Peer Review Doctors ... Under the Spotlight

Insurance providers generally include a "peer-to-peer" review program in an attempt to comply with its fiduciary duties to its insureds.  

A peer-to-peer review is typically done as a scheduled telephone call between the Peer Review physician acting on behalf of the insurance provider, and the healthcare professional who requested the review. The Peer Reviewer applies the health plan’s medical coverage guidelines to the clinical information, uses clinical judgment, and renders a decision. Although the Peer Reviewer is a delegate of the insurance company, allegedly the Peer Reviewer receives no financial incentive to deny or to approve a request. And yet, even a cursory investigation reveals that numerous peer review companies exist and market themselves with some even touting its transparent, competitive pricing. 

If you were to ask your physician, or a residential program's physician, how often the Peer Review physician has reviewed all of the medical records, or if they specialize in eating disorders or if they are aware of the latest medical articles dissecting eating disorders the answer you would receive would be … never.  Undoubtedly, the Peer Review physician is acutely aware of the insurance company's policy language since that language is guiding the decision they are making.  The Peer Review Physicians are ipso facto, making medical treatment decisions on behalf of the insurance company ... and for their insured, the patient, our loved one.

In every state, the insurance provider has a fiduciary relationship with the insured. It has the duty to act in good faith and to deal fairly with its insured. You are paying for a service. It stands to reason that the insurance provider must then also employ Peer Review physicians in good faith, physicians who are competent and who must hold the insured's needs paramount but only within the context of the insurance policy. By its very nature, the Peer Review physician is occupying an adversarial position to  your treating doctor. And you are paying for it! Part of the premium dollars you are paying are necessarily allocated to pay for Peer Review doctors who are denying treatment that your treating physician says is medically necessary.

Review your health insurance policy. The insurance provider, without any input from you, has the right to determine what  guidelines, procedures and protocol are included in its policies  With regard to claims review and the necessity of treatment for eating disorders, you will not find any reference to the American Psychiatric Association or the American Medical Association guidelines, or the DSM-V. This means that the insurance provider and its Peer Review physician are not using generally accepted medical standards in making treatment decisions. And if the Peer Review physician is not taking into consideration the APA guidelines set forth by the American Psychiatric Association or the American Medical Association guidelines, or the DSM-V, how can their opinion of medical necessity be anything but suspect and in fact, could be approaching medical malpractice.  

The Peer Review physician can attempt to qualify her remarks by stating that pursuant to the policy language, the insurance provider is refusing to pay for future treatment. But, interpretation of insurance policy language necessarily is left to legal minds ... not medical minds. What experience does the Peer Review physician have with legal interpretation of contracts? Or, is the insurance provider feeding the Peer Review physician its own legal interpretation and merely asking the Peer Review physician to color by numbers with regard to denying treatment under the policy?  This illustrates the harsh reality that compliance with the generally accepted medical standards of care for an insured is secondary to the substance of the insurance policy.

A Call for Accountability

As the insured, you have a right to the records your insurance company and its Peer Review physician reviewed regarding your claim ... including the identification and credentials of that very Peer Review physician.

I am not suggesting filing a medical malpractice claim against the Peer Review physician.  You very well may not even have “standing” as the judicial branch defines that term to file a malpractice lawsuit.  Further, malpractice laws in some states can seem almost draconian in their application and if you file a malpractice lawsuit in bad faith, you could be subjected to costs and attorney’s fees. 

However, each state does have it own Board of Medical Examiners.  These Boards are appointed, or voted in, to oversee the medical profession in its respective state. These Boards are designed to protect the health, welfare and safety of its citizens against the unprofessional, improper, and unauthorized practice of medicine by ensuring that those who practice medicine and other allied health professions under their jurisdiction are qualified and competent to do so.   In addition, the Boards serve in an advisory capacity to the public and the state with respect to the practice of medicine.

These Boards also have a complaint process in place wherein persons who are aggrieved may seek assistance.  Most Boards can publicly or privately censure a physician, suspend them from the practice of medicine or in some cases, revoke a physicians’ right to practice medicine.  Assuming a Peer Review physician is rendering a medical opinion regarding treatment that is not based on generally  accepted medical practices or what is in the best interest of the patient, but instead, the opinion is simply based on insurance policy interpretation, then arguably the Peer Review physician’s opinion could and rightly should be construed as improper, unprofessional and not in compliance with the medical standards in the community.

Upon proper complaint, the Board should open an investigation into that Peer Review physician and review the process utilized by the Peer Review physician in reviewing claims for that insurance company.  The Board could dismiss the complaint out of hand.  It could choose to investigate.  Ramifications could include dismissal of the complaint, private or public censure of the peer physician or even a revocation of that Peer Review physician’s license to practice medicine.

It stands to reason that as these claims against Peer Review physicians increase, the Peer Review physicians themselves would have cause to complain against the insurance providers employing them. In order to maintain the integrity of their profession and reduce the number of administrative claims, the Peer Review physicians would necessarily have to exert pressure on insurance providers to amend policy language to conform with the recognized and accepted medical practices utilizing APA guidelines.

Therefore, a recommended course of action could be:

1. Obtain the complete ruling and peer physician determination letter;

2. Review the determination letter to ascertain whether the Peer Review physician utilized APA Guidelines, the standards set forth in the DSM-V or any other objective guidelines, other than the insurance policy language;

3. Assuming the determination letter does not so comply but instead, is focused on requirements under the insurance policy, then demand from the insurance company, the identity, business address and credentials of the Peer Review physician;

4. Contact the State Board of Medical Examiners in the state where the Peer Review physician practices;

5. Most State Boards have complaint documents on line. Download the complaint form, review, complete the documents in a meticulous manner, attach all documents and evidence you have which implicate the Peer Review physician;

6. If possible, contact an attorney and have him/her review the documents;

7. File the complaint documents;

8. Advise the insurance provider you have instituted a complaint against the Peer Review physician and demand his/her recusal from any further proceedings;

9. Prepare your reply to the expected response from the Peer Review physician.  The Peer Review physician and his attorney may attack you or your loved ones. That is the nature of the adversary system;

10.Be prepared to give testimony if called upon by the Board to give further information.

11. Continue to seek faith and strength from your support system and keep fighting for your loved one.

This process may seem laborious. In some ways, it may be. But, you are fighting for the life of your loved one. You are fighting an inherently flawed system. And you are not fighting alone.

Your voice is growing in volume and intensity. Stay the course.