lisa s. kantor, esq. kantor & kantor (877) 783-8686 [email protected]

Lisa S. Kantor, Esq.Kantor & Kantor(877) 783-8686

[email protected]

WORKING WITH INSURANCE COMPANIES TO OBTAIN COVERAGE FOR

APPROPRIATE TREATMENT FOR EATING DISORDER CLIENTS

www.KantorLaw.net 2

www.KantorLaw.net 3

OUR ROADMAP

Communication Fundamentals

Different Types of Health Insurance

Required Claims Procedures Using the APA Guidelines Getting Eating Disorder

Claims Paid

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Communication Fundamentals Write down what you are going to say before any

telephone call with an insurance representative Write down everything that is said in any

conversation with an insurance representative Know the name, title, phone number and email

address of everyone you talk to Send everything in – medical records, therapy

notes, notes of conversations, letters of support Confirm everything in writing because if it isn’t in

the insurance company’s file, it may as well not exist

Certified mail if possible, e-mail is ok Have clients journal on insurance issues

www.KantorLaw.net 5

Health InsuranceTwo different types:

Benefits obtained through an Employer (even if you pay some or all of the premium) – covered by the Employee Retirement Income Security Act (ERISA) [Note: Does not apply to government or “church” employees]

A policy purchased privately, through an insurance agent.

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Employer Benefits – ERISA

ERISA is a federal law that governs the insured’s rights If a claim is denied, an appeal (or maybe two) must be

timely filed before the insured can file a lawsuit Great deference may be given to the decisions of the

insurance company No jury trials Federal judges make decisions if you have to file suit

to get benefits The judge will review the contents of the insurance

company’s file and very little else Remedies are limited to benefits and attorneys fees

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Individual Insurance

Typically no appeals required before a lawsuit can be filed

Juries (not lifetime appointee judges) make the decision on your case

Evidence outside of the file may be considered by the jury

Remedies may include benefits, emotional distress, attorneys fees and punitive damages

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Important Differences Between ERISA and Individual Coverage

ERISA Plans:

No individual underwriting

Cheaper – and your employer may pay

Remedies restricted

Individual Coverage:

Individually medically underwritten

More expensive and you pay all the premium

Bad faith remedies available in many states

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How did you get your coverage?

through my, or my spouse’s, or my

parent’s employment

Who is your employer?

Government, religious entity

All others

private purchase

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INSURANCE BY ANY OTHER NAME..

What is a Plan?

Fiction created by ERISA whenever an employer offers health or welfare benefits

May be funded by a policy or by the employer

May be the same as the Policy or a different document

What is a Policy?

Insurance to cover certain risks or expenses

Not the same as certificate or evidence of coverage


THE INSURANCE CARD IS NOT ENOUGH…

What kind of coverage does this person have?


HOMEWORK FOR THE CLIENT

Send a letter to Human Resources to request a copy of the Plan document

Send a letter to the Insurance Company to request a copy of the Policy

Get copies or CD of your medical records Get letter(s) of support from treating

physicians, therapists, dieticians, family, co-workers, friends

Home video Complete a HIPPA release


Required Claims Procedures29 C.F.R. § 2560.503-1

Procedures must be reasonable Everything must be in writing – procedures,

denials, appeal denials Procedures must be given to the participant

Must include prior approval, preauthorization, and utilization review procedures

Cannot require more than two appeals



Cannot contain any provision, or be administered in any way, that “unduly inhibits or hampers the initiation or processing of claims” FOR EXAMPLE, “the denial of a claim for failure to

obtain a prior approval under circumstances that would make obtaining such prior approval impossible or where applicable of the prior approval process could seriously jeopardize the life or health of the claimant . . .”



Concurrent care claims: Any reduction or termination of an ongoing

course of treatment must be done far enough in advance to allow the patient to appeal and obtain a review before the benefit is terminated

Any request to extend an ongoing course of treatment shall be decided within 24 hours provided the request is made 24 hours prior to expiration of the approved treatment



Pre-service claims: Must respond within 15 days May extend time once for 15 days for reasons

“beyond the control of the plan” and notification is given before first 15 days expires

If plan needs additional information, patient must be given 45 days to provide



Post-service claims: Must respond within 30 days May extend time once for 15 days for reasons

“beyond the control of the plan” and notification is given before first 30 days expires

If plan needs additional information, patient must be given 45 days to provide


Appeals Must provide a full and fair review Entitled to review claim file Must consider all comments, records, other

information submitted by patient No deference to original decision Cannot be decided by same person who denied

claim Must consult health care professional with

appropriate training and experience who was not consulted in connection with denial

Must identify professionals consulted



Appeals Urgent appeals must be decided in

72 hours The appeal decision must comply

with the notice requirements of the denial decision



Required Claim Procedures What the Courts Say

“. . .ERISA imposes higher-than-marketplace quality standards on insurers. It sets forth a special standard of care upon a plan administrator, namely, that the administrator “discharge [its] duties” in respect to discretionary claims processing “solely in the interests of the participants and beneficiaries” of the plan, . . . it simultaneously underscores the particular importance of accurate claims processing by insisting that administrators “provide a ‘full and fair review’ of claim denials.” Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343, 2350 (2008).


