Son of To Whom It May Go Fuck Yourself

The Honorable Eric Schneiderman
Attorney General of New York
The Capitol
Albany, NY 12224-0341

Dear Mr. Attorney General,

 

I am writing to alert you to a massive consumer protection failure in New York State and to seek your help in correcting it. There is currently no state agency meaningfully overseeing the practices of private corporations providing health care insurance in the state of New York.   This letter lays out the current non-functional administrative apparatus, such as it is.  

I urge your office to launch an investigation into this administrative vacuum.   Patients faced with denial of needed health care services have no government forum in which corporate abuses, oversights and fraud can be remedied.   An investigative report would recommend legislation to redress the literally life-threatening menace of corporate denials of health care without any recourse under the law.  At minimum we need something like a State Ombudsman’s office to oversee health insurance in our state.

As our new president forcefully carries out his announced intention to dismantle the apparatus of government regulation, the need for state oversight of health industry corporations in New York State has become urgent. The promised replacement for the Patient Protection and Affordable Care Act (“PPACA”), whatever it might be, won’t eliminate the need for protection of vulnerable older and low-income healthcare consumers.   It is unlikely that the need for these protections will become less pronounced under a completely deregulated health insurance system.

The administrative ‘remedies’ that currently exist in New York State allow no timely or meaningful process to resolve adverse healthcare-related decisions. That there is no state agency empowered to supervise this crucial sector of our state’s welfare is a terrible oversight.

I’ve admired the courageous and proactive steps your office has taken against the powerful perpetrators of various frauds and urge you to consider this letter in the context of systemic healthcare-related fraud against a large class of vulnerable low-income and senior citizens of New York State.

Uncertainty about health care, lack of information about high surprise costs and the denial of prescribed medical services without explanation are all stressful. They negatively affect the health and quality of life of those mandated to purchase their health insurance plans in New York State.   As detailed below, health insurance buyers in our state are denied any state protection against the practices of private health insurance companies, even when the denial of necessary service appears to be fraudulent.    

This consumer protection emergency transcends the current health care scheme under the PPACA.   The president’s threatened repeal of the PPACA makes it all the more essential for New York State to regulate private health insurance companies.  

In googling your mailing address to mail this letter I came across the New York State Health Care Bureau, under services at the bottom of your office’s home page. That bureau informed me they can help me resolve a billing dispute with a provider or insurance company. The citizens of New York State sorely need a regulatory apparatus that can make expedited, binding determinations on when insurance companies cross the line into actual fraud against their mandated customers.  

 Of course, the creation of a regulatory agency is a matter for the legislature. A fraud investigation by your office into practices such as the ones described below would highlight the need for state regulation; a report would give momentum to legislation to create a bureau where life and death health decisions could be expeditiously heard and resolved.  

As stated, defrauded health insurance consumers (patients) in New York State have no forum where complaints can be resolved, outside of the New York State Department of Financial Services, which, it turns out, does not hear such complaints.

The fraud investigator I spoke to there could not find a word other than ‘fraud’ to describe the facts I set forth, but urged me to call the NY State Department of Financial Services Consumer Services Hotline. He assured me that they were the specialists in the area of health insurance. The recorded menu at the hotline, which I recognized from my first call many hours earlier, offers no option for resolving issues with insurance companies of any kind.  

On my original call to the Department of Financial Services, a long wait to speak to a representative yielded the number of the proper federal agency to contact.   Calls to the U.S Department of Health and Human Services are robotically routed to a NY State number that is, sadly, the office of Temporary and Disability Assistance, where a helpful party connects you to a fraud hotline, which turns out to be at the office of the Medicaid Inspector General, where the office of legal affairs is also sympathetic, but unable to help, and so forth.

As for the PPACA, I understand that it was drafted by Liz Fowler, a career health industry insider who went on to a senior executive position with Johnson & Johnson immediately after her work on the PPACA was done. I‘ve witnessed the many attempts to repeal the law and thwart its implementation, rather than fix any of its original flaws, as other complicated laws affecting millions are tweaked and improved over time. Even so, the lack of any provision for oversight of corporations participating in the PPACA by New York State is grotesque. To a sixty year-old cardiac patient unable to see a cardiologist now for many months, the lack of oversight may also be deadly.

Although the situation I’m complaining of is personal and extremely aggravating, it is sadly typical.   I’ve commiserated with many others who suffer under similar insurance coverage.  Erroneous bills are a common, if relatively innocuous, theme.

