Okay, that headline is a simplification, and maybe even an overstatement, but that’s the attitude of insurance companies, and even courts, when looking at evidence related to life, health and disability claims.

At Kantor & Kantor, one of the most common complaints we hear from prospective clients goes something like this: “When I called the insurance company, they told me to do xxxxxx. So I did xxxxxx. But then they sent me a letter denying my claim/cancelling my coverage because I didn’t do yyyyyy, as the policy required.”

Unfortunately, no matter how much we want to believe the prospective client, our answer is almost always the same: you have to understand, and act as though someone will one day soon say to you,  “if you can’t prove it, it never happened.”

If you are receiving STD or LTD claims and your claim gets denied, you will usually have 180 days from the date you receive the denial letter in which to submit an appeal that includes all of your supporting documentation.  If you miss that deadline, you will likely lose your right to claim those benefits permanently. 

 Many people wait too long to seek help with their appeal from an attorney. Some probably figure they can handle it on their own, some are in denial, and still others are just slow movers. No matter the reason for waiting to get help, the longer you wait, the harder it is for an attorney to give you advice, or even to agree to take your case.  Sometimes, it may turn out you don’t need a lawyer. You may learn during an initial consultation that with just a few additional steps you can handle the appeal on your own.  Or, you may learn that the matter is far more complicated than you expected, and legal help is well advised.  The point is, don’t wait.  Among the many things necessary to adequately support an appeal are medical records and letters from treating physicians. Doctors are extremely busy and so are their offices. It can take months to obtain copies of records and to reach your doctor to enlist his or her help in writing a response to the insurer’s medical reviews.  Often, there are also other types of evidence needed to help support an appeal: New imaging diagnostics, updated physician vists and exam notes, Functional Capacity Evaluations, Vocational Assessments, Neuropsychological Testing. These records and tests take time, as do the reports that follow.

 The longer you wait to enlist the help of an experienced ERISA attorney, the less time he or she will have to guide the process and help you to obtain this necessary documentation. Six months pass by very quickly, do not hesitate to seek counsel as soon as your benefits are denied.  You’ll be glad you did.

Founded in 2013 by former Congressman Patrick J. Kennedy (D-R.I.), The Kennedy Forum focuses on advancing evidence-based practices, policies, and programming in mental health and substance use issues. This is achieved through promoting public discourse in health and addiction issues, ensuring equal coverage for patients living with mental health and/or substance use disorders; and advancing prevention and treatment throughout the entire continuum of the healthcare delivery system. The Kennedy Forum’s collaborative partnerships help to foster greater provider accountability, integration and coordination, cutting-edge technologies, and brain fitness and health. The Kennedy Forum’s most recent step forward in improving the lives of individuals living with mental illness and addiction, and promoting behavioral health for all is the Parity Registry. To learn more about The Kennedy Forum, visit https://thekennedyforum.org/.

Insurance companies continue to violate the 2008 Mental Health Parity and Addiction Equity Act, which requires them to treat diseases of the brain, such as clinical depression and opioid addiction, the same way they treat illnesses of the body, such cancer and heart disease. The Parity Registry is a powerful tool to help families fight back. The Parity Registry is the only resource in the United States where consumers, family members, providers, case managers, and legal advocates can:

  • Learn how to file an appeal with their health plan.

When you think of what lawyers do for a living, the first thing you probably think of is arguing over a case in front of a judge.

You may be surprised to learn, then, that in the federal courts this staple of practicing law seems to be on the way out. The federal district courts – the trial courts of the federal system – are increasingly holding fewer and fewer oral arguments. Some district courts even have a standing default rule that they won’t hear oral argument on a motion unless the presiding judge explicitly asks for it.

This trend is even more accentuated in the federal circuit courts – the appellate courts of the federal system. While the Supreme Court of the United States holds oral argument in almost all of its cases, the circuit courts of appeal do not.

Mental health issues are definitely more widely spoken about in todays society. But lip service doesn’t necessarily help with the overwhelming challenges a person has to face in living with a mental illness.

