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When Palm Beach, Fla., veterinarian Michelle Cunio got a letter from her HMO saying it wouldn’t pay for her expensive diagnostic test, she called and asked for a more detailed explanation. She never got one. Blue Cross/Blue Shield’s HealthOptions plan had denied coverage in December 1999 on the grounds that the medical problem in question was a “pre-existing” condition. Facing nearly $4,000 in medical bills and the prospect of being pursued by a collection agency, Cunio called her brother, David Durkee. Durkee, an associate with Angones Hunter McClure Lynch & Williams in Miami, had experience battling health maintenance organizations. Two years ago, he pressured a Boynton Beach man’s HMO to pay for a liver/pancreas transplant after the HMO had denied coverage on the grounds that the procedure was “experimental.” Convinced that HealthOptions’ handling of Cunio’s case was standard practice in the HMO industry, Durkee filed a lawsuit on Cunio’s behalf in Miami-Dade Circuit Court last September against HealthOptions, seeking class action status. It alleges that the HMO breached its contract with her and violated the state Health Maintenance Organization Act by providing “a vague and ambiguous” explanation of benefits in denying her claim. The suit asks that HealthOptions be required to comply with the law. It seeks damages for any losses incurred as a result of the alleged violation. Rather than providing patients with explanations for denials that are specific to their cases, HMOs “hit a button and a little pre-fabricated response comes out,” Durkee says. “The automated and brief response that is sent to thousands of subscribers fails completely to state how a certain contract provision relates to the facts or applicable law,” he wrote in court documents. Florida Statute 641 states that a health plan must “promptly provide a reasonable explanation in writing to the subscriber of the basis in the health maintenance contract in relation to the facts or applicable law for denial of a claim.” Without specifics, HMO subscribers don’t know whether they have enough ammunition to continue to fight for payment, Durkee contends. And if the subscriber sues and loses, Florida law requires that he or she pay the HMO’s legal fees and costs. “That has an incredible chilling effect,” he notes. In its motion to dismiss, HealthOptions argued that the statute does not impose any duty on the part of HMOs, which receive “thousands of claims on a daily basis,” to create a personally tailored explanation of denial. The plan added that a detailed explanation would simply tell Cunio what she knew about her medical history. HMOs generally argue that requiring them to provide specific coverage explanations would drive up administrative costs and premiums. “We are not asking them to recreate the wheel,” Durkee replies. To deny a claim, they must have conducted an investigation and uncovered certain facts which they believe support the coverage denial, and the subscriber is entitled to these ostensible facts, he says. In Cunio’s case, she underwent an MRI after complaining of facial twitching. Because of her age, her neurologist wanted to rule out multiple sclerosis, a condition that generally strikes women in their late 20s and early 30s. “None of my doctors thought it was pre-existing,” she says, adding that the MRI ruled out multiple sclerosis. HealthOptions also argued in its motion to dismiss that Cunio, as a private party, did not have a cause of action under the statute to enforce its terms. “Had the Legislature intended to allow a private cause of action for the breach of any provisions found within the [act], it would have done so explicitly,” wrote W. Edward McIntyre, a partner at Fort Lauderdale’s Bunnell Woulfe Kirschbaum Kellner & McIntyre, who represents HealthOptions. In December, Miami-Dade Circuit Judge Philip Bloom denied HealthOptions’ motion to dismiss, ruling that state law requires “a prompt and reasonable explanation for denial of claims” and that the HMO’s brief explanation did not appear to meet that requirement. While Bloom did not rule on the merits of Cunio’s allegations, he found that they stated a viable cause of action under Florida law. On Tuesday, Blue Cross/Blue Shield of Florida filed a motion for summary judgment based on a technicality. It claims that Cunio is insured by Blue Cross/Blue Shield of Florida Inc., not HealthOptions — a Blues subsidiary — and therefore the HMO is improperly named as the defendant. That may require Durkee to amend his pleadings. HMOs allow subscribers to file grievances over claims denials, but patients are at a disadvantage in appealing if they aren’t told the specific grounds for the denial, explains Lawrence Bache, a Pembroke Pines solo attorney who specializes in HMO cases. Bache is vice president of the Florida Patient Bill of Rights coalition, a group which advocates for patients in managed care plans. “It’s like chasing windmills,” Bache says. “People get tired of trying to fight their HMO, so they just give up.” Not Cunio. Last month, HealthOptions sent her a letter saying it had reviewed her claim and decided to pay not only her medical bill, but also the accrued interest. While that may mean Cunio will have to be dropped as the named plaintiff, Durkee doesn’t plan to give up the fight. He says he has other potential plaintiffs. “Even if the court finds that Ms. Cunio is not the appropriate person to bring this case, this is not going to go away,” he warns. “Someone is going to try to enforce this provision.”

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