Summer Surveillance – More than Just a Video

Insurance surveillance is a very popular and profitable insurance risk management activity. It is supported by the courts and regulators as a means to investigate claims to verify what is called “consistency of report.” From the perspective of insureds, however, surveillance is regarded as public snooping and invasions of privacy.

The entire purpose of contact surveillance (actually viewing of insureds’ activities) is to verify reported medical restrictions and limitations and ensure a lack of functional physical capacity for work. After all, insureds should not be reporting lumbar chronic pain and fatigue while at the same time putting in 18 holes at the local golf course.

I’ve said many times on this blog that insureds and claimants should never exceed their medical restrictions and limitations for their health’s sake alone. If you do, Murphy’s law will eventually catch up to you and surveillance will prove you can do what you’ve told your insurer you cannot do. Oops.

Although surveillance evidence is clearly not persuasive proof insureds have permanent work capacity to return to full-time work, it doesn’t look good either. An insured previously reported severe pain and incapacity due to multiple failed back surgeries was recorded climbing up ladders to staple colored lights on her house and trees for Christmas. She tried to explain her activity away by saying, “I was having a good day, but suffered for a week afterwards.” Nope….not good enough…her claim was eventually denied with surveillance coverage backing it up.

The old adage, “seeing is believing” applies to insurance surveillance. Visual proof of work capacity is credible, according to insurance sources. And, the insurance industry accepts the fact that, “if you can do it once, you can do it always”, which isn’t necessarily true, of course, but there you are.

In today’s insurance environment, insurers do not always need to “peep” at you from backed out trucks and vans. The Internet, namely Facebook, Twitter, My Space etc. provide excellent means to find insureds talking and talking about their activities. Insurance companies generally investigate three generations looking for activity information. That’s you, your parents and the FB pages of friends and grandparents. Anyone within that spectrum discussing  your family activities can be used to discredit claims. We now know that FB sells your information, the question is who do they sell it to?

LinkedIn is a favorite venue for insurers since the whole purpose of LinkedIn is to be able to “keep your foot in the door” while looking for work. Unum denies claims because of LinkedIn accounts and misrepresents such pages as “your capacity to work, since you’re still looking…..” The Internet global highway should never be used, particularly for social media while receiving disability benefits.

I’m often asked whether surveillance investigators use drones and other sophisticated surveillance devices, and my answer is, “It’s always possible.” However, it’s also important to remember that the use of specialized equipment often costs $800-$2,500 for a three-day surveillance including online investigation. Most insurers now employ entire departments of their own to snoop down Internet information because it’s more cost-effective. Berkshire/Guardian reps check the “FBI’s Most Wanted List” everyday, that’s how paranoid they are.

I have to admit that I see insureds and claimants getting very lax about exceeding medical restrictions and limitations. Just after reporting a “no sitting, standing, walking > 10 minutes restriction”, a young woman asked me, “can I take a trip to Florida to see my folks, It’s several hours ride on a plane.”

“Ugh, no”, I reply, “wouldn’t that be exceeding your medical restrictions and limitations?”

Medical restrictions and limitations mean what they say, by the way, and once reported by physicians to insurers, should be adhered to. I fear insureds often report R&Ls one way, and then act differently in real life – a real risk to future benefits.

Summer is a popular time for insurance surveillance because investigators know insureds are more likely to exceed restrictions. If investigators want to observe you, they can do it; clearly, they have the technology to snoop when you least expect it. If you are using social media in any way, you’re also placing your claim at risk. If using Unum’s website portal, you’re taking another risk. If you have an account on LinkedIn, close it as soon as you can.

If anyone has any questions regarding insurance surveillance please feel free to contact me. The fact that any insurer is conducting surveillance is indicative there are other red flags in your claim that need to be resolved. You may need more assistance than you think.

Needless to say, this is summer, and the insurance snoop dogs are out in full force. With 4th of July just around the corner, you want to make sure you still have a claim by Labor Day!

