Assistive Technology Appeals & Private Health Insurance Plans Overview

1. Assistive Technology Appeals & Private Health Insurance Plans Overview Hillary Sklar Attorney Disability Rights California 213-213-8000 June 21, 2012 CFILC Webinar

2. Overview • General concepts • Coverage analysis • Applicable laws • Appeals • Resources

3. GENERAL CONCEPTS • Private health benefit plans are not required by law to cover assistive technology. • Coverage of AT is within the discretion of the private health plan and the terms of the plan policy. • AT is commonly referred to as Durable Medical Equipment.

4. General Concepts Cont’d • Private plans are characterized as an HMO or PPO. • Oversight: • HMO = California Department of Managed Care • PPO = California Department of Insurance

5. COVERAGE ANALYSIS • Is the person in need of AT covered by the insurance policy? • Is the AT covered by the policy? • Is the AT medically necessary? • If the answer is yes to all three questions, the policy should pay for the AT device subject to any policy limits, co-payments, or deductibles.

6. IS THE AT COVERED BY THE POLICY? • Review the entire health plan policy to determine whether AT is covered. • DME clause • Amendments and policy riders • Exclusions. A policy may list various types of DME or other AT that the insurer will not cover. Ex. Air conditions, prosthetic devices, hearing aids, computer-assisted communications devices, orthotics, eyeglasses, equipment characterized as experimental.

7. Funding Limits • Even if the policy appears to cover the AT item, the policy may specifically limit the funding that is available. • Capitation • Ex. $1,5000 limit on DME coverage • Co-payments • Ex. Beneficiary must pay 20% of covered DME. • Dual coverage with Medi-Cal • Ex. Medi-Cal may be required to provide the beneficiary’s co-payment.

8. DME Definition • The insurance policy will contain its own definition of DME. • Common language: • Is able to withstand use by more that one person; • Is primarily and customarily used to serve a medical purpose; • Is not useful in the absence of illness or injury. • Any part the definition can give rise to disputes over whether the AT item is covered.

9. IS THE AT “MEDICALLY NECESSARY”? • Private insurance policies will only pay for AT that is “medically necessary”. • The definition of medical necessity can differ among private insurance plans as well as Medi-Cal and Medicare. • Common language: • Is consistent with the symptoms or diagnosis and treatment of a condition, disease, ailment, or injury; • Is in accordance with standards of good medical practice; • Is not for the insured’s convenience.

10. Determining Medical Necessity • Determinations are typically made by an employee of the insurance company. • Ex. Doctor, nurse, or utilization review agent. • The process may be similar to Medi-Cal’s pre-authorization TAR (treatment authorization request) process.

11. Effective Letters of Medical Necessity • Obtain a letter of medical necessity from a medical and/or health professional (ex. Physical therapist) that is knowledgeable about the client, client’s disability and the AT device needed. • Letters are used to prescribe and certify that the AT requested will: • Prevent disease, disability and other adverse health conditions; OR • Prolong life. • The letter must demonstrate how the AT meets the plan’s definition of “medical necessity”

12. Medical Necessity Letters Cont’d • An effective letter should also include: • The author’s name, contact information, credentials, and relevant expertise with the client’s disability and/or assessing the AT needs of individuals with disabilities. • The client’s: • Diagnosis • Functional and/or psychological limitations • Anticipated duration of the condition or disability • Adverse health problems or anticipated limitations that are likely to occur (or have occurred) if the requested AT is not authorized.

13. Medical Necessity Letters Cont’d • Rationale for requesting this particular AT • Part by part (if necessary) rationale of how the medical necessity standard is met • How the AT will be used • Cost effectiveness • Other AT considered and/or tried by the client and the rationale for not requesting less expensive AT ** It should not be assumed that the insurance plan evaluator knows anything about the client’s disability and its functional impact.

