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As most ERISA claimants should know employer-provided Plans do not insure actual jobs, but only occupations. Benefits are payable for the first 24 (12, 36, 60) months when claimants are unable to perform the material and substantial duties of their OWN occupations. Thereafter, claimants must prove they are unable to perform ANY occupation in the national economy.

Between 9 and 18 months of paid benefits most insurers will perform what is called “an any occupation investigation” by performing a TSA (Transferable Skills Analysis). Unfortunately, the process is subject to the GIGO principle – Garbage-In, Garbage-Out.

In reality, the TSA process should be as follows:

  1. Insurer informs claimant the “any occupation” process has begun and requests updated medical restrictions and limitations from all treating physicians.
  2. New medical information is reviewed by RN walk-in, followed by a review and referral to a vocational specialist.
  3. TSA is performed using occupational software to “look-up” and determine if there are “alternative occupations” available that are “gainful.”
  4. If more than one occupation can be identified, claim is denied.

The process itself is full of, well let’s say, holes and mistakes. To begin, most claims handlers don’t bother to update medical information with current restrictions and limitations. This is why the TSA is subject to the GIGO principle since using old medical information gives inaccurate results.

Vocational reviews are grossly outdated. Occupational information from the DOT has not been updated since the late 1970’s, and yet the bottom feeder companies such as CIGNA, Aetna, The Standard, MetLife still use old vocational information to determine alternative occupations. Occupational reviews are rarely current, or up to date, and clearly “gainful” information is also not accurate.

DCS receives many phone calls and questions such as, “Can Unum really make me go to work for McDonald’s or Wal-Mart?”, and the answer is, “Of course not.” All ERISA Plans contain definitions of what constitutes “gainful” employment and those provisions must be adhered to.

The problem is, I’ve never seen the issue of “gainful” documented in any file where a TSA has been performed. It’s unclear whether the insurer considered “gainful” or not. The any occupation investigation can progressively become more and more inaccurate when old medical restrictions and limitations are used in combination with grossly outdated vocational and gainful information.

“Indexing” is yet another forgotten item that is never documented or considered. In an inflationary economy (which we are not experiencing), indexing can make a difference in outcome.

The results of the TSA often document unreasonable and burdensome outcomes. Suppose a Unum claimant was on claim for 15 years when a TSA documented the identification of “alternative gainful occupations” and the claim was denied. Realistically, the claimant does not have the skills to re-enter a competitive workforce; there is no credible resume work history; and it’s unlikely anyone over the age of 50 will ever really get hired.

Tragically, it doesn’t matter – claims are still denied because “alternative occupations” have been identified. Claimants need to understand that the “any occupation investigation” after 24 months is the insurers last great hope to terminate claims. ¬†Therefore you can imagine what kind of lion’s share resources are dedicated to the process. ¬†However, statistically, the probability of insurers being able to terminate claims goes way down after a negative TSA is documented.

It is also important to realize that the process of “any occupation investigations” needs to be managed. DCS, Inc. assisted claimants with at least 10 change in definition claims in the last 6 months and all clients continued with benefits beyond 24 months. Just “sitting there” waiting for insurers to make a decision isn’t going to produce favorable results.

Change in definition provisions are an adverse part of employer-provided ERISA Plans. It is important for claimants to understand the process and be able to manage TSAs to a favorable result.

 

 

This is just a reminder that summer and holiday fun does not mean exceeding medical restrictions and limitations. While you may be basking in the sun at the lake, insurance investigators are working overtime to catch you on that Jet Ski.

Holidays such as the 4th of July are very popular surveillance traps for those who ignore Murphy’s law that dictates “the worst thing that could happen, will happen, and at the worst possible time.” So, if you’re thinking that your insurer couldn’t possibly find you hidden away in mountains, or cabin at the lake think again.

Insurance surveillance is excellent these days using surveillance equipment that can record you from 500 yards away! (That’s 5 football fields!) They can also use silent drones to see through the trees. While insureds do not need to be housebound with quilts up to their noses, they are still expected to abide by all medical restrictions and limitations reported previously to their insurers.

