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Archive for the ‘Appeals’ Category

Bad dudesIt should not surprise anyone to learn that Mass Mutual in one of the many private disability insurers who do not have separate and objective offices to evaluate and review appeals. Requests for additional review are given to the same claims handlers and managers who evaluated claims and made initial wrong decisions.

Mass Mutual is primarily an IDI insurer who in the distant past provided fair reviews. In my opinion, however, is recent years, the company side-tracked fair and equitable claims review and replaced it with contract misrepresentation, and “stacked deck” claims review.

The company also appears to have lost control of the claims review process by becoming grossly neglectful and untimely with decisions. Claims handlers are assigned claims even when they are in and out of the office leaving claims sitting on the edge of their desks without appropriate actions taken to move claim decisions forward.

The issue of not having “a separate set of eyes” evaluating claims submitted on appeal is far more serious. But, let’s understand…..IDI or Non-ERISA claims are not “entitled” to an appeal in the first place. Employer Group ERISA claims are ENTITLED to an appeal, but not IDI insureds. This may be the reason why IDI insurers do not have separate departments for so-called “appeals” when technically insureds are not entitled to an appeal. Nevertheless, having the same bad faith claims managers continuing review after-the-fact seems prejudicial and unfair.

A word of caution. Mass Mutual’s approach to appeals is deceptive. In a recent case, the insured received a letter stating the written “appeal” would be forwarded to some one else and that contact should be made to that person. It was through contact with the Consumer Affairs and Ethics person that I discovered he had nothing to do with an appeal and was addressing only the complaint.

I verified with this individual that Mass Mutual does NOT review appeal situations in an independent department, but allows reconsiderations to be evaluated by the same claims  managers who have a conflict of interest in not correcting errors, negligence, or contract misrepresentations. It’s actually abhorrent to think that insureds have no fair remedy potential without litigation.

The Unfair Settlement Practices Acts always includes a statue that [paraphrased], “considers it bad faith for an insurer to force insureds to engage in lawsuits to obtain benefits they have already shown they are entitled to.” In my opinion, Mass Mutual’s avoidance of “independent review” violates this particular statute, which by the way is also included in the NAIC Model Acts adopted by most states almost verbatim.

In the past, mutual companies treated their insureds better than stock companies but no longer. It’s fair to say that Mass Mutual is no longer a quality insurer and, in my opinion, prospective buys need to be aware that the company does not review claims or appeals fairly.

ADDENDUM 3/19/2019

After pushing the claims handler to find out who actually makes appeal decisions I was told by one of the managers that the claim in question was sent to a “consultant” to independently review the claim on appeal. HOWEVER, the manager refused to tell me the name of the so-called “consultant”, which in my opinion makes the information less credible. How do we know the claim was actually reviewed by an independent person if the name of that reviewer is undisclosed? Seems a bit shady to me.

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appeal-court-judgementWHAT IS AN APPEAL?

An appeal is a claims process whereby insurers are asked to review their previous denial   decisions to determine if the original denials were correct. Through supplementation of the Administrative Record, or claim file, insureds and claimants have the right under (ERISA), or are given the opportunity (Non-ERISA) to “make their case” for continued payment of benefits beyond the termination date.

The burden of proof, therefore, is for insureds and claimants to provide insurers with sufficient medical, occupational, and financial information as of the date of termination that they were totally disabled and unable to work ON THAT DATE and are unlikely to successfully re-enter a competitive workforce in the future due to total or residual disability.

Unfortunately, insurers have used the appeal process to begin, or engage in entirely new investigations on an ad hoc (after-the-fact) basis that are entirely inappropriate. Consider, for example, the insurer who failed to request an Independent Medical Evaluation prior to rendering a denial decision, but requests one after an appeal is filed.

I have always been of the opinion that if an insurer opens a new investigation of a claim on appeal then it should pay benefits while the new investigation is pending. Again, the purpose of an appeal is to determine whether the insurance company’s original denial decision was the correct decision to make.

Nevertheless, most insurers will respond that “the purpose of the new investigation” is to determine whether insureds are likely to be disabled in the future – a conflict of definition as to what an appeal really is.

