Friday, February 11, 2000
Insurer deaf to ear device
It won't pay; family sues
BY BEN L. KAUFMAN
The Cincinnati Enquirer
A frustrated couple's battle to restore their deaf daughter's hearing landed in federal court in Cincinnati on Thursday.
Mark and Angie King sued their health insurer, Benicorp Insurance Corp. of Indianapolis, because it refused to reimburse them more than $50,000 for young Erica's electronic cochlear implant.
Benicorp spokeswoman Sue Bahr did not return telephone calls Thursday.
Even after the Ohio Department of Insurance said the implant was covered by the Kings' policy, Benicorp refused to pay.
“They told everybody to stuff it,” the couple's Cincinnati lawyer, Louis F. Gilligan, said.
Mrs. King was unwilling to let it rest because hearing aids no longer sufficed and Erica's speech was faltering.
“That upsets me and that angers me and I want to do something about it,” she said in an interview.
The Kings' suit says Benicorp violated Erica's rights under the Americans with Disabilities Act and the Employee Retirement Income Security Act, which protects rights under health plans.
If U.S. District Judge Sandra S. Beckwith agrees, the Kings' complaint will become a class action involving every rejected but eligible applicant insured by Benicorp.
Mr. Gilligan said children on Medicaid and children of the affluent generally can get cochlear implants, but others risk rejection by private insurers.
That's the reason for the class action and the family's hope that a victory would change industry and public policy, Mrs. King said.
“I'm outraged that a kid can't hear and needs to have a cochlear implant that his parents can't provide,” she said. “Here's an opportunity for deaf people to overcome their disabilities. People need to be given the opportunity.”
The federal Food & Drug Administration puts cochlear implants in the same category as electronic heart pacemakers as life-saving devices, Mr. Gilligan said.
At ChoiceCare/Humana, pediatrician Michael Vossmeyer said his company has covered every request for a cochlear implant in his nine years as associate medical director because every patient met guidelines formulated by the National Institutes of Health and Medicare.
Joe Bobbey at Anthem Blue Cross & Blue Shield said his company also covers cochlear implants that meet federal guidelines.
However, Dr. Vossmeyer and Mr. Bobbey said they could not say whether the insurance industry generally reimbursed cochlear implants.
Mr. Gilligan and colleague Daniel J. Donnellon said Erica King met those guidelines.
They are representing the Kings pro bono, in part because the Kings connected with Mr. Donnellon, knowing his daughter Kelly's hearing was restored by a cochlear implant.
Mark and Angie King, both 33, live in Celina, Ohio.
They began to worry about 4-year-old Erica's hearing when she was 8 months old. On their way to the pediatrician, Mrs. King heard a “Focus on the Family” radio broadcast about a family with seven deaf children, five of whom had cochlear implants.
“I'm fighting back the tears,” she recalled of that drive. “I hear about this device that helps children.”
Initially, amplification by hearing aids helped Erica, but when she was 3, her hearing worsened and “her speech began to deteriorate,” Mrs. King said.
Mrs. King sought Benicorp approval for a cochlear implant, which restores much of the person's hearing by stimulating the auditory nerve.
She said Benicorp based its first rejection on deafness as a pre-existing condition, then as an unlisted surgery and an ineligible prosthesis.
(Penile implants also are unlisted surgeries, Mr. Gilligan noted, but Benicorp pays when men request them.)
Mr. King, a general contractor whose small firm bought its health insurance from Benicorp, and Mrs. King went into debt for $53,000 for the surgery last May.
Erica was 39 months when her left ear implant was completed by a surgeon in Indianapolis. No right ear implant is scheduled, Mrs. King said, because its potential 10% improvement isn't “cost-effective.”
Erica's speech has recovered and equals that of a child at least a year older, Mrs. King said.
“She can blow bubbles in her milk at the table and hear the bubbles.”
A nudge from Terri Y. Young, a consumer service analyst for the Ohio Department of Insurance, hasn't helped, the Kings and their attorneys said.
Ms. Young wrote to Benicorp on Dec. 17, saying, “the services recommended to Erica are eligible for payment under the certificate provided to Mr. and Mrs. King. Therefore, the company should provide this office with evidence that the claims have been processed in accordance with the Kings' contract.”
A Jan. 24 letter closed the case, repeating the department's conclusion that the implant was covered by Mr. King's policy but stopping short of ordering payment.
The couple's second child, Jaime, was born deaf in September 1998. So far, Mrs. King said, “she's doing very well” with hearing aids.
Whether they have more children is an unresolved question, given the demands Erica and Jaime put on the couple and the likelihood that they both carry a recessive gene which raises the chances of further children also being deaf.
Mrs. King is president of HEAR US, the advocacy arm of the New York-based Deafness Research Foundation that took up her cause and introduced her to the Cincinnati lawyers.
When Mark King finishes his day's work as a contractor, he takes over the girls and house and Mrs. King returns to her home-based office to promote hearing tests for all infants and appropriate care for every child.
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