I'm watching a video, recorded February 1997 for training purposes by Aetna U.S. Healthcare, one of the nation's largest health insurance companies. It should scare everyone who has company-paid health or disability insurance. You're at more risk than you think of not getting the care you need.
Under current law, most patients in most states cannot sue their company plans for damages. Too bad if you die because your plan delayed or denied treatment. Too bad if you're refused disability benefits you should have had.
The plan isn't liable. It's protected from damage and malpractice suits by the federal ERISA law (the Employer Retirement Income Security Act of 1974).
ERISA wasn't aimed at claims against health and disability plans. The shield against lawsuits was an unforeseen consequence of other language in the law. But the insurers love it and aren't about to give it up.
Some members of Congress tried to break the shield last year. Opponents trounced them by demonizing "greedy" lawyers and threatening that lawsuits would render health care unaffordable.
Having the right to sue for damages might indeed raise health insurance premiums. The Congressional Budget Office believes it could add 1.2 percent to the cost of the average employer-sponsored plan.
But what's the cost of not being able to sue?
You'll find some answers on the Aetna videotape. A panel of lawyers addresses a roomful of analysts whose job it is to evaluate long-term disability claims. If the analyst thinks you're not sick enough, he or she can recommend that you not be paid.
Right off the bat, Aetna's lawyers explain that there are two classes of claims -- ERISA (covering most employee plans) and non-ERISA. Non-ERISA patients still have the right to sue.
The non-ERISA group includes people who buy their own health insurance because they don't have a company plan, employees insured through a church or government entity, and employees in Texas, thanks to a recent state law (that Aetna is challenging).
Two federal circuit courts have allowed all employees to sue in nine states: Delaware, New Jersey, Pennsylvania, Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.
Because of this risk, Aetna investigates non-ERISA cases with extra care. Says attorney Art Palmunen on the tape: "As a practical matter, you really may have to do more on a non-ERISA plan . . "
Says attorney Jeff Blumenthal: "We have an obligation, particularly in a non-ERISA context, to do what's called a reasonable investigation" -- meaning that Aetna has to gather sufficient evidence to judge the claim. If it hasn't done so, and wrongfully rejects a non-ERISA claim, it could lose in court.
ERISA claims are another story. The tape shows that, instead of gathering evidence itself, Aetna tells the sick person to handle it. If he or she doesn't present exactly the proof Aetna wants, or presents it after the final deadline for claims, too bad.
The company may bend the rules in "extenuating circumstances," Blumenthal says. Still, these tough practices are laid out only for ERISA claims. The insurer has little to lose. If you're wrongfully rejected, you can't sue for damages in court.
On the video, some of the claims analysts -- the people who actually work the cases -- complain that Aetna hasn't been taking enough care.
For example, here's "Barry," a 24-year Aetna veteran and 12-year disability claims analyst: Aetna, he says, used to investigate practically all of its cases before deciding whether to pay. Now, it investigates only a tiny percentage. The analysts' case loads are four times those of other insurers, Barry says. "The question is having the time to go out and investigate and work up that file the way it's supposed to be."
This video was used in a court case in Anchorage, Alaska. At Aetna's request, the judge sealed the tape. It was unsealed with the help of U.S. Rep. Lloyd Doggett, D-Texas.
"This is the smoking gun that shows insurers make denials based on money, not strictly medical determinations," says Jamie Court, director of Consumers for Quality Care in Santa Monica, Calif.
Aetna spokesperson Joyce Oberdorf would initially answer questions only in writing. She wrote that the interpretation of the videotape is inaccurate, but because of the misperception, Aetna would change its system for reviewing disability claims. "It is Aetna's policy to require disability claims analysts to give a full and fair review to all claims -- whether governed by ERISA or state law," Oberdorf wrote.
Later, she did say that changes occurred last week, but she isn't sure how they'll affect claims.
Bottom line, no big-picture change. As long as Congress prevents you from suing for damages, insurers have an incentive to turn you down.