This is why the bill does little to end rescission (excerpt)

[grahamhgreen]

‘‘SEC. 2712. PROHIBITION ON RESCISSIONS.

A group health plan and a health insurance issuer
offering group or individual health insurance coverage shall
not rescind ... except that this section shall not apply to a covered
individual who has performed an act or practice that constitutes fraud or makes an intentional misrepresentation of
material fact..."

So, if you failed to report the acne medication you took as a teen on your enrollment form - your insurance (that you've been paying into for years, but now you have cancer) is rescinded.

Don't like it? It will be you vs a team of corporate lawyers while your sick and dying - good luck.

NO SENATE BILL WITHOUT MEDICARE EXPANSION OR A PUBLIC OPTION.


BILL TEXT - http://dpc.senate.gov/dpcdoc-sen_health_care_bill.cfm

[Oregone]

1. I thought fraud was the entire excuse insurers use for recission?!?

Am I wrong on this?


Don't they investigate inconsistencies on the application with history and rescind if they can constitute fraud (intentional or otherwise)


What does that section change? Just rescission for shits and giggles? How often does that really happen anyway?

[grahamhgreen]

2. Exactly - they pretend to address rescission, but do not.

[MousePlayingDaffodil]

3. Well, if your acne medication is somehow the CAUSE of your cancer . . .

. . . then I might see how failing to disclose that you took it might constitute an "intentional misrepresentation of material fact."

But, otherwise, I think I'm missing your point.

[Oregone]

6. If the "fraud" reference includes negligent misrepresentation

Then any case of a mistake can nullify a policy even it is has no effect on the condition. Fraud is fraud.

"shall not apply to a covered individual who has performed an act or practice that constitutes fraud or makes an intentional misrepresentation of material fact"

Note the "or" there. Fraud, in all its forms (including negligent misrepresentation), may still be acceptable grounds for recission

I guess we will see this in practice. Some of these cases may end up in court (which doesn't help a sick person). If people cannot pursue damages, then they are shit-out-of-luck anyway.

[MousePlayingDaffodil]

13. I understand what you're driving at . . .

. . . but I don't think the "or" is the issue, in terms of statutory construction. If the term "fraud," as used here, were interpreted to include "negligent misrepresentation," then there would be no reason for the provision to make separate reference to an "intentional misrepresentation."

[grahamhgreen]

16. You'll be arguing this before a judge with a team of industry lawyers while you're dying of cancer.

So the rescission will have been effective.

Especially since you're argument is easily attacked.

OR, in this case means OR, not AND or, are you arguing that OR means AND?

[MousePlayingDaffodil]

18. As I said, the issue isn't "or" or "and" or anything of the sort.

It is a rather fundamental tenet of statutory construction that provisions should not be construed so as to render other provisions meaningless or redundant. To that end, if the term "fraud," as used in the provision in question, were construed to include mere "negligent misrepresentation," the effect would be to render meaningless the additional language that identifies "intentional mispresentation" as a separate grounds for rescission.

[grahamhgreen]

23. That is the fundamental issue. Let's look at what you're claiming in the context of the Constitution

Article 1 Section 9 states "No Bill of Attainder or ex post facto Law shall be passed."

These are two separate and meaningful provisions. This can not be construed to mean that in order for said law not to be passed it must meet both of these requirements that being that it is a bill of attainder AND ex post facto. It is either/or.

You'd lose your case (unless you died of cancer first!).

[MousePlayingDaffodil]

26. You just don't get it . . .

. . . the issue here is whether the term "fraud," as used in this legislation, would be construed to include unintentional "misrepresentation." Given that the provision goes on to make specific reference intentional "misrepresentation," fundamental concepts of statutory construction would preclude the term "fraud" from being considered to include unintentional misrepresentation, insofar as to conclude otherwise would mean that "fraud" embraced all forms of misrepresentation, "intentional" or not. And, in turn, if such were the case, the statute's separate reference to "intentional" misrepresentation would be rendered redundant, which is an interpretive no-no.

I'm sorry, but you're just wrong about this. And your example from the Constitution is simply beside the point. Believe me, I know that the use of the terms "or" and "and" result in different outcomes with respect to how a statute (or Constitutional provisions) are applied, and that the use of the term "or" means that satisfying either of two separate provisions would be sufficient. But, again, that isn't the point here at all.

[sabrina 1]

12. Why does it matter what causes cancer? If you are paying for

insurance, you are paying for the possibility that you might need treatment some day. Even scientists haven't agreed on the various causes of cancer.

Something or other is the cause of every illness. Now we are supposed to determine the cause before what you paid for can be used when you need it?

Using that logic, no one would ever be treated for anything. If you have the 'flu it's your own fault for being somewhere where you were exposed to it. If you are pregnant, why should anyone else have to pay for a selfish decision you made? As Wendall Potter revealed, they hire people to come up these excuses and I guess they didn't waste their money as people actually fall for it.

