 1129, 1130 (2007)Google ScholarPubMed (emphasizing that physicians must have sufficient skills, tools and resources to manage health issue of obesity).
80 NHLBI Obesity Research, supra note 79.
81 See generall y id.; The Practical Guide, supra note 25.
82 See generally Weight Loss Surgery Insurance Coverage and Costs, Obesity Coverage, http://www.obesitycoverage.com/weight-loss-surgery-insurance-coverage-and-costs/ [https://perma.cc/RXU8-KKWP] (explaining currently more insurance companies cover weight-loss surgery than previously).
83 See Bariatric Surgery Cost in 2017-With or Without Insurance, Bariatric Surgery Source http://www.bariatric-surgery-source.com/cost-bariatric-surgery.html [https://perma.cc/GU8K-6YSF] (“With Insurance” chart indicating coverage for the switch procedure).
84 Denise Mann & Neil Hutcher, Weight Loss Surgery Insurance Coverage: How Much Does Weight Loss Surgery Cost?, Consumer Guide to Bariatric Surgery, http://www.yourbariatricsurgeryguide.com/insurance/ [https://perma.cc/G6UR-UPVW].
85 See generally id. (noting insurance coverage for weight-loss surgery varies by state and insurance provider).
86 See generally What's Medicare?, Medicare.gov, https://www.medicare.gov/sign-up-change-plans/decide-how-to-get-medicare/whats-medicare/what-is-medicare.html [https://perma.cc/Y5AU-4Q6R].
87 See generally Mann & Hutcher, supra note 84.
88 For more identification of the “full bouquet” of Medicare prerequisites and more detailed discussion, see CMS Manual System Pub. 100-03, supra note 44, at sec. 100.1; see also Bariatric Surgery for Treatment of Co-Morbid Conditions, supra note 78; Bariatric Surgery for the Treatment of Morbid Obesity, supra note 78.
89 Mann & Hutcher, supra note 84.
90 Id.
91 See generally Eligibility, Medicaid.gov, https://www.medicaid.gov/medicaid/eligibility/ [https://perma.cc/XSX7-DGGA].
92 Lee, Jennifer S. et al., Coverage of Obesity Treatment: A State-by-State Analysis of Medicaid and State Insurance Laws, 125 Pub. Health Rep. 596, 599 (2010).CrossRefGoogle ScholarPubMed
93 See id.; see also Mann & Hutcher, supra note 84; FAQ—Medicare and Medicaid, Does Medicare and Medicaid Cover Weight Loss Surgery?, Weight Loss Surgery Found. Am., http://www.wlsfa.org/looking-for-help/how-to-apply-for-a-grant/faq-medicare-medicaid/ [https://perma.cc/ST58-RPMY].
94 Letters of medical necessity from both a patient's weight-loss surgeon and primary care physician should include:
[The patient's] height, weight history and BMI
A detailed description of [the patient's] obesity-related health conditions, including records of treatment. Such conditions may include high blood pressure, diabetes, heart and blood vessel disease, sleep apnea, gastroesophageal reflux, arthritis and high cholesterol.
[The patient's] current medications
A detailed description of how the obesity affects [the patient's] daily activities
A detailed history of past dieting efforts. A number of insurers now require detailed documentation of participation in a physician-supervised diet plan. Most require the submission of at least six months' worth of office notes from the supervising doctor.
A history of exercise programs, along with gym membership documentation
Mann & Hutcher, supra note 84. Many insurers require a nutritional consultation and psychological evaluation and, if required, individuals should obtain these through a referral from their surgeon, and both the primary care physician and surgeon should incorporate them into their submissions. Id.
95 See Weight Loss Surgery Insurance Coverage and Costs, supra note 82; Mann & Hutcher, supra note 84.
96 Nanci Hellmich, Obamacare Requires Most Insurers to Tackle Obesity, USA Today (July 4, 2013, 8:00 AM), https://www.usatoday.com/story/news/nation/2013/07/04/obesity-disease-insurance-coverage/2447217/ [https://perma.cc/H4BY-CRNR].
