As many healthcare providers have experienced, anti-assignment provisions in ERISA health plans can be a full-stop to recovering unpaid claims. In good news, the Ninth Circuit Court of Appeals recently decided Martin Luther King, Jr. Community Hospital v. Community Insurance Company dba Anthem Blue Cross Blue Shield, et al., No. 19-55053, __F.App’x__, 2020 WL 5870513 (9th Cir. Oct. 2, 2020), which is a decided win for providers.

In this case, the Ninth Court considered a trial court’s award of damages in favor of Martin Luther King, Jr. Community Hospital (“MLK”), for services rendered to employees of Budco— the sponsor of the ERISA plan (the “Plan”). Budco’s employees made covered visits to MLK. Although the employees had assigned their benefit payments to MLK, Anthem—the Plan administrator—ignored the assignments, and made payments directly to the employees, who were beneficiaries under the Plan. The employees retained these payments. When MLK sought payment, Anthem ignored the request. Anthem, in refusing to pay MLK, asserted that an “anti-assignment” provision was part of the Plan and justified its payments directly to the employees.

To recover the assigned payments, MLK asserted two grounds in support of its claims. First, MLK asserted that the language of the anti-assignment provision did not prohibit the assignments. The district court did not rule on this contention. Second, MLK asserted that the district court should ignore the anti-assignment provision because it was not part of the Plan.

The coronavirus epidemic has obviously made all our lives more complicated. Unfortunately, this headache-inducing complexity extends to our health insurance as well. Millions of Americans do not know what kind of coverage they have for coronavirus testing, how much they should have to pay for that testing, or whether there are any hidden “gotchas” that insurers might use to deny their claims or reduce payment for testing.

Fortunately, the California Department of Insurance (CDI) recently issued a COVID-19 Testing and Coverage Frequently Asked Questions (FAQ) notice which helps answer some of these questions. (Much of the information is derived from federal law, so even if you don’t live in California, this FAQ may still help you.)

The FAQ addresses numerous issues, but the most important takeaways are:

On Monday, the White House issued President Trump’s Executive Order on Saving Lives Through Increased Support For Mental-and Behavioral-Health Needs, which orders the creation of a Coronavirus Mental Health Working Group (“the Working Group”), the submission of a plan by the working group for addressing mental health impacts of COVID-19, and calls for agencies to maximize support, including safe in-person services, for Americans in need of behavioral health treatment. The Working Group will issue recommendations in 45 days.

Health and Human Services Secretary Alex Azar, who will serve as co-chair for the Working Group, issued the following statement,

“We know that the COVID-19 pandemic has created or exacerbated serious behavioral health challenges for many Americans, both adding new stresses and disrupting access to treatment. The President’s Executive Order is a welcome opportunity to increase efforts to address the mental health effects of the pandemic, which have already included hundreds of millions of dollars in grants and historic flexibilities to ensure Americans can continue to receive treatment for mental illness and substance use disorders.”

On Friday September 25, 2020, California Governor Gavin Newsom signed a law that strengthens and expands mental health parity protections in California. This law amends the California Mental Health Parity Act by adding significant new protections that are good news for participants in both group and individual healthcare insurance policies (including disability policies that cover healthcare), and bad news for insurance companies that have continued to unfairly deny medically necessary coverage for the treatment of mental health and substance use disorders. Co-Founding Partner Lisa S. Kantor, working with other mental health advocates and one of the bill’s sponsors, was instrumental in the development of this law.

Among other highlights, the new law now covers all generally recognized mental health disorders as well as substance use disorders, whereas the prior law only covered a list of nine mental health disorders that were deemed severe. The legislature found the prior list was “not only incomplete and out-of-date, but also fails to encompass the range of mental health and substance use disorders whose complex interactions are contributing to overdose deaths from opioids and methamphetamines, the increase in suicides, and other so-called deaths of despair.”

The law clarifies that insurers must cover treatment at all intermediate levels of care for mental health and substance use disorders, including residential care, partial hospitalization, and intensive outpatient treatment. The legislation expressly cites two groundbreaking decisions in cases brought by Kantor & Kantor’s Co-Founding Partner  Lisa KantorHarlick v. Blue Shield of California, and Rea v. Blue Shield of California – in which courts in California required residential treatment be covered under the prior law. Nevertheless, insurers have continued to insist that the California Mental Health Parity Act does not mandate necessary residential treatment for mental health disorder patients, an argument that should no longer be viable.

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On average, every 2 minutes a woman is diagnosed with breast cancer in the United States.

  • In 2020, an estimated 276,480 new cases of invasive breast cancer will be diagnosed in women in the U.S. as well as 48,530 new cases of non-invasive (in situ) breast cancer.
  • 64% of breast cancer cases are diagnosed at a localized stage (there is no sign that the cancer has spread outside of the breast), for which the 5-year survival rate is 99%.

