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HOW INSURERS’ RECENT WRONGFUL RATIONING OF HARVONI DRUG TREATMENT FOR HEPATITIS C EXPOSES A LONG HISTORY OF UNREASONABLE AND HARMFUL INSURANCE COMPANY PRACTICES

Written by Tim Rozelle, Esq.

In July, August, October and December 2015, Kantor & Kantor filed class action lawsuits against Anthem Blue Cross Life and Health Insurance Company (and 26 other Anthem, Inc.-affiliated health plans nationwide), UnitedHealthcare Insurance Company (and 31 other United-affiliated health plans nationwide) and HealthNet respectively regarding the insurers’ categorical denials of Harvoni drug treatment for Hepatitis C. In denying treatment, the insurers told their insureds that their liver must reach a certain level of scarring (F3 or F4 on an F0-F4 scale) before treatment becomes necessary and would be approved.  In these respective lawsuits, our clients allege that the named insurers violated the Employee Retirement Income Security Act (ERISA) (or allege that the insureds breached insurance contracts) by using internal coverage guidelines (ICGs) to overrule providers’ determinations of appropriate medical treatment. Our clients claimed that the insurers forced them to live with a serious health problem and related issues until their livers became sufficiently deteriorated to approve treatment.

In a previous blog, we discussed the steps you need to take if you have a long term disability claim through a policy provided by your employer, before you hire an attorney. This blog will piggy back on that one, focusing on why the appeal itself is so important and more, why the quality of the evidence you submit during that appeal will make or break your claim.

Under the federal regulations governing ERISA claims, and the cases that have interpreted those regulations, your appeal is the only opportunity you will have to get evidence of your disability into your claim file. (There are a few exceptions to this general rule but for purposes of most cases, the appeal is it).

While you do have a right to litigate your claim once you have exhausted your administrative remedies under the plan, you do not have the right to testify, call witnesses or present new evidence to the judge. All the judge will see, if your claim goes that far, is the evidence that was submitted during your administrative appeal. Thus, the type and quality of the evidence you submit during your appeal is crucial to a successful claim.

In July 2011, Plaintiff Lana Robertson was diagnosed with diffuse systemic sclerosis, a rare autoimmune disease that causes the skin and other connective tissues in the body to tighten and harden. Without treatment, the disease can attack tissues in internal organs and is fatal once it infiltrates the tissues of the lungs or heart. Robertson’s treating physician, Dr. Richard Burt, Chief of the Division of Immunotherapy at Northwestern University Feinberg School of Medicine in Chicago, recommended as”medically necessary” a hemapoietic stem cell transplant (“the Procedure”).

Robertson, a plan participant under an employer-sponsored health benefits plan established by Defendant Stallion Oilfield Holdings, Inc. (“Stallion”) (Plan Administrator) and claims administered by Blue Cross and Blue Shield of Texas (“BCBS Texas”) (Claims Administrator), sought pre-approval from BCBS Texas for treatment with the FDA-approved Procedure’s protocol on November 8, 2013. BCBS denied the claim on the grounds that the Procedure was “experimental, investigational, and unproven.” The initial denial specifically stated that: “Per the data in peer-reviewed medical literature, autologous stem cell transplant is not effective, reliable, and safe for auto-immune diseases, including systemic sclerosis.”

Robertson appealed the decision twice and was denied twice (December 2013 and February 2014) by different independent review organizations (IROs). Each IRO denied Robertson’s claim on essentially the same grounds, namely that “[t]he proposed transplant for the treatment of systemic sclerosis is part of a phase 3 randomized clinical trial and is therefore considered investigational.” The IRO reviews did no more than simply endorse the position of BCBS Texas.

By law, when an insurance company denies all or part of your Long Term Disability (“LTD”) or Life insurance claim and gives you the right to appeal their decision, you also have a right to request and receive, free of charge, a copy of all documents the insurance company produced or considered in the evaluation of your claim. This group of documents is commonly referred to as the “Claim File.” This includes all the correspondence, internal notes and memos, medical records, reports by outside vendors (surveillance reports and videos, reports from doctors they had you see or sent your records to for a peer review, vocational reviewers, etc.), and copies of your Plan and/or Policy.

Seems simple enough, and certainly that is the type of stuff you’d want to know before appealing their decision. So why then, do so many people appeal without requesting and reviewing their Claim File?

