Lisa S. Kantor, Esq. Kantor & Kantor (877) 783-8686 www.KantorLaw.net LKantor@KantorLaw.net

1. WORKING WITH INSURANCE COMPANIES TO OBTAIN COVERAGE FOR APPROPRIATE TREATMENT FOR EATING DISORDER CLIENTS Lisa S. Kantor, Esq. Kantor & Kantor (877) 783-8686 www.KantorLaw.net LKantor@KantorLaw.net

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3. OUR ROADMAP • Communication Fundamentals • Different Types of Health Insurance • Required Claims Procedures • Using the APA Guidelines • Getting Eating Disorder Claims Paid www.KantorLaw.net

4. Communication Fundamentals • Write down what you are going to say before any telephone call with an insurance representative • Write down everything that is said in any conversation with an insurance representative • Know the name, title, phone number and email address of everyone you talk to • Send everything in – medical records, therapy notes, notes of conversations, letters of support • Confirm everything in writing because if it isn’t in the insurance company’s file, it may as well not exist • Certified mail if possible, e-mail is ok • Have clients journal on insurance issues www.KantorLaw.net

5. 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] • A policy purchased privately, through an insurance agent. www.KantorLaw.net

6. Employer Benefits – ERISA • ERISA is a federal law that governs the insured’s rights • If a claim is denied, an appeal (or maybe two) must be timely filed before the insured can file a lawsuit • Great deference may be given to the decisions of the insurance company • No jury trials • Federal judges make decisions if you have to file suit to get benefits • The judge will review the contents of the insurance company’s file and very little else • Remedies are limited to benefits and attorneys fees www.KantorLaw.net

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

8. 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 www.KantorLaw.net

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10. INSURANCE BY ANY OTHER NAME.. What is a Plan? • Fiction created by ERISA whenever an employer offers health or welfare benefits • May be funded by a policy or by the employer • 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 www.KantorLaw.net

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

12. HOMEWORK FOR THE CLIENT • 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 • Get copies or CD of your medical records • Get letter(s) of support from treating physicians, therapists, dieticians, family, co-workers, friends • Home video • Complete a HIPPA release www.KantorLaw.net

13. Required Claims Procedures29 C.F.R. § 2560.503-1 • Procedures must be reasonable • Everything must be in writing – procedures, denials, appeal denials • Procedures must be given to the participant • Must include prior approval, preauthorization, and utilization review procedures • Cannot require more than two appeals www.KantorLaw.net

14. Required Claims Procedures29 C.F.R. § 2560.503-1 • Cannot contain any provision, or be administered in any way, that “unduly inhibits or hampers the initiation or processing of claims” • FOR EXAMPLE, “the denial of a claim for failure to obtain a prior approval under circumstances that would make obtaining such prior approval impossible or where applicable of the prior approval process could seriously jeopardize the life or health of the claimant . . .” www.KantorLaw.net

15. Required Claims Procedures29 C.F.R. § 2560.503-1 • Concurrent care claims: • Any reduction or termination of an ongoing course of treatment must be done far enough in advance to allow the patient to appeal and obtain a review before the benefit is terminated • Any request to extend an ongoing course of treatment shall be decided within 24 hours provided the request is made 24 hours prior to expiration of the approved treatment www.KantorLaw.net

16. Required Claims Procedures29 C.F.R. § 2560.503-1 • Pre-service claims: • Must respond within 15 days • May extend time once for 15 days for reasons “beyond the control of the plan” and notification is given before first 15 days expires • If plan needs additional information, patient must be given 45 days to provide www.KantorLaw.net

17. Required Claims Procedures29 C.F.R. § 2560.503-1 • Post-service claims: • Must respond within 30 days • May extend time once for 15 days for reasons “beyond the control of the plan” and notification is given before first 30 days expires • If plan needs additional information, patient must be given 45 days to provide www.KantorLaw.net

18. Required Claims Procedures29 C.F.R. § 2560.503-1 Appeals • Must provide a full and fair review • Entitled to review claim file • Must consider all comments, records, other information submitted by patient • No deference to original decision • Cannot be decided by same person who denied claim • Must consult health care professional with appropriate training and experience who was not consulted in connection with denial • Must identify professionals consulted www.KantorLaw.net

