Articles Posted in ERISA

Trumpcare, the Republicans’ proposed plan to replace the Affordable Care Act (ACA) — also known as “Obamacare” — will cut mental health and addiction treatment for 1.3 million people, just as the country is struggling to cope with an epidemic of opiate addiction. The Washington Post reported on March 9, 2017, that House Republicans admitted under questioning by Rep. Joe Kennedy III (D-MA) that their ACA repeal-and-replace plan would remove a requirement to offer substance abuse and mental-health coverage that’s now used by at least 1.3 million Americans.

Substance abuse and mental-health services are among the “essential benefits” states are required to provide under the ACA’s expansion of Medicaid, a program that provides health-care coverage to those who cannot afford it. As the article explained, if states opt out of providing those benefits, Medicaid recipients would not only lose coverage for mental-health care, but also coverage for care aimed at addressing substance abuse treatment, a critical area of care given the current drug overdose epidemic many states are dealing with. According to estimates by health-care economists, about 1.3 million Americans’ sole access to these services is through the ACA.

 

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As health care litigators, we are often asked about the benefits of the Affordable Care Act (“ACA” aka Obamacare). The bottom line is that more people have received more comprehensive coverage through the Affordable Care Act because of the following measures:

  1. No preexisting exclusion. Health plans can no longer charge more or deny coverage to you or your child because of a pre-existing health condition like asthma, diabetes, or cancer. https://www.hhs.gov/healthcare/about-the-law/pre-existing-conditions/index.html
  2. Young adults can remain as dependents on their parents’ health plans until age 26. Young people generally do not have access to sufficient individual health plans and do not have careers that provide the opportunity for an employer based plan so the opportunity to remain on a parent’s health plan is a great benefit. http://www.forbes.com/sites/emilywillingham/2017/01/25/have-a-teenager-you-should-worry-about-aca-repeal/#4a89ca150604

Insurance denial, ERISA denial, claim denied
Every insurance policy requires that you give notice of your claim for benefits to the company before benefits can be paid.  It doesn’t matter if the claim is for medical services, disability benefits, life insurance, fire, flood, theft, etc. Obviously, notice and information about your claim is necessary before the insurance conpany can process and pay the claim. Policies also usually require that notice of a claim be given within a specified time period following the loss, for example, “30 days,” or “as soon as practicable,” or “as soon as reasonably possible,” etc.  Again, this is fair because evidence related to the claim is fresh, and most readily available nearer the time of the event.

But, what happens if you can’t, or don’t comply with the policy notice requirement?  What happens if don’t give notice until months, or even years after your claim accrued?

Good questions.

Eating disorders are a serious public health concern in the United States and around the world. At least 30 million people in the United States will suffer from an eating disorder at some point in their life. And eating disorders don’t just impact women.  Approximately 10 million men in the United States will face an eating disorder in their lifetime. But despite the staggering number of people affected and the reality that eating disorders have the highest mortality rate of any mental illness, eating disorders often live in the shadows and most people don’t get the help they deserve. Unfortunately, all too often people will not seek out treatment due to stigma, misperceptions, lack of education, diagnosis and access to care.

Anorexia nervosa, bulimia nervosa and binge eating disorder are the most prevalent eating disorders. These eating disorders and all other eating disorders will be in the spotlight from February 26th, 2017 – March 4th, 2017 when patients, families, practitioners, advocates and educators celebrate National Eating Disorders Awareness Week. This year’s theme is “It’s Time to Talk About It” and the goal is for more people to get screened and start getting the help they need.

From the famed Empire State Building in the east, to Los Angeles International Airport’s stylish, 100-foot, glass pylons in the west, 61 iconic landmarks in cities across the country will be lit in the signature blue and green colors of the National Eating Disorders Association (NEDA) to put a spotlight on the seriousness of eating disorders.

One of the most common mistakes we see with long term disability (“LTD”)  denials (ERISA and non-ERISA/bad faith) is claimants rushing to submit their appeal. The desire to move quickly is understandable:

  • You have no money coming in;
  • You are angry at the insurance company and want to give them a piece of your mind;

Many of the “rules” governing ERISA claims are not contained in the statute itself, but rather are the result of judicial decisions interpreting ERISA. In the landmark case of Firestone v. Bruch, 489 U.S. 101 (1989), the U.S. Supreme Court upheld the right of an ERISA fiduciary (including insurance companies!) to reserve “discretion” to decide eligibility for benefits under an ERISA plan. When “discretion” is granted to an insurance company or a claims administrator, a reviewing court does not decide whether or not the claimant is entitled to benefits under an insurance policy. Instead, a court is limited to deciding whether the insurance company abused its discretion or acted “unreasonably” when deciding the claim.   Under this standard of review, some courts have concluded they are compelled to uphold the insurer’s decision merely because there was some medical support for the decision. See, Carlo B v. Blue Cross Blue Shield, 2010 WL 1257755 (D. Utah, 2010 (It does not matter whether the Court agrees with the insurer or its physicians. The decision need not be the only logical decision or even the best one.)

