Before the enactment of the Affordable Care Act, also called ACA or Obamacare, under the guise of making health insurance more affordable, health insurers whittled away at the health services covered by individual and small group health plans. Slowly but steadily, health plans covered fewer and fewer services. Individual and small group health plans were a vulnerable target for health insurers. The purchasers of these plans do not have the same bargaining power a large employer does, and often were given insurance with substantially less favorable terms than large group policies. ACA was enacted in part to ensure that all individual and small group plans provide meaningful health insurance coverage.

To accomplish this goal, ACA requires all non-grandfathered health plans in the individual and small group markets to cover ten Essential Health Benefits. The Essential Health Benefits are:

  1. Ambulatory patient services – Medical treatment one receives without being admitted to a hospital. An example would be a check-up at a doctor’s office, or minor surgical procedures that do not require an overnight hospital stay. The size of a plan’s network may vary, but it must be “sufficient” to meet ACA guidelines

Surveillance is a common tool insurance companies use to gather information about long-term disability claimants. It can feel creepy to know the insurer may scan through your Facebook posts, run a background check on you, or even hire an investigator to follow you. Here are some common types of surveillance used, and advice about surveillance for anyone on disability.

Three Common Types of Surveillance

An insurance company may use different kinds of surveillance depending on how much money it is willing to spend to investigate a claim, what kind of activity it expects to uncover, and the type of disability.

Most people with long term disability (“LTD”) insurance obtain that coverage through their employer. Thus, most of us are stuck with whatever insurance company and policy our employer chooses to purchase. And while you might think to yourself, “they’re all the same, so who cares which insurance company my employer decides to go with,” nothing could be further from the truth.

LTD insurance policies vary widely depending on which insurance company is issuing the policy. Some companies offer good, comprehensive coverage that treats every type of disability more or less the same. Under these policies, regardless of whether your disability is due to physical or psychiatric reasons, you will be paid LTD benefits as long as you remain disabled under the terms of the policy.

Most LTD policies, however, will differentiate between physical disabilities and psychiatric disabilities. If your disability is “due to” a mental and nervous condition, or worse yet simply “caused or contributed to by” a mental and nervous condition, most insurers will only pay you LTD benefits for a maximum of 2 years (versus paying until age 65 for a physical disability). This distinction provides LTD insurance companies with one of their favorite tactics: They will cut off benefits for people under the 2 year limitation by arguing that while you might have some physical problems, the real reason you can’t work is because you’re suffering from depression/stress/anxiety.

Long before I became a lawyer, all the way back in childhood, I hated when people spoke in absolutes. For those who don’t know, speaking in absolutes is using all or nothing terms like: always/never; best/worst; everybody/nobody; can’t; nothing/everything; all the time; all/nothing; constantly; definitely; etc. I dislike absolutes because while on the surface they appear to make a message stronger (“this always happens to me” or “my mom’s cooking is the best”), they actually do the opposite by weakening your credibility.

Does anything happen “always”?

Think about it. Does anything happen “always”?  Can you definitively say there’s no one on the planet who cooks better than your mom? Of course not! But in addition to saying something that you can’t prove, you have also opened yourself up to allow people to be able to prove – very easily I might add – that you are a liar. And once they can prove you lied about that one thing, they can then turn around and use that lie to cast doubt on everything else you say.

As you probably know, insurance companies are masters of fine print. You may think you have coverage for a condition or injury under your insurance, but when the worst happens, you may find out that you weren’t actually covered after all. Or, you may be covered, but you didn’t have as much coverage as you thought you did.

You can’t always protect yourselves from these gotchas. Many of us have insurance through our employers, and we don’t have power to negotiate the terms of those policies.

However, you can still avoid nasty surprises by reading the fine print in advance. Medical insurance is the type of insurance most people are familiar with, and while you don’t need to know your entire insurance policy by heart, you should know the basics of calculating your benefits – i.e., what your deductible, coinsurance, copay, and out-of-pocket maximums are.

During an office visit with your doctor, she recommends you undergo a treatment you’ve never had before. You call your health insurance company, and a representative assures you the treatment is covered by your health insurance plan. Can you rely on what the representative says? Will the treatment be covered by your insurance?

Caution is Key

Be cautious when relying on what health insurance representatives tell you over the phone. The representative can give you general information about what services are covered by your health insurance, but she cannot guarantee that you have met all the requirements under the terms of your policy for the treatment to be covered for you.

Maybe you’ve heard (or experienced) the tragic story of someone becoming ill, forgetting or being unable to pay their life insurance premium, only to see the policy lapse at the time it is needed most. It’s more common than you may realize, and at our law firm we see it quite often. It is terribly unfortunate.

