California Insurance Lawyer Blog

An article in U.S. News & World Report briefly mentions the travail our client Claire Krumpotich and her family have encountered with Conseco Senior Health Insurance Company. We've written several times before about Conseco, its financial problems, and its seeming unwillingness to make good long term care policies. Once again we have a client who has fallen victim to the company, and this time U.S. News is writing about it also. See: “Pros and Cons of Long-Term Care Insurance,” http://www.usnews.com/health/managing-your-healthcare/healthcare/articles/2009/12/21/pros-and-cons-of-long-term-care-insurance.html. While the article has a lot to say about how valuable LTC policies are if the insurer honors the terms of its contract, it fails to adequately describe the dilemmas of our client and many others like her who bought the policies years ago and are now vainly trying to get Conseco to admit their policies say what they say.

In our client’s case, Conseco continues to insist that her care does not meet her policy terms.

It appears that Conseco will not pay benefits because Claire no longer lives in a home similar to the one she resided at when she bought the policy, even though the word “home” is never defined in the policy.

Ironically, in July 2008, Conseco increased Claire’s premium payments because “[w]ith the introduction of assisted living facilities and adult day care, and the growth of home health care providers, consumers now have more options for receiving assistance than ever before. As a result, more insured’s are now using benefits and the cost of providing those benefits has increased.” Claire began paying almost $6600 a year, up from an initial premium of $470 a year when the she purchased the policy in 1990. Claire and others like her began paying for services Conseco now alleges they were never entitled to.

That sounds like insurance bad faith to us.

Unfortunately, U.S. News hasn't yet delved deep enough into the issue. The fact is that Ms. Krumpotich, and far too many others often must engage in protracted and nonsensical negotiations, and even litigation, in order to try and get claims paid. For the elderly and infirm, this is often an insurmountable challenge. A policy can look good on paper, but its value may be artificial. All we can say is read your policy carefully, research the company, and talk to others about their experience before paying for a benefit that may never materialize.

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Posted In: Insurance Bad Faith , LongTerm Care Insurance

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The CLASS Act, the part of the federal healthcare overhaul that creates a payroll deduction for long-term care similar to Social Security, may survive to make it into the final version of a combined congressional bill and become law, writes James Oliphant in the Los Angeles Times.“Government Insurance for Long-Term Care Likely to Slip Into Final Healthcare Bill,” http://www.latimes.com/news/nation-and-world/la-na-health-longterm31-2009dec31,0,4138098.story.

Members of both the Senate and House of Representatives support the act, which is voluntary and requires payment into the plan for five years before a participant is entitled to receive benefits. The CLASS Act is also controversial.

Proponents, particularly those who lobby for the elderly and disabled, praise the act because it allows people the option to remain in their homes, paying for in-home caregivers without depleting the resources and energy of family members. Opponents believe the act won’t pay for itself and will require a government bailout to remain functional.

We believe the discourse about long-term care insurance – whether through the government plan or private insurance – is a necessary discussion to alert this country about a very important aspect of planning for the future. Whether the CLASS Act is the right solution, and whether it will even survive the House, remains to be seen.

Either way, it's our opinion that for the time being insurers need to reformulate their offerings and claims paying practices in order that people can obtain and afford, and then realize the benefits they need.

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Posted In: LongTerm Care Insurance

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Kantor & Kantor, LLP achieved an important victory in the U.S. District Court in Los Angeles for a client suffering from the rare muscular disease Charcot-Marie-Tooth. Our client was denied disability benefits from Standard Insurance Company, which insured the disability plan of Countrywide Home Loans where she worked as a mortgage loan underwriter.

This case is significant because it is the first district court decision decided after the recent Ninth Circuit case of Montour v. Hartford Acc. & Life Ins. Co., 582 F.3d 933 (9th Cir., 2009), wherein the Ninth Circuit clarified how a trial court should review claims decision by an insurer.

In our client’s case, the district court found that Standard’s decision to deny benefits “was tainted by its financial interest” and cited the following as evidence:
• Standard neglected to advise the plaintiff of what type evidence to provide to support her claim. The federal law governing workplace disability plans, the Employee Retirement Income Security Act, mandates that plan administrators tell insureds what specific information they must submit. To request mere “medical evidence” or “information you believe is relevant” does not comply with the letter of the law. The administrator must tell the claimant what information the administrator considers relevant.
• Standard used the wrong occupational criteria. This is significant because our client’s plan language included the “own occupation” criteria rather than the “any sedentary occupation” criteria Standard relied on. In our client’s case, that means she is entitled to benefits because her illness prevented her from performing the requirements of a job she held for nearly a dozen years. Whether she could work at another job was irrelevant under the terms of her plan.
• Standard denied our client’s claim without full investigation, neglecting to wait for complete answers about our client’s disability from its own medical examiners and neglecting to ask its examining physicians the necessary questions to document our client’s illness. In particular, the court found that Dr. Elias Dickerman was not adequately trained by Standard – even though he received more that $200,000 annually from Standard since 2006 for his medical diagnoses – and that he made errors in his reading of our client’s medical records.

The court determined that our client’s policy should be reinstated and awarded her all her unpaid benefits.

If you have been denied insurance benefits for similar reasons or had benefits delayed with excuses that seem in error, contact us right away to find out how we can help you restore your benefits. Call (818) 886-2525 or log on to www.kantorlaw.net.

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Posted In: ERISA , LongTerm Disability (LTD) Insurance

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Photos on Social Media Sites May Give Insurance Adjustors Wrong Impressions

Canadian citizen Nathalie Blanchard was merely following her doctor’s suggestion that she spend time with friends and vacation in a sunny climate as a cure for depression when her sick-leave benefits from her employer-provided insurance were abruptly terminated. Nathalie made the fatal error of posting photos of herself having fun on Facebook. Her insurer discovered the photos, determined she was no longer depressed and told her to return to work. Although the insurer told the Associated Press that it did not solely rely on the Facebook photos in making its decision, it neglected to mention what other sources – such as sound medical evidence -- it did rely on. Nathalie is appealing the denial. See “Canadian Woman Loses Benefits Over Facebook Photo,” http://news.yahoo.com/s/ap/20091122/ap_on_re_ca/cn_canada_facebook_insurance.

