Lisa S. Kantor, Esq. Kantor & Kantor (877) WORKING WITH INSURANCE COMPANIES TO OBTAIN COVERAGE FOR APPROPRIATE TREATMENT FOR EATING DISORDER CLIENTS

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OUR ROADMAP Communication Fundamentals Communication Fundamentals The Intake The Intake Preauthorization Preauthorization Concurrent Review Concurrent Review Doc to Doc Review Doc to Doc Review The Appeal The Appeal

Communication Fundamentals Write down what you are going to say before any telephone call Write down what you are going to say before any telephone call Write down everything that is said in the conversation Write down everything that is said in the conversation Know the name, title, phone number and address of everyone you talk to Know the name, title, phone number and address of everyone you talk to Send everything in – medical records, notes, letters of support Send everything in – medical records, notes, letters of support Confirm everything in writing Confirm everything in writing Certified mail if possible Certified mail if possible Have clients journal on insurance issues Have clients journal on insurance issues 4www.KantorLaw.net

THE INTAKE Confirming coverage 5www.KantorLaw.net

Health Insurance Two different types: Benefits obtained through an Employer (even if you pay some or all of the premium) – covered by the Employee Retirement Income Security Act (ERISA) [Note: Does not apply to government or “church” employees] Benefits obtained through an Employer (even if you pay some or all of the premium) – covered by the Employee Retirement Income Security Act (ERISA) [Note: Does not apply to government or “church” employees] A policy purchased privately, through an insurance agent. A policy purchased privately, through an insurance agent.

Employer Benefits – ERISA ERISA is a federal law that governs the insured’s rights ERISA is a federal law that governs the insured’s rights If a claim is denied, an appeal must be timely filed before the insured can file a lawsuit If a claim is denied, an appeal must be timely filed before the insured can file a lawsuit Insurers may be given great leeway Insurers may be given great leeway No jury trials No jury trials Federal judges make decisions if you have to file suit to get your benefits Federal judges make decisions if you have to file suit to get your benefits The judge will review the contents of the claim file and very little else The judge will review the contents of the claim file and very little else Remedies are limited to benefits and attorneys fees Remedies are limited to benefits and attorneys fees

Individual Insurance Typically no appeals required before a lawsuit can be filed Typically no appeals required before a lawsuit can be filed Juries (not lifetime appointee judges) make the decision on your case Juries (not lifetime appointee judges) make the decision on your case Evidence outside of the file may be considered by the jury Evidence outside of the file may be considered by the jury Remedies may include benefits, emotional distress, attorneys fees and punitive damages Remedies may include benefits, emotional distress, attorneys fees and punitive damages

Important Differences Between ERISA and Individual Coverage ERISA Plans: No individual underwriting Cheaper – and your employer may pay Remedies restricted Individual Coverage: Individually medically underwritten More expensive and you pay all the premium Bad faith remedies available in many states

How did you get your coverage? through my, or my spouse’s, or my parent’s employment Who is your employer? Government, religious entity All others private purchase 10www.KantorLaw.net

THE INSURANCE CARD IS NOT ENOUGH… What kind of coverage does this person have? 11www.KantorLaw.net

INSURANCE BY ANY OTHER NAME.. What is a Plan? Fiction created by ERISA whenever an employer offers health or welfare benefits Fiction created by ERISA whenever an employer offers health or welfare benefits May be funded by a policy or by the employer May be funded by a policy or by the employer May be the same as the Policy or a different document May be the same as the Policy or a different document What is a Policy? Insurance to cover certain risks or expenses Not the same as certificate or evidence of coverage 12www.KantorLaw.net

HOMEWORK FOR THE CLIENT Send a letter to Human Resources to request a copy of the Plan document Send a letter to Human Resources to request a copy of the Plan document Send a letter to the Insurance Company to request a copy of the Policy Send a letter to the Insurance Company to request a copy of the Policy Get copies or a CD of your medical records Get copies or a CD of your medical records Get letter(s) of support from treating physicians, therapists, nutritionists, family, co-workers, friends Get letter(s) of support from treating physicians, therapists, nutritionists, family, co-workers, friends Complete a HIPPA release Complete a HIPPA release 13www.KantorLaw.net

