Listen and followApple PodcastsSpotifyYouTubeMore apps · Browse all episodes
“Securing prior authorizations is a daily ordeal for most doctors’ offices. Doctors report that, on average, they must get insurance company approvals 41 times every week. Of the authorization requests that are denied, fully 73% ultimately get reversed and approved, but the delays cause many patients to abandon treatment.
More significantly, many contested prior authorization requests cause serious harm — even when they are ultimately approved. In surveys done by the American Medical Association, 24% of doctors report that delays in prior authorization have led to serious adverse events for their patients. And 16% report that such delays have led to hospitalization.”
Steve Cohen is an attorney.
He shares his story and discusses his KevinMD article, “Denying essential medical care doesn’t save money — or lives.”
This episode is sponsored by the Nuance Dragon Ambient eXperience.
With so many demands on their time, physicians today report record levels of burnout. Burnout is caused by many factors, one of which is clinical documentation. Studies indicate physicians spend two hours documenting care for every hour spent with patients.
At Nuance, we are committed to helping physicians do what you love – care for patients – and spend less time on clinical documentation. The Nuance Dragon Ambient eXperience, or DAX for short, is an AI-powered, ambient clinical intelligence solution that automatically captures patient encounters securely and accurately at the point of care. Physicians who use DAX have reported a 50 percent decrease in documentation time and a 70 percent reduction in feelings of burnout, and 83 percent of patients say their physician is more personable and conversational.
Rediscover the joy of medicine with clinical documentation that writes itself, all within the EHR.
VISIT SPONSOR → https://nuance.com/daxinaction
SUBSCRIBE TO THE PODCAST → https://kevinmd.com/podcast
RATE AND REVIEW → https://kevinmd.com/rate
FOLLOW ON INSTAGRAM → https://www.instagram.com/kevinphomd
FOLLOW ON TIKTOK → https://www.tiktok.com/@kevinphomd
GET CME FOR THIS EPISODE → https://earnc.me/ms9UmS
Powered by CMEfy – a seamless way for busy clinician learners to discover Internet Point-of-Care Learning opportunities that reward AMA PRA Category 1 Credit(s)™. Learn more at about.cmefy.com/cme-info
Transcript
Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Rate and review the show at KevinMD.com/rate. Subscribe at KevinMD.com/follow.
Today on the show we have Steve Cohen. He’s an attorney, and his latest KevinMD article is titled “Denying essential medical care doesn’t save money, or lives.” Steve, welcome to the show.
Steve Cohen: Thanks for having me, Kevin.
Kevin Pho: We’ll get to the article a little bit. First off, briefly share your story and journey to where you are today.
Steve Cohen: I became New York’s oldest new lawyer about 10 years ago. I went to law school at age 58 after a career in publishing, mostly at Time and Scholastic, the children’s publisher. I guess the story of going to law school at age 58 is: Be careful who you go drinking with; you may wind up in law school. And I did. I loved it, and I became an attorney.
I went to work for a litigation boutique for three years and then formed this firm with Adam Pollock, who is an assistant attorney general here in New York, and we.ve worked on a case together. We are now 11 attorneys. We do three types of work principally: We do public impact litigation, we do False Claims Act whistleblower litigation, and we do class actions on behalf of plaintiffs. We’re also doing appeals work now, but those are the three thrusts of what we do.
I’ve got to tell you, it’s been enormously satisfying, enormously challenging, and it has brought me into contact with many people in the medical field, because one of our most frequent targets is the insurance industry, which was also the subject of the article that you just mentioned. But be careful who you go drinking with; you may wind up as an attorney at age 62, like I did.
Kevin Pho: So you are at the intersection between the insurance industry and the law. Tell us some of the biggest issues, just off the top of your head, regarding that intersection.
Steve Cohen: Sure. I think the insurance companies are not your friend, and I think there’s an enormous amount of misrepresentation by insurance companies of what is actually covered. But I think the most dangerous thing that I’ve seen recently is prior authorization.
We are involved in a significant case. In fact, we’ve lost the case at the trial level, and we’re now up before the Second Circuit Court of Appeals. It’s about an insurance company that denied a 47-year-old woman an MRI. Her doctor had said, “Look, I’ve done an X-ray, I’ve examined you, I’ve sent you for physical therapy, there’s no improvement. I think you need an MRI.” The insurance company said it’s not medically necessary, and then they added one more line, which is significant. They said, “until you finish six weeks of physical therapy.” To which the doctor, to his credit, said, “Guys, not only has she finished the six weeks of physical therapy, you paid for it.” They said, “You don’t like the decision? You can appeal.” And he did, and it took 38 days for the insurance company to reverse itself and say, “All right, she can have the MRI,” which she got immediately, and which showed the sarcoma in her hip.