What most people don’t realize, however, is that there is law in California that may come to the rescue. That law is known as the “notice prejudice” rule. The rule emanates from a judicially created doctrine dating back to at least 1963, when the California Supreme Court decided Campbell v. Allstate Ins. Co. (1963) 60 Cal.2d 303, 305. The rule is simple: it prohibits insurers from denying insurance benefits on the ground that the insured presented an untimely claim, unless the insurer can show it was prejudiced by the delay. It is expressly designed to prohibit insurance companies from disclaiming liability based on a “technical escape hatch,” and to protect insureds from the unfair forfeiture of their benefits on procedural grounds. (The rule is also widespread; the majority of states impose a similar requirement on insurers.)

So, how does the rule apply to lapsed life insurance? Well, it is important to state at the outset that it only applies in certain circumstances. One of the most common examples is when the life insurance policy also includes a provision that premium payments will be excused or “waived” in the event the insured becomes disabled. This is usually referred to as a “life waiver of premium provision” (LWOP) or something similar. Many policies have such provisions but policyholders just aren’t aware of the benefit.

The opioid epidemic has impacted us all in some way. Everyone has a friend or a family member whose lives were affected by this growing crisis. Drug overdoses have contributed to lowering the life expectancy of the average American. Because of the stigma attached to addiction, America has been slow to react to the epidemic and work with those afflicted with addiction to come to a solution to the problem.

Sadly, greed fueled the epidemic when some companies realized they could profit by encouraging doctors to over-prescribe medications and hide information about the addictiveness of opioids. Drug manufacturers have spent millions marketing to doctors and patients, often minimizing information about potential side effects – including the strong addictive nature of opioids. Litigation is plentiful against the companies that produced and marketed opioids to the public.  One example is in Massachusetts, where the attorney general has brought a lawsuit against Purdue Pharma – the company that manufactures Oxycontin – for unfair and deceptive trade practices.

You can read this article to learn more about the unfair deceptive marketing done by Purdue Pharma here.

Bipolar Disorder, a brain based disorder, causes unusual shifts in mood, energy, activity levels, as well as the ability to carry out day-to-day tasks (National Institute of Mental Health). Bipolar Disorder is a serious mental illness that affects a great many Americans every year. Kantor & Kantor has worked with many clients who suffer with Bipolar Disorder, and such clients are often affected in a way that is life altering and debilitating. Unfortunately, it is not uncommon for these clients to face many obstacles and complications when making a claim for long term disability benefits (LTD) for Bipolar Disorder.

Why are these Long Term Disability claims so difficult?

The first issue that can arise is difficulty in proving that you are disabled (under the terms of your long term disability policy’s definition of disabled).  While you and your doctor both know that you are no longer able to work, meeting a policy definition of disability takes more than just that knowledge.  Unlike a back condition or an autoimmune disease, which can be shown through objective measures, objectively establishing that you have disabling Bipolar Disorder can be tricky. Typically, the diagnosis is made by a therapeutic psychologist. The condition is then treated medically by a prescribing psychiatrist, as well as through therapy with a clinical psychologist.  Thus, there really is no lab test or other objective measure to prove you have the condition.  Your treating providers’ diagnosis, based on their examination and treatment of you, is the objective proof – but you must have their help in getting that information to your LTD carrier.

At the time of the denial, it is customary for claim representatives to tell insureds that they will have an opportunity to appeal the denial and that the appeal will be a “fresh look” at the evidence in the file.  Recently, we here at Kantor & Kantor have seen a new trend with some insurance carriers when there has been an initial denial of benefits.  Some carriers are now providing insureds with a one or two page “appeal form” to be completed by the insured for the appeal.  This is misleading and may actually prejudice the insured when completing the appeal.

As discussed in other posts on this website, the appeal to the insurance company is perhaps the most important part of a claim prior filing a lawsuit.  It is the only opportunity for an insured to ensure that all of the evidence supporting his or her claim is in the insurer’s claim file.  As such, an insured needs to include all medical records and testing documenting his or her impairments. If it is not included within the insurer’s claim file at the time of the final denial of the claim, it is very difficult, if not impossible to persuade a trial judge to consider the evidence.   Thus, the mere completion of an appeal form, without the additional documentation, may cause an insured to believe that a few sentences, “explaining” the disability, may cause an insurance company to overturn its decision.  In truth, it will not.   The insurance company will deny the claim on appeal and its claim file will be incomplete, without the evidence that should be included to prove disability.

The insured should not be misled into believing that completion of a simple form will be sufficient to overturn the decision on appeal. The insurer’s claim file should be obtained to review the evidence in support of the denial and the denial letter should be carefully scrutinized. Once this is done, an appeal should be thoroughly prepared to rebut the insurer’s evidence.

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