Articles Posted in ERISA

First reported in 2011, Breast Implant-Associated Anaplastic Large Cell Lymphoma, referred to as BIA-ALCL, is a rare and highly treatable type of lymphoma that can develop around breast implants. This is a cancer of the immune system, not a type of breast cancer. However, when caught early, BIA-ALCL is usually curable.

BIA-ALCL occurs most frequently in patients who have breast implants with textured surfaces. BIA-ALCL has been found with both silicone and saline implants and both breast cancer reconstruction and cosmetic patients. To date, there are no confirmed BIA-ALCL cases that involve only a smooth implant.

Common symptoms of BIA-ALCL include breast enlargement, pain, asymmetry, lump in the breast or armpit, overlying skin rash, hardening of the breast, or a large fluid collection typically developing at least more than one year after receiving an implant, and on average 8 to 10 years after receiving an implant.

What happens if the people in control of an employee benefit plan’s assets make decisions that benefit themselves at the expense of the plan participants? What if they are lazy and don’t make decisions based on a reasoned, researched, thoughtful process? How are they held accountable?

Under ERISA, an employee benefit plan’s assets are meant to be held in trust for the use of the plan participants and their beneficiaries. The people who manage those assets, have the authority to determine who is eligible for benefits under the plan, and make determinations on claims submitted to the plan are plan fiduciaries and they owe fiduciary duties to the plan’s participants and beneficiaries.

An ERISA plan fiduciary must “discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of administering the plan, with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use…” 29 U.S.C. §1104.

Your claim for pension benefits has been approved! A check came in the mail from your pension plan. You open it, look at the amount of your monthly benefit, and wonder how the dollar amount was calculated. You shrug and deposit the check, assuming the pension plan has correctly calculated what you are entitled to receive. But is it correct?

Although you may think calculating the amount of your monthly pension benefit is a simple matter of plugging some numbers into an equation based on the language in the pension plan, there are multiple ways a plan administrator can make an error when calculating the amount. According to the Department of Labor, the top ten most common errors made when calculating pension benefits are:

  1. The plan did not include all your relevant income when calculating the benefit amount. One of the variables used to calculate pension benefits is pre-retirement earnings. The higher your earnings were when you were working, the higher the amount of your pension benefit. However, if the pension plan mistakenly excludes some of your compensation – such as bonuses, commissions, or overtime – your benefit may be smaller than it should be.

Lupus is a chronic, autoimmune disease that can damage any part of the body (skin, joints, and/or organs inside the body). Chronic means that the signs and symptoms tend to last longer than six weeks and often for many years.

In lupus, something goes wrong with your immune system, which is the part of the body that fights off viruses, bacteria, and germs (“foreign invaders,” like the flu). Normally our immune system produces proteins called antibodies that protect the body from these invaders. Autoimmune means your immune system cannot tell the difference between these foreign invaders and your body’s healthy tissues (“auto” means “self”) and creates autoantibodies that attack and destroy healthy tissue. These autoantibodies cause inflammation, pain, and damage in various parts of the body.

Lupus is also a disease of flares (the symptoms worsen and you feel ill) and remissions (the symptoms improve and you feel better).

Mental Health Awareness Month has been observed in May in the United States since 1949 by Presidential proclamation. Each year millions of Americans face the reality of living with a mental condition. According to the National Institute for Mental Health, an estimated 26.2 percent of Americans ages 18 and older—about one in four adults—suffer from a diagnosable mental illness in any given year. Not only are these adults affected by one mental illness; 45% of these adults meet criteria for two or more disorders.

Mental illness is a real and treatable set of conditions that includes major depression, bipolar disorder, eating disorders, panic attacks, generalized anxiety disorder, attention deficit hyperactivity disorder, and schizophrenia, among dozens of others. These disorders are serious enough to significantly impact a person’s daily life functioning, whether at school, work or in their relationships with others.

Among children, ADHD, behavior problems, anxiety, and depression are the most commonly diagnosed mental disorders. According to The Journal of Pediatrics, 2018,

In a win for healthcare consumers, a federal judge in Washington D.C. last week struck down major parts of a Department of Labor regulation that expanded the ability of small employers and sole proprietors to band together to form Association Health Plans (AHPs) to evade key requirements of the Affordable Care Act (ACA).

