ANOXIC EXCLUSION - Health insurers are refusing to pay for rehabilitation and home care if the diagnosis is anoxia or anoxic encephalopathy. The insurers' reason for denial is that such care is custodial. These denials should be aggressively challenged through the appeals process, administrative appeals, bad faith claims, and litigation.

ASSISTIVE TECHNOLOGY - VENTILATORS - PERSONAL ASSISTANCE SERVICES - An individual was injured in an automobile accident. The treating doctors wrote a prescription for a "state-of-the-art ventilator" and 16 hours of personal assistant services. The auto insurer would only pay for four (4) hours of assistant services and would not pay for the ventilator prescribed by the treating doctor. Counsel argued that the ventilator and 16 hours of personal assistant services were medically necessary and that the denial of these requests constituted "bad faith". The day before a lawsuit was filed, the insurance company agreed to pay.

Health insurers rely on the fact that because family members are overwhelmed by the injury or illness to their loved one, they will not appeal, fight, and advocate for the benefits to which they are entitled.

ATV - EXCLUSIONS - HEALTH INSURANCE BENEFITS - MANAGED CARE - TRAUMATIC BRAIN INJURY AND SPINAL CORD INJURY - The parents purchased an insurance policy containing a clause stating that children will receive 24 hour coverage if ill or injured. Their child was riding an ATV (three-wheeled All-Terrain Vehicle) when the ATV overturned and the minor suffered head and spinal cord injuries. The parents made a request to the health insurance company that the child's medical bills be paid, but the insurance company denied the claim. Their basis for the denial was that the health care policy excluded injuries that occured on an ATV. Essentially, the insurance company told the family "We accepted your premiums but you didn't read the fine print". Certain exclusions in health insurance policies are invalid and void as against public policy. All exclusions which attempt to deny payment for needed medical expenses should be challenged and discussed with your attorney as soon as possible after a catastrophic injury or illness.

BAD FAITH - HMO'S - NO FETAL MONITORING - LIMITATION OF CARE - A patient called her doctor, complaining of labor pains. The treating doctor said he could not admit her to the hospital for fetal monitoring because of the duration and frequency of the labor pains did not meet the criteria of her HMO. A substantial period of time elapsed before the patient could obtain pre-certification for a hospital admission. Shortly after admission to the hospital, the patient hemorrahaged and the baby suffered anoxia and developmental delay.

Patients, health care advocates, and treating health care professionals are urging that legislation be passed to allow the primary health care provider/treating doctor more autonomy to make pre-certification and admissions decisions.

CEREBRAL PALSY - SPECIAL EDUCATION BENEFITS - Coordination of private health insurance, governmental insurance an d special education benefits is very important to families with children who have been diagnosed with cerebral palsy. Exhaustion of lifetime medical benefits under private health insurance policy occurs very quickly when the private health insurance policy is the only resource that is utilized. As soon as possible after the diagnosis of cerebral palsy, family members should meet with their doctor, social worker, case manager, advocate, and attorney to formulate a "game plan" to insure that the child receives the maximum benefits available from all soures.

COBRA - AMPUTATION - An adolescent was operating a riding lawn mower that malfunctioned and caused an amputation. The adolescent was covered under his parents' health insurance policy paid for by the father's employer. The employer downsized and the father was laid off. The employer failed to notify the father of the COBRA premium. The adolescent was not able to obtain a "state-of-the-art" prosthesis. In this case, I was successful in arguing that, since the employer did not give the father proper notice of his COBRA rights, the parent should be able to retroactively pay the premium for COBRA health benefits and continue the coverage.

You should carefully examine your COBRA rights when there has been a change in your employment, especially of a member of your family is receiving health-care benefits as a result of a catastrophic illness or injury.

COMA STIMULATION - COMA AWARENESS PROGRAMS - APPEAL - Most health insurance companies refuse to pay for short-term and long-term care benefits for a person who is in a persistent vegetative state, suffering from locked-in syndrome, is in a coma, or has been diagnosed as a minimally responsive patient. Insurers argue that the impaired person is not able to be rehabilitated and is receiving custodial care. Recent studies have shown that many persons who have been diagnosed as vegetative or "minimally responsive" are, in fact, sporadically seeing, hearing and thinking. Two studies from England have found that up to 60% of vegetative patients are misdiagnosed and do have some degree of consciousness. Coma stimulation and coma awareness programs chart the opening and closing of patients' eyes, and test whether patients can register sights and sounds. These programs take EEG's to monitor brain activity and experiment with lowering doses of sedatives, painkillers, and other drugs that can supress signs of consciousness. A chart of the signs of awareness attempt to document patterns that might signal intermittent conscious awareness. The key is to attempt to develop a system of communication with the traumatically brain injured patient, whether it is blinking of the eyes, or jerking of the hand, or mumbling. Once communication has been established, argument can be made to the health insurer that the traumatically brain injured person can benefit from an in-patient rehabilitation program. Experts have found that delays in the commencement of a coma stimulation, coma awareness, or intensive rehabilitation program will lessen the chance that an individual will be able to regain lost skills and return to independent living.