This latest news article illustrates the level of scrutiny ill and injured people typically encounter from their insurers when they are unfortunate enough to actually need the benefits they’ve paid for. Their lives become open books where even the most innocent of activities become an insurance inspector’s evidence of suspected fraud.

Here’s our sad but true advice to Americans receiving disability benefits: What you post or print on social media sites will be discovered by your insurer and interpreted in the light most unfavorable to your disability claim – even it you are only following doctor’s orders.

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Posted In: LongTerm Disability (LTD) Insurance

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Long-term care advocate and blogger Howard Gleckman weighs in on the CLASS Act, the federal government’s long-term care proposal included in pending health care legislation, for Kaiser Health News. See “Will People Buy Government Long-Term Care Insurance,”
http://www.kaiserhealthnews.org/Columns/2009/November/111609Gleckman.aspx.

Gleckman predicts that significantly more people will purchase government LTC coverage than those who currently purchase private insurance, but it still won’t be enough to solve the nation’s long-term care challenges. To increase purchasers, Gleckman suggests the following:

First, make coverage mandatory and require all major employers to offer it. If employees are allowed to opt out, impose tough penalties on both employers and workers who don’t participate.

Second, do more to encourage young employees to buy coverage. Determine premium amounts by age at enrollment and never increase (or only moderately increase) premiums, while providing more benefits as policyholders age. That way, workers would enroll while they are young and healthy to avoid costly premiums when they need coverage.

Third, the government could give employers financial incentives to match worker contributions.

Let's see what, if anything, the ultimate health care bill will contain on the Long Term Care question.

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Federal Healthcare Legislation Could Erode California’s Consumer Protections

Lisa Girion of the Los Angeles Times reports that a provision of federal healthcare legislation under consideration could harm consumer protections in states that have strong laws that both protect policyholders’ rights to insurance coverage for certain health treatments and the ability to appeal coverage denials. “State Health Laws at Risk,” Los Angeles Times, November 16, 2009. http://www.latimes.com/business/la-fi-mandates16-2009nov16,0,2437457.story. Healthcare overhaul bills in both houses allow insurers from other states to sell insurance in California without being subject to the state’s tougher enforcement mechanisms.

“California mandates require insurers to cover home healthcare, bone density screening for osteoporosis, in vitro fertilization and mastectomy. Mandates also cover certain providers, such as chiropractors, and conditions, such as autism. If insurers are allowed to sell under the laws of other states, they might be able to offer policies that do not include those benefits,” Girion writes.

Other California protections potentially at risk include prompt claims payment laws. In California, a policyholder has the right to appeal an insurer’s refusal to pay for a particular treatment. Other states may not offer the same protections.

Proposed federal healthcare legislation remains controversial. While on one hand it offers more competition and lower premiums for California consumers, on the other hand it could undermine gains consumers have achieved in California.

It’s always a good idea to read a policy before purchasing any kind of insurance. If something seems questionable or you don’t understand certain provisions, ask for explanations and help. Don’t sign any policy until you are convinced you will get what you pay for or are afforded the right to appeal when you don’t.

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California Law Displays Understanding of Eating Disorders
That Insurers Should Emulate

Insurance companies that routinely misunderstand eating disorders should pay attention to California Health and Safety Code Section 1254.5, which provides a refreshing perspective on the nature and treatment of eating disorders. In its findings under Section 1254.5, the California Legislature states, “[T]he disease of eating disorders is not simply medical or psychiatric but involves biological, sociological, psychological, family, medical, and spiritual components. . . . the treatment of eating disorders is multifaceted, and like the treatment of chemical dependency, does not fall neatly into either the traditional medical or psychiatric milieu.”

This legislative comment reflects what we find in our law practice representing clients suffering from eating disorders whose treatment should be covered by their health insurance. We often explain to insurance companies, mediators, and judges how residential treatment for an eating disorder involves intensive treatment of the psychological mindset that perpetuates the eating disorder. Treatment is not limited to the mental aspects; it also involves frequent monitoring of the disorder’s physical symptoms through blood work and weight gain. Education on nutrition and exercise also gives patients the tools to stay in recovery when discharged from treatment facilities.

Combined with Mental Health Parity Acts, such as California’s codified in Insurance Code Section 10144.5, the Section 1254.5 language supports our arguments that treatment for an eating disorder is truly multi-faceted and often residential treatment is the only means for conquering an eating disorder.

Section 1254.5 will not create coverage where it didn’t exist or force an insurance company to pay a claim. But it can increase awareness and recognition in the legal forum when presented to courts and insurance companies.

-- Elizabeth Green

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Posted In: ERISA , Health Insurance , Insurance Bad Faith

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A new study published last week in Science magazine announced that a retrovirus called XMRV may cause Chronic Fatigue Syndrome (CFS). The virus' actual name is xenotropic murine leukemia virus-related virus,and it was found in nearly 98 percent of about 300 patients with the syndrome. See, NY Times, Virus Is Found in Many With Chronic Fatigue Syndrome by Denise Grady.

This discovery provides hope for researchers because if the retrovirus – part of the same family as the HIV virus that causes AIDS – definitively proves to cause chronic fatigue, the disease might be effectively treated with antiretroviral drugs. Currently, no treatment or cure is available for chronic fatigue syndrome. Researchers also believe that they can create a blood test to determine if a patient is infected with XMRV virus, much the same way a blood test can determine HIV.

Chronic fatigue patients are also hopeful that their symptoms – severe fatigue and body aches – will now be taken seriously by doctors and insurers. Because chronic fatigue can only be diagnosed by ruling out other illnesses, some in the medical community refuse to treat chronic fatigue as a legitimate disease or attribute it to a psychiatric disorder. As a result, most health and disability insurers are skeptical about providing benefits for chronic fatigue sufferers who are too ill to work. Many are accused of “malingering,” that is, lying about or exaggerating their symptoms. Now the medical community may have valid research to back up a diagnosis of chronic fatigue.

