Right, well done for getting hold of the policy T’s and C’s. They aren’t always easy to track down. You’re absolutely correct, the matter revolves around Exclusion 16. It’s a paragraph only a lawyer could love and just the sort of thing that ends up causing problems – both for policy holders and providers. This is because it is poorly constructed – there are several unrelated and sometimes contradictory clauses strung together which leaves the whole thing open to all sorts of interpretations. In my professional life, I would never recommend anyone sign a contract with that standard of documentation. Unfortunately, this sort of policy (and this is common across the private medical cover sector) isn’t able to be made bespoke, it’s a take-it-or-leave-it package. Let’s try and make some sense of it all...
Exclusion 16 Experimental drugs and treatmentWe do not pay for treatment or procedures which, in our reasonable opinion, For starters, that word “reasonable” is meaningless. All policies are subject to a test of reasonableness, that’s just padding so I’ll delete it. I can also delete “procedures” – don’t know why they make a distinction between “treatment” and “procedures” except that there’s a load of common clauses they listed under “treatment” earlier on in the policy document, now they’ve started talking about “procedures” and are getting confused between the terms (later on in the paragraph they seemingly resort to throwing one or other word in at random, sometimes both !). On we go...
are experimental or unproved based on established medical practice in the United Kingdom,In fairness, it’s alright to specify a jurisdiction and it’s entirely logical to make it “UK”, but it’s not as simple as that. This “little Englander” rhetoric seems okay but medical practice doesn’t stop at Land’s End. it is influenced by global research and other regulatory bodies. If, for example, Crosslinking gained Phase III trial approval from the FDA in the US, that would be a game-changer and would substantially affect the medical practice in the UK. So I’ll delete that too as it simply adds unnecessary wording with dubious legality. Next...
such as drugs outside the terms of their licence We don’t need to concern ourselves with drugs here...
or procedures which have not been satisfactorily reviewed by NICE (National Institute for Health and Clinical Excellence).Phewf. Let me reassemble all that into something easier to take in:
Exclusion 16 Experimental drugs and treatmentWe do not pay for treatment which, in our opinion, is experimental or unproved based on established medical practice or treatment which has not been satisfactorily reviewed by NICE (National Institute for Health and Clinical Excellence).That almost looks like plain English now !
But then I started running into a real difficulty. What I couldn’t decide – based on how the policy was constructed – was whether the provider’s opinion of a treatment OR a satisfactory review by NICE – or, even, BOTH of these factors must be met to receive the policy benefit. This sort of thing is a recipe for litigation. Usually one or other party initiates a dispute, they try to resolve it, but are not helped by the contract wording. It ends up going to court where a judge has to attempt to make an assessment as to which part of the clause carries greater weight (or, if they all have equal weight). We certainly don’t want to start making litigation statements so let me try and be as even handed as I can. My opinion is that EITHER a satisfactory NICE review OR the provider’s opinion can be used to determine how to process a claim. Further, the provider’s opinion carries, again, from my reading, greater weight that NICE approval. Indeed, it would be possible for the provider’s opinion to lead them to accept a claim even if NICE had not conducted a satisfactory review.
This analysis forms the basis of how I’d suggest you proceed from here. Rather than challenge the provider under the term “satisfactorily reviewed” (which I think we can make a challenge on if it comes to it, because NICE when it initially reviewed Crosslinking, declined the opportunity to put it on the “do not do” list and instead called for clinicians for conduct more trials – which I don’t believe could be automatically read as an “un-satisfactory review). But there’s a better chance of success asking for an explanation from the provider of how they arrived at a conclusion that Crosslinking is, as per their policy “in our opinion, is experimental or unproved based on established medical practice”.
Here, I’m going to make an assumption based on this particular provider’s usual operational practice. Typically, when you get referred to a consultant (e.g. via your GP in primary care, but I’d suspect on the guidance of an optometrist here) this provider offers to give you the details of a “specialist in your area” or some such who is “already on our list of pre-approved partners” or similar words. Please let me know though if you selected your consultant outside of their list of pre-approved ones as that will change things. But guessing that you did, and it is they who have said that your current state of Keratoconus progression, age profile and corneal thickness indicates Crosslinking, you can I think see what’s coming next !
