Articles Tagged with Kantor & Kantor

On April 28, 2020, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued deadline relief and other guidance under Title I of the Employee Retirement Income Security Act of 1974 (ERISA) to help, among other groups, disability plan participants who are impacted by the COVID-19 pandemic, also referred to as the coronavirus outbreak.

The Department of Labor, Department of the Treasury, and the Internal Revenue Service issued a joint notice explaining the extension of time frames for healthcare coverage, portability, and continuation of group health plan coverage under COBRA, and time frames to file a benefit claim or appeal of denied claims.  They also issued COVID-19 FAQs for Participants and Beneficiaries that address a number of common questions concerning health and retirement benefits.

The final rule published by EBSA and submitted to the Office of the Federal Register (OFR) for publication contains information of the extension of certain timeframes under ERISA and the Internal Revenue Code for group health plans, disability and other welfare plans, pension plans, and participants and beneficiaries of these plans during the COVID-19 National Emergency.

The COVID-19 pandemic has uprooted the lives of millions of Americans in many ways and has taken its toll physically and mentally on millions of Americans across the country. But for people who suffer from mental health issues, the COVID-19 pandemic has created a new wave of panic, chaos, stress, and uncertainty.

More than 2 million Americans are estimated to be affected by obsessive compulsive disorder (“OCD”), according to the Anxiety and Depression Association of America. Nearly 7 million people in the U.S. are affected by generalized anxiety disorder and about 6 million people in the U.S. are affected by panic disorder. Fear and anxiety about COVID-19 can be overwhelming and cause stress in both adults and children.

Stress during COVID-19 might include:

The effect of COVID-19 on the lives of every American cannot be overstated.  What we cannot know yet is how those effects will continue into the future.  We buy insurance to protect us in the event of future calamities. A variety of different types of insurance could potentially be triggered by the varying effects of the disease.  As it can be hard to know what the future could hold, the points below summarize the different ways your insurance could be involved in COVID-19 repercussions in the months and even years ahead.

It is difficult to know with certainty the range of long term health issues that could be caused by COVID-19, as the virus has only plagued us for approximately six months. Doctors predict the long-term effects will be similar to other coronaviruses like SARS.  While 80% of sick patients had “mild” cases, of the 20% who did not, they could experience a variety of long term effects.  COVID-19 survivors are expected  to follow the path of severe respiratory issues often seen after recovery from other respiratory illnesses.  That could mean lung fibrosis, reduced lung capacity and difficulty breathing and fatigue. Preliminary data out of China demonstrates that 20% of patients hospitalized with COVID-19 had heart damage. Patients also experience increased blood clotting.  Early studies from Asia show that COVID-19 attacks T-cells in a manner similar to HIV. Doctors are also finding that close to half of those hospitalized for COVID-19 have blood or protein in their urine, which is an early indicator of kidney damage, and up to 30% of patients in New York and Wuhan lost some level of kidney function. Liver damage, intestinal damage, and neurological malfunctions have also been reported.

Health Insurance

An employee who becomes disabled while covered by an employer-sponsored disability plan may qualify for short-term disability (STD) benefits and then long-term disability (LTD) benefits, based on the length of the disability and the terms of the plan. However, some LTD policies require that the employee not only apply for STD, but “exhaust” it, meaning receive the maximum amount of benefits allowed under the policy, before they may pursue LTD. If an employee received all but one day of the full STD benefit, they may still have to go through the appeals process or risk eligibility for the more valuable LTD benefit.

Kantor & Kantor was recently retained by a client, who we will refer to as John Smith for anonymity.  Mr. Smith was employed by a large corporation as a Material Handler who was responsible for all supplies and materials needed to manufacture medical devices.  Unfortunately, he became disabled by degenerative disc disease and painful spondylosis of his lumbar spine.  In addition, he suffered from sciatic nerve pain in his back.  His painful conditions necessitated medications which also caused side effects and impacted his functioning.