97 See supra notes 25-28 and accompanying text.
98 Ponce, supra note 71.
99 See Weight Loss Surgery Insurance Coverage and Costs, supra note 82; Mann & Hutcher, supra note 84.
100 See generally Bariatric Surgery and Other Treatments for Clinically Severe Obesity, Anthem (Sept. 27, 2017), https://www.anthem.com/medicalpolicies/policies/mp_pw_a053317.htm [https://perma.cc/5FJX-3P2Y].
101 Hellmich, supra note 96; Mann & Hutcher, supra note 84.
102 See infra note 214. See also Mann & Hutcher, supra note 84; Hellmich, supra note 96.
103 Mann & Hutcher, supra note 84.
104 Social Security Act of 1935, Title II, 42 U.S.C. §§ 401-433 (2016); Social Security Act of 1935, Title XVI, 42 U.S.C. §§ 1381-1383f (2016). See U.S. Soc. Sec. Admin., supra note 51; SSR 83-20, 1983 WL 31249 (Jan. 1, 1983). See also Beth Laurence, Does Medicare or Medicaid Come with Disability?, Nolo, https://www.nolo.com/legal-encyclopedia/does-medicare-medicaid-come-with-social-security-ssi-disability-benefits.html [https://perma.cc/K2E3-PMPT]; Laurence, supra note 51; Obesity and Social Security Disability, Disability Benefits Help, http://www.disability-benefits-help.org/disabling-conditions/obesityand-social-security-disability [https://perma.cc/MG3V-HMHA]; Supplemental Security Income (SSI), HealthCare.gov, https://www.healthcare.gov/people-with-disabilities/ssi-and-medicaid/ [https://perma.cc/J4FN-AEFQ]; Benefits for People With Disabilities, Soc. Security Admin., https://www.ssa.gov/disability/ [https://perma.cc/APR8-VRJJ]; National Average Wage Index (2016), Soc. Security Admin., https://www.ssa.gov/OACT/COLA/AWI.html [https://perma.cc/EYU9-79ER]; SSI Federal Payment Amounts For 2018, Soc. Security Admin., https://www.ssa.gov/OACT/COLA/SSI.html [https://perma.cc/8VBR-EZKJ].
105 Obesity and Social Security Disability, supra note 104. See generally Supplemental Nutrition Assistance Program (SNAP), U.S. Dep't of Agric. (Jan. 30, 2017), https://www.fns.usda.gov/snap/supplemental-nutrition-assistance-program-snap [https://perma.cc/54SHM4HC].
106 See generally Am. Elder Care Research Org., State by State Guide to Medicaid's Home Care Benefits, Paying for Senior Care (May 2017), https://www.payingforseniorcare.com/medicaid-waivers/home-care.html [https://perma.cc/6HH8-G3ET]; Helga Niesz & Peter Martino, States that Allow Family Members to Act as Personal Care Assistants, Conn. Gen. Assembly (Feb. 21, 2003), https://www.cga.ct.gov/2003/rpt/2003-R-0040.htm [https://perma.cc/3HSC-SJHD].
107 According to the Connecticut General Assembly based on its 2003 state survey,
States that allow relatives to be caregivers often do so through a “consumer-directed option,” either as part of the home care program or as a separate program, whereby consumers can choose and hire their own personal care attendant or assistant (PCA). PCAs may be certain relatives, but not usually the spouse, parent of a minor child or legally liable relative (except in 12 purely state-funded programs that do not have any limits on who can be a PCA and do not use Medicaid money)…. Most states do not require any particular training for a family member who acts as a PCA in the consumer-directed option but leave it up to the clients to do any necessary training.
Niesz & Martino, supra note 106.
108 POMS, supra note 51 (“How do we evaluate obesity in assessing residual functional capacity in adults…?”).
109 See generally Benefits for People with Disabilities, supra note 104.
110 Id.
111 See generally id.; POMS, supra note 51; Supplemental Security Income, supra note 104.
112 Laurence, Medicare or Medicaid?, supra note 104.
113 Listing of Impairments, 20 C.F.R. pt. 404, subpt. P., app. 1 (2002); see 20 C.F.R. §§ 404.1569, 416.969; Disability Evaluation Under Social Security, Soc. Security Admin., https://www.ssa.gov/disability/professionals/bluebook/ [https://perma.cc/5W6S-C3EW].
114 See generally POMS, supra note 51.
115 Disability Determination Process, Soc. Security Admin., https://www.ssa.gov/disability/determination.htm [https://perma.cc/MUH2-N2SY].