19. Required Claims Procedures29 C.F.R. § 2560.503-1 Appeals • Urgent appeals must be decided in 72 hours • The appeal decision must comply with the notice requirements of the denial decision www.KantorLaw.net

20. Required Claim Procedures What the Courts Say • “. . .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). www.KantorLaw.net

21. Required Claim Procedures What the Courts Say • 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 (9th Cir. 1997). www.KantorLaw.net

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23. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES • Sets the standard of care in the community • Used by Independent Review Panels • Require interaction with patient to assess • Relies upon knowledge and experience of treating professionals www.KantorLaw.net

24. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Medical status www.KantorLaw.net

25. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Suicidality www.KantorLaw.net

26. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Weight www.KantorLaw.net

27. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Motivation www.KantorLaw.net

28. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Co-occurring disorders www.KantorLaw.net

29. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Needed Structure www.KantorLaw.net

30. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Compulsive exercising www.KantorLaw.net

31. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Purging www.KantorLaw.net

32. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Environment www.KantorLaw.net

33. AMERICAN PSYCHIATRIC ASSOCIATION GUIDELINES Availability of program www.KantorLaw.net

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35. GETTING EATING DISORDER CLAIMS PAID • Submit pre-service request for treatment • Use the APA Guidelines to document level of care requested • Submit prior and current treatment records which support level of care requested • Getting letters of support as needed, consider patient video • Explain eating disorders – use references • Explain your program and the qualifications of the providers • Set boundaries www.KantorLaw.net

36. HOW TO CONDUCT AN INSURANCE CALL • “I am calling from Avalon Hills Treatment Center in Logan, Utah. I am calling to request thirty days of residential treatment for your insured, Jane Smith. Jane is ill, and I am sure that when you hear about her journey, you will authorize the treatment.” • Introduce yourself, state your credentials, and ask for their credentials. • 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 and/or the insurer • Emphasize the criteria that support the level of care you seek or a higher level of care www.KantorLaw.net

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

38. …AND CONFIRM THE DEAL • 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 • Certified mail if you can www.KantorLaw.net

39. …OR CONFIRM THE DENIAL • 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 • Certified mail if you can www.KantorLaw.net

40. CONFIRM IN WRITING CONFIRM IN WRITING CONFIRM IN WRITING CONFIRM IN WRITING CONFIRM IN WRITING CONFIRM IN WRITING CONFIRM IN WRITING CONFIRM IN WRITING CONFIRM IN WRITING CONFIRM IN WRITING www.KantorLaw.net

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

42. THE LAW OF 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 insurer or plan may be entitled to discretion in deciding the appeal www.KantorLaw.net

43. 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 2560.503-1(m)(8)) • The insured is entitled, upon request and free of charge, a copy of the claim file (29 C.F.R. Section 2560.503-1(h)(2)(iii)) www.KantorLaw.net

44. 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 • 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. 2343 (2008)) www.KantorLaw.net

45. 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. • 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 • determining a material fact without supporting evidence • failing to follow plan procedures • failing to provide a full and fair review of the denial • 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 www.KantorLaw.net

46. WRITING THE APPEAL LETTER • This letter is submitted in support of Jennifer’s appeal of the denial of continued residential treatment beyond March 8, 2009. 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 inpatient treatment, you will approve Jennifer’s request to continue that treatment. • Summarize the prior letters and documents • Point out the inconsistencies • Point out the irregularities • Point out the omissions • Enclose any new documents • Consider articles on eating disorders, or specific grounds to denial • Conclude with specific requests www.KantorLaw.net

47. WHAT TO DO IF THE APPEAL IS DENIED. . . • Second Level Appeal • Department of Insurance • Department of Management Healthcare • Litigation • Press www.KantorLaw.net

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49. WORKING WITH INSURANCE COMPANIES TO OBTAIN COVERAGE FOR APPROPRIATE TREATMENT FOR EATING DISORDER CLIENTS Lisa S. Kantor, Esq. Kantor & Kantor (877) 783-8686 www.KantorLaw.net LKantor@KantorLaw.net