 

 

Bad Attorneys – Field Investigations

I’m hearing a lot lately, including comments on this blog, about attorneys who are recommending insureds and claimants “voluntarily submit” to field interviews. The general consensus is, “well…insurers are allowed to investigate claims”, or, “go ahead and do it, it won’t hurt your claim”, or, “we don’t want to appear as though we are hiding anything”, etc.

Aren’t attorneys the ones who generally tell you, “DON’T SAY ANYTHING”? Why in this instance would an attorney ever tell you to participate in a field interview when a provision requiring the activity is not in your Plan or policy? Isn’t it the attorney’s job to make sure he/she helps you enforce your Plan or policy provisions? As the insured, wouldn’t your own red flags go up when your attorney advises you to do something, out of contract and contrary to your best interests?

If you commit a felony the first thing an attorney tells you is “Zip it!”, but when he/she represents you for insurance purposes, it’s “Yea, go ahead and  talk all you want to the HUB investigator, we have nothing to hide.” What a bunch of nonsense.

To begin, the only investigative relationship any insurance company has is written within the policy contract. In the last ten years or so, insurers have been closing the loop on field investigations by including provisions requiring insureds to participate. However, many of the old versions of disability policies did not “write in” provisions for field interviews. If the field interview provision is not in your Plan or policy you do not have to give the interview.

Refusal to participate in a field interview isn’t an attempt by insureds to “hide anything”, but it is a request to the insurer to adjudicate only what is in the Plan or policy contract as written. Attorneys who recommend giving the field interview, even when specific provisions have been omitted, are “sitting and waiting” for claims to be denied so they can begin litigation, where their real money is.

As a twenty-five year veteran of managing private disability claims, I’ve probably read a few thousand field interview reports and they are never good news. While insurers can’t really deny claims based solely on field interviews, as personal profiles they carry a great deal of weight when the insured is literally “tricked” into saying or doing something adverse to their claim.

Field investigators, are also tricksters. For example, while interviewing an insured with a cognitive dysfunction, a Unum investigator pulled a pocket full of change and paper bills from his pocket and asked the insured to count it. When the insured was able to do it perfectly he documented there was no evidence of a visible cognitive defect.

Unum’s literature, for example, explains these interviews could last 1-2 hours. This is because it can allege that anyone able to sit 2 hours has sedentary work capacity. In the past, I heard of instances where Unum’s field reps kept insureds seated for a 5 hour interview. Unum isn’t by any means the only culprit. Northwestern Mutual insists on field interviews even when there are no provisions requiring it, and Principal threatens interviews under oath. (Not on my watch!)

In another example, a Unum investigator asked the insured how often she had to use her cane to which she replied “All the time.” After a few more minutes, the Unum rep asked for a glass of water. The insured left her cane by the table and proceeded up three small steps to her sink and obtained a glass of water. His report indicated there was no evidence the insured was required to use a cane. And, attorneys think these interviews can’t hurt you?

Think again. At one time insurers had an entire gaggle of internally hired field investigators, but today HUB Enterprises and other professionally trained private detectives conduct the interviews armed with 15 pages of management approved questions. Tag surveillance is also a popular activity, scoping you out the day before, the day of, and the day after the field interview.

Also, personal interviews are deceptively sold to insureds as “We would like to meet with you and give you a chance to ask us questions.” Really? 

Therefore, when attorneys send their sheep out amongst the wolves, without any preparation, or accurate information as to process, it is likely the interview could be used as additional evidence to deny claims – probably the attorney’s objective in the first place.

Make no mistake, field interviews, along with medical and vocational review, surveillance, doc-to-doc calls, and social media investigations are specific “risk management activities” requested for the explicit purpose of documenting claims for future denials. They are not just benign requests insurers make.

So, when your attorney tells you to submit to a field interview you should run in the opposite direction. No one wants to be in court with a private disability claim, particularly not an ERISA one.

There are more bad attorneys out there than good ones, and in my opinion, any attorney who advises you to “voluntarily” submit to a field interview is an exceptionally bad one.

 

Let’s Talk About Lyme disease…..