116 See generally id.; Laurence, Medicare or Medicaid?, supra note 104; Laurence, Morbid Obesity, supra note 51; Obesity and Social Security Disability, supra note 104; Facts About Morbid Obesity and Filing for Disability, Soc. Security Disability Resource Ctr., http://www.ssdrc.com/ssd-morbid-obesity.html [https://perma.cc/27AQ-Q5XT].
117 Hearings and Appeals, Soc. Security Admin., https://www.ssa.gov/appeals/about_odar.html [https://perma.cc/B42Y-PHRP].
118 POMS, supra note 51.
119 Id. at SSR 02-1p.
120 See generally Laurence, Medicare or Medicaid?, supra note 104; Benefits for People With Disabilities, supra note 104.
121 See generally Laurence, Medicare or Medicaid?, supra note 104; Benefits for People With Disabilities, supra note 104.
122 See generally Laurence, Medicare or Medicaid?, supra note 104.
123 See generally discussion supra Part II.B.1.
124 King, supra note 11.
125 See generally Swan, supra note 2.
126 Id. (“None of the people on the show are elderly or terminally ill, yet they feel some sort of physical pain from the moment they get up in the morning, until they go to sleep at night. Some can't even walk across the room without pain.”)
127 Id. (“The show has really humiliating bathroom scenes…. Maybe the most embarrassing instance was in an episode featuring Nicole Lewis, whose story aired in 2017…. She got so big, she couldn't fit in the shower. So she had to be hosed-off like an animal outside on the porch.”).
128 King, supra note 11.
129 My 600-lb Life: James K's Story, supra note 15.
130 Id.
131 Id.
132 See supra note 6.
133 See generally Cellulitis, Healthline, http://www.healthline.com/health/cellulitis#overview1 [https://perma.cc/94BH-KBCT]. Cellulitis is bacterial skin infection, which causes swelling, pain to the touch, and leaking sores. Id. The infection, which usually starts in the legs, spreads rapidly throughout the body and face. Id. Without proper treatment, cellulitis may become life-threatening. Id.
134 My 600-lb Life: James K's Story, supra note 15. The next few pages will recount James K's episode of My 600-lb Life. All quotes from the show are attributable to note 15.
135 Jeryl Lippe, ‘My 600-Lb Life’ Star James K. Before and After: Inside His Weight Loss Journey, InTouch (Nov. 30, 2017, 4:41 pm), http://www.intouchweekly.com/posts/my-600-lb-life-james-k-before-and-after-127951/photos/christina-phillips-600-lb-life-238610 [https://perma.cc/WP9J-QXGY].
136 Swan, supra note 2.
137 Id. (“Of the dozens of examples of children ‘parented’ into EMO enablement documented by TLC, one of the most extreme and troubling involves Marla McCants' [sic] children. Marla unabashedly consumed junk food at a weight of 800 pounds, and even cooked fried chicken in bed—from which she ordered her three children to bring her food.”).
138 See Marilia Schteleben, ‘My 600-lb Life’ Dr. Now Blames Obesity, Weight-Loss Fail on Enabling Care-Givers,> BlastingNews (June 20, 2017), http://us.blastingnews.com/showbiz-tv/2017/06/my-600-lb-life-dr-now-blames-obesity-weight-loss-fail-on-enabling-caregivers-001788341.html [https://perma.cc/QP3Z-R6C9].
139 My 600-lb Life: James K's Story, supra note 15.
140 Id.
141 My 600-lb Life: Laura's Story (TLC television broadcast Mar. 18, 2015); Naomi Greenaway, Obese Woman Who Lost 300lbs Says Her Marriage Nearly Collapsed After her Husband Felt ‘Pushed Out’ When He No Longer Needed to Shower, Dress and Feed Her, Daily Mail (May 12, 2016, updated June 1, 2017), http://www.dailymail.co.uk/femail/article-3586460/Obese-woman-says-marriage-nearly-ended-dropped-300lbs.html [https://perma.cc/NT2G-YRP3].
