The classic “he said, she said” scenario shouldn’t apply to healthcare claims. A denial based on medical necessity arises when there are two opposing opinions: (1) the treating physician who recommends that a patient receive treatment necessary for the patient’s condition; and (2) the insurance company’s physician reviewer who has never seen the patient. In deciding medical necessity, the insurance company must consider clinical judgment. But whose clinical judgment applies?

Clinical judgment is defined as “the application of information based on actual observation of a patient combined with subjective and objective data that lead to a conclusion.” http://medical-dictionary.thefreedictionary.com/clinical+judgment.  In most cases, the only physician who has “actual observation of a patient” is the treating physician.

Yet insurance companies give little to no credence to the clinical judgment of treating physicians. For example, major health insurer, Anthem, states that its physician reviewers will apply guidelines, “Anthem corporate medical policy, and other decision-support material.” And when criteria is not available, “physician reviewers make a determination based on the available information and their independent clinical judgment.” https://www.anthem.com/wps/portal/ahpfooter?content_path=provider/nv/f4/s4/t0/pw_002053.htm&label=Medical%20Management

With increasing frequency, insurance companies like Cigna, Unum, MetLife and Prudential are denying long-term disability (“LTD”) claims due to discrepancies between what the claimant/treating physician is saying on the claim forms and what is stated in the medical records. Essentially, the insurance company will say that the symptoms being described for purposes of the LTD claim are not reflected in the treatment records, so there’s no proof that these were ongoing problems.

This often occurs because of one main reason:  people always want to put their best foot forward.  When the doctor starts the appointment with “how are you feeling?” it’s in our human nature to simply reply “I’m doing okay.” Generally, no matter how we’re actually feeling, we don’t want to be viewed as a complainer so we may tend to downplay our symptoms, even to the extent of telling our doctor that everything is fine…when it’s clearly not.  Usually, when we respond this way, we mean that everything is okay considering the circumstances we find ourselves in, or sometimes just that “things could be worse.”  But, that’s not how it later appears in medical records.  Instead, what this often leads to is medical records showing “no active complaints” or “patient is improving” or “symptoms have subsided,” which gives the insurance company all the ammunition they need to deny the LTD claim.

So, be clear with your doctors about everything you’re experiencing. Don’t hide your symptoms.  Be detailed, and offer real-life examples. Don’t just say “I’m having memory problems.”  Give examples of having lost something, or forgot something you’ve never before forgotten.  Instead of “I’ve been very fatigued lately” explain what you were doing (like shopping, or picking up a child, or gardening, etc.) and how your fatigue interupted or prevented you from finishing the activity.  Also, check with your doctor or the doctor’s staff, to make sure everything you’re telling him/her is making it into your records.

Kantor & Kantor is happy to announce that it has won an important victory in New Jersey on behalf of a client with bulimia nervosa. The decision touches upon issues that we see too often in health insurance denials and long-term disability denials.

Our client, whose name is being kept anonymous to protect her privacy, began experiencing symptoms of her eating disorder when she was only eight years old. The eating disorder was left untreated for ten years. When she entered a residential treatment facility for her bulimia in September 2011, the facility submitted a claim for benefits to her insurance company, Horizon Blue Cross Blue Shield of New Jersey.

In a series of concurrent reviews, Horizon and its behavioral health managed care partner, Magellan Behavioral Health, paid for the first three weeks of treatment, but refused to pay past that date, contending that the treatment she was receiving was no longer “medically necessary.”

There may come a time in your life when you will need to consult with a lawyer – whether it be good news or bad news. We routinely speak with individuals who have had life, health, and disability claims denied by their insurance companies. Understandably, this is a very difficult time for the individuals who call us. We understand that, and try to make the process simple…but we need your help.

As lawyers, we are well-versed in the practice of law, but we rely on the information from our clients to steer us in the right direction and guide each case. It takes TEAMWORK to get a successful outcome for our clients.

Here are a few tips for talking to your lawyer and sharing with them what they need to know.

