Articles Posted in Health Insurance

Many large companies offer employees “self-insured” or “self-funded” ERISA plans to provide disability insurance or health insurance benefits. However, these companies are not in the business of administering health or disability claims. This makes sense. Boeing doesn’t know how to evaluate a short term disability claim. Intel isn’t in the long term disability business. AT&T doesn’t know how to read medical billing codes. So, instead of trying to do this itself, most companies hire other companies to administer the disability or health insurance claims.

These “third-party” companies are either in the business of administering ERISA benefit plans (e.g. Sedgwick and Reed Group) or are already administering these types of claims because they offer medical or disability insurance themselves (e.g. Cigna and Aetna). In theory, a benefit of this structure is that the entity making the claims decision is not the same entity that has to pay the claim. There is no structural conflict of interest.

How do courts view this type of structure if a lawsuit is filed? In such a situation there was a denial of disability benefits or a medical claim was denied. If the ERISA Plan conferred discretionary authority to the claim administrator – and almost all do this – the court reviews the denial of benefits under the plan for an abuse of discretion. Firestone Tire & Rubber Co. v. Brunch, 489 U.S. 101, 115 (1989). Once the court determines that the insurance policy unambiguously grants discretion to the entity that denied the claim – here the third party administrator – the court must determine whether the administrator or fiduciary was operating under a conflict of interest. Metropolitan Life Ins. Co. (MetLife) v. Glenn, 554 U.S. 105 (2008) (“Often the entity that administers the plan, such as an employer or an insurance company, both determines whether an employee is eligible for benefits and pays benefits out of its own pocket. We here decide that this dual role creates a conflict of interest; that a reviewing court should consider that conflict as a factor in determining whether the plan administrator abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case.”); Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir. 2006) (“Abuse of discretion review applies to a discretion-granting plan even if the administrator has a conflict of interest. But Firestone also makes clear that the existence of a conflict of interest is relevant to how a court conducts abuse of discretion review.”).

Kate Weissman is willing to brave litigation with a $150 billion health insurance company to bring about change in our healthcare system. On March 26, 2019, Ms. Weissman filed a class action lawsuit to challenge what she alleges to be UnitedHealthcare’s unfair and deceptive policies and procedures for determining whether a prescribed treatment or medication is medically necessary (utilization review). Ms. Weissman alleges that UnitedHealthcare’s utilization review process is skewed toward the denial of coverage based upon inadequate internal medical policies placed in the hands of unqualified medical directors.  This alleged institutional pattern and practice of wrongful conduct results in the systematic denial of coverage for medically necessary proton beam radiation therapy (“PBT “) for UnitedHealthcare’s insured members suffering with cancer, while offering coverage for far less expensive, though far more harmful, conventional radiation treatment.

In October 2015, 30-year-old Ms. Weissman was diagnosed with stage IIB cervical cancer. After various treatments and a relentless battle for her life, her doctors from Massachusetts General Hospital recommended PBT to avoid grave damage to surrounding tissue and organs. On April 6, 2016, UnitedHealthcare denied coverage, contending that PBT is experimental or investigational or unproven. Ms. Weissman alleges that PBT is an established form of treatment that is widely accepted by physicians, government agencies and many insurers and other payers, including Medicare and Medicaid. UnitedHealthcare relied on its own internal policies, as interpreted and applied to Ms. Weissman’s case by UnitedHealthcare’s medical directors, in denying coverage for PBT.  UnitedHealthcare would only agree to cover the more conventional intensity-modulated radiation therapy, which is about half the cost of PBT.

Ms. Weissman, who volunteers with Cervivor to advocate for the cervical cancer community, recognizes that she was fortunate enough to have the $95,000.00 to pay for the proton beam treatment ordered by her doctors so that she would not have to settle for the more dangerous and damaging conventional treatment. She is now fighting for those who cannot afford that choice.

Disability is not measured only by one’s ability to lift, walk, stand, sit, etc.  Rather, the California definition of total disability in a policy insuring one’s ability to perform their own occupation is:

“A disability that renders one unable to perform with reasonable continuity the substantial and material acts necessary to pursue his usual occupation in the usual or customary way.”

In policies insuring one’s ability to perform “any occupation” or “any reasonable occupation,” the definition has been stated as:

A recent 2018 American Society of Radiation Oncology (ASTRO) study published findings about insurance approval and appeal outcomes at a large-volume proton therapy center, one of the estimated 111 proton therapy centers worldwide. The study showed that proton therapy prior authorization rates were substantially higher for Medicare patients vs. privately insured patients — 91% vs. 30% approval on initial request, at a median 3 days and 14 days from inquiry to determination.

Of the 306 patients initially denied coverage, 276 appealed the decision, and denial was overturned for 189 patients (68%; median time, 21 days from initial inquiry).

It is absolutely essential that proton therapy providers put together strong appeal letters for their patients to increase the chances that insurance decisions are overturned during the administrative claims/appeals review process.  If a patient is insured under an ERISA-governed plan then the administrative record becomes, in some cases, the only evidence that a court can examine if proton therapy is denied on appeal leading to civil litigation.

