California Insurance Lawyer Blog

A recent CBS News segment relates the story of Timber Harwood, a 93-year-old long-term care insurance policyholder fighting Bankers Life for benefits after he was seriously injured in a fall and needed the care of an in-home health aide. See “Some long-term healthcare policies not paying up,” http://www.cbsnews.com/8301-500202_162-57352805/some-long-term-healthcare-policies-not-paying-up/.

For more than a year, Bankers Life repeatedly “lost” or “misplaced” hundreds of pages of Harwood’s documents supporting his need for benefits while he used his life savings to pay for care. Things improved when Harwood’s niece – Kansas’s top insurance regulator – stepped in to help. Bankers Life eventually paid his claims, but then concluded he is “too healthy” to need in-home care, so the benefits stopped. Harwood and family are so worn down by the process they have decided not to pursue benefits.

The report concludes that LTC insurance isn’t paying as advertised and that customers should expect hefty premium increases.

We have also witnessed Bankers Life (and other LTC carriers’) claims handling practices, and have sued them to force them to pay. In our opinion, the worst thing a family can do is to give up the fight and let the carriers get away with not paying the benefits they owe.

Many people are successfully fighting their LTC carriers for benefits. Some of them have had to hire contingency fee lawyers like us to do it, but they made the decision that it’s more sensible to attempt hold their insurer accountable then spend their life savings on care they paid an insurance company to provide for.

Every LTC carrier is going to make you prove you need benefits, and some won’t make the task easy. Others will make the process discouraging and next to impossible. When that happens, find someone who understands how to deal with LTC insurers to help you. Most people aren’t as lucky as Mr. Harwood was to have an insurance regulator in the family to come to the rescue. Still, family members can help by calling and writing letters to the insurance company and demanding that they act expediently. Complain to the insurance commissioner of your state if the company does not respond to your inquires, or is acting irresponsibly. Usually, squeaky wheels get the grease. If all else fails, find an attorney with experience in this area.

We sincerely hope Mr. Harwood is indeed too healthy to need LTC benefits, but if he isn’t he shouldn’t give up the fight. And no one should. If Bankers Life or any other insurance carrier has denied your benefits, fight for your rights and make them pay what they owe!

Kantor & Kantor partners Glenn Kantor and Corinne Chandler will present a National Business Institute teleconference “Troubleshooting Long Term Care Insurance Claims,” Thursday, January 26, 2012, at 10:00 a.m. Pacific time. The presentation, designed for a national audience of lawyers seeking to expand their knowledge about claims-handling practices and litigation strategies, provides up to two hours of continuing education credit. Topics the program covers include an overview of the state of the long-term care insurance industry, how to analyze common long-term claims and benefits denials, and creative litigation tactics.

For more information, or to register, follow this link: http://www.nbi-sems.com/SemTeleDetails.aspx/R-58789ER%7C?ctname=SPKEM.

The National Business Institute is one of the nation’s largest providers of legal and professional education, serving over two million professionals.

Kantor & Kantor is one of the largest law firms in the country exclusively representing plaintiffs who have been denied insurance benefits from life, health disability and long-term care policies. The firm has extensive experience with the complex appeals process and federal court litigation of ERISA matters. For more information, call (800) 446-7529.

We are about to bring a case to trial for a client who is disabled by AIDS-related symptoms, and has been since 1994. For more than 15 years, our client had proven his inability to work in any occupation, and Fort Dearborn Life Insurance Company paid benefits according to his disability policy. Without any warning, however, Fort Dearborn terminated our client’s long term disability benefits -- even though the medical evidence regarding his symptoms and the Social Security Administration’s disability determination remained unchanged.

What Fort Dearborn claimed had changed, according to its surveillance of our client, was his ability to perform limited activities of day-to-day living. Notably, for over a decade, our client had informed Fort Dearborn that he was capable of exactly that level of limited activity. So why the termination?

In its argument to the Court, and without a scintilla of evidence to support the claim, Fort Dearborn wrote:

“[Plaintiff] completely ignores the fact that there have been advances in medicine and numerous examples of HIV patients who have gone on to lead meaningful and industrious lives.”
…
“The former National Basketball Association player, Ervin [sic] 'Magic’ Johnson is one such example.”

Essentially, if Magic is fine, the argument goes, our client is fine.