On May 11, 2017, the US Court of Appeals for the Ninth Circuit issued a decision in Orzechowski v. Boeing Co. Non-Union LTD Plan, et al., Case No. 14-55919 (9th Circ. May 11, 2017) upholding the application of the California law which invalidates “discretionary clauses” in Long Term Disability (LTD) plans and other life and disability contracts of insurance.

Prior to 2012, insurers in California (and many other states) were allowed to place “discretionary clauses” into their insurance policies. These clauses, while seemingly innocuous, actually made it significantly harder for insureds to challenge wrongful denials of insurance benefits in court. These clauses forced Federal Courts to review denials of insurance benefits under an “abuse of discretion” standard. In order to prevail under this standard, an insured not only had to show that they were entitled to the benefits under the contract, but they also had to show that the insurer’s decision was “arbitrary and capricious.”  The effect of this was that Court’s were routinely deferring to the “discretion” of the insurer thereby upholding their denial. This created is a much more difficult standard of proof for insureds to meet than in an ordinary civil lawsuit, where one need only prove their case by a “preponderance” of the evidence, and where Courts do not give any special weight to the evidence presented by the other side.  The result of the so-called discretionary clauses was that many insureds lost their lawsuits for wrongfully denied benefits even when, technically, they were entitled to benefits under the term of the contract.  Court’s would simply hold they could not find evidence the insurer “abused its discretion” or acted unreasonably enough so as to justify overturning the insurer’s denial of benefits.

In 2012, the California legislature passed California Insurance Code §10110.6, which provides that all discretionary clauses in California insurance contracts are null and void, if the insurance policy or plan “renewed” as of January 1, 2012. As a result, Courts will now look at the evidence anew, or “de novo” to make a determination of whether the insured is entitled to benefits, instead of simply deferring to the insurance company’s conclusions.  This is a much easier burden for insureds to meet than the older “abuse of discretion” standard.

“There used to be considerable skepticism that Fibromyalgia was a real disease. No more.”

Kennedy v. The Lilly Extended Disability Plan, –F.3d–, 2017 WL 2178091 (7th Cir., 2017)

It has been said that disability insurance carriers view a Fibromyalgia diagnosis with skepticism. The disease is an “invisible disease” which cannot be measured on x-ray and its diagnosis is often dependent on an insured’s report of pain, fatigue and cognitive dysfunction. For this reason, insurance carriers often try to discount the disabling nature of the disease.   We see carriers do this by: (1) hiring physicians who do not believe in the disabling nature of the disease or (2) demanding the insured submit “objective proof” of the disability, which cannot exist. There are no x-ray’s or MRI’s used for diagnosing Fibromyalgia.

For over 25 years, I have been representing individuals who have had life, health, and disability claims denied by their insurance companies.   I have represented over 3,000 people.   What is so disheartening to me is that I hear from clients again and again that they “almost gave up before calling” me. They tell me they were beaten down by the process, convinced their insurance company must be right, or that they didn’t know there were lawyers who specialized in handling their kind of case on a contingent basis.   While sometimes the client HAS waited too long for us to help them, usually my law firm, Kantor & Kantor, is able to step in and successfully resolve their claim.

However, I wonder just how many DO give up unnecessarily.   While my view of the insurance industry may appear very cynical, I am 100% convinced that the industry employs a strategy of denying as many claims as possible in the hope that claimants will just give up and go away.   I could write pages upon pages of stories about clients who had almost given up, but for whom we were able to obtain benefits with nothing more than a well written letter.   It sometimes seems like the insurance company is daring their insured to challenge the denial, or to get a lawyer.   If they do, the insurance company will reconsider its denial. If not, the denial will stand and the insurance company will keep the benefits which are rightfully yours.

In the last month, I have obtained over a $1,000,000 in total benefits for several clients who separately told me that they had seriously considered giving up before calling my firm.   This led to me to come back to a familiar thought, which was to wonder about all the people who did simply give up.   I decided to write this blog in the hope that maybe ONE insured might read it, and decide not to give up.   I am not writing this to get business. I have more than I need.   I practice in California, but this blog might be read by someone in Florida, or Illinois, or New Jersey, for example. If it is, and you were considering giving up trying to get your benefits, I am not suggesting you call me.   Go on the internet, or call your State Bar, and find an experienced attorney in your State.   The worst thing that happens, is that no one will take your case  —  but what if they will?