The study is considered significant for two other reasons: First, the XMRV virus has been linked to prostate cancer. Second, about 4 percent of healthy people studied were carriers of the XMRV virus. According to the Wall Street Journal, that means that “10 million people in the U.S. and hundreds of million people around the world are infected with a virus that is already strongly associated with two diseases.”

The National Cancer Institute has authorized more research to find out if the virus is linked to any other diseases.

Dr. Judy Mikovits, one of the lead authors of the XMRV paper, told the Wall Street Journal, “Just like you cannot have AIDS without HIV, I believe you won’t be able to find a case of chronic-fatigue syndrome without XMRV.”

We have seen it time and time again… insurers downplaying the symptoms of CFS and even accusing our clients of being untruthful about their inability to function normally, all because there was no “objective evidence” of their Chronic Fatigue. Hopefully, this will all change soon as more is learned about XMRV. Has your insurer refused to consider your diagnosis of chronic fatigue seriously? Kantor & Kantor can help.

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Posted In: ERISA , Health Insurance , Insurance Bad Faith , LongTerm Disability (LTD) Insurance

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"Tort Reform, Tort Reform, Tort Reform," the phrase has almost become a song. Nobody likes to see undeserving people win huge, unjustified damage awards, but the fact is, it doesn't really happen in California, except on maybe on TV. Los Angeles Times business columnist Michael Hiltzik couldn’t be more correct when he writes that one of the biggest fans of so-called tort reform is the insurance industry, “because the less money they pay out to plaintiffs, the more they get to keep.” See “Why Tort Reform Is a Frivolous Diversion.”

While that statement is enough to make sensible people wary of the deep pockets behind tort reform movements, Hiltzik clears the confusion and makes a very good case about why limiting an injured victim’s ability to use the legal system to be made whole is not the great fix for rising medical costs insurers and many politicians claim.

The argument for tort reform, as Hiltzik explains, is that plaintiff lawyers are filing too many “frivolous” lawsuits and claiming millions of undeserved dollars. Doctors are ordering unnecessary tests to ensure they don’t misdiagnose or fail to diagnose something that could end up in court. As a result, medical costs escalate.

“The truth is that medical liability isn’t a big driver of health costs overall,” Hiltzik writes. “[T]he cost of malpractice litigation, in court and through defensive medicine, [is] roughly 2% to 3% of all U.S. healthcare spending.”

In California, since 1975, the Medical Injury Compensation Reform Act (MICRA) has capped recovery for pain and suffering to $250,000. That’s next to nothing when to compared to what plaintiffs can receive in other types of cases. Lawyers’ fees are also limited.

But did MICRA help consumers? According to a 2004 Rand study, the MICRA caps don’t amount to a fair distribution of justice. Victims of medical errors who had small economic losses but suffered major damage to their quality of life are unfairly compensated. Women are disproportionately affected. The MICRA cap isn’t adjusted for inflation. In today’s dollars, the award has the same purchasing power as $62,000 did in 1975. And the most unsettling result of all is that may unjustly injured people won’t even pursue a case because the award may not even cover the litigation cost.

The big MICRA winners are insurers, who last year paid out only 17 cents of every dollar they collected on medical malpractice insurance. And carriers don’t even have the good sense to be humble about it.

“At American Physicians Capital,” writes Hiltzik, “claims were falling so fast in 2007 that its chief executive publicly compared his underemployed claims managers to ‘the Maytag repairman.’ The next time you find yourself nodding in assent while some politician carries on about tort reform, remember that its benefits will go to characters like this.”

Clearly, this only reinforces what we’ve been saying all along: If you want real reform, start with the perpetrators, not the victims.

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Posted In: Health Insurance , Insurance Bad Faith , Life Insurance , LongTerm Care Insurance , LongTerm Disability (LTD) Insurance

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According to Medical News Today, fibromyalgia is no longer an “invisible” syndrome. Citing a study reporter in the Journal of Nuclear Medicine, the article reports that researchers in France were able to detect functional abnormalities in the brain after performing brain scans on 20 women diagnosed with fibromyalgia. Those scans were then compared with scans from 10 healthy women. See “Fibromyalgia Can No Longer Be Called an Invisible Syndrome.”

The diagnosed brain abnormalities directly correlated with the severity of the disease, as reported by the women on questionnaires they filled out in advance of the scan. The results of the study disprove the widely held belief that fibromyalgia is caused by depression. The study found that the brain abnormalities were “independent of anxiety and depression status.”

The study follows news earlier this year that a Stockton, Calif., surgeon patented a process to objectively determine the presence of chronic pain. See, “Surgeon’s Patent Removes the Subjectivity from Chronic Pain.”

Dr. Robert England uses an MRI image to compare the brain image of a person in chronic pain receiving stimulation such as a finger squeeze or mild electric shot to the brain image of a healthy person undergoing the same stimulation.

For people with fibromyalgia, England said his studies showed 13 areas of pain when the patient's thumb was squeezed. When a pain-free person's thumb was squeezed, only one area of pain appeared in the brain.

When these tests will be widely available – and whether insurance health plans will accept them as valid documentation – is still unknown. But they are encouraging developments for people with fibromyalgia who are often accused of fabricating the severity of their illnesses so that the insurer can deny disability or health benefits.

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Posted In: Insurance Bad Faith , LongTerm Disability (LTD) Insurance

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The Los Angeles Times health section this week ran dueling articles about life with and without health insurance. Both articles exposed a few of the most egregious problems consumers face dealing with their health insurance companies.

In “Uninsured, Unafraid,” health insurance reporter J. Duncan Moore Jr., listed the many reasons he opts to remain uninsured. Moore has written about the insurance industry long enough, he says, to learn “to love the delectable insurance lingo … that makes normal people feel as if they’re stirring concrete with their eyelashes.”

Moore’s most compelling argument about why he’s uninsured, and the one he describes as “the single most terrifying aspect of health insurance,” is the practice of rescission, that is, carriers revoking coverage after the policyholders gets sick and incurs medical expenses.

Moore writes: “The industry’s continued use of rescissions to evade bills that companies don’t wish to honor eviscerates the value of health insurance. To a person like me, who is on the margin, rescissions are the deciding factor between purchasing and not purchasing insurance. … [A]s long as the insurers can use medical underwriting to exclude poor risks and redline preexisting conditions -- sometimes retroactively -- insurance isn’t worth what we’re being asked to pay.”