Insurance companies and diagnosing physicians have been at odds for the last twenty years as to whether Lyme disease is permanently disabling. In short, very prominent physicians continue to insist Lyme (and various other bacterial pathogens) can be permanently disabling, while insurers choose to follow CDC guidelines that Lyme is treatable with antibiotics and insureds should be able to return to work.

The two opposing views are distorted by multifaceted arguments that exposes some truth from both sides. Having managed Lyme claims for the last 25 years I’ve been in an excellent position to have observed a macro perspective of Lyme and, in addition, a historic view of how disability insurers discredited the impairment over time.

To make matters worse, it appears to me that on those occasions when physicians don’t have an objective clue as to what’s wrong, the patient usually winds up with a diagnosis of either: 1) fibromyalgia, 2) chronic fatigue syndrome, 3) Lyme disease or 4) multiple sclerosis. These four diagnostic categories often become the dumping ground for impairments that cannot be proved objectively with laboratory data anywhere else.

Once patients are “pegged” as having one of the four above diagnoses, physicians proceed to prescribed treatment, but the patient never seems to get any better – a sure-fire clue that perhaps patients have been misdiagnosed.

The scientific view, however, takes the position that a positive Western Blot or CD-57 test within the last 30 days is the only way to diagnose Lyme disease. Once diagnosed from lab reports, several trials of antibiotics are prescribed at which time the disease is cured and patients can go back to work. Insurers insist that Lyme disease is curable and that it is not permanently disabling.

Medical Lyme disease advocates continue to insist that Lyme bacteria can remain in the body even after multi-doses of strong antibiotics. In the past, a few very prominent physicians ordered IV-antibiotics long-term, without long-term positive effects, in fact, some caused liver damage.

Twenty years ago, physicians risked losing their licenses because of IV and other long-term doses of antibiotics. Today, these same physicians are prescribing herbal alternative medicine to avoid prosecution from malpractice.

In some cases, patients become absolutely convinced they have Lyme disease and set about “convincing” physicians they have what they say they have. Again, when the physician doesn’t really know what’s wrong, they eventually give in to patients who now have validation for a disease they may not have.

While I’m not disputing the existence of prolonged Lyme disease I do know that today insurance companies require positive Western Blot, CD-57 tests, evidences of a visible circular rash, and will allow at least two trials of antibiotics as treatment. Ig tests often provide indeterminable evidences of other bacteria, but if they do present as positive credible evidence, insurers will pay claims for short periods of time, assuming that after antibiotic treatment, insureds are well enough to return to work.

While at one time Lyme disease was accepted as a permanent disease, referred to as “late onset Lyme disease” that’s not the case today; insureds thinking they are permanently disabled from Lyme may find themselves without benefits after reasonable trials of antibiotics have been administered. In fact, some insurers are of the opinion that if insureds are “not better” after treatment of powerful antibiotics, they didn’t have Lyme in the first place.

I realize the subject of Lyme disease is controversial. Physicians aren’t putting patients in hyperbaric oxygen chambers, or prescribing morphine for pain anymore, but they do continue to prescribe antibiotics and alternative herbal medicine for long periods of time. Insurers aren’t buying that.

There is a way of supporting credible Lyme claims but I’m reserving that information as proprietary for the benefit of my clients. However, I do think it is important for insureds to explore ALL of the possible diagnoses for their own peace of mind and health, in lieu of accepting one of the four dumping grounds I listed above when your physician “just doesn’t know what’s wrong with you.”

The CDC and most insurance companies tend to say that if multiple trials of antibiotics aren’t helping, it may be you don’t have Lyme disease at all.

 

 

 

 

Disability Claimants’ Bill Of Rights

As a direct or indirect party to a disability contract involving insurance coverage for disability or income replacement, you are entitled to generally recognized rights of expectation that the provisions agreed to in the policy contract are adjudicated in a fair, unbiased and equitable manner by disability insurers. “Good faith and fair dealing” should be evident in the claims process that insurers are investigating to pay rather than deny claims.

