Navigating the Insurance Maze

By Richard Carter

Several years ago I wrote an article for Blood & Marrow Transplant Newsletter outlining strategies for getting insurance coverage for novel medical care such as a bone marrow transplant. Since that time, the legal landscape has changed and I felt it would be a good idea to offer an updated version of that article.

Health insurers, particularly the less savory ones, sometimes arbitrarily deny coverage for transplants and other novel therapies. In addition, medical science moves quickly and treatments move in out of favor faster than in the past. Because of that, it is sometimes hard to substantiate the safety and efficacy of a particular treatment, and the law has become less tolerant of patient mistakes in trying to secure coverage for their treatment.

For most people, the law that controls access to health care benefits in the United States is a federal law called ERISA. ERISA started in the mid-1970s with the lofty goal of protecting the pensions of Americans. However, since then the law has expanded hydra-like to cover almost all employee benefits including health care benefits.

Insurance plans that are subject to ERISA are mostly self-regulated, and much of the state law protections afforded the typical insurance consumer simply do not apply. For better or for worse, all legal action involving ERISA insurance plans ends up in federal court where most lawyers do not practice. Despite that gloomy observation, it is still possible to secure coverage for a transplant even when the insurance company initially denies coverage.

If you are considering a transplant, the most important thing you can do to help yourself get coverage is to begin early. The first step is to examine your health plan booklet to determine your rights. Because the insurance companies get to make the plan's rules, the rules of each plan differ dramatically. You can usually find information about your rights in sections of your plan booklet entitled "Claim Information" or "How to File a Claim." Be sure the information includes how to appeal a denial of coverage in case that occurs. If you can't find the information, ask your employer or insurance company for a copy.

The next step is to meet with the hospital's insurance coordinator or transplant administrator. Most transplant facilities have developed excellent procedures and tactics for presenting your case to the insurer and you should take maximum advantage of that. Talk with your transplant coordinator to find out if there is any information you can provide that would be helpful in presenting your case.

Many transplants that are ultimately covered by the insurance company are initially denied. If you are denied coverage, don't give up hope. The denial may merely mean that the person reviewing the claim is not familiar with the type of transplant being proposed or its effectiveness in treating your disease. A denial of coverage does not necessarily mean that you will have to go to court to get coverage. In our law firm's experience, 95 percent or more of the cases are settled during the administrative appeals process, not in court.

All insurance plans governed by ERISA must have an appeals procedure. You must file your appeal within 180 days of the date that coverage was denied or you will lose your right to appeal. Make sure you understand and carefully follow the appeals process spelled out in your insurance plan booklet.

To be successful, an appeal must be logical, comply with the plan requirements and be well documented. Your transplant coordinator or the person at the hospital assigned to handle insurance matters can help you explain why the proposed treatment is appropriate for you. Your doctor may be able to provide you with journal articles and/or letters from other doctors that support the treatment. Sometimes it helps to provide the insurer with the names of companies that pay for the same procedure at the institution where you will be treated.

If your first appeal is denied, don't give up. Although you may be frustrated, do not make angry or threatening phone calls to the insurance company or send emails with a similar tone. Remember, angry people tend to say no. If you anger your contact within the insurance company at this point, you may lose a valuable ally within the organization who could help you get coverage.

If your initial appeal is denied, it is probably time to have a lawyer help you. Administrative appeals of insurance denials are much more complicated than they were a few years ago. There's a whole body of independent reviewers out there who help the insurance company make the decision appear to be reasonable. Don't just take their word for it. Some reviewers don't even look at the language in the insurance plan and their carefully crafted letter may simply be a form letter with minor identifications which does not answer the legal question "Is this experimental as defined in the insurance contract?" The term "experimental," as defined in the contract, can be quite different from the way you or a doctor defines the term.

When looking for a lawyer, make sure he or she has handled this type of case before or at least has ready access to colleagues with experience in this field of law. The administrative appeals process is very complicated, time-consuming and has to be done correctly. Only someone with experience in this field of law can recommend appropriate strategies.

Feel free to talk with several lawyers to find the one with whom you are most comfortable. Most lawyers who handle these cases will do an initial review of your case without charge or for a minimal fee. After the lawyer initially reviews your case, ask him or her to give you an estimate of the hours and fees that will be required. Most appeals require eight to 20 hour of a lawyer's time. Make sure the lawyer knows when you must begin your treatment so action can be taken in a timely manner.

Trying to persuade your insurance company to cover a transplant while you or your loved one's life hangs in the balance can seem like an overwhelming proposition. However, if you follow these tips, getting coverage for your transplant will be much less stressful than it otherwise might be.