14. Questions?

15. APPLICABLE LAWS • Determine which laws apply: • Is the health plan an HMO (Managed Care) or a PPO? • If HMO: • Is the client self-insured or insured through their employer (employer-purchased or self-insured)? • HMO Examples: • Individual Plans: Knox-Keene, CA Civil Code – Confidentiality of Medical Information Act, Insurance Code, and HIPAA • Employer based HMO (purchased): Knox-Keene, ERISA, Civil Code, HIPAA • Employer based HMO (self-insured): Generally not Knox-Keene, but yes ERISA, and HIPAA

16. Applicable Laws Cont’d • PPOs • Some “Blue PPO’s” (Blue Cross and Blue Shield) are regulated by the Knox-Keene Act. Enforcement: CA Dept of Managed Health Care • But, most PPO’s are regulated by the California Insurance Code. Enforcement: CA Dept of Insurance. • Resource: • The Health Consumer Alliance (www.healthconsumer.org) • “Summary of Laws Governing Health Plans & Insurers” • Includes chart of Regulatory Agencies for Insurance / Managed Care Issues

17. Knox-Keene Protections • Knox-Keene Health Care Service Plan of 1975 • Regulates managed care plans • Enforced by the CA Department of managed Health Care. • Does not apply to self-insured plans. ERISA preempts Knox-Keene. ERISA is enforced by the U.S. Department of Labor, Employee Benefits Security Administration. • California Health & Safety (H&S) Code Sections 1340-1399.818 • Accompanying regulations: 28 California Code of Regulations (CCR) • Look at both H&S and CCRs to determine applicable protections and any changes in the law.

18. Knox-Keene Cont’d • Resource: The Health Consumer Alliance (www.healthconsumer.org) • “Knox-Keene Protections: Quick Reference • Sample of topic areas: • Consumer Protections • Access to Care • Specific Services Coverage • Orthotic and prosthetic devices H&S Code Sections 1367.18, 1367.19, 1367.635. • Continuing Coverage • Grievances and Other Dispute Resolution • Utilization Review & Claims Processing

19. California Regulatory Agencies for Insurance and Managed Care Issues • HMO’s • California Department of Managed Health Care (DMHC) • HMO Help Center (24hours/ 7 days a week) • 888-466-2219; www.hmohelp.ca.gov • PPO’s • For some plans, DMHC (see above) • Most plans, California Department of Insurance (CDI) Consumer Hotline • M-F, 8am – 5pm; www.insurance.ca.gov • 800-927-4357 • Self-Insured Plans • U.S. Department of Labor, Employee Benefits Security Administration • M-F, 8am – 4:40pm • 866-444-3272; www.dol.gov/ebsa

20. Questions?

21. APPEALS • Two ways to appeal: • Insurance company’s internal process, OR • A court appeal • Resources: • Health plan Ombudsman • HMO Health Plan Help Center • State Agency Complaint Process • California Department of Managed Health Care • California Department of Insurance

22. Managed Care Plans Appeals • HMO Plan Internal Process • DMHC Independent Medical Review (IMR)

23. HMO Plan Internal Grievance • File grievance under the HMO plan’s protocol. • In writing (preferred), via phone, or on-line via the plan’s website. • 30 day review period = standard grievance. • 72 hours = expedited grievance • Plan issues a decision upholding or overturning the initial decision.

24. DMHC Independent Medical Review (IMR) • Intended to resolve medical necessity issues, reimbursement for emergency services, and experimental/investigational disputes only. • AT requested is medically necessary and covered by the HMO plan. • HMO denied, delayed, or modified the AT as: • not medically, OR • Experimental/investigational • IMR is reviewed by an analyst, clinical staff, and legal counsel. • Resource: CA Dept of Insurance: http://www.insurance.ca.gov/0100-consumers/0020-health-related/0020-imr/index.cfm

25. Advocacy Approach for Managed Health Care Appeals • Talk to Doctor and Health Plan • File a Complaint with the Health Plan (if talking does not resolve) • Call the Health Plan Help Center • www.dmhc.ca.gov; 888-466-2219; 877-688-9861 TTY) • Ask for an Independent Medical Review (IMR) • File a complaint • When Health Plan complaint does not resolve or IMR does not apply or is otherwise not available • Resource: • Health Consumer Alliance (www.healthconsumer.org)

26. PPO Appeals • Refer to health plan’s internal appeal process • Often informal. • Explain the need and justification for the device in writing, with copies of supportive documents. • Since the plan sets health benefit policies, and does not negotiate them with the beneficiary, a court will usually resolve ambiguities in favor of the beneficiary. • Enforcement: • CA Dept of Insurance (for most plans) • Investigates complaints – ex. failure to provide plan benefits • If decides in client’s favor, insurance company will be ordered to provide benefits. • CA Dept of Managed Care (for some plans)

27. Resources • Disability Rights California www.disabilityrightsca.org • Neighborhood Legal Services – National Assistive Technology Project www.nls.org • Health Consumer Alliance www.healthconsumer.org • National Health Law Program www.healthlaw.org