Quis custodiet ipsos custodes?

-Juvenal, The Satires

The translation of the title to this blog is “who watches the watchmen?”  That question needs to be asked in relation to a critical feature of the Affordable Care Act – the availability of independent external review of health benefit claim denials.  See, https://www.healthcare.gov/how-do-i-appeal-a-health-insurance-companys-decision/ The availability of an independent external review of a health benefit decision is intended to provide a level of scrutiny to insurance company decisions.  However, while a favorable determination will almost always guarantee the payment of benefits, an unfavorable determination is practically the same as an arbitration ruling – final and unappealable.

Placing a claim decision in the hands of an independent external reviewer creates the risk of being denied necessary and perhaps life-saving medical care without any realistic likelihood of successfully challenging a denial in court.  The danger is that the external reviewer may not apply appropriate standards or up-to-date medical research in rendering claim decisions; and if that occurs, there is no recourse.  The claim decision is then final.

DeBofsky, Sherman & Casciari recently dealt with just such a scenario when one of our clients suffering from a life-threatening illness was denied pre-approval to undergo a treatment that her doctor had prescribed.  The doctor, a highly trained specialist who practices at a leading academic medical center, was stunned by the denial because the treatment had been routinely approved for his other patients.  Our client appealed the decision only to receive another denial; and much to her surprise, when she exercised her right to an independent external review, the denial was upheld yet again.  Fortunately, there was a limited window of opportunity available; and after threatening to seek a court injunction, we were able to convince the insurance company that the independent evaluation was severely flawed.

Health insurance does not cover every potential treatment that a doctor might suggest.  Experimental and investigational drugs and procedures are usually not covered by insurance.  However, our advice to our clients when life-or-death issues are involved is that they seek counsel from an experienced attorney before submitting to an independent external review.  Although the reviewers utilized to review claims must meet certain standards and be accredited, you are literally putting your life in the hands of someone who is not nearly as familiar with your medical condition as your own doctor, and you are severely limiting your right to have a court decide the issue if the claim is denied.

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Update on ERISA-governed insurance benefit claims:  NACLE

Update on ERISA-governed insurance benefit claims: NACLE

ERISA law is constantly changing; and with each new ruling, the scope and context of how issues relating to disability, life and health benefits are resolved by the courts is constantly evolving.  In June of 2021, Mark DeBofsky recorded a continuing legal education program for the National Academy of Continuing Legal Education (NACLE) providing an update on ERISA-governed insurance claims.