STATE OF MICHIGAN DEPARTMENT OF ENERGY, LABOR & ECONOMIC GROWTH OFFICE OF FINANCIAL AND INSURANCE REGULATION

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1 STATE OF MICHIGAN DEPARTMENT OF ENERGY, LABOR & ECONOMIC GROWTH OFFICE OF FINANCIAL AND INSURANCE REGULATION Before the Commissioner of Financial and Insurance Regulation In the matter of XXXXX Petitioner File No v Standard Security Insurance Company Respondent / Issued and entered this 1 st day of March 2010 by Ken Ross Commissioner ORDER I PROCEDURAL BACKGROUND On November 6, 2009, XXXXX (Petitioner) filed a request for external review with the Commissioner of Financial and Insurance Regulation under the Patient s Right to Independent Review Act, MCL et seq. After a preliminary review of the material submitted, the Commissioner accepted the request on November 13, The Commissioner notified Standard Security Insurance Company (Standard Security) of the external review and requested the information used in making its adverse determination. The Office of Financial and Insurance Regulation received this information on November 16, The issue in this external review can be decided by a contractual analysis. The Commissioner reviews contractual issues under MCL (7). This matter does not require a medical opinion from an independent review organization.

2 Page 2 II FACTUAL BACKGROUND Beginning on January 1, 2009, the Petitioner became a covered individual under a medical insurance policy issued by Standard Security Life Insurance Company of New York. The policy is titled Group Short Term Medical Expense Insurance. On May 18, 2009, she had surgical removal of her gall bladder (laparoscopic cholecystectomy). The charges totaled $5, Standard Security denied coverage based on a policy limitation which excluded coverage for certain medical procedures for six months after the effective date of the policy. The Petitioner appealed the denial of coverage through Standard Security s internal grievance process and received a final adverse determination dated December 30, III ISSUE Was Standard Security correct in denying coverage for the Petitioner s surgery and related services provided on May 18, 2009? Petitioner s Argument IV ANALYSIS The Petitioner argues that Standard Security should provide coverage for her surgery because gall bladder surgery is a covered benefit according to her policy. The policy includes: B. COVERED EXPENSES FOR TREATMENT, SERVICES, OR SUPPLIES * * * 15. Gallbladder Surgery includes cholecystectomy and any type of surgical procedure to diagnose or treat a disorder of the gallbladder, including any condition related to or caused by a gallstone(s) in the bile duct. Surgery includes the pre-operative and post-operative visits, testing, the services of the surgeon, assistance [sic] surgeon, anesthesiologist, radiologist, pathologist, the Hospital or outpatient facility charges, and any other charges related to the surgery or complications there from, not to exceed the maximum benefit shown in the Schedule.

3 Page 3 Petitioner also says the hospital administration called Standard Security who advised the hospital billing department that gall bladder surgery was a covered event and they should bill her insurance. However, when the surgery, anesthesia, hospital and related services were billed, all services were denied. She later followed up with her insurance agent who sold her the policy who explained that the services should have been covered since they were not treatment of a pre-existing condition. The Petitioner argues that gall bladder surgery is a covered benefit according to her policy. She therefore wants Standard Security to provide coverage according to the terms of her policy. Standard Security Insurance Company s Argument In its final adverse determination, Standard Security said: [O]ur office maintains a Customer Service Log of benefits descriptions. Callers to our Customer Service Department are advised that we can provide a brief summary of plan benefits only, not a guarantee of payment. Callers are also advised that all claims will be subject to all provisions, limitations, exclusions of the plan, and the insured s compliance with the terms and conditions of the plan. We have no record of the hospital having called our office for a benefits description for your gall bladder surgery. Our Customer Service Log does, however, reflect that you called our office on 4/16/09 and were specifically advised that your policy has a six-month waiting period for gallbladder surgery. Referring to the policy itself, Respondent quoted the following provision: We will not pay for loss, expense caused by, or resulting from any of the following: * * * 49. Expenses during the first 6-months after the Effective Date of coverage for a Covered Person for a... (h) cholecystectomy; (subject to all other coverage provisions, including but not limited to, the Pre-existing Conditions exclusion).... Standard Security believes it correctly processed the claim under the terms of the policy. Commissioner s Analysis The Standard Security policy provides that certain surgical services, including a cholecystectomy which the Petitioner received, are not covered for six months from the policy s

4 Page 4 effective date. Because Petitioner s surgery occurred during that time, coverage was denied. The exclusion notwithstanding, the policy explicitly states that coverage, up to a maximum benefit of $2,500.00, is provided for gallbladder surgery including cholecystectomy. The coverage provision and the exclusion are contradictory. One indicates that the surgical procedure is a covered benefit; the other excludes the surgery from coverage for the entire six-month term of the policy. Such contradictory provisions are not permitted in policies in this state. Section 2212a(1) of the Michigan Insurance Code provides: An insurer that delivers, issues for delivery, or renews in this state an expense-incurred hospital, medical, or surgical policy or certificate issued under chapter 34 or 36 shall provide a written form in plain English to insureds upon enrollment that describes the terms and conditions of the insurer's policies and certificates. Similar provisions appear in section 2236(5) and 2242(2) of the Insurance Code. Contradictory policy provisions do not describe the actual coverage available under a policy. They require that, for one provision to be honored, another provision must be ignored. An insurance contract with contradictory provisions is an ambiguous contract. See Farm Bureau Mut Ins Co v Nikkel, 460 Mich 558 (1999). It is a long-established principle of insurance law that if an insurance contract is ambiguous, it will be interpreted against the party that drafted the contract. See Universal Underwriters Ins Co v Kneeland, 464 Mich 491 (2001). These principles are also stated in Raska v Farm Bureau Mut Ins Co, 412 Mich 355 (1982): If a fair reading of the entire contract of insurance leads one to understand that there is coverage under particular circumstances and another fair reading of it leads one to understand there is no coverage under the same circumstances the contract is ambiguous and should be construed against its drafter and in favor of coverage. Given the contradictory nature of these policy provisions and the statutes and legal principles describe above, the Commissioner finds that the clause may not be used to deny coverage to Petitioner. The Commissioner finds that the surgery Petitioner requested is covered under the Petitioner s certificate.

5 Page 5 V ORDER The Commissioner reverses Standard Security Insurance Company s final adverse determination of December 30, Standard Security shall cover the Petitioner s surgery, subject to any applicable terms and conditions in the policy relating to deductibles, copayments, etc. Standard Security shall provide coverage within 60 days of the date of this Order, and shall, within seven days of providing coverage, furnish the Commissioner with proof it implemented this Order. If necessary to enforce this Order, the Petitioner may report any complaint about implementation to the Office of Financial and Insurance Regulation, Health Plans Division, at this toll-free number: (877) This is a final decision of an administrative agency. Under MCL , any person aggrieved by this Order may seek judicial review no later than sixty days from the date of this Order in the circuit court for the county where the covered person resides or in the circuit court of Ingham County. A copy of the petition for judicial review should be sent to the Commissioner of Financial and Insurance Regulation, Health Plans Division, Post Office Box 30220, Lansing, MI

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