In the following paragraphs, patients' rights to services from insurance companies (in California) will be discussed. The recently enacted (January, 2001) AB 88 (new state law in California), the legal definition of "medically necessary" under this law, and definitions of other legal terms are important items for families of persons with disabilities to understand. The information on California state law comes from Christopher E. Angelo, J.D. of the law firm Mazursky, Schwartz, and Angelo. Such information unique to other states may be found by contacting a local law firm that is knowledgeable regarding health insurance companies and the laws regulating them. Even if the reader of this vignette resides outside of California, knowledge of AB 88 will certainly be of benefit in alerting the reader to issues that may be encountered (and that may require resolution in court) in other states.
AB 88 states that “severe mental illnesses” must be provided with treatment ‘in an amount equal to those benefits offered “to other medical conditions.”’ Thus, in addition to what insurance companies term more “physical” (biologically-based) disabilities (e.g. brain damage caused by stroke, brain tumors, etc.), several psychological/psychiatric disorders as well as pervasive developmental disorders or autism must be covered for any “medically necessary” procedures/treatments. “Medically necessary” is defined as “…reasonable and necessary to protect life, to prevent any significant illness or significant disability or to alleviate severe pain.” Thus, if a parent/family member of a person with such a disability can provide proof from the medical community that the individual’s “severe mental illness” is in need of treatment to prevent death, increase in or worsening of the illness, or severe pain, the disabled individual has rights to appropriate treatment. This may be accomplished by examining the medical literature regarding treatment efficacy (effectiveness) of the individual’s disability. If all procedures/services needed (as recommended by the medical community) are not provided, the insured has the right to sue. Furthermore, ambiguously phrased descriptions of grant coverage to give underwriting power to deny claims “after the fact” are illegal.
This regulation covers healthcare providers
that are both "insurance companies" (i.e. the company name
includes the words "insurance company") and "corporations"
(health coverage issued by a corporation or self-insured employer). These
are separate, for-profit, legal entities, subject to regulation by different
organizations ("California Insurance Code" or "California
Corporations Code"). However, AB 88 was incorporated into the
"Health and Safety Code" and into the "Insurance
Code" to prevent healthcare plans from changing their status
to "corporation" to avoid this state mandate. AB 88 also
states that “abusive HMO practices can be stopped by court order
even if the insured signed an arbitration clause.” An arbitration
clause is an agreement stating that the insured will resolve disputes
with the healthcare provider “internally”—or, within
the company. An outside decision-making body, such as a court, is not
Mandated "medically necessary treatments"
include the following:
Mr. Angelo continues to state: "Medical necessity is a jury question." For example, AB 88 did not come into existence without the establishment of its statements as legal precedents in lawsuits. Perhaps more disabilities (e.g., disorders that are strictly speech and language impairments) will be included in this law or provided for explicitly in other legislation with time. Whenever an individual with a disability or his/her family is concerned that the individual's rights are not being considered, by a school or a healthcare provider, legal advice may be the beginning of the solution to the problem. Mr. Angelo can be contacted via the website for his firm: www.msandalaw.com.
Other informative links regarding law that provides for individuals with disabilities include the following: