Articles Posted in ERISA

California Department of Insurance Commissioner Dave Jones has opened an investigation into allegations that health insurer, Aetna, denies insureds’ claims and requests for prior authorization for medical care without ever reviewing medical records. Although Aetna’s improper utilization review practices come as no surprise to the attorneys at our office, this revelation has sparked widespread, national media attention.

The allegations giving rise to Commissioner Jones’ investigation into Aetna’s claims handling practices come from videotaped deposition testimony of Dr. Jay Ken Iinuma who served as medical director for Aetna’s Southern California business operations between March 2012 and February 2015. During the deposition, Dr. Iinuma said he was following Aetna’s training when he never once looked at patients’ medical records himself before denying their claims for coverage.

Dr. Iinuma’s deposition was taken as part of a lawsuit filed by a college student, Gillen Washington, who was denied coverage for an infusion of intravenous immunoglobin (IVIG) when he was 19 to treat a rare auto-immune disorder.  Washington sued Aetna in Orange County Superior Court for breach of contract and bad faith, alleging that Aetna’s “reckless withholding of benefits almost killed him.”  Aetna initially paid for Washington’s treatments (each fusion can cost up to $20,000) but when Washington asked Aetna to pre-authorize a November 2014 infusion, Aetna said it was obligated to review Washington’s medical records.  Aetna claims that Washington’s treating provider failed to timely provide medical records in response to Aetna’s pre-authorization review.  Washington counters Aetna’s narrative of the events surrounding Washington’s ongoing requests and medical need for IVIG treatment.  However, it was during Dr. Iinuma’s deposition, where the real bombshell in the case was revealed. The former Aetna medical director testified that he never read Washington’s medical records and knew nothing about the disorder Washington was suffering from despite denying Washington’s pre-authorization request and signing the denial letter.  Dr. Iinuma further testified that most of his work was done online and he would rarely if ever consult with an Aetna nurse about a particular claim prior to denying it.

In a story that’s far too common, Montreal writer Samuel Archibald recently shared his story of what he called “abandonment by his insurer.” While away from work on leave to treat his depression, Archibald was unknowingly tracked on social media by his insurance company – and everyday simple information about his life was used against him to deny his health claim. Out for a run? He must not be depressed. Eating a meal with family? He must not be depressed. Or at least these are the hasty judgments that his insurer made about his mental health. Did they take into account that exercise can be a wonderful natural anti-depressant? Did they take into account that eating is necessary to survive, and spending time with family can be a healthy part of treatment and recovery? Were they even medically trained to make this type of conclusion, and if so, is it ethical to make this type of conclusion without actually treating a patient in person? The questions go on and on, and in Archibald’s outrage, he took pen to paper and brought light to a very complicated issue in the insurance world. If their job is to help people when they are sick and in need, why are they so often leaving people hanging? Why are they causing harm?

Insurance companies have a bad reputation for paying health claims, and here’s why – they have a long history of denying claims and leaving people in the dark. Leaving people confused. Leaving people in financial distress. Leaving people to suffer without the support they are entitled to.

So what’s the reasoning behind all the denials? The insurer has a bottom line – and unfortunately the bottom line is not your health and wellness. “It’s an insurance company that administers the plan, that decides on the claim, and ultimately has to foot the bill if the benefit is granted – and that’s a conflict of interest that everyone can easily see,” said Sean M. Anderson, a University of Illinois expert in employee benefit plan policy and regulation.

          Often our clients are prescribed pain medication to help control the symptoms of their disabilities.  It is well recognized that the side effects of pain medication can be disabling. An employee should not be exercising judgment, operating machinery or driving while on pain medication. See, Sabatino v. Liberty Life Assurance Co. of Boston, 286 F. Supp. 2d 1222, 1231 (N.D. Cal. 2003) (insurance company’s reliance on medical opinion “suspect” where it failed to take account of claimant’s “severe and chronic pain and the cognitive impairments” caused by her pain medication); Godfrey v. BellSouth Telecomms., Inc., 89 F.3d 755, 759 (11th Cir. 1996) (decision to deny disability benefits arbitrary where insurer ignored side effect of drowsiness caused by claimant’s medication) and Adams v. Prudential Ins. Co. of America, 280 F. Supp. 2d 731,741 (N.D. Ohio 2003) (insurer’s decision to deny benefits arbitrary and capricious because the insurer ignored cognitive side effects of claimant’s medication).

          Insurers avoid the obvious disability caused by pain medications by utilizing an unfair review technique.  The insurer will employ a physician to review the medical records and the physician will report that “no adverse side effects of the medication were reported by the attending physician.”  This is a misnomer for two reasons: (1) If drowsiness or cognitive impairment is an expected side effect of the medication, it will not be reported as an “adverse” side effect and (2) the failure of one’s physician to record an expected side effect in the records does not mean that it does not exist.

          We recommend that you accurately report medication side effects to your physician.  You can also report that you do not drive while on the medication and whether you need to take a nap or rest as a result of drowsiness. You should ensure that your medical providers’ records are accurate to properly document your disability, including any and all effects of your medications.

At Kantor & Kantor, we see the same scenario over and over again.   An individual submits a claim to a life insurance company, seeking to receive the life insurance benefits due to them resulting from the death of a loved one.   However, instead of a check, the individual receives a letter from the insurance company telling them why they WON’T be receiving any benefits.     The beneficiary is shocked, but feels helpless.  

The insurance company must know what they are doing, RIGHT?   

The insurance company wouldn’t negligently or intentionally fail to pay which should be paid, RIGHT?

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.

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