Twenty years ago Earvin “Magic” Johnson made an announcement that altered the public’s perception of himself and HIV/AIDS. Clearly Magic’s courage in publicly confronting this disease had a significant positive impact on the public’s awareness of the actual facts regarding HIV/AIDS.

In 1991, it was widely believed that Magic’s announcement was tantamount to a death sentence. People had a real impression of the hardship faced by those suffering from HIV/AIDS. Fortunately, the medical landscape did change. Treatments improved, as did the quality of life for some, but not for all.

Magic started taking a cocktail of up to 15 pills per day, and he lived. The symbol of HIV/AIDS in America, Magic’s life changed the public’s perception of those suffering from HIV/AIDS. As Associated Press Sports Writer Greg Beacham put it, “with two subsequent decades of vibrant living, [Magic] forever altered attitudes about the virus and its effects.” See, “Magic Johnson Still Beating HIV 20 Years Later.”

Sadly, the current perception of those suffering from HIV/AIDS is one of a vibrant, vigorous, and successful businessman. For all too many, this perception is also dead wrong.

Our client continues to suffer from disabling fatigue, painful neuropathy caused by his AIDS medications, and ever present, embarrassing diarrhea. This is the reality of many suffering from symptoms due to HIV/AIDS. It is also a reality that is obscured by his prominence in the public’s eye, as Magic himself reminded Beacham:

“‘I often say I’m good for the virus, and bad for it,’ Johnson said. ‘Good because I’m doing well, and that I can go out and try and raise the awareness level, get people to go get tested…but on the flip side of that, people see that I’m doing well, so they’ve kind of relaxed on HIV and AIDS. People think that now if they get the virus, they’ll do well…’”

It is not a new message that Magic is trying to spread. Five years ago Magic was quoted in USA Today: “‘You can’t take that attitude that you’re going to be like Magic,’ says Johnson…. ‘The virus acts different in all of us. There’s no certainty that if you get the virus, you’re going to be OK.’” See, “Magic Johnson Combats AIDS Misperceptions.”

But public perception is powerful, even if it has little relation to reality, and insurers are not reluctant to use misperceptions to bolster their arguments. As a result, those not as fortunate as Magic will face increased prejudice and, like our client, the all too real consequence of those misperceptions.

We believe we can get the Court to understand this, and to force Fort Dearborn to pay our client the benefits he deserves.

If you have encountered misperceptions leading to Long Term Disability benefits terminations for AIDS-related or any other disability, contact us at (800) 446-7529. We can help.

Life Insurance Company of North America (LINA) insured the life of Timothy Whinery. Mr. Whinery died in a tragic automobile accident. His wife eventually made a claim for life insurance benefits under the LINA policy. Incredibly, even though the LINA policy promised to pay benefits for a loss "caused by an accident," the policy did not define the term "accident." Worse, in this case LINA determined that Mr. Whinery's death was not caused by an accident, and so refused to pay. The facts are a bit complicated, but in essence, LINA said that because Mr. Whinery was legally intoxicated at the time of the accident, his death was "foreseeable," and foreseeable consequences cannot be deemed accidental.

What's worse, LINA actually sells life insurance policies that contain specific provisions precluding benefits when death is caused by driving while intoxicated, but the Whinery policy DID NOT contain any such exclusion. This claim should have been paid! Our view is that LINA is acting unreasonably and in bad faith in continuing to deprive the Whinery family of the life insurance benefits they paid for. You can read more details in a Lawyers.com blog item by clicking on this link: DWI Death an Accident, Insurer's Claim Rejection Not

The case is filed in the Central District of the United States District Court and is assigned to the Honorable Percy Anderson, Judge Presiding. Trial is currently set for December 20, 2011.

PRESS RELEASE:

LOS ANGELES, October 31, 2011 -- Kantor & Kantor, LLP announced today that lawyers Alan Kassan and Corinne Chandler are presenters at the 21st Annual Western Region Chapter of the National Association of Professional Geriatric Care Managers held at the Bellagio Hotel in Las Vegas November 3-5. The session, “Obtaining Insurance Benefits for Your Client’s Care,” is scheduled for Friday, November 4, at 2:15.