Mental illness is more common than any of us would like. According to the National Institute of Mental Health there were an estimated 43.4 million adults aged 18 or older in the United States living with a mental illness in 2015. This number represented 17.9% of all U.S. adults. (See https://www.nimh.nih.gov/health/statistics/prevalence/any-mental-illness-ami-among-us-adults.shtml).

The National Alliance on Mental Illness reports the following statistics regarding mental illness rates in the United States:

As you know, churches occupy a special place in the law. For example, the First Amendment bars the government from prohibiting the free exercise of religion, and churches, indeed almost all religioous institutions, get special tax treatment from the IRS.

However, you may not know that this distinction can also affect your employee benefits. Almost all employee benefits are governed by a federal law called ERISA (the Employee Retirement Income Security Act of 1974). This law provides various protections, including imposing a fiduciary duty on your employer to act in your best interests in administering your benefits.

However, if you are a beneficiary of an employee benefit plan established by a church (or other religious organization), your benefits are not governed by ERISA, because ERISA has an exemption for “church plans.” (There is also an exemption for government plans.) As a result, you may lose protections under ERISA if you are a church employee.

The short answer is “Yes;” especially if they are carefully drafted to adress disability issues. To be effective, a personal statement should be directed to an insured’s inability to perform the material duties of his/her occupation, or any occupation that one may be suited for by education, training and experience. The more detail, the better.

For many years, insurers routinely disregarded claimants’ personal statement describing their illness or occupational difficulties because the personal statement was not “medical evidence.” Or, a statement may have been disregarded because it described “subjective” symptoms, which were not “verified” by MRI’s, x-rays or diagnostic studies. In the last few years, the Ninth Circuit has been critical of insurers who have insisted on “objective evidence” to prove disabilities caused by pain and fatigue. See, Salomaa v. Honda LTD Plan, 642 F.3d 666 (9th Cir., 2011) (“Many medical conditions depend for their diagnosis on patient reports of pain or other symptoms, and some cannot be objectively established until autopsy. In neither case can a disability insurer condition coverage on proof by objective indicators such as blood tests where the condition is recognized yet no such proof is possible.”)

Recently we have seen courts accept personal statements of claimants, friends and co-workers as strong evidence of disability. See Demer v IBM Corporation LTD Plan, 835 F.3d 893 (9th Cir., 2016) (Statement by a friend attesting to side effects from medication) and Jahn –Derian v. Metropolitan Life Ins. Co., 2016 WL 1355625 (C.D. Cal., 2016) (Statement from co-worker attesting to the plaintiff’s failed attempts to work with her condition was persuasive evidence).

Many people know that at Kantor & Kantor, LLP we help clients when their insurance company denies coverage life insurance claims, long-term disability claims, and eating disorder treatment claims. At Kantor & Kantor, LLP we also help clients when their insurance company denies claims for certain expensive medications including: curative Hepatitis C medications, ADHD medications and, Xyrem, a medication used successfully to treat a variety of disorders, including fibromyalgia and narcolepsy.

When Insurance Says Your Prescription Is “Not Medically Necessary”

Two women’s lives were inexplicably devastated after they attempted to fill their prescriptions for Xyrem, only to be told that their insurance company had denied coverage. One of the women, we’ll call her Jane to protect her anonymity, had been taking Xyrem for nearly a decade and the other woman, we’ll call her Mary, had been taking Xyrem for over five years. For both women, the medication had always been covered by their insurance companies. Yet for some unknown reason, when their doctors submitted their prescription-refill, both women received similar letters from their insurance companies (Cigna and Anthem) stating, “Coverage for the requested medication is denied because the medication does not meet the criteria of “medical necessity” under your description of benefits.” Both Cigna and Anthem also told the women that their prescription was “off-label” and therefore not covered for that reason, as well.

Many of our clients suffer from chronic pain. For some, chronic pain is a symptom of an underlying condition, and for others it is the main condition.  In in either case, chronic pain can be and often is disabling. Because so many of our clients are affected by chronic pain, we want to spotlight and make people aware of an organization that provides information, support and education for those who suffer from chronic pain.

The American Chronic Pain Association’s mission is:

  • to facilitate peer support and education for individuals with chronic pain and their families so that these individuals may live more fully in spite of their pain; and
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