142 Id.
143 Id.
144 Id.
145 Id.
146 See My 600-lb Life: Christina's Story (TLC television broadcast Feb. 4, 2014); see also Swan, supra note 2.
147 Id.
148 See Annabel F. Elliott, ‘Our Husbands Only Loved Us When We Were Fat’: Two My 600-lb Life Stars Lose Half their Body Weight - Along with Their Unsupportive Spouses, Daily Mail (Jan. 8, 2015), http://www.dailymail.co.uk/femail/article-2902609/Our-husbands-loved-fat-Two-600-lb-Life-stars-lose-half-body-weight-unsupportive-spouses.html [https://perma.cc/XGT3-DUPX].
149 My 600-lb Life: Zsalynn's Story (TLC television broadcast).
150 Id.
151 Id.
152 Id.
153 Id.
154 Id.
155 Id.
156 Id.
157 Id.
158 Id.
159 Id.
160 See supra notes 113-19 and accompanying text.
161 POMS, supra note 51, at 14 (“How do we evaluate failure to follow prescribed treatment in obesity cases?”); see supra note 64 and accompanying text.
162 POMS, supra note 51, at 14; see supra note 64 and accompanying text.
163 See supra note 106 and accompanying text.
164 See supra notes 106-7 and accompanying text
165 My 600-lb Life: Penny's Story (TLC television broadcast Jan. 21, 2014).
166 See generally discussion supra Part II.A. Federal police powers are based in the Commerce Clause, Art. 1, sec. 8, cl. 3, and state police powers are grounded in the state reservation of power and rights to them under the Tenth Amendment to the U.S. The Constitutional checks on these powers, requiring government interventions to be sufficiently compelling, are due process under the Fourteenth Amendment (check on federal government) and Fifth Amendment (check on state government), and individual rights under the First Amendment. See Sandra H. Johnson et al., Bioethics and Law in a Nutshell, 273-77, 280-85 (2d ed. 2006).
167 See generally discussion supra Part II.
168 See supra note 61 and accompanying text.
169 See supra notes 45-52 and accompanying text.
170 See, e.g., Alison Kodjak & Rob Stein, Medical Research, Health Care Face Deep Cuts in Trump Budget, NPR (May 23, 2017), http://www.npr.org/sections/health-shots/2017/05/23/529654114/medical-research-health-care-face-deep-cuts-in-trump-budget [https://perma.cc/8LUT-ESQT].
171 See, e.g., The Victims of Child Abuse Act of 1990, 18 U.S.C. § 3509 (1990); Mandatory Child Abuse Reporting, 0030 Surveys 13 (2016) (a survey of state laws imposing a mandatory duty to report child abuse and neglect); Physical and Financial Abuse of the Elderly, 0080 Surveys 1 (2016)Google Scholar (a survey of state laws protecting the elderly and, in some instances, other vulnerable adults).
172 See, e.g., Ind. Code § 31-33-5-1 (2013). For a history of mandatory reporting laws in the context of child abuse, see Smith, Megan M., Note, Causing Conflict: Indiana's Mandatory Reporting Laws in the Context of Juvenile Defense, 11 Ind. Health L. Rev. 439, 444-46 (2014).CrossRefGoogle Scholar
173 Donald Redelmeier, Vikram Vinkatesh & Matthew Stanbrook, Mandatory Reporting by Physicians of Patients Potentially Unfit to Drive, Open Med (2008).
174 75 Pa. Cons. Stat. § 1518 (2017).
175 State Standards for Assisted Treatment: Civil Commitment Criteria for Inpatient or Outpatient Psychiatric Treatment, Treatment Advocacy Center (Oct. 2014), http://www.treatmentadvocacycenter.org/storage/documents/Standards_-_The_Text-_June_2011.pdf [https://perma.cc/YU9Q-DXVR]. Involuntary admissions to treatment centers is not a practical solution for EMO patients given limited facilities with the capability to provide their inpatient care. Beyond general facility staffing, many physicians do not have the professional training necessary for treatment interventions of these patients or desire to assume the associated patient health care risks. See supra notes 5, 61 and accompanying text.
