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It used to be that you didn’t need a lawyer to get health care. An attorney’s function was to seek redress for patients who fell victim to medical malpractice. But with the advent and expansion of managed care, with its various mechanisms for rationing health services, such as restrictive drug formularies, prior authorization requirements and limited provider networks, an expanded and vital role for the attorney has emerged. The consumer often needs to fight to get the care that the doctor has prescribed. The consumer has contractual and statutory rights that neither he nor his physician know about, and he cannot easily assert these rights. It takes an aggressive advocate to make the system work. At the Pennsylvania Health Law Project, our staff of nine attorneys and four paralegals spend much of its time fighting with managed care organizations to get what the doctor has ordered for the million low-income Pennsylvanians in Medicaid managed care plans, the 137,000 children with Children’s Health Insurance Program coverage and the 42,000 adults insured by the state’s adultBasic program. We have won approval of life-saving oncologic treatment, which was denied by an HMO as experimental. Our clients have been authorized for hospitalization at out-of-network centers of excellence when we demonstrated the medical necessity. Clients who would otherwise face institutionalization now live in the community because of assistive technologies and therapies that our attorneys have obtained for them. Low-income parents have been able to return to the workforce, or even just go to a PTA meeting, after we succeeded in winning home nursing services for their severely disabled children. And hundreds of patients have gotten the off-formulary medications that their doctors prescribed after we demonstrated their medical necessity. In Pennsylvania, the rules governing consumer rights under managed care are not difficult. But it is important for lawyers to have a working knowledge of the regulatory protections, because when cases come through the door, they generally require quick action. It takes the cooperation of a prescribing physician to win a managed care appeal. It also helps to have a lawyer. “Medical necessity” is a generally misunderstood concept. Health insurers won’t pay for anything that is not medically necessary. But most doctors and some lawyers don’t realize that medical necessity is a contract term. It can be defined very differently from one health insurance contract to another. Theoretically, a service could be medically necessary under one contract if a prescribing doctor merely said that it was, and under another contract only if the patient would die in a week without the prescribed intervention. Getting hold of the health plan’s definition of medical necessity and reviewing it with the prescribing physician is the critical first step to reversing a managed care denial. By law, anyone at a health plan can review and approve a request for service. However, it takes a physician — or an approved, licensed psychologist in the case of behavioral health services — to deny a claim. Pennsylvania law provides for written notice and a tri-tiered administrative review process (“grievance process”) when a managed care plan denies a service on medical necessity grounds. The rules governing these administrative appeals are set out at 28 PA Code Chapter 9. To start the process, the patient — or the health care provider, with the patient’s permission — must file a grievance in writing, unless disability or language barrier necessitates an oral request. The health plan generally conducts an internal “paper” review at the first level and convenes a hearing at the second level if the patient is not satisfied with the first level decision. The attorney’s role at both levels is to submit evidence that addresses the contractual definition of medical necessity. If the patient wins at either internal level, the decision is binding on the health plan. At each level, the health plan must involve a physician (or approved, licensed psychologist) of the same or similar specialty as that which would typically manage or consult on the health care service in question. We find that health plans frequently ignore this rule and many other regulatory protections afforded by Pennsylvania law unless the patient has an attorney. The third level of appeal, external to the health plan, consists of a paper review, based generally on the record at the second level. After that, either side can appeal to a court of competent jurisdiction. Whether exhaustion of administrative appeals must occur prior to a court filing is an open question. The grievance process can take months. Meanwhile, the patient goes without treatment, unless he can afford to pay for it. However, Pennsylvania law conveys a seldom-utilized right to expedited review. Upon written certification from an enrollee’s physician that the enrollee’s life, health or ability to regain maximum functional capacity would be placed in jeopardy by the delay occasioned by the normal review process, a health plan must provide an expedited (48-hour) review. State law grants a number of other rights to managed care patients. None of these rights are self-executing. For example, health plans must cover services provided by a nonparticipating provider when the plan has no available in-network provider. Those that cover prescription drugs and utilize a restrictive formulary must maintain an exception process for when the formulary drug is ineffective. And each plan must have a system to grant “standing referrals” to patients whose chronic conditions warrant them. The Pennsylvania Health Law Project maintains lots of information relative to managed care under the state’s Medicaid program, (termed the Pennsylvania Medical Assistance Program) on its Web site: www.PHLP.org. We have a page devoted to helping doctors better advocate for their Medical Assistance patients. Attorney are encouraged to utilize the Web site on behalf of their Medical Assistance clients, but should be aware that federal law and state contracts establish rights that are different from some of those described in this article. Those who wonder whether their clients might qualify for Medical Assistance or another state-funded health care program are encouraged to try the “quickscreen” eligibility checkup, also on our Web page.

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