Currently, the U.S. Department of Labor amended its regulations restricting the appeal process to the original denial decision. These and other ERISA changes, some favorable to claimants, took place in April 2018. It remains to be seen how effectual those changes will be and how claimants will benefit from the amendments in the future.

ERISA Plan participants have 180 days to supplement the Administrative Record with new information clearly documenting their incapacity for work. Documentation may not be allowed in the Record after the 180 days has expired. Frankly, DCS, Inc. “supplements” the Administrative Record of our clients on an ongoing basis so that if claims are denied, the Record is already as complete as it can be before referring to an appeals attorney.

IDI contracts are not limited to 180 days, but are limited only by the statute of limitations within their respective states. There are a few insurers, such as Unum, that may attempt to hold IDI insureds to a 180-day administrative review.

Unum and other insurers should always be reminded that contracts are not subject to ERISA and have no such limitations for review or submission of new information. Of course, Unum never takes no for an answer and generally will petition the court to decide whether the case is ERISA so that it can be heard in federal court.

Several insurers have a preliminary appeal process called “Reconsideration” that in my opinion only delays appeals even more than they sometimes already are. Insureds and claimants are permitted to submit additional information directly to the same claims handler who denied the claim for “reconsideration” of the denial decision.

Usually, after another 45-day review period, a letter is sent to insureds indicating, “the information did not change the original denial decision and your claim is now forwarded to the appeals unit.” The reconsideration is for most cases, a colossal waste of time.

The process of appeal by “reconsideration” is best utilized for a “failure to provide denial” since claims are usually paid once the overdue or late information is received and reviewed. In this way claim appeals can be overturned quickly and benefits restored avoiding a lengthy appeal process.

In practice, most but not all, insurers have separate appeal units and departments that are an “arm’s length” away from the claims handlers who originally denied the claims. Other insurers allow the same denial handlers and managers to make appeal decisions subjecting the appeal to a very prejudicial and biased appeal process. Those insurers who do have separate appeals departments will let you know that they do.

ERISA allows insurers 45 days to make decisions on appeals; however, insurers often extend this timeline another 45 days if they have not concluded their investigation of the appeal. IDI appeal decisions are not subject to any timeline and insurers can take as much time as they want, subject to any existing state laws of course.

There are only three possible outcomes for any appeal submitted to an insurance company:

  • The claim denial is overturned and all benefits are restored. Past benefits should be restored with interest, and future benefits paid. The claim is placed back into the “risk management barrel” and can be subjected to updates, surveillance, field visits etc.
  • The claim denial is upheld, no future benefits are payable. The only option left is to find an attorney willing to take the case and file a lawsuit.
  • During the claims appeal process, insureds and claimants, through their attorneys, agree to accept a lump-sum buyout of their claims. This ends any future relationship insureds have with the insurance company.

In summary, a disability claims appeal is:

  • A request to an insurance company to reconsider its previous denial decision in light of new information showing continued incapacity for work beyond the denial date.
  • An opportunity to supplement the Administrative Record (ERISA claims) with all available information pertinent to the insureds continued disability. Claimants have 180 days to “supplement” the record, and insurers have 45 days to make a decision.
  • IDI insureds notify insurers there is a breach of contract, or breach of applicable state laws sufficient that benefits should be restored amicably prior to filing a lawsuit. There are no timeline requirements except they exist in state law.

It is very important for both insureds and claimants to realize that disability claim appeals are very complicated matters often involving both federal and state laws individuals are generally not aware of.

Attorneys, relax….. this article is not intended to be a Ph.D dissertation on Appeals and is only intended to provide a general overview. Appeals are very complicated and therefore DCS, Inc. highly recommends attorney involvement in the appeals process.

Retaining an attorney is important since appealing a disability claim decision also requires obtaining additional claim information the attorney feels is necessary, and having the expertise of knowing ERISA and state insurance laws on your side.

IS FILING AN APPEAL WORTH IT?

Once you receive a claim denial letter from your insurance company it is always a good idea to put pencil to paper and determine whether the cost of an appeal justifies the cost of the outcome.