CALL AND CONFIRM COVERAGE Confirm, don’t ask Confirm, don’t ask Write it all down Write it all down Call back until you get the answer you need Call back until you get the answer you need Mail it in Mail it in Remember the “fundamentals” Remember the “fundamentals” 14www.KantorLaw.net

Let the games begin.... PREAUTHORIZATION

WHAT TO DO BEFORE YOU CALL Gather information – patient homework Gather information – patient homework CD of medical records CD of medical records Plan and/or policy Plan and/or policy Letters of support Letters of support Write to the claims administrator Write to the claims administrator State what type of treatment the patient wants State what type of treatment the patient wants Enclose the items above Enclose the items above Enclose/reference APA Guidelines Enclose/reference APA Guidelines Ask for their guidelines Ask for their guidelines 16www.KantorLaw.net

WHAT TO KNOW BEFORE YOU CALL “...ERISA imposes higher-than-marketplace quality standards on insurers. It sets forth a special standard of care upon a plan administrator, namely, that the administrator “discharge [its] duties” in respect to discretionary claims processing “ solely in the interests of the participants and beneficiaries” of the plan,... it simultaneously underscores the particular importance of accurate claims processing by insisting that administrators “provide a ‘ full and fair review ’ of claim denials.” “...ERISA imposes higher-than-marketplace quality standards on insurers. It sets forth a special standard of care upon a plan administrator, namely, that the administrator “discharge [its] duties” in respect to discretionary claims processing “ solely in the interests of the participants and beneficiaries” of the plan,... it simultaneously underscores the particular importance of accurate claims processing by insisting that administrators “provide a ‘ full and fair review ’ of claim denials.” Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343, 2350 (2008). 17www.KantorLaw.net

The obligation to communicate... “Under federal law, an ERISA plan “shall provide to every claimant who is denied a claim for benefits written notice setting forth in a manner calculated to be understood by the claimant: (1) The specific reason or reasons for the denial; (1) The specific reason or reasons for the denial; (2) Specific reference to pertinent plan provisions on which the denial is based; (2) Specific reference to pertinent plan provisions on which the denial is based; (3) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and (3) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and (4) Appropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his or her claim for review.” 29 C.F.R. § (f). (4) Appropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his or her claim for review.” 29 C.F.R. § (f). 29 C.F.R. § (f) 29 C.F.R. § (f) 18www.KantorLaw.net

The obligation to communicate… In simple English, what this regulation calls for is a meaningful dialogue between ERISA plan administrators and their beneficiaries. If benefits are denied in whole or in part, the reason for the denial must be stated in reasonably clear language, with specific reference to the plan provisions that form the basis for the denial; if the plan administrators believe that more information is needed to make a reasoned decision, they must ask for it. There is nothing extraordinary about this; it's how civilized people communicate with each other regarding important matters.” Booton v. Lockheed Medical Benefit Plan, 110 F.3d 1461 (9 th Cir. 1997). In simple English, what this regulation calls for is a meaningful dialogue between ERISA plan administrators and their beneficiaries. If benefits are denied in whole or in part, the reason for the denial must be stated in reasonably clear language, with specific reference to the plan provisions that form the basis for the denial; if the plan administrators believe that more information is needed to make a reasoned decision, they must ask for it. There is nothing extraordinary about this; it's how civilized people communicate with each other regarding important matters.” Booton v. Lockheed Medical Benefit Plan, 110 F.3d 1461 (9 th Cir. 1997). 19www.KantorLaw.net

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PREPARE FOR THE CALL Gather the information – medical records, letters, staff analysis Gather the information – medical records, letters, staff analysis Match the information to the specific criterion listed by the APA Match the information to the specific criterion listed by the APA Write down what you are going to say Write down what you are going to say Take a deep breath and have confidence! Take a deep breath and have confidence! 21www.KantorLaw.net

