Articles Posted in Health Insurance

When you become ill with what may turn out to be a disabling condition, you are not likely thinking about whether the things you say to your physician might impact a short or long term disability claim, but you should be. Unfortunately, insurance companies use comments by claimants and their physicians found in the claimant’s medical records to discredit their claims. They can also be used to apply provisions in the policy that limit the duration of benefits. In some cases, depending on the medical facility where you treat, even your email and telephonic communications are recorded and placed in your medical records. These can be extremely detrimental to your disability claim.

Here are some examples from real claims: A man went to his physician and was diagnosed with Parkinson’s Disease. His symptoms were already pretty advanced and his doctor determined he should stop working. We helped him make a claim for disability benefits. One of the symptoms of PD is depression. Our client had mentioned to his neurologist on many occasions that he was suddenly feeling very depressed. Even though his physician attributed his depression to his PD and even though he had never before had depression, his LTD carrier tried to apply the policy’s mental/nervous limitation which would have limited his benefits to only 24 months, claiming he was disabled by depression, not PD.

In another case, a client who was already receiving long term disability benefits whose claim had been terminated came to our firm for assistance. We told him he would need assistance from his physician for his appeal of the denial. We explained the points the doctor’s letter would need to address and the client listed those points in an email to his physician. Because the client treats at Kaiser Permanente, that email was included in his medical records. When his insurer requested copied of his medical records, his insurer was able to obtain communications between the client and his attorney all because he sent an email to his doctor asking for help.

It’s a common story shared by an increasing number of women. They received breast implants and after a period of time they started getting sick.  While we do not know the exact number, we know that the largest Facebook Group has grown to nearly 83,400 members, with an increase of more than 5,200 in the last 30 days.

A client, whose name is being kept anonymous to protect her privacy, contacted Kantor & Kantor recently for help with an insurance denial. The woman was in failing health and had been experiencing severe medical complications dating back to 2012 after receiving breast implants. The woman referred to her condition as “breast implant illness.”

After consulting with her primary care physician, the woman underwent a bilateral breast MRI which revealed findings consistent with intracapsular rupture in the left breast. Shortly after, she was referred to a plastic surgeon who recommended bilateral breast capsulectomy and implant removal. The procedure, referred to as explant surgery, involves the removal of the implants and the surrounding capsules (or scar tissue).

In recent years, UnitedHealth Group has ramped up its practice of recovering supposed overpayments to medical providers on claims of plan participants in one healthcare plan by offsetting these “overpayments” against (and therefore often totally disallowing) payments on the claims of participants in an unrelated plan.  Keep in mind that the participants in the plans normally are still on the hook for any medical bills that the United refuses to pay.  I like to refer to this practice of cross-plan offsetting as robbing Peter to pay Paul’s plan.  Or perhaps given the petition for certiorari filed last week by United in a case brought as a class action by Dr. Louis Peterson seeking to end this practice, I should say robbing Peterson (and his patients) to pay Paul.

In the Peterson case, the Eighth Circuit Court of Appeals issued a decision earlier this year agreeing with a trial court that this practice was not allowed under the terms of the governing plans, which expressly allowed such offsetting for provider claims based on patients within the same plan, but said nothing about cross-plan offsets.  Without deciding whether the practice necessarily violates ERISA, as the Department of Labor argued it does in a brief it filed as amicus curiae in the case, the Eighth Circuit noted that, at a minimum, the practice was “in some tension with the requirements of ERISA,” and “pushed the boundaries of what ERISA permits.”  Accordingly, the court concluded that, despite the broad grant of interpretive authority granted to United in the plans, its interpretation of the plan as allowing cross-plan offsets was unreasonable.

United has asked the Supreme Court to review (and reverse) the decision.  In its cert. petition, United asks the Court to resolve two issues (1) whether the Eighth Circuit incorrectly held that its interpretation was “necessarily unreasonable merely because the plan is silent on the matter”; and (2) whether a court is required by established ERISA case law to defer to “an otherwise reasonable plan construction that is lawful under ERISA but, in the court’s view, pushes ERISA’s boundaries.”

Many of our clients suffer from chronic pain. For some chronic pain is a symptom of an underlying condition and for others it is the main condition; in either case, chronic pain can be and often is disabling. Because so many of our clients are affected by chronic pain, we thought a discussion of the organization that provides information, support and education for those who suffer from chronic pain conditions might be helpful.

The American Chronic Pain Association’s mission:

  • to facilitate peer support and education for individuals with chronic pain and their families so that these individuals may live more fully in spite of their pain; and

It seems we are handling an increasing number of Lupus cases, so we thought we would write about the illness and the organization that provides information, support and education for those who suffer from Lupus.

The Lupus Foundation 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.lupus.org/about

This organization can provide valuable information for our clients with Lupus and their families on topics that include: understanding the illness, coping with a recent diagnosis, managing Lupus and support for care partners and family. These are just a few examples of the many resources available on the Lupus Foundations’ website.

As part of Mental Health Awareness Month 2019, the American Foundation for Suicide Prevention (“AFSP”) has launched a public awareness campaign called #RealConvo. The goal of the campaign is to inspire people to

  • shares their stories;
  • have conversations about mental health; and

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.

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