Understanding Common Insurance Coverage Exclusions for Traumatic Brain Injuries
Learn how to navigate policy exclusions — one of the most common barriers to coverage for individuals who have sustained a traumatic brain injury.
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Insurance policy exclusions refer to specific conditions or treatments that the plan explicitly does not cover, thereby limiting the scope of available services. Many policies impose very detailed limitations on treatment, such as a cap on the number of permitted therapy sessions or the types of medications covered, which can result in patients not receiving the recommended physician treatment. Another major barrier arises when treatments or procedures are identified by the insurer as “experimental.” Insurers often refuse to cover these types of treatment, which leaves patients without access to potentially lifesaving options.
Denials of coverage, like those discussed below, can create significant obstacles for individuals with TBI and other catastrophic injuries. Understanding whether and how to file an appeal from a denial decision (an “appeal”) is critical for TBI patients and their families.
Precertification Barrier
Some insurance policies require precertification for all medical treatments; insurers may also use the terms prior authorization, predetermination, or preapproval. Precertification is a requirement that a health care provider (such as a physician or a hospital) get advanced approval from an insurer before prescribing medication or performing a procedure. If the policy requires precertification and it is not obtained, an insurer may not pay for your treatment, leaving you responsible for the full bill (even if the treatment is generally covered by the policy).
Precertification is a battleground between insurance companies and people with TBI and their families. TBI and other catastrophic injuries require complex medical treatment. Precertification is not an excuse to deny required medical treatment. If an insurance company refuses to precertify a required medical treatment, it is important that the family or the medical practitioner request a written denial and explanation of the refusal. This written denial will form the basis of an appeal, which must be filed to obtain treatment.
Policy Definitions
An insurance policy is a contract. In contracts, words matter. The definitions and language used in an insurance policy are used by insurers to try to limit coverage. Some typical policy terms relevant to TBI and other catastrophic injuries are medical necessity, custodial care, durable medical equipment, architectural barriers, assistive technology devices and services, skilled nursing, home-care services, transitional living programs, home modifications, and nursing care. The family and treating medical providers need to be aware of the policy’s definitions of these terms.
The policy’s definitions of these terms should be reviewed by the person with TBI (as able), the family or guardian, and discussed with the medical team before medical reports are submitted to the insurance company. Medical reports by a patient’s treating team are critical and should specifically use the policy definitions as the basis for requesting the required treatment. Medical reports should also explain why the requested care is medically necessary. If the insurance company denies coverage, demand the following: 1) a denial letter in writing and 2) that the written denial includes all reasons for the rejection. This is important because in the course of any appeal, the adjudicator (the person who is deciding the appeal) should limit the insurer to only those reasons stated in the denial letter.
Treatment Limitations
Most insurance policies include severe limitations on the required treatment, which will limit necessary treatment for people with TBI. Fortunately, health insurance companies can no longer set either an annual or lifetime dollar limit on what they spend on health benefits, which was a common practice in the past. After this spending cap was reached, individuals would be required to personally pay the cost of all care exceeding those limits, resulting in many catastrophically injured patients being denied required care. However, most insurance companies still try to limit inpatient rehabilitation, outpatient therapy visits, and home-care visits, even when they are required to pay for it.
When an insurer denies a claim, expert advocacy and representation can make a difference. For example: A letter from an experienced lawyer to the insurance company setting forth why the policy does provide coverage and the consequences of the denial.
If there is a lawsuit against a third party (for example, a claim against the property owner whose negligence caused the fall and injuries), an experienced lawyer can negotiate with the medical providers and provide a letter of protection to guarantee that if, as, and when there is a recovery in that lawsuit involving the fall, the bills for additional treatment will be paid from that recovery.
If there is a lawsuit against the third party, an experienced lawyer can also use a provision under the insurance policy known as subrogation to negotiate with the insurance company for additional treatment. Subrogation gives the insurance company the right to recover some of the money it has spent from any recovery in the lawsuit. Depending on the facts and circumstances, this may be a viable option.
Experimental Treatment Exclusions
These are clauses that deny coverage for treatments, procedures, or medications that the insurer identifies as experimental or investigational. However, just because an insurer says it is experimental does not make it so and does not mean that the medical community agrees. In fact, if the medical treatment is recommended by a licensed and respected professional, typically it is a proven and effective treatment within the standard of care and not experimental or investigational. Unless this denial is appealed, patients will be refused care or must forgo treatment or, if able, pay for the full cost of treatment. This exclusion is often used to deny payment for treatment prescribed by the treating doctors, who are most familiar with the patient and the care required. These denials can be and are routinely overturned on appeal, depending upon the facts.
