Articles Posted in Health Insurance

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.

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.

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.

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?

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