The second article, “When a Policy is Clear as Mud,” by Harris Meyer, follows the saga of Anthem Blue Cross policyholder Neil Dukas as he attempts to receive treatment for a knee injury. His difficulties arose because he couldn’t get clear, reliable information from his insurer about pre-authorization for procedures and tests and reimbursements for his out-of-pocket costs for an MRI. Eight months after his injury, Anthem Blue Cross approved his MRI, but Dukas is still waiting for reimbursement.

Meyer quotes former health insurance communications executive Wendell Potter: “There are many ways insurers keep their customers in the dark and purposely mislead them,” he said. “Insurers make it nearly impossible to understand -- or even to obtain -- information [consumers] need.”

Some insurers insist they are attempting to “step up” their communications efforts so their customers can better understand insurance jargon, writes Meyer in a companion article “Goodbye, ‘Insurancespeak’ – Hello, Clear Language.” http://www.latimes.com/features/health/la-hew-insurance-jargon-changes21-2009sep21,0,893422.story.

We would not advocate remaining uninsured. A catastrophic injury to you or family member would either bankrupt you, or keep you from getting the medical services you need. On the other hand, paying premiums only to find the coverage rug pulled out from under you could have the very same effect. THESE are the issues Congress should be tackling, instead of the noisy, wholly ineffective debate about whether a “public option” is going to turn our Country into a socialist regime.

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The LTC Guild, a forum for long-term care insurance agents, recently launched its “3 in 4 need more” campaign to educate consumers about the number of Americas over 65 who will likely require some type of long-term care service in their future. According to the U.S. Department of Health and Human Services, that’s about 70 percent of us.

The focus of the campaign is to highlight why long-term care insurance is such a necessity. Medicare will NOT cover most of the long-term care services the majority if us will need. Right now, long-term care is the only safety net for most people. In the highly unlikely event long-term care coverage becomes part of federal healthcare reform, that option may still not pay for the quality of services that a private plan would.

We support the LTC Guild’s public awareness campaign.

For more information about the “3 in 4 need more campaign, log on to http://ltcguild.ning.com/page/long-term-care-insurance-for.

[090916]

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“Momentum for health reform may be building again, but interest in improving our system of long-term care supports and services is still lagging,” writes long-term care advocate Howard Gleckman in his newest blog post. Gleckman notes that while the CLASS Act, the late Sen. Edward Kennedy’s long-term care bill, has undergone changes this summer and received President Obama’s endorsement, the legislation could very likely fall victim to the controversy surrounding a public option for health insurance.

But the real reason LTC reform won’t happen is indifference, not opposition Gleckman says. “Overwhelmed by the passionate, high-stakes debate over health reform, many lawmakers remain reluctant to even confront long-term care issues. They are making a major mistake by failing to recognize that the chronically ill need a full range of care that does not end at hospital discharge or when they leave their physician’s office. An elderly widow suffering from Parkinson’s or a young man struggling with multiple sclerosis doesn’t distinguish between personal care and medical treatment. For them, it is all essential care. Congress needs to recognize this, but, at least for now, the odds that it will do so in 2009 remain long.”

So for right now, the best option is still private LTC insurance, or, in some cases, employer-provided LTC insurance coverage, which could be your only safety net if you long term care becomes essential due to age or infirmity. (090914)

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“Most Americans do have insurance and have never had less security and stability than they do right now because they’re subject to the whims of health insurance companies,” President Obama told a group of nurses, speaking from the White House the morning after his Sept. 10 address to a joint session of Congress about his plan to overhaul the nation’s healthcare system. “Obama Keeps Up Health Care Push, Citing Uninsured,” New York Times.

As part of his Wednesday night speech, the president said the legislation he seeks would guarantee insurance to consumers, regardless of pre-existing medical conditions, as well as other protections. “As soon as I sign this bill, it will be against the law for insurance companies to drop your coverage when you get sick or water it down when you need it most," he added. Obama: Time for Bickering Is Over,” Associated Press.

Even though the bulk of the healthcare debate tends to focus on the issue of whether our country could support both private and public health insurance options – we believe it can – the real truth about the way the insurance industry does business cannot be over-emphasized.

The president has it right when he says health insurers must be held accountable. At the very least, any federal health care legislation should mandate that sick people get the coverage they pay for without delays or denials, time-consuming procedures, and claims adjusters forced to be more concerned with limiting benefits than caring for their customers.

Although legislators are showing concern that the debate has become “uncivil,” real progress toward insurance reform necessarily requires a vigorous airing of the issues. We applaud those lawmakers who refuse to bend to the insurance industry’s “whims.”

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Posted In: Health Insurance , Insurance Bad Faith

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Just when the California Legislature shows some backbone and passes legislation to end the insurance industry practice of canceling some policyholders’ coverage after they get sick and incur medical expenses, the measure could reach a dead end in the governor’s office. Gov. Arnold Schwarzenegger has threatened not to sign any bills until the Legislature makes progress on the state’s water crisis issues, prison overcrowding or confirmation of the governor’s key appointees. See “Health Bill Heads to Governor,” Los Angeles Times.

Last year, the governor vetoed a similar bill, but that was before reporting, led by the LA Times, documented how widespread the practice, known as rescission, really is. The Department of Insurance, responding with outrage over the unethical practice, is proposing its own solution to the problem.

In any event, we think it is unsavory to use sick people as political bargaining chips. Our state needs lots of work and another stalemate in Sacramento won’t help consumers. The insurance industry is likely out celebrating once again.

[090909]

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California Attorney General Jerry Brown announced he will begin scrutinizing how health plans in California pay insurance claims, reports the Los Angeles Times. This move was based in part on a recent analysis published by the California Nurses Association that found six of the state’s largest plans rejected one in five claims during the past seven years - “State to Probe Insurer Denials.”

“These high denial rates suggest a system that is dysfunctional, and the public is entitled to know whether wrongful business practices are involved,” Brown told reporter Lisa Girion.