You have the right to full disclosure  As the insured party to an ERISA disability Plan you have the right to receive and examine, once a claim is denied, all collected data, both paper and electronic, collected by the disability insurer in the process of reviewing your claim for benefits. All insureds have the right to be told the name of your claims handlers and the name of any managers who have validation authority over decisions to pay or not to pay your claim. Additional ERISA disclosure amendments were recently adopted requiring insurers to “explain” why claims were denied in more detail.

You have the right to privacy and respect.  You have the right to expect medical records and any other private information that reflects upon your credibility, integrity or reputation, to be kept private and communicated with respect. You have the right to know what type of information is requested over and above that which is needed in making a fair decision on your claim. You have the right to know when your claim is being reviewed in a public forum and by whom. (Such as roundtables.) You have the right to request all communications be sent to you in writing with an opportunity to actually “think” about your answers. You also have the right to expect that the people who are managing your claim treat you with dignity and the highest degree of respect.

You have the right to a timely claim decision.  You have the right to expect your disability insurer will make every effort to render claims decision within 45 days (ERISA claims) or that period of time indicated in your IDI policy provisions. You have the right to received STD benefits beginning on the first benefit payment date. For LTD You have the right to be notified in writing every 30-45 days as to the reasons why your claim decision is delayed. ERISA regulations require the insurance company keep you informed by sending “tolling letters” if the claim decision is not made within the 45 day period. You have the right to supplement ERISA Administrative Records or IDI files as to violations of ERISA timelines, or unreasonable delays in paying legitimate benefits when due.

You have the right to a fair and objective claim review. As an ERISA participant, you have the fiduciary right to expect your disability insurer will make every effort to consider ALL recommendations and opinions given to the insurer by your primary care physicians, consultants, counselors, and any other specialist who is qualified to render an opinion concerning your ability to work. IDI insureds have the right to expect full and fair claim investigations in “good faith and fair dealing.”  You have the right to expect the disability insurer will consider the experience and qualifications of your doctor as equal to those of its own in-house physicians, and to make fair and honest attempts to reconcile professional differences of opinion, eliminating all “conflicts of financial profitability interest.”

You have the right to fair representation of facts.  As the insured you have the right to a clear understanding as to the party or parties responsible for making  liability decisions for your claims. You have the right to know who is authoring communications to you from your insurers, and the names of all employees, consultants, directors, and others who are offering medical or administrative opinions concerning the facts of your claim. You also have the expectation of unbiased medical review and internal medical opinions that inherently will not cause you or others future harm, or risk of further injury.

You have the right to withhold authorization of release of information that is overly broad; and to receive explanations as to why private information unrelated to your claim is requested.  Any individual has the right to retain privacy rights to information without fear of loss of benefits. It is your right not to sign Authorizations of Release which are overly broad, or, which allows the disability insurer to obtain information outside of what is required for a fair and objective review of your claim within the provisions of your policy. Many of the newer ERISA disability policies contain provisions which require you to sign an Authorizations and cooperate with the insurance company or risk loss of benefits. However, SSDI files and psychotherapy notes are considered proprietary to claimants and mental health providers, as are fertility records, and information related to HIV and DNA in most states.

You have the right to ask questions.  As an individual outside of the specialty of the insurance industry, or understanding of that industry, you have the right to knowledge, explanation, definition, instruction and full understanding of the provisions of your policy without fear of loss of benefits.  You have the right to ask questions concerning your claim as often as is necessary for your understanding of the facts without fear of retaliation, suspicion, or unfair investigation tactics.

You have the right to expect ethical conduct.  As an insured you have the right to expect your disability insurer, and its representative employees act in “good faith.” You have the right as an employee or policyholder to expect your insurance company creates and maintains a clearly defined disability claims review process which lends toward the fair, objective and timely, review of all claims submitted as part of its product business.  You have the right to expect your insurance company have in place a process that routinely and consistently corrects flaws within the review process; recruits, trains and retains individuals qualified to review disability claims; and provides a forum for independent appeal processes. Finally, you have the right not to be lied to, and that claims handlers provide accurate and up to date information.

