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Insurers’ Internal Policies Latest Legal Front in Treatment Fight (1)

April 17, 2019, 9:26 AMUpdated: April 17, 2019, 4:50 PM

Kate Weissman paid $95,000 out of pocket after UnitedHealthcare refused to cover a cancer treatment called proton beam therapy. Now cancer free, she wants her insurer to pony up, and her best weapon is a recent federal court decision over guidance documents one insurer uses to make those decisions.

Attorneys who bring class actions against insurers are closely watching the developments, which may herald a new front in the battle over insurers erroneously classifying claims as experimental or not medically warranted and denying coverage on those grounds.

Insurers make those decisions using internal guidance documents that patient advocates argue can be overly narrow, denying patients coverage they have a right to under their health plans. In a first of its kind decision, a federal judge in the U.S. District Court for the Northern District of California recently ruled that internal United Behavioral Health guidance documents for mental health claims were overly narrow and violated federal employee benefits law.

“I think this is going to provide a critical standard,” Brian Hufford, a Zuckerman Spaeder LLP attorney who led the California case, said. “This shows you the way to go after these guidelines, and it shows you how a court can evaluate and define what is generally accepted.”

The win buoys similar lawsuits seeking coverage of treatment prescribed by doctors. Weissman’s case in Massachusetts federal court could be the next test of that California decision.

“The problem is insurance companies don’t look to the people treating you” to determine medical necessity, said Lisa Kantor, a founding partner with Kantor & Kantor LLP who represents Weissman and others challenging UnitedHealthcare’s internal claims process for proton beam therapy. “Instead, they turn inward.”

‘Adversary Relationship’

Stringent internal guidelines are driven in part by an insurance company’s bottom line, Kantor said.

Although medical necessity is supposed to reflect the standard of care in the community, insurance companies don’t look to the people treating a patent to determine that, she said.

“There shouldn’t be an adversary relationship between your insurance company and you, but that’s what they set up,” Kantor said.

However, denials can also occur because something is simply out of network, Cathryn Donaldson, spokeswoman for America’s Health Insurance Plans, said. Other times they’re requests for more information from the provider or a recommendation of an alternative form of treatment, she said.

“A denial usually occurs because the clinician may not have provided the documentation needed to show that the treatment is necessary,” Donaldson said in an email. “Once that documentation is received, claims may then be approved.”

Not Appealing

But patients don’t often appeal decisions made my insurers, seeing a denial as the end of the line.

“People just don’t appeal claims,” said Karen Pollitz, a senior fellow at Kaiser Family Foundation focused on health reform and private insurance. “It’s too hard, they’re sick, they don’t know how to do it, and the first thing you have to do is go back to the plan that told you ‘no’ in the first place.”

Before the Affordable Care Act, about 39 to 59 percent of patients won appeals through their insurers’ internal process for claims that were denied, according to Government Accountability Office report from 2011.

The Affordable Care Act bolstered the rights of patients to appeal decisions made by their insurer internally and externally to a third party selected by the insurer, but publicly reported marketplace data suggests appeals are extremely rare. Less than one-half of 1 percent of patents in marketplace plans appealed their denied claims, a KFF analysis found. Of those appealed, insurers overturned about 14 percent.

Missing Data

Marketplace plans, of course, may be different than group insurance plans, but that data isn’t being collected by the federal government as required by the ACA, Pollitz said. Those numbers may be able to come to light through lawsuits.

“It’s kind of all on the honor system for group health plans,” she said.

A spokeswoman for the Labor Department, which regulates employer sponsored plans, said a proposed rule for the collection of the ACA’s transparency data is currently on DOL’s regulatory agenda. That rule was proposed in July 2016.

‘Sending a Message’

Weissman’s attorneys hope her case and others will create change.

“With this lawsuit we’re sending a message loud and clear to UnitedHealthcare that their days of wrongfully denying claims are over,” Rich Collins, a lawyer with Callahan & Blaine, said. If state and federal regulators can’t mandate coverage, that leaves it up to litigators.

“We’re also telling every other health insurance company in the nation to watch closely because we’re coming after you next.”

—With assistance from Jacklyn Wille and Sara Hansard

(Updated with the Labor Department's response in the eighteenth paragraph. )

To contact the reporter on this story: Madison Alder in Washington at

To contact the editors responsible for this story: Fawn Johnson at; Andrew Childers at