Also, as Americans let’s all please come together as a united people and support the national freedoms we have. This would also be a good time to remember all of our fallen soldiers who died preserving our way of life.

I appreciate and thank every Veteran for their service to the United States and wish them all safety and protection in the future.

In the meantime, insureds……please be careful out there.

 

Once again the issue of Unum lump-sum settlements has been brought to my attention. Where before, Unum always considered requests for settlements, it now appears the company is using settlement requests to engage in claim investigations that could result in termination rather than settlement.

Rumor has it that Unum fired much of its settlement staff and may be outsourcing settlements to a company like Lucens who is now paper chasing SSDI files. In any event, DCS, Inc. was informed some time ago that Unum’s Financial Settlement area was using settlement requests to open up new investigations. Therefore, while Unum’s settlement offer letters still read, “as an option”, it’s clear Unum’s settlement motives are much more sinister.

Today, it is virtually impossible for insureds to invest a lump-sum settlement at the offered discount rate to yield future value. So while Unum profits by at least a 20% financial reserve gain with each settlement, insureds are scrambling to find secure investment opportunities earring greater than 1% interest.

In reality, insureds are unable to realize policy future values and real losses take place. Unum rarely, if ever, offers 100% of NPV (net present value), another realized loss for the insured. Those who are accepting Unum’s offers of settlement are losing a percentage of current value in addition to a percentage of future value.

Whether or not to accept a disability claim settlement is a “life” decision, not only a claim decision. Those who have other sources of income, investments and equity might be able to live on Unum’s offer of settlement; however, those who depend month by month on the lump-sum will never have enough money to maximum duration of claim, or SSR, or normal retirement age.

Yes, there are those insureds who tell me, “Linda, I have to get out from this nasty company. I don’t care if I lose value, I just want out.” This is a very different reason for accepting settlement, but one must be careful not to shoot himself in the foot. The first priority is to put pencil to paper and find out whether the numbers work out for your future support. If not, you have your answer regardless of how disgusted you are with Unum.

Unum isn’t a good prospect for settlement anymore. I actually do a great deal of settlement counseling, and basically the information remains the same.

You may not believe this but sometimes after an accepted settlement people literally “freak out” when the checks stop coming to the bank. It doesn’t make any difference that they have a lump-sum, emotionally, the security of getting a check every month is comforting – without it, frightening. If this is the case, a settlement is not for you.

While I have somewhat supported Unum settlements in the past, I no longer recommend them, if only for economic reasons. Unum needs to get its company act together and become a bit more organized and less chaotic.

Please consider any Unum settlement decision very carefully before signing on that dotted line. In most cases, a Unum settlement isn’t worth it.

 

 

Most employees who are covered under an employer’s group ERISA disability Plan are unfamiliar with Plan provisions and what the Plans actually provide versus what they take away. While employers have a way of selling their benefit packages as “free disability coverage”, an examination of the details point to a very different product.

To begin, Employer ERISA Plans have more adverse provisions than they have favorable ones. Group insurer Plans are formulated to give insurers an interest in not paying claims. Think about it….the same insurer who pays claims also makes decisions as to whether claims should be paid at all. In combination with the fact that profit is realized by NOT paying claims, from claimants’ perspectives, the risk of not getting paid at all is pretty high.

In addition, employer Plans contain adverse provisions from the beginning….24 month own occupation and mental health limitations, limitations for payable benefits as a percentage of pre-disability income, offset or reductions in benefits provisions, restrictions on time limits for providing “proof of claim”, and maximum duration limitations. In addition, ERISA Plans have a federal jurisdiction that excludes bad faith litigation in state courts.

On top of the written failed contractual product, the federal government allows “discretionary authority” giving insurers sole authority to adjudicate the Plan and decide for itself who gets paid and who doesn’t. As if the deck wasn’t stacked enough before, discretionary authority seals the deal to insurance corporate profitability at the employee’s expense.