“Many people purchased long-term care insurance decades ago and before many of today’s senior care options were even contemplated,” said Mr. Kassan, a Kantor & Kantor partner who sues insurance companies on behalf of individuals denied long-term care. “As a result, since most many present care options are not enumerated in polices, and insureds have to appeal or litigate to ensure benefits for the most appropriate long-term care. Part of what we do is educate professionals in the geriatric care industry about how to understand insurance policy language and to help their clients with the legal process.”

A common reason LTC carriers deny benefits is because the policyholder resides in an assisted living facility but the 20-year-old policy doesn’t cover such facilities, which were not an option until recent years. Kantor & Kantor has successfully litigated the issue, allowing policyholders to receive benefits for assisted living.

“As the Baby Boomer population ages and requires care, we expect more options to arise for which insurers will deny coverage,” said partner Corinne Chandler. “When geriatric care professionals understand that insurance companies don’t always have the last word, they can better help their clients navigate the often complex long-term care legal environment."

About Kantor & Kantor, LLP
Kantor & Kantor is one of the largest law firms in the country exclusively representing plaintiffs who have been denied insurance benefits from life, health, disability and long-term care policies. The firm has extensive experience with the complex appeals process and federal court litigation of ERISA matters. For more information, log on to www.kantorlaw.net, call (800) 446-7529, or follow the firm at www.californiainsurancelawyerblog.com.

The International Association of Eating Disorder Professionals will stream an encore of Kantor & Kantor partner Lisa Kantor’s 2011 symposium presentation How to Document Evidence Based Treatment to Maximize Insurance Reimbursement, followed by a live teleconference call with Ms. Kantor Tuesday, Sept 27, 200, at 7 pm ET/6 pm CT/5 pm MT/4 pm PT. The presentation reviews insurance carrier criteria for treatment of eating disorders and explains how evidence-based treatment records can be documented to best maximize the client's available insurance benefits.

“A provider's treatment records are the foundation for establishing medically necessity for admission and continued treatment,” says Ms. Kantor, who has been recognized as one of the top lawyers in the country representing policyholders denied benefits for treatment of eating disorders. “Evidence-based treatment records must show plans of care, symptoms, and objective evidence that satisfy an insurance company's criteria for admission and continued care.”

Although only IAEDP members may participate in the live session, nonmembers and others unable to attend may submit questions about insurance benefits for eating disorder treatment to Rachel Teicher at rteicher@kantorlaw.net before, during and after the live session.

IAEDP members may register for the call by following this link: http://myaccount.maestroconference.com/conference/register/XVQ38AL38L6GVOVQ.

The 90-minute presentation is available for preview through this link: http://player.netromedia.com/?ID=5a57395a-560a-4073-9562-13acf1b7f32c&path=/IAEDPKantor%20in%20wmv.wmv.

Additional materials may be downloaded here: http://www.kantorlaw.net/Areas_of_Practice/Eating_Disorders/2011_IAEDP_Materials.aspx.

Results from the latest field poll conducted by the California Partnership for Long-Term Care are not surprising. Although more people are aware they will likely need long-term care benefits in the future, fewer are purchasing policies. See, “Californians Know They Need Long Term Care Coverage, But Don’t Buy It.”

According to the survey, state residents purchased 22,000 fewer policies in 2008 than they did in 2000. About 30 percent of the respondents expressed concerns that insurance companies would fail to honor their policies as their chief reason for not purchasing LTC insurance.
That’s a legitimate concern, as we well know.

Do your research and choose a reputable company offering the best policy you can afford. While the LTC component of President Obama’s healthcare overhaul (aka the CLASS Act) may offer some attractive alternatives for some, be aware that experts predict the launch will be delayed by as much as a year as the administration tries to create an inexpensive yet sound program.

If and when the time comes you have to fight for Long Term Care insurance benefits, call us to hold your insurer accountable.

For more information about obtaining LTC benefits after delays or denials, call 800-446-7529.

Thanks to the excellent efforts of attorneys Lisa Kantor and Elizabeth Green of Kantor & Kantor, LLP, the Ninth Circuit Court of Appeal issued an important decision on August 26, 2011 favoring policyholders in California. The question before the court was whether or not Blue Shield was required to pay for plaintiff's care at a residential treatment facility. The court held that although, technically, the terms of Jeanene Harlick's health insurance policy with Blue Shield did not require coverage, the California Mental Health Parity Act absolutely did require Blue Shield to pay for treatment. Ms. Harlick has suffered from anorexia nervosa for more than 20 years. In 2006 and 2007 she spent time at a residential treatment facility in an effort to help her cope with her eating disorder. Blue Shield refused to pay the substantial cost for that treatment.

