Claims And Issues

NO, actually, THEY are TAKING YOUR HEALTHCARE COVERAGE AWAY.

Before the Affordable Care Act was passed in 2010, this country and the availability of healthcare in it looked very different from the way it looks now.  Then, health insurance coverage was almost totally unavailable without excluding pre-existing conditions, placing limits on benefits every year and over a lifetime, and setting premiums so high that most people simply could not afford to pay them and so they famously visited hospital emergency rooms instead.

    The Affordable Care Act expanded access to health insurance in a number of important ways, including:
• Inventing and shaping marketplaces for private health insurance ;
• Stretching both the extent and the financial accessibility of health insurance coverage with a new requirement that health insurance plans offered to individuals and small groups include a minimum level of “essential health benefits” including emergency care, hospitalization, maternity and newborn care, outpatient services, mental health treatment, rehabilitative services and devices, prescription drugs, preventive services, and pediatric care, and
• Barring discrimination against individuals based on their health status, eliminating exclusions for pre-existing conditions, and mandating through a "guaranteed-issue provision" that health-insurance providers "must accept every employer and individual in the State that applies for such coverage."

    Congress has considered many bills since 2010 when the ACA was first enacted, which would "repeal, defund, delay, or otherwise amend the ACA—including legislation that would have repealed the entire Act." Although many bills were introduced during that time to repeal the individual mandate and even to repeal the entire ACA, they never had the votes. The substance remains unchanged through the time of this writing in 2020.

    And now it's on to the U.S. Supreme Court once again, and let's see if they have the votes there to "repeal, defund, delay, or otherwise amend the ACA."

To be continued tomorrow on Claims and Bad Faith Law Blog.  Adapted by the author from his new Chapter 18E forthcoming in the Spring of 2020 in the book, CATASTROPHE CLAIMS:  INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters).  Please Read The Disclaimer. ©2020 Dennis J. Wall.  All Rights Reserved.

MAKING PROFITS OFF OF MEDICARE ADVANTAGE SENIORS: THE NEW HEDGE!

The current administration is all in for Medicare Advantage.  It has a great track record in their eyes.  Medicare Advantage works great for overpayments, over $40 Billion more paid for services than delivered in just four years, 2013 to 2016!

How does Medicare Advantage do it?  Medicare Advantage plans plan on "additional diagnoses to justify receiving higher payments from the government."  Reed Abelson, Insurers Milk Medicare by Padding Bills, NEW YORK TIMES, Friday the 13th of December, 2019, p. B3 (published online under the headline, Federal Watchdog Questions Billions of Dollars Paid to Private Medicare Plans; as you know, the New York Times may charge for online access).  For every condition a Medicare patient presents, Medicare Advantage has very often input at least one more condition, whether or not the patient actually had it, says the Inspector General in a written report on Medicare Advantage.

In the eyes of the head of Medicare and Medicaid, Medicare Advantage is "what works in the Medicare program"!  Id.  She and her administration like Medicare Advantage so much that, because of the Medicare Advantage track record, last year in 2018 they paid $210 Billion to Medicare Advantage out of a total Medicare budget of $711 Billion.  That's just shy of 30% of the whole taxpayer-funded pot of money!

And what a return on investment of money!  Too bad there is not nearly as much return on medical care for seniors.

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"WHAT IT'S LIKE TO BE ON MEDICARE NOW."

"What It's Like to Be on Medicare Now" describes the various Parts of Medicare as we know it, Parts A, B, D, and Medicare Advantage. This very useful and understandable summary by Abby Goodnough also clearly states which Parts have deductibles and which have caps, and what they cover. See Abby Goodnough, What It's Like to Be on Medicare Now, NEW YORK TIMES, Thursday, August 1, 2019, p. A11, published online under the headline for which the New York Times may charge access, Medicare for All? For More? Here’s How Medicare Works.

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OPPOSING REMOVAL OF MEDICINES IN FAVOR OF GENERICS.

