“We know we said we’d pay you, but surely you didn’t think we meant it.”

“Marvin D.” (Plan administered and insured by Aetna Life Insurance Company)

Oasis Treatment Center is a residential treatment facility that provides treatment for alcoholism and drug dependency. Marvin D. was an employee of a major life insurance company, whose health plan was insured by Aetna. At the time of his admission to Oasis, Marvin D. had a serious problem with alcohol and cocaine addiction. He had been drinking and using cocaine, daily, for more than six years. It is clear that he met the diagnostic criteria for Psychoactive Substance Dependence, as outlined in the Diagnostic Statistical Manual of Mental Disorders (DSM) and it was the admitting physician’s professional opinion that he would have a much greater chance of recovery in an inpatient setting.

Oasis provided inpatient services to the Marvin D., for alcohol and cocaine abuse. Prior to admission, Oasis contacted Aetna and verified that inpatient benefits would be payable at 80% of "usual, reasonable & customary" (URC) charges, subject to a deductible, a calendar year maximum of 30 days and a lifetime maximum of $250,000.00. Oasis was instructed at that time that pre-certification would be required, for residential inpatient treatment, and that it should obtain such by calling Aetna Health Plan Focus Psychiatric Review. Oasis did as instructed and obtained pre-certification. Aetna even provided a "reference number" for the "pre-cert". Based upon these representations, Oasis admitted Marvin D. for a 10-day inpatient course of treatment. After the admission, Aetna contacted Oasis for a clinical assessment and Oasis cooperated fully with Aetna's "concurrent review" process, all of which took place, telephonically.

After Marvin D. was discharged from treatment, a claim for benefits was timely submitted to Aetna. Shortly after discharge, Oasis received a letter from a Psychiatric Review Specialist at Aetna, which advised that "In order for this case to be considered for further certification which will lead to payment for services rendered we require the complete current medical psychiatric record for this confinement. . ." Clearly, the import of the letter was that if any continued inpatient care was needed, a more in depth "concurrent review" would need to be conducted. However, by the time this letter was sent and received, all inpatient care had terminated. Thus, the letter was really of no consequence, as far as Marvin D. 's claim was concerned. The letter itself acknowledged that Oasis had fully cooperated with Aetna's prior "concurrent review" process, and the use of the words "further certification" is a clear acknowledgment that Aetna had given prior certification for the treatments, rendered up to that point in time. Nevertheless, Oasis sent the requested records to Aetna.

Almost two months later, Oasis received a document from Aetna, which purported to be a "Notice of Certification"; however, the "notice" referenced the date of admission and stated "Number of days certified: 0". Under the heading "Remarks" the form stated: "This confinement is not medically necessary because the recommended services could be provided safely and adequately in an outpatient setting. The plan benefits may be reduced if these services are provided on an inpatient basis." Thus, the document was not a "notice of certification" at all. It was a claim denial, pure and simple, which completely contradicted the prior "concurrent review" of treatment and the "pre-certification" for it. Since Aetna had already "certified" the inpatient treatment, the document could have been called a "notice of de-certification". (i.e. "We’ve changed our mind and have decided not to pay you after all.")

Oasis administratively appealed the claim denial, but Aetna administratively upheld its initial denial,

on grounds of an alleged lack of "medical necessity" for the treatment rendered. The appeal decision letter

completely ignored the fact that the 10-day treatment had already been subjected to Aetna's "concurrent review" process and had already been "pre-certified" by Aetna. The letter went on to ignore all of the diagnostic medical criteria, establishing medical necessity, as were cited in Oasis’ letter of appeal. Instead, the decision letter focused on several other “standards”, which were entirely subjective. For example, the first such standard was that "No coverage is afforded for services. . . that are not necessary as determined by Aetna Life Insurance Co.". (i.e. “Aetna won't pay a claim if Aetna doesn't want to pay it".) The second standard was that "Decisions on necessity of acute care are based on . . . whether similar results could be safely obtained in a less restrictive setting." That standard was just simply erroneous, as Oasis is a non-acute residential treatment facility. The letter went on to cite several other “standards”, none of which were found to exist under the terms of the plan.

At that point, I became involved in the dispute. In an exchange of verbal and written communications, Aetna explained its position to me as follows: "(1) certification only means that one has notified Aetna of an admission; (2) certification is no guarantee of payment"; and that (3) "following the certification, Aetna will review claim later." I explained that although it is true that benefits are payable, according to the coverages, exclusions, etc. of the plan, and therefore pre-certification would not guarantee payments in that respect, the whole purpose of pre-certification and concurrent reviews is the lay to rest the issue of the medical necessity of an admission and continuing care. Aetna remained unconvinced, stating that "pre-certification" was merely a "notification" procedure, and that the issue of "medical necessity" is one that could only be determined by a subsequent review of the medical records.

I asked the Aetna representative if she understood the meaning of the word "certification" and I explained that Webster's New World Dictionary defines the word "Certify" as follows: "Certify: 1. to declare [a thing] true, accurate, etc., by formal statement. . . 3. to guarantee . . ." She responded that she didn’t want to get into an argument over "semantics". She then explained that Aetna did not go by a Webster’s dictionary definition of the word "certify", but instead went by Aetna's policy. This was reminiscent of Humpty Dumpty’s explanation to Alice of the meaning of words. [1] Obviously, if benefits, coverage, etc. are to be communicated in a policy by the plan in English, words must have meaning and that in common usage, the word "certify" did not equate with the word "notify". I responded that unless Aetna stated some contrary definition of the word in the plan, itself, then it did not have the discretion to make up words as it went along or to re-write the English language.

I submitted a further ERISA administrative appeal on behalf of Oasis.

Result: The case was resolved satisfactorily without litigation.

[1] “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” Lewis Carroll (Charles L. Dodgson), Through the Looking-Glass, chapter 6, p. 205 (1934). First published in 1872.

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