Christmas morning’s News & Observer reported that Blue Cross and Blue Shield of North Carolina is “implementing” tougher restrictions on paying claims for spinal fusion surgery.

What is wrong with this picture?

Insurance companies issue insurance policies also known as contracts. Under the terms of these insurance contracts the insured (the policy holder) and the insurance company agree that the insurance company will pay for healthcare services in return for the payment of a premium. Most of these policies contain a provision which limit the payment to those medical expenses which are “reasonable and necessary”.

The issue as to what constitutes a “reasonable and necessary” charge for a medical procedure or surgery is a medical question, to be decided by medical doctors and not by insurance companies.

So how is it that an insurance company can unilaterally change the terms of an insurance contract and now announce to the world that it will no longer pay for spinal fusion surgery in certain circumstances?

Since when did one party to a contract have the authority to change the terms of the contact in midstream?

The article points out that a coalition of surgeons have urged the insurance company to reconsider its policy. The surgeons point out that this unilateral action by Blue Cross and Blue Shield of North Carolina will be the first in a progression of ever more restrictive policies that will virtually handcuff the way surgeons treat their patients.

The surgeons requested a meeting with the insurance company to discuss this very important issue but the insurance company declined to meet with the surgeons.

Both the insurance company and the coalition of surgeons are missing a very important point. It is not the insurance company who decides whether medical procedures are necessary, it is the doctors. The doctor’s decision will be enforced in a court of law should an individual patient who has been denied surgery decide to ask the court to intervene.

Patients who pay for insurance policies or whose employer pays for insurance policies should not have to be forced to hire a lawyer and go to court to obtain the benefits which the policy provides. However, the high-handed approach by North Carolina Blue Cross and Blue Shield will make it necessary for patients to go to court to enforce their rights.

Under basic contract law, one party to a contract, in this case, Blue Cross and Blue Shield of North Carolina cannot unilaterally change the terms of the contract. If Blue Cross and Blue Shield no longer wants to insure North Carolina citizens against the cost of spinal fusion surgery, it can certainly put that in their future contracts. However, until it does, Blue Cross and Blue Shield is obligated to comply with the terms of its existing contracts. If in fact spinal fusion is not necessary in a specific case and if the costs for the same are not reasonable the insurance companies should not have to pay for that procedure. However, to unilaterally announce that across the board the insurance company will stop paying for any spinal fusions, as they have in the case of spinal fusions for patients with degenerative disk disease, is a flagrant violation of the law and should not be tolerated.

Unfortunately, many, if not most of today’s health insurance policies are provided by employers and therefore fall  under the protection of a federal law known as the Employer’s Retirement Income Security Act of 1974, commonly known as ERISA. Under this law, the insured have much less protection than they would have under a health insurance policy governed by state law. Nevertheless, even under the insurance company friendly ERISA law, the insured does have certain rights which should be protected by the federal court.

Any patient insured by North Carolina Blue Cross and Blue Shield who has had difficulty getting the insurance company to approve surgery for a spinal fusion should consult an insurance dispute attorney to determine their rights. So long as the patient’s surgeons support them in their effort to obtain spinal fusion surgery when necessary and appropriate, the patient will be able to use the power of the law to force the insurance company to provide this benefit.