Another agency of the current Federal Government is taking actions to dismantle consumer protections with a new Administrative State.  This time it is the Centers for Medicare and Medicaid Services (CMS), located in the Department of Health and Human Services (HHS).  They propose to substitute generic drugs for brand drugs when consumers fill their doctors' prescriptions.  Their proposal was only posted on January 24, 2019 and, in a relatively short period for Comments, the deadline for leaving a Comment including in opposition to these new-Federal Government proposals, is Tuesday, February 19, 2019.

Here are the complete Comments I left on https://www.regulations.gov on Sunday, February 17, 2019 in opposition to these particular proposals.

February 17, 2019

To:       The Centers for Medicare and Medicaid Services (CMS),

          Department of Health and Human Services (HHS).

          https://www.regulations.gov

 

Re:    Proposed Changes to ACA Benefits and Payments Parameters for 2020.

          CMS-9926-P

To CMS, HHS:

These Comments are regarding your proposed addition to Regulations in 45 CFR, new proposed §§ 147.106(e)(5) and 148.122(g)(5), and wherever else the same proposed changes discussed in these Comments may be found in your proposals.  Your proposed new regulations §§ 147.106(e)(5) and 148.122(g)(5) are published in 84 F.R. at pp. 313-314.

You advise in 84 F.R. at p. 234 that your proposed new § 147.106(e)(5), for example, would allow issuers of drug plans in all three markets -- individual, small group, and large group -- to allow changes to a formulary.  (Although you do not define the term in your proposals, I understand from general usage by CMS/HHS that "formulary" in this context means a list of prescription drugs covered by a plan, a/k/a a drug list.)

The new additions you propose to existing law would be to allow issuers of plans covering prescription drugs to remove the equivalent of brand drugs from the formulary, i.e., from the plan of prescription drugs that are covered by the issuer.  See, e.g., 84 F.R. at 234.

There are at least three obstacles to implementing these proposed new regulations as law.  The three I would like to address in these Comments are (1) that the proposed new regulations are not a reasonable approach to the availability of prescription drugs to consumers who pay for prescription drug plans, or formularies; (2) that the proposed new regulations are a windfall to the issuers of plans covering prescription drugs, at the expense of consumer choice, and (3) that the term, "generic equivalent," is new and undefined, without so much as a reference I can find to the Federal Food and Drug Administration's process of testing and approving generic drugs for use by consumers.

First, the proposed new regulations are not a reasonable approach to the availability of prescription drugs to consumers who pay for prescription drug plans, or formularies.  The goal of adding generic medical equivalents to prescription drug plans, or drug lists, could reasonably be accomplished without mentioning the removal of brand drugs from the formulary at all.

The real effect of proposed new regulations like §§ 147.106(e)(5) and 148.122(g)(5) is not to permit the addition of generic equivalent drugs to an issuer's list of covered drugs, but rather to permit the issuer to remove brand drugs from the issuer's list.

That in itself is an unreasonable change to the law and, moreover, it is not authorized by the enabling Congressional legislation in the first place.  The clear purpose of the enabling statute was to foster consumer choice, not to limit consumer options, especially when it comes to prescription drugs.

That ties in to the second objection addressed in these Comments.  The proposed new regulations, such as for example §§ 147.106(e)(5) and 148.122(g)(5), are an undeserved windfall for the makers of generic drugs, and at the expense of consumer choice.  Lists of covered drugs are of course lists contained in plans for coverage of drugs.  These plans are paid for by consumers in whole or in part including by the payment of deductibles and co-pays, and often paid for as well by a share of the premiums charged for coverage under these plans.  Consumers have paid for the right to have their physicians and medicalcare providers prescribe drugs and to fill these prescriptions with brand drugs at the option or choice of the consumer, and not by the choice either of the pharmaceutical manufacturer or the issuer.  For this reason as well, the proposed new regulations, including §§ 147.106(e)(5) and 148.122(g)(5), should not and cannot be adopted.

The third and final objection to proposed new regulations §§ 147.106(e)(5) and 148.122(g)(5) which will be addressed in these Comments is the undefined use of the phrase, "generic equivalent."  This phrase is found in the proposed new authority to be conferred upon issuers to "add a generic equivalent to a formulary[.]"  See, e.g., proposed new regulation § 147.106(e)(5), 84 F.R. at p. 314, and proposed new regulation § 148.122(g)(5), also in 84 F.R. at p. 314.