The Ninth Circuit Court of Appeal’s opinion in Harlick is a major victory for all of those who are insured by Blue Shield of California and who suffer from eating disorders A stay in a residential facility that provides 24-hour supervision can be a crucial part of the successful treatment of an eating disorder. Almost all insurance companies that provide behavioral health benefits provide coverage for residential treatment. Blue Shield is one of the few insurers who exclude such treatment, while providing coverage for all other levels of care. The California Mental Health Parity Act requires insurance companies to provide coverage for the treatment of “severe mental illnesses,” including anorexia and bulimia, on the same terms and conditions as it does for physical illnesses. In its decision today, the Court held that the Mental Health Parity Act requires an insurer to provide all medically necessary treatment for eating disorders, including residential treatment, even if the insurance plan has an exclusion for that treatment.

The full text of the decision can be read by clicking here:

HARLICK v. BLUE SHIELD OF CALIFORNIA

Insurance Commissioner Dave Jones recently announced that the California Department of Insurance is implementing new regulations to protect California home owners from being underinsured in the event of a disaster. These regulations target the homeowners insurance industry, and have been established to ensure that consumers who are victims of a disaster, such as an earthquake or wildfire, will be able to get the necessary financial relief to rebuild their homes. The regulations have been formulated to address the common problem of underinsurance that many homeowners face.

The new regulations include provisions:
- requiring insurers to create more consistent, comprehensive and accurate replacement cost calculations;
- requiring insurers to establish clear training standards for agents and brokers who sell homeowner’s insurance;
- creating standards for real estate appraisers who estimate replacement cost for insurance purposes;
- requiring the application of certain standards when estimating cost for insurance purposes;
- establishing record keeping requirements

The Association of California Insurance Companies and the Personal Insurance Federation of California (on behalf of Farmers Insurance, Liberty Mutual Group, Progressive Insurance Company, State Farm Insurance Companies, Allstate Insurance, Mercury Insurance, and other insurers) have jointly filed a lawsuit seeking to block these consumer-friendly regulations. The complaint alleges that the regulations restrict insurer underwriting, which is not an area regulated by the Department of Insurance. In response, Commissioner Jones has commented that the insurers “have clearly missed the mark with this lawsuit and their argument simply has no merit” not least because “the replacement cost regulation has nothing to do with underwriting. The industry is free to decide which customers to sell to and at what price, as long as they comply with the voter-approved initiative Proposition 103, make rate filings with the Department, and get them approved. This is just another attempt, in a long line of many, by the insurance industry to strip consumers of the protections they deserve.”

Our client is a 43 year old Court Reporter who was diagnosed with MS in August 2009. She had been experiencing progressing tingling and numbness through her lower extremities and up to her pelvic area. She was hospitalized in August 2009 where she underwent a battery of tests including an MRI which revealed scattered white matter signal alteration, with differential considerations. Although the third party administrator, Sedgwick acknowledged that the MRI confirmed the diagnosis of MS, it ignored the restrictions and limitations set forth by our client’s treating physicians based on objective evidence. In its denial letter, Sedgwick focused only on the very brief period in which the MS was quiescent and conveniently ignored the periods of paralysis, fatigue, numbness, weakness, confusion, and inability to perform the duties of the job. Sedgwick refused to pay our client the Long Term Disability benefits to which she was entitled.

We arranged for our client to undergo a comprehensive neuro-psychological examination. On appeal, we submitted evidence from the neuropsych examiner who concluded that it was unlikely our client would ever return to her usual and customary occupation. He opined that her motor slowing, psychomotor slowing, and fine motor coordination deficits alone would preclude her from performing the duties of a Court Reporter. He also found that our client’s cognitive deficits were due to central nervous system demyelinating disorder.

Our appeal was successful and our client was reinstated to her Plan, with payment of full back and future benefits.

We help people with health related insurance claim problems, and initial consultation are free. Call us. 800-446-7529.