Here are a few claim situations where it might be prudent NOT to appeal a disability claim denial:

  • If the maximum duration of an ERISA claim is to age 65 and the claimant is over 60, it may not be advantageous to appeal.
  • If a claimant is looking forward to returning to work in some capacity in the future it may not be worth it for him/her to repay the SSDI overpayment when the claim is reinstated on appeal, assuming it would be.
  • It may not be worth the cost of an appeal if the monthly benefit is very low. If the loss of benefit income can be “made-up” from another source, in some cases it is too costly to appeal for little gain. Attorneys may not accept a case with a low monthly benefit forcing insureds to file appeals on their own.

INTERESTING NOTE:  It is generally not considered a gain to claimants if the cost of filing an appeal exceeds the overall cost. Yet, some claimants are so angered by the denial they often “cut off their noses to spite their face.” The appeal process should only be engaged in IF the ultimate outcome exceeds the cost, such as in ERISA cases where paid health insurance is integrated with their employer’s LTD benefits. Anger and spite can be very costly in the long run.

As I’ve indicated in prior articles, it is my opinion that the only safe resolution to a claim denial is to avoid it in the first place. When you do this,  no appeal is required. Yea!

 

 

 

 

 

 

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missed opportunitesSeveral times over the Christmas and New Year holiday I was contacted about assisting individuals with appeals. DCS, Inc. is a fee-based claims management consulting service that assists insureds to support and manage claims successfully. I prefer to avoid claim denials rather than dealing with the expensive aftermath of referring individuals to attorneys. So many people tell me, “I wish I would have contacted you sooner!”

I don’t believe any insured is looking forward to doing battle with an insurance company since, after all, the most any insured can expect is to have a paid claim. My services are more proactive and attempt to provide insureds with the maximum support and claim know-how so that all legitimate claims have the best opportunity to remain paid.

Unfortunately, once a claim is denied a 180-day appeal process begins for which attorneys charge up to 30% of back benefits and 40% of benefits to age 65. This back/forward fee schedule is unreasonable when it reduces the amount of money insureds receive moving forward to less than 30% of pre-disability earnings. “Something is better than nothing” can look an awful lot like highway robbery.

While there are attorneys out there who are slightly more reasonable with their fees, they often do not accept ERISA cases, and/or cases with more challenging problems such as claims with cognition problems, mental illness etc. There’s just not enough money in it to encourage good attorneys to take the cases. 40% of almost nothing won’t encourage a good attorney to take your appeal.

The best solution is to avoid claim denials all together! Although this is not always possible there is something to be said for making sure the claim is managed with clear understanding of what private disability is all about, including the pitfalls. Some insureds call me to cleverly “pick my brain” so they can use the information on their own and I’m happy to give it. But, not all insureds who manage their own claims are successful with it.

I have also said more than once that attorneys are not great case managers. While they do what they do best – litigation, they are also very slow in taking ERISA cases and look to settle more so than they should. The easy way out is not always good for insureds’ pocketbooks.

“Missed opportunities” are costly. I recommend that insureds and claimants take the assistance that’s offered to them to save their claims rather than paying for high cost appeals later.

The only true successful solution to an appeal is to avoid it!

 

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Silly MeIn 2015 CIGNA was slapped with a Multi-State Settlement Agreement very similar to that of Unum Life Insurance. The CIGNA investigation resulted in discovery indicating the company engages in unfair claims tactics, and it was fined.

Here we are three years later, and the company is still engaging in unfair tactics to deny payable claims. Case in point is CIGNA’s denial of a Life Waiver of Premium based on its own IME wherein the examining physician said the insured was unable to work. From the IME report CIGNA alleges it was able to abstract restrictions and limitations that lead to the finding of alternative occupations, and the Life Waiver was denied.

Next step is to deny the disability claim at the change in definition. Without allowing the insured’s physician to write a rebuttal, CIGNA denied the claim most assuredly to recapture a $2M financial reserve prior to year-end. It’s mind-boggling!

I also begin to wonder about the CIGNA people, who by the way, are so paranoid they don’t include their last names to identify themselves on letters. Claims handlers know exactly what’s going on, but usually choose to hurt people in order to protect their jobs.

