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Tuesday, Dec 5, 2023


One thing everyone knows about health maintenance organizations is that treatment is denied far more often than in traditional plans.

Sometimes the HMO doesn’t cover the treatment your doctor advises. Sometimes it could be covered but the HMO takes another view.

Not to worry, says the HMO. Turndowns can be appealed to a review board. You also assume that, in extremis, you can sue.

But the deck is stacked against you when your HMO is part of an employer plan. The appeal you innocently present may keep you from winning a court case, even if your position is right.

Here are two examples of what you’re up against when you appeal the HMO’s decision not to pay for treatment:

1. You’re rarely given anything more than general information about how to make your case. You don’t have the plan’s formal standards or definitions only a brief summary in your plan handbook. You also don’t have the information the HMO relied on when it turned you down.

Yet at the appeal, you won’t succeed unless you rebut these mystery standards and definitions point by point, with witnesses and medical research. Furthermore, the standards are so broad that the HMO has a lot of discretion.

That’s the experience of Carroll Duncan, 63, of San Marino wheelchair bound, with cerebral palsy, and newly diagnosed with prostate cancer. Because of his health, his doctor advised proton beam radiation rather than X-ray radiation.

HMOs don’t cover experimental treatments. Duncan’s insurer, Prudential Health Care Plan of California, said that particular therapy was experimental and it wouldn’t pay (although Duncan’s doctor testified that PruCare had paid in other cases).

Duncan mounted his appeal without a detailed definition of “experimental” and no information about PruCare’s case against that treatment. He showed that the therapy was offered at 13 medical centers and is covered by Medicare, but that wasn’t enough.

Duncan had the treatment, shouldering the $45,450 cost. He sued PruCare for payment, was denied and has appealed to a higher court.

Why did he lose? Because PruCare like most health plans offered by employers has the right to interpret what its contracts mean. If there’s doubt about whether “experimental” describes a particular case, federal law resolves it on the insurer’s side, says Duncan’s co-counsel, Sharon Arkin, of Shernoff, Bidart, Darras & Arkin in Claremont.

PruCare spokesperson Kevin Heine says that Duncan had other options and that the definition of “experimental” would have been available if he’d asked.

But how many patients know to ask or how to use it while developing their appeal?

2. You have to appeal a turndown within the HMO. But believe it or not, the evidence you present may be the only case you will ever be allowed to make even if you go to court.

Take Joseph Chambers, 69, of Lindsborg, Kan., diagnosed with a rare and usually fatal lung disease. The only treatment other than a transplant was ruled experimental by his HMO, the Family Health Plan Corp. (now called Healthcare America Plans, in Wichita, Kan.).

Chambers’ son Jeff filed a grievance with the HMO on his sick father’s behalf. He had roughly one week to prepare his case, which consisted principally of information supplied by the doctor who would perform the surgery.

The HMO refused again. Chambers had the operation, then sued his HMO to recover the $80,000 cost (to pay part of it, he literally mortgaged the farm). He lost both the lawsuit and the appeal.

Why did he lose? Because under the federal law that governs employee health-care plans, the court can usually make only one decision: Did the HMO reach a reasonable conclusion based on the information before it?

Magistrate Judge Karen Humphreys, who heard Chambers’ court case, found the HMO’s investigation deficient. But based on the “incomplete and inadequate” information before it, she ruled that the HMO had made a legally acceptable decision.

In an unusual coda to her decision, Humphreys called the outcome “unfair” and the HMO wrong. Additional evidence showed that the treatment was in fact well-accepted. But her hands were tied.

Given such a law, HMOs have a built-in incentive to perform weak investigations of treatments they don’t want to pay for.

Chuck Millsap, an attorney for Healthcare America, said that in a dispute, “both sides have an obligation to contribute to the administrative record” and adds that the judge’s comments didn’t refer to anything in the record.

Anyone going before an HMO appeals board “needs a medical expert from day one and perhaps a lawyer to argue your case,” says Chambers’ lawyer, Michael Herd, of Curfman, Harris, Rose & Smith in Wichita.

Limited legal rights

If the HMO treats you negligently, you may find you have nowhere to turn. Patients in a few states have recently acquired more legal rights, but that’s cold comfort for everyone else.

Just ask Florence Corcoran of Louisiana, who had two high-risk pregnancies. The first time, she was hospitalized close to her delivery date. When her fetus showed distress, her doctor saved it with an emergency Caesarean delivery. The second time, he wanted her hospitalized again.

But her HMO said a hospital stay wasn’t medically necessary and authorized 10 hours a day of home-nursing care. While the nurse was off-duty, the fetus suffered distress and died. Due to a quirk in the law, Corcoran wasn’t allowed to bring a malpractice suit against the HMO.

The same quirk protected the HMO that insured the late Buddy Kuhl of Kansas City, Mo. After he had a heart attack, his doctors recommended complex surgery at a particular medical center. The HMO refused because the center was out of its service area.

Eventually it agreed, but by then Kuhl’s disease had progressed so far that a transplant was his only hope. The HMO again refused and he died, waiting.

The quirk in question is ERISA the Employer Retirement Income Security Act of 1974. ERISA was passed to force companies to pay employees the pensions they promised. It covers all employee benefit plans, including health plans.

Lawsuits under ERISA normally have to be brought in federal courts but medical malpractice isn’t a federal issue. It’s a state issue. As soon as the HMO gets into federal court, poof! Malpractice goes away.

Syndicated columnist Jane Bryant Quinn can be reached in care of the Washington Post Writers Group, 1150 15th St., Washington D.C. 20071-9200.

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