September 17, 2014

Cancer survivors need lawyers to advocate for them on a variety of legal issues

With more than 1.5 million new cases of cancer diagnosed each year in the U.S., the need for lawyers who can effectively advocate for cancer survivors is ever growing, according to experts participating in an American Bar Association webinar.

“Cancer rights law is a rather interesting discipline in that it incorporates so many areas of the law that can arise as issues for someone whose just been diagnosed with cancer,” said Joanna Fawzy Morales, a cancer rights attorney and CEO of Triage Cancer.

While people diagnosed with cancer face a variety of issues with their health insurance, finances and employment, many don’t think of these as legal problems that require a lawyer, she said.

According to a LIVESTRONG survey, although 98 percent of cancer survivors experienced practical issues relating to their finances, workplace or health insurance, only 20 percent got help with those issues.

“Because the health and legal issues can be so intertwined, there’s a great deal of opportunity for attorneys to advocate on behalf of individuals diagnosed with cancer and their families and to help them navigate through a plethora of systems and procedures,” Morales said.

Another study in the American Journal of Medicine found that more than 62 percent of all bankruptcies in the United States are based on medical debt and that 78 percent of those individuals had health insurance. Morales said these statistics show that the system isn’t working.

“There are many possible contributing factors to this, including high rates of individuals who are uninsured, inadequate health insurance coverage, a serious lack of understanding of how our health care and health insurance system works and how to navigate within those systems, and a built-in tendency to take no for an answer,” she said. “So many people don’t choose to appeal their decision because they don’t understand their rights and what options are available to them.”

Linda Wilkins, an attorney with Wilkins Finston Law Group LLP and a member of the Susan G. Komen Foundation Board, said lawyer advocates should first ascertain whether their client has current health insurance and, if so, what kind of coverage. To determine what the client’s plan covers and what the client’s rights are, Wilkins said, lawyers must obtain copies of the plan document and summary description, which employers are required to provide upon request.

Employer plans are generally guided by the Employee Retirement Income Security Act, or ERISA, which provides a significant set of rights for participants in plans but also establishes a thorough system for claims and disputes to be resolved.

“If you are going to be an advocate for your client in obtaining coverage for them, you need to follow the ERISA requirements in the plan in order to be sure that you do not lose their ability to contest a denial of coverage or to seek recovery in federal court if necessary,” Wilkins said.

Morales said lawyers can help cancer survivors understand their employment rights by looking to federal leave laws such as the Family and Medical Leave Act, federal fair employment laws such as the Americans with Disabilities Act, state fair employment laws and employment contracts. Lawyers should also examine employer policies and benefits, including health insurance, disability, life insurance, sick/vacation time, telecommuting and medical leave.

If the client does not have health insurance, Wilkins and Morales both suggested looking into the Affordable Care Act’s health care exchanges. They also noted that the ACA contains several provisions that specifically affect the cancer community.

“For example, allowing people to purchase health insurance coverage regardless of any pre-existing medical condition, and not charging them more because of that medical provision, is a huge change in the law because so much of the past focus has been on helping people jump through the legal hoops to keep access to their insurance so that they can continue to get medical care,” Morales said. “So now we can shift our focus as advocates to helping people use their insurance and get the care that they need.”

Wilkins pointed out some pre-diagnosis benefits that plans are now required to provide under the ACA:

  • Well woman visits
  • Colorectal cancer screenings
  • Mammograms
  • Clinical breast exams
  • Genetic testing for BRCA breast cancer gene
  • Screening for cervical cancer

She also recommended additional resources for information on being a legal advocate for cancer patients, including the ABA Breast Cancer Legal Advocacy Guide and the ABA Health Law Section’s Breast Cancer Task Force.

This webinar, “Legal Issues Cancer Patients Face and How to Be an Advocate,” was moderated by Dr. Otis Brawley, chief medical and scientific officer at the American Cancer Society, and sponsored by the ABA Health Law Section and the ABA Commission on Disability Rights.