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Roy Alan Cohen, The Tort Trial and Insurance Practice (TIPS) Section 2018-2019 Chair, appointed Jennifer Danish to serve as a Immediate Past Chair of the Health and Disability Insurance Law General Committee for 2018-2019 on April 25, 2018. Jennifer has served as the Chair of the Committee 2017-2018 and has accepted the appointment.

Mr. Cohen also appointed Jennifer to serve as a Member of the Solo and Small Firm Task Force, the Diversity and Inclusion Standing Committee, and the Plaintiffs Practice Standing Committee for 2018-2019 on April 26, 2018. These leadership appointments are a clear recognition of her competence and experience, commitment to TIPS, and reputation among nearly 18,000 TIPS members.

Jennifer is honored to serve in both capacities for the American Bar Association’s TIPS Section in the coming year.

By: David A. Bryant

Two recent federal district court cases highlight the importance of properly pleading (or not pleading) assignment of rights in an out-of-network provider’s state law complaint for payer reimbursement.

In the Southern District of New York, plaintiff/provider filed suit in state court against Aetna, bringing various state law claims based upon the insurer’s alleged failure to pay usual and customary charges for two medically necessary surgeries performed by the out-of-network provider. Aetna removed the matter to federal district court, asserting federal question jurisdiction via the position that the provider’s claims were preempted by ERISA. While ERISA claims can only be brought by a plan participant or beneficiary, Aetna contended that because the provider received an assignment of rights from the patient in the case at hand, the provider had achieved standing under ERISA. The district court disagreed, noting while assignments can create standing under ERISA, Aetna’s own insurance policy with the patient barred assignment of the patient’s rights to a medical provider. Therefore, the patient’s assignment to the provider was ineffective, and the provider never gained standing under ERISA. Aetna offered to waive the anti-assignment provision to keep the case in federal court, but the district court dismissed this offer as an attempt to circumvent the court’s lake of subject matter jurisdiction. The district court remanded, sending the matter brought solely under state law back to state court. See, Goldberg v. Aetna, 2018 WL 1226052 (S.D.N.Y. 2018).

In an unpublished opinion from the District of New Jersey, an out-of-network provider brought a state cause of action against insurance administrator Amerihealth, alleging state law claims based upon the defendant’s alleged failure to pay usual and customary charges for pre-authorized medically necessary services to the patient. In this case, the provider had obtained an assignment of rights from the patient but did not assert this assignment in its state court complaint. Defendant payer removed the case to federal district court, arguing ERISA preemption based on assignment. The district court remanded to state court, finding that the claims were not preempted by ERISA. The district court noted that while an assignment may have been obtained, the provider did not to assert rights under the assignment. Without such an assertion, there was no basis for the third-party provider to claim standing under ERISA, and no basis for the payer to establish ERISA preempted the state law causes of action. See, East Coast Advanced Plastic Surgery v. Amerihealth, 2018 WL 1226104 (D.N.J. 2018).

Insurers frequently deny health insurance claims, for a variety of reasons — some justified, and some with minimal basis in reality.  As a policyholder, it’s important that you recognize that your insurer is not your ally.  Throughout the claims process, your insurer may attempt to minimize their liabilities by consistently undermining the legitimacy and extent of your claim.  In some cases, your insurer may even unreasonably delay or otherwise interfere with the processing or payout of a health insurance claim.

The denial of your health insurance claim can put you in an unenviable position.  Substantial costs can accrue, and without the certainty of health insurance coverage, it may not be clear how you should proceed with treatment, if at all.  Fortunately, wrongful denial, delay, or interference may entitle you to sue and recover damages pursuant to Illinois law.  With the assistance of a qualified Chicago insurance attorney, you can challenge the actions taken by your insurer, whether through the claim appeals process or through litigation.

Common Justifications for Denial

There are a number of reasons that are commonly used by insurers to justify the denial of health insurance coverage with regard to your claim(s).  These include, but are not necessarily limited, to:

Medically Unnecessary

What is deemed “medically necessary” depends on the particularities of your health insurance plan, as stricter insurance plans may view certain treatments as medically unnecessary and may require that the patient stick to a narrower subset of acceptable treatments.  For example, if you are suffering from a severe degenerative knee condition and have to get surgery to install a metal plate for support, you may not realize that your insurer has a strict definition of what is medically necessary with regard to such surgeries.  Your insurer may require that the metal plate meet very specific requirements.  It is therefore good practice to consult with a health insurance attorney before undergoing major surgery to confirm whether your plan covers the treatment at-issue.

Treatment Not With an In-Network Provider

The insurer may decide to deny coverage due to the fact that the treatment provider is not in-network.  Though this may seem like an obvious and reasonable justification for denial, you may be able to counter this reasoning by demonstrating that you could not have obtained reasonable, sufficiently-specific care in a timely manner with an in-network provider.  For example, if all the in-network providers in your region had lengthy wait times, you could argue that you were forced to go out-of-network to obtain treatment.

Non-Standard Treatment

Non-standard treatments can be difficult to get coverage for, as you’ll not only have to show that the treatment is medically necessary, but also that it is the only alternative after trying various other standard treatments.

Various Exclusions

Insurers use exclusions to avoid having to payout for claims involving certain conditions, such as a long-term illness.  Exclusions vary depending on the insurance plan.  For example, many insurance plans will exclude coverage for pre-existing conditions that were not disclosed in the initial stages.

Ambiguous provisions often lead to confusion and are construed by the insurer in such a way as to justify their decision to deny a health insurance claim.  It’s important to note, however, that courts must construe ambiguous provisions in favor of the insured.  As such, challenging a denial — when an ambiguous provision lies at the core of the issue — may compel the insurer to reconsider their decision.

Contact an Experienced Chicago Insurance Attorney

If you have had your health insurance claim denied, it’s important that you consult with a qualified attorney as soon as possible, so that your case can be evaluated and pursued in a timely manner.  Here at Bryant Legal Group, P.C., our attorneys boast decades of experience representing policyholders in litigation against their insurers.  We are committed to personalized, results-oriented legal advocacy, and work closely with clients throughout the litigation process to ensure that they understand how their case is developing.

Call (312) 561-3010 to get connected to an experienced Chicago insurance attorney today.