In California, it has long been the law that it is up to the homeowner to decide how much insurance she needs, and that if a homeowner is uninsured, it is her fault.  This is the law despite the fact that insurance companies set the amount of insurance offered in a policy and do not inform insureds that they have not just the right, but the responsibility, to confirm that the amount is adequate if they need to rebuild. As a result, most homeowners who find themselves needing to rebuild lack the funds to do so.

The California Department of Insurance is aware of the problem and created regulations to address the issue. Since 2010, there has been an insurance regulation in California requiring that insurers take steps to provide accurate replacement cost estimates for homeowner insurance.  This regulation, 10 CCR Section 2695.183, was tied up in California courts for seven years as the insurance lobby fought against it. In January 2017, the California Supreme Court ruled that the regulation was valid.

What does Section 2695.183 say? First, the insurance company or agent does not have to provide an insured with an estimate of replacement value, or provide a suggested amount of insurance. If the insurer chooses to do so, then the estimate must include certain elements. It must include the cost of labor, materials and supplies.  It must include overhead and profit.  It must include the cost of debris removal.  It must include the cost of permits and architect plans.  It must consider and include the specific features of the home to be rebuilt. That includes the type of foundation, the type of frame, the roof, the siding, any issues relating to slope, the square footage, the geographic area, the age of the structure, and the materials used in the interior and the finishes.

September 6 – 12, 2020 is the American Foundation for Suicide Prevention’s (AFSP) annual National Suicide Prevention Week. This year’s message is: #KeepGoing. AFSP reminds us all that there are simple things we can each do in order to protect and safeguard our mental health, and that together, we can make a difference on the mental health of our community and those around us. . . and…together we can #KeepGoing!

As someone who overcame years of contemplating suicide as an option, and as who has lost too many people to suicide to name herein, suicide prevention is personal to me –as I am sure it is to many of you reading this. So, please do what feels right to you this National Suicide Prevention Week –get involved in ways that nourish your Self and soul. ~ And, please, most importantly: if you are struggling with ideas of taking your life or completing suicide…please do not follow-through. I know how it feels like the only option. But I am here to tell you that I will never regret not following through on the thoughts. There is hope for you – hope for your brighter days ahead and for a life free from thinking that the world would be better off without you. Indeed, you are very necessary. Get help today if you need help -you deserve it.

During this week of advocacy, education, story sharing, remembrance and more, AFSP encourages us to:

Kantor & Kantor, LLP recently achieved a victory in Olis-v.-Unum-Life-Insurance-Company-of-America No. 8:19-cv-01347-JVS-DFM, __ WL __ (C.D. Cal. July 27, 2020), a lawsuit seeking payment of an ERISA-governed disability claim based on debilitating migraines. Disability cases involving subjective reports of pain may be the most difficult benefit cases courts have to consider. This case provides a good example of what makes for a convincing claim, and what courts are looking for in deciding whether to award benefits. Our client was represented by Kantor & Kantor attorneys, Brent Dorian Brehm, Sarah Demers, and myself, Peter Sessions.

The plaintiff in this case was a 36-year-old woman who was employed by Enterprise, the rental car company, as an account specialist, which involved significant computer use. She had suffered from headaches for much of her life, but in 2016 those headaches intensified into recurrent migraines, which were accompanied by vertigo and visual disturbances. She took a medical leave of absence to address her problems and then tried to return to work, but she only lasted another month before she had to stop working entirely. During this time, Plaintiff visited numerous doctors in a number of specialties, tried several medications, and attended countless physical therapy sessions.

Plaintiff submitted a claim for LTD benefits to Unum Life Insurance Company of America, which Unum denied on the ground that she had not presented sufficient evidence to prove that she could not return to work. Plaintiff unsuccessfully appealed, and then filed suit against Unum under ERISA. The parties filed cross-motions for judgment under Fed.R.Civ.P. 52.

Here at Kantor & Kantor, LLP, every member of our team is highly qualified for the cases that we handle. Our team works together and we all hold to a high standard of representation. We commit ourselves to each case we take on and we have seen that hard work and consistent effort pays off. Our ERISA long term disability lawyers have a variety of backgrounds and we are proud of the experience and personal dedication that our lawyers bring to the table. When you are dealing with a long term disability, it is a matter that can affect you for years to come or you may have already been dealing with for a significant amount of time.

It is important that you are able to find results in a timely manner and it is our desire to help you with this. Our team takes on a number of insurance cases, as well as ERISA and personal injury. We want to secure an outcome that is more than just a momentary relief but can assist you on a long term basis, if needed. Get started by allowing us to review your case. We can offer insight you may not be able to gain on your own. With extensive experience and time handling similar cases, we can quickly asses and recognize key points of a case. Please note we are a contingency law firm. This means that we get paid only if there is a settlement or favorable decision. You pay nothing out of pocket.

Here is additional information and a few blog posts within the context of COVID-19 ad its effects on our lives.

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