After the fact, when claims are denied, attorneys often contribute to the problem by charging fees to maximum duration that reduce benefits received to less than 30% of pre-disability earnings. That is, if claimants can find an attorney who will take an ERISA case at all.

What is unfortunate is that claimants often depend on their Employer’s Plan for sole income during periods of disability. While ill, employees are forced into an administrative nightmare of constant paperwork, phone calls, and various requests that often worsen medical conditions, such as stress, anxiety and pain. Claimants are forced to deal with insurance companies, that only care about meeting financial objectives within a certain time period.

Employer provided group disability insurance should never be relied upon long-term to meet 100% of financial needs. It can be terminated instantaneously by the insurer, and clearly is uncertain and unreliable. Litigating ERISA claims is often regarded as an un-winnable process.

Those who have employer-provided Plans should obtain a copy of the Certificate Booklet and read it thoroughly. Know in advance of a disability what you are entitled to and what the insurance company can take away.

ERISA Plans do not represent secure, reliable income and should not be relied upon for family resources. It’s like playing a game of Texas Hold’em when the other guy is holding all the wild cards.

Friday Q & A

Where are Unum checks mailed from?

Unum’s checks are mailed from Columbia, SC. All communications into and outgoing from the company also come from Unum’s data center located in Columbia, SC. I understand Unum is in the midst of a chaotic reorganization right now, but so far it looks as though the checks will still come from SC.

What is a Life Waiver of Premium claim?

Most disability policies (and life policies) have a Waiver of Life Premium provision that excludes the payment of premium for life insurance while on disability. Policies also exclude the payment of disability premium while on claim.

Life Waiver of Premium provisions most often require insureds to be totally disabled from performing ANY occupation and therefore it is possible to get paid for an own occupation disability claim, but the Life Waiver is denied.

For example, during the first 24 months of a paid claim, the insurer pays for own occupation disability but doesn’t accept the insured is totally disabled from ANY occupation. Therefore, it’s likely that Life Waiver of Premium won’t be approved until the transferable skills analysis is done at the any occupation to determine if the insured is totally disabled from ANY occupation in the national economy.

Please do not get confused with “disability premium waiver” and “life waiver of premium.” Insureds and claimants do not have to pay disability premiums once their disability claims are approved. By the way, Life Waiver of Premium provisions can exclude premium payments for disability even if the life policy is underwritten by another company. It’s always a good idea to check your life policies to see if they have a Life Waiver of Premium for total disability.

Are insurance field interviews HIPAA protected?

Absolutely not. In fact, all records held by disability insurers are not protected either. Disability insurers are specifically excluded in the law as HIPAA “covered entities” and therefore, files at Unum or CIGNA, for example, are not HIPAA protected.

Again, even though Unum’s Authorizations are HIPAA approved, the auths themselves say that once the information is released it loses its HIPAA protection. Although HIPAA laws do not include disability claim protection, the medical records forwarded to insurers are protected. But again, once you sign an authorization releasing the records the first time, they lose HIPAA protection.

HIPAA actually doesn’t provide all that much protection for privacy of medical reporting. It just sets guidelines for the electronic transmission of medical records or medical information. This brings up the argument as to whether doc-to-doc phone conversations are HIPAA protected. In my opinion, they are, and that’s why many treating physicians are now refusing to speak with insurance docs.

After roughly 25 years in the business I am absolutely convinced that one of the reasons why insurance companies harass treating physicians with vexatious requests for information is because what they get back is not what they need, or are looking for.

Most treating physicians are very close to their patients and remain supportive during every phase of patient disability. Despite the fact that they are now required to fill out forms from every possible source (SSDI, Worker’s Comp, Private Disability, Personal Injury Litigation etc.), they do the best they can while trying to do their real jobs of providing patient care. The physicians I have dealt with on behalf of my clients have been totally supportive, and it is obvious they care about the health and well-being of their patients.