She went to Memorial Sloan Kettering, and the doctors there said, “Now, had you come to us a month sooner, we would have treated this just with chemotherapy. We’re still going to use chemotherapy, but first we’re going to amputate your leg, your hip, and your pelvis.” This poor woman died two years later.
We brought suit against the insurance company, saying, “Hey, you gave medical advice which was wrong, by your own standards.” The federal judge who looked at the case threw it out. He said, “This is tragic, but there’s no law in New York that holds an insurance company accountable when they give medical advice that’s wrong. And while tragic, I’m not about to make new law.” Thus we lost on a motion to dismiss, and now we’re up before the appellate court. So that’s one area that concerns me.
Kevin Pho: So let’s focus on the first issue, which is prior authorization, and that’s the subject of your most recent KevinMD article, “Denying essential medical care doesn’t save money, or lives.” Now, before we get into a little bit more detail, just in general, give some context. How pervasive are prior authorizations from your perspective as an attorney?
Steve Cohen: My perspective is not as important as your perspective. The American Medical Association has been surveying doctors for several years now, asking, “How often does this occur?” And it’s overwhelming. Many doctors are saying they’re devoting 10 or 15 or 20 hours a week of staff time just getting prior authorizations and then appealing the denials. It’s a major impact.
More significantly, almost all doctors have reported negative impacts on patients’ care and health because of the delays that result from prior authorization. It’s a serious problem. Every study we have read says this is a serious problem that’s getting worse.
Kevin Pho: Now, for those who aren’t versed in prior authorizations, or even in the medical field, just walk us through the decision-making process on the side of the insurance companies. Who actually is making those denial decisions on the insurance company’s behalf?
Steve Cohen: By law, the people making these decisions are supposed to be doctors in the relevant field, and we’ve heard tales over and over again. In fact, the inspector general for the Department of Health and Human Services issued a report recently, in the last six months, that said very often the people who are reviewing these, or making these decisions and then reviewing the decisions, sometimes are not doctors, but most often have absolutely minimal experience in the specialty upon which they’re deciding. And that’s against the law, and that’s one of the things we’re trying to get before the Second Circuit.
I understand from the insurance companies’ perspective that you want to make sure there’s no waste or fraud, and thus save money, and that’s not what’s happening. They’re using prior authorization hurdles, not just procedural hurdles, to delay and deny care, because that goes, sadly, to the bottom line for the insurance company.
There was a movie, and it was a book, what was it, 15 or 20 years ago, by John Grisham. I think it was called The Rainmaker, and it was turned into a movie starring Matt Damon and Danny DeVito, about an insurance company that denied, I think in that case it was a transplant. And that, unfortunately, is reality, not just movies. People make decisions who are not qualified.
They publish the criteria upon which they’re supposed to be making decisions, but we see that’s not what’s followed. In our case, the criteria that was published by the insurance company said, all right, the next step, if you have pain, you go to a doctor, if you do six weeks of physical therapy, twice a week. That’s their published criteria. They didn’t follow their own criteria. They said it’s not medically necessary until you’ve finished it, and she had already finished it, and they had paid for it.
So one suspects, and we hope to prove in court, that the criteria established, which they’re supposed to be following, are not really being followed, and the people who are making the decisions are not really qualified to make the decisions in far too many cases. Not always, but in far too many cases.
Kevin Pho: I just want to clarify. So in the majority of these denial decisions, are they being made by a single person who, in many cases, is not in the same field or qualified to make those decisions?
Steve Cohen: We believe that to be the case. They are not qualified. It is by a single person. They’re supposed to be an MD every time, and we have no evidence there really is. We’re going to find out more in discovery. We hope we’re going to find out more in discovery, if we survive this appeal.
Kevin Pho: So historically, has there been any successful litigation against insurance companies for inappropriate denials?
Steve Cohen: Almost none, and the reason is twofold. First, most insurance companies fall under a federal law called ERISA, which was set up in the 1960s to establish guidelines for pensions and insurance plans. Not surprisingly, the criteria for bringing an action under the federal ERISA law is higher than it is in traditional state courts, where there’s negligence or it’s contract law. So there are almost no federal cases.
It just so happens that the case we are bringing is not a plan controlled by ERISA. It’s actually public employees who are covered in this particular plan, so it’s outside of the federal guidelines, which means it was brought in state court. There is literally no law in New York written to hold an insurance company accountable, whereas doctors, nurses, podiatrists, dentists, hospitals, and doctors’ offices are all held accountable, and it’s written into law. That is not the case for insurance companies. One might infer insurance companies have a lot of clout; they’re big lobbyists. It’s never been written into law, and as a result, there’s also very little case law.
