Denials for Experimental or Investigational Medical Services

A common reason health care claims are denied is that the service is experimental or investigational. Each health insurance policy defines "experimental" differently, but basically the health insurer is saying hat the treatment is not proven to treat the medical condition the patient suffers from.

These denials can be devastating because the patient may have already exhausted other treatment choices. She may have been told by her treating doctor that this particular treatment is the best one for her particular health condition. These are also very hard denials to overturn because what treatments are "experimental" is generally decided by the health insurer without having to defer to the treating doctor's opinion.

CNN posted a recent article about individuals with serious seizure disorders who want to get ablation surgery - a minor brain surgery to treat lesions on the brain causing seizures. The alternative surgery is much more invasive and dangerous. Aetna, the health insurer for the individuals, denied the claims for ablation surgery, stating that it is experimental.

"The laser surgery is approved by the Food and Drug Administration and is widely recognized within the epilepsy community as an effective treatment alternative to open brain surgery, especially when the location of seizure activity can be pinpointed to a specific part of the brain. Dr. Jamie Van Gompel, a neurosurgeon at the Mayo Clinic, disputes Aetna's assessment. He is not involved in Cara's care nor Rittereiser's treatment, but he said Aetna's assessment is wrong."I would not call it experimental at all," said Van Gompel, who is leading a clinical trial on the surgery at Mayo as part of a larger national study. "It's definitely not an experimental procedure. There've been thousands of patients treated with it. It's FDA-approved. There's a lot of data out there to suggest it's effective for epilepsy."

Read the whole article here: "Girl has blunt message for Aetna after her brain surgery request was denied"

FAQ: When should I get an attorney involved in my disability/life insurance/pension issue?

                There are three common times when you should think about involving an attorney in your ERISA employee benefits dispute or claim: (1) when submitting an application for benefits, (2) after the denial of benefits, and (3) at the commencement of litigation. Here is why you might choose to retain an attorney at any one of these times.

                You might decide to hire an attorney to submit your application or claim for benefits. This is a good strategy if you have a complicated situation or issue that may affect your application. One example might be if you are applying for long-term disability benefits after being terminated from employment or quitting from your job. Another example might be if your disabling condition is complicated your application for disability benefits may require some explanation as to why you can no longer perform you job. Applications are time consuming and complicated, so sometimes people hire an attorney to handle the application because he or she does not have the time or energy to devote to making sure the insurer receives all the information necessary. As long as your benefit plan is governed by ERISA, you will be allowed a chance to appeal any decision made by the plan administrator that is adverse to you, so many claimants choose to apply for benefits on their own and then hire an attorney only if they are denied.

                The most common time individuals hire an attorney is after he or she has had a pension, life insurance, or disability benefit denied. The attorney can then submit an administrative appeal for the claimant. An administrative appeal is a written appeal to the plan administrator explaining why the decision to deny benefits was wrong, and submitting any new evidence in support of the claim. An administrative appeal is VERY important, because once it is submitted you are frequently no longer allowed to submit any new evidence to support your claim to the insurer. Generally, it is best to consult an attorney when submitting your administrative appeal, so you can be sure the evidence in the administrative record (everything submitted to the plan administrator by you, and everything the plan administrator gathers or creates on its own in regards to your claim) is as complete as possible so the insurer can make a full and fair review of your claim for benefits.

                Once you have completed all your administrative appeals, the only option to pursue your case further is usually to bring a lawsuit in federal court. At this phase, you should almost always hire an attorney to represent you in your case. ERISA cases have complex legal issues like how much deference should be given to the insurer’s decision. It is best to have good legal representation once litigation begins.

What the Heck is ERISA?

What the Heck is ERISA?

Even after completing law school, most lawyers have no idea what ERISA is other than a vague impression that it involves employee benefits and that they should consult an expert if they encounter it. If you are not a lawyer, the first time you hear “ERISA” is likely to be only if you’ve been denied some type of benefit that was provided by your employer.

            So what the heck is ERISA?

            ERISA is an acronym for the “Employee Retirement Income Security Act,” a federal law enacted in 1974 that sets minimum standards for employee benefit plans including: pension plans, long and short-term disability plans, health insurance plans, life insurance plans and other types of employee benefits. ERISA requires plans to provide participants (typically employees or their dependents) with certain information about the plans such as what benefits are provided, how to apply for them and what to do if benefits are denied. The ERISA law also sets out standards of fiduciary conduct for those people who manage and control plan assets.  The fiduciary standards are meant to assure that people who are plan fiduciaries act in the best interests of the plan participants as a group.  ERISA also gives participants certain rights to sue for benefits or to sue if the fiduciary breaches a duty to participants.

What Does an Attorney who Focuses on ERISA Do?

            As attorneys working on ERISA matters, we help people obtain benefits through their employee plans. This could mean helping a person with a disabling condition who cannot work apply for disability benefits.  It could mean helping a person appeal to the insurer if they do not get approval for medical care they need.  It might mean challenging the decision of a life insurance company if it denies the proceeds from an employer-provided life insurance policy. Practicing in the area of ERISA might mean assisting a retiree to get the correct amount of monthly pension payments after he or she retires.

Here at the Law Office of Katherine MacKinnon we really enjoy helping people get the benefits they need and are entitled to receive.