Our client was a Manager of the Creative Services Department at an international marketing company. Her job required her to travel extensively, direct employees and perform a range of management tasks. In 2001, she was rendered totally disabled from her job, due to failed back syndrome, extreme pain, and the need for heavy narcotic medication. Her doctors found her totally disabled from her job, and CIGNA paid her disability benefits for 8 years, until they abruptly terminated her benefits, on the basis of limited surveillance. Although the surveillance did not depict our client performing any tasks inconsistent with her disability, CIGNA relied upon the surveillance to terminate benefits.

We appealed this decision on behalf of our client and after prosecuting this appeal for over two years, CIGNA finally overturned its benefit termination. Fortunately for our client, she has an “own occupation” policy, such that CIGNA is obligated to pay her disability benefits unless she is capable of returning to her “own occupation” of a Creative Services Department Manager, an impossibility, according to her doctors.

Most insureds are not aware of the fact that most group Long Term Disability Policies have different definitions of disability at different time periods. Often during the first 24 months of a disability, one need only show the inability to perform the material duties of his or her "own occupation." After that initial 24 months, the standard of proof becomes more difficult and the burden then becomes proving that you cannot perform the material duties of "any occupation." This is just one of the quagmires to deal with when making a disability claim.

Call us, we can help!

Our client, Mrs. Kay, was a customer service representative for a large payroll company and enjoyed excellent performance reviews for several years. Unfortunately, she developed carcinoid cancer and the disease and strong medications she was prescribed prevented her from performing her occupation. Her disease and pain rendered her totally disabled form her job. Mrs. Kay submitted a disability claim to Prudential, which was initially approved, but later terminated.
We prepared an appeal and submitted evidence to Prudential in the form of MRIs, x-rays, and medical records from her doctors, regarding her complex physical condition. We also provided information on the effects of the heavy narcotic medication and how that medication interfered with our client’s ability to perform her occupation.

Prudential engaged in lengthy requests for evidence. We gathered and provided that evidence, and argued Prudential must reverse their denial of benefits. Ultimately, Prudential determined that while her doctors may not have described in detail the effects of her medication, Mrs. Kay was in fact disabled and entitled to disability benefits, as well as a waiver of premium payments on her life insurance during her period of disability.

The New York Times reported this week on a new study that confirms that “Chemo brain” is s a lingering cognitive side effect of cancer chemotherapy treatment. What is often brushed off by physicians as symptoms of normal aging or attributed to fatigue from illness, is now recognized as a pronounced and long lasting cognitive impairment. This foggy thinking, forgetfulness, difficulty finding words, and changes in memory, motor skills, and dexterity can be attributed not only to the compromises that the body’s cells have experienced from cancer, but also the body’s reaction from treatment.

The study found that recovery from cancer is not a simple fix. It takes time and patience, and the effects of treatment can linger for the duration of five years or more, depending on the individual. Cancer survivors must be mindful of these circumstances when attempting to return to their regular activities or work responsibilities. With memory, information processing, multi-tasking, and executive function skills impaired, recovering cancer patients may not be able to perform job responsibilities at the same functional level as before treatment.

Kantor & Kantor has been successful in obtaining disability benefits for clients suffering from “chemo brain” who were not cognitively capable of returning to work.

You can read the NY Times article here: http://well.blogs.nytimes.com/2011/05/04/chemo-brain-may-last-5-years-or-more/?ref=health

From 2009, to 2010, United Healthcare cut in half the compensation of its Chief Operating Officer, Stephen J. Hemsley. At first blush, it would appear United Healthcare is recognizing the ballooning costs to consumers of healthcare, and it acting responsibly. First looks can be deceiving. See http://blogs.courant.com/connecticut_insurance/2011/04/unitedhealth-ceos-pay-dropped.html

In 2009, Hemsley received $102 million in total compensation from United Healthcare. In 2010, his pay was cut in half, but even after a 50% reduction, he still received an exorbitant $48.8 million dollars in compensation. The majority of this pay was in the form of stocks and stock options ($ 44 million), in addition to the $4.8 million in he was paid in salary, incentive pay, and other compensation. Putting his compensation into perspective, his 2010 compensation is equal to the sum total of the average annual household income of 2,000 American households. It would also be enough to pay a $500 monthly health insurance premium for 8,500 families. See http://www.moneytalksnews.com/2010/04/17/insurance-outrage-hike-prices-pay-ceo-100000000/