However, while I am extremely grateful to the physicians who take the time to  support disability correctly, there are some physicians who continue to regard time spent in filling out forms as a waste of their time. All disability claims are paid or not paid based on the quality of medical information sent to the insurance company. And, while insurers are busy doing everything they can to find ways to deny claims, it is now more important than ever for physicians to report the totality of patient impairment, and do a really good job.

DCS, Inc. specializes in assisting treating physicians to report medical disability wisely. Although I can’t go into a great deal of my proprietary strategies in a public forum, here are a few items physicians should be documenting on a regular basis.

  • Diagnoses, both primary and secondary with ICD-10 codes.
  • Prognosis.
  • Statement as to whether patients are at MMI.
  • Details concerning the physician’s treatment plan.
  • Medical restrictions and limitations. (Activities patients may never do, versus activities they may do, but only to a limited extent.)
  • Physicians should always provide what I call a “disability statement.” If the patient is “totally and permanently disabled”, the physician should say so.
  • Physician statement regarding exercise, activity and that it is recommended as part of a viable treatment plan.

Statements from physicians such as, “No work”, or, “Patient is disabled”, is not sufficient to support private disability. The doctor needs to provide much more detail about why his/her patients are unable to work. Of late, I’m hearing physician comments such as, “What does it matter? Insurance companies don’t pay attention to me anyway.”

Although this observation may have some truth to it, insurers do pay attention to medical reports if only to try to find ways around them. Strong, well-documented medical reporting makes it more difficult for any insurer to challenge disability claims.

I also find that some patients are reluctant, or afraid to communicate what is needed to their treating physicians. I can understand this since some physicians fly by during consultations because they are so busy, particularly in the larger physician facilities. It’s hard to try to discuss disability forms when physicians give their patients 5 minutes of follow-up office time.

Physician reporting can be improved when patients also take the time to discuss why they feel they are unable to return to work. Treating physicians are NOT mind readers and shouldn’t be expected to conjure up medical restrictions and limitations relating to jobs or occupations when needed. DCS recommends that insureds and claimants show their treating physicians job descriptions and explain why they are unable to do certain things.

Bottom line, physicians who do not take the time to do a good job reporting impairment are repeatedly harassed by insurers to provide more and more information.

Medical reporting is a priority for private disability.

 

 

 

 

 

One of my clients received a request from Lucens, Unum’s newest SSDI file chaser, to sign a form called “Authorization for The Social Security Administration To Release Information.” On the bottom right of the Authorization is “Form SSA-L88-OP1 (06-2014).”

In examining the form carefully, it appeared to me that something was very, very wrong. To begin, the Social Security Administration doesn’t place its form numbers on the bottom right, but the bottom left of all of its forms. Second, if you notice all SSA forms have an “Approved OMB No. at the top right of the form. And finally, no SSA form has bar codes on the bottom and right side of the page; and when I searched for the form from the SSA.gov page it wasn’t to be found.

Last year I wrote to SSA requesting to know why Unum was allowed to use its own form CL-1155 to request SSDI files. SSA responded that any authorization can be used if it meets the SSA Guidelines for Authorizations. I had no objection to that because Unum numbered its Form CL-1155, and never misrepresented its proprietary form SSA form with an approved OMB No. In fact, this was good news since DCS, Inc. could create its own form for client purposes.

However, the Lucens form uses an SSA number and is suggesting to insureds and claimants that the form is an official federal form when it is not. This kind of deception really irritates me because it isn’t necessary. Lucens could number it’s form differently, the same way Unum did and no one would be led to believe the Authorization was a real SSA form.

Please don’t be misled into thinking the Lucens Group Authorization is an official SSA form because it isn’t. It appears to me Lucens created it own form which is OK as long as the company doesn’t format it to deceive insureds.

Let me remind claimants that they do not have to sign any Authorization giving Unum permission to obtain their SSDI file. You are permitted to keep this information private. If you are harassed about it, pick up your phone and call your federal Congressman for assistance. At best, don’t be misled by the Lucens Group form; it isn’t an official SSA form even though it’s numbered to make you think it is.

Not a great start of confidence in Lucens as Unum’s new file chaser.