Legal Question in Insurance Law in Florida

I underwent rush allergy shot therapy on 3 dates on dec-2008. My insurance covered the first two treatments and denied the third - citing that the treatment was experimental and/or investigational.

My doctor filed an appeal on my behalf arguing that the treatment was neither experimental or investigational. That appeal was denied by the insurance company and furthermore, they denied payment on the first two claims they had already paid. Since then I researched the treatment to verify if indeed the treatment was experimental / investigational:

1. national institute of allergy and infectious diseases: they didn't know and could not tell me. Told me to contact the FDA.

2. FDA: told me they only approve drugs or products not treatments and couldn't help me.

3. Office of Insurance Regulation of my state: told me that they do not posses authority of such contract; refered me to the U.S. Department of Labor

4. U.S. Department of labor: told me that there was nothing they could do; only a judge in a lawsuit case could determine if the treatment was indeed experimental.

I have also statements from different allergists across the country stating the following:

-�Rush is not considered experimental. It is mentioned in the Practice Parameters and there are a number of published articles on this subject."

-"There are many papers published about the safety and advantages of Rush Immunotherapy. Rush Immunotherapy under proper medication and care is safe, effective and rapid means to provide relief from allergies. Some hospitals and doctors in USA are doing rush immunotherapy. "

-"Unfortunately while we do not consider rush immunotherapy to be experimental, that is a subjective term and the insurance company is obviously being difficult about this. Dr. Nelson thought you may want to reference the Immunotherapy Treatment Practice Parameters. It was last updated in 2007 and is on the third edition. He thought summary statements 48 and 49 would be most helpful to you. He didn't think you would find anything stating that this was or was not experimental. He reinforced that this is an accepted, common treatment. I hope this helps."

Should I actually continue into filing a lawsuit? Will I have a strong case against the insurance company's decision?


Asked on 12/02/09, 11:28 am

3 Answers from Attorneys
David Slater David P. Slater, Esq.

It depends on the amount involved, but it sounds like a valid claim.

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Answered on 12/07/09, 11:36 am
Alan Wagner Wagner, McLaughlin & Whittemore P.A.

If yur coverage is through your employer, it is governed not by state law, but by a federal law called ERISA. The law is not consumer friendly and, probably, you can't file a lawsuit. You must follow the procedure set up in the plan itself. There is an appeal process. The carrier has a lot of "discretion" -- in other words, you probably get screwed. If you have aprivate policy, you have better rights.

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Answered on 12/07/09, 11:38 am
Lesly Longa Longa Law P.A.

It not only costs money to file a lawsuit, but you have to have a good basis under the law. Think about how much your damages are - just the out of pocket costs for the last shot? Here, it is also really important to understand what your insurance provider will or will not cover before undergoing treatment. Review your policy, consider the costs you have incurred, and call an attorney for a consultation if you still think you need legal assistance.

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Answered on 12/07/09, 12:32 pm


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