How can United Healthcare justify its continued premium increases, based on rising healthcare costs, while at the same time paying its Chief Executive $48,800,000? Shouldn’t the Board of Directors of United Healthcare be more concerned with its policyholders’ ability to access and receive quality care rather than compensating its officers in such an outrageous manner?
Andrew Goldstein of corporate compensation adviser Towers Watson says, “We all kind of scratch our heads when executives are making millions, and (corporate) directors feel obligated to give them $10,000 for financial planning, It’s not like directors haven’t thought about getting rid of perks. They’re still a sticking point for a lot of executives. They feel it’s part of their compensation package. And it’s a stature thing.” So it seems that despite these tremendous salaries, CEO’s continue to cling to these perks at the health expense and financial burden of those less fortunate. Simply because directors feel obligated, and executives feel entitled. See http://www.usatoday.com/money/companies/management/2011-04-11-CEO-perks.htm

While families struggle to afford the soaring increases in insurance rates and battle the stresses of paying for prescriptions, doctor visits, and various health issues, United Healthcare remains “America’s largest commercial health insurer based upon revenue”, seemingly profiting from our medical woes. If it wasn’t so sad, and if so many Americans were not suffering from the consequences of being uninsured, classifying compensation of $49 million dollars as “pay cut,” would be comical. Perhaps the various departments of insurance, and our legislature, should look a lot more closely at insurance executive compensation when considering how to regulate insurance costs and fix our insurance crises.

The New York Times reported this morning on a very disturbing trend. It seems various states are relaxing their laws which require insurance companies to maintain adequate reserves to pay claims, and to keep their finances transparent to the public. Why in the world would state governments do such a thing? Well, it seems there is money to be made in the form of taxing these insurance entitles...a lot of money. So, "shady" business that was mainly being conducted offshore in countries like Bermuda or the Cayman Islands, is now permissible in states like Vermont, Utah, South Carolina, Delaware and Hawaii. Those states are "aggressively remaking themselves as destinations of choice for the kind of complex private insurance transactions once done almost exclusively offshore. Roughly 30 states have passed some type of law to allow companies to set up special insurance subsidiaries called captives, which can conduct Bermuda-style financial wizardry right in a policyholder’s own backyard."

Aetna, MetLife, the Hartford Financial Services Group, Swiss Reinsurance, Genworth Financial and the American International Group (A.I.G.), among others, taken advantage of these laws and the concept of "captives" in order to refinance life, disability and long-term-care insurance policies.

One of the major concerns of these financial maneuverings is that is that some states are offering a more lenient, and less protective scheme of laws than other states and thus lure companies away from the protective states. This game may allow insurance companies to escape some of the consumer protective rules that have been put in place over the course of many years, all to the detriment of insurance consumers.

Fortunately, our California Insurance Commissioner, Dave Jones, is taking a cautious and sensible approach to all of this as can be seen from his comments. Mr. Jones remarks “we need to ensure that innovative transactions are not a strategy to drain value away from policyholders only to provide short-term enrichment to shareholders and investment bankers.”

Read the original article. It's a bit scary. http://www.nytimes.com/2011/05/09/business/economy/09insure.html?pagewanted=1&_r=1&nl=todaysheadlines&emc=tha2

The California Association for Health Services at Home (CAHSAH) is the leading statewide home care association in the nation and the voice of home care for the western United States. CAHSAH represents more than 537 members and 850 offices that are direct providers of health and supportive services and products in the home. Next month, May 10-12 CAHSAH will hold their annual conference in Ontario California.

Kantor & Kantor Partners, Glenn Kantor and Corinne Chandler will have the honor of addressing CAHSAH members during an educational session to speak on issues related to long term care and insurance. The session will take place on Wednesday, May 11, 2011, 10:15:00 AM - 11:45:00 AM.

Mr. Kantor and Ms. Chandler will address the reasons insurance companies deny long-term care benefits. They will also discuss the importance of anticipating denials, understanding the policy language and limitations, having all necessary documentation and support letters to include with the claim, and communicating with the insurer in a manner that will establish a record if appeal or litigation becomes necessary.

Our lawyers are frequently called upon to speak at organizational events and we pride ourselves on being in a position to help people not only understand their health related insurance benefits, but to also help them obtain those benefits when they have been wrongfully denied.

