Wisconsin Supreme Court Orders HMO to

In Summers v. Touchpoint Healthplan, Inc., Case Number 2005-AP 2643 (Wisc. May 28, 2008), the Wisconsin Supreme Court ordered Touchpoint to provide coverage for an "experimental" high dose radiation and stem cell recovery procedure for a child suffering from a rare brain tumor. Surgeons removed the tumor and the child’s doctors recommended the high dose radiation treatment with stem cell recovery as the best of the follow-up options to assure full recovery. The problem was that the procedure was "experimental" as defined in the policy and was excluded from coverage under the policy. Included in the plan’s definition of "experimental" was any procedure that was the "subject of any ongoing Phase I or Phase II clinical trial."

Doctors enrolled the Summers’ child, Parker, in a Phase II, clinical trial, a standard process where this procedure is utilized. They later disenrolled Parker in the study in order to circumvent the "experimental" definition.

An external review agency which looked at the Touchpoint denial agreed that the procedure was experimental but recommended that the Touchpoint medical director approve the coverage anyway.

Although the proposed treatment would fall under the policy language as experimental/investigational, I would recommend approving the proposed therapy, as it would be one of the standard approaches for three-year old children with this disorder . . . . There is no alternative with superior or proven results and is therefore medically necessary.

In other words, the procedure is not "experimental" in the practical sense, but only as defined under the specific policy language. Enrollment of patients with this disease in Phase II clinical studies is the standard of care for the disorder. The definition, then, is perhaps faulty in using the Phase I and Phase II standards to define "experimental." But, it is the definition in the policy and under federal ERISA law, an insured may not pay for a procedure that is excluded from a healthcare benefits policy. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989); Egelhoff v. Egelhoff, 532 U.S. 141 (2001). The dissent filed in the case pointed out that the majority were contravening federal law by using a number of legalistic feints and tortured conclusions in an attempt to circumvent the obligation to enforce the express terms of the policy. The dissenter’s objection seems to be well founded. The Court, may have ignored the admonition of the poet, T.S. Eliot, that "the last temptation is the greatest treason, to do the right thing for the wrong reason."

But what if they were to do the right thing for the right reason? What about shifting the focus on the reasonable expectations of a family that purchases health care insurance?? Would they understand that the arcane language of the exclusion for an experimental procedure might result in the absence of coverage for a procedure determined to be the standard of care in the treatment? If the policy says "black is white," by our definition, should you be able to sell the policy to those who reasonably perceive white as white? If the terms of healthcare insurance policies must be enforced as written, they should be vetted to avoid the necessity for courts to make bad law to arrive at just results.