Joseph Romano Law

Fifty million Americans are affected by what is known in the managed care health insurance industry as "practice or treatment guidelines". Healthcare professionals and many patients and their families have heard the term "treatment guidelines", and know that this is often the term used by managed health care insurers to deny or limit specific medical treatment or care. Patients are being told by their HMOs:

Cancer treatments are experimental.
The requested treatment is not medically necessary.
The requested treatment is custodial in nature.
According to our treatment guideline, the patient cannot make any more rehabilitative gains.
We have provided the most appropriate care possible, given the patient's condition.
There is a limit to what we can do.
If we granted everyone's appeal, we would be out of business.

Unfair and unnecessary medical documentation required before approval for bone marrow transplants
Overly restrictive guidelines requiring unrealistic progress before acceptance into a coma stimulation/coma awareness TBI program
Directives limiting the type of catheters, number of home care visits, and type and frequency of therapies for spinal cord injured individuals
Delaying hospital admission and fetal monitoring for a woman in labor
Denial of all requests for admission to a hospital the night before surgery - "pre-op admits"
Directives limiting how long a patient should be hospitalized after bypass surgery
Insurance companies replace treatment guidelines for profit guidelines
Primary care providers are encouraged to limit testing and referral of cancer patients to specialists
Precise symptoms a woman must have before undergoing a hysterectomy
Discharge from hospital emergency rooms without treatment or admission

Initially, practice guidelines were intended for use as recovery recommendations. However, the reality is that they are "Treatment Barriers" for the seriously ill or injured patient. Numerous studies have been conducted to find the effects that restrictive treatment and treatment guidelines have on the overall health and recovery of the patient.

Health care providers and cancer, TBI and spinal cord injured patients and their families are becoming more aware that restrictive HMO guidelines result in unnecessary complications, which require additional costly care in the future. Moreover, patients fail to reach optimal recovery when care and services are denied.

Milliman & Robertson is one of the leading publishers of healthcare management guidelines. This company, and others, sells their practice guidelines to HMOs. The guidelines provide estimates of optimal recovery times for thousands of medical treatments and surgical procedures. Some of the complaints are:

The guidelines are published by health care management agencies, and vary from company to company.
The guidelines are written so they are open to HMO interpretation.
HMO guidelines are not provided to the insured, the insured's treating doctor or other health care professionals.
Insurance companies modify the guidelines or restrict the guidelines according to their business needs.
Guidelines adopted by HMOs vary significantly from insurance plan to insurance plan.

Opponents of HMO guidelines argue that physicians are not being permitted flexibility in deciding the best care for their particular patient's needs, and that these guidelines are set with complete disregard of prior medical history and overall health of the patient. This is especially true when care of catastrophically ill or injured patients is denied because they do not "fit" within the strict confines of the guidelines.

Treatment guidelines are not guidelines at all, but are strict parameters into which patient care must fit, or the HMO will deny reimbursement.

APPEALS
Appealing an HMO decision that is based on flawed treatment guidelines is a challenging endeavor. Most appeals are unsuccessful because of the following factors:

Patients, their advocates, and their health care providers don't have the insurance policy, including the definitions, limitations, exclusions, experimental clauses, and "treatment guidelines" which are the basis of the HMO decision.
Treatment guidelines and regulations, which form the basis of the HMO's decision-making process, are not memorialized in a written document.
The period of time in which an appeal must be filed by a patient, patient advocate, attorney, or health care provider, is a short one, which restricts a patient's ability to gather appropriate medical documentation.
An appeal hearing is normally done over the telephone, and not in person. This makes the entire process both and faceless.
There are no guarantees that any medical information or documentation that is sent to the appeals committee will be read prior to the hearing.
During most appeals, the patient and the patient's advocate are not permitted to question the reviewing appellate hearing officers to ascertain whether or not they have read the submitted information.
The appeals process normally limits the presentation of testimony on behalf of the patient to 10 to 15 minutes.
It is very difficult for a doctor to present testimony for a patient within that time frame.
The time limits are too restrictive when appealing an adversarial decision.
The employer and the patient's treating doctor are often unwilling to support a disabled person's appeal, for fear of retribution and sanctions by the HMO.

The restrictive practices have resulted in numerous problems for women who have undergone mastectomies for cancer treatment. Patients are often forced to seek the assistance of counsel to have procedures approved. This has prompted a new federal law entitled The Women's Health Care and Cancer Rights Act of 1998. This law applies to group health plans and health insurers offering group and non-group coverage that provide medical benefits for mastectomies. The required mastectomy coverage includes:

As a response to the increasing problem of denial of benefits by HMOs, state legislators have endorsed laws for the use of external reviews. An external review allows an insured to receive an unbiased review of utilization decisions by an impartial panel. Prior to the legislation enforcing external review, the only option an insured had was to appeal to the insurance carrier or the State Department of Insurance. Legislation requiring external review of utilization decisions has been enacted by four states (Pennsylvania, New Jersey, Texas, and New York).

This legislation went into effect January 1, 1999 in Pennsylvania, and one year earlier, on January 1, 1998, in New Jersey. In most states, the external review process would be completed within sixty days. The external review process could be expedited if a member's life, health, or ability to regain maximum function would be put in jeopardy. This type of provision is significant for patient advocates, health care providers who treat, and attorneys who represent, catastrophically ill and injured minors and adults afflicted by TBI, spinal cord injury, cancer, and ventilator dependency. It will be interesting to see if the external review process stops managed care health insurers from discontinuing home care/nursing services without appropriate notice and documentation.

In 1999, a California court ordered an HMO to pay in excess of $100 million for failing to provide appropriate care in a timely manner.

A Wisconsin court held that the tort of bad faith applies to HMOs making out-of-network benefit decisions.
In September of 1998, Texas passed a law allowing patients injured by treatment denials or delays to sue their health plans for damages.
The United States Federal Court recently ruled that Connecticut patients may sue HMOs for negligence when they fail to provide a proper standard of care.

Pennsylvania, in a landmark case, ruled that some health maintenance organizations (HMOs) are providers of health care services, not just payors for services, and therefore may be the target of lawsuits for rendering improper medical care under the theory of "corporate negligence".

By promoting restrictive treatment guidelines, HMOs hope that cancer patients, TBI and spinal cord injury patients, their families, and their treatment providers, will feel "powerless", and will accept the "minimal benefits" offered by their insurers. However, patients, patients' advocates, doctors, and hospitals, are becoming more successful as they challenge "flawed and restrictive guidelines" by using intra-insurance company appeals and the judicial process.