Tuesday, October 14, 2008

West Virginia: Insurance Regulation AWOL

Tuesday’s Tirade
Who is Jane Cline?

West Virginia is a small state. Everyone knows one another. No one wants the other to step on toes. Politics and corruption abound. ~West Virginia Public Official

Jane Cline is the Commissioner of the West Virginia Insurance Commission, an agency that oversees the insurance industry doing business in West Virginia to insure that our health plans follow the rules and that we get what we pay for.

In 2005, I was unjustly denied medically necessary surgery by my HMO, Carelink Health Plans, Inc. of West Virginia. My surgeon, Dr. Bernard Costello, of the University of Pittsburgh Medical Center, was denied on the spot despite the urgency to his request.

In July of 2005, I appealed Carelink’s decision internally. Once again, an automatic denial without Carelink’s consulting the “experts” as state law requires.

I persisted and I then filed a formal grievance with the West Virginia Insurance Commission against Carelink on September 27, 2005. That grievance took over three and a half months to be processed, with the West Virginia Insurance Commission’s abusing the laws that mandate quick turnaround to resolve claims of an urgent nature.

What required such a lengthy time to draw a conclusion?

In 2006, I was told by Dena Wildman, Examiner of the West Virginia Insurance Commission who processed grievances, that Carelink was attempting to terminate me. They had falsely accused me of fraud and wanted to use that allegation as a means to deny me access to my insurance. And the Commission did not know what to do with me, so they put my case on hold.

They put my medically necessary surgery on a long hold. It took my contact with the Commission in early 2006 to force a decision. And that’s a story in itself.

There followed an administrative hearing before Examiner Judge Jack DeBolt in Charleston WV on August 10, 2006. What should have been a resolution has become a travesty of justice, not only to me but to the hundreds of consumers who have requested a service from their HMO in West Virginia and been denied automatically since December 14, 2006.

Judge JackDeBolt, West Virginia Insurance Examiner, wrote Final Order 06-AP-024 and described Carelink’s treatment of me as “egregious. ” Judge DeBolt mandated that all HMOs fully investigate physician requests for patient services BEFORE the HMO is permitted to deny a claim. Commissioner Jane Cline signed the order on December 14, 2006.

In part Judge DeBolt strongly rebukes Carelink as follows:

Carelink has badly botched it obligation to provide an effective grievance procedure.

One very troubling aspect of Carelink’s procedure revealed in this proceeding is its practice of not addressing all issues necessary to decide to a finality whether or not a proposed procedure is covered.

Carelink should be forewarned that it will be expected in future to acquire sufficient determination for initial determination to be bound by grounds for denial asserted. Any lessening of this requirement violates both the spirit of the EOC and the letter of 333-25A-12 of the Code.

There has been no enforcement of this order. Why? And what about that agreement made in 2007 behind closed doors between Carelink and the Commission? Is it politics and corruption as more than a few public officials have quietly told me?

Did Cline move to order a rehearing of my claims? No! To the contrary, on February 26, 2007, Jane Cline denied Carelink’s own Request for a Rehearing.

On March 27, 2007, Carelink filed an appeal to the Kanawha County Circuit Court.

Not only did Cline not enforce Final Order 06-AP-024 during this period, but, once again, the Commission overlooked procedures and failed to file the related paperwork with the Kanawha County Circuit Court. Failed to act for five long months.

Carelink finally authorized my medically necessary surgery in April of 2007, almost two years after this “urgent” surgery was requested. Unfortunately, by that time Dr. Bernard Costello advised me to postpone the surgery (See letter to West Virginia Insurance Commission).

I subsequently requested that Carelink authorize a $3000 oral appliance to address the severe sleep apnea, recommended by Pittsburgh sleep apnea specialist, Dr. Maria Sunseri. This request was denied on the spot, not by a medical specialist, but by a customer service representative! Troubling. Very troubling.

What do other state insurance commissions do with final orders? I contacted attorneys at four different state insurance commissions who told me that they do regulate the insurance industry doing business within their states. The attorneys at these four commissions were unanimous: Final orders must be enforced. In fact they appeared incredulous to learn that Jane Cline, West Virginia Insurance Commissioner, acted to counter the Final Order 06-AP-024.

Carelink continues to do business as usual in West Virginia as the West Virginia Insurance Commission continues to look the other way. Folks, we have a problem here. A big problem.

Carelink, and likely other HMOs, are playing the same games with West Virginians today, and consumers are being denied on the spot, without the HMO’s investigating each claim thoroughly to avoid duplicating the unjust consequences of my 2005 claim. More horror stories? Likely.

What do I think? I believe that Jane Cline’s lack of aggressive action regrading Final Order 06-AP-024 contributes to the present health crisis in West Virginia. Not only does it appear that she does not want to regulate, it appears that she is aware of the ruthless hold insurance companies have on her department. Is Cline sensitive to the many poor people in West Virginia who have no idea as to how to help themselves? Poor people who are unable to fight a bureaucracy that is determined to place obstacles in the way of justice? No!

What do I think? I question if Jane Cline sees the oncoming train.

This is all so distressing. It’s all so embarrassing to the state of West Virginia.
Please visit unitedforjustice.blogspot.com for full disclosure of documentation.