If the provider then, basically, turns around and says that their recognised clinician has recommended something unproved based on established medical practice, well, why aren’t
they taking that up with
their consultant ? The provider’s Terms for Recognised Consultants (
http://www.bupa.co.uk/jahia/webdav/site ... ntract.pdf) clearly states that “you (the consultant) agree to provide all treatment in accordance with the Clinical Standards published on
http://www.bupa.co.uk/consultantsonline”. Well, that's the provider's process, and they need to manage it effectively. If they don't, then you -- the policy holder -- are entitled to redress.
The noose tightens !
Then say that, obviously something has gone awry between the provider and their recognised clinician, and you’re perhaps understandably now aggrieved that you’re an innocent bystander caught in the middle of it. Advise that you’re happy to accept as a remedy that the provider simply honours the claim as made originally i.e. they cover the Crosslinking. Alternately, if they are not willing to do that, then another way they can put things right is to refer you to another of their recognised clinicians. Advise that, to avoid a repeat occurrence,
they must choose the consultant and agree to abide by their clinical judgement and judgement of whether the treatment complies with the provider's Clinical Standards -- and if needed the provider and the clinician will resolve any disparity between clinical need and the Clinical Standards between them without having to inconvenience you further. Advise the provider that you are willing to give them another attempt to exercise the policy competently, with another recognised clinician who will, hopefully, follow their T’s and C’s for Recognised Consultants this time. Add that because their Recognised Consultant did not follow their prescribed process, you expect your travelling costs and time off work to be reimbursed up to a reasonable amount for obtaining this second opinion.
I can’t obviously say what the provider will do, but I’ve a hunch they may decide – in view of the relatively small cost in the big scheme of things – to settle ex-gratia. They – or their consultant, or both – would be at fault for letting things get this far by recommending an “un-covered” (known as “wide of scheme”) treatment. If they've shown themselves to have mal-administered things, it becomes leverage to have your claim approved.
That’s all a bit disingenuous of course. In reality, we're playing with a policy's terms to get us where we need to be. Which we shouln't need to resort to. The real issue is that clinical practice is now becoming firmly established as offering Crosslinking. It’s just that NICE hasn’t caught up with this yet, the insurance industry lazily follows NICE and doesn’t bother to engage its collective brain to resolve the issue and it’s left to policy holders to fight their corner -- by whatever means we can.
Unfortunately, I don’t know for a fact that you saw one of their Recognised Consultants. If not, it’s a much sticker wicket and none of the above applies. If that is the case, let me know and we’ll have to go down the NICE “satisfactory review” route. But that’s a bit of a weaker argument (although it still has merit).
Two final things. One is that – depending on how good you are on the phone (and I’m terrible, I loose my thread, forget what I was supposed to say and what I’ve said already) – it may well be worth putting this in writing when you challenge your provider’s decision to reject the claim. If so, am happy to review the letter beforehand. In writing, you can simply state your case and not get wound up by the often intransigent person you're having to deal with at a call centre. But if you find it easier to do things over the phone than to compile a written response, by all means do it that way, whatever you’re happier doing.
Secondly, your moving jobs and how it affects your policy. I could write a similar amount on that one alas ! (oh no, please don’t says everyone !). The short version is that, if your claim is accepted by your current provider while you are with your existing employer then that claim must be managed even once you move to a new employer. If this drags on for more than the three months, and your claim still isn't approved, then you’ll need to start all over again when your contract of employment changes – even if the provider stays the same. This is the technical “letter of the law” answer. But it would be worth asking if the provider would transfer you “without cessation” or under “continuous cover”. The key reason is that if you are starting under, essentially, a new policy, then your Keratoconus may very well be classed as a pre-existing condition and might not be covered. That only applies if TUPE is not involved. If TUPE is involved, everything changes and you should not be treated any differently by the insurance provider (even if the management of the scheme you belong to changes in terms of administration and/or management trust). Sorry – it’s a big, complicated subject that one. If you can wrap up your Crosslinking claim before this potential spanner is thrown into the works, so much the better. No problem at all if you need more information on this one as you get nearer the date of transfer.
Anything not clear, just let me know.
Best wishes, good luck.
Chris
