Negotiation, Mediation, Limitations
The biggest problems encountered in the negotiating process arise when one or both sides are poorly-prepared, hold an untenable position, or are unwilling to compromise even in a situation that cries out for it.
If you have followed the steps outlined above, these problems should be minimized. The negotiating process is greatly enhanced when both sides are knowledgeable and open-minded. In such situations the negotiation process comes down to five important principles.
- Advocate your position without being arrogant or obnoxious about it.
- Listen carefully to the other side’s perspective and try to understand where it is coming from.
- Try hard to bring a sense of humor (dark though it may be) to the table.
- Be firm but reasonable.
If, in cases where the amount in controversy is substantial, you are unable to resolve the claim directly with your company, you should then consider contacting an outside mediator. You can do this whether your policy has an ADR provision in it or not.
Mediation is a process whereby an independent third party, chosen by the agreement of both sides and experienced (in this case in insurance matters), steps in and tries to facilitate a resolution of the disagreement. Mediation, unlike certain types of arbitration, is not binding. No decisions are made by the mediator. Instead the mediator simply tries to bring the two opposing sides together in a joint effort to avoid litigation.
There are professional mediators available through organizations such as The Judicial Arbitration and Mediation Services (JAMS), and other organizations which promote mediation services.
Be sure your mediator is objective and does not have a built-in tendency to favor one side or the other.
Insurers are keenly aware of the cost of prolonged internal claims processing and ADR options. For that reason, the company might be willing to have an experienced third party attempt to mediate a resolution to the impasse. This is so even if your health policy contains an ADR provision. Your provider would far prefer an inexpensive and non-binding mediation process, to the time-consuming, more formal expense of binding arbitration. The provider can assign a less highly-skilled claims employee to the mediation process than would be required for formalized binding arbitration. Although it may often seem hopeless, a good mediator armed with experienced, non-threatening, persuasive skills, can often bring even the most headstrong parties together.
Complaints to Government Agencies
Most states have handed over jurisdiction for patient healthcare complaints to specific government agencies, such as the state department of insurance, the state department of corporations or the state department of managed healthcare.
If you have a grievance against an HMO, PPO or other health plan your state department of insurance would be a good place to start. They can refer you to any other agency with jurisdiction over your particular situation.
Statutes of Limitations
Note carefully that there are provisions under the laws of every state that place absolute restrictions on the length of time a person has to file a civil suit for damages. These laws are called statutes of limitations. The time limits imposed depend on the legal theories involved. For example, the statute of limitations for a breach of contract case may be different from the statute of limitations for misrepresentation or fraud causes of action. You need to consult with the laws of your state on this.
In addition, there are often limitation provisions in the insurance contracts themselves. Many policies impose such contractual restrictions on how long an insured has, following a claims denial, to file a claim or suit against the company. This is known as a contractual statute of limitations. If your agreement or contract has such a provision and you do not file a lawsuit within the time period set forth, you may lose all of your rights to recover anything on your claim – regardless of how valid it might be.
You must take these provisions very seriously. They are usually strictly enforced.
When to Seek Legal Counsel
The first thing you should do is obtain a free consultation with a lawyer experienced in insurance law.
If all else fails, you either throw in the towel, or sue. If your case is a substantial one, and is neither ERISA Preempted, nor bound by a legally valid binding arbitration agreement, and if your state permits residents to file suits against insurers or HMOs in “bad faith” cases, you can do so.