Although AHPs are bound by some of the requirements of the ACA, they do not have to provide all of the benefits mandated under the ACA, and they can use factors such as age, gender and occupation to set premiums when other small plans may not do so.  While the Department of Labor touted the regulation as providing a way for small businesses to get more affordable health insurance coverage, critics said that the new regulation was an invitation to fraud, by giving incentives to shady operators to offer cheap plans that are literally too good to be true.  State and federal regulators have regularly tried to clamp down on such fraudulent schemes, which have left workers and their families with hundreds of millions of dollars in unpaid medical claims over the years.  In addition, many saw the regulation as a not so subtle way to undermine the ACA, by gutting many of the consumer protections and attracting healthier people away from the ACA marketplaces with lower premiums.

Attorneys general from eleven states and the District of Columbia brought suit, claiming the regulation violated both the ACA and ERISA, the federal statute that regulates employer-provided healthcare plans and other employee benefits.  The district court agreed, holding that the regulation could not be squared with ERISA because it allowed unrelated employers and business owners with no employees to join AHPs, thereby expanding the concept of ERISA healthcare plans beyond the context of employment.  The court also concluded that the regulation created absurd results under the ACA, and would “undermine the market structure that Congress so carefully crafted.”  The court has asked the government for briefing on whether any part of the regulation can stand given last week’s ruling.  Once the Court has ruled on that final issue, the Department of Justice has indicated that it will appeal.  In the meantime, many consumer healthcare advocates are celebrating the court’s order disallowing what they saw as an attempt to do an end-run around ERISA and the ACA.

If you suffer from certain medical conditions including Multiple Sclerosis, Complex Seizure Disorder, Dementia to name just a few, you may also suffer from cognitive impairment which can affect your ability to perform the duties of your job.  If you become disabled and make a claim for disability benefits, it is extremely important to document the cognitive impairment you suffer. Neuropsychological testing is the way to document your cognitive impairment.

If you suffer from cognitive impairment, you likely are already treating with a neurologist. He or she may order this testing as a routine part of your care.  If that has happened, you may be able to use the test results as part of the evidence you provide to your disability insurer.  If that has not already happened, we strongly recommend you get this testing done to support your claim. Note that if your neurologist orders the testing as part of your treatment and care, your medical insurance may cover the cost, which is high. If, however, you have the testing done on your own or through your attorney, insurance most likely will not cover the cost as it is forensic testing – testing to provide evidence.

Not all neuropsychologists understand the intricacies of documenting cognitive impairment to support a disability claim.  At Kantor & Kantor, we work with several highly esteemed and experienced neuropsychologists who do understand what we need to document.  They work with us to determine the which tests to conduct to best document your cognitive losses.

Seeking treatment when symptoms from mental health conditions become severe can be scary. A person experiencing paranoia, delusions, or hallucinations may not be able to advocate for themselves. They may not be able to tell doctors and nurses which medications they have adverse reactions to, how to best treat their symptoms, and who to call in case of emergencies. This may lead to them being put in situations that exacerbate rather than relieve their symptoms.

One tool that can help is a Psychiatric Advance Directive, or PAD.   A PAD is written by a currently competent person who lives with a mental illness.  The PAD describes treatment preferences and/or names a health care proxy or agent to make decisions if the person is unable to do so for themselves.

What a PAD Can and Cannot Do

April is Parkinson’s Disease Awareness Month, so we thought we would write a blog entry talking about the illness and the organization that provides information, support and education for those who suffer from Parkinson’s.

The Parkinson’s Foundation (PF) 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.

Many of our clients suffer from Parkinson’s.  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 Parkinson’s and support for care partners and family. These are just a few examples of the many resources available on the PF’s website.

In the last decade in the U.S., teenagers and young adults are experiencing a dramatic increase in mental health conditions that is not present in other American age groups. According to a recent article in the Journal of Abnormal Psychology, 2010 teenagers are much more likely to develop major depression, have suicidal thoughts, or live with crippling anxiety than teenagers from the 2000s.

Why are today’s teenagers more susceptible to depression and anxiety? Researchers who studied the data theorize that because the biggest increase occurred around 2011, it is unlikely the cause is the political climate, the economy, or genetics. Instead this uptick in mental health concerns is attributed to the cultural changes in the way young people spend their time outside school and work and how they communicate with each other. Teenagers are sleeping less, exercising less, and spending less time interacting with other people face-to-face, instead spending significantly more time scrolling through social media and communicating electronically. The researchers conclude that teenagers and young adults should focus on activities known to improve mental health – face-to-face social interaction, exercise, and sleep. You can read more about the study and its findings HERE.

Put the Phones Down for a Bit

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