Just more excuses from the Insurance Ind. to protect their profits. The way I see, it's all the MORE reason to remove private, for-profit insurance from the system except as a choice for people who want to deal with them. If they were relegated to the 'market' rather than the monopoly position they now hold, all those excuses would disappear as they would have to compete for customers. Seeing these excuses only makes it more clear how important it is to have a Public Option in this bill.

[MousePlayingDaffodil]

15. What the heck are you talking about?

The original poster was the one who brought up the spectre that one's failure to have disclosed the use of acne medication in the past could constitute grounds for rescission. My point was that, under the language of the provision, such a failure to disclose would only constitute a "material fact" if it could somehow be established that the use of acne medication was relevant to the insured's having contracted cancer . . . which is a considerable stretch indeed.

[sabrina 1]

17. Okay, sorry if I misunderstood your point.

My point is that we should not even dignify what the other poster brought up, with any response other than 'you've got to be kidding'.

Anyhow, my comment probably was directed to the wrong person. My apologies for that.

[MousePlayingDaffodil]

19. No problem . . .

. . . I tend to forget that "droll" comments don't always come across too well on the Internet.

My point, of course, was that, while concerns over the "rescission" question might well be legitimate, to be fair, the cited statutory language did provide a standard -- i.e., "fraud" or "intentional misrepresentation of a material fact" -- that would not extend so far as to capture the situation where one forgot to mention one's "acne medication," insofar as the use of acne medication wouldn't be "material" in the hypothetical situation at hand -- i.e., cancer.

[sabrina 1]

20. Yes, I reread your comment and your preceding posts, which

I should have done in the first place. I admire your patience in taking the time to argue logically and your points are very well stated and probably far more effective than my own impatient response. :-)

[zipplewrath]

4. Yup

Not everyone sees this for what I do, a loop hole to push the most expensive cases right out of the insurance market. They can charge more for them, and if it gets too expensive, certain income categories are exempt from having to have insurance.

[Warpy]

5. They now have to prove intent to commit fraud

and they didn't have to do that before.

Forgetting about acne treatments 40 years ago is no longer enough.

[grahamhgreen]

7. They can resind, claiming fraud, then, you have to take them to court, good luck!

Unless there is some other relevant passage in the legislation.....

[Oregone]

9. The only positive aspect...

I think their court costs will be considered administrative, and not medical loss, so it can interfere with their profits under4 the regulated MLR unless it only costs a fraction of actually paying for the care.

But another thought....dead people can't go to court easily, nor can poor people. They could always test a persons willingness to pursue the case and settle too if it appears too costly.

[Oregone]

8. I don't think they have to prove it prior to the rescission

It states they must send a notice first to the enrolee. But I can't imagine they will care about going to court if its cheaper than paying--especially if the patient cannot pursue the money (especially if the are dead).

Am I missing something? Is there a central government authority they must go through prior to rescission?

[joeybee12]

10. Is that in there somewhere specifically...whoever the burden of proof

is on is HUGE...if it's not specifically spelled out and if there is not some government agency or arbitrator to decide, then, yeah, they'll continue saying you committed fraud, deny, and then wait for you to sue.

[Xithras]

14. No, they don't.

"...intentional misrepresentation of material fact."

They merely need to prove that you failed to provide information that any "regular" person should have disclosed, thereby throwing in to question your claims that you "forgot". And remember, when you object to the recission and sue them, you'll be standing toe to toe against some of the best lawyers our country has to offer, all of whom will be dedicated to proving that you're either a liar or an idiot for not disclosing your previous "condition". The law makes no allowance for the government to help you with this, so you'll be funding your lawyer and these suits out of your own pocket.

[eridani]

24. Wonderful. They win whatever they do.

1. Rescind policy
2. You file a complaint and it wends its way through the bureaucracy
3. You die
4. They bureaucraxy decides that you had a good case.

Don't believe that's how it will work? Ask the Sarkisians.

[Greyhound]

11. LEAVE THE INSURANCE COMPANIES ALONE!!!

You are all so mean. They just want to earn a living like anybody else.

[eomer]

21. Doesn't elimination of the pre-existing condition exclusion eliminate most of the concern?

If there is no pre-existing condition exclusion then your prior medical history is no longer relevant. I don't see why you would be asked to disclose it on an application but, if you were, how would it be considered relevant and a grounds for rescission?

[grahamhgreen]

22. No, you are always asked to disclose prior medical when you're seeing a doctor. nt

[eomer]

25. But that has nothing to do with this.

This is talking about information you provide on your enrollment form when applying for insurance. You're currently required to provide information on existing conditions because it is material to the decision on whether to cover you. When in the future the law prohibits the insurance company from taking that information into account, why would they even ask it? And if they did ask it, how would your answers constitute fraud if the info is irrelevant under the law?