Articles Posted in Health Insurance

Our firm is involved in litigating a proton beam cancer treatment denial case in Georgia, Ghattas v. Blue Cross Blue Shield Health Care Plan of Georgia, Inc., Case No. 1:20-CV-03157-ELR, 2020 WL 6867155 (N.D. Ga. Nov. 18, 2020). Defendants Blue Cross Blue Shield Health Care Plan of Georgia (BCBSGA) answered Plaintiff Christopher Ghattas’ Complaint alleging the wrongful denial of his life-saving proton beam radiation therapy at Emory University Proton Therapy Center for a diagnosis of brain cancer. Following Defendant’s answering of the Complaint, counsel began preparing to conduct a Rule 26(f) Conference per the Court’s Order. Prior to the setting of this conference call, counsel for BCBSGA articulated to Plaintiff’s counsel two positions: (1) that ERISA matters were exempt from the initial disclosures requirements of FRCP Rule 26 and (2) that Plaintiff—although never having received a page of the administrative record in this case nor counsel ever discussing the standard of review to be applied to this benefits denial—was not entitled to any discovery in an ERISA matter. The Court resolved these two issues as addressed in the parties’ Joint Preliminary Report to the Court.

First, the Court agreed with Plaintiff’s position that Defendant would be required to produce initial disclosures in this matter pursuant to Rule 26. Citing Golden v. Sun Life Fin., Inc., 2:08-CV-070-WKW, 2008 WL 2782736 (M.D. Ala. July 15, 2008), the Court held that “[b]ecause this [ERISA] case involves more than just the administrative  record and because the parties will be engaging in discovery, [defendant is] required to provide initial disclosures in accordance with Rule 26(a).”

Second, Plaintiff had taken the position that he was not foreclosed on any grounds from conducting targeted and limited discovery depending upon the standard of review that would apply to BCBSGA’s benefits denial. Without having produced a single page of the administrative record, BCBSGA took the position that Plaintiff was entitled to no discovery in an ERISA matter. Here, the Court agreed with Plaintiff. Citing Adams v. Hartford Life and Acc. Ins. Co., 589 F. Supp. 2d 1366 (N.D. Ga. 2008), the Court stated that it did “not agree that discovery is inappropriate here.” “In matters such as the one at hand, ‘the body of case law developed under ERISA’ requires ‘the [C]ourt, at the very least, [to] examine the facts as known to the administrator at the time the decision to deny benefits was made to determine whether the administrator’s decision was reasonable.’” Adams, 589 F. Supp. 2d at 1367. The Court held that Plaintiff was entitled to narrowly tailored discovery regarding what evidence the Plan (who claimed it was vested with discretionary authority) was aware of at the time of its decision to deny Plaintiff’s claim for proton therapy.

If you have an unpaid air ambulance claim, you may be interested in the recent decision in Lubinski v. CVS Health Welfare Benefit Plan, Case No. 20-cv-89, 2020 WL 6870822 (N.D. Ill. Nov. 24, 2020).

While on vacation in the Dominican Republic, Plaintiff Renatta Lubinski, who had a history of acute leukemia, developed multiple conditions that compromised her respiratory system and kidney function. Doctors determined Lubinski should be transported by air ambulance to receive lifesaving treatment in the United States. Because of her complicated diagnosis and medical history, Lubinski was taken to her local hospital in Illinois, where her own doctors, who cared for her regularly and were familiar with her medical condition, could treat her. Aerocare Medical Transport System Inc., a company that provides highly specialized international air ambulance transportation services for patients in critical care, flew Lubinski from the Dominican Republic to Miami, Florida, and then from Miami to Evergreen Park, Illinois.