Brown joins other state regulators, most notably the California Department of Managed Health Care, responsible for policing the health plans. The DMHC, however, reacted defensively to the nursing association’s analysis, claiming it has “been very active in ensuring that providers of care should be paid fairly and on time.”

The insurance industry asserts that the analysis “mischaracterizes” claims data and “does not accurately reflect denials of care for insurers,” even though the numbers the association used to compile its report came directly from the companies own filings with the DMHC.

Although we and many others have frequently accused health plans of improperly denying claims, the Nurses’ Association analysis is the first-of-its-kind report to provide such concrete evidence.

We urge Attorney General Brown to use the powers of his office to conduct more than a cursory examination of this issue, perhaps resulting in something more than the usual slap on the wrist and innocuous fines typically imposed on the industry. Now is the time to institute structural reforms that could revolutionize health care in California, particularly since federal attempts to hold the insurance industry accountable have been compromised by the industry’s unprecedented lobbying. (090904)

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According to the California Nurses Association, California HMOs rejected one out of every five claims for medical care between 2002 and June 2009, reports Lisa Girion of the Los Angeles Times. That’s 31.2 million claims, or 21 percent of all claims during that period.

For the first half of this year, Aetna had the lowest denial rate -- 6.5 percent; PacifiCare the highest -- 39.6 percent. Anthem Blue Cross and Kaiser each rejected 28 percent of claims, and Cigna denied 33 percent.

Although such high denial rates aren’t news to us, it’s rewarding to see empirical data that supports our assertions that health insurers tend to delay and deny claims until policyholders are forced to sue them to receive the coverage they pay for. Sure many denials are justified due to actual misunderstandings about coverage, but far too many denials are improper, and even oppressive.

The nurses association used public data from the health plans’ financial reports posted on the California Department of Managed Care’s website to conduct its analysis. “Every claim that is denied represents a real patient enduring pain and suffering,” Deborah Burger, co-president of the California Nurses Association, told the Times.

Typically, the health plans denied the association’s analysis of their reports, stating that “claim rejections reported to regulators do not always reflect actual denials of treatment to patients.” Maybe not always…but often!

DMHC spokeswoman Lynn Randolph told the Times, “It’s important to point out that a denied claim means that the patient received the medically necessary services, but the doctor or hospital was not paid for that care.”

But what’s the difference? Doctors and hospitals are going to bill someone. If the health plan won’t pay claims, policyholders are then forced to pay out of their own pockets. People don’t buy health insurance for the benefit of hospitals and doctors; they purchase coverage so that in the unfortunate event they face catastrophic health challenges, they can get the medical care they need without going bankrupt!

Both the insurance industry and the California Department of Managed Healthcare fail to appreciate the pain and suffering endured by those whose claims are denied. Try being seriously ill, enduring the stress and indignity of life-saving treatment, then finding out your insurer won’t cover your bills. Now that’s real suffering.

For a copy of the California Nurses Association analysis, go to http://www.calnurses.org/media-center/press-releases/2009/september/california-s-real-death-panels-insurers-deny-21-of-claims.html.

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No matter which of the half-dozen healthcare overhaul proposals Congress is considering passing, the big winner will be the insurance industry, which is guaranteed millions of new customers, many subsidized by the federal government, reports the Los Angeles Times, “Healthcare Insurers Get Upper Hand,” Aug. 24. What began as a plan to create a public option to compete with insurers, thus driving down the cost of health insurance and the cost of care, has resulted in a windfall for the insurance industry.

But is anyone really surprised at the industry’s success in defeating potential competition?

“In the first half of 2009, the health services and HMO sector spent nearly $35 million lobbying Congress, the White House and federal healthcare offices,” reported writers Tom Hamburger and Kim Geiger, relying on information from the Center for Responsive Politics. In all, that sector employed more than 900 lobbyists.

Health insurance executive Robert Laszewski expressed the industry’s reaction: “Hallelujah!”

Shouldn’t alarm bells be going off all across the country? Is Congress really going to get back to work in the fall and pass “health reform” that has the insurance industry cheering? It is unconscionable that the industry that caused the country’s health crisis in the first place is likely going to be the only one profiting from the solution.

“They have beaten us six ways to Sunday,” Gerald Shea of the AFL-CIO told the Times. “Any time we want to make a small change to provide cost relief, they find a way to make it more profitable.”

If federal health “reform” does become law, we urge stage governments to do what the federal government can’t find the resolve to accomplish: Hold the insurance industry accountable to its millions of present policyholders – and all its potential new customers – to ensure they are getting the coverage they (and their federal subsidies) are paying for.

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This week, New York Times blog, “The New Old Age,” answers questions about long-term care coverage and how the C.L.A.S.S. Act, a bill introduced by Sen. Edward Kennedy (D-Mass) that would establish a national long-term care insurance program, enjoys the possibility of being incorporated into congressional health care legislation. “Congress Tackles Long-Term Care.”

Most analysts appear surprised that the concept of a national LTC program has moved from the theoretical to a possibility of approval. Three congressional committees, however, still need to weigh in with a vote on the program.

Howard Gleckman, a senior researcher at the Urban Institute told the Times “that while some insurance companies oppose the idea, ‘the biggest problem the C.L.A.S.S. Act has isn’t opposition, but indifference — a sense on the Hill that they just don’t want to mess with long-term care.’”

Whether or not the measure passes as part of health care reform – which faces its own serious obstacles – placing the issue of the lack of long-term care coverage in the United States on the front page of major newspapers is helpful and informative for the millions of Americans who can still afford to purchase private coverage or have the capacity to push their employers to offer LTC as part of a benefits package.

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The Long Island Business News reports that many people think they have enough insurance until they need the policy. Then they learn its limitations, find they have insufficient coverage, or discover “loopholes big enough to drive a truck through.” Laura Glasser, “With Insurance, the Fine Print Matters,” June 30, 2009. This is particularly true, the article reports, for health and long-term care policyholders because they aren’t reading their policies to understand coverage limitations.

