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Doctors in July 2003 estimated that as a result of kidney cancer, William V. Bohannon had less than six months to live. Five months later, the 38-year-old car-paint salesman and father of six was scheduled to undergo a stem cell transplant that could save his life. But a Blue Cross administrator telephoned Bohannon’s wife, Lisa Bohannon, and said the couple’s health care plan would not pay for the $250,000 procedure. The problem, according to court records, was that Blue Cross officials considered the transplant to be “experimental and investigational” and therefore not covered by the plan. When two independent reviewers disagreed, executives for the underlying insurance carrier — self-funded by the Houston County Hospital Authority, Lisa’s employer — found a simpler reason to deny the coverage: Its 2003 plan never covered kidney cancer stem cell transplants. Nonetheless, last March 29, Judge George F. Nunn Jr. of Houston County Superior Court ordered the hospital authority to pay for William’s transplant. Nunn found that the Bohannons “had totally relied” on the insurance plan, while the hospital authority never provided the necessary coverage information by which the family could plan William’s treatment. Lisa credits her pro bono lawyer, Marc T. Treadwell, for securing the decision that won the transplant — which has kept William alive and fighting the disease. The legal fight also appears far from over. The Georgia Court of Appeals on Feb. 11 upheld Nunn’s ruling 5-2. While the majority backed Nunn’s conclusion that the hospital authority can’t enforce a coverage limit if it did not tell the enrollees about it, dissenters said the plan “unambiguously” excluded kidney cancer stem cell transplants from its coverage, and that the Bohannons bore the burden of knowing what the plan covered. Citing the dissent, Jeffery L. Thompson, a lawyer for the hospital authority, says his client may ask the court to reconsider or for review by the Georgia Supreme Court. If either option fails, the hospital authority could pursue claims against Blue Cross Blue Shield of Georgia, which administered the health care plan and was singled out for criticism by the appeals court majority. Blue Cross is a third-party defendant in the suit decided by Nunn. Meanwhile, the appeals court decision has prompted serious questions about longer-term consequences. Atlanta insurance defense lawyer James F. Taylor III says if the decision stands, it “seems to open the door to abuses” in which courts extend coverage on homeowner’s or car insurance if consumers convince a judge they did not get appropriate notice of policy limits. And members of the General Assembly and state Insurance Commissioner John W. Oxendine are on notice that the court majority was “troubled” and “concerned” that people such as the Bohannons slipped through laws designed to protect patients’ medical coverage rights. THE STRESS WAS ‘UNBELIEVABLE’ Lisa Bohannon calls her legal odyssey “insane.” “The stress was just unbelievable,” adds Lisa, a former intensive care nurse for the Houston County hospital who now spends her days monitoring her husband’s care at Duke University Medical Center. According to Nunn’s decision, Blue Cross pre-certified William for testing at Duke, which determined him to be a candidate for stem cell transplant treatment. “During this entire process,” Nunn wrote, William “relied entirely on the [authority's] Insurance Plan to cover the expenses for this treatment and was never advised, in any way, that the treatment would not be covered.” When she received the call from Blue Cross saying the transplant would not be covered, Lisa says, she and William and their 16-year-old son had just signed a six-month lease on an apartment in North Carolina, where they would stay after the transplant (the son was donating his cells.) “Every penny we had was gone,” she says. Upon receiving the bad news from Blue Cross, they returned to their home in Kathleen, Ga., from where Lisa launched an appeal to her employer, the Hospital Authority of Houston County, which had hired Blue Cross to run the authority’s self-funded plan. The Bohannons won a short-lived victory when two outside reviewers told the authority that the stem cell treatment was not experimental. But then officials at the hospital authority denied coverage because they concluded their policy did not cover the treatment in the first place. Lisa started to look for a lawyer, but she was stymied when confronted with demands for retainer fees. She was referred to Treadwell, a Macon, Ga., plaintiffs lawyer who, Lisa reports, said he’d focus on getting William his transplant before dealing with retainer fees. The day before the trial, she says, Treadwell told her, “If you get independently wealthy, send