For more information on CAHSAH and the Conference, click here: http://www.cahsah.org/?p=annual_conferences

One of our clients is a 21 year-old woman, who has struggled with anorexia nervosa since she was 12 years old. In 2009, her condition had deteriorated to the point that she entered a residential treatment center. Her insurance, which is administered by United Behavioral Health (UBH), initially authorized her treatment, but after only two and a half weeks, UBH denied further treatment on the grounds that she could be treated in a day treatment program. Our client left residential treatment and enrolled in such a program, but, after only 10 days, UBH denied further treatment.
Throughout 2010, our client’s condition further deteriorated, until she was only 74 percent of her ideal body weight. Knowing that she needed residential treatment and fearing that UBH would again deny such treatment, our client raised enough money from internet fund raising and from her parents to pay for eight weeks of residential treatment.

Our client again entered a residential treatment center in November 2010. As in 2009, UBH initially approved her treatment, but then denied further treatment after only a few weeks. This time, however, our client she retained our firm and we filed a request for an independent medical review with the California Department of Managed Health Care (DMHC), supported by declarations from her doctor and therapist explaining why she needed residential treatment. While the request was pending, our client paid for continued treatment with the money she had raised.

The independent medical reviewer agreed and, on February 22, 2011, the DMHC ordered UBH to pay for our client’s treatment. The independent medical review found that residential treatment was medically necessary from the date of UBH’s denial in December 2010 and that UBH had to pay “for additional services while the patient prepares to transition to a lower level of care.” The DMHC gave UBH five working days to implement its decision. Incredibly, at the end of the five working days, UBH again denied our client further treatment.

Luckily, after the DMHC’s decision, we had filed a lawsuit against UBH for the emotional distress its conduct had caused our client. The day after the lawsuit was served on UBH, it reversed its decision and authorized further residential treatment. However, after only 10 more days, UBH again denied further treatment.

California law requires that UBH reimburse our client for the money she had paid for her treatment within five working days of the DMHC decision overturning UBH’s initial denial or face a $5,000 a day fine. Incredibly, though it is now over 30 days after the DMHC’s decision, UBH has still not paid.

We will vigorously pursue the lawsuit on behalf of our client to recover the monies she is owed and compensation for the emotional distress and other damages caused by UBH’s outrageous conduct.

We continue to see evidence in insurance company claim files that insurers are not only conducting traditional surveillance, following their insureds/our clients around, but the insurers are using the internet to snoop around and learn as much as they can about claimants, their activities, their family members, etc.

We know the insurance companies do this to protect against fraud, and there is nothing wrong with that. But, all too often, the insurers get a bit overzealous, and even intrusive in their conduct, and they start to treat everyone like a criminal of some sort.

Perhaps the most shocking example of this activity we’re aware of, is a case of one major insurer accessing private files off of a claimant’s computer. It appears that the insurer may have actually hacked into its insured’s private computer to obtain information related to internet activities, e-bay purchases, YouTube viewing history and private files.

Such activity is, of course, illegal, and may give rise to, among other things, an invasion of privacy cause of action. We continue to remind our clients and anyone with insurance who may or may not ever make an insurance claim: do not take internet privacy for granted. While it is one thing for an insurance company or any other entity or individual to illegally access your private information, it IS legal for anyone to track your internet activities you put in the public sphere of cyberspace. Be mindful that what you post, blog about, advertise, or share on social networking sites, message boards, in online fora, etc. is fair game. Moreover, the reality is often that the picture one portrays of him or her self in cyberspace, may not be a complete picture of that person's life. Unfortunately, when it comes to insurance claims, and particularly ERISA claims, such a picture may be the only one a court sees. Be mindful.

Insurance companies will always assert that you must have "objective evidence" to support your disability claim. Of course, Policies do not always require objective evidence, and even worse, what you or your doctors may consider objective, your insurance company may not. Insurance companies will often try to characterize your evidence as "subjective" or self-reported (and thus, according to them, unreliable.) So, what to do? While it can sometimes be very difficult to muster evidence with certain disabling conditions, there are a range of options to explore that may be available to you.