“One reason many people get surprises is they don’t know much about their coverage to begin with. If you’ve read your policy lately, you’re in the minority. Most health policies, for instance, cover up to $1 million in lifetime benefits. But most people don’t know that,” writes Glasser. Here’s what two insurance industry executives had to say about the situation:
“The information’s there,” said Ian Laird, director of strategy, sales and programs for Empire Blue Cross Blue Shield. “It’s just in a document that I don’t think the average person bothers to read.”

“You expect people to read their benefits,” said William Golden, chief executive of UnitedHealthcare’s health plan for New York, of the source of many surprises. “I’m not sure that really happens all the time. It’s important to read the small print.”
Here are two insurance executives admitting in black and white that they are selling policies that people don’t read, filled with fine print that limits coverage, and they appear just fine with the situation. In fact, one wonders if they might be taking advantage of this information by filling policies with fine print loopholes that end up surprising many people.

We say it everyday…and we’ll say it again here: READ YOUR POLICY BEFORE YOU NEED IT. If you don’t understand something, ask someone who can help.

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Posted In: Health Insurance , Insurance Bad Faith , Life Insurance , LongTerm Care Insurance , LongTerm Disability (LTD) Insurance

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Is anyone surprised by Los Angeles Times reporter Lisa Girion’s article “Insurers Refuse to Limit Policy Cancellations"?

Executives from three of the nations largest insurers were “courteous and matter-of-fact” in their testimony before Congress about carriers’ practice of canceling coverage for sick policyholders known as rescission. When asked it the industry planned to stop the practice, all three executives said, “No.”

Members of the House Subcommittee on Oversight and Investigations must have been dumbfounded by the response, particularly those members who have taken up the industry’s cause in opposing government-sponsored health insurance.

“When insurance companies go under oath and admit they are cancelling innocent patients when they get sick, it makes it very difficult for lawmakers to pass a law that requires every American to buy a policy or face a tax fine,” said Consumer Watchdog advocate Jerry Flanagan. “It opens the way for a public option to hold the companies in check.”

It appears to us the health insurers must not be too worried about the possibility of a public plan or simply confident that they can influence Congress against it the same way they have for the last 30 years.

Will it take a public option to convince insurers to treat policyholders fairly? We wish we could say yes, but in all likelihood rescission practices, as well as denials and delaying tactics, may be so firmly entrenched in the way the industry does business, nothing but a complete overhaul by state and federal regulators – or fines that amount to more than just a slap on the wrist -- would make a difference.

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A couple of weeks ago we wrote about United Healthcare’s benefit denial for a young woman who's life is being threatened by her Anorexia.

Sacramento Bee healthcare writer Carrie Peyton Dalhberg reported June 14 about our client and her stuggle (Shepard v. United Healthcare) - “Woman Struggles to Escape Anorexia’s Grip.”

Because of the health plan’s delaying tactics in providing benefits, Ms. Shepard’s family exhausted its financial resources paying for her inpatient care. Our appeal to the California Department of Insurance was successful – United Healthcare was held responsible for Ms. Shepard’s medical expenses. The ruling came a few hours too late, however. Ms. Shepard had been discharged that morning. Ms. Shepard participated in outpatient care after her return, which proved unsuccessful. The article details the tragic result.

Litigation in this case is ongoing. We continue to fight for benefit payments on behalf of people suffering from disabling illnesses and conditions against insurance companies whose delay and deny tactics toward their own policyholders cause hardship and despair.

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You’d think that the insurance industry, faced with the prospect of competition from a proposed national health plan, would do everything it could right now to keep its customers happy. So why did Blue Shield raise its rates this month – as much as 54% for one policyholder – Los Angeles Times columnist David Lazarus questioned. “Blue Shield Hits Health Insurance Policyholder With 54% Rate Hike.”

Blue Shield policyholder Ruta Miller, who pays for an individual policy, received a letter from her insurer alerting her that her “rates are changing due to rising costs across the healthcare industry. Major drivers include hospital upgrades, new technologies and expensive new drugs.”

“Blue Shield could have made these claims at any point over the last 50 years,” writes Lazarus. So why now?

Company spokesman Aron Ezra blamed hospitals and said, “We agree that insurance premiums are rising far too fast -- and this is symptomatic of our broken healthcare system. Our system needs an overhaul.”

But if that’s the case, why is the industry working so hard to prevent an overhaul and keep the status quo?

Miller’s increase was higher than most policyholders experienced, said insurance brokers, who said the rate increases this year run from 8% to 28%. Miller’s increase was so high because she is on the high end (even though she is healthy), apparently because she turns 45 this year, an age at which Blue Shield arbitrarily decides to increase rates for all policyholders.

People with private policies get hit hardest by insurers, explains Lazarus, because they don’t have the bargaining power of large employers to keep rates down. That’s what a government-provided healthcare would solve by creating a pool for everyone without employer-provided insurance, spreading the risk and controlling costs. But it would also allow people like Miller – millions of people, in fact – to flee big insurance rate-increase abuse for a more affordable government option.

But that hasn’t seemed to deter Blue Shield. It also begs the question: Where is the California Department of Insurance when you need them?

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Will the nation see healthcare reform by the end of summer? Although President Obama is confident he has a workable plan in place, most industry observers believe this latest attempt won’t fare any better than past attempts. “Obama Takes His Health Care Case to the Public,” New York Times.

The stalemate surrounds two issues. The first is the insurance industry’s refusal to consider the creation of a public insurance plan that would compete with the private sector. The industry has agreed to a compromise, which would mean more regulation of insurance premiums and insurer conduct. But we tend to think the industry will continue to fight any government intervention in how it does business.

The other issue involves eliminating the tax break on employer-provided plans. The compromise here might be a limited, less disruptive tax break, which Los Angeles Times columnist Ronald Brownstein says may be the trade off Americans are willing to make if it means slowing down the rise in healthcare costs. “In effect,” writes Brownstein, “limiting the tax exclusion would mean that those with coverage would be purchasing insurance for their insurance.” “Will Americans Buy a Healthcare Trade-Off?”

