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WHAT DO YOU DO WHEN
YOUR PLAN SAYS NO
Barbara L. Crawford, Esq.
Stromberg Cleveland Crawford & Schmidt, P.C.
You injured your knee during your first ski trip of the year. You have had physical therapy for two months and your ability to bend and put weight on your knee is not yet normal. You are certain that two to three more weeks of therapy would make a difference and you have asked your PCP to authorize them. He calls your health plan and your plan says “NO - denied.” What do you do?
It may surprise you to know that you do have options, thanks in large part to Colorado Division of Insurance Regulation 4-2-17, promulgated in July 1997. This Regulation specifically addresses the investigation and appeal of claims involving utilization review. For those unfamiliar with insurance jargon, “utilization review” is the use of several types of formal techniques to monitor the use of and evaluate the clinical necessity, appropriateness, efficacy or efficiency of health care services, procedures and settings. Some of the techniques include prospective review, second opinion, admission precertification, concurrent review, case management, discharge planning and retrospective review. In the example above, your plan was asked to make a decision as to whether you should have more therapy; in doing so, it was performing utilization review, i.e., it was prospectively determining whether it would be clinically necessary for you to have more therapy.
Under Regulation 4-2-17, your health plan must abide by strict timeframes in making its decisions. For instance, in the example given above, your plan must make a decision regarding continued therapy within one working day of receiving all necessary information, such as your PCP’s progress notes, x-rays and other pertinent data. It must contact your PCP within one working day of making its decision. If, as above, your request is denied, your plan must issue a written denial of your therapy request to both you and your PCP within one additional working day. The denial letter must explain the principal reason(s) for the decision, along with instructions for initiating a reconsideration or appeal of the decision and instructions for obtaining the clinical rationale behind the decision.
Reconsideration is usually accomplished by your PCP contacting the plan and asking to talk with the consultant who made the decision. Many times, these two practitioners can resolve the matter. However, if the matter is not resolved to your satisfaction and you continue to believe that your therapy has been unjustly denied, you have the right to seek an appeal of the decision.
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There are two levels of appeal which must be offered by your plan. The first level appeal is usually performed by a physician who will consult with a practitioner in the specialty which would typically manage the type of injury or illness you have. For instance, in the example above, if your injury would typically be managed by an orthopedic surgeon, the physician would consult with that type of specialist. Neither the physician reviewer nor the specialist should have been involved with the initial decision making. Within 20 working days from your plan’s receipt of your request (or your PCP’s request) for appeal, your plan must notify both you and your PCP of the decision of the reviewers, to include the name and credentials of the reviewing physician and specialist, a statement of the issue, the clinical rationale for the decision, a reference to any documents or other evidence which formed the basis for the decision and instructions for submitting a written request for a second level appeal. If the requested service is urgently needed, this first level of appeal must be completed within 72 hours.
If you are not satisfied by the outcome of the first level of appeal, you have the right to request a second level of appeal. This appeal is conducted by a grievance review panel, the majority of whom must be health care professionals who have appropriate experience in the management of your illness or injury. None of the panel may have been involved at any level previously and none may be the employees of or financially entwined with your health plan. Your appeal must be heard by the panel within 45 working days from the date your request was received by your plan.
You may participate in the second level of review by personally presenting your case to the panel or by submitting written materials to the panel. Based upon the experiences of many who have been involved in this level of appeal, communicating face-to-face with this review panel is vitally important to the success of your appeal and is an opportunity not to be missed. You may question health plan representatives or question any panelist; and you may be represented by any person of your choice. The panel must issue a written decision within five working days after hearing the appeal.
At this time, you do not have any further avenue of appeal except to the courts or to the Division of Insurance. Considering the fact that court proceedings are an exceedingly slow and expensive option, it is usually more worthwhile to request the assistance of the Division. It will review the process used by your plan. If it finds that the process was faulty in some manner, it will require your plan to correct the problem and, in some instances, revisit its decision. The Division of Insurance can be extremely helpful in those instances in which your plan has not complied with the law.
Under current consideration in the Colorado General Assembly during this 1999 legislative session is a bill that would add a third level of appeal to the process that is now in place under Regulation 4-2-17: external review conducted by totally independent external review entities (H.B. 99-1306, Rep. Morrison). Pursuant to the bill, any entity wanting to conduct external reviews would have to be certified by the Division of Insurance. The external review entity could not, in any manner, be affiliated with your health plan, a trade association of health care plans or a professional association of health care providers. Reviews would have to be conducted by practitioners knowledgeable about the requested procedure and the management of the illness or injury you have. The cost of the external review would be borne by your plan.
Under the proposed legislation, your health plan would notify the Division of Insurance of a request for external review. The Division would, within three working days, assign the review to one of its certified external review entities. All of your pertinent medical record information and any other relevant documents would be confidentially forwarded to the external review entity. The decision of the external reviewer would be provided within 30 calendar days and include the same information as listed above (name and credentials of reviewer, rationale, evidence or documents upon which the reviewer relied). The decision would be binding on both your health plan and you.
This bill also clarifies that a decision as to whether a procedure is experimental is a utilization review decision which would be subject to Regulation 4-2-17 and the proposed legislation. It is worth noting, however, that your health plan’s denial of a service on the basis that it is not a covered benefit is not a decision that can be appealed under Regulation 4-2-17 or the proposed legislation.
It is expected by those actively monitoring legislative developments that H.B. 99-1306 will be enacted this year in substantially the form described above. The health insurance industry has worked with Representative Morrison to draft a bill that will meet the perceived needs of consumers without placing too complex an administrative burden on health plans.
With the passage of this legislation, Colorado will join those states in the forefront of the nation in protecting consumer interests as they relate to health insurance. Will all of this process assure you two more weeks of physical therapy for your injured knee? Maybe or maybe not. But it will assure that when your plan says “NO, you will have access to a full and fair review of that decision.
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