The phrase used in this new proposed regulation is not limited to "medically equivalent."  (Emphasis added.)  Nor is it limited by reference, so far as I can find, to FDA-generic-approved medicines.  Without such limitations, the proposed new authority to replace brand drugs on drug lists with "a generic equivalent" is overly broad and so it is meaningless.  It would, for example, allow issuers and generic drug manufacturers to buy their way onto drug lists to add drugs that their own proprietary  'research' and support has 'determined' to be "a generic equivalent," without limitation to generic medicines already approved by the FDA.   For this reason as well, the proposed new regulations, including §§ 147.106(e)(5) and 148.122(g)(5), provide no limiting guidelines and so are void and of no effect.  They cannot validly be promulgated.

For each and all of these reasons, whether taken separately or together, the proposed new regulations, including §§ 147.106(e)(5) and 148.122(g)(5), cannot validly be promulgated as administrative regulations and, moreover, they are void and of no effect as new law.

Sincerely,

Dennis J. Wall

Please Read The Disclaimer.  This post ©2019 Dennis J. Wall.  All Rights Reserved.

DEATH AND COVERAGE IN FLORIDA: A CONTINUING STORY.

First installment, "They Called But No-One Came:  Liability Insurance Coverage Questions":  Monday, 09.18.17.  The second of three installments focused on liability insurance coverage questions regarding the Florida power company, "IS YOUR GENERATOR WORKING?" also at http://insuranceclaimsissues.typepad.com/insurance_claims_and_issu/2017/09/is-your-generator-working-the-first-installment-they-called-but-no-one-came-liability-insurance-coverage-questions-monda.html .  In this the final installment, we will address liability insurance coverage questions concerning the Florida nursing home.

Here is the story that continues to develop behind our insurance coverage questions.  I cautioned from the beginning of the first installment that this is a developing story,  that we do not know all the facts, and that much more remains to be reported as time goes on.

Those cautions have been borne out in the past week since I posted my first article in this series.  There are now eleven people who reportedly died after Hurricane Irma struck Florida and specifically struck a Florida nursing home.   The nursing home's air conditioning went out.  It got hot.  Very hot.

Eleven people have died from the heat.

A number of people and corporations played a role in this story.  Together we addressed liability insurance coverage questions regarding the Florida governor in the first installment, and in the second installment we addressed some liability insurance coverage questions surrounding the Florida power company.  In this last installment, together we will address liability insurance coverage questions involving the Florida nursing home.  To write again what I wrote at the outset:  What follows is from the reporting so far on what happened.   The reporting is not complete even now.  There are competing stories on lots of points.  As yet, only some things have been finalized, but they are enough to see the outlines of some important liability insurance coverage questions.

The focus of this series of articles is not on whether there may be any good claims of potential liability, but on whether there are claims to potential liability insurance coverage.

1. The Florida nursing home: Questions of Liability.

The Florida nursing home seems to be a target of opportunity for placing blame on what went wrong at the nursing home that resulted in eleven people dying when the nursing home's air conditioning failed during Hurricane Irma.  Yet it should never be overlooked that there are many actors in this play.

"Somewhere in between, the misery of a nursing home teetering toward tragedy was reported to every official channel, but no attempt was made to transfer the residents to a safer place, or even to the air-conditioned hospital practically next door."  Ellen Gabler, Sheri Fink & Vivian Yee, "At Florida Nursing Home, Many Calls for Help, But None That Made a Difference" (New York Times online, posted Saturday, September 23, 2017), also available at https://www.nytimes.com/2017/09/23/us/nursing-home-deaths.html?hpw&rref=us&action=click&pgtype=Homepage&module=well-region&region=bottom-well&WT.nav=bottom-well.

After so many people died, the Florida governor insisted that his Florida Agency for Health Care Administration adopt emergency rules requiring nursing homes to have backup generators.  But that is not the way it was before Irma and before so many people died.

There were calls to require emergency backup generators at Florida nursing homes long before Hurricane Irma was a little breeze somewhere in the Atlantic Ocean.  The expense of operating a Florida nursing home caused these calls to go without any meaningful response.  To put it another way, money talked and people in power listened.