Mr. Smith’s company’s disability plan claim involved the situation described above, except that his STD claim was terminated just a few weeks before he received the maximum duration of benefits.  He unsuccessfully appealed his STD denial on his own before hiring the law firm.  In evaluating his STD claim and his potential LTD claim, the attorneys identified the following language in his LTD policy:

On April 8, 2020 Kantor & Kantor Partner Elizabeth Hopkins and Karen L. Handorf of Cohen Milstein, filed a friend-of-the court brief in the Supreme Court for Phyllis Borzi and Dan Maguire, two former, high-ranking Department of Labor officials.

The brief supports a number of States that successfully challenged a newly-enacted federal regulation, which runs contrary to the requirement in the Affordable Care Act (ACA) that women in healthcare plans be provided free access to preventive health services.

Under the challenged regulation, virtually any employer may simply disregard the ACA requirement that healthcare plans provide cost-free contraception for women enrolled in such plans, and thereby prevent enrolled women from receiving this congressionally-mandated preventive health service.

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.

If you have a pending ERISA disability claim, the plan administrator or insurance company may schedule an Independent Medical Examination (“IME”) for you.  Your first question may be, “do I have to attend?”  While every person’s situation is different, and you should consult with your attorney about the specifics of your case, it is recommended that you comply with reasonable requests by the administrator to have you evaluated in person.

Why, you ask?  For starters, most disability policies contain a provision that gives the administrator the right to have you examined.  Failure to comply may result in the denial of your claim.  For example, in Burke v. Pitney Bowes Inc., 392 F. App’x 570, 572 (9th Cir. 2010), the Ninth Circuit Court of Appeals held that it was reasonable for the plan administrator to request a second IME of the plaintiff and that the plaintiff’s refusal to attend prejudiced the administrator’s ability to decide the claim.  The Court found that the termination of disability benefits based on the plaintiff’s failure to attend the IME was not an abuse of discretion.

Second, if your matter ends up in litigation, it is important that you appear reasonable and cooperative to the judge.  The focus should be on the merits of your disability claim, not on whether you should have attended an exam.

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

For Immediate Release

March 9, 2020

Class Notices are being sent to individuals who were covered under a Blue Shield of California non-ERISA health plan during the period of September 2, 2007 through December 31, 2015, and were denied authorization or reimbursement for residential treatment of anorexia nervosa or bulimia nervosa on the grounds that their plans did not provide coverage for residential treatment.

The Supreme Court handed down a victory on February 26, 2020 to employees whose pension, healthcare or other benefit plans are mismanaged.  Under ERISA, the federal law that governs such plans, those who manage or administer such plans are considered fiduciaries bound by strict standards that require them to act with great care and in the interest of plan participants and their families.  If they fail to meet these requirements or otherwise violate the statute, ERISA give employees six years to sue unless they have “actual knowledge” that the plan managers or administrators violated their duties or the statutory requirements, in which case a three-year period for filing suit applies.  In Intel Corp. v. Sulyma, a unanimous Supreme Court held that Congress meant what it said and that plan participants must actually know about the fiduciary breach or violation to trigger the shorter deadline.  In that case, a pension plan participant stated that he never read financial disclosures posted by his employer on a website.  The Supreme Court held that, in those circumstances, the employee did not automatically gain “actual knowledge” of the plan’s risky investments based on these web postings and therefore his suit was timely.  This decision will ensure that ERISA works as intended so that employees and their families are not prematurely cut off from their right to file suit simply because an employer or insurance company posts information which could have led them to discover mismanagement.  Kantor & Kantor filed a friend-of-the-court brief on behalf of the Pension Rights Center supporting the employee, Mr. Sulyma, and we are very pleased with the result.

For questions about your pension, healthcare, or long-term disability benefits, please call Kantor & Kantor for a free consultation at 800-446-7529 or use our online contact form.

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