You can work with your doctor (or her/his staff) to obtain evidence - from the more obvious testing, such as stress tests for the heart; blood tests for a range of other conditions; functional capacity evaluations (FCE) (to assess your capacity to work or function for a given amount of time in a work-simulated environment), or independent medical evaluations (IME) by a doctor separate or 'independent' of your primary doctor or specialist(s). FCEs and IMEs may require referrals or separate payment, depending on your insurance.

Insurers generally deem a doctor's report of your medical history and treatment, or your doctor's clear, articulated notes from clinical observations during your appointments, as the most relevant or compelling evidence of disability. Insurers will often contact your doctor, by phone or in writing, and while we always encourage our clients' doctors to conduct correspondence with insurers in writing, so that nothing is misconstrued or taken out of context, it can be critical for your doctor(s) to participate in the process of accurately and comprehensively documenting your disability, symptoms, side effect of pain medications, etc.

Letters from co-workers, supervisors, or even friends and family describing you and your condition and their personal observations of your troubles are also helpful. Evidence of activities you formerly were engaged in but have now let lapse due to your condition is also worthy of submission.

The point is that you should not overlook anything which is in anyway relevant to your disability claim. Put your best foot forward. If you don't understand something your doctor said or wrote, get clarification. If you do not think your doctor has adequately diagnosed or treated your condition, get a second opinion. DO NOT assume that the insurance company will take what you say at face value. They won't. They are much more likely to discount everything you say, and everything you provide.

If you need help, call us. 800-446-7529.

One of California’s largest health insurers -Blue Shield- has announced plans to hike its premiums by as much as 59%. These increased premiums are set to take effect on March 1, 2011. This move impacts 193,000 individual Blue Shield policy holders.

This steep double digit rate hike has raised the attention of Health and Human Services Secretary Kathleen Sebelius who has reached out to newly elected California Insurance Commissioner Dave Jones. “We stand ready to assist him and the people of California in any way that we can”, she stated. She went on to state, “The people of California have a right to be concerned when they see this kind of rate increase month after month.”

Commissioner Jones recently won a hard fought race for his position and on January 3, 2011 announced that rejecting excessive health insurance premiums and continuing his fight for the authority to reject these premiums are among his main priorities for his time in office. However, as he stated in his inaugural address, “Many Californians will no doubt be surprised to learn that the Insurance Commissioner does not have the legal authority to reject excessive health insurance premium increases.” Unfortunately, despite health reform, even the federal government does not have the authority to review and strike down unreasonable rate increase requests.

Instead, Commissioner Jones has requested that Blue Shield delay implementation of the rate hike so that he and state regulators have the opportunity to fully review the increase. In a statement on January 6, 2011, Jones said, “I find it stunning that Blue Shield would seek to impose such massive premium increases on policyholders during these troubling economic times....[T]hese premium increases will impose significant financial burdens on struggling families and, in some cases, will lead to the loss of health care coverage all together.”

This is just the first fight of many that Commissioner Jones will face with the insurance industry. In his inaugural address, he identified his main objective as “making the California Department of Insurance the strongest consumer protection agency in the nation” and to “set the standard for other consumer protection agencies.” His three main priorities are:

1. To implement federal health care reform and build on that reform by granting the insurance commissioner the authority to reject excessive premium increases;
2. To level the playing field for consumers and business as they deal with insurance companies...to make sure that consumer complaints are being addressed and that insurance companies are not taking advantage of consumers; and
3. Ensuring that California has a viable and competitive insurance market.

To implement his first priority, Commissioner Jones has created a new senior leadership position titled, “Deputy Commissioner for Health Care Policy and Reform.” He will continue the efforts to provide the commissioner and the Department of Managed Care the legal authority reject excessive health care premiums and he will see to it that he has the legal authority to enforce the new federal health care reform. Jones has already signed an emergency regulation giving him the authority to enforce in California, the new federal 80% medical loss ratio for the individual health insurance market. Existing California law requires insurers to spend at least 70% of premiums from the individual market on medical care. Jones’ proposal aligns California’s regulations with the national Medical Loss Ratio rules established under the federal health reform law that took effect on January 1, 2011.

The next four years under Insurance Commissioner Jones promise to be one of the most consumer oriented terms ever in California. It will be a challenge to deal with the special interests of the insurance carriers while working to protect the rights of California’s insureds. But so far, Dave Jones has demonstrated that he is ready to stand up to the insurers and protect consumers.