Articles Tagged with Kantor & Kantor

Autoimmune disease is a broad category of related diseases in which a person’s immune system mistakenly attacks the tissues and organs it was designed to protect. Normally, the body’s immune system protects it by responding to invading microorganisms, such as bacteria and viruses. The immune system produces antibodies, which are special proteins that recognize and destroy the invaders. Autoimmune diseases occur when these autoantibodies attack the body’s own cells, tissues, and organs.

Autoimmune Facts:

  • There are more than 100 autoimmune diseases.

Weissman v. United Healthcare Ins. Co., et al., 19-cv-10580, (D. Mass. Mar. 8, 2021) (Judge Allison D. Burroughs). A putative class of former patients, who were denied life-saving, quality-of-life maintaining proton therapy cancer treatment, brought a putative class action alleging that UnitedHealthcare and the lead putative class plaintiffs’ employer-based health plans breached their fiduciary duties by wrongfully denying medically necessary proton therapy cancer treatment. Lead class plaintiff, Kate Weissman, and her family were able to come up with over $125,000 to privately pay for medically necessary proton therapy treatment to treat her cervical cancer diagnosis after UHC denied her treatment in 2016. Kate, along with other proton therapy patients—Zachary Rizzuto and Richard Cole—brought this putative class to vindicate their rights under ERISA and for potentially countless others challenging UnitedHealthcare’s application of narrowly-restrictive, flawed, out-of-date internal coverage guidelines to wrongfully deny claims for proton therapy.

On March 8, 2021, the Court denied in full UnitedHealthcare’s motion to dismiss the putative class’ (1) claims for denial of benefits and (2) claims for breaches of fiduciary duty.  The Court concluded that Plaintiffs had plausibly alleged that Defendants acted arbitrarily and capriciously in denying their claims for proton therapy. Order, p. 17. Above and beyond this determination by the Court, Judge Burroughs also made clear that “[n]otwithstanding Defendants’ arguments to the contrary, Plaintiffs have alleged more than just that their requests for pre-authorization for PBRT were arbitrarily and capriciously denied. Rather, they have alleged that UnitedHealthcare has developed and applied the PBRT Policy [UnitedHealthcare’s separate coverage policy] to broadly deny coverage for PBRT, even though it is safe and effective, because it is more expensive than IMRT. . . If these allegations are borne out, § 1132(a)(1)(B)’s remedy of repayment of benefits may turn out to be inadequate, and it would therefore be premature to foreclose the possibility of equitable relief, including an accounting and disgorgement [of UnitedHealthcare’s profits from wrongfully denying PBRT claims].” Order, p. 19 (citations omitted).

Finally, the Court also concluded that “even if Plaintiffs can ultimately prove only that UnitedHealthcare breached its fiduciary duty by impermissibly denying their benefits, it is possible that relief under § 1132(a)(1)(B) would still be insufficient. In other words, it is conceivable that even past due benefits, prejudgment interest, and attorneys’ fees may not put Plaintiffs in the position they would have been in but for UnitedHealthcare’s alleged misconduct.” Order, p. 20.

One of the most crucial pieces of evidence in supporting a long term disability (LTD) claim is the opinion of the claimant’s treating physician that he or she is disabled.

Many physicians are more than happy to assist their patients with forms required by the LTD provider and in some cases, narrative accounts of their patient’s disabling condition. Sometimes, though, the doctor is unable or unwilling to assist. There are a variety of reasons for this: lack of time, lack of compensation, misunderstanding of the level of involvement required by the doctor, employer/hospital rules preventing them, and in some cases, a disbelief that their patient is actually disabled.

If you have a disabling condition and you are making an LTD claim, or you are receiving benefits, your doctor’s participation in the process is essential. Without a doctor’s support, in most cases, your claim is finished. If your doctor has notified you that he or she will not be able to assist you with your claim, it is important to ask him or her to tell you the reason for their decision. If it is anything other than lack of belief that you are disabled, often, further information can change their minds. The offer of additional compensation for their time is a big help. Explaining that they will not have to do anything more than the forms or a letter – that they will not have to testify in court – goes a long way in changing minds.

An alternative to health insurance marketplaces available through healthcare.gov are “short term” health insurance plans purchased through insurance brokers.

These short term plans have surprisingly low premiums and even slimmer coverage. The problems with these short term plans have caused four states – California, Massachusetts, New Jersey, and New York – to ban them.

