Would an attorney help?

[Zelindar]

Would an attorney help in this case?

Indiana

I am more than willing to hire an attorney if I have a case but I'm not sure. I will briefly explain the situation.

I work for the TPA (Third Party Administrator) that owns the PPO I have to use. Self funded insurance under ERISA.

I recently requested a pre-determination for bariatric surgery. There was a general exclusion that said "obesity" services or surgery was not covered. There was no mention of morbid obesity and the exclusion was very generic. The case was sent to the Network physician for review and he approved it. When the company attorney found out I had been approved, he had the approval rescinded. He is the same attorney for the TPA - my employer - and the Network. I was going to appeal but was told I had no case because at renewal the exclusions would be tightened. The plan document was literally re-written during my approval and denial phase and went into effect May 1, 2002. The NEW plan was totally changed to say all surgery for morbid obesity was excluded (including even if medically necessary). That plan is now in effect. I saw no recourse.

I then considered paying for the surgery myself and asked about short term disability. The plan was still being tweaked AFTER 5/1 and when we finally got to see it, STD was also changed. There is now an exclusion that says they will not provide STD for "elective surgery". When I was denied STD, I was told the physician who makes the decision about STD determined the surgery was not medically necessary. It so happens the physician making this determination is the same person who approved surgery only weeks before. Am I wrong to think this is odd to have him in one role approve the surgery and weeks later in another role deny short term disability because he said it isn't medically necessary?

Is there anything I can do to prove they wrote the new plan with language specifically to deny my surgery? Does it matter if they did since I was already approved just weeks before they wrote the new plan document? We were told the company was merging our benefit plan with a sister company. Under our sister company plan, I would have been approved for surgery as they excluded morbid obesity from the exclusion. Now both companies have the "even medically necessary surgery is excluded" clause.

Do I have any legitimate recourse? I don't think I do but many others feel I may have a discrimination case. Your advice about an appeal is appreciated.

 

[Zelindar]

No one here has an opinion about ERISA here?

I was hoping to hear anything that might help in determining if I have legal recourse. Is no one here is familiar with ERISA at all?

 

[ALawyer]

Companies frequently modify plans to keep from having to cover expensive procedures that jack up their costs. Most often they do so only after the horse is out of the barn, and hope to prevent recurrences. In this case they got wind of your procedure before the expense was incurred.

As this is an ERISA Plan, and some reasonably senior people at your company are involved, any rights you choose to exercise may be greeted with hostility and retailiation -- often in ways you'd never see coming.

If your condition is as serious as you say, you'd best get the surgery first and fight over it later, both in terms of caverage for the health plan and STD. I can see companies eliminating purely "elective surgery" from getting STD coverage. If I wanted a face lift why should my company have to pay me salary while I recuperate? But this does NOT sound as if it is really elective, and as compared with other procedures that would see you out of the office for at least as long....

Your best bet may be under the Americans With Disabilities Act, assuming your company has the numbers, but that's not something I am very familiar with.

 

[Zelindar]

Thanks for the feedback. I have an appointment with an attorney tomorrow to look over all the documents to see if I even have a chance for future recourse.