I have been successful in obtaining funding from health insurers for coma stimulation and coma awareness programs. To be successful, the family must contact an attorney as early as possible. The attorney needs to work closely with the treating doctors to document as much objective information as possible to use as evidence when health insurers challenge reccommended rehabilitation programs.

COMPUTERS - SPECIAL EDUCATION BENEFITS - MINORS - A family requested a computer from the school district for their child, who suffered from cerebral palsy. The school district declined to pay, taking the position that they were legally required to provide "education", not "the best education". By showing that the child's ability to be educated was compromised without a computer, their attorney was successful in obtaining funding for the computer.

Many school districts, like health insurers, will not pay for assistive technology devices and services unless they are forced to. The special education process is an adversarial process.

EXTRACONTRACTUAL BENEFITS - THIRD PARTY RECOVERY - SUBROGATION - HELMET INVESTIGATION - An individual was riding his motorcycle and was wearing a motorcycle helmet. An automobile forced the motorcycle operator off the road and the driver who caused the accident was never identified. The driver of the motorcycle was thrown to the ground and the helmet that he was wearing cracked. The HMO paid for the acute care hospitalization but denied all short-term and long-term rehabilitation care, since it was their position that these benefits were not covered under the policy. An exhaustive investigation revealed that the foreign manufacturer of the helmet had used an inferior/defective lining in the manufacture of the helmet, which caused the helmet to crack on impact. I successfully argued to the HMO that they should pay "extra-contractual" benefits because they would receive repayment for the medical bills (subrogation) out of the successful product liability suit against the manufacturer of the helmet.

All catastrophic injuries and illnesses should be aggressively investigated to determine whether or not the concept of extracontractual benefits can be used to obtain additional short-term and long-term rehabilitation benefits.

GUARDIANSHIP AND TRAUMATIC BRAIN INJURY - Health care providers who treat the traumatically brain injured (TBI) without a properly executed release or guardianship decree are putting themselves in legal jeopardy. Often the injured person, due to his or her condition, cannot give legal authority for treatment to their physician, nurse, rehab specialists, therapists, or case manager.

Treating health care professionals should encourage families to initiate guardianship proceedings at the time of admission, not discharge.

MISLEADING COVERAGE INFORMATION - CATASTROPHIC ILLNESS - HMO - BAD FAITH - The parents had a child born with cerebral palsy. The parents called their HMO and were told that they had a $1 million dollar lifetime maximum plan covering the child and "not to worry, they had good coverage". The hospital was also told that the parents had "good coverage". After the initial hospitalization stay, when it was time for the child to be discharged, the parents and the hospital learned from the HMO that home care, attendant care, rehabilitation care and long-term nursing care would not be covered, since the policy specifically excluded children whose care, in the opinion of the HMO, was "custodial in nature". I accepted this case and successfully argued that the HMO was "acting in bad faith", since they initially told the family in the hospital that there was coverage and were now attempting to deny the needed care. Some studies show that more than 40% of the time, the coverage information provided by health insurers to parents and healthcare providers is wrong, outdated, incomplete, or misleading.

It is critical that you have a trained person read the policy language of your health insurance policy to determine what short-term and long-term benefits you are entitled to from your health insurer.

VENTILATORS - PERSONAL ASSISTANCE SERVICES - ASSISTIVE TECHNOLOGY - EXPEDITED APPEALS HEARING - An individual I represented was injured in an automobile accident. The automobile benefit (PIP coverage), which was the primary insurance, was exhausted. The secondary coverage was a private health insurance plan. In preparation for discharge to home, the treating doctors wrote a prescription for a "state-of-the-art" ventilator and 16 hours of personal assistant services. The health insurer would only pay for eight (8) hours of assistant services and would not pay for the ventilator prescribed by the treating doctors. The treating doctors were also of the opinion that the patient's condition could deteriorate without an "expedited appeals hearing". An appeals hearing is usually scheduled within (30) days of the request. In most states, an expedited hearing will be granted within forty-eight (48) hours if the patient's life, health, or ability to regain maximum function is in jeopardy.

Careful planning at the time of admission of a catastrophically ill or injured patient will insure that acute care hospitals and rehabilitation facilities do not experience "discharge dilemmas".

WORKER'S COMPENSATION - HOME MODIFICATIONS - QUADRIPLEGIA - PURCHASE OF NEW HOME - SELF-INSURED - An individual working in a boiler plant suffered a catastrophic injury (burns and quadriplegia) when a boiler malfunctioned. The investigation revealed that the manufacturer of the boiler used an inferior/defective product, which caused the malfunction. To discharge the patient, significant home modifications were needed. The worker's compensation carrier was the self-insured employer. Most workers' compensation carriers and self-insured employers are not required to pay for home modifications or for the cost of purchasing a new home. Because I had filed a lawsuit against the boiler manufacturer, I was able to convince the self-insured employer to pay for the purchase of a new home to meet the needs of the patient while the litigation against the boiler manufacturer continued.