Because of the very large monthly benefit, this case may very well wind up in court. In my book CIGNA remains one of the “bottom feeders” in the disability world of unfair insurance companies. Disbelieving its own IME is a new low even for CIGNA.

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No helpI had a very interesting conversation with a complaints investigator from the State of Texas Department of Labor. I assisted my client in filing an ERISA complaint against Unum for harassment and abuse issues.

 

Apparently, there is no federal mandate that allows the U.S. Department of Labor to assist claimants prior to a denial. I was surprised since usually the DOL reported hands-off to claims that were denied even through the appeals process. The DOL rep confirmed that she couldn’t be involved until my client had fully exhausted her appeal rights. In fact, at least for the moment, the DOL reported to me that she couldn’t help my client until her claim was denied and payments stopped.

After explaining that “prevention is worth a pound of cure”, and that I didn’t want the worst possible thing to happen, she reiterated that there was no help available for an ERISA client as long as she continued to be paid. The investigator told me, “Congress sets the rules and this is the way it is.”

What does this really mean? It means that if any insurer acts in bad faith, or doesn’t uphold “good faith and fair dealing”, or breaches its fiduciary duty, don’t look to the federal government for help. For some reason, the mandate has done a 360 degree reversal to where the DOL won’t get involved until all appeals rights have been exhausted.

It seems as though the majority of working Americans with ERISA Plans never get a fair break. Individual Disability Income Replacement policies with state jurisdiction will investigate violations of state law.

But, unfortunately the ERISA folks having been thrown under the train by insurers have no help to get out from under the tracks and across the road. Despite the fact that ERISA was originally enacted to stop discrimination to the benefit of claimants, the laws now favor employers and insurance companies.

The working men and women never catch a break.

 

 

 

 

 

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The unexpected just happened. You received a letter in the mail today from your disability insurer informing you the company denied future benefits. It’s a real financial blow to you and your family and you’re afraid about not having any money to pay for your future medical care and household bills. You may be thinking, “What am I going to do now?

Clearly, most disability insurers risk manages claims with the intent of not paying them. In fact, the entire concept of all insurance is the “law of large numbers” meaning the more policies sold, the less insureds file claims thereby producing greater and greater profit. Therefore, the statistical probability that all policies sold will result in payable claims is zero. The more policies sold, the greater the profit potential is.

However, in today’s economy it has become more and more difficult for insurers to “deny those claims that should be denied, and pay those claims that should be paid” and still make a profit. Therefore, all U.S. insurers I am aware of have review processes in place that devise strategies to deny legitimate, payable claims, that at least on paper, appear credible.

In many ways, both insureds and claimants are set-up from the very beginning of the review process. Mistakenly thinking that all one need do is follow and obey the requests of the insurance company, many unknowledgeable insureds hand over their rights to receive benefits without realizing the consequences of what they say and do.

Regardless of what insureds do to support future benefits, approximately 50% of claims (in my experience alone) are still denied for what appears to be no reasonable legitimate reason. A key point in the appeals process is to accept the fact that insurance companies are very skilled in creating the illusion of credibility so that any outside court, regulator or other entity reading the file or Administrative Record would logically agree that the insurer’s denial decision was the appropriate decision to make.

Therefore, the skill of the insurer in creating documentation that “looks” credible must be challenged via the appeals process. Think about this for a moment. How does one discredit an illusion, or something that doesn’t exist, but appears credible? It’s not going to be easy, and there is no quick route to challenging deliberately misrepresented information that “looks good”, but in reality, is nothing more than an Aesop’s fable fabricated by an insurance company.

This fact alone makes it very difficult for insureds and claimants to know what to do when the sudden, and unexpected termination letter arrives in the mail. Claimants with low monthly benefits will not be able to find an attorney to take their case, and may decide to do exactly what the insurance company told them to do in the denial letter. This is a disaster in the making.

DCS, Inc. recommends and refers claimants to experienced ERISA attorneys when they call, and I have never supported claimants who insist on filing their own appeals. Once in a while I receive an email informing me someone was successful with their appeal, and that’s great. However, for every one person’s successful appeal, there are ten more that weren’t.