I receive bills that there is no way to resolve, most recently an invoice for $1,324 for a fully covered sonogram I had in August. The x-ray and kidney sonogram I also had that day were fully covered, the sonogram of another body part was not.   The billing issue was resolved with the insurance company (Anthem/Empire Blue Cross) and the provider to a zero balance in October. Two months later, the full bill for $1,342 was sent to me again in a Third Notice.  

Nobody at Empire could give me the reason the provider had sent that bill, although the representative, who checked my account and called the provider again, informed me that, this time, it was my responsibility to pay it in full.   She offered to send a consumer handbook for my plan that would fully explain the reason, which she claimed was clearly set forth there, though she could not state it.

There is nobody in New York State to adjudicate something as small as a billing dispute, let alone fraud, outside of a judge on some court one must file an actual lawsuit to appear before, assuming one could find a cause of action to get in the door of the courthouse.

Empire recently sent me an email warning of termination of my insurance for non-payment of December’s premium. This warning arrived two weeks after their email confirmation of my payment for December and January.

More ominously, a patient can be denied medical service without explanation (site-specific provider NPI numbers and proper CPT pre-authorization codes notwithstanding), and there is nobody in New York State you can appeal to, except to the insurance company itself.   Empire Blue Cross “Health Plus” recently sent me to two providers for needed medical services, a cardiologist and a physical therapy facility.  Neither provided me with any service. 

I received the site-specific NPI number for the cardiologist, scanned and emailed the back and front of my insurance card, got pre-approval from his office. The consultation was halted ten minutes in and I was informed that my insurance would not cover the visit.   When I arrived at the ‘physical therapy facility’ Empire had referred me to, it was a nursing home.  The director told me the facility offers PT, but only to residents.

The circuit of government agencies I have contacted in vain came full circle with the “consumer help line” the NYS Department of Financial Services Fraud Unit investigator had me call, which I immediately recognized as the very first number I’d called.   Here is a summary of that cul du sac:

NYS Department of Financial Services referred me initially to the US Dept of Health and Human Services which, supposedly, connected me to NYS Health and Human Services, although to an incorrect branch of that agency, the pertinent branch apparently having been merged into the NYS Department of Financial Services which took over all functions of the former NYS Insurance Department as well as oversight of banking and several other discrete and seemingly unrelated areas.  

The NYS Department of Financial Services, one learns, has sole responsibility for oversight of health insurance companies, as well as all fraud investigations related to consumer fraud against insurance companies, and complaints about the practices of banks and brokers.   Everything but, according to a fraud investigator for the Department of Financial Services, investigations of colorable fraud committed by insurance companies against mandated health-care “consumers” in New York State.

My political and legal conclusions are beside the point. Whatever the reasons, the fact remains that in New York State in 2017, even under the PPACA, citizens whose health is menaced by private insurance company denials are denied any legal process to have these vexing, sometimes life-threatening situations resolved.   

Outside of a possible Article 78 (which government agency would you sue for relief, the Department of Financial Services? The New York State of Health Marketplace cannot be sued, even over their own clear error, until exhausting their slow and inadequate ‘administrative remedies’) or a class action under a private attorney general or qui tam statute, what is a patient trying to get an appointment to see a cardiologist since August to do under the PPACA in New York State?   At minimum an ombudsperson, or a few hundred of them, would be a good start.

I’ve followed your career from the start and have admired your principled engagement in the fight against injustice.   To have a legal right that cannot be enforced is to have no legal right.   The mere existence of an ‘administrative process’ (four to six month wait for an appeal of a clearly erroneous adverse NYSOH determination) does not mean there is anything like due process. Widespread injustice is accounted by some as a kind of ‘externality’, a cost of private industry doing business. The lack of legal recourse for denial of purchased health care must not be allowed to stand in New York State.

I have attached the specific grievances I was until the other day unable to submit directly to Anthem/Empire.   I have forwarded them to the organization indicated in Anthem/Empire’s internal directive. I have since learned from an attorney at that non-profit that they do not play this role in the complaint process. She provided me with an online version of Empire’s Handbook, I quickly found the mailing address for complaints on page 15.

I will be glad to do what I can to help your office take steps towards sorely needed due process for denial of health care for some of the State’s most vulnerable citizens.  If needed, I can assist in researching and drafting the report. I am open to being a plaintiff in any lawsuit the State might want to bring and to testifying in any proceeding, in any forum.

I look forward to hearing from your office and stand ready to give any other details or assistance your office might require.

 

Yours sincerely,

 

 

 

 

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