The main reason people fail to request their Claim File when their insurance claim is denied is because they don’t know that they can, even though insurers are required to notify you of this right within the denial letter. This is because insurers (not-so) cleverly try to hide your right to receive this information by burying it within the denial letter, or by phrasing it in a very inconspicuous manner. This is assuming they even mention it at all, as we have seen numerous denial letters that make no mention of your right to this information. Some examples:

When 90-year-old Arlene Hull purchased long-term care insurance in 1997, she expected the insurance would pay benefits if she needed residential care. What she didn’t expect was to be denied benefits after she was diagnosed with Alzheimer’s disease and had already been receiving assisted living care for two years. According to the Billings Gazette, Ability Insurance Company refused to continue paying for Hull’s care, saying the facility’s medical staff and an independent consultant concluded that Hull did not need “continual supervision due to a severe cognitive impairment” and that her doctor said she was “moderately” not “severely” impaired.

Hull sued, and the insurer’s own medical examiner determined that Hull qualified for benefits. Ability resumed paying for Hull’s care, but refused to reimburse her for the intervening period during which it had denied benefits.

Ability’s conduct didn’t win approval with a Montana jury, which awarded Hull $250,000 for breach of contract; $2 million for violation of Montana’s Unfair Trade Practices law; and $32 million in punitive damages, about the largest jury award in the state’s history. Hull won’t receive that much, since the state caps punitive awards at $10 million. Still, the size of the award sends a message to insurers who treat people with Alzheimer’s unfairly. See, “Jury awards elderly Billings woman $34 million in long-term care dispute.”

Eating disorders are the deadliest of all mental illnesses, affecting 24 million Americans. They lead to numerous severe and chronic health problems, and without treatment, up to 20% of people with serious eating disorders will die. The challenge lies in family, friends, and physicians to recognize this secretive disorder, and catch it before the illness has set its roots.

If doctors were appropriately trained and more perceptive to the subtle symptoms of disordered eating, they would be better equipped to intervene early. Early intervention leads to a more successful treatment outcome, alleviates critical health issues, decreases the significant financial and emotional burdens of treatment on families, and has the potential to save lives.

The Times Union, in Albany, New York, reported on a vitally important bill sponsored by Sen. Shirley Huntley and Assemblyman Peter Rivera. This bill would mandate New York Physicians to receive training on the early recognition of eating disorders by requiring physicians and physician’s assistants, who have not received education on eating disorders, to take a one- hour free online course. This is quite a simple undertaking for physicians and such a small piece of their time, for something that may protect many lives.

Body image author Melinda Hutchins comments about a recent study that reported more than half a million teenagers suffer from an eating disorder, most commonly binge eating, a condition described as compulsive eating without the purging associated with bulimia. See “Eating Disorders: the Recovery Process is Key.”

Hutchins cites sobering statistics from the Eating Disorders Coalition for Research, Policy and Action: 20 percent of people with eating disorders will eventual die from the disease. For people suffering from anorexia, one-third will recover after an initial episode, one-third will experience a relapse, and one-third will suffer from chronic deterioration and multiple re-hospitalizations.

“Recovery is never a linear process; it involves making errors and is more a case of two steps forward, one step back,” treatment facility manager Lydia Jade Turner told Hutchins.

The new federal health care legislation helps American consumers generally by equalizing our rights and responsibilities. By requiring insurance coverage for all, it will spread risk and provide a safety net for consumers.

States like Massachusetts and New York, known for their outstanding medical care, and driven by broader social concerns of non-profit advancement of health care and protecting those suffering from wide-spread illnesses like cancer and AIDS (as well as the reality of high costs of medical care), have been trailblazers in taking closer steps toward universal health insurance coverage for their citizens, including those with pre-existing conditions. By doing so, they’ve begun to address the problem of the “death spiral,” where costs of insurance get so high that healthier people opt out of insurance, leaving a smaller pool of sick, more desperate people who must keep their insurance, but are forced to pay ever-increasing, often prohibitive premiums. The healthier people don’t want to pay high premiums to subsidize the sicker people, so they drop their coverage. The insurance companies in turn lose premium revenue from these healthier consumers, and hike up the premiums to those left in the customer pool. See “New York Offers Costly Lessons on Insurance,” http://www.nytimes.com/2010/04/18/nyregion/18insure.html?src=mv.

Recognizing the successes in Massachusetts and New York, the Federal government’s new health law widens the consumer pool and requires everyone to get insurance coverage. If people refuse, they’ll be fined. Though we won’t see this penalty phased in until 2014-16, the threat of a fine (ranging from $695 for an individual to over $2000 for a family), will nudge people into obtaining insurance coverage. The more people who purchase health insurance, the more diverse the pool of insureds, making for a broader, generally healthier pool, with shared risk, lower incidences of sickness, and lower overall costs (per head).

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