High-Dose Chemotherapy: Ensuring Coverage for Your Client, cont'dRefuting Policy/Plan Provisions/Defenses
Your review of the policy should especially concentrate on those portions of the policy/plan on which the health care coverage provider is relying and on how these provisions will be attacked in the event that suit and hearing is required.
Are the relied on provisions in the so-called "medically necessary" or inclusion portions of the policy, those which list what is covered, or in the "exclusions", what is not covered, section of the policy? While there have been no opinions written on this subject, most courts hold that if the terms are within the inclusion portions, it will be required that the patient/plaintiff establish the inclusion of her condition within those conditions covered. On the other hand, if the terms are within the exclusion sections, the burden is usually placed on the health care coverage provider to establish that the exclusion applies to her condition or treatment.
I have never seen a policy/plan that doesn't provide coverage for chemotherapy for the treatment of cancer, and I have not, as yet, seen any policy/plan which makes any distinction between "standard" and "high" dosage. The question then becomes one of refuting the allegations that the policy/plan doesn't cover ABMT or PSCR.
Some of the defenses which will be relied upon by the health care coverage providers are easy to locate within the terms of the policy/plan, from just reading the terms of the policy as referred to in the correspondence from the carrier, and many are just as easy to refute.
Since the greater tendency of oncologists to prescribe high dose chemotherapy, many of the health care coverage providers, in an effort to avoid the expense of the treatment, have added language to their policies/plans specifically excluding coverage for autologous bone marrow transplants for the treatment of breast or ovarian cancer. There are now several decisions in which the courts have clearly held that PSCR, while similar in purpose and result to ABMT, is not ABMT, and that a policy/plan which excludes ABMT does not exclude PSCR. Wilson v. Civilian Health/CHAMPUS, 4:94cv130, ED VA (1994), Contee v. Blue Cross Blue Shield of the National Capitol Area, Civ.A. 93-2434, DC (1994), Calhoun v. Complete Health, Inc., Civ.A. 94-556 B-M. SD AL (1994)
Another effort to avoid, or limit, coverage by the health care coverage providers, is to try to defend their refusals by indicating that ABMT and PSCR are not included among those transplants for which coverage is provided or, if such coverage is provided, that the amount of the coverage for the ABMT or PSCR is limited by the "transplant limits" of the policy/plan. Once again, you have the Courts in your favor. ABMT and PSCR have been held as not transplants, unless specifically defined as such within the terms of the policy/plan. Lubeznik v. HealthChicago, 644 N.E.2d 777, (Ill. App., 1994), Nash v. California Hospital Districts, CO 17946 (CA Court of Appeal, 1995), Hawkins v. Mail Handlers Benefit Plan, 1:94CVR, WD NC (1994), Duckwitz v. General American, 812 F.Supp. 864 (ND IL 1993)
The health care coverage providers have also tried to avoid coverage for this treatment by issuing riders which are intended to either clarify previously ambiguous terms of the policy/plan or to specifically change the coverage provisions. Remember when we spoke of Contracts 101. Well, a rider is a new contract which, to be valid and binding, requires all of the elements of any contract; Offer, Acceptance and Consideration. And it is unlikely that the health care coverage provider will be able to establish the existence of all of these required elements, especially consideration, since the carriers don't offer the riders to the insured, but, merely issue them, without any acceptance and they don't give anything of value to the insured for the reduction in coverage.