HOW TO CONDUCT THE CALL “I am calling from ABC Treatment Center to obtain preauthorization/authorization for your insured, Jane Smith, to start treatment with us. I know that once you hear Jane’s story, you will agree that she requires the treatment we can offer.” “I am calling from ABC Treatment Center to obtain preauthorization/authorization for your insured, Jane Smith, to start treatment with us. I know that once you hear Jane’s story, you will agree that she requires the treatment we can offer.” Confirm that your letter was received; offer to or fax and wait for receipt Confirm that your letter was received; offer to or fax and wait for receipt Tie the discussion to the specific criteria identified by the APA Tie the discussion to the specific criteria identified by the APA Don’t start with weight or BMI Don’t start with weight or BMI Emphasize the criteria that support the level of care you seek or a higher level of care Emphasize the criteria that support the level of care you seek or a higher level of care Use prior treatment Use prior treatment 22www.KantorLaw.net

NOW CLOSE THE DEAL... What is your name? How can I contact you? How would you like us to send you information (mail or )? What address? What is your name? How can I contact you? How would you like us to send you information (mail or )? What address? Do you have any questions? Do you have any questions? NO NO Do you need any more information? Do you need any more information? NO NO Are there any policy provisions or exclusions that would affect coverage? Are there any policy provisions or exclusions that would affect coverage? NO NO Is there anything I should know about your procedures? Is there anything I should know about your procedures? NO NO Will you authorize [seven] days? Will you authorize [seven] days? YES YES 23www.KantorLaw.net

AND CONFIRM THE DEAL The same day, send a letter to the plan/insurer confirming the entire conversation The same day, send a letter to the plan/insurer confirming the entire conversation If the person you spoke with will not give you her/his name or address, send it to the address in the plan/policy If the person you spoke with will not give you her/his name or address, send it to the address in the plan/policy Certified mail if you can Certified mail if you can See sample letter See sample letter 24www.KantorLaw.net

CONCURRENT REVIEW Be prepared... 25www.KantorLaw.net

DAILY PREPARATION Daily progress notes and all other facility records, including journals, are submitted Daily progress notes and all other facility records, including journals, are submitted Match the information to the specific criterion listed by the APA Match the information to the specific criterion listed by the APA Write down what you are going to say Write down what you are going to say Do not simply copy what you said before Do not simply copy what you said before Take a deep breath and have confidence! Take a deep breath and have confidence! 26www.KantorLaw.net

HOW TO CONDUCT THE CALL “I am calling from ABC Treatment Center. As you know, you authorized seven days for your insured, Jane Smith, to start treatment with us. Jane is still quite ill, and requires continued treatment. I am asking that you authorize another seven days.” “I am calling from ABC Treatment Center. As you know, you authorized seven days for your insured, Jane Smith, to start treatment with us. Jane is still quite ill, and requires continued treatment. I am asking that you authorize another seven days.” Confirm that your information was received; offer to e- mail or fax and wait for receipt Confirm that your information was received; offer to e- mail or fax and wait for receipt Tie the discussion to the specific criteria identified by the APA Tie the discussion to the specific criteria identified by the APA Don’t start with weight or BMI Don’t start with weight or BMI Emphasize the criteria that support the level of care you seek or a higher level of care Emphasize the criteria that support the level of care you seek or a higher level of care 27www.KantorLaw.net

NOW CLOSE THE DEAL... What is your name? How can I contact you? How would you like us to send you information (mail or )? What address? What is your name? How can I contact you? How would you like us to send you information (mail or )? What address? Do you have any questions? Do you have any questions? NO NO Do you need any more information? Do you need any more information? NO NO Are there any policy provisions or exclusions that would affect coverage? Are there any policy provisions or exclusions that would affect coverage? NO NO Is there anything I should know about your procedures? Is there anything I should know about your procedures? NO NO Will you authorize [seven] additional days? Will you authorize [seven] additional days? YES YES 28www.KantorLaw.net

