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Not to kick a statute when it’s down, but if you think the Patient Protection and Affordable Care Act (a/k/a “Obamacare”) is having a few technical difficulties now, just wait a few years. Those who follow my blog posts know I just love predicting the future. Why? Because, while you can certainly disagree with me, you can’t definitively say I’m wrong unless you claim to be a visitor from the future.

 

So what’s the other tech problem looming in the future for Obamacare? A little-noticed part of the Act requires that health insurers establish external review of claims decisions. For example:

 

Sec. 2719. Appeals Process
A group health plan and a health insurance issuer offering group or individual health insurance coverage shall implement an effective appeals process for appeals of coverage determinations and claims, under which the plan or issuer shall, at a minimum–

 

(1) have in effect an internal claims appeal process;

 

(2) provide notice to enrollees, in a culturally and linguistically appropriate manner, of available internal and external appeals processes, and the availability of any applicable office of health insurance consumer assistance or ombudsman established under section 2793 to assist such enrollees with the appeals processes;

 

(3) allow an enrollee to review their file, to present evidence and testimony as part of the appeals process, and to receive continued coverage pending the outcome of the appeals process; and

 

(4) provide an external review process for such plans and issuers that, at a minimum, includes the consumer protections set forth in the Uniform External Review Model Act promulgated by the National Association of Insurance Commissioners and is binding on such plans.

 

The government’s www.healthcare.gov website has a section called “How do I Appeal a Healthcare Decision?” It states

Appeals

If your health insurer refuses to pay a claim or ends your coverage, you have the right to appeal the decision and have it reviewed by a third party.

You can ask that your insurance company reconsider its decision. Insurers have to tell you why they’ve denied your claim or ended your coverage. And they have to let you know how you can dispute their decisions…

Your right to appeal

There are two ways to appeal a health plan decision:

  • Internal appeal: If your claim is denied or your health insurance coverage cancelled, you have the right to an internal appeal. You may ask your insurance company to conduct a full and fair review of its decision. If the case is urgent, your insurance company must speed up this process.
  • External review: You have the right to take your appeal to an independent third party for review. This is called external review. External review means that the insurance company no longer gets the final say over whether to pay a claim.

 

Now, external, independent reviews are a good thing, especially compared with the old final option of internal review by the same insurer that turned down or only paid part of your claim in the first place. So, what’s the problem? My view is that this part of Obamacare will lead to a massive number of review requests with nowhere to be filed. Pardon my negativity, but if we couldn’t get the basic web-based signup process in place despite lots of lead time, what makes us think there we will be ready for external reviews after we add millions of new enrollees, some of whom may be surprised to find their coverage isn’t what they thought it would be?

 

Despite the recent activity, it does not seem like folks have really focused on precisely how this aspect of Obamacare will be developed. So, what’s to be done? Seems to me that these external reviews are essentially an arbitration consisting of a documentary review of the record. See, for example section 9(F)(1) of the uniform act referenced above:

 

The assigned independent review organization shall review all of the information and documents received pursuant to subsection E and any other information submitted in writing to the independent review organization by the covered person or the covered person’s authorized representative pursuant to subsection D(3).

 

My view is that this cries out for an expedited online dispute resolution system. Sound familiar? This is precisely the model Arbitration Resolution Services, Inc. provides: efficient, fast, and inexpensive impartial arbitration conducted by documentary review. What ARS adds of course are the enhancements derived from a completely cloud-based system. The argument becomes even more compelling when one considers that many claims will be relatively small.

 

At some point, I think that Congress will have to amend[1] Obamacare to give insureds the right to require “expedited online arbitration” of disputed healthcare claims with their insurers. Unlike almost every other proposal for the Act’s reform, this one should get broad bipartisan support.

 

Besides predicting the future, I’m an also a bit of an authority in the healthcare dispute resolution area. I wrote the 1998 AAA/AMA/ABA Healthcare Due Process Protocol, serving as secretary and reporter. In law school, I was an editor of the Rutgers Law Review. My article was on medical malpractice arbitration.

 


[1] See, Vukadin, Katherine, Hope or Hype? Why the Affordable Care Act’s New External Review Rules for Denied ERISA Healthcare Claims Need More Reform, 60:5 Buffalo L. Rev. 1201 (2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2230098 <visited 10/24/2013>.

[2]See Friedman, George, Medical Malpractice Arbitration: Time for a Model Act , 33 Rutgers L. Rev. 454 (1980-1981).