California Insurance Lawyer Blog

1. Obtain a full copy of your Plan. The full Plan will not be a benefit summary or a print-out from a website. It will be, on average, at least 50 pages long. The claims administrator will likely not have a copy of the full plan. You can request a copy of the full Plan from your Human Resources department.

2. Read the Plan. A customer service representative for a health insurance company or claims administrator may tell you what your benefits are over the telephone. You cannot rely on what a representative tells you over the phone. The Plan document controls the benefits available, not what someone tells you over the telephone. Ask the representative to tell you what specific Plan provision they are referencing and ask them to send you a letter documenting what they are telling you.

3. Look outside the Plan. Although the Plan should include all terms of coverage, often the claims administrator will apply their own criteria or guidelines to claims decisions. You can find many criteria or guidelines for claims administrators such as UBH, Cigna, and Aetna on the internet.

4. Is the Plan insured or self-funded? Insurance law applies to insured plans, not plans that are funded by the employer. So, for example, mental health parity laws do not apply to self-funded plans. Large employers such as AOL and Wells Fargo, fund their own plans.

5. Time to appeal a claims decision. Read the appeals or grievance section to determine your appeal rights and deadlines. The first appeal must be submitted within 180 days pursuant to ERISA. However, a second level appeal can be a much shorter time period, as little as 30 or 60 days!

6. Read the definitions. Definitions for certain levels of care, such as skilled nursing or inpatient hospitalization, will inform you as to how the Plan will classify your treatment.

7. Statute of limitations. This will be the period of time by which you must file a lawsuit to obtain disputed benefits. To file a lawsuit for benefits pursuant to an ERISA plan, you must first submit appeals (at least one, but no more than two). The statute of limitations may appear in a section titled “Legal Action.”

8. Who is the Plan Administrator? Look for a name and address of the Plan Administrator in the Plan. If your claim has been denied, send a written request to the Plan Administrator for all plan documents. The Plan Administrator is required to provide the plan documents to you within 30 days. 29 U.S.C. § 1024. Federal regulations allow you to file a lawsuit to seek penalties from the Plan Administrator in the amount of $110 per day for each day the plan documents are not provided. 20 U.S.C. section 1132(c)(3); 29 C. F. R. § 2575.502c–1.

9. Calculate your deductibles, co-pays, co-insurance. Yearly deductibles, co-pays, and co-insurance are confusing and can be applied incorrectly. Brush up on your math to do the calculations yourself to ensure that your claims are paid in full.

10. Find out who has “discretion” to decide your claim. Discretion is a key word in the world of ERISA. It means that the entity with “discretion” has permission to decide everything about your claim. An example of discretion in a Plan may be: “Anthem Blue Cross has discretionary authority to determine benefit eligibility and construe the terms of the Plan.” If the entity who has “discretion” is also the entity that pays the claim, then the entity has a conflict of interest.

If you have any questions, call us for a free consultation. (800) 446-7529

Pharmaceutical manufacturer Eli Lily has developed a new drug with the ability to help doctors diagnose Alzheimer’s disease rather than rely on symptoms alone to determine if a patient is suffering from the debilitating brain disease. Up to now, the only way to definitively conclude Alzheimer’s, which has symptoms very similar to dementia associated with aging, has been to autopsy the brain after the sufferer’s death. The drug, Amyvid, identifies the presence of “amyloid plaques” caused by Alzheimer’s in the living brain. This may be good news for the 5.4 million Americans living with the disease and their families who want a conclusive diagnosis. See, “A New Way to Detect Alzheimer’s,”

On the other hand, the drug may cause more problems than it solves. According to Dr. Clifford Saper, Chairman of Neurology and Harvard’s Beth Israel Deaconess Medical Center, most people older than 80 have some level of amyloid in their brains, and the amount of amyloid present doesn’t necessarily indicate whether the patient has the disease or not. “There is no change in the care of most patients based upon knowing this information, as we have no specific treatment for Alzheimer’s disease,” Saper told ABC News.

The largest ripple Amyvid is causing is the potential for controversy about who is going to pay the significant cost for the diagnostic test, the government or insurance companies. Medicare and Medicaid already spend $130 million annually to treat Alzheimer’s.

The good news for people with long-term care (LTC) insurance who suffer from either Alzheimer’s or dementia is that – at least for now – LTC insurers for the most part don’t differentiate between the two. Most people quality for their LTC benefits when they need help with at least three activities of daily living, such as eating, bathing or dressing. Most policies allow for care at home, in a traditional nursing home or in an assisted living facility, options that should be preserved no matter what disease you may acquire as you age. Sadly, though, we are receiving more and more calls from families with a loved one fighting for benefits to pay for Alzheimer’s care.

If you are in that situation, you likely need experienced legal counsel to force your LTC insurer to pay the benefits you deserve. Call us at (800) 446-7529. We can help.

