One of the most important aspects of the Affordable Care Act, or Obamacare as it is commonly known, is the right to seek independent review of a health benefit denial.  The notion of an independent review of an insurance company’s decision may seem to be a fair and objective way to resolve a dispute over coverage, but it is not always the panacea it seems.

Although independent external review is freer from potential bias than when an insurance company solicits an external review and chooses the reviewer, there is a serious potential problem that must be faced – what happens if the independent reviewer agrees that the service or treatment is not covered?

For routine matters that are generally affordable out-of-pocket if the insurance company denies coverage, an independent review may be the most cost-effective way to resolve a coverage dispute, especially if costly litigation may be the only alternative.  However, if the disputed claim is especially costly or involves a life or death issue such as a cancer treatment, electing independent review may be a costly mistake.

If the independent reviewer agrees with the insurance company’s determination, the chances of successfully challenging a benefit denial in court are markedly diminished. An an “independent” doctor’s opinion is likely to impress the court and sway the outcome of the case in favor of the insurance company.  Of course, that opinion may be contrary to established treatment protocols, but that will rarely be the case.  In the most serious cases, the standard of care is often still evolving and it may be necessary to convince a court of the need for a specific treatment through the testimony of the treating doctor.  However, the persuasiveness of the treating doctor’s recommended course of treatment may be diminished if an “independent” reviewing doctor (with emphasis on the word reviewing since such doctors do not examine the patient) has come to a different conclusion.  Therefore, we often recommend to our clients that they decline independent review if the treatment is exceptionally costly or the failure to receive treatment could result in death.

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