ABA Breast Cancer Legal Advocacy Initiative - Ten Steps to Protecting the Legal Rights of Breast Cancer Patients

With new technology and treatments rapidly emerging, is it legal for a health insurance company to deny coverage to insured patients for certain treatments for breast cancer?

Should cost be a factor in denying coverage for "experimental" breast cancer treatments that may prolong a patient's life?

Often the difference between life and death for breast cancer patients depends on the type of treatment and services their health insurance carrier will cover. Currently, some of the most innovative treatments are denied or routinely labeled as "experimental" by many insurance companies.

Breast cancer patients are sometimes unaware of the options available to appeal decisions such as these. Others may not have the financial ability to do so. Unfortunately, women in these circumstances may seek expert advice only after it is too late, due to the timing of treatment or after they have exhausted the appeals that a knowledgeable advocate might have been able to pursue successfully.

Delaying treatment for breast cancer can seriously affect a woman's chance of survival. In combating this disease, women and their families must be proactive. They should consider the avenues available to them that may help them receive the appropriate health care treatment and services prescribed by their treating physicians. It is their legal right!

Ten Steps to Protecting the Legal Rights of Breast Cancer Patients

  1. Read your health insurance policy carefully.
    If you have health insurance coverage through a private employer, obtain a copy of your "Health Insurance Summary" and a copy of the "Master Policy" as soon as possible. Your employer is required to provide you with a summary of what is covered within your health insurance plan. This is typically provided by your personnel or human resources department at the time you sign up for the coverage. However, the summary may not include a detailed description of covered benefits. It is essential that you thoroughly review both the summary and a copy of the master policy provided by the insurance company to your employer. Under federal law, your human resources department and/or the insurer must provide you with a copy of this policy.
  2. Determine if the treatment prescribed by your physician is covered by your policy.
    Check to see if there is an "exclusion clause" and/or an "experimental/ investigational" clause in the policy. This will give you some indication of whether the treatment you are seeking is excluded from coverage by your health insurance carrier. Also, look at the definition of what treatments are considered "medically necessary." In some cases, reconstructive surgery after a mastectomy is not considered a "medical necessity" but rather "optional" cosmetic surgery. It may not be specifically covered by your health insurance policy but, if it is not, you may wish to consult with a knowledgeable lawyer or other health consumer advocate.
  3. Find out about the appeals process under your insurance policy.
    If you have been denied coverage for a treatment, make sure that you meet all the deadlines set by your insurance carrier for appeals. In the first letter that denies coverage, check to see if your insurance company has given you a deadline by which an appeal or response from you must be received. If so, make sure you respond by the deadline. All communications should be in writing and sent by certified mail, return receipt requested.

    Information about making appeals should be included in your summary and master policy. If it is a lengthy policy, the appeals clause or procedure may be hard to find. It is typically near the end of the policy. Read your denial letter carefully. If it does not include a deadline or a description of the appeals procedure, write to your insurer and request that they immediately send you this information in writing. Sometimes a deadline for an appeal may exist without your knowledge. Stay on top of this and meet every deadline (always in writing)!
  4. Consult with an expert who is knowledgeable about health insurance law.
    It is essential that you have expert advice if you have been denied coverage for treatment or services prescribed by your treating physician. If your life or health is in jeopardy, consult a knowledgeable lawyer. While it is unfortunate, the reality is that a letter from a lawyer or a consumer advocate is often taken more seriously by insurers than a letter from the insured. Such a letter can often speed up a reversal of a denial of coverage.

    If you cannot afford a private lawyer, there are pro bono attorneys who may be able to provide free advice. In addition, you can seek counsel from some consumer advocacy groups. Just make sure the people from whom you seek advice are knowledgeable about health insurance. Ask about their education and experience handling these types of issues. Be leery of any "professional" who is unlicensed. In addition, do not wait until you have exhausted all of your appeals before consulting a lawyer or consumer advocate. Often, there is little that can be done after the appeals process has been exhausted.
  5. Plead your case in person to your insurance carrier.
    A personal appeal to an insurance company's "grievance committee" is often more effective than a written appeal. Find out who sits on the committee. Ask if you can bring your physician, lawyer or advocate with you. Having a knowledgeable professional with you can only help your case. It demonstrates that you are serious about protecting your rights and may help to speed up the appeals process.
  6. Personalize your written case with your insurance company.
    If you are not allowed to appear before a grievance committee, enclose your photograph, along with photographs of your family and friends, with any correspondence or materials that you send. You should also include letters from your family, friends and clergy. Submit anything that will help to personalize your case. Remember that you are fighting for your life and/or health! Your goal is to ensure that all the people reading your case realize the personal impact and consequences of their decisions!
  7. Obtain copies of your medical records.
    Make sure that you have copies of all your medical records and any correspondence between your physician and your health insurance carrier. Make sure that your physician continues to send you any correspondence between him or her and your insurance carrier. Your physician may charge you for copies of your medical records, but you are legally entitled to receive all your records.
  8. Document everything!
    Document your telephone calls. Each time you speak with a representative of your health insurance company, keep detailed records including the date and time, the person's name, his or her title, telephone number, his or her supervisor's name and what was discussed. If the representative made any promises or assurances, be sure you have an accurate record of exactly what was said. If someone is calling on your behalf, make sure he or she also keeps detailed notes.
  9. Ask your physician to advocate for your treatment.
    Obtain an affidavit or a notarized statement from your treating physician (and specialists who have been called in for consultation and/or treatment) that specifically describes your illness and what is required to treat your illness. This statement should also include a brief medical history and your prognosis with and without treatment. Your physician(s) should include current copies of whatever medical literature is available on your illness and proposed treatment with the statement. If possible, all of this information should be sent to your insurance carrier with your first written appeal. If a knowledgeable professional is helping you, make sure that you sign a written release of your physician/patient privilege so that the professional can discuss your treatment with your physician.
  10. Be prepared to fight!
    Your health may prevent you from being the best advocate for your own treatment. Enlist the help of a friend or family member if you are not prepared mentally or physically to fight for your appeal. Don't worry about being "nice" or pleasing other people. You may have to be rude, persistent and/or demanding. A knowledgeable legal professional can help you cut through the red tape and delays that you may face during an appeal. He or she will be able to file your case in court, if that appears to be the only recourse left to you following your appeals.

For the past several years, the American Bar Association Commission on Women in the Profession and some state and local bar associations have been active in advancing public education initiatives on breast cancer research and policies. We have explored how certain issues such as managed care, federal funding of women's health research, and legal and public policies affect breast cancer patients.

We are committed to educating the legal profession, the medical community, policymakers and the public about the range of legal issues affecting women's health, and the role they can play in helping breast cancer patients. Our Breast Cancer Legal Advocacy Project is an important first step toward this goal.

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