JJ Conway
J.J. Conway Law
J.J. Conway Law
In every ERISA appeal our firm files challenging a denied healthcare or disability claim, we include a footnote that tells the insurer we will provide it with a copy of the book “Delay, Deny, Defend” by Jay M. Feinman as a part of its appeal review. No insurer has ever taken us up on the offer.
In his 2010 book, Feinman, a Rutgers University law professor, dissects a report by McKinsey and Co. recommending that certain insurers engage in aggressive claims management practices and run out the clock on aggrieved policyholders through delay tactics and litigation. There was nothing novel about McKinsey’s recommendation. Auto companies and big box retailers have tried it before.
The rationale is that a company may have to sustain a few big jury verdicts but, overall, if it denies liability on everything, its bottom line will improve. Even accounting for the extra-legal fees paid to lawyers to fight the claims through the courts and never settle, McKinsey postulated that the companies would come out on top. Although the McKinsey report was originally written for an auto insurance company, its recommendations are now commonly referenced in all insurance disputes, including healthcare insurance claims.
An eerie similarity on the title of Feinman’s book has emerged again in the killing of Brian Thompson, the CEO of UnitedHealthcare, as he was walking into an investor meeting in midtown Manhattan on December 4, 2024. The words “deny, defend, and depose” were inscribed on the shell casings found at the crime scene. Once that fact was reported in the news media, a cultural firestorm followed.
Online and elsewhere, any voices expressing compassion and sympathy for the young husband and father who grew up on a farm in Iowa were entirely drowned out by those cheering on his assailant as a modern-day folk hero. Online, many wrote about Thompson as if his life had no value.
As callous as those comments were, they were remarkable in demonstrating just how many Americans are well versed in the language of healthcare denials. The memes and online comments routinely included terms like “preauthorization” or “medical necessity” or “in-network and out-of-network” in quips and other forms of dark humor.
The comments made in response to Thompson’s death reflect the fact that healthcare insurance is generally regarded as a bad product by consumers. Most people understand and accept the basics of health insurance. They don’t get upset over reasonable copays for doctor visits and prescription drugs. What angers – and angers them to their core – is when a denied healthcare claim threatens their overall financial security. If a denied healthcare claim costs them two or three years of their annual salary or wages or their retirement savings, they are demoralized. Then, they are angry. Even if the claim is later approved through an appeal or in litigation, many never fully recover from the initial emotional gut punch of staring at an Explanation of Benefits (EOB) form, which reads “your responsibility” is tens of thousands of dollars.
Even in my own practice just in this past year, a sampling of the frustrations experienced by my clients include:
• A healthcare claim for a seriously mentally ill minor who was repeatedly banging his face into a medical transport vehicle and threatening suicide was denied intensive psychological treatment because he was not experiencing “hallucinations”; and leaving the family with $200,000 in unpaid claims.
• An insurance company required a family to pursue multiple levels of appeal challenging a denied healthcare claim on medical necessity grounds; then, after approving them as medically necessary, rescinded the approval claiming the provider was out of network and then ceasing all communication with the family, leaving them with $100,000 in unpaid claims.
• An autistic adolescent whose hygienic practices were causing him to risk illness or injury and was prescribed therapy to address these concerns had his claims denied on medically necessary grounds, leaving a single mother with more than $100,000 in healthcare expenses.
And the list goes on and on and on.
Health insurance companies are not regarded as “good” companies in the way that, say, an Apple or Costco is regarded positively by the public. They are regarded as fundamentally dishonest. At present, there is no counternarrative. No one is coming forward saying, “My health insurer really helped me through a difficult time.”
After a week of a tense search, a suspect was apprehended in the killing of Thompson. Initial reports indicate the suspect is from a wealthy family, and he was educated in an Ivy League school. He is reported to be highly intelligent and was the valedictorian of his high school class. Further reports also indicate that he may have been experiencing the recent onset of mental illness as he cutoff contact with family and friends.
Given this profile, it is a little ironic that United Healthcare has recently been in the news for fighting aggressively through its legal team to thwart the claims of a class action of approximately 70,000 mental healthcare patients who were seeking intensive treatment.
One of the arguments asserted in the Ninth Circuit case of Wit v. United Behavioral Health, was that necessary treatment was being denied to people whose conditions could pose a harm to others. Lawyers for the class and their amici maintained that a combination of mental illness and easy access to firearms posed societal dangers without adequate treatment.
For its part, United Health hired the most powerful law firms and politically connected lawyers to overturn the decision and vacate the order in the Ninth Circuit. United was successful, and the case of Wit v. United, once hailed as the “Brown v. Board of Education for those with mental illness,” was gutted and few expect to see any relief. United Health may not see a connection between making access to insured mental healthcare benefits more difficult to attain and the death of its corporate leader, but others certainly will.
In the wake of Thompson’s death, United Health put up barricades around its corporate offices and told certain of its employees to work from home. These are all sensible security measures and may help quell the anxiety of its employees as it navigates this current crisis. A more appropriate response may be to undertake a clear-eyed examination of why, as a company, United is so despised by its policyholders and the public in general and commit to a course correction that seeks to offer a product that has as its primary purpose protecting the health of its customer. This would be a better way to honor its fallen leader.