You have the right of non-discrimination.  All insured have the right to expect their insurance company not discriminate on the basis of benefit amount, self-reported or physical impairment, education, training or experience, occupation, age, sexual orientation, mental and nervous disorder, policyholder, geographical region, claim location, event, physician, claim duration, months of paid benefits, or any other target objective identified by management. You have the right of expectation that your claim will not be targeted by management for denial as a “block of business” due to any of the above, or to increase profitability by decreasing financial reserves at your expense.

You have the right of appeal.  As an ensured covered under the Employment Retirement Security Act of 1974 (ERISA) you have the right to a timely independent appeal review of your claim denial. For non-ERISA individual disability claims, you have the right to report discrepancies to your state authorities, to retain legal counsel, and request “reconsideration” of any denial decision. Although IDI insureds do not have the “right” of appeal, they have the right to challenge any decision made that denies or  withholds payment of benefits.

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This “Bill of Rights” was written by Linda Nee, a Disability Claims Consultant. Although there is no law or regulation upholding these rights as an official document, the rights described above are reasonable and should be expected from any disability insurer with a duty to uphold generally accepted industry standards to review claims objectively,  without bias or financial prejudice, and thereby exercising due diligence to the role of fiduciary duty. (ERISA)

Insureds should never accept that they are less worthy of dignity and respect because they have a disability claim.

 

Friday Q & A

Why are mental health psychotherapy notes so sought after?

There are basically two reasons why therapy patient notes are frequently requested, 1) patient notes in general are easy to misrepresent and interpret, and 2) patient notes can describe aspects of mental health used as indications of work capacity.

Most therapists today won’t provide therapy notes because they are aware of how the records are abused by insurance companies. And yet, this question is a very good one.

ALL patient notes, whether psychotherapy or physician notes are opportunities to “stack the deck” against insureds. Benign comment such as, “Patient feels well today”, and “Patient spent time with family over the weekend” are opportunities for insurers to allege work capacity. This is why a CIGNA rep told me last week the company pays no attention to “completed forms”, but must have patient notes as proof of claim. Then why keep chasing the forms?

Insurers are well aware of the fact that patient notes are not written by therapists to support disability, and therefore mental health restrictions and limitations are not often found directly in patient notes. Prudential, for example, absolutely insists on obtaining patient notes and then denies claims citing what’s NOT in them.

Mental and nervous insureds and claimants should always discuss with their treating professionals what to do when insurers request patient notes. Plans and policies do not specifically require the submission of psychotherapy notes as proof of claim

Can Unum exceed the 90-day ERISA timeline for review of claims?

Of course it can – any insurer can, not legally mind you, but then again, who’s watching? It’s possible the new ERISA amendments might buy you some interest from the EBSA (agency of the US Department of Labor) in the form of a complaint, but don’t count on it. Laws that do not provide a means of enforcing or backing them up aren’t helpful to claimants.

Violating ERISA deadlines as a “pattern of practice” indicated in the Administrative Record might be proof of “arbitrary and capricious” behavior, but generally violating ERISA timelines, although documented, are mostly ignored.

I can’t understand what my Unum correspondences are all about? Any clues?

Unum’s reps are getting very lax about putting together letters that make sense. Any insurance letter generally cites more than several policy provisions over and over again, presumably to heighten letters to scary levels of insureds’ tension and stress.

Today, the job of insureds/claimants is to cipher through all of the policy regurgitation and pick out what the claims handler is really asking for. To complicate matters Unum often sends out letters for no reason – such as the letter informing you that you and the company have the right to request an IME – a left over requirement of the Multi-State Settlement Agreement. That’s it.

Insureds need to become very skilled readers in that they are required to sift through all of Unum’s rhetoric and identify the one sentence that tells them what Unum wants.

Unum sends me copies of all of my client’s letters for deciphering which can be a real challenge for most insureds.

 

Is Unum Crazy Or What?