Aerocare charged $242,500 for the first flight and $284,250 for the second flight and submitted two claims for payment to Lubinski’s employee benefit plan, CVS Health Welfare Benefit Plan (CVS Plan), which was administered by Blue Cross and Blue Shield of Illinois (BCBSIL). BCBSIL initially denied Aerocare’s claim. Aerocare appealed, and BCBS concluded that the first trip from the Dominican Republic to Miami was medically necessary and covered under the plan, but that the second trip from Miami to Evergreen Park was not. Aerocare was reimbursed $30,000 out of $242,500 and its second appeal for more money was denied. Under Lubinski’s employee benefit plan, air ambulance transportation was covered at a rate of 80% minus a deductible. Aerocare initiated this lawsuit, seeking to recover payment for both trips, pre-judgment interest, and attorney’s fees. Defendants filed a motion to dismiss arguing (1) that the anti-assignment clause in the plan document precluded Aerocare’s claim and (2) that Aerocare failed to state a claim for relief. In response to the first argument, Lubinski replaced Aerocare as the plaintiff. This left defendants’ second argument for review.

As many healthcare providers have experienced, anti-assignment provisions in ERISA health plans can be a full-stop to recovering unpaid claims. In good news, the Ninth Circuit Court of Appeals recently decided Martin Luther King, Jr. Community Hospital v. Community Insurance Company dba Anthem Blue Cross Blue Shield, et al., No. 19-55053, __F.App’x__, 2020 WL 5870513 (9th Cir. Oct. 2, 2020), which is a decided win for providers.

In this case, the Ninth Court considered a trial court’s award of damages in favor of Martin Luther King, Jr. Community Hospital (“MLK”), for services rendered to employees of Budco— the sponsor of the ERISA plan (the “Plan”). Budco’s employees made covered visits to MLK. Although the employees had assigned their benefit payments to MLK, Anthem—the Plan administrator—ignored the assignments, and made payments directly to the employees, who were beneficiaries under the Plan. The employees retained these payments. When MLK sought payment, Anthem ignored the request. Anthem, in refusing to pay MLK, asserted that an “anti-assignment” provision was part of the Plan and justified its payments directly to the employees.

To recover the assigned payments, MLK asserted two grounds in support of its claims. First, MLK asserted that the language of the anti-assignment provision did not prohibit the assignments. The district court did not rule on this contention. Second, MLK asserted that the district court should ignore the anti-assignment provision because it was not part of the Plan.

The coronavirus epidemic has obviously made all our lives more complicated. Unfortunately, this headache-inducing complexity extends to our health insurance as well. Millions of Americans do not know what kind of coverage they have for coronavirus testing, how much they should have to pay for that testing, or whether there are any hidden “gotchas” that insurers might use to deny their claims or reduce payment for testing.

Fortunately, the California Department of Insurance (CDI) recently issued a COVID-19 Testing and Coverage Frequently Asked Questions (FAQ) notice which helps answer some of these questions. (Much of the information is derived from federal law, so even if you don’t live in California, this FAQ may still help you.)

The FAQ addresses numerous issues, but the most important takeaways are:

In early March of this year Class Notices were sent to individuals who were covered under a Blue Shield of California non-ERISA health plan during the period of September 2, 2007 through December 31, 2015, and were denied authorization or reimbursement for residential treatment of anorexia nervosa or bulimia nervosa on the grounds that their plans did not provide coverage for residential treatment.

If you are a member of this class you may submit or resubmit to Blue Shield any claims you may have for reimbursement for residential treatment that you received while a Blue Shield member between September 2, 2007 and December 31, 2015 for anorexia nervosa or bulimia nervosa if Blue Shield denied authorization or reimbursement on the grounds that your plan did not provide coverage for residential treatment. Blue Shield may not rely on any residential treatment exclusion to refuse to reimburse any new or resubmitted claim by a Class member for medically necessary residential treatment of anorexia nervosa or bulimia nervosa.

If you would like to submit a new claim or resubmit a previously denied claim, you must submit the Claim Form by September 1, 2020 to the following address:

The coronavirus pandemic has altered daily life for everyone across the globe, and caused tens of millions of job losses in the United States. Because losing your job often means losing your health insurance, this can be a double whammy for affected individuals.