176 See generally State Standards for Assisted Treatment, supra note 175.
177 CMS has adopted the standard for the purposes of hospice care benefits under Medicare. See Certification of Terminal Illness, 42 C.F.R. § 418.22(b) (2012) (requiring two physicians to certify that the patient's prognosis is six months of life or less); CMS, Medicare Benefit Policy Manual, CMS Pub. 100-02, Chap. 9, sec. 10 (Rev. 209, May 8, 2015), https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/bp102c09.pdf [https://perma.cc/H6WY-MQW3]. See generally Unroe, Kathleen Tschantz & Meier, Diane E., Palliative Care and Hospice: Opportunities to Improve Care for the Sickest Patients, 25 Notre Dame J.L. Ethics & Pub. Pol'y 413 (2011).Google Scholar
178 See supra notes 46-52, 58 and accompanying text.
179 See Death with Dignity Nat'l Ctr., https://www.deathwithdignity.org/ [https://perma.cc/N9UK-MMFU].
180 Oregon Health Authority, Death with Dignity Act Requirements, Oregon.gov, http://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Documents/requirements.pdf [https://perma.cc/5QGB-X9K8]. In sum, patients “must be:
An adult (18 years of age or older),
A resident of Oregon
Capable (defined as able to make and communicate health care decisions), and
Diagnosed with a terminal illness that will lead to death within six months.”
Id. In addition,
The patient must make two oral requests to his or her physician, separated by at least 15 days.
The patient must provide a written request to his or her physician, signed in the presence of two witnesses.
The prescribing physician and a consulting physician must confirm the diagnosis and prognosis.
The prescribing physician and a consulting physician must determine whether the patient is capable.
If either physician believes the patient's judgment is impaired by a psychiatric or psychological disorder, the patient must be referred for a psychological examination.
The prescribing physician must inform the patient of feasible alternatives to DWDA, including comfort care, hospice care, and pain control.
The prescribing physician must request, but may not require, the patient to notify his or her next-of-kin of the prescription request.
Id. (emphasis added).
181 See generally id.
182 See Compassion Choices, A New Video for My Friends, YouTube (Oct. 29, 2014), https://www.youtube.com/watch?v=1lHXH0Zb2QI [https://perma.cc/3ECR-UGD2].
183 See generally, Nicole Weisensee Egan, Brittany Maynard's Final Hours: Husband Dan Diaz Says She ‘Knew It Was Time,’ People (Oct. 25, 2016), http://people.com/celebrity/brittany-maynards-final-hours-husband-dan-diaz-says-she-knew-it-was-time/ [https://perma.cc/S9K4-L6XW]; The Meredith Vieira Show (NBCUniversal television broadcast Jan. 14, 2015) (Dan Diaz discussing his wife's, Brittany Maynard, final moments before ending her own life through “Death-With-Dignity”).
184 See, e.g., supra notes 88-89, 93, 116 and accompanying text.
185 If one focuses on addiction, another comparison that comes to mind is the liability of associates of drug addicts who provide the ‘final fix,’ resulting in overdoses—but in this case the medium is controlled substances, an antonym to food given its legal availability. Nevertheless, while addictions to substances other than food leading to EMO are beyond the scope of this article, opiate addiction in the U.S., like food addiction causing obesity, is an epidemic. See Laura Santhanam, Here's What Trump's New Executive Order Means for Opioid Addiction, PBS News Hour (Mar. 29, 2017), http://www.pbs.org/newshour/rundown/heres-trumps-new-executive-order-means-opioid-addiction/ [https://perma.cc/D85V-Y4AC]. According to the CDC, Opioids (including prescription opioids and heroin) killed more than 33,000 people in 2015, more than any year on record. Opioid Overdose, Ctrs. Disease Control, https://www.cdc.gov/drugoverdose/index.html [https://perma.cc/N8CH-XBDT] (last updated Apr. 16, 2017). CMS has recently summarized the dilemma. See generally, Opioid Misuse Strategy, Ctrs. Medicare & Medicaid Servs. (Jan. 5, 2017), https://www.cms.gov/Outreach-and-Education/Outreach/Partnerships/Downloads/CMS-Opioid-Misuse-Strategy-2016.pdf [https://perma.cc/YNB4-AWAJ]. Similar to food addiction, CMS covers the costs of treatment for opioid addiction when eligibility requirements are satisfied, and there is an ongoing oversight and progress component to monitor treatment compliance. See generally Federal Guidelines for Opioid Treatment Programs, Substance Abuse & Mental Health Servs. Admin. (2015), http://store.samhsa.gov/shin/content/PEP15-FEDGUIDEOTP/PEP15-FEDGUIDEOTP.pdf [https://perma.cc/B5LG-37WP]; Paying for Rehab with Medicaid and Medicare, Ctrs. Medicare & Medicaid Servs., https://www.addictioncenter.com/rehab-questions/medicaid-and-medicare/ [https://perma.cc/BA5S-NSFS] (last updated Jan. 10, 2017). The Trump Administration has formed a commission by Executive Order to respond to and counter what it has declared a national public health emergency, and the chair has expressly recognized addiction as a disease. See Santhanam, supra note 185.
