UPDATE - Oct. 13, 2021 - A favorable decision in this case - awarding coverage and finding that the insurance company did not act reasonably and with sound medical judgment - has been published on the New York State Department of Financial Services website. READ MORE
After insurance company denies procedure clinic, students help with appeal
When Leanne Bossert needed help the Health Law Clinic within the Justice Center at Albany Law School rose to the occasion.
Bossert battled through a brain tumor in 2018, but emergency surgery left her legally blind in her left eye. Last October, a routine MRI showed that two more tumors were growing near her left optic nerve, pituitary gland and carotid artery. It is the same region of her brain where the first tumor was. With concerns over her remaining vision and brain function, doctors recommended proton radiation therapy. However, in December, her health insurance company, Excellus BlueCross BlueShield, denied her coverage of the therapy and instead recommended an alternative photon radiation treatment.
With costs of the first surgery, the new diagnosis and insurance decision, and the hope to still get the proton radiation therapy, Bossert and her family tried to raise funds for treatments through a GoFundMe campaign and a second mortgage on their Canandaigua home near Rochester.
They tried to raise awareness of the situation through the media.
Finally, they turned to Just Cause – a Monroe County (Rochester)-based non-profit that provides skilled volunteer attorneys to resolve serious legal problems. As a May 6 appeal deadline loomed under New York’s external appeal regulatory system, Just Cause knew there was help available through Albany Law School’s Health Law Clinic since the clinic has had success in challenging insurance denials in the past. The call went out and Victoria Gambrel ‘22, Elizabeth Harmon ’22 and Eileen Tchao ’21, paralegal Samantha Leather, and Clinic Director and Professor Joe Connors answered in mid-April.
“With only two weeks left in the academic semester, our student team rose to the challenge of representing Ms. Bossert under tight appellate deadlines. In a sense, this became a chance to apply skills they learned throughout the semester to help a client in desperate need of legal assistance,” Connors said.
Gambrel became the team’s clinical history expert as she and Bossert secured medical records and highlighted the extensive treatments, including surgery, that she and her physicians had already taken. Spread over several medical providers, the records needed to be accurate, summarized for a non-medical audience, and persuasive.
In the meantime, Harmon and Tchao conducted extensive medical journal research about the current standards and benefits of proton radiation therapy. They found several studies that demonstrated proton radiation therapy’s superior benefits compared to photon radiation therapy in treating head tumors without excess radiation exposure to adjacent healthy tissue and organs. They also noted that, according to 2017 Guidelines from the American Society for Radiation Oncology (ASTRO), proton radiation therapy is not a new therapy for treatment of ocular tumors, a counterpoint to what the insurer cited in the denial.
Finally, the legal team identified several similar cases in which the state has overturned denials of proton radiation therapy on the grounds that its medical appropriateness is well supported and minimizes the risks of collateral radiation damage which is in patients’ best medical interests.
“It was very inspiring to be able to connect with clients who are so resilient in spite of such a terrifying diagnosis,” Tchao said. “Ms. Bossert allowed us to participate, hands on, in the legal process, and to advocate for her rights and for the treatment she needs. Ms. Bossert is a great advocate for herself, and inspires me to continue to rise up for clients that need help.”
“The skills I acquired working in a pressured environment – absorbing new information, researching a novel topic for a client, and applying facts for her representation – are invaluable,” Tchao added. “I hope to see a favorable decision and treatment for her soon.”
“The Health Law Clinic showed me that my legal education can help people in significant ways, by giving me the opportunity to work on actual legal cases,” Harmon said. “I was so impressed to see the Health Law Clinic offer to help with no hesitation, and I was proud to belong to an organization that is so dedicated to helping others. The hands-on experience that I received at the Clinic reminded me of why I want to be a lawyer, made me feel that I was making a difference in the community, and showed me how all of the knowledge about the legal system that I have been learning at Albany Law can be used to help others. Participating in the Clinic has been the highlight of my time at Albany Law so far.”
Beyond the legal work, Leather coordinated the clinic team’s efforts with a health care team of Dr. Helen Shih and Ms. Brittany Wynne from Massachusetts General Hospital and Dr. Serah Choi, M.D. an Assistant Professor and Radiation Oncologist at University Hospitals Cleveland Medical Center. In the detailed opinions of Shih and Choi – supported with comparative contrast studies – proton radiation is the superior treatment for Bossert and it would treat her tumors without exposing her brain to unnecessary radiation.
The appeal is currently under independent external review by the Island Peer Review Organization which is a non-profit organization in Hyde Park, N.Y. that offers clinical performance improvement, health care program monitoring, beneficiary protection, and clinical consultation services.
“Our quick and efficient advocacy was both collaborative and client-centered,” Connors said. “Ms. Bossert led the team though. She is fighting for her life.”
A decision on the appeal is expected in June.