Congress recognized this problem in 1985 by passing the Consolidated Omnibus Budget Reconciliation Act (COBRA), a law that protects employees by letting them continue the group health insurance coverage they enjoyed while employed for up to 18 months (and sometimes longer) after their termination. (As with any law, there are exceptions. Not every employer is governed by COBRA’s rules – for example, COBRA only applies to employers who have 20 or more employees.)

However, many people don’t know that they can continue their health insurance coverage, and often employers inadequately inform their employees of their rights under COBRA, or simply don’t inform them at all. This is illegal. COBRA requires employers to provide written notice to terminated employees of their coverage options.

National Post Traumatic Stress Disorder (“PTSD”) Awareness Month is commemorated annually in June. The month is dedicated to raising awareness of PTSD and how to access treatment. June 27 is also recognized annually as PTSD Awareness Day.

According to the National Center for PTSD, between 7 and 8 percent of the population will experience Post Traumatic Stress Disorder (PTSD) during their lifetime. Men, women, and children can experience PTSD as a result of trauma in their lives. Events due to combat, accidents, disasters, and abuse are just a few of the causes of PSTD. No matter the reason, PTSD is treatable, but not everyone seeks treatment, or some people seek treatment and they are denied benefits by their health insurer.

Common symptoms of PTSD might include:

Kantor & Kantor has established a regular, live, and interactive Zoom conversation to discuss generally and answer questions from the public about long-term disability, health insurance, pensions, life insurance, casualty (homeowners), and more.  BenefitsChat will be live on Wednesday evenings from 5:00 pm – 6:30 pm Pacific Time.

Host Andrew Kantor, his fellow Kantor & Kantor attorneys, and select guests will explain and discuss everything from “big picture” concepts, such as the distinctions between different ways of obtaining insurance, to case-specific concepts designed to help individuals protect their rights.

While there is always a demand for legal information, current events have created an unparalleled need for as many real, live, helping hands as are available to be lent—even if the hand can only be safely lent via webcam. This forum will give people the chance not only to learn from our attorneys and each other; but to do so within the safety and comfort of a like-minded and supportive group of individuals and their families.

Two decisions this week emphasize the importance of submitting treating physician and patient statements in support of an ERISA administrative appeal. For ERISA health cases involving medical necessity denials, an appeal which gets to the heart of why treatment was medically necessary is crucial and can actually determine the course of the lawsuit.

In Katherine P. v. Humana Health Plan, Inc., No. 19-50276, __F.3d__, 2020 WL 2479687 (5th Cir. May 14, 2020), the Fifth Circuit revived life into a claim by a young woman seeking mental health benefits for partial hospitalization treatment. Katherine received partial hospitalization treatment in 2012 for multiple mental health disorders including an eating disorder. Humana paid for the first 12 days of partial hospitalization treatment and then denied benefits, claiming such treatment was no longer medically necessary based on two Mihalik Criteria.

The Fifth Circuit found that judgment for Humana was improper because the administrative record showed a genuine dispute as to whether Katherine satisfied one of the Mihalik Criteria, ED.PM.4.2.

On April 28, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued deadline relief and other guidance under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) to help, among other groups, disability plan participants who are impacted by the COVID-19 pandemic, also referred to as the coronavirus outbreak.

The Department of Labor, Department of the Treasury, and the Internal Revenue Service issued a joint notice explaining the extension of time frames for healthcare coverage, portability, and continuation of group health plan coverage under COBRA, and time frames to file a benefit claim or appeal of denied claims.  They also issued COVID-19 FAQs for Participants and Beneficiaries that address a number of common questions concerning health and retirement benefits.

The final rule published by EBSA and submitted to the Office of the Federal Register (OFR) for publication contains information of the extension of certain timeframes under ERISA and the Internal Revenue Code for group health plans, disability and other welfare plans, pension plans, and participants and beneficiaries of these plans during the COVID-19 National Emergency.

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