For example, when the prescribed treatment is based on generally accepted medical standards of care or evidence-based medical studies, the denial should be challenged. Patients should file an appeal and seek external review of the denial. This process will require a medical report or letter from your treating doctor to support the need for the treatment. This report should state that the practitioner is thoroughly aware of the patient’s condition, that the treatment is medically necessary, and the reasons why the treatment will be beneficial. The report should make specific reference to the policy definitions to explain why the treatment is neither experimental nor investigational. The medical providers should also provide copies of medical articles or texts that confirm the scientific acceptance of the treatment.
Other Common Exclusions
Some other common exclusions that insurers will cite as the basis for denials include cosmetic procedures, alternative therapy, mental health limitations, injuries from high-risk activities, self-inflicted injuries, noncompliance with treatment, long-term or custodial care, and lack of medical necessity. The likelihood of success of a challenge to these exclusions depends on the facts of each case, the language of the policy, and the medical support for the treatment.
Health insurance companies typically assess medical necessity when determining coverage for services. This denial is nothing more than the insurer’s opinion of whether the services are deemed essential for diagnosing or treating a medical condition.
It is important that the medical report or prescription from the treating medical practitioners use the exact definition of medical necessity set forth in the Master Health Insurance Policy and state clearly why the requested benefit meets that definition. Medical necessity is a broad term, and while the policy language controls, if the prescribing doctor cites medical standards (published guidelines, policies, and medical journal articles) in support of the requested benefit, then you have the basis to file a strong appeal.
The custodial care exclusion is used routinely to deny skilled nursing and attendant care. If the care is purely custodial, for maintenance only, and does not involve any rehabilitation that will lead to incremental gains or improvement, then the policy language will typically exclude that care. This is usually a fact question based on the services being provided. For example, if the attendant is providing rehabilitation support that focuses on assisting individuals in recovery from a TBI that has led to physical, cognitive, emotional, or behavioral challenges with the goal of improvement, then that care is not purely custodial. Rehabilitation support by attendants helps individuals gain independence and improve functional ability through performing therapy and exercises. The actual duties of the caretaker will become the focus of this appeal.
To advocate effectively for custodial care, the doctor’s report must use the definition of rehabilitation care used in the insurance policy. If the treating doctors can support that the patient will make incremental rehabilitation gains and that the patient’s care is not at a maintenance level, then there is a basis to defeat a denial based on the custodial care exclusion.
In addition to policy language, insurers also routinely try to limit or deny benefits using something known as Treatment and Practice Guidelines. According to the insurance industry, these guidelines are based on internal statistics that estimate optimal recovery and appropriate care.
However, these guidelines are based on the insurance industry’s statistical data and are not related to the individual patient. Denials based on these guidelines ignore the advice of treating physicians. Insurers hope that individuals with complex medical needs will accept these denials and not appeal. Patients and their families must remember that insurers are not doctors. Typically, the insurer will use a physician’s opinion to support their denial of benefits. These doctors (so-called independent evaluators) are not responsible for the care of the patient.
Their opinions are bought and paid for by the insurers. They usually have never seen or examined the patient, while the treating doctors have. Finally, physicians employed by insurance companies are not independent, objective evaluators. Ask yourself: How long will an insurance company continue to employ a doctor to review claims if that doctor continually approves of expensive treatments, medicines, and services? In our experience, oftentimes the doctors that review insurance claims are not specialists in the subject matter, and their opinions are beyond their area of expertise, and therefore unreliable.
Insurance guidelines are used to issue denials without any basis in fact. They are mere conclusions, for example: The patient cannot make any more rehabilitative gain; the patient’s care is at maintenance level; the patient does not require skilled nursing services; the patient will not benefit from further outpatient rehabilitation; and the patient has already received the most appropriate care possible, and therefore additional care recommended by the medical team is not required. These broad conclusions, without any supporting facts, are meaningless. Denials based on the insurer’s Treatment and Practice Guidelines should be questioned and challenged.
Were You Denied a Claim Due to an Exclusion? Know Your Legal Rights
If you proceed with an appeal and it is denied, you must be prepared to take your appeal to the next level. Do not wait until the last minute. Families and medical providers should be assertive and not hesitate to file appeals. In today’s world, families, caretakers, and individuals with TBI (as able) must fight for their rights to compel insurers to live up to their obligations under the insurance policy.
All lawsuits and all private and government insurance claims and appeals must be filed within certain time limitations. Those time limits are established by law. The failure to follow these deadlines can result in an injured person losing their right to ever pursue a claim for damages or benefits or the right to appeal the denial of benefits. Injured people and their families must be aware of and abide by these deadlines.
It is essential to seek legal counsel promptly after a TBI to ensure compliance with statutes of limitations and to protect legal rights. Experienced brain injury lawyers guide individuals through the complexities of the legal system and help them navigate the claims process efficiently.
Need help investigating your legal rights related to a traumatic brain injury?
Speak to an experienced brain injury attorney team like Cohen, Placitella & Roth.
For five decades, CPR has successfully represented individuals and families in TBI cases nationwide working with qualified co-counsel.
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