Insurance brokers are incentivized with higher commissions to sell short term plans compared to Affordable Care Act (“ACA”) plans.  See more from Consumer Reports HERE

Health insurance plans provide coverage only for health-related serves that they define or determine to be “medically necessary.” Medical necessity refers to a decision by your health plan that your treatment, test, or procedure is necessary for your health or to treat a diagnosed medical problem.

Most health plans will not pay for healthcare services that they deem to be not medically necessary. The most common example is a cosmetic procedure, such as the injection of medications to decrease facial wrinkles or tummy-tuck surgery. Many health insurance companies also will not cover procedures that they determine to be experimental or not proven to work.

Hereditary Leiomyomatosis and Renal Cell Cancer (“HLRCC”) is a very rare genetic condition that was named in 2002. It is also known as Reed’s Syndrome. HLRCC is a disorder in which affected individuals tend to develop benign tumors containing smooth muscle tissue (leiomyomas) in the skin and, in females, the uterus. This condition also increases the risk of kidney cancer. Surveillance and monitoring for HLRCC is recommended starting at around age 5-8 years.

Pension “de-risking” sounds like a fancy term for protecting participants’ interests in their benefits. In other words, take the risk out of pension benefits. Well, not quite. Not even close. Pension de-risking is a scheme to benefit the employers who sponsor pension plans. It refers to ways in which the employer can reduce its own risk that it may not have enough assets to pay the benefits that have been promised or just reduce the expense associated with such promises. While pension de-risking is not new to the pension world, the amount of de-risking and the type of de-risking in recent years should be concerning.

There are a few ways that pension plans can reduce their risk. Older and more common methods are to amend the plan to freeze benefits, terminate the plan altogether or make a lump sum offer to eligible participants. Another de-risking strategy that has become very popular in recent years is for an employer to purchase annuities from an insurance company which then provides the monthly payments to the pensioners. This is more commonly referred to as a “buy-out.” One need only do a simple google search of the term “pension de-risking” to find a plethora of insurance companies chomping at the bit to buy-out pension liabilities.

That begs the question, “why?” Why do insurance companies want to take on these liabilities and why do employers find them attractive? Employers find annuity buy-outs attractive for a few reasons.

If a claim for ERISA disability benefits is denied or terminated, the claimant’s next recourse is to submit an administrative appeal to the insurance company. An ERISA long-term disability claim cannot be taken to court until the administrative appeals process is first exhausted. If the appeal is denied and the case proceeds to litigation, ERISA constrains the scope of evidence that is heard at trial and also limits the available remedies. (For this reason, ERISA is favorable to the insurance companies since it does not contain strong disincentives for denying meritorious claims).

It is important to understand that, with rare exceptions, the evidence submitted on appeal is the only evidence that will be considered in litigation—in other words, once the insurance company makes a final decision on an appeal, the file for litigation becomes closed. New supporting evidence does not get added during litigation and no witnesses are called to the stand to testify. The judge makes a determination based on the legal briefs submitted by the attorneys on both sides and a hearing at which the attorneys present arguments and answer any questions the judge may have. This makes ERISA litigation is a very particular type of litigation  governed by certain rules and limitations which make the process quite different from many other types of litigation such as personal injury.

For this reason, thoughtful preparation and submission of all relevant evidence for the administrative appeal is absolutely imperative. Appealing the denial of a disability claim is not just a matter of refuting the insurance companies’ reasoning for the decision or pointing out overlooked facts. Rather, it is the one opportunity to assemble the strongest possible body of evidence that can be presented in court if the appeal is denied.

First, a quick definition: A claim reserve is a reserve of money set aside by an insurance company in order to pay policyholders’ claims under their policies. Reserves are set by the insurance company in an amount that it anticipates having to pay out for the claim. Reserve information is important because it can show that the carrier undervalued the claim and never had the intent to pay the reasonable and necessary cost to repair the loss.

Despite being required by law to do so, homeowners’ insurers often improperly redact reserve information when producing claim file materials in litigation. Insurers also often to attempt to thwart an insured’s access to reserve information by objecting to deposition topics related to reserves. It is only when pressed that some carriers, whose counsel is aware of their untenable position, will concede and produce unredacted reserve information.

The Eastern District of California recently ruled on several discovery issues in a bad faith action involving a water loss. In Banga v. Ameriprise Auto Home Ins. Agency, No. 2:18-cv-01072-MCE-AC, 2021 WL 634955 (E.D. Cal. Feb. 18, 2021), a homeowner brought a bad faith action against her insurer after a dispute over insurance coverage for water damage to her home. As a result of high windstorm, the roof of the insured’s house was damaged, causing leakage that further damaged the interior walls and the vaulted ceiling of the house.

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

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.

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