Funding for Spinal Cord Injuries in a Managed Care Setting

Money ($) Equals Outcomes

Joseph L. Romano, Esq.

Fortunately, medical and rehabilitation advances can make this possible in cases that previously had little hope. Unfortunately, the cost of acute care, sub-acute care, rehabilitation care, nursing care, and long-term care for people with SCIs is astronomical.

Whenever there is a catastrophic SCI or illness, family members are faced not only with the monumental task of identifying short-term medical insurance benefits, but also with identifying long-term benefits. Insurance regulations, independent medical examinations, exclusions, definitions, limitations, experimental clauses, unrealistic treatment guidelines, a biased peer-review system, and a labyrinth leading to the appellate process—when will all end?

Coverage

Procedure for obtaining coverage information. How do persons with SCIs, advocates, and health care providers obtain the information to find the health insurance benefits available to an individual with SCI and his/her family in a managed care setting? There are four main ways that individuals who have suffered SCI, and their health care providers, attempt to obtain the information to determine the benefits to which the individual is entitled: (1) Contact the health insurance company, normally a toll-free number; (2) Read a brief brochure (not the master health insurance policy) which has been prepared by the health insurer; (3) Call someone in human relations or employee benefits at the person’s employer; (4) Have a family member call a person at the hospital (billing clerk, case manager, social worker, admissions personnel, or insurance liaison).

Problems with obtaining coverage information. Several problems may occur with obtaining coverage information. First, telephone coverage information provided by a clerk for a managed care insurer may be wrong, outdated, misleading, and/or incomplete. Second, managed care health insurers may fail to computerize coverage information. Third, an individual making a second inquiry to clarify information provided during a prior call can never reach the same person during a second telephone call. Fourth, efforts to obtain the master health insurance policy are often frustrated and stonewalled by the managed care health insurer.

Medical advances for the treatment of persons with SCI require that hospitals and health care providers receive immediate coverage information so adequate treatment and discharge planning can begin. Managed care health insurers are putting the burden on health care providers to treat first and worry about payment later.

Practical recommendations to obtain coverage information. Individuals with SCI and their health care providers must have the complete health insurance policy (master provider agreement), including all regulations, treatment guidelines, definitions, exclusions, limitations, and experimental clauses. To obtain the master health insurance policy from the managed care insurer, ask the health insurer to provide the document. If unsuccessful, have the doctor or the hospital request the document arguing that the health care provider cannot treat if there is no coverage.  If still unsuccessful, contact the patient’s state representative or senator, or United States senator or congressperson. Finally, seek advocacy from the patient’s employer or employer’s human relations department.

The master health insurance policy should be reviewed by the patient, the patient’s family, the person identified as the health insurer who has the responsibility of identifying health insurance coverage, and the patient’s advocate or attorney. Obtaining correct health insurance coverage information for the catastrophically ill and injured is not for the meek and mild. Coverage information is the ammunition necessary to win the health care battle for dollars to treat people with SCIs. Families and health care professionals should remember that when a managed care health insurer delays providing coverage information, provides outdated coverage information, or provides misleading or incomplete health coverage, information, patients lose the benefits for which they and their employers have already paid.

Contractual Roadblocks

Exclusions. An exclusion is a clause inserted in the insurance policy that specifically denies payment for certain enumerated services. The following are examples of exclusions that health insurers often include in their policies:

• “We will not pay for spinal cord illnesses if the condition is congenital.”
• “We will not pay if the injury happened outside the territorial limits of the United States.”
• “We will not pay if the injury occurred in a recreational activity.”
• “We will not pay if the injury occurred during medical treatment that was not pre-approved.”
• “We will not pay if the care is not medically necessary.”
• “We will not pay if the care requested is custodial in nature.”
• “We will not pay if the injury occurred as an unintended consequence of approved medical treatment.”

Health insurers place exclusions in the policy because it is good business, even though they know they will lose if they are challenged. Just because the exclusion is in the policy does not mean it is the law. Health insurers are aware that very few families challenge exclusions, and that is why they put them in the insurance policy.

Practical recommendations: Exclusions. Always challenge exclusions. A very small percentage of families challenge exclusions, but a large percentage of challenges are successful. Review the specific exclusionary language of the policy. If necessary, contact an attorney. The attorney will research the state law to determine whether or not exclusions in the contract will be upheld, or whether or not the exclusion is invalid, i.e., void as against public policy. If the exclusion is unfair or void as against public policy, the attorney can file an appeal and argue that the exclusion amounts to bad faith, and an unfair insurance practice. Remember, if the insured fails to challenge an exclusion, the insured or his/her employer will have paid for catastrophic health insurance, but now that it is needed, will be receiving nothing.