And then there’s Sen. Edward Kennedy’s bill that includes a long-term care provision that would make long-term care government-provided insurance available for $65 a month. The insurance would provide for modestly priced in-home care, not the more expensive nursing home care, and policyholders would have to pay into the system for five years before receiving benefits. “Senator Edward Kennedy Releases Health Care Bill; Includes Long-Term Care Provision.”
The likelihood of Kennedy’s bill making its way through Congress is negligible, since affordable long-term care insurance will be vigorously opposed the an industry that reaps considerable profits from sales of much more expensive policies. And that’s really the bottom line about why insurers will never support any substantial healthcare reform but will continue to oppose any meaningful legislation.

Insurers are in the business of making money, not providing healthcare. That’s why many companies delay and deny benefits or won’t even insure people who are ill. And they are doing so with little regulation and no competition. Why should they support change? The federal government wants to ensure that everyone in America has access to healthcare by creating affordable policies, while keeping down medical costs. Those two interests are counter to one another, and as long as the insurance industry has a dominate seat at the healthcare reform table, little will be accomplished.

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In U.S.A Today this week, elder-care author Howard Gleckman illuminates one of the most important but least discussed issues in the national debate about health care reform: What are we doing to help the elderly and disabled who don’t need acute hospital care but rather personal assistance in their homes. See, “What About Long-Term Care,” May 26, 2009,

Gleckman says Congress is ignoring its chance to change the way our country delivers long-term care ("LTC"), now mostly through Medicare that pays for nursing home treatment which costs thousands more a year than in-home care. Nursing home care could amount to as much as $75,000 a year; a home health aide is paid $20 an hour.

“Congress and President Obama could create a system of universal long-term care insurance, built on a combination of public and private coverage,” writes Gleckman. “They could end the reliance of millions on the welfare-like Medicaid system while reducing the tremendous pressure that program is putting on both state and federal budgets. And, they could further shift the focus of long-term assistance to community care instead of nursing facilities.”

But, concludes Gleckman, long-term care reform is unlikely to happen even though Sen. Edward Kennedy and Rep. Frank Pallone have proposed government-provided LTC insurance that could cost as little as $100 a month.

So where does that leave us? If you are among the seven million Americans who can afford private LTC coverage, you are in good shape to preserve your assets and savings as you age or become disabled. For the rest, this is another wake-up call. Any health reform the federal government is likely to approve won’t be much help for the elderly and disabled. Medicare won’t pay for home health aid, and Medicaid only covers some costs after the patient is impoverished.

Why isn’t the federal government creating a more comprehensive plan? Most likely because it is not getting much help from the most important stakeholder when it comes to the economics of health care, the insurance industry. That industry doesn’t want to take care of the sick, the elderly and the disabled. Rather, insurers are in the business of making money for shareholders. By issuing policies to healthy people then trying to find ways to deny coverage when they get ill, profits can be enhanced. And because they have been getting away with these practices for years means they have no incentive to devise a revolutionary public-private partnership that would provide affordable health care to Americans from the cradle to the grave.

Gleckman calls it a tragedy. What do you think?

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Los Angeles Times business columnist David Lazarus is about as skeptical as we are about the insurance industry’s pronouncement that it is ready to work with the Obama administration to overhaul the nation’s healthcare system. “Insurers Return to the Table Again,” (May 17, 2009). Lazarus asks the question, “Does anybody trust them?” He couldn’t find anyone who said “yes.”

Lazarus compares this round of the industry’s enthusiasm to “serve the national best interests” to the 1970s when the Carter administration attempted to craft a national healthcare policy. “Nothing came of it,” said Alain Enthoven, who was a Carter consultant. “The whole thing was just a joke.” It happened in the 1990s during the Clinton administration. “They said they wanted to be at the table and wanted to deal,” former Clinton health official Karen Pollitz told Lazarus. “Then they all left. They saw that they could kill it.”

Insurance industry lobby America’s Health Insurance Plans’ Robert Zirkelbach told Lazarus “everything’s different this time.” But no one is buying it.

Here’s the industry’s compromise: If the government forces everyone to buy health insurance, the industry will quit denying sick people coverage and equalize premiums for men and women. And that’s if the Obama administration scuttles its plan for public insurance that would compete with the private sector.

And Lazarus’s point is this: This time, it’s not about what’s “politically feasible and financially palatable.” No, he says, this time it’s about the people who can’t afford health insurance but can’t afford not to have it. That, he concludes, is all of us.

We hope the Obama administration reaches the same conclusion and forces the insurance industry to keep their promises. But we’re still skeptical.

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The National Fibromyalgia Association, sponsor of Fibromyalgia Awareness Day, is using its 2009 campaign to focus on the far-reaching effects of the chronic pain disorder, including the financial, social and emotional repercussions. For information about May 12 events, log on to www.fmaware.org.

With so many chronic illnesses and so many organizations seeking to find cures and provide support for people suffering from them, it’s easy to lose a sense of urgency about why we draw attention to a particular syndrome. Fibromyalgia is one condition, however, that could benefit from increased awareness.

Many people, unless they have the illness or know someone who has it, have never even heard of fibromyalgia. If they have, it’s usually in the context of being labeled a “non-disease” or “all in your head.” This belief results from a number of factors.

First, fibromyalgia is difficult to diagnose. NFA research shows that it takes from three to five years to diagnose the syndrome. This could mean that many doctors don’t take the illness seriously and are not pursuing options that could lead to a speedy diagnosis. Because no lab test definitely proves a patient suffers from fibromyalgia, the doctor must rely on the patient’s description of symptoms. Doctors then diagnose by elimination.

Second, fibromyalgia is controversial. Some physicians don’t acknowledge that it is a real illness because in most cases the cause of the symptoms is an enigma. Medical science is reluctant to accept conditions for which there is no apparent cause. http://www.health.com/health/condition-article/0,,20188874,00.html.

Third, fibromyalgia affects women more often than men, and no one knows why. Add that to the fact that women have not historically been primary wage earners. Conditions that keep women from paid employment often don’t get the same level of respect as those that affect both genders equally.

Finally, insurance companies put up a fight to pay disability benefits for people unable to work because of fibromyalgia. They embrace the theory that it is not an illness and welcome medical assessment to reinforce that concept. The American Pain Foundation, in an informal study, found numerous barriers to the effective treatment of fibromyalgia, most notably the fear of losing insurance coverage once the syndrome was documented.