Pharmaceutical manufacturer Eli Lily has developed a new drug with the ability to help doctors diagnose Alzheimer’s disease rather than rely on symptoms alone to determine if a patient is suffering from the debilitating brain disease. Up to now, the only way to definitively conclude Alzheimer’s, which has symptoms very similar to dementia associated with aging, has been to autopsy the brain after the sufferer’s death. The drug, Amyvid, identifies the presence of “amyloid plaques” caused by Alzheimer’s in the living brain. This may be good news for the 5.4 million Americans living with the disease and their families who want a conclusive diagnosis. See, “A New Way to Detect Alzheimer’s,”

On the other hand, the drug may cause more problems than it solves. According to Dr. Clifford Saper, Chairman of Neurology and Harvard’s Beth Israel Deaconess Medical Center, most people older than 80 have some level of amyloid in their brains, and the amount of amyloid present doesn’t necessarily indicate whether the patient has the disease or not. “There is no change in the care of most patients based upon knowing this information, as we have no specific treatment for Alzheimer’s disease,” Saper told ABC News.

The largest ripple Amyvid is causing is the potential for controversy about who is going to pay the significant cost for the diagnostic test, the government or insurance companies. Medicare and Medicaid already spend $130 million annually to treat Alzheimer’s.

The good news for people with long-term care (LTC) insurance who suffer from either Alzheimer’s or dementia is that – at least for now – LTC insurers for the most part don’t differentiate between the two. Most people quality for their LTC benefits when they need help with at least three activities of daily living, such as eating, bathing or dressing. Most policies allow for care at home, in a traditional nursing home or in an assisted living facility, options that should be preserved no matter what disease you may acquire as you age. Sadly, though, we are receiving more and more calls from families with a loved one fighting for benefits to pay for Alzheimer’s care.

If you are in that situation, you likely need experienced legal counsel to force your LTC insurer to pay the benefits you deserve. Call us at (800) 446-7529. We can help.

Recently we filed an opening trial brief for a client who is disabled by Multiple Sclerosis (“MS”) related symptoms. The matter is set for trial against Aetna Life Insurance Company (“Aetna”), in the United States District Court, Northern District of California, before the Hon. Claudia Wilken.

Our client was diagnosed with relapsing-remitting MS in 1992. After going back to school to acquire new job skills in an effort to elongate his ability to work with MS, our client worked as a Customer Service Center manager for Office Depot in a Bay Area warehouse. By doing so, he was able to continue to financially support his wife and two children.

MS is a disease in which the body’s immune system eats away at the protective sheath that covers the nerves in the brain and spinal cord. This damage interferes with the communication between the brain and spinal cord and the rest of the body. If the nerves themselves deteriorate, the process is not reversible.

Relapsing-remitting MS is characterized by unpredictable relapses of acute worsening followed by periods of relative quiet where no new signs of disease activity occur. The nerve damage done by the relapsing MS attacks may resolve or it may become permanent. In this manner, the disease results in a gradually progressive deterioration of neurologic function. Because the disease attacks the brain and spinal cord, it is easy to understand why some of the main symptoms of MS include cognitive impairment, tremors/spasms, and urinary incontinence.

In 2006, a series of MS attacks began on our client’s nervous system. These attacks reduced our client’s ability to work. Taking every step possible to continue working, our client returned to work in 2007, because Office Depot was able to provide him with job accommodations. Unfortunately, in 2008 the MS attacks on our client’s brain returned. Since then, our client has been totally disabled due to symptoms of fatigue (MS lassitude), cognitive impairment, urinary incontinence, ataxia, dizziness, and tremors. The disabling nature of these symptoms is so common, a fact which Aetna acknowledges on its own website: “Multiple sclerosis, sometimes called just MS, is a disabling neurological illness.”

Because our client is no longer able to work, he made a claim to Aetna for disability benefits under his company’s Short Term Disability (“STD”) Plan, and later, its Long Term Disability (“LTD”) Plan. Aetna has never recognized our client as being disabled. At all times Aetna has claimed our client is able to perform his own occupation. This was wrong.

To prove that Aetna’s actions were illegal, Kantor & Kantor presented the Court with evidence that Office Depot’s actions in the real world supported our client’s disability. We produced evidence that Office Depot had terminated our client’s employment because he was no longer able to work his own occupation.

We also argued to the Court that Aetna’s own medical reviewers had agreed that our client was disabled. Kantor & Kantor comprehensively laid out evidence that eight different doctors (four of them hired by Aetna) had come to the conclusion that our client was no longer physically able to work his light duty occupation. (The U.S. Department of Labor assigns all occupations in the national economy a one of five physical demand levels – sedentary, light, medium, heavy, and very heavy. These levels reflect job duties such as the amount of lifting, pushing, walking, standing, and sitting required to perform the job.) We pointed out that two of these doctors were totally unaffiliated with our client or Aetna. Those two doctors had been hired by the Social Security Administration, and they had found that our client was disabled from any occupation in the national economy.

After Kantor & Kantor sued Aetna, we engaged in a discovery battle to obtain even more evidence that Aetna’s denial of disability was wrong. After Kantor & Kantor filed a Motion to Compel in Federal Court, Aetna produced its own claims handling guidelines. Even though Aetna claimed this information was confidential and privileged, we were able to show the Court that Aetna’s own guidelines appear to dictate an award of disability benefits for our client. We have forced Aetna to explain why it deviated from its own guidelines to deny our client’s disability claim.

Because the disability insurance in this case is part of an employee benefit plan, the matter is governed by the law of ERISA. ERISA limits the remedies available for an insurance company’s wrongful conduct to a recovery of benefits, and an award of attorney’s fees and costs at the Court’s discretion. We hope for our client’s sake, and for all of those who suffer a similar fate at the hands of their disability carrier, that the Court will remedy the injustice perpetrated by Aetna in this case.