Tuesday’s Tale
Texas Jury Finds Humana HMO Liable in Wrongful Death Lawsuit
July 21, 2005

A local jury in San Antonio, Texas, on July 1 awarded $7.4 million in actual damages in a wrongful death lawsuit against the health maintenance organization Humana Health Plan of Texas Inc., a physician, and his physicians group under contract to provide health care services, according to the Powell Law Firm, which represented the plaintiffs in the case.

Jurors were to consider punitive damages in the second phase of the trial, but attorneys for Humana and the plaintiffs reached an out-of-court agreement that capped those damages at $1.6 million, bringing the total amount of damages to $9 million. Humana will be liable for 35 percent of the $7.4 million in actual damages and the entire $1.6 million in punitive damages after all appeals are exhausted.

The plaintiff's attorneys said that in the lawsuit, John Smelik and his two adult children accused Humana and others of negligence in the June 1, 2001, death of Joan Smelik, John's wife of 47 years. Brant Mittler, a practicing cardiologist, and a lawyer represented the Smeliks along with lead plaintiffs' attorney Jon Powell, and Renee F. McElhaney, appellate counsel for the case from Cox Smith Matthews Incorporated, the largest law firm in San Antonio.

Testifying as an expert witness for the plaintiff in this case was Dr. Linda Peeno, the internationally recognized patients' rights activist and former Humana Medical Reviewer.

Humana was represented by Wilson, Elser, Moskowitz, Edelman & Dicker, based in New York City.

The jury decision came after nearly three days of deliberation, culminating a three-week trial presided over by 224th District Judge Rene Diaz, a conservative Republican recently appointed to the bench by Texas Gov. Rick Perry. Judge Diaz most recently comes from an insurance defense background prior to being appointed to the bench.

In the statement announcing the judgment, the Powell Law Firm noted that Mrs. Joan Smelik was a complex patient who according to Humana never hit the "triggers" to qualify for case management. Humana's own computer records for Mrs. Smelik showed that Humana knew of her diseases even down to the size of each of her small kidneys, which were indicative of "chronic" kidney disease.

Ms. Smelik had a documented episode of acute renal failure attributed in part to the effects on her kidneys of a combination of three drugs, specifically a NSAID agent (non-steroidal anti-inflammatory drug), a diuretic, and an ACE inhibitor in September 2000. Then, Humana approved Vioxx, an NSAID type drug, in January 2001, and later approved the purchases of the exact same three-drug toxic cocktail of prescription drugs that had put Joan Smelik into renal failure five months earlier. Mrs. Smelik died from complications of renal failure requiring emergency dialysis in May 2001.

Ten of the 12 jurors did agree that Humana was among three of the named defendants who bore responsibility for Joan Smelik's death. The plaintiffs alleged that Joan Smelik did not receive the health care promised by Humana's own written policies and standards.

Specifically, the plaintiffs demonstrated through testimony that Mrs. Smelik was suffering from emphysema, kidney disease, and a circulatory condition that affected the kidneys and should have been closely monitored in the months before her death.

Along with Humana, the lawsuit named as defendants two doctors, Dr. Michael W. Mann and Dr. Fred C. Campbell Jr., and the Alamo City Medical Group, P.A., which was Mann's employer and the corporate health care provider under contract to Humana. Campbell cared for Mrs. Smelik under another health insurance provider.

Prior to the trial, which began June 13, all the defendants had agreed to out-of-court settlements with the Smelik family, except for Humana. The earlier settlements totaled $602,000.

Nonetheless, jurors were required by law to attribute blame for the negligence among all the defendants. Specifically, the jury found that Humana was 35 percent responsible, Mann was 50 percent responsible and Alamo City Medical Group was 15 percent responsible. Campbell was not assessed any blame by the jury.

A 2004 U.S. Supreme Court decision in Aetna vs. Davila made it more difficult for disgruntled patients to sue HMOs, such as Humana, in cases where plaintiffs who receive their health plans from employers are claiming a denial of medical care. The high court ruled those cases fall under the Federal Employee Retirement Income Security Act (ERISA), which applies to most of the millions who receive HMO care through their employers and limits the amount of damages that can be recovered in a negligence lawsuit to actual losses.

The law firm said Smelik v. Humana was pleaded as a mismanaged managed care case. The Smelik verdict potentially gives new hope to HMO enrollees who are under ERISA and believe that Aetna v. Davila pre-empts their ability to sue their HMO when HMOs demonstrate negligence, fraud, substandard care or denial of benefits, the attorneys said.

The Smeliks alleged that the care delivered by Humana and its physicians to Joan Smelik was substandard. Testimony showed that Mrs. Smelik had been under case management when Humana had outsourced that service to another health care provider. But when that contract ended and Humana began handling case management on its own, Mrs. Smelik's case reportedly was not given the necessary extra oversight.

Previously, employer based HMOs' denial of health care benefits had been largely shielded from regulation by state legislatures with the Supreme Court decision in Aetna v. Davila. Now, the Smelik verdict empowers individuals to fight against HMOs when the HMOs are focused more on saving dollars than on saving lives, the law firm said.

Insurance Journal, July 2005

"The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy." —Martin Luther King, Jr.

Join us at United for Justice. If you do not act now, when will you do it? What each of us choose to do or not to do affects our communities. That's a heavy responsibility, but it is the truth.

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