We support the National Fibromyalgia Association and its efforts to raise awareness of such a misunderstood syndrome.

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America’s Health Care Plan Agrees the Practice Should Be Eliminated

U.S. Senator John Kerry introduced a bill this week that would end the insurance company practice of charging women as much as 50 percent higher premiums then men, reports UPI - “Health Insurers Agree to End Gender Bias.” The move could affect as many as 5.7 million women who are not covered by employer-sponsored plans but purchase individual coverage.

“The disparity between women and men in the individual marketplace is just plain wrong, and it has to change,” said Sen. Kerry. Testifying for the industry, Karen Ignagni of America’s Health Insurance Plan agreed that the industry should eliminate the practice.

The Associated Press took a more cynical view of insurer acquiescence. “Health Insurers Offer to Lower Rates for Women,” http://www.latimes.com/features/health/la-fi-insure-women6-2009may06,0,1110808.story?track=rss/. “The industry is trying to head off creation of a government health plan,” the article reported, “that would compete with companies to enroll middle class workers and their families.” Insurers fear of a government plan would ruin their business, and the industry is doing everything it can to prevent a public system.

That means that insurers are doing an “about-face” on financial positions they have insisted for years are necessary to keep them solvent. Such positions include charging women age 19 to 55 higher premiums because they are “more likely then men to have higher healthcare costs due to childbearing, a proclivity toward certain chronic illnesses and more routine healthcare habits.” In March, the industry agreed to stop charging sick people higher rates if the federal government required all citizens to have health insurance.

Whether or not the federal government is able to pass a public healthcare agenda, healthcare reforms that benefit women and the disabled are long overdue. Insurers subject illnesses that predominately affect women, such as multiple sclerosis, fibromyalgia, chronic fatigue, lupus, anorexia nervosa and bulimia (to name a few) to a double standard: If you are a woman who might suffer from one of these diseases, you get charged more on the front end in premium costs. But if and when you are diagnosed with one of these conditions, insurers routinely deny benefits when they are needed, or worse, cancel the insurance.

To quote Sen. Kerry, that is “just plain wrong.”

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Late last month a New Jersey federal court approved a class action settlement requiring Horizon Blue Cross of New Jersey to expand benefits for its 1.5 million policyholders with eating disorders, reports the New Jersey Law Journal.

As a result, Horizon can no longer limit treatment it covers to 20 outpatient visits each year and only one month of hospitalization, and 556 patients will split a $1.2 million award. Horizon agreed that in the future it would treat eating disorders the same it would other biologically based mental illnesses.

The article points out that the settlement provides insureds substantially the same benefits they were set to receive in January when the U.S. Mental Health Parity Statute becomes effective.

Although in California, state law provides a much broader mental health parity statute, people with eating disorders often must run a procedural gauntlet to get carriers to pay for residential treatment. In a recent Kantor & Kantor case, the plaintiff paid for her own treatment while a federal judge required an appeal to the California Department of Managed Healthcare which punted the case to the California Department of Insurance, which then sent the case to an outside reviewer for independent analysis. While the review resulted in a ruling favorable to the plaintiff, the time spent obtaining it was detrimental to the patient’s recovery.

Class actions such as the New Jersey case against Horizon draw attention to the disparate treatment people with eating disorders – mainly women – receive from their health insurers. We hope California takes note and revises its procedural quagmire, which proves to be simply another stalling tactic and roadblock carriers can take advantage of to intimidate their customers.

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83-pound Sacramento-Area Woman Denied Life-Saving Treatment

Kantor & Kantor, LLP, is appealing to the California Department of Insurance on behalf of Kimberly Shepard, a young wife and mother in danger of losing her life from the debilitating effects of Anorexia Nervosa because her health insurer United HealthCare Insurance Company declined her claim for benefits to pay for residential treatment.

The appeal requests that the Department of Insurance order United Healthcare to reverse their denial of benefits. Earlier this month, the U.S. District Court for the Northern District of California denied Shepard’s temporary restraining order to enjoin United HealthCare from continuing to withhold benefits.

Shepard sought treatment in February at Monte Nido residential treatment center in Malibu, CA a preferred provider under Shepard’s health policy. Although Shepard’s condition more than met the policy’s conditions for residential treatment, United HealthCare denied her claim. As a result, Shepard exhausted her family’s financial resources to pay for treatment. By April 1, Shepard could not longer afford treatment, even though her doctors agreed she had not recovered enough to make appropriate life-sustaining decisions regarding food. Presently, Shepard’s prognosis for recovery is poor if she is not able to continue residential treatment.

“United Healthcare is obligated to pay benefits that will save Ms. Shepard’s life,” said Shepard’s lawyer Lisa Kantor. “The family is out of money. Her husband, an Elk Grove firefighter, and her 3-year-old son, are desperate to ensure that this loving wife and mother recover and return to her home. We are urging United HealthCare to do the right thing and pay for her treatment.”

Under her policy, Shepard must meet only one of the following three requirements to qualify for residential treatment at an eating disorder facility: severe impairment in psychosocial function due to a behavioral health condition; signs of a behavior health condition that clearly demonstrate a need for 24-hour supervision; or a deteriorating health condition likely to require inpatient care. Shepard’s psychiatrist Dr. Cindy Murrer and the attending physician at Monte Nido, Dr. Gary Schneider, both testified that she met all three requirements.

United HealthCare’s “peer review” report by a company doctor who never examined Shepard, conflicted with her treating physicians’ diagnosis, opined that even though Shepard weighed less than 85 pounds and was unable to care for herself, she “does not meet medical necessity criteria for admission to residential mental health treatment.” The report found that Shepard “is not showing any significant physical abnormalities,” had only “some suicidal ideation,” and “had not participated in appropriate eating disorder treatment at lower levels of care.”

“Those findings are untrue and inappropriate bases for denial of coverage,” says Kantor. “United HealthCare’s blatant disregard for its policyholder’s welfare is a flagrant breach of the terms of its policy.”

Shepard has also filed a complaint in the Northern District court against United HealthCare for damages for breach of contract and breach of the covenant of good faith and fair dealing.

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