insurance coverage

December 3, 2020

Departments of Insurance Crack Down on Property Insurers During the Pandemic – No Cancellation During COVID!

Did your insurance company cancel your insurance due to nonpayment of premium during COVID? Be aware that most states have either requested, or required, insurers to institute a moratorium on cancellations due to nonpayment during at least part of the pandemic. If your insurance company cancelled your insurance during COVID, remind them of this fact and ask them to reinstate your policy. If they refuse, you may want to talk to a lawyer.

The entire West Coast has seen their Departments of Insurance issue requirements on this subject:

California: On March 18, 2020, California issued a “request” to all insurance companies on March 18, 2020 to provide insureds “at least” a 60 day grace period to pay insurance premiums, and to ensure that policies are not cancelled for nonpayment of premiums due to coronavirus. http://www.insurance.ca.gov/0400-news/0100-press-releases/2020/release030-2020.cfm

November 25, 2020

In Proton Beam Cancer Treatment Denial Case, Kantor & Kantor Prevails in Discovery Dispute Against Blue Cross Blue Shield Health Care Plan of Georgia

by Tim Rozelle

Our firm is involved in litigating a proton beam cancer treatment denial case in Georgia, Ghattas v. Blue Cross Blue Shield Health Care Plan of Georgia, Inc., Case No. 1:20-CV-03157-ELR, 2020 WL 6867155 (N.D. Ga. Nov. 18, 2020). Defendants Blue Cross Blue Shield Health Care Plan of Georgia (BCBSGA) answered Plaintiff Christopher Ghattas’ Complaint alleging the wrongful denial of his life-saving proton beam radiation therapy at Emory University Proton Therapy Center for a diagnosis of brain cancer. Following Defendant’s answering of the Complaint, counsel began preparing to conduct a Rule 26(f) Conference per the Court’s Order. Prior to the setting of this conference call, counsel for BCBSGA articulated to Plaintiff’s counsel two positions: (1) that ERISA matters were exempt from the initial disclosures requirements of FRCP Rule 26 and (2) that Plaintiff—although never having received a page of the administrative record in this case nor counsel ever discussing the standard of review to be applied to this benefits denial—was not entitled to any discovery in an ERISA matter. The Court resolved these two issues as addressed in the parties’ Joint Preliminary Report to the Court.

First, the Court agreed with Plaintiff’s position that Defendant would be required to produce initial disclosures in this matter pursuant to Rule 26. Citing Golden v. Sun Life Fin., Inc., 2:08-CV-070-WKW, 2008 WL 2782736 (M.D. Ala. July 15, 2008), the Court held that “[b]ecause this [ERISA] case involves more than just the administrative record and because the parties will be engaging in discovery, [defendant is] required to provide initial disclosures in accordance with Rule 26(a).”

Second, Plaintiff had taken the position that he was not foreclosed on any grounds from conducting targeted and limited discovery depending upon the standard of review that would apply to BCBSGA’s benefits denial. Without having produced a single page of the administrative record, BCBSGA took the position that Plaintiff was entitled to no discovery in an ERISA matter. Here, the Court agreed with Plaintiff. Citing Adams v. Hartford Life and Acc. Ins. Co., 589 F. Supp. 2d 1366 (N.D. Ga. 2008), the Court stated that it did “not agree that discovery is inappropriate here.” “In matters such as the one at hand, ‘the body of case law developed under ERISA’ requires ‘the [C]ourt, at the very least, [to] examine the facts as known to the administrator at the time the decision to deny benefits was made to determine whether the administrator’s decision was reasonable.’” Adams, 589 F. Supp. 2d at 1367. The Court held that Plaintiff was entitled to narrowly tailored discovery regarding what evidence the Plan (who claimed it was vested with discretionary authority) was aware of at the time of its decision to deny Plaintiff’s claim for proton therapy.

November 25, 2020

Court Rules Air Ambulance Transport Expense Is Not Covered by Health Insurance

by Tim Rozelle

If you have an unpaid air ambulance claim, you may be interested in the recent decision in Lubinski v. CVS Health Welfare Benefit Plan, Case No. 20-cv-89, 2020 WL 6870822 (N.D. Ill. Nov. 24, 2020).

While on vacation in the Dominican Republic, Plaintiff Renatta Lubinski, who had a history of acute leukemia, developed multiple conditions that compromised her respiratory system and kidney function. Doctors determined Lubinski should be transported by air ambulance to receive lifesaving treatment in the United States. Because of her complicated diagnosis and medical history, Lubinski was taken to her local hospital in Illinois, where her own doctors, who cared for her regularly and were familiar with her medical condition, could treat her. Aerocare Medical Transport System Inc., a company that provides highly specialized international air ambulance transportation services for patients in critical care, flew Lubinski from the Dominican Republic to Miami, Florida, and then from Miami to Evergreen Park, Illinois.

Aerocare charged $242,500 for the first flight and $284,250 for the second flight and submitted two claims for payment to Lubinski’s employee benefit plan, CVS Health Welfare Benefit Plan (CVS Plan), which was administered by Blue Cross and Blue Shield of Illinois (BCBSIL). BCBSIL initially denied Aerocare’s claim. Aerocare appealed, and BCBS concluded that the first trip from the Dominican Republic to Miami was medically necessary and covered under the plan, but that the second trip from Miami to Evergreen Park was not. Aerocare was reimbursed $30,000 out of $242,500 and its second appeal for more money was denied. Under Lubinski’s employee benefit plan, air ambulance transportation was covered at a rate of 80% minus a deductible. Aerocare initiated this lawsuit, seeking to recover payment for both trips, pre-judgment interest, and attorney’s fees. Defendants filed a motion to dismiss arguing (1) that the anti-assignment clause in the plan document precluded Aerocare’s claim and (2) that Aerocare failed to state a claim for relief. In response to the first argument, Lubinski replaced Aerocare as the plaintiff. This left defendants’ second argument for review.

October 15, 2020

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

by Tim Rozelle

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.