insurance coverage

October 15, 2020

Ninth Circuit Declines to Bar Healthcare Provider’s Lawsuit Based on Anti-assignment Provision in ERISA Health Plan

As many healthcare providers have experienced, anti-assignment provisions in ERISA health plans can be a full-stop to recovering unpaid claims. In good news, the Ninth Circuit Court of Appeals recently decided Martin Luther King, Jr. Community Hospital v. Community Insurance Company dba Anthem Blue Cross Blue Shield, et al., No. 19-55053, __F.App’x__, 2020 WL 5870513 (9th Cir. Oct. 2, 2020), which is a decided win for providers.

In this case, the Ninth Court considered a trial court’s award of damages in favor of Martin Luther King, Jr. Community Hospital (“MLK”), for services rendered to employees of Budco— the sponsor of the ERISA plan (the “Plan”). Budco’s employees made covered visits to MLK. Although the employees had assigned their benefit payments to MLK, Anthem—the Plan administrator—ignored the assignments, and made payments directly to the employees, who were beneficiaries under the Plan. The employees retained these payments. When MLK sought payment, Anthem ignored the request. Anthem, in refusing to pay MLK, asserted that an “anti-assignment” provision was part of the Plan and justified its payments directly to the employees.

To recover the assigned payments, MLK asserted two grounds in support of its claims. First, MLK asserted that the language of the anti-assignment provision did not prohibit the assignments. The district court did not rule on this contention. Second, MLK asserted that the district court should ignore the anti-assignment provision because it was not part of the Plan.

October 8, 2020

COVID-19 Testing and Coverage: A Helpful FAQ From the California Department of Insurance

by Peter S. Sessions

The coronavirus epidemic has obviously made all our lives more complicated. Unfortunately, this headache-inducing complexity extends to our health insurance as well. Millions of Americans do not know what kind of coverage they have for coronavirus testing, how much they should have to pay for that testing, or whether there are any hidden “gotchas” that insurers might use to deny their claims or reduce payment for testing.

Fortunately, the California Department of Insurance (CDI) recently issued a COVID-19 Testing and Coverage Frequently Asked Questions (FAQ) notice which helps answer some of these questions. (Much of the information is derived from federal law, so even if you don’t live in California, this FAQ may still help you.)

The FAQ addresses numerous issues, but the most important takeaways are:

October 8, 2020

Mental Health Executive Order

by Cari M. Schwartz

On Monday, the White House issued President Trump’s Executive Order on Saving Lives Through Increased Support For Mental-and Behavioral-Health Needs, which orders the creation of a Coronavirus Mental Health Working Group (“the Working Group”), the submission of a plan by the working group for addressing mental health impacts of COVID-19, and calls for agencies to maximize support, including safe in-person services, for Americans in need of behavioral health treatment. The Working Group will issue recommendations in 45 days.

Health and Human Services Secretary Alex Azar, who will serve as co-chair for the Working Group, issued the following statement,

“We know that the COVID-19 pandemic has created or exacerbated serious behavioral health challenges for many Americans, both adding new stresses and disrupting access to treatment. The President’s Executive Order is a welcome opportunity to increase efforts to address the mental health effects of the pandemic, which have already included hundreds of millions of dollars in grants and historic flexibilities to ensure Americans can continue to receive treatment for mental illness and substance use disorders.”

October 2, 2020

Kantor & Kantor, LLP Helps Make the California Mental Health Parity Act the Most Protective in the Nation

by Elizabeth Hopkins

On Friday September 25, 2020, California Governor Gavin Newsom signed a law that strengthens and expands mental health parity protections in California. This law amends the California Mental Health Parity Act by adding significant new protections that are good news for participants in both group and individual healthcare insurance policies (including disability policies that cover healthcare), and bad news for insurance companies that have continued to unfairly deny medically necessary coverage for the treatment of mental health and substance use disorders. Co-Founding Partner Lisa S. Kantor, working with other mental health advocates and one of the bill’s sponsors, was instrumental in the development of this law.