some money our way,” but if not, the work was on the house. Money is still a problem, according to Lisa’s Web site, www.nodoubtcancerfund.com, in which she recently wrote about the drugs William needs that could cost $5,000 per month. “I pray the yard sale goes well this weekend,” Lisa wrote on Feb. 14. “We need as much help as we can get.” MAJORITY CALLS DELAY ‘NEEDLESS’ The hospital authority appealed Nunn’s ruling, and on Oct. 6 the two sides faced off before Presiding Judge Gary B. Andrews and Judges M. Yvette Miller and John J. Ellington. Appeals court rules declare that when a three-judge panel cannot come to a unanimous conclusion, four more judges review the case to create a seven-judge panel that will be controlled by a simple majority. That situation apparently occurred in the Bohannon case, as Ellington and Miller joined Presiding Judges Edward H. Johnson and J.D. Smith and Judge Herbert E. Phipps to form a majority upholding the lower court’s decision. Presiding Judge G. Alan Blackburn joined Andrews in dissent. Writing for the majority, Ellington noted that while the hospital authority’s contract was at issue, “we take this opportunity to condemn Blue Cross’ handling of the preauthorization request.” He criticized Blue Cross for causing “needless delay” to a man facing death within a matter of months by having a doctor panel decide whether the stem cell treatment was medically necessary or was precluded because it was experimental — all while there was a provision limiting coverage regardless of the doctors’ decision. Complicating matters was that Blue Cross, which was hired to administer the insurance for the 2003 calendar year, did not distribute information booklets to enrollees until Dec. 23, 2003 — after the Bohannons had been denied coverage for the treatment. Ellington said this delay made inapplicable a series of court decisions the hospital authority had cited to argue that the insurance enrollee bears the burden of knowing the details of coverage. The majority concluded that the hospital authority “cannot enforce a limitation of coverage absent evidence it provided this enrollee notice of the limitation.” In dissent, Andrews wrote that Lisa Bohannon was informed of the plan’s limits when the hospital announced in late 2002 that it had contracted with Blue Cross. She and other enrollees also received a letter directing anyone with questions about the plan to call the hospital’s human resources department. Because the policy “unambiguously” did not cover the stem cell treatment, Andrews argued, “the fact that [the hospital authority] or Blue Cross may have initially denied coverage for the wrong reason provides no basis for finding that [the hospital authority] was estopped to deny clearly excluded coverage.” REGULATION LOOPHOLE Andrews’ dissent did not discuss concerns brought up by the majority about how the Bohannons slipped through the cracks of laws designed to give patients more rights with their insurance companies. At issue is a difference between independent insurance companies and self-funded plans, in which an employer essentially forms a small entity of its own to manage health care and other benefits. Because the hospital authority is owned by the county and funds its own insurance plan, the authority argued, it was not governed by the Georgia Patient’s Right to Independent Review Act, which states that independent insurance reviews that favor patients must be enforced immediately. The authority had provided a letter from the state insurance commissioner stating that because its health care plan was self-funded, it did not amount to an insurance contract subject to Oxendine’s authority. In an interview, Oxendine confirmed that he does not think he can get involved with self-funded government plans, which include the state of Georgia and many large metropolitan areas of the state. (Private companies that fund their plans also are excluded from his jurisdiction because federal law controls those, he added). “It’s something that desperately needs to be changed,” says Oxendine of the loophole for self-funded insurance programs, which he estimated to cover 60 percent of Georgians. Treadwell, the Bohannons’ lawyer, disagreed with Oxendine, saying the commissioner could have exercised jurisdiction over the case. Ellington and the rest of the appeals court majority added, “[W]e are concerned about the apparent disparity between the General Assembly’s stated intention to protect patients from managed care practices which have the effect of denying or limiting appropriate care and its failure to protect enrollees in benefits plans offered by political subdivisions of the state.” Hospital Authority of Houston County v. Bohannon, No. A04A2004 (Ct. App. Ga. Feb. 11, 2005).

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