…AND CONFIRM THE DEAL The same day, send a letter to the plan/insurer confirming the entire conversation The same day, send a letter to the plan/insurer confirming the entire conversation If the person you spoke with will not give you her/his name or address, send it to the address in the plan/policy If the person you spoke with will not give you her/his name or address, send it to the address in the plan/policy Certified mail if you can Certified mail if you can 29www.KantorLaw.net

…OR CONFIRM THE DENIAL The same day, send a letter to the plan/insurer confirming the entire conversation The same day, send a letter to the plan/insurer confirming the entire conversation If the person you spoke with will not give you her/his name or address, send it to the address in the plan/policy If the person you spoke with will not give you her/his name or address, send it to the address in the plan/policy Certified mail if you can Certified mail if you can 30www.KantorLaw.net

DOC TO DOC REVIEW Leveling the playing field... 31www.KantorLaw.net

BEFORE THE DOC TO DOC CALL Show the doctor your letters enclosing the documents and summarizing the conversations Show the doctor your letters enclosing the documents and summarizing the conversations Highlight the issues in a single paragraph Highlight the issues in a single paragraph Have the doctor see the patient Have the doctor see the patient Discuss with the doctor before the call Discuss with the doctor before the call 32www.KantorLaw.net

HOW TO CONDUCT THE CALL Initiate and participate in the phone call with the doctors Initiate and participate in the phone call with the doctors “I am calling from ABC Treatment Center. As you know, you denied additional treatment for your insured, Jane Smith. Jane is still quite ill, and requires continued treatment. We/you requested a doctor to doctor conversation, and I am on the phone with Dr. Jones. Before s/he speaks to you, I want to confirm that you have the entire file in front of you, including the letters we submitted on [dates]. “ “I am calling from ABC Treatment Center. As you know, you denied additional treatment for your insured, Jane Smith. Jane is still quite ill, and requires continued treatment. We/you requested a doctor to doctor conversation, and I am on the phone with Dr. Jones. Before s/he speaks to you, I want to confirm that you have the entire file in front of you, including the letters we submitted on [dates]. “ If s/he does not have the file, offer to or fax and wait for receipt; if s/he does not want to wait, confirm that in writing after the call If s/he does not have the file, offer to or fax and wait for receipt; if s/he does not want to wait, confirm that in writing after the call Focus on the points of contention Focus on the points of contention Emphasize the criteria that support the level of care you seek or a higher level of care Emphasize the criteria that support the level of care you seek or a higher level of care 33www.KantorLaw.net

CONFIRM IN WRITING 34www.KantorLaw.net

THE APPEAL Now we are really having some fun … 35www.KantorLaw.net

THE LAW OF ERISA APPEALS There are two critical things to know about ERISA appeals There are two critical things to know about ERISA appeals The insured is entitled to a copy of the claim file – sometimes called the administrative record – before the appeal is decided The insured is entitled to a copy of the claim file – sometimes called the administrative record – before the appeal is decided The insurer or plan may be entitled to discretion in deciding the appeal The insurer or plan may be entitled to discretion in deciding the appeal 36www.KantorLaw.net

WHAT IS THE CLAIM FILE AND HOW DO I GET IT? The claim file consists of any document, record or other information that was relied upon in making the benefit decision, was submitted, considered or generated in the course of making the benefit decision, or is a statement of policy or guidance with respect to the plan concerning the denied treatment (29 C.F.R. Section (m)(8)) The claim file consists of any document, record or other information that was relied upon in making the benefit decision, was submitted, considered or generated in the course of making the benefit decision, or is a statement of policy or guidance with respect to the plan concerning the denied treatment (29 C.F.R. Section (m)(8)) The insured is entitled, upon request and free of charge, a copy of the claim file (29 C.F.R. Section (h)(2)(iii)) The insured is entitled, upon request and free of charge, a copy of the claim file (29 C.F.R. Section (h)(2)(iii)) 37www.KantorLaw.net