186 This civil liability cause of action recently drew national attention with a $36 million judgment against Nick Gordon for the wrongful death of Bobbi Kristina Brown, daughter of the late Whitney Houston, in a wrongful death action brought by her family. See Ryan Dennis & Maria Puente, Judge Orders Nick Gordon to Pay $36 Million to Bobbi Kristina's Family, USA Today, https://www.usatoday.com/story/life/music/2016/11/17/judge-orders-nick-gordon-pay-36-million-bobbikristinas-family/94041640/ [https://perma.cc/5623-N6YC] (last updated Nov. 18, 2016). The cause of action drew much national attention years before when the families of the late Ronald Goldman and Nicole Brown Simpson brought a victorious wrongful death action against O.J. Simpson based on allegations of double murder. See generally, Matt Gutman et al., Ron Goldman's Family Speaks Out 20 Years After ‘Empty’ Victory in O.J. Simpson Civil Suit, ABC News (Feb. 3, 2017), http://abcnews.go.com/US/ron-goldmans-family-speaks-20-years-empty-victory/story?id=45233200 [https://perma.cc/WUA7-VYSH].
187 As explained by CMS, “Medicare coverage is limited to items and services that are reasonable and necessary for the diagnosis or treatment of an illness or injury (and within the scope of a Medicare benefit category)…. In some cases, CMS' [sic] own research is supplemented by an outside technology assessment and/or consultation with the Medicare Evidence Development & Coverage Advisory Committee (MEDCAC).” Medicare Coverage Determination Process, Ctrs. Medicare & Medicaid Servs., https://www.cms.gov/Medicare/Coverage/DeterminationProcess/ [https://perma.cc/7ZNA-GWEW] (last updated Apr. 8, 2015).
188 See supra notes 88-89 and accompanying text.
189 See supra notes 5, 61, 89 and accompanying text.
190 See generally, Inst. of Med., Comm. on the Quality of Health Care in Am., Crossing the Quality Chasm: A New Health System for the 21st Century (2001); U.S. Dep't of Health & Human Servs. Agency for Healthcare Research & Quality, Patient Safety and Quality: An Evidence-Based Handbook for Nurses (Ronda G. Hughes, ed., 2008), https://www.ncbi.nlm.nih.gov/books/NBK2681/ [https://perma.cc/6Q7W-FQP3].
191 See generally POMS, supra note 51.
192 See supra notes 56, 88 and accompanying text.
193 See supra note 12 and accompanying text. See generally POMS, supra note 51.
194 See generally Kodjak & Stein, supra note 170; Michael Martin, Federal Medicaid Funding Cuts Under Senate Health Care Bill Puts Pressure on States, NPR (June 24, 2017), http://www.npr.org/2017/06/24/534248643/federal-medicaid-funding-cuts-under-senate-health-care-bill-puts-pressure-on-sta [https://perma.cc/XNF5-K6YL].
195 See generally Bariatric Surgery and Other Treatments, supra note 100 (listing seven required documents patients or their physicians must provide to private insurers before surgery may be authorized).
196 See supra notes 105, 120 and accompanying text; POMS, supra note 51.
197 See supra notes 105-06 and accompanying text.
198 See generally Benefits for People with Disabilities, supra note 104.
199 See supra note 64 and accompanying text; POMS, supra note 51, at 14.
200 See supra notes 171-6 and accompanying text.
201 My 600-lb Life: Steven & Justin–Part I (TLC television broadcast Mar. 29, 2017); My 600-lb Life: Steven & Justin–Part II (TLC television broadcast Apr. 5, 2017).