Among other highlights, the new law now covers all generally recognized mental health disorders as well as substance use disorders, whereas the prior law only covered a list of nine mental health disorders that were deemed severe. The legislature found the prior list was “not only incomplete and out-of-date, but also fails to encompass the range of mental health and substance use disorders whose complex interactions are contributing to overdose deaths from opioids and methamphetamines, the increase in suicides, and other so-called deaths of despair.”

The law clarifies that insurers must cover treatment at all intermediate levels of care for mental health and substance use disorders, including residential care, partial hospitalization, and intensive outpatient treatment. The legislation expressly cites two groundbreaking decisions in cases brought by Kantor & Kantor’s Co-Founding Partner Lisa Kantor – Harlick v. Blue Shield of California, and Rea v. Blue Shield of California – in which courts in California required residential treatment be covered under the prior law. Nevertheless, insurers have continued to insist that the California Mental Health Parity Act does not mandate necessary residential treatment for mental health disorder patients, an argument that should no longer be viable.

September 29, 2020

October is Breast Cancer Awareness Month

by Cari M. Schwartz

On average, every 2 minutes a woman is diagnosed with breast cancer in the United States.

In 2020, an estimated 276,480 new cases of invasive breast cancer will be diagnosed in women in the U.S. as well as 48,530 new cases of non-invasive (in situ) breast cancer.
64% of breast cancer cases are diagnosed at a localized stage (there is no sign that the cancer has spread outside of the breast), for which the 5-year survival rate is 99%.

September 8, 2020

California Homeowners: You Have the Right to Confirm You Have Enough Coverage to Replace Your Home

by Stacy Monahan Tucker

In California, it has long been the law that it is up to the homeowner to decide how much insurance she needs, and that if a homeowner is uninsured, it is her fault. This is the law despite the fact that insurance companies set the amount of insurance offered in a policy and do not inform insureds that they have not just the right, but the responsibility, to confirm that the amount is adequate if they need to rebuild. As a result, most homeowners who find themselves needing to rebuild lack the funds to do so.

The California Department of Insurance is aware of the problem and created regulations to address the issue. Since 2010, there has been an insurance regulation in California requiring that insurers take steps to provide accurate replacement cost estimates for homeowner insurance. This regulation, 10 CCR Section 2695.183, was tied up in California courts for seven years as the insurance lobby fought against it. In January 2017, the California Supreme Court ruled that the regulation was valid.

What does Section 2695.183 say? First, the insurance company or agent does not have to provide an insured with an estimate of replacement value, or provide a suggested amount of insurance. If the insurer chooses to do so, then the estimate must include certain elements. It must include the cost of labor, materials and supplies. It must include overhead and profit. It must include the cost of debris removal. It must include the cost of permits and architect plans. It must consider and include the specific features of the home to be rebuilt. That includes the type of foundation, the type of frame, the roof, the siding, any issues relating to slope, the square footage, the geographic area, the age of the structure, and the materials used in the interior and the finishes.

July 30, 2020

Kantor & Kantor, LLP Wins Migraine-based Disability Claim Against Unum Life Insurance Company

by Peter S. Sessions

Kantor & Kantor, LLP recently achieved a victory in Olis-v.-Unum-Life-Insurance-Company-of-America No. 8:19-cv-01347-JVS-DFM, __ WL __ (C.D. Cal. July 27, 2020), a lawsuit seeking payment of an ERISA-governed disability claim based on debilitating migraines. Disability cases involving subjective reports of pain may be the most difficult benefit cases courts have to consider. This case provides a good example of what makes for a convincing claim, and what courts are looking for in deciding whether to award benefits. Our client was represented by Kantor & Kantor attorneys, Brent Dorian Brehm, Sarah Demers, and myself, Peter Sessions.

The plaintiff in this case was a 36-year-old woman who was employed by Enterprise, the rental car company, as an account specialist, which involved significant computer use. She had suffered from headaches for much of her life, but in 2016 those headaches intensified into recurrent migraines, which were accompanied by vertigo and visual disturbances. She took a medical leave of absence to address her problems and then tried to return to work, but she only lasted another month before she had to stop working entirely. During this time, Plaintiff visited numerous doctors in a number of specialties, tried several medications, and attended countless physical therapy sessions.