"Very few nursing homes had generators powerful enough to keep the air-conditioning running. In 2006, Florida lawmakers considered requiring nursing homes to maintain generators to ensure comfortable temperatures during disasters. But the industry raised concerns about the cost, according to The Miami Herald, and the bill died. Last week, after the Hollywood Hills deaths, Mr. Scott announced new rules requiring those generators."  Ellen Gabler, Sheri Fink & Vivian Yee, New York Times supra.

Certainly, the Florida nursing home is experiencing its share of allegations that it was either the sole cause or a contributing cause of these people's horrible deaths.  The current owners of the Florida nursing home have run a facility that received below-average ratings from Medicare even before Irma.  And they have experienced allegations related to Medicare and nursing homes before Irma, as well, including allegations of kickbacks.  See Ellen Gabler, Sheri Fink & Vivian Yee, New York Times supra (reporting that the current owners of the Florida nursing home "were among defendants who paid $15.4 million in 2006 to settle federal and state civil claims that they had paid kickbacks to doctors in exchange for patient admissions.").

No evidence of previous wrongdoing including kickbacks, even if admissible, would prove the allegations of wrongdoing now.  What evidence there is to prove the allegations now will depend in the end on what evidence is uncovered or introduced in the inevitable lawsuits that are the result of these tragic deaths.  See, e.g., "Report:  Before Deaths, Nursing Home Called Rick Scott's Emergency Number Three Times, To No Avail" (Tampa Bay Times staff, posted online on Friday, September 15, 2017), also available at http://www.tampabay.com/news/politics/stateroundup/report-nursing-home-called-rick-scotts-emergency-number-three-times-to-no/2337665.

("On Friday, a Miami law firm filed a complaint against the Hollywood facility ....); "'Red Flag' Calls Signaled Post-Irma Deaths at Nursing Home" (Associated Press copyrighted story published online in The New York Times on Saturday, September 16, 2017), also accessible at https://www.nytimes.com/aponline/2017/09/16/us/ap-us-hurricane-irma-nursing-home-deaths-.html (reporting that a family member of a surviving resident "hired an attorney after her 93-year-old mother became severely dehydrated on Wednesday.").

Our focus here remains on the liability insurance coverage questions arising from this tragedy.  In this final installment of a continuing series of articles, our particular focus here is on liability insurance coverage questions which confront the Florida nursing home.

2. Liability Insurance Coverage Questions and the Florida nursing home.

The liability insurance coverage questions surrounding the Florida nursing home in this circumstance are similar to the liability insurance coverage questions that surround the Florida power company which were previously asked here.

The questions that follow are not all the questions that can or will be raised concerning the Florida nursing home's liability insurance coverages.  Some of these questions may not apply.

"Occurrence":  Was there an accident neither expected nor intended from the standpoint of the insured, in this instance, neither expected nor intended from the standpoint of the Florida nursing home?  This is where the history of Medicare inspections and evaluations of the Florida nursing home may prove relevant.

In the context of Directors and Officers coverage if any for the operators of the Florida nursing home:  Is there any covered conduct at issue on the part of the Florida nursing home's directors and officers?  Alternatively or additionally, is any potentially "covered conduct" excluded because of the availability of liability insurance coverage, if any, under other liability insurance policies available to the directors and officers?

The number of occurrences, if any.  Was there one or were there 11 or more "occurrences," if any?  Was there one occurrence (if any) because, say, there was at least arguably one practice and procedure at the Florida nursing home which resulted in the damages that might be complained of here?  Or were there at least 11 occurrences (again, if any) because so far 11 people have died?  Or if there were any occurrences under the insurance policies at issue, were there more than 11, counting all the people who were injured but who have not died?

Time will tell, and it bears repeating:   Over time the answers to liability insurance coverage questions like these will likely be given by the Florida courts.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

PRIVATE “MEDICARE” OFTEN PRIVATIZES PROFIT, DOES NOT PAY COVERED CLAIMS.