In addition to dealing with short term disability benefits, long term disability benefits, and health insurance denials, many of our clients are also tasked with applying for Social Security Disability benefits. On January 17, 2017, the Social Security Administration adopted new rules for evaluating mental disorders.  These rules reflect the most comprehensive revision in over 30 years to the criteria used to evaluate disability claims involving mental disorders. Changes to the rules reflect up-to-date standards and practices used in the mental health community. Most notably, the new rules reflect information from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM -5”), which is the mental health profession’s standard for classifying mental disorders. The new rules also reflect comments from members of the public and the expertise of disability policy experts, adjudicators, psychiatric professionals, and vocational experts.

Among the many changes are three new listings: 12.11 Neurodevelopmental disorders, 12.13 Eating Disorders, and 12.15 Trauma- and Stressor-Related Disorders.  Additionally, the titles of the listings have been updated to reflect the terms the American Psychological Association uses to describe the categories of mental disorders in the DSM-5.

This table shows the old and new listing numbers and titles:

OLD NEW
12.02 Organic mental disorders 12.02 Neurocognitive disorders
12.03 Schizophrenic, paranoid and other psychotic disorders 12.03 Schizophrenia spectrum and other psychotic disorders
12.04 Affective disorders 12.04 Depressive, bipolar and related disorders
12.05 Intellectual disability 12.05 Intellectual disorder
12.06 Anxiety-related disorders 12.06 Anxiety and obsessive-compulsive disorders
12.07 Somatoform disorders 12.07 Somatic symptom and related disorders
12.08 Personality disorders 12.08 Personality and impulse-control disorders
12.09 Substance addiction disorders 12.09 Reserved
12.10 Autistic disorder and other pervasive developmental disorders 12.10 Autism spectrum disorder
12.11 Neurodevelopmental disorders
12.12 Reserved
12.13 Eating disorders
12.15 Trauma- and stressor-related disorders

Under the new rules, these new mental health listings will remain in effect for five years. To read the full text of Social Security’s Mental Disorder Listings, click here https://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm#12_04 .

 

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April is Parkinson’s Disease Awareness Month, which makes it a fine time to talk about the organization that provides information, support and education for those who suffer from Parkinson’s Disease (PD) as it provides a wealth of information useful in a disability claim.

The Parkinson’s Disease Foundation (PDF) works to find a cure, to advance research, to increase knowledge, to empower the community and to ensure that those living with the disease enjoy the best quality of life possible. http://www.pdf.org/en/mission

This organization can provide valuable information for our clients and their families on topics that include: understanding the illness, coping with a recent diagnosis, managing PD and support for care partners and family. These are just a few examples of the many resources available on the PDF’s website. The website also offers helpful suggestions on living with PD and coping with the trials and difficulties that result from suffering from this progressive condition.

One of the first questions we ask clients calling about the denial of medical benefits is whether the provider (i.e. hospital, treatment center, doctor) was an in-network or ­out-of-network provider. Some insurers use different terms such as participating provider or contracted provider. These terms all mean that the insurance company, or its claims administrator, has negotiated with the provider for a certain rate of reimbursement. Insurance companies negotiate these rates of reimbursement with certain providers so that there is an expectation – from both the insurance company and the provider – of the amount that will be paid for medical services.

For patients who are seeking benefits for medical services, a provider’s network status is important because it affects how much the patient will pay out of pocket for treatment. When patients use an out-of-network provider, there is an additional coinsurance, or charge, that patients must pay out of pocket. This coinsurance can range from 20% to 50% of the eligible charges. Eligible charges are a lesser amount determined by any number of factors in the insurance policy, such as Medicare rates. So when patients receive bills from the provider, or statements from the insurance company, which show that only a fraction of the out-of-network provider’s charges were paid, the reason is that the eligible charge was determined to be less than the billed charges and a coinsurance applied. This can dramatically reduce what the insurance company will pay for an out-of-network claim.

Here are some tips for reducing out-of-pocket medical expenses:

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