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Archive for the ‘Appeals’ Category

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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As a non-attorney expert in the claims review process I’ve often had the unique opportunity to critique the legal process (attorney intervention) from a purely observational perspective. Having managed disability claims myself I also have the advantage  of  familiarity with internal mechanisms designed to deny claims unfairly. Attorneys do not have this kind of  experience or perspective.

One of the issues I find lacking with attorney intervention is the lack of interest in full disclosure allowed by ERISA. In simple terms, ERISA allows the claimant, or their representatives, (which does not need to be an attorney by the way), to obtain all file and internal information relied upon in making a denial decision. And, I find most attorneys do request a copy of the Administrative Record, incomplete as it is.

Fifteen to twenty years ago claims specialists maintained 175-250 paper claims sitting on shelves in a cubicle. All phone calls had to be documented manually and managers taught, “If it isn’t documented, it didn’t happen.” Every meeting, every review was handwritten on paper and placed in the file. My manager, for example, used to say, “I should be able to pick up a file, begin at the back, and have a complete record of everything that happened to the claim”. Today, internal objectives have done a 360 degree turnabout to, “document as little as possible.”

Today, claims specialists have one to multiple electronic screens from which they view and manage claims, with a management change in direction to, “Document as little as possible.” Electronic diary systems such as Navilink and SOAP Notes automatically allow for the input of data in complicated formatted chronological order. (I believe this is why most claims handlers don’t actually read the entire file since reviewing thousands of pages from computer screens isn’t easy!)

Nevertheless, the modern-day uploaded data systems are a far cry from the carefully documented paper files that are now a thing of the past. In addition, the Administrative Record isn’t the only file related to the claims process.

For example, if there is an IME report in the Administrative Record, there is an entirely separate IME file consisting of contract letters, statements and agreements between the insurer and the facility or physician conducting the evaluation, and most importantly, letters from insurers directing IME facilities and physicians as to what the insurer is looking for in the report.

IME evaluators are often told the amount of monthly benefits, and any IME physicians who has been in insurance defense for any length of time knows: the higher the monthly benefit, the greater the stakes are for profitability realization. Some IME engagement letters indicate deadlines and expectations for final reports. Some facilities actually “grade” their physician IME evaluations as to how well they met the expectations of the insurer.

The point here is that another file exists that was relied upon in making claims decisions and therefore it is subject to disclosure. Attorneys may not be aware of the existence of the file, or may not know how significant the information in it could be.

Although insurers today do not as a general rule communicate by email, improved technology allows for “website portals” wherein claims handlers can communicate with claimants via the Internet. Several of my systems experts tell me these portals contain very sophisticated “tracking” software and therefore DCS, Inc. recommends against using any insurance claim “portal”.

However, for those who do use the website portals, there is yet another file that should be downloaded and placed in the Administrative Record There is no guarantee that all activity on the website portal is integrated with internal diary systems such as Navilink. So where is the COMPLETE record?

ERISA allows for the disclosure of all “website portal” communications, but most attorneys ignore requesting it thinking it to be of little value. The same is true with the separate IME files I’m sure. Today, I suspect ERISA attorneys are more interested in a “settlement” than they are in litigating based on “good faith and fair dealing.” In my opinion, I think attorneys might be very surprised at how much “dirty” information is contained in the IME and website portal files.

ERISA insurers also contract with outside agencies such as GENEX and Allsup to assist claimants with their SSDI. There is also a separate file going back and forth from GENEX to Unum, for example, that no one seems interested in. Legal matters relating to SSDI, overpayments, etc. would allow for disclosure of the complete set of communications from Unum to GENEX and vice versa. (This may be why very little is known about Unum’s contract with GENEX and who pays what to whom.)

Finally, there are some ERISA case issues dealing with effective dates, and other eligibility differences, particularly in establishing the correct Plan in force at any point in time. ERISA Plans are underwritten by GROUP, not individually, but there is an underwriting file in the possession of an account manager somewhere. Issues of continuity of coverage, EDOC, and Plan changes are also subject to ERISA’s disclosure requirements.

The assumption that ALL claim information is placed in the Administrative Record is not accurate. IME files may be alleged to be “proprietary” by outside facilities, or by the insurers themselves, however, if the Administrative Record contains an IME evaluation report, and/or the denial letter mentions an IME, then the information was relied upon and is subject to ERISA disclosure.

Other information is naturally “sanitized” from the Administrative Record, falling in line with new directives to “document as little as possible.” Documentation of Roundtables are rarely found in the record although my sources tell me they still take place.

Its been my observation that attorneys either do not know about the sources of additional information, or don’t care to request it. If a “settlement” is the only objective, then by no means is it necessary to “hang a rope around the insurance company’s neck.” Most attorney ERISA intervention involves the shortest distance between two points.

