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The denial of a treatment for breast cancer pits the Equal Employment Opportunity Commission against Fred Meyer. BY JOSH FEIT, jfeit@wweek.com Three weeks after Fred Meyer helped sponsor the annual Susan G. Komen Breast Cancer Foundation's "Race for the Cure," the local retail chain was sued in U.S. District Court for refusing to pay for breast cancer treatment for one of its employees. On Oct. 10, the Equal Employment Opportunity Commission filed a case in Portland's federal court on behalf of Julie Markham, a longtime Fred Meyer employee. Markham, a truck dispatcher and 41-year-old single mother of two teen-agers, has worked at Fred Meyer for 17 years. She is in the third stage of breast cancer, meaning that the cancer cells haven't spread to other parts of her body yet, but they are considered "aggressive." The powerful treatment Markham needs, which would cost about $85,000, is not on Fred Meyer's list today. Fred Meyer's in-house health plan has a comprehensive list of what it will and will not cover. The plan is administered by a Utah company called First Health. First Health simply processes claims based on Fred Meyer's plan and cuts the checks. Preferred provider organizations like Intermountain Health Care provide the care. Fred Meyer spokesman Rob Boley says Fred Meyer takes final responsibility for which procedures are covered or excluded in the company plan. He says they base those decisions on the advice of medical and insurance experts, including First Health. Fred Meyer's plan covers traditional chemotherapy, but Markham's lawyer says she needs a treatment known as high-dose chemotherapy, or HDC. She also needs stem cell replacement, which works as a safeguard to ensure that HDC doesn't annihilate the patient's immune system. HDC and stem cell replacement were developed as a treatment by the Fred Hutchinson Cancer Research Center in Seattle in 1990. Markham's lawyer, who calls Fred Meyer's decision a "death sentence," says the treatment would raise Markham's chances of remission and recovery to 80 percent. Markham underwent surgery in July--a partial mastectomy--after starting chemotherapy in May. On Aug. 29, Markham's sister Fran Biddle sent a letter to Fred Meyer CEO Bob Miller requesting that he grant Markham a waiver and provide the treatment. (Fred Meyer's health plan gives Miller this power.) On Sept. 17, Miller wrote back : "Our plan does not cover experimental or investigational treatments.... It specifically enumerates services and supplies not covered by the plan.... Among them is the one for which your sister is asking a waiver." Fred Meyer spokesman Boley wouldn't elaborate, saying simply, "It's sad." Biddle thinks it's more than sad. "It's war," Biddle told Willamette Week from her home in Seattle the afternoon before the case was filed. Markham is too ill to comment. The lawsuit is one of many that breast cancer patients have filed in recent years against employers and insurance companies who specifically list HDC and stem cell replacement as procedures they won't cover to treat breast cancer. Last week in Detroit, for example, a class-action suit against Blue Cross and Blue Shield was settled for an estimated $5 million. The company agreed to cover high dose chemotherapy and stem cell replacement for hundreds of patients. Although treating breast cancer with HDC and stem cell replacement was experimental a few years ago, a flood of recent studies has brought it into the mainstream. "This is not witchcraft," says Dr. David Regan, a medical oncologist and president of the Oregon Society of Medical Oncology. "It's simply not experimental. It's a well-established technique and there is a vast amount of experience backing it up." Last legislative session, in fact, the Oregon Health Plan added stem cell replacement for breast cancer to the list of procedures it hopes to cover this year. OHP administrator Darren Coffman attributed the decision to the flood of new studies. More important, excluding breast cancer treatments is quickly becoming a civil rights issue. According to Eugene lawyer Steven Yates--who forced Blue Cross and Blue Shield to pay for a client's breast cancer treatment in 1995--some health plans are sexist, covering high-dose chemotherapy for testicular cancer but not for breast cancer. This is exactly why the Equal Employment Opportunity Commission joined Markham's case. "The EEOC thinks that the language of Fred Meyer's plan is discriminatory," says Markham's attorney Lish Whitson. Fred Meyer declined to discuss the case with Willamette Week, but the company is likely to use a formidable defense: complex federal legislation passed in 1974, called the Employee Retirement Income Security Act. ERISA gives companies broad discretion to rely on their own experts in deciding what is and isn't covered under in-house company health plans. |
