Health & Wellness
Healthcare
Using State Insurance Laws to Advance the Cause of Assistive Technology
By Steve Mendelsohn, Esq. for UCP
Advocates and users of assistive technology (AT) widely believe that
health insurance has not yet fulfilled its potential as a source of
funding for AT devices and services. This viewpoint is based upon
observations like those listed below:
The health insurance industry unduly limits coverage for AT by
defining AT as "rehabilitative" or as "convenience items" - rather than
as necessary medical treatment.
The health insurance industry evaluates AT on a case-by-case basis
often concluding that the requested AT is not "medically necessary"
in the particular instance.
Assistive Technology laws are largely unenforced. If current AT laws
were recognized more widely, and if regulatory officials enforced
these laws, assistive technology more likely would be provided by
health insurance agencies across the nation.
Efforts must be made to change. While these efforts are undertaken,
individuals should challenge Managed Care Organizations (MCO) to
ensure that existing law is fully implemented. This would increase the
number of individuals for whom AT will be made available under the
rules that currently exist.
In addition, a federal law called the Employee Retirement and
Income Security Act (ERISA) regulates employer-sponsored,
self-insured health plans. These health plans are not subject to state
laws. Therefore, activity to improve availability of AT in a particular
state would not have an impact on ERISA plans.
Below we have identified some of the areas where enforcement of
existing laws may help potential users gain access to AT and suggest
areas where important reforms may prove feasible.
What to Ask State Insurance Commissioners to Do?
In holding the state accountable for regulating managed care to the
maximum extent permitted by law, there are two basic approaches to
take.
First: Begin with familiarizing yourself with the law, deciding exactly
what the appropriate state agency should be doing, and by asking
them what action they are taking. For example:
Do they monitor Health Management Organizations?
Do they publish reports, initiate enforcement proceedings, levy fines,
and require reports on compliance or on consumer satisfaction from
licensed HMOs?
Do they review performance in connection with license
renewal?
Do they respond to public inquiries regarding their enforcement
powers and practices?
Do they respond to public inquiries regarding what safeguards
the law contains?
What do they say they do, and as far as you can find out, what do
they actually do? If they are doing less than it seems they could and
should be doing under the law, or if they turn out to be doing less
than they say they do, advocacy efforts are warranted.
Second: Evaluate your MCO according to what the law specifies
that it should be doing. Make a checklist of required documentation,
timeframes, points of access, required approvals and other relevant
matters. Decide whether the MCO is meeting its obligations in these
areas. What does the organization say it does? Do they claim to be in
compliance when they are not, or to have appeal procedures
available that do not exist? Do they abide by timeframes or do they
ignore or fail to meet them? Again, if the MCO appears deficient in
any of these areas, complaints to the regulatory agency or to both the
agency and the MCO simultaneously may be in order.
THE AT CONNECTION
If an MCO fails to meet its obligations as described above, the
procedural defects will affect persons seeking AT and others. But for
people with disabilities in general, and for people needing AT in
particular, some shortcomings of insurers are more serious then
others. These include: refusal to give reasons for denial, refusal to
give clear definitions of those services which could most readily
include AT and failure to include appropriate practitioners or
specialists in the provider network.
These areas should be very closely monitored. Refusal to give
reasons for the denial may suggest that a good reason does not exist.
Some reasons must be offered or the decision-making process
cannot be subjected to the necessary scrutiny. Once a reason is
given (e.g., the devices in question do not constitute medical
treatment, or they are not medically necessary in your particular
case), challenging it is possible. For example:
Why does a device that would restore function not constitute
medical treatment, if surgery or drugs that would similarly
restore the same function are covered?
Why is improvement of a measurable function - in terms of ADLs or
other objective measures - any less medically necessary than
treatment that would improve circulation, increase joint mobility or
reduce severe pain? Resources
The kind of research and monitoring of AT that is necessary would
be burdensome for most state governments. It is unlikely that any one
individual could do produce major change on a private or voluntary
basis. However, people and groups with common interests and
shared concerns can combine their resources to provide the grass
roots, citizen-based oversight that is needed.
Today there are many organizations engaged in the managed care
evaluation process. Even Newsweek Magazine has recently gotten
involved! While different groups have different grievances with
managed care and with particular MCOs, many share the desire to
make managed care more responsive to consumer demand and to
legal control. No one should suggest that if people with disabilities
get AT, senior citizens would have to go without prescription drugs in
order to make up the cost.
Legal resources can be helpful. Given the importance of the managed
care system to people with disabilities, your state Protection &
Advocacy system (P&A) agency should be a vital resource. The
recent involvement of the American Bar Association in the provision
of free legal assistance to children recently cut from the SSI roles
suggests a number of important possibilities for their future
involvement.
Attorneys can help as well. A call from an attorney to the proper insurance organization official can lead to a satisfactory resolution in a particular case. In today's environment of public hostility toward managed care, the last thing any HMO wants is a court battle particularly one involving a child who needs AT. Many of these organizations will resolve the matter, once persuaded that your threats of legal action and of publicity are credible.
Conclusion
Managed care and Insurance policies are subject to regulation by
state law if they are not governed by ERISA. Not all policies or
practices that could be regulated are in fact regulated. You may run
into issues that fall under the jurisdiction of state law, but about which
that law has nothing to say.
A presidential commission on the quality of health care has recently
recommended adoption of Health Care Consumers' Bill of Rights
legislation. Portions of the recommendations may become law.
Because states have passed and continue to pass social legislation, it
seems that the focus of health insurance reform will be on state
government for the next few years.
Advocates of AT should associate themselves with these efforts and
organize state-based advocacy, develop grassroots organizations
and perfect the skills that will serve them well in the ongoing debate
over federal health care and disability policy in this nation.
The opinions expressed herein do not necessarily reflect the position or the
policy of the U.S. Department of Education, and no official endorsement by
the U.S. Department of Education of the opinions expressed herein should
be inferred.
ATFSCP