202 Steven & Justin–Part I, supra note 201.
203 Id.; Steven & Justin–Part II, supra note 201.
204 Steven & Justin–Part I, supra note 201.
205 Steven & Justin–Part II, supra note 201.
206 Id.
207 Id.
208 Id. For information about the program, see Texas Prescription Monitoring Program, Tex. St. Board of Pharmacy (Sept. 1, 2017), http://www.pharmacy.texas.gov/PMP/ [https://perma.cc/56YMB2BQ]; Krista R. Crockett, Prescription Monitoring Program—Now Available Online, Tex. Med. Liability Tr., https://www.tmlt.org/tmlt/tmlt-resources/newscenter/blog/2012/Prescription-monitoring-program-now-available-online.html [https://perma.cc/7H44-85BY].
209 Steven & Justin–Part II, supra note 201.
210 Id.
211 See, e.g., supra notes 39-40, 73 and accompanying text (discussing the AMA's adoption of a policy regarding obesity “disease” status and the ASMBS and ACS's joint development of the MBSAQIP self-regulation, national accreditation, and certification program).
212 See supra notes 171-2 and accompanying text.
213 See supra notes 179-83 and accompanying text.
214 Bariatric Surgery Procedures, Am. Soc'y Metabolic & Bariatric Surgery (2017), https://asmbs.org/patients/bariatric-surgery-procedures [https://perma.cc/X74J-YNKF]; Cost Range of a Gastric Bypass Revision, Bariatric Surgery Source, http://www.bariatric-surgery-source.com/cost-range-of-a-gastric-bypass-revision.html [https://perma.cc/48YC-ADMC] (last modified May 5, 2016); Estimate of Bariatric Surgery Numbers, supra note 67; Types of Bariatric Surger y, supra note 56.; Madura & DiBaise, supra note 61; see Bariatric Surgery Cost in 2017, supra note 83; Bariatric Surgery for the Treatment of Morbid Obesity, supra note 78; Weight Loss Surgery Insurance Coverage and Costs, supra note 82; Denise Mann, Duodenal Switch Surgery Cost, Consumer Guide to Bariatric Surgery, http://www.yourbariatricsurgeryguide.com/duodenal-switch-cost/ [https://perma.cc/NE75-QAP9]; Mann & Hutcher, supra note 84. A surgery-alternative procedure, ESG, was announced in the popular press on June 6, 2017, but ESG is in the nascent stage of introduction into obesity treatment. See supra note 66 (discussing ESG).
215 The overall cost of bariatric surgery encompasses:
anesthesia, the hospital facility and the surgeon's fee. There will also likely be additional costs after surgery, including those associated with diet and fitness plans, behavioral modification therapy and nutritional supplements. And the weight loss surgery is likely not the last surgery you will undergo. After weight loss surgery, many people want additional body contouring surgeries to remove excess skin, lift sagging body areas, improve loose muscles or treat fat deposits. Some of these additional procedures could include a facelift, breast augmentation, breast lift, abdominoplasty or liposuction.
Mann & Hutcher, supra note 84. Costs vary at times significantly among providers, as does insurance coverage. Surgery fees, overhead, and demand tend to be higher in urban areas, which raise costs charged for the procedures. See id. According to one source, with full insurance coverage and provided prerequisites are met, the patient out-of-pocket costs of each of the surgery procedures profiled may be reduced to $3,500.00. Bariatric Surgery Cost in 2017, supra note 83. When core costs are combined with unforeseen and incidental costs, they often escalate substantially. See generally Gary Weiss, The True Cost of my Weight-Loss Surgery, Time (Jan. 31, 2014), http://time.com/money/2795119/the-true-cost-of-my-weight-loss-surgery/ [https://perma.cc/NW2D-KXJW].
216 For information about both procedures, see Biliopancreatic Diversion and Biliopancreatic Diversion with Duodenal Switch, WebMD (Feb. 20, 2015), http://www.webmd.com/diet/obesity/biliopancreatic-diversion-1920 [https://perma.cc/GCX8-LKE7].
217 “Other” includes the gastric balloon, AspireAssist, and vBloc Therapy treatments. See Bariatric Surgery Cost in 2017, supra note 83. However, these alternatives stray from standard of care for obesity treatment, which limits both availability and insurance coverage. Cf. id.