Functional Outcome Evaluation Of The Head Injured: Its Effect on Legal Rights

Kenneth I. Kolpan, JD (former Medical Legal Editor of the Journal of Head Trauma Rehabilitation)

Head trauma rehabilitation programs have developed throughout the country at an enormous rate, yet many severely brain-injured individuals are unable to receive necessary care. The continued growth of these programs and the reimbursement of the same depends, in great part, on the efficacy of the programs. The functional assessment tools discussed elsewhere in this issue of the Journal of Head Trauma Rehabilitation (JHTR) are a welcome step toward documenting the impact these programs have on the severely head injured. There is another important reason that functional assessments must be made: with reliable evaluation techniques, the legal rights of severely head-injured individuals may be realized. The areas of insurance coverage and compensation litigation are the most affected. For example, many health insurance policies do not cover cognitive rehabilitation.  Hopefully, functional assessment tools will document the efficacy of cognitive rehabilitation demonstrating the cost of effectiveness of third party payers reimbursing for cognitive rehabilitation treatments.

Once a person with a severe head injury is medically stable and ready for transfer to a rehabilitation facility, many health insurance policies stop coverage. Whether it is because the insurance contract is narrow or the head injury rehabilitation program is innovative, insurers may be reluctant to extend coverage for these necessary programs.

Though the programs may not fit within the letter of certain health contracts, they certainly fall within the spirit of the contracts. For example, many policies allow for continued hospitalization or long-term nursing care treatment but not for head injury rehabilitation. If insurance coverage is denied, the head injured person cannot benefit from appropriate treatment and the insurer may end up paying more than is necessary because the patient remains at the wrong facility for too long without needed services.

When head injury programs can demonstrate that aggressive rehabilitation treatment for the severely head injured improves outcome and lessens the chance for long-term institutionalization and re-hospitalization, insurers may pay because such treatment will cost the insurer less money in the long run than a traditional program that falls within the terms of the insurance contract.

Health insurance contracts may exclude programs that are "custodial" in nature. Because some head injury programs are housed in facilities that are licensed as skilled nursing facilities, insurance companies are reluctant to pay for such treatment contending the person’s placement is custodial in nature. When medical records contain proven evaluation data demonstrating a patient's improvement over time due to rehabilitative services, an insurance company is hard pressed to deny coverage on custodial grounds.

Functional assessment affects compensation litigation that head-injured individuals may seek in order to choose optimal treatment. Successful pursuit depends on the particular patient’s response to continued aggressive treatment. Assessment evaluations give an insurance company, a jury, or an administrative law judge concrete evidence of the need for and the benefit of continued treatment. If well researched, this evidence will persuade a fact finder who will order that compensation be given to the injured individual so that he or she can obtain the needed treatment.

In conclusion, the growing area of functional evaluation will validate rehabilitation efforts and greatly improve the legal rights of persons with head injury.