By J.J. Conway
Fifteen years ago, a busy sales professional came into our office for an appointment to discuss a denied medical healthcare claim that involved a considerable sum.
When I walked into the conference room, there was a ton of action. Sitting at the table were the prospective client and his wife. Also in the conference room were two boys running around, seemingly having a ball. As they were laughing and jumping, the client focused on the terms of his contract. He had thoroughly read it. Having read hundreds of contracts before in his work, he pointed to the operative language he believed required his insurance company to pay his claim.
As he outlined the claim's details, he revealed that one of his two sons had autism spectrum disorder (ASD), and he was seeking reimbursement for his son's care. He and his wife had found a treatment center offering an autism-specific therapy, and this therapy was assisting his son in making gains in his functionable abilities. He pointed out the therapy was provided under the direction of a medical doctor in a reputable medical center, and all the healthcare practitioners were licensed. Pointing to the corresponding contract provisions, he said the contract should be read to cover the treatment.
Eventually, I could see why he was so good in sales. Before I knew it, not only was I going over his contract and claim file, but I also found myself sitting next to his son (on a kid's chair no less) observing his child working with therapists while learning how this treatment was helping children and their families make real progress in communication and self-regulation. He wanted me to understand the actual therapy that was at issue in his son's claim.
The problem was his insurance company had deemed his son's therapy "experimental," a designation that had unfairly shifted the financial obligation for the treatment back to him. He believed, correctly as it turns out, there was no way this therapy could be experimental. Medical professionals had been providing such treatments for many years and they had solid supporting evidence. This was not any form of experiment they were conducting on his child. This was mainstream care. So, we sued.
That case resulted in many more like it. Eventually, we partnered with very talented class action attorneys who fought tirelessly to make changes in this area first in Michigan, then nationally.
What we saw through those cases is that we were working with families who not only had important claims, but they were also taking the time to try to change the law for others. It was really something to behold. They never viewed their cases as "one-off" disputes. They saw a larger issue at work - they wanted to help others.
Now, years later, every child in Michigan with ASD has comprehensive medical coverage. It is the law. It was my first lesson in how motivated parents can change our laws, and ultimately our society.
I am having much that same sense now as I watch resolute Michigan families pushing for the enactment of our state's own mental health parity law, HB 4707. These families are addressing their own internal crises. Yet, they are still making time to head to Lansing, working with our state's legislators, sharing their stories in the media, and forming grassroots campaigns to raise awareness. And there is a real need for solid mental healthcare coverage in our state, particularly among children and teenagers.
For employee-side benefits litigators, the federal mental health parity law, known as the Mental Health Parity and Addiction Equity Act, has been something of a disappointment. It has been a bit more aspirational than helpful. The federal law has certain features that do help when a mental healthcare claim is denied, but its application is often situational.
For example, it works wonders in class actions but for the single case it does not have much impact. Much of its enforcement rests with government agencies and politics tends to influence the degree of enforcement.
So, now a group of Michigan families are working together with other interest groups for the passage of Michigan's own Mental Health Parity Law to add further protections. The proposed legislation has a few features to aid families coping with severe or ongoing mental health treatments and, if passed, may help them gain better access to care.
Here are a few of the law's key features.
1) First, the proposed legislation is an insurance law. This is important for several reasons. The law may be enforced by the state's insurance commissioner prospectively. And as a purely insurance law, the proposed legislation has a good chance of applying to the insurance contracts of federally regulated employee benefits plans of private employers, typically governed by ERISA.
2) The legislation aims to eliminate many artificial barriers to care, such as lengthy preauthorization wait times.
3) The legislation aims to create a more transparent form of parity when it comes to the clinical claims standards applied to mental health treatments as compared to medical and surgical treatments.
4) The legislation would allow enforcement by state agencies, yet another level of protection beyond the federal government.
Like most legislative proposals involving insurance companies, there is opposition. And like the federal parity law, many concerns of the insurance industry are already included in the proposed legislation. For instance, there is no discernible private right of action and no right to a jury trial.
But there are clear and comprehensive standards. If enacted, that alone may encourage claim approvals and expanded care offerings. It may also allow families seeking mental health treatments to make additional arguments to force coverage beyond the strict coverage provisions of the contract itself. If HB 4707 becomes law, we will once again have Michigan families to thank for getting us rights we previously didn't have. And as lawyers practicing under those laws, that is truly something to behold.
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John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and founder of J.J. Conway Law in Royal Oak.
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