—————
John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak, Michigan.
In his 2010 book, Feinman, a Rutgers University law professor, dissects a report by McKinsey and Co. recommending that certain insurers engage in aggressive claims management practices and run out the clock on aggrieved policyholders through delay tactics and litigation. There was nothing novel about McKinsey’s recommendation. Auto companies and big box retailers have tried it before.
The rationale is that a company may have to sustain a few big jury verdicts but, overall, if it denies liability on everything, its bottom line will improve. Even accounting for the extra-legal fees paid to lawyers to fight the claims through the courts and never settle, McKinsey postulated that the companies would come out on top. Although the McKinsey report was originally written for an auto insurance company, its recommendations are now commonly referenced in all insurance disputes, including healthcare insurance claims.
An eerie similarity on the title of Feinman’s book has emerged again in the killing of Brian Thompson, the CEO of UnitedHealthcare, as he was walking into an investor meeting in midtown Manhattan on December 4, 2024. The words “deny, defend, and depose” were inscribed on the shell casings found at the crime scene. Once that fact was reported in the news media, a cultural firestorm followed.
Online and elsewhere, any voices expressing compassion and sympathy for the young husband and father who grew up on a farm in Iowa were entirely drowned out by those cheering on his assailant as a modern-day folk hero. Online, many wrote about Thompson as if his life had no value.
As callous as those comments were, they were remarkable in demonstrating just how many Americans are well versed in the language of healthcare denials. The memes and online comments routinely included terms like “preauthorization” or “medical necessity” or “in-network and out-of-network” in quips and other forms of dark humor.
The comments made in response to Thompson’s death reflect the fact that healthcare insurance is generally regarded as a bad product by consumers. Most people understand and accept the basics of health insurance. They don’t get upset over reasonable copays for doctor visits and prescription drugs. What angers – and angers them to their core – is when a denied healthcare claim threatens their overall financial security. If a denied healthcare claim costs them two or three years of their annual salary or wages or their retirement savings, they are demoralized. Then, they are angry. Even if the claim is later approved through an appeal or in litigation, many never fully recover from the initial emotional gut punch of staring at an Explanation of Benefits (EOB) form, which reads “your responsibility” is tens of thousands of dollars.
Even in my own practice just in this past year, a sampling of the frustrations experienced by my clients include:
• A healthcare claim for a seriously mentally ill minor who was repeatedly banging his face into a medical transport vehicle and threatening suicide was denied intensive psychological treatment because he was not experiencing “hallucinations”; and leaving the family with $200,000 in unpaid claims.
• An insurance company required a family to pursue multiple levels of appeal challenging a denied healthcare claim on medical necessity grounds; then, after approving them as medically necessary, rescinded the approval claiming the provider was out of network and then ceasing all communication with the family, leaving them with $100,000 in unpaid claims.
• An autistic adolescent whose hygienic practices were causing him to risk illness or injury and was prescribed therapy to address these concerns had his claims denied on medically necessary grounds, leaving a single mother with more than $100,000 in healthcare expenses.
And the list goes on and on and on.
Health insurance companies are not regarded as “good” companies in the way that, say, an Apple or Costco is regarded positively by the public. They are regarded as fundamentally dishonest. At present, there is no counternarrative. No one is coming forward saying, “My health insurer really helped me through a difficult time.”
After a week of a tense search, a suspect was apprehended in the killing of Thompson. Initial reports indicate the suspect is from a wealthy family, and he was educated in an Ivy League school. He is reported to be highly intelligent and was the valedictorian of his high school class. Further reports also indicate that he may have been experiencing the recent onset of mental illness as he cutoff contact with family and friends.
Given this profile, it is a little ironic that United Healthcare has recently been in the news for fighting aggressively through its legal team to thwart the claims of a class action of approximately 70,000 mental healthcare patients who were seeking intensive treatment.
One of the arguments asserted in the Ninth Circuit case of Wit v. United Behavioral Health, was that necessary treatment was being denied to people whose conditions could pose a harm to others. Lawyers for the class and their amici maintained that a combination of mental illness and easy access to firearms posed societal dangers without adequate treatment.
For its part, United Health hired the most powerful law firms and politically connected lawyers to overturn the decision and vacate the order in the Ninth Circuit. United was successful, and the case of Wit v. United, once hailed as the “Brown v. Board of Education for those with mental illness,” was gutted and few expect to see any relief. United Health may not see a connection between making access to insured mental healthcare benefits more difficult to attain and the death of its corporate leader, but others certainly will.
In the wake of Thompson’s death, United Health put up barricades around its corporate offices and told certain of its employees to work from home. These are all sensible security measures and may help quell the anxiety of its employees as it navigates this current crisis. A more appropriate response may be to undertake a clear-eyed examination of why, as a company, United is so despised by its policyholders and the public in general and commit to a course correction that seeks to offer a product that has as its primary purpose protecting the health of its customer. This would be a better way to honor its fallen leader.
—————
John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak, Michigan.
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