So, you know, on one side there are statutes, laws that are written into the law books, and on the other hand, we have what’s known as case law, as this evolves. What situations? Now, there are some where it’s come close in New York, and we argue that this situation falls into those cases where the courts have said, all right, insurance companies are accountable. The other side is saying, “Oh no, this is so different. Those were outliers where you decided that it was OK. No, this doesn’t apply.” And the court will decide.
We have asked the federal court to do what is known as certifying a question to New York’s highest court, because the case is being decided under New York law, New York statutory law, New York case law. And so the federal courts very often say, “Hey, we deal with this whole region, we deal with federal issues. You, the highest court in New York State, you’re the expert. We’re asking you, what’s your decision? Should this situation be covered by the existing case law?” And that’s called certifying a question. So we’re keeping our fingers crossed that the Court of Appeals, the Second Circuit, says, “Yeah, let’s ask New York what they think their law really said.”
Kevin Pho: So I want to ask you a question from a physician’s standpoint. I’m a primary care physician, and I encounter these cases all the time. So let’s say there is a bad patient outcome because an insurance company denied a treatment, denied a test, and whatnot. Is there any accountability on the physician’s part when an insurance company denies these tests and treatments?
Steve Cohen: Well, that’s a great question. Now, should we start with the legal analysis, the theory of the case? Why would a doctor be held accountable for someone else’s decision unless they were part of it? What we see is that it’s the doctors who are traditionally asking the insurance companies, “Hey, please, you’re the gatekeeper, please approve this test or this procedure.” So in a sense they are the victim, but they don’t suffer any direct damage, except, and here’s an interesting theory that we’re playing with, there’s something called tortious interference.
Tortious interference is when a third party, such as an insurance company, gets in between the contractual relationship between two other parties. I would suggest, and the courts have never ruled on this, and I have not seen a case directly on point, that the doctor and patient have a contractual relation, a doctor-patient contractual relation. Money does change hands, but it’s more than that. In a doctor-patient relationship, is the insurance company getting in between that doctor-patient relationship? I think it does.
I think here, in this particular case with Mrs. Valentini, the insurance company said, “Whoa, doctor, we know that you prescribed an MRI. We think differently.” They’re getting in between what you’re recommending to your patient. So in a sense, the doctor is affected and is a victim of this getting in the way. Have we tested that in court? Not yet.
Kevin Pho: Is there anything that we can do from our standpoint? Whenever an insurance company denies a claim, one thing I’ve always advised is, whenever an insurance company denies it, I’ll write in the chart who exactly the person was that I was talking to who denied it. I’ll say, “Dr. So-and-so from this insurance company denied the MRI,” and I’ll literally write that in the chart with the name. Is that of any benefit?
Steve Cohen: It is, because it creates a record for the appeal, and in the unlikely chance there is litigation, it does help. But what can doctors do? Have the patience to fight them and appeal. They make it difficult. It takes your time, and it’s not just the money of having people on staff, and it’s not just the value of your time. It takes energy, and it’s discouraging.
It’s particularly discouraging if you’re trying to schedule peer-to-peer conferences with their so-called experts. Getting them on the phone is often difficult, and second, they’re often not the expert in the field. They’ll have a pediatrician doing a radiology assessment on appeal. That’s not right. It’s against the law, but it’s just not right. But it wears you down, and having the fortitude to stick with it on behalf of patients is hard. But the most important thing is to appeal, to stay with that appeal, and not let them get away with it.
Kevin Pho: We’re talking to Steve Cohen. He’s an attorney, and his KevinMD article is titled “Denying essential medical care doesn’t save money, or lives.” Steve, what do you anticipate to be the future of your case? Do you have a good feeling about it? And what do you anticipate the future of insurance company denials to be?
Steve Cohen: Well, I’m an optimist, and one of the things we’re very happy about is that the American Medical Association, the New York Medical Society, the Vermont Medical Society, and the Connecticut Medical Society have all signed what is known as an amicus, a friend-of-the-court brief, and submitted it to the appellate court. That’s important. This is not just one person saying this is an important issue, our poor family, but the medical community. And so I am hopeful that we have a reasonable chance on appeal, and I think common sense says there should be accountability. So I am hopeful.
Kevin Pho: And my final question: What are some of your take-home messages that you want to leave with the KevinMD audience?
Steve Cohen: Stick with what you’re doing. Fight hard. You’re doing such important work representing patients, and it’s hard to go up against the bureaucracy of the insurance companies. The most important thing is to keep fighting for your patients.
Kevin Pho: Steve, thank you so much for sharing your time and insight. Thanks again for being on the show.
Steve Cohen: Thanks for having me.
Listen and followApple PodcastsSpotifyYouTubeMore apps · Browse all episodes