Definitions: The following are important definitions to review in seeking coverage for SCI and illnesses:

• Medical necessity
• Custodial care
• Durable medical equipment
• Architectural barriers
• Assistive technology devices and services
• Skilled nursing
• Home care services
• Transitional living programs
• Home modifications
• Respite care

Practical recommendations: Definitions. Review the specific definitions in the policy. Provide the health insurance policy’s terms and definitions to the treating health care providers. Health insurance policy terms and definitions should be examined and studied by the treatment team prior to the health care provider preparing a medical report, description of therapy gains, or charting. Obtain a report from the treating doctor that supports the requested care. The doctor’s report should specifically address the language/definitions relied upon by the health care insurer as a basis for decisions. The report from the treating doctor should state that the requested care is medically necessary. If rejected, an appeal should be filed, and if it is unsuccessful, an external review sought. Consider using an attorney when filing a bad faith or unfair insurance practice claim.

Limitations. The following examples of limitations are included in most health insurance policies:

• “The insurer will only pay for rehab for 30 days.”
• “The insurer will only pay for 10 outpatient physical therapy visits.”
• “The insurer will only pay for 20 home care visits.”

Practical recommendations: Limitations. Review the specific limitations in the policy. Pressure the health insurer to go outside the limitations of the contract and pay extra-contractual benefits by arguing that the health insurer’s denial amounts to bad faith and an unfair insurance practice. Entice the managed care health insurer to pay extra-contractual benefits by negotiating the managed care health insurer’s subrogation rights. Subrogation rights are the rights of a managed care health insurance company or a self-insured employer who pays your medical bills to be repaid for the cost of medical care provided to you from the money you receive in a lawsuit or settlement from a third party.

Experimental clauses. Some insurers are attempting to limit the types of programs, surgeries, diagnostic tools, and home care services that they will pay for, on the basis that the requested service or treatment is experimental. These experimental services or treatments may include:

• Electrical stimulation
• Baclofen pump for spasms
• Steroid treatment
• Assistive technology
• Voice activation devices
• BEAM test, SPEC scan, and PET scan
• Hyperbaric oxygen

Practical recommendations: Experimental clauses. Always review the specific experimental clause in the policy. Then provide the health insurance policy and the experimental language to the treating health care team. In challenging experimental clauses, attach two reports from board-certified doctors and a leading article or study supporting the use of the requested device or treatment for the specific person with SCI involved in the case. Consider searching the Internet for medical research to determine whether or not the requested treatment or program is widely accepted in the medical community as treatment for SCI. Make sure the treating doctor’s report includes evidence that the doctor has reviewed the master insurance policy, evidence that the doctor has all patient’s medical records, evidence that the doctor has personally examined the patient, and evidence that in the opinion of the doctor, the requested care is not experimental in nature, but is medically necessary. If necessary, file an appeal, and if it is unsuccessful, seek an external review. Consider using an attorney when filing a bad faith or unfair insurance practice claim.

Examples of Bad Faith Health Insurance Practices

A number of bad faith health practices by some managed care insurers exist. The following list illustrates some of the most common practices.

• Misrepresentation of pertinent facts or policy or contract provisions relating to coverage.
• Failure to affirm or deny coverage in a reasonable time.
• Failure to provide the master insurance policy/master insurance contract to an insured upon request.
• Failure to provide the treatment guidelines and criteria relied upon by the health insurer to deny the claim or pre-certification.
• Failure to adopt and implement prompt investigation of claims.
• Delay in responding to a claim.
• Using exclusions, definitions, limitations, and experimental clauses that are void as against public policy to deny payment of claims.
• Inadequate investigation of claims.
• Delaying the investigation of claims or the payment of benefits by requiring submission of multiple forms that contain essentially the same information.
• Not attempting in good faith to effectuate prompt, fair, and equitable settlements on claims in which it is reasonably clear that the company is liable.
• Failure to provide an insured their appellate rights.

Approaching the Appeal—Know the Pitfalls

Appealing an HMO decision for the person with SCI is a challenging endeavor. Most appeals are unsuccessful because of the following factors:

• Persons with SCI, their advocates, and their health care providers do not have the insurance policy, including the definitions, limitations, exclusions, experimental clauses, and “treatment guidelines” that are the basis of the HMO’s 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 is person. This makes the entire process both nameless and faceless and the appeal committee never meets the person with SCI.
• 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 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.

Conclusion

Families and treating health care professionals for the population with SCI need clear, concise, and understandable practical recommendations to assist them in accessing funding. This article was written to give families and health care professionals the ammunition they need in order to win the battle for adequate funding for the person with SCI in a managed care setting.

Mr. Romano is the author of Legal Rights of the Catastrophically Ill and Injured: A Family Guide (2^nd ed.). Updates can be found on his Web site: http://www.josephromanolaw.com/

His e-mail address is info@josephromanolaw.com