Be Ready to Fight Back

C. Grannan

      Getting his health plan to fix his damaged heart was tough, Andrew Zellers-Frederick says. It took two rounds of written appeals, both rejected, an in-person appeal to the health plan, also rejected, and an appeal to a state board, which finally sided with him. For six months, the Warminster, Penn., cardiac patient and his wife battled doggedly on, dusting themselves off and struggling to their feet after each blow. The only assistance they got was from their own meticulous record keeping.
      David and Joyce Ching's health plan was even more intractable — and Joyce paid with her life. A court found that doctors delayed for three months in referring her to a specialist for her colon cancer symptoms. The doctors were squeezed, the California family's lawyer charged, by a system that penalized them for making the referral.
       Consumers in such situations, where the health plans controlling their care refuse to provide apparently urgently needed treatment, are all too often discovering that they face a tough fight.
      A smattering of agencies can offer effective help. But they are few and far between.
       "People are really on their own," declares Shelley Rouillard, program manager for the Health Rights Hotline, an apparently unique private project in Sacramento, Calif., that steps in to help fight such battles with local health plans.
       For most medical consumers, that means the main weapons they can use to fight such battles are their own persistence and chutzpah — and whatever information they can pick up about how the health plan operates.
      "Today's medical consumers have to be much more informed and educated than ever before about how their health plan works," Rouillard says. There's no accurate count of how many patients have disputes with their health plan over services. As just one example, the California Department of Corporations, which regulates health maintenance organizations in that state, reports getting 6,000 to 7,000 calls a month on its health plan consumer hotline. And that's after each consumer has first made the required appeal directly to the health plan.
       Denial of benefits can take several forms, including refusing to authorize a treatment or refusing to pay for it after it has been provided. Denial can be based on medical necessity — a dispute over whether the procedure is appropriate. Or the issue can be coverage — a dispute over whether the procedure is covered under the terms of the health plan.
       A consumer who's not a health professional might recoil at the notion of arguing with professionals about medical details. But generally the health plan member is arguing that the plan should approve the procedure recommended by the physician, as Zellers-Frederick did, rather than debating the scientific merits of the treatment.
       One managed care industry spokeswoman views those issues as black and white: "You have no legal right to coverage you haven't purchased," Maureen O'Haren, executive vice president for legislative affairs for the California Association of Health Plans, says flatly. But most observers see gray areas in benefits disputes.

Some Suggested Strategies:
      When the authorization form comes back stamped "denied," the consumer's most useful tool is attitude — within the bounds of civilized behavior. Jacqueline Fox, a Washington, D.C., attorney whose legal specialty is representing consumers in appeals with health plans, conveys that in her advice: "The first thing is to recognize that the rules the insurance company has written are for the benefit of the insurance company and they're only on paper. They're just not important. What's important is showing muscle."
       In fact, "not medically necessary" is sometimes a tactic rather than a scientific opinion, Fox contends. In extreme cases, she says, "Once you get into the dispute with the plan, the argument will switch back and forth. If you contend that it's medically necessary, they'll say it's not a covered benefit. Once you demonstrate that it's covered, they'll switch and claim it wasn't medically necessary." The determined consumer can still prevail, she hastens to add.
       "People don't always know that if they push hard enough, they can get what might have been denied," agrees physician Vincent Riccardi, founder and president of the for-profit group American Medical Consumers of La Crescenta, Calif. "If you question a 'policy,' sometimes you find out it's not really policy, even though it was presented to you as if you had no choice."
      Some strategies call for both assertiveness and legal sophistication. "When a person is denied," Riccardi says, "one of the approaches is to ask, 'Where is the written authority? And will you put in writing that there has been no trespass of that policy?'" If a plan will admit that a policy has been breached before, he points out, it can be pressured to breach it again.
      Consumers need to keep scrupulous records of every aspect of the process. "Make a note of everyone you talk to and when you talked to them," urges Donald White, spokesman for the managed care industry group American Association of Health Plans, whose members cover 140 million patients.
      The process, the tactics and the behavioral strategies follow the same path whether the dispute is with a managed care plan in any of its three-letter permutations — HMO, PPO, POS, IPA, PHO — or one of the traditional fee-for-service plans. 
      But sometimes it's not the health plan at all that's denying a service or referral: It's the medical group, a corporate entity that the patient may never have heard of, though such groups sign the paychecks of a large percentage of U.S. physicians. Medical groups pull doctors together so they can deal with insurance companies. Determining — by asking the doctor — whether the denial came from the plan or the medical group is a crucial first step. Some medical groups have their own appeals processes.
      Medical groups often are governed by no regulatory body at all, an unnerving setup from the consumer advocacy point of view. "This is still a very gray area in terms of regulation," observes Vikram Khanna, director of the advocacy group State Health Policy Solutions of Columbia, Md., and author of the book "Managed Care Made Easy: Survival in the HMO Era" (People's Medical Society, $14.95). "It will continue to be a gray area until state legislators decide they need to do something about it."
      Whether the dispute is with the medical group or the health plan, the appeals process must be pursued aggressively. The health plan's enrollment materials give information on where to send the appeal.
      "If the denial is for medical reasons, it's time for you and your physician to team up and work the appeals process," says Khanna. "You need to write a letter documenting your medical issues. Your physician needs to back that up with appropriate medical data from your chart and scientific studies or government reports about the recommended treatment.
      "Once that letter is in, don't wait for an answer," he adds emphatically. "Get on the phone and start calling. Be a polite but persistent pest."
      Consumers shouldn't be intimidated by the appeals process, White says. You have this whole internal appeals structure.

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