Required Claim Procedures What the Courts Say

In simple English, what this regulation calls for is a meaningful dialogue between ERISA plan administrators and their beneficiaries. If benefits are denied in whole or in part, the reason for the denial must be stated in reasonably clear language, with specific reference to the plan provisions that form the basis for the denial; if the plan administrators believe that more information is needed to make a reasoned decision, they must ask for it. There is nothing extraordinary about this; it's how civilized people communicate with each other regarding important matters.” Booton v. Lockheed Medical Benefit Plan, 110 F.3d 1461 (9th Cir. 1997).


AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES

Sets the standard of care in the community

Used by Independent Review Panels Require interaction with patient to

assess Relies upon knowledge and

experience of treating professionals


AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINESMedical status


SuicidalityAMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES


Weight



Motivation



Co-occurring disorders



Needed Structure



Compulsive exercising



Purging



Environment



Availability of program



GETTING EATING DISORDER CLAIMS PAID

Submit pre-service request for treatment Use the APA Guidelines to document level of care

requested Submit prior and current treatment records which

support level of care requested Getting letters of support as needed, consider

patient video Explain eating disorders – use references Explain your program and the qualifications of the

providers Set boundaries


HOW TO CONDUCT AN INSURANCE CALL

“I am calling from Avalon Hills Treatment Center in Logan, Utah. I am calling to request thirty days of residential treatment for your insured, Jane Smith. Jane is ill, and I am sure that when you hear about her journey, you will authorize the treatment.”

Introduce yourself, state your credentials, and ask for their credentials.

Confirm that your information was received; offer to e-mail or fax and wait for receipt

Tie the discussion to the specific criteria identified by the APA and/or the insurer

Emphasize the criteria that support the level of care you seek or a higher level of care


NOW CLOSE THE DEAL . . . What is your name? How can I contact you? How would you

like us to send you information (mail or e-mail)? What address? What are your qualifications?

Do you have any questions? NO

Do you need any more information? NO

Are there any policy provisions or exclusions that would affect coverage? NO

Is there anything I should know about your procedures? NO

Will you authorize thirty days? YES


…AND CONFIRM THE DEAL The same day, send a letter to the

plan/insurer confirming the entire conversation

If the person you spoke with will not give you her/his name or address, send it to the address in the plan/policy

Certified mail if you can


…OR CONFIRM THE DENIAL The same day, send a letter to the

plan/insurer confirming the entire conversation

If the person you spoke with will not give you her/his name or address, send it to the address in the plan/policy

Certified mail if you can


CONFIRM IN WRITING

CONFIRM IN WRITING

CONFIRM IN WRITING

CONFIRM IN WRITING

CONFIRM IN WRITING

CONFIRM IN WRITING

CONFIRM IN WRITING

CONFIRM IN WRITING

CONFIRM IN WRITING

CONFIRM IN WRITING


THE APPEAL

Now we are really having some fun …


THE LAW OF ERISA APPEALS There are two critical things to know

about ERISA appeals

The insured is entitled to a copy of the claim file – sometimes called the administrative record – before the appeal is decided

The insurer or plan may be entitled to discretion in deciding the appeal


WHAT IS THE CLAIM FILE AND HOW DO I GET IT?

The claim file consists of any document, record or other information that was relied upon in making the benefit decision, was submitted, considered or generated in the course of making the benefit decision, or is a statement of policy or guidance with respect to the plan concerning the denied treatment (29 C.F.R. Section 2560.503-1(m)(8))

The insured is entitled, upon request and free of charge, a copy of the claim file (29 C.F.R. Section 2560.503-1(h)(2)(iii))


PLAN DISCRETION: THE FOX GUARDING THE HEN HOUSE

Many plans/policies provide that the entity deciding whether to pay claims has the “discretionary authority” to construe and interpret the Plan and determine eligibility for benefits

This means that the court will give deference to the decision of the Plan or insurer – the decision DOES NOT HAVE TO BE RIGHT, IT ONLY HAS TO BE REASONABLE

BUT when the same entity is deciding whether to pay claims, and is paying approved claims, the Supreme Court says there is an “inherent” or “structural” conflict (Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008))


The fox guarding the hen house (continued)

A "structural" conflict of interest introduces an element of skepticism into what would otherwise be deferential judicial review.

The degree of skepticism depends on the extent of the conflict. The types of evidence tending to show the influence of a conflict include: inconsistent or insufficient reasons for the denial determining a material fact without supporting evidence failing to follow plan procedures failing to provide a full and fair review of the denial acting as an adversary bent on denying the claim

The more evidence of conflict, the less deference afforded to the administrator, and the more "skeptical" the review


WRITING THE APPEAL LETTER

This letter is submitted in support of Jennifer’s appeal of the denial of continued residential treatment beyond March 8, 2009. We will explain the history of Jennifer’s disease and treatment. We trust that, after reading this letter, which carefully documents Jennifer’s need for continued inpatient treatment, you will approve Jennifer’s request to continue that treatment.

Summarize the prior letters and documents Point out the inconsistencies Point out the irregularities Point out the omissions Enclose any new documents

Consider articles on eating disorders, or specific grounds to denial Conclude with specific requests


WHAT TO DO IF THE APPEAL IS DENIED. . .

Second Level Appeal

Department of Insurance

Department of Management Healthcare

Litigation

Press

Lisa S. Kantor, Esq.Kantor & Kantor(877) 783-8686

[email protected]

WORKING WITH INSURANCE COMPANIES TO OBTAIN COVERAGE FOR

APPROPRIATE TREATMENT FOR EATING DISORDER CLIENTS

lisa s. kantor, esq. kantor & kantor (877) 783-8686 [email protected]

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