Everyone can probably recall at least one friend over the years who is a bit scary. You know, the friend who is quirky, moody, unpredictable, and just plain crazy. Even businesses theses days have their own idiosyncracies in process and attitude. And, although insurance companies have always maintained very high standards on the “crazy” ladders of inefficiency, one has to wonder how Unum as a company manages to exist.

I can well imagine Unum Life’s old CEO, Jim Orr III sadly shaking his head in disbelief as   Unum Life Insurance, previously  known as, “Lighthouse to the World” became “An Outhouse” of insurance bad faith in little more than a decade.

Reports continue to filter in regarding Unum’s negligent and inefficient claims process that is grossly untimely, managed by representatives who are rude, disrespectful and unkind. Repeated reports of Unum’s inability to handle STD claims in a timely fashion continue to be reported to me. Not only is Unum the company of “No”, it’s also joined the ranks of CIGNA, Aetna, and The Standard as bottom rung insurers who have difficulty working through their own claims processes.

What does this mean for Unum insureds and claimants?

• Continued letters from Lucens asking for SSDI Authorizations even when you’ve previously notified you will not sign.
• Rude phone exchanges in the form of “talking over you” and not giving you a chance to answer questions asked. (Most of you know I do not recommend speaking with Unum reps on the phone anyway.)
• Allegations of not receiving paperwork with requests for the same information over and over again.
• Claims reps not reading your file and trying to manage claims with limited or inaccurate information.
• Using outdated technology internally to attempt to process approximately 500,000 new claims every year.
• Internal strife — claims reps terminated due to age, sex and accusations of poor performance. Result? Constant new claims handlers, poorly trained and inexperienced.
• Frequent harassing of physicians for more and more information.
• Poorly trained claims handlers who are not trained in adjudicating ERISA vs. IDI claims.
• Letters sloppily written, misspellings etc. Menu template paragraphs not deleted from letters to which the templates do not apply.
• Gross untimeliness and violation of ERISA timelines.

There is enough evidence out there to suggest that Unum’s operating under a large backlog managed by claims reps who have no idea what they’re doing.

Despite the company’s poor public reputation and negligence, I spoke on the phone to an individual yesterday who told me, “I know my Unum claims handler. I don’t think she would do anything to hurt me! She’s been really nice!” Are you kidding me?

Let me be extremely blunt here. Unum’s claims handlers are trained to NOT tell you the truth, to question you in a way that provides information it can use against you, and is told time and again by management those who file claims are malingerers.

The entire time Unum reps are slapping your backs with gracious platitudes, they are internally  setting up “Primary Plan Directions” describing how they will work toward denying your claims. No one inside Unum is actually working for your general good to pay claims.

To think otherwise is actually, “the blind leading the blind” and is an extremely naive and pitiful position for insureds to take. Insurance companies do NOT work for your general good, nor do they plan to pay your claim long-term. The problem is that Unum now adds “crazy negligence” to the claims process contributing to an already complex and nerve wrecking claims process.

Does any of what I’m talking about sound familiar to you? Do you recognize Unum from your own personal experiences? If so, then you understand entirely the dilemma of Unum’s inability to manage claims in an organized timely fashion.

If it walks like a duck, swims like a duck, and quacks like a duck, it’s obviously a duck. In this case it’s a crazy Unum duck that can’t seem to get it’s ducks (pun intended) together to review claims fairly in a civilized way.

And, buying into the crazy won’t get you a paid claim.

 

 

 

 

 

 

 

DCS Clients Only – June Newsletter

Please make sure that you read the June Newsletter. This has some very important information for you to respond to. The newsletter is very important for you to read each month to keep up with what’s going on with DCS, Inc. and other important tidbits from the insurance industry.

I hope you will find the newsletter valuable to you. Also, if you are a client and are not receiving the newsletter, please let me know. I will add your name to my distribution list.

If you are NOT now a client and would like more information about my consulting services including the monthly newsletter please feel free to contact me. My email address is: DCS@metrocast.net

Thanks.