High-Dose Chemotherapy: Ensuring Coverage for Your Client, cont'dThey will try to convince you that renewal of the policy, at each premium payment, is sufficient consideration for any previously issued rider. This is where having read the entire policy will give you an edge. As an example, most of the policies issued by The Blues (Blue Cross/Blue Shield) provide that the policy is renewed every 60 days, on payment of the premium. However, the policies also provide that there is no coverage for any pre-existing condition for a period of 90 days after the policy goes into effect. Carried to its illogical conclusion, this would allow The Blues to deny coverage for every medical condition. My partner, who mainly confines his practice to commercial matters, was the one who spotted that flaw in their argument, so you can see how Contracts 101 still helps.
The toughest provision to fight is the so-called "experimental" treatment provision which forms the basis for the vast majority of the coverage denials. However, we have found that the "experimental" provisions of most polices/plans, except for those rewritten fairly recently, are highly vulnerable to an attack on the basis that the provisions are ambiguous and, as such, must be construed against the party that drew them. Contracts 101, again.
To defeat the ambiguity attack, the policy/plan must clearly define the term experimental. It is, usually, insufficient to merely say that "we don't pay for treatments which we determine to be experimental", or language to that effect. If the policy/plan gives discretion to the health care coverage provider to determine coverage, it must also state some basis on which that discretion is to exercised. "Because we say so" is not enough. Obviously, the less inclusive or complete a definition of the term is, the less it is immune from attack. In fact, a full reading of many policies/plans will reveal that there is no definition of the term contained anywhere in the policy/plan, which, certainly, will give the attorney much to argue, on behalf of his/her client.
Even where the policy gives the medical care coverage provider the discretion to make a determination on the question of "experimental" or not, the exercise of that discretion will be weighed by the court as against the conflict created by the question of profit and loss as a result of the decision. The courts have held that if the exercise of the carrier's discretion effects the profit of the carrier, the exercise of the discretion will be looked at even more closely. Firestone Tire & Rubber v. Bruck, 489 U.S. 101 (1989), Mattive v. Healthsource, CV495-134, SD GA (1995), Doe v. Group Hospital, 92-2525, CA, 4th (1992)
This is where a review of the current decisions will be most helpful, because you may well be able to find a decision holding the exact, or similar, language involved to be ambiguous.
If you have determined that you have a good shot at dislodging the health care coverage provider from its position, it is time to get your client in for a conference. In view of the usual urgency involved, this is usually one or two days after you have received "the package".
We find it advisable to discuss with her, and her husband, if possible:
- What your review has revealed to you with regard to her possibility of success. I'd suggest that you make it particularly clear that you can give no guarantee of success.
- Fee/costs arrangements. You will find that many of these women are not in great shape financially, having been forced to expend great sums of money and work time in their fight against the disease, so you'll have to handle that the best that you can. While ERISA and most of the state statutes provide for the recovery of attorney's fees and costs, you will most often find yourself in a position with an offer of settlement to provide full or "capped" coverage, provided there is a waiver of fees and costs. Faced with the decision to begin treatment immediately or to continue the fight so as to obtain fees and costs, I have never had a client who didn't tell me that she wanted to go into the hospital and to begin treatment NOW, fees and costs be damned.
- That while you will immediately initiate an appeal to the health care coverage provider, she should realize that it is likely that nothing will be accomplished short of the filing of a lawsuit.
If you are retained, the first step you must take is to submit an appeal to the health care coverage provider, as indicated in the terms of the plan/policy.
It is extremely important that you include in your letter of appeal:
- The complete basis of your appeal. It is important to include with the letter of appeal copies of all of the court decisions and medical treatises on which you base your position. This is important for two reasons. The more that you submit, the greater the possibility that the health care coverage provider will look favorably on your appeal. If you are forced to a hearing, the appeal letter, and the enclosures, which, while normally are not admissible in evidence, will usually be accepted by the court to show what the health care coverage provider had before it when making its decision on the appeal. Usually you will find the treating oncologist extremely helpful in putting together a package of medical treatises which will support your position.
- A demand for copies of all of the materials used by the carrier in making its decisions, both initially and on your appeal.
- The fact that you are preparing, and will not hesitate to file, absent a favorable resolution of the appeal, a lawsuit seeking the court's intervention.
- The emphasis that time is of the essence and that you expect an immediate response to the appeal. You can emphasize the urgency by faxing and "overnighting" your appeal package to the health care coverage provider.