Articles Tagged with insurance

On March 30, 2020, California Insurance Commissioner Ricardo Lara and the California Department of Insurance (“CDI”) directed health insurance companies to increase access to services delivered via telehealth during the COVID-19 state of emergency.

The agency said that increasing the availability of telehealth will “lessen the strain on the supply chain, reduce the need to use scarce stocks of provider personal protective equipment and protect the ability of the healthcare workforce to provide care by limiting physical exposure to potential sources of infectious disease,” the notice states.

To support expanded telehealth, CDI said insurers should allow all network providers to use all available modes of virtual care delivery, including video and telephone-based communication. Insurers are also required to reimburse telehealth services costs at the same rate as in-person office visits, effective March 30, 2020.

You have a business, and you were a responsible business owner.  You insured it against a variety of possible calamities, and included business income interruption insurance so you could continue meeting your financial obligations even if there is a disaster.

But then COVID-19 hit, and the government put everyone in your area on lockdown. Maybe your business can’t operate at all remotely, or maybe it “just” has taken a huge hit as people stay home.  Regardless, now is the time you need your insurance.

You May Hear Disturbing News

Our law firm receives many inquiries from long-term disability claimants whose insurance companies claim that they overpaid them benefits and insist that the claimants pay them back.  Often, these claimants do not have the money to pay the companies back and want to know their legal rights.

First, it’s important to know the common situations in which these overpayment issues arise.  Group disability insurance companies that fund employer-provided disability benefits draft their policies to include “offsets.”  An offset is a type of other income you might receive (or are eligible to receive) which reduces what the insurance carrier is obligated to pay you.  If you receive other income which applies retroactively, the insurance company will require you to pay back the benefits it paid you during the relevant time period.  As an example, below is language from a Lincoln National Life Insurance Company group disability policy.

RIGHT OF RECOVERY.  If benefits have been overpaid on any claim; then full reimbursement to the Company is required within 60 days.  If reimbursement is not made; then the Company has the right to:

If you have a condition such as migraine headaches, vertigo, or chronic pain, a condition that cannot be captured by “objective diagnostic measures” such as X-rays, MRIs, PET scans, etc., you still need evidence to prove to the insurer that you are disabled.

While letters from your physician describing your symptoms, their impact on your ability to function at work, and the underlying case are helpful as are the office notes from your doctor, we find that daily logs are very helpful. Logs, kept over a period of weeks or months, paint an ongoing picture of the number of times you are suffering from your disabling condition.

In the log, you must be sure to mark down the date, the type of symptom you are experiencing, e,g, – a migraine headache – the quality of the pain, the strength of the pain, and the duration of the pain. Over the course of several months, these logs can really help support a disability claim when they show a person is suffering from 3 or 4 migraines per week and the headaches are lasting for hours or days at a time. These logs are quite compelling when they complement the medical records.

An Independent Medical Examination (IME) is an examination by a medical doctor hired to examine you and opine on your disease state and whether it is disabling. If so, the IME can help determine the degree to which is it disabling and its impact on your ability to perform the duties of your own or any occupation, depending upon the stage of your LTD claim.

IMEs are typically quite expensive so we are judicious in when we recommend them to our clients. We recommend them in a variety of situations and this blog does not cover every situation. Of course, we make these determinations on a case-by-case basis for each of our clients but we can offer some general information here.

If your attending physician does not wish to participate in the appeal process by writing letters, responding to medical record reviews from the insurer, or completing questionnaires necessary to a successful appeal, then an IME may be appropriate for your case.  Another situation in which we might recommend an IME is if you suffer from a particular medical condition and there is an IME provider who is a well-known expert in the diagnosis and treatment of that condition.

National Suicide Prevention Week (“NSPW”) is September 8th-14th this year. Each year, the nation’s largest suicide prevention organization, the American Foundation for Suicide Prevention (“AFSP”), hosts NSPW. One focus of NSPW this year is: Creating A Safety Net.This blog is a little bit about how I created a Safety Net for myself, and why you need one, too.

Why Do You and I Need A Safety Net?

Each of us lives a life in which our experience of living may bring along some challenges. I venture that most would agree that life is not a linear or static journey -neither in a practical or emotional sense. Personally, I have found that this great sweep of things we call “Life,” although a wonderful journey, it has not been one of predictability. While I have enjoyed years of stability and joy, years of happiness, years of feeling inspired, I have also faced years of hard-times, loss, defeat and great suffering.

Yahoo Finance published an article about how insurers try to prevent individuals from obtaining disability benefits. While the article discusses Canadian insurers, our experience is that the tactics described in that article also happen in the United States.

This blog elaborates on some of the points raised in the article, especially as they relate to ERISA insureds. The Yahoo article observed:

Surveillance is a common tactic. Insurers will hire private investigators to try to catch you in the act of doing something a disabled or injured person couldn’t, like moving a ladder or other heavy objects.

Seeking treatment when symptoms from mental health conditions become severe can be scary. A person experiencing paranoia, delusions, or hallucinations may not be able to advocate for themselves. They may not be able to tell doctors and nurses which medications they have adverse reactions to, how to best treat their symptoms, and who to call in case of emergencies. This may lead to them being put in situations that exacerbate rather than relieve their symptoms.

One tool that can help is a Psychiatric Advance Directive, or PAD.   A PAD is written by a currently competent person who lives with a mental illness.  The PAD describes treatment preferences and/or names a health care proxy or agent to make decisions if the person is unable to do so for themselves.

What a PAD Can and Cannot Do

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.”).

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