After years of unfair decisions under this standard of review, some states, including California, have taken action. Effective January 1, 2012, the California legislature outlawed discretion in policies. California Insurance Code, Section 10110.6. The statute applies to any policy which “issued or renewed” after January 1, 2012 and which covered residents of California.  What this means is that courts can now actually look at the evidence and decide for themselves whether they think an insured person is entiteld to benefits.  This is called a “de novo” proceeding, meaning the court will look at the evidence “anew” instead of deferring to what the insurance company decided. (See one of our earlier blogs for more info: http://www.californiainsurancelawyerblog.com/2015/03/california_insurance_code_sect_1.html )

Insurance companies such as MetLife, Liberty Life, Prudential and others have tried making all kinds of arguments to avoid the impact of section 10110.6. Application of the statute can depend on the facts of the case, but, since January 1, 2012, Kantor & Kantor has been successful in persuading many Federal Judges, and even insurance company lawyers, to invalidate or ignore grants of discretion written into insurance plans. A number of other experienced ERISA practitioners have also been successful in this argument. To date, the statute has been applied in at least 15 court decisions in California.

Donald Trump has just been sworn into office as this country’s 45th president, and Barack Obama is a private citizen once again. Now that Obama is gone, will his signature legislative achievement follow close behind him?

If conservatives have their way, the Affordable Care Act (ACA), commonly known as Obamacare, will be a blip in our nation’s history. Under Obama, the Republican-controlled House of Representatives voted more than 60 times to repeal the ACA, and during his presidential campaign Trump repeatedly vowed to get rid of it.

Of course, this is all easier said than done. Many parts of the ACA are very popular, including the provisions that prevent insurers from denying coverage based on pre-existing conditions, and those that allow parents to keep their children on their coverage until age 26.

Why pass on free personalized advice?

One of the people who contacted us this week was a woman who had her Long Term Disability benefits terminated by Standard Insurance Company after Standard had paid her those benefits for many years. Despite multiple surgeries, her symptoms had not improved. Each morning she takes powerful pain medications. Sometimes those medications offer enough relief to enable her to attend to daily functions, but often, they do not.

Either way, she was certainly not able to perform the duties of her job when Standard cut off her benefits. Nonetheless, Standard Insurance Company all of the sudden determined she had not provided sufficient proof of disability and terminated her Long Term Disability benefits. Thinking this was simply a misunderstanding, she appealed the denial on her own without speaking to an attorney first. After all she reasoned, Standard Insurance Company had told her all she needed to do was explain to them why she was still disabled.

On January 13, 2017, the Los Angeles Times published a column entitled Healthcare insurance hell: If at first your claim is denied, try, try again

The article describes on insured’s extreme difficulty in obtaining approval for treatments of her multiple autoimmune disorders that cause chronic pain, migraines, extreme dizziness and debilitating chronic fatigue. As the title shows, the main thrust of the argument is to never give up if your health insurance claim is denied – however, this advice is not only applicable to health insurance claims – the same holds true, believe it or not, for Long Term Disability, Long Term Care, and even Life Insurance claims!  

Some interesting additional information is also included in the column:

Don’t ever assume that you Life Insurance policy will pay benefits to your beneficiaries.

Why? Because so often, benefits are not paid. We know this is true because we are in the business of suing insurance companies when they fail to pay valid claims. But, most people never imagine that a valid life insurance claim won’t get paid. Most of the problems we see at our firm involve insurance companies failing to pay life insurance benefits based on allegations of such things as fraud in procuring the policy, or that the policy was not properly applied for through an individual’s employer. Insurance companies often make these assertions without good faith, or without having performed a full and fair investigation of the facts. And often, when we challenge the insurance benefit denial, we get benefits paid for our clients.

But, what happens when someone doesn’t even know they are the beneficiary of a life insurance policy? Should the insurance company make an attempt to contact beneficiaries when they have knowledge an insured has died? Most state laws say”yes.” Should insurance companies continue to collect premiums (from policies with cash value) when they know an insured has died? Common sense, and the law, say”no.” Yet many insurance companies have been doing exactly what they should not be doing, and have realized mind-boggling profits by doing so. The television show, 60 minutes, ran a segment last night revealing these unfair practices. Florida Insurance Commissioner, Kevin McCarty, led the national task force investigating the industry. He explains as a result of the investigation, twenty five of the nation’s biggest life insurance companies agreed to pay more than 7 and a half billion dollars in back death benefits. For more information on the 60 minutes piece, click here: http://www.cbsnews.com/news/60-minutes-life-insurance-investigation-lesley-stahl/

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