A Hawaii doctor has challenged the state’s biggest insurer for rejecting coverage for medications and treatments he thought were medically necessary, in a case that is rapidly advancing through the courts. If it is decided in the doctor’s favor, it could change healthcare certainly in Hawaii and maybe nationwide.
A Hilo obstetrician-gynecologist, Frederick Nitta, filed a lawsuit in 2022 against the Hawaii Medical Services Association, the big insurer. It alleged that “in the cases of 30 different patients, H.M.S.A. rejected his diagnoses or treatments, forcing those patients to go without treatment or pay out-of-pocket. In some cases, H.M.S.A. changed the proposed treatment to something unhelpful or detrimental to the patient’s health, according to the claim,” Michael Brestanovsky writes for the Hawaii Tribune-Herald..
The Kailua-Kona Judge Robert Kim ruled in February that three H.M.S.A. contracts Nitta highlighted in his suit are “unconscionable” and “unenforceable.”
The issue is not new: Doctors across the United States have claimed for many years that insurers refuse to pay for their treatments, harming patients. The issue, called “prior authorization” by insurers, has been in the news a lot, recently with an expose by ProPublica titled “‘Not Medically Necessary’: Inside the Company Helping America’s Biggest Health Insurers Deny Coverage for Care,” about Evicore, a third-party company that is hired by the nation’s biggest insurers to rule on whether they should pay for care — a company that often turns down doctors’ orders.
Opposing views
The American Medical Association opposes prior authorization, saying that it wreaks havoc on patient care.
Insurers argue that prior authorization improves patient care by paying for only the best medical practice, rather than approving everything a doctor prescribes. Patients and doctors say the practice is torture for patients, and means that doctors have to spend hours, days, even weeks trying to get authorization for a common medical practice that the doctor says is the best — and even at that, the recommendations are often denied, leaving patients paying out of pocket or abandoning treatment.
These accusations often wind up in lengthy court actions that result in the insurer or its third-party proxy engaging in lawfare that ends up with a settlement, and the practice continues.
Ten states have passed laws trying to limit prior authorization and the care delays and wasted time that result.
In May, the federal government issued a final regulation aimed at streamlining and automating the prior authorization process and improving transparency for certain payers. KFF wrote in a brief: “The new regulation will apply largely uniform prior authorization standards across almost all insurance programs that C.M.S. oversees: Affordable Care Act (A.C.A.) Marketplaces run by the federal government, Medicaid, and Children’s Health Insurance Program (CHIP) fee-for-service and managed care plans, and Medicare Advantage plans. These rules do not apply to prescription drug prior authorization, or prior authorization processes for most employer-sponsored health plans.” But that still leaves a lot of insurances un-covered. And prior authorization is notoriously hard to contest — insurers have a lot of experience in batting away complaints.
Advancing in court
What’s interesting about this case is that it is on such a small stage, and the issues are so clear — and the courts seem to take the doctor’s side.
After the Hawaii judge ruled the insurer’s actions were “unconscionable,” the insurer appealed, and it was expected that this case would also end up in a long court battle. But the Hawaii Supreme Court unexpectedly transferred the case to itself last week, meaning that it is likely to get a swift hearing — and potentially advance to other court venues, even the Supreme Court.
One pregnant patient of the gynecologist was unable to fill a prescription he wrote named Nifedipine, which is usually prescribed for high blood pressure or chest pain, but can also treat preterm labor. The insurer denied the prescription. The patient eventually was able to raise money for the medication, but “her condition worsened to the point where she had to be medivaced to Oahu, where she gave birth ‘dangerously prematurely,’ according to the lawsuit — she was 25 weeks pregnant at the time.”
The baby weighed less than 3 pounds at birth and required regular medical care as a result.
Another contract involved the case of Adrian “Scott” Norton, a patient of another physician whose case was merged with Nitta’s. Norton’s doctor recommended an MRI for back pain, but the insurer refused to cover the scan and paid only for physical therapy.
The paper wrote: “H.M.S.A. eventually did authorize an MRI, only for Norton to discover he had prostate cancer that had spread to his back, spine, hip and ribs. Norton died last year. ‘Who makes the decisions regarding your medical care? Ted Hong, a Hilo attorney who represents the plaintiffs, told the Tribune-Herald on Wednesday. ‘Should it be your primary care physician or should it be some clerk in the depths of an insurer’s office somewhere? …This case could change the nature of health care delivery in the state.'”
The insurer is widely expected to appeal if the ruling is unfavorable, which is likely to lead to more court actions.