As an example, I spoke to a caller yesterday, who did exactly what Unum’s denial letter told him to do – send a letter of appeal. ERISA claimants have 180 days to “file a request for an appeal”, but it is very important to pay attention to the words “request an appeal.”

Claimants who send a letter saying, “I request an appeal” without additional information in support of claim, will cause the clock to start ticking and most insurers will go back in a hurry, re-review the same information, and render the same denial decision. What’s worse is that the claimant exhausted his/her Administrative Appeal without the benefit of new information. Lincoln Financial and Liberty Mutual are famous for reviewing the same information, denying appeals, all within several weeks of the 180-day ERISA timeline.

In this particular caller’s Unum situation, I recommended one of the best ERISA attorneys in the northeast, but she wouldn’t accept his appeal because he had already filed it – yet another hurdle. Not knowing what to do, some ERISA claimants wait, and wait and wait, until it is almost impossible to find an attorney willing to take the case on a short deadline. Successful appeals take time and waiting to the last-minute is very unwise.

ERISA Appeals today are far more complex than in the past. In fact, as of April 1, 2018 ERISA was amended requiring specific disclosures and procedures. You can find more detailed information in a Lindanee’s post entitled “ERISA Changes Now In Effect”, dated April 8, 2018. However, what’s clear is that claimants are not qualified to attempt their own claim appeal, today more so than ever.

In addition, the decision to file an ERISA appeal should be reasonably and logically made. Older claimants with less than 5 years of benefits remaining, or those with low monthly benefits after offsets, and even those with benefits limited to 24 months may find that it is not cost-effective or beneficial to spend good money to obtain limited benefits after attorney’s fees are paid. Anger, frustration and angst over a claim termination should not blind claimants from making more logical and sensible decisions.

In any event, representing oneself with a private disability appeal is taking a risk that cannot be taken back if it all goes wrong. I realize that there are many claimants who cannot afford attorneys, AND attorneys who won’t take ERISA cases if the monthly benefit is low. I get that.

However, it’s also important for claimants to understand that filing an appeal is more than just asking for one. From what I’m seeing from a consulting perspective is that only 50% of claim denials are overturned on appeal, the other 50% are negotiated lump sum  settlements – a different subject for a different day!

 

 

 

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One of the companies I’ve been watching for several years is The Standard – a misnamed organization that has no standards when it comes to administering Disability Claims. By my observation alone, and in conjunction with working for attorneys filing appeals, it is obvious The Standard’s “standards” are rife with unfair claims practices, untimely reviews, and non-existent ERISA appeals.

In my opinion, The Standard is eternally in violation of ERISA law. Not only does the company NOT disclose all information relied upon in making claims decisions, it alleges, “the claimant received a fair review, therefore, we don’t have to disclose anything.”

WOW. Just because The Standard alleges to have given claimants fair reviews it means they aren’t subject to ERISA laws? Now, that’s a first.

The Standard does not disclose copies of claims manuals, actual internal or outsourced medical/vocational reviews, actual communications. When requests for disclosure are received, the company  “tells” you what the medical reviews said, but won’t disclose the actual medical write-up. As an appeals expert working for attorneys I don’t accept what The Standard said was reported, I want to see the original medical review.

Forget it. The Standard continues to allege throughout the appeal in response to counsel that because the company gave the claimant a fair review, it doesn’t have to disclose internal medical, diary or vocational reports. In reality, such failures to disclose internal claim information deprives counsel and his/her insured of information needed to defend continuous payable benefits.

It’s also unclear to me whether or not The Standard affords insureds a fair appeal review at all. In my experience as a consultant, I have never witnessed The Standard over turn an unfair denial when appeals are filed. I’m sure they must overturn some, but I haven’t seen it.

The Standard is an arrogant company refusing to abide by ERISA disclosure requirements and does not, in my opinion, give claimants fair appeals reviews. Due to the fact that The Standard is one of the bottom feeder private disability insurers, violations go unnoticed and the company continues to violate the law.

If you have The Standard as your insurance company, I would make sure that the company abides by the policy contract and provides you with fair reviews. From what I’m seeing, The Standard has no standards.

 

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