A recent analysis of 2016 National Survey of Children’s Health data indicated that as many as one in six U.S. children between the ages of 6 and 17 has a treatable mental health disorder such as depression, anxiety problems or attention deficit/hyperactivity disorder (ADHD). The analysis published in JAMA Pediatrics also found that nearly half of children with these disorders did not receive counseling or treatment from a mental health professional such as a psychiatrist, psychologist or clinical social worker.

Early diagnosis and treatment are very helpful for these children, but some families may have trouble accessing mental health care.

Problems accessing mental health care come in various forms. Some families may struggle to get the care their children need due to a shortage of child psychiatrists, psychologists, and behavior therapists. Other families may not have a mental health provider in the vicinity and may not be able to travel long distances to visit one. And for some families, their insurance company may not authorize the treatment and the family simply cannot afford to pay out-of-pocket for the care their child needs.

Multiple sclerosis (MS) is an unpredictable, often disabling disease of the central nervous system that disrupts the flow of information within the brain, and between the brain and body. The cause of MS is still unknown – scientists believe the disease is triggered by an as-yet-unidentified environmental factor in a person who is genetically predisposed to respond.

According to the National MS Society, MS is thought to affect more than 2.3 million people worldwide. The progress, severity and specific symptoms of MS in any one person cannot be predicted. Most people with MS are diagnosed between the ages of 20 and 50.

According to the Mayo Clinic, the following risk factors may increase a person’s risk of developing MS:

We recently wrote about how the Trump administration wants to expand the use of social media, such as Facebook and Twitter, in evaluating disability claims. In that post we noted that Kantor & Kantor proved, in Court, that social media posts are of limited value in deciding if someone is unable to work. What did the Court say?

The issue came before Judge Yvonne Gonzalez Rogers, United States District Court Judge in the Northern District of California. She was asked to decide if our client had proven he was disabled by back and leg pain of unknown origin. For years our client struggled to continue working as a tax professional at Hitachi despite ever increasing back and leg pain. This job required high cognitive ability, including critical thinking, decision-making, complex problem solving, and high levels of concentration.

He underwent multiple back surgeries, but this did not give him pain relief. In order to get some degree of pain relief, he had to take opioid medications. While this somewhat helped the pain, a medication side effect was difficulty concentrating. Because of the pain and inability to concentrate, our client’s work performance suffered. He had to stop working.

In honor of  ME/CFS week, we are happy to highlight the newest tool in the fight to not only treat but also recognize chronic fatigue and related conditions: The Invasive Cardiopulmonary Exercise Test, also known as iCPET.

As those familiar with ME/CFS and other related conditions may be aware, “traditional” CPET is the gold standard for objectively measuring the limitations caused by chronic fatigue and the impact those limitations have on an individual’s ability to work. Dr. Christopher Snell and the incredible people at the Workwell Foundation have been administering (and improving) this test for years. Despite the plethora of peer-reviewed data confirming CPET’s objective effectiveness in measuring such limitations, insurers still do their best to disregard and minimize CPET.

In contrast to the CPET, which only requires being hooked up to “external” sensors, the iCPET involves the additional insertion of pulmonary artery and radial artery catheters before administering the test. This allows for “complete cardiopulmonary hemodynamic and peripheral tissue O2 extraction analyses, without which only the degree of impairment (maximum Vo2) and the identification of a pulmonary mechanical limitation to exercise are possible.

On March 10, 2019, the New York Times reported the Trump administration has been working on a proposal to use social media, such as Facebook and Twitter, to help identify people who claim disability benefits without actually being disabled. The example the Times gave was if a person claimed disability benefits due to a back injury but was shown playing golf in a photograph posted on Facebook, that social medial post could be used as evidence that the injury was not disabling.

While the Trump administration’s concern is related to Social Security disability benefits, in the private long-term disability world it has long been known that the likes of Unum, MetLife, Aetna, Hartford, or Mutual of Omaha have a keen interest in the social media of disability claimants. This is based on the belief that social media is a goldmine of information about people applying for or receiving long term disability benefits.

It is not impossible for this to be true. But as with many things related to long term disability insurance, the topic has layers. Social media is often an outlet for the disabled. A place where a person unable to work goes to socialize and post pictures of themselves in better times or when they are having a good day (not a bad day). Sure, some of our client’s use social media to share with the world their struggles with MS, or back pain, or fibromyalgia, or lupus, but it’s the exception.

In honor of MS Awareness Week, we would like to devote this blog to successfully proving and establishing a disability claim based on Multiple Sclerosis.  We find that most of our clients who have MS have struggled to remain at work, but then reach a point where they can no longer continue. In such circumstances, the carrier may ask “what changed?”  It is helpful to show that the condition deteriorated even though the client struggled to remain at work. There are steps you can take to help document the progression of the disease:

  1. Make sure that your doctor’s records accurately describe your symptoms.  Many feel that they do not have to describe their fatigue, migraines, muscle weakness, etc. on each visit to their physician(s) because the symptoms are just naturally a part of the disease. This is true, but your medical records must contain a description of the symptoms you are experiencing.  If the medical records do not contain an accurate description, a subsequent letter from your physician may be perceived as inconsistent with the medical records.
  2. If you are experiencing “adverse” side effects from your medication, this should also be reported to your physician. Again, many do not report unpleasant side effects because they are to be expected. However, the side effects and their disabling potential should be accurately described in the medical records.
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