“We know we said we’d pay you, but you didn’t take that literally did you?”

“Marvin D.” (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 had a serious problem with alcohol and cocaine addiction. He had been drinking and using cocaine, daily, for more than six years. It was 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.

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 be obtained by calling Aetna Focus Psychiatric Review. Oasis did as instructed and obtained the necessary pre-certification. Aetna even provided a "reference number" for the "pre-cert". Based on these representations, Oasis admitted Marvin for a 10-day 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 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 stated that in order for the claim to be “for further certification which will lead to payment”, it needed “complete current medical psychiatric record for this confinement. . ."

In other words, certification did not mean actual certification and before Aetna would consider payment of the claim a further, more depth "concurrent review" would need to be conducted. However, a true “concurrent review”, as its name would imply, is a review that takes place while inpatient care is being rendered. But by the time the letter was sent and received, all inpatient care had terminated. So of what consequence could the letter be?

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 purporting 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" issued. 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 we do not want to pay you after all.")

Oasis administratively appealed the claim denial, but Aetna upheld its initial denial, on grounds of an alleged lack of "medical necessity" for the treatment rendered. The appeal decision letter totally ignored the fact that the treatment had already been subjected to Aetna's "concurrent review" process and had been "pre-certified" by Aetna. The letter ignored 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 was simply erroneous, as Oasis is a non-acute residential treatment facility. The letter went on to cite several other such “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 coverage, 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. Otherwise, what exactly is being certified? 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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