     Private insurance companies offer health insurance plans under the name of Medicare Advantage.  The plans cover much.  Unfortunately much of what is covered is simply not paid when the companies receive a claim.

     The Centers for Medicare and Medicaid Services reported among other things that their audits again revealed that private carriers often rejected claims without even looking at the patients’ medical records.

     As for prescription drugs ultimately funded by Federal taxes under Medicare Part D, the Federal officials found that claims were “’inappropriately rejected’” 61 % of the time.

     Only one thing seems to stop the bad faith denial of covered claims by private insurance companies under contract for Medicare Advantage coverage.  That occurs when, based upon these findings, the Federal government refuses to allow the offending private insurance carriers to sign up any more patients at Federal Taxpayer expense.  See Robert Pear, “U.S. Finds Many Failures in Medicare Health Plans” p. A14, col. 5 (New York Times Nat’l ed., Monday, October 13, 2014).

      What say the Medicare Advantage companies?  Most of the time they do not contest the charges.  They just keep on privatizing.  Id.

Please Read The Disclaimer.  ©2014 by Dennis J. Wall.  All rights reserved.

Related articles

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Settling Out-of-Network Health Payments: It'll Make You Weep.

U.S. Finds Many Failures in Medicare Health Plans

Medicare Advantage Plans Marked By Shortcomings

You: How to judge Medicare plans

Health Insurance Companies Ration Health Care.

   There are those who say that the Patient Protection and Affordable Care Act, which they call "Obamacare," rations Health Care.

   This would not be a new thing.  It would only change the identity of "who" rations our Health Care.

   Before the Act takes full effect, Health Insurance Companies ration Health Care with Exclusions and Premiums, as they have always done before.  See the interview with Dr. Donald M. Berwick, outgoing Administrator of the Centers for Medicare and Medicaid, by Robert Pear, "Health Official Takes Parting Shot at 'Waste'" p. 25, col. 1 (New York Times Nat'l ed., Sunday, December 4, 2011).

   Changing the identity of "who" rations Health Care changes the calculation of rationing.  In private hands, rationing Health Care is unseen.  Each of us can judge for ourselves based on our own experience whether the effect of that method is 'good'.  In public hands, the government is required to operate with transparency, as they say.  Sometimes, perhaps always, sunlight is in fact the best disinfectant.

The author is Co-Chair of the American Bar Association's Health, Life and Disability Insurance Subcommittee.

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Health Insurance Companies Decide When You Need a CT Scan.

   If you have Health Insurance Coverage through your Employer or on your own, then Health Insurance Companies decide when you need a CT Scan.  Health Insurance Policies limit the amount of payment or coverage or both.  As anyone who has submitted a Health Insurance Claim or preapproval request has learned, Health Insurance Companies will decide whether you need a CT Scan, or not.

   Physicians complain about Medicare's payment rates.  However, Medicare apparently pays for the CT Scans the physicians order.  See Walt Bogdanich and Jo Craven McGinty, "Medicare Claims Showing Overuse For CT Scanning" p. A1, col. 6 (New York Times Nat'l ed., Saturday, June 18, 2011)(using evidence available from Medicare Claims records to document apparent incidences of CT Scan "Double Images in 2008").

   We are not expected to notice the "product placement" of anti-Medicare stories, I suppose.  Who could possibly benefit from collecting Health Insurance Premiums for less coverage than Medicare provides -- and for a much greater overhead (including bonus and salary) expense than Medicare incurs?

 The Author is Co-Chair of the Health, Life and Disability Insurance Subcommittee of the American Bar Association Insurance Coverage Litigation Committee.

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Medicare Open Enrollment Selection Time, Too: Advice Sources ....

   In a recent post, I made available to you and your clients a link for sources of advice in the selection process of open enrollment for Employer-provided Group Health Insurance Plans.  This is the time of year that open enrollment season begins for many such Plans.  Medicare recipients, too, may have choices to make in their own open enrollment season.  Here is a good source of guidance and advice concerning Medicare opportunities for choice at this time:  Walecia Konrad, "Patient Money/Now is the Time to Weigh Medicare Options"  (New York Times Online Friday, October 30, 2009; published also in print edition Saturday, October 31, 2009).

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