Plaintiff submitted a claim for LTD benefits to Unum Life Insurance Company of America, which Unum denied on the ground that she had not presented sufficient evidence to prove that she could not return to work. Plaintiff unsuccessfully appealed, and then filed suit against Unum under ERISA. The parties filed cross-motions for judgment under Fed.R.Civ.P. 52.

July 9, 2020

Can I File Suit if the Insurance Company Takes Too Long to Decide My Long-Term Disability Claim?

by Michelle L. Roberts

The short answer: Yes, depending on how much time has passed since you first submitted your claim.

Consider the following scenario. You work for a company that has an insured long-term disability (“LTD”) plan that is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). Let us say the insurance company is Prudential Insurance Company of America. You go out on disability due to chronic pain and file a claim with Prudential on July 25, 2019. On August 19, 2019, Prudential acknowledges that it received your medical records, activities of daily living questionnaire, and work capacity questionnaire. But inexplicitly, it says it needs more time to decide your claim and takes a 30-day extension. In the meantime, Prudential reaches out to your doctor to request feedback on its medical evaluation conducted by one of its nurse reviewers. Prudential also seeks clarification from you regarding your medical history. On November 13, 2019, Prudential confirms that the file is complete, but it states it needs more time to decide your claim. It does not explain why it needs more time. Finally, on November 27, 2019, Prudential decides against you. Can you file a lawsuit?

According to Judge Jeffrey White in the Northern District of California, the answer is yes. See Hasten v. Prudential Ins. Co. of Am., No. 19-CV-07943-JSW, 2020 WL 3786229 (N.D. Cal. July 6, 2020).

July 6, 2020

COBRA: What You Should Know About Notices and Deadlines

by Peter S. Sessions

The coronavirus pandemic has altered daily life for everyone across the globe, and caused tens of millions of job losses in the United States. Because losing your job often means losing your health insurance, this can be a double whammy for affected individuals.

Congress recognized this problem in 1985 by passing the Consolidated Omnibus Budget Reconciliation Act (COBRA), a law that protects employees by letting them continue the group health insurance coverage they enjoyed while employed for up to 18 months (and sometimes longer) after their termination. (As with any law, there are exceptions. Not every employer is governed by COBRA’s rules – for example, COBRA only applies to employers who have 20 or more employees.)

However, many people don’t know that they can continue their health insurance coverage, and often employers inadequately inform their employees of their rights under COBRA, or simply don’t inform them at all. This is illegal. COBRA requires employers to provide written notice to terminated employees of their coverage options.

June 25, 2020

The Importance of Reviewing the Estimated Replacement Cost of Your Home

by Stacy Monahan Tucker

When a homeowner obtains insurance, she generally assumes the insurance company will accurately estimate the cost of rebuilding the home in the event of a disaster such a fire. Unfortunately, this is not often the case. Insurance companies rely on computer programs to generate an estimated cost to rebuild in an area. Some insurance companies will calculate the amount based solely on the square footage and age of the home. If an appraiser is not sent out when insurance is requested to inspect the home, upgrades such as vaulted ceilings, wood beams, updated kitchens and baths, hardwood floors, outdoor kitchens, finished basements or attics, or other enhancements will not be included in the amount allotted to rebuild your home.

Courts often decline to reform the insurance policy to fix errors in the estimated replacement cost, noting that the homeowner should have reviewed and contested the amount when she received the policy. Insurance policies often have extended policy limits that will add an additional 25% on the insured amount for just these situations. However, an additional 25% may not be enough to rebuild.

The West Coast is an especially high cost of living area, and that includes construction costs. The San Francisco Bay Area, for example, is currently the most expensive area of the country for new construction, with construction costing an average of $417/sq ft. Construction costs in California have been rising 5-6.3% per year. This is especially true in areas at high risk of wildfires. While many of those areas are more rural and populated with homes that are less expensive than those in major cities, the repeated years of fires and construction have affected the cost of construction in those areas. It routinely costs $300-$350/sq ft to rebuild in rural wildfire areas. Years of fires have created a huge demand for construction labor, and chronic shortages of materials. County offices are also overwhelmed with permit requests. Delays have increased to the point that the California Department of Insurance has mandated that for wildfire disasters, the time provided by insurance companies to rebuild and to pay Additional Living Expenses be extended from 24 to 36 months.