HOMEWORK FOR THE PATIENT Send a letter to the Insurance Company of Plan to appeal the denial and request a copy of the claim file Send a letter to the Insurance Company of Plan to appeal the denial and request a copy of the claim file Get letters of support from family and/or friends Get letters of support from family and/or friends 38www.KantorLaw.net

PLAN DISCRETION: THE FOX GUARDING THE HEN HOUSE Many plans/policies provide that the entity deciding whether to pay claims has the “discretionary authority” to construe and interpret the Plan and determine eligibility for benefits Many plans/policies provide that the entity deciding whether to pay claims has the “discretionary authority” to construe and interpret the Plan and determine eligibility for benefits This means that the court will give deference to the decision of the Plan or insurer – the decision DOES NOT HAVE TO BE RIGHT, IT ONLY HAS TO BE REASONABLE This means that the court will give deference to the decision of the Plan or insurer – the decision DOES NOT HAVE TO BE RIGHT, IT ONLY HAS TO BE REASONABLE BUT when the same entity is deciding whether to pay claims, and is paying approved claims, the Supreme Court says there is an “inherent” or “structural” conflict (Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct (2008)) BUT when the same entity is deciding whether to pay claims, and is paying approved claims, the Supreme Court says there is an “inherent” or “structural” conflict (Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct (2008)) 39www.KantorLaw.net

The fox guarding the hen house (continued) A "structural" conflict of interest introduces an element of skepticism into what would otherwise be deferential judicial review. A "structural" conflict of interest introduces an element of skepticism into what would otherwise be deferential judicial review. The degree of skepticism depends on the extent of the conflict. The types of evidence tending to show the influence of a conflict include: The degree of skepticism depends on the extent of the conflict. The types of evidence tending to show the influence of a conflict include: inconsistent or insufficient reasons for the denial inconsistent or insufficient reasons for the denial determining a material fact without supporting evidence determining a material fact without supporting evidence failing to follow plan procedures failing to follow plan procedures failing to provide a full and fair review of the denial failing to provide a full and fair review of the denial acting as an adversary bent on denying the claim acting as an adversary bent on denying the claim The more evidence of conflict, the less deference afforded to the administrator, and the more "skeptical" the review The more evidence of conflict, the less deference afforded to the administrator, and the more "skeptical" the review 40www.KantorLaw.net

WRITING THE APPEAL LETTER This letter is submitted in support of Jennifer’s appeal of the denial of continued residential treatment beyond March 8, We will explain the history of Jennifer’s disease and treatment. We trust that, after reading this letter, which carefully documents Jennifer’s need for continued residential treatment, you will approve Jennifer’s request to continue that treatment. This letter is submitted in support of Jennifer’s appeal of the denial of continued residential treatment beyond March 8, We will explain the history of Jennifer’s disease and treatment. We trust that, after reading this letter, which carefully documents Jennifer’s need for continued residential treatment, you will approve Jennifer’s request to continue that treatment. Summarize the prior letters and documents Summarize the prior letters and documents Point out the inconsistencies Point out the inconsistencies Point out the irregularities Point out the irregularities Point out the omissions Point out the omissions Enclose any new documents Enclose any new documents Conclude with specific requests Conclude with specific requests 41www.KantorLaw.net

YOU’VE GOT A FRIEND... Hopefully during this conference, you’ve had the opportunity to connect with other people in the industry…share ideas and everybody will benefit Hopefully during this conference, you’ve had the opportunity to connect with other people in the industry…share ideas and everybody will benefit If you find yourself in a jam which you think requires legal attention, find a lawyer who specializes in this area, or feel free to contact me. If you find yourself in a jam which you think requires legal attention, find a lawyer who specializes in this area, or feel free to contact me. 42www.KantorLaw.net

Lisa S. Kantor, Esq. Kantor & Kantor (877) IADP RESOURCES:

Lisa S. Kantor, Esq. Kantor & Kantor (877) WORKING WITH INSURANCE COMPANIES TO OBTAIN COVERAGE FOR APPROPRIATE TREATMENT FOR EATING DISORDER CLIENTS