Then again, even if attorneys obtain all of the above information described above, how would they know what to look for, or which documentation was inappropriate, or adverse to their clients? Obviously today, the primary objective is the medical, and not necessarily arbitrary and capricious review, or eventually, the “who done its”.

ERISA disclosure means what it says – all information relied upon in making the denial decision. While there seems to be little interest by attorneys in obtaining “the whole record”, the fact that separate files relied upon in deciding liability still exist.

Fast forward to more technological and diversified systems of record keeping the obvious trend in ERISA legal intervention moved from obtaining a WHOLE record to obtaining only the Administrative Record naturally sanitized by technology, and a lack of attorney interest to “get the whole story.”

 

 

 

 

 

 

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In today’s current insurance environment some insurers are engaging outside, third-party resources to manage ERISA group claims, STD and LTD, using standardized technology and “objective evidence” standards to review claims.

Prudential, for example, utilizes “The Reed Group” that openly advertises its prejudice in favor of insurance defense holding claimants hostage to what is called MDGuidelines administered without consideration of the uniqueness of each individual claim.

For starters, none of Prudential’s ERISA Plans require an “objective evidence standard” in order to receive benefits. Yet, “The Reed Group” applies what they refer to as “evidence-based” standards – a phrase meaning the same thing as objective evidence.

The cleverness of Prudential and other insurers who employ these so-called “standardized reviewers” alleging credibility is not going unnoticed by the public who immediately identifies the “set-up.” “The Reed Group” then employs “ECN”, Exam Coordinator’s Network to arrange for IMEs. Notice that by engaging these outside resources Prudential is actually three times removed from the claims process.

“The Reed Group’s marketing statements defining MDGuidlines states the following:

“Our evidence based clinical content that delivers intelligent, point of care clinical decision support, physiological duration tables, analytics, and consultative services that empower employers, insurers and provider to successfully improve outcome, promote active lifestyles and achieve tangible ROI.”

Does this sound like a fair and equitable review to you upholding the ERISA requirement of fiduciary accountability? I think not.

“The Reed Group” is not the only third-party administrator out there. In fact, Sedgwick  has been in the loop of third-party administration for quite some time, specializing in state-run pension and employment disability.

While these organizations sell themselves as models of impropriety, the conflict of interest to serve those who pay them is obvious. These organizations are purely insurance and employer defense mechanisms.

“The Reed Group” identifies the insurer as OUR SOURCE in the Administrative Record, and employs Registered Nurses for case management. This is consistent with Prudential’s old bad habit of relying on medical reviews conducted by unspecialized RNs and not MDs.

The “claims process” per se is performed without weight to each individual claimant. As a result, claim reviews are conducted by highly sophisticated outside resources that know exactly what to document to provide proof claims should be terminated. It’s likely companies such as “The Reed Group” have access to statistics and actuarial information that could persuade courts and legislators that certain claims should be denied.

Insureds and claimants should know that these new procedures are not necessarily dead ends for insureds, but that it is critical to know exactly what to do about it.

Unfortunately, the new trend in disability claim review is removing the insuring company as far away from the claims process as possible and replacing them with companies specialized in the science of terminating claims – a sad testament to the insurance industry as a whole.

 

 

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I’d like to think that when it comes to Unum Life, UnumProvident and now Unum Group that I’ve heard about every nasty, bad thing they’ve ever done. And, like all writers and journalists, I’m always interested in a good story from a reliable source.  This one takes the cake!

It came to my attention this morning that a Unum appeals rep communicated an IME request when there was no requirement in the policy allowing Unum to do so. I know it sounds unusual that a Unum policy wouldn’t have an IME provision, and it is, but in this case the old standard issue policy was silent on IME authority.

When the attorney of record questioned the contractual authority and Unum’s right to demand an IME, the appeals rep used the “Proof of Claim” provision to justify Unum’s right to the evaluation. Yep! You got it. A Unum appeals rep used the common provision that requires insureds to “remain in care with a physician with a specialty to evaluate the claimed disability” as contractual authority to require an IME.

Even I cannot believe that a Unum appeals rep could be this stupid! In effect, what she actually did was bring the claim out of appeals mode, and into deliberate bad faith mode.

To begin, the purpose of an appeal is to determine whether or not the original denial decision was appropriate, not engage in an entirely new “ad hoc” investigation to cover the company’s rear end.

Secondly, Unum specialists are assigned to Unum appeals because they are smarter, not more dumb – at least in theory anyway. A deliberate misrepresentation of policy provisions was either made by a Unum rep with one taco short of a combination plate, or it was deliberately done with the intent to harm the insured. That’s called “bad faith.”

Lastly, Unum’s demand for an IME is contractually unenforceable and is the classic definition of deliberate bad faith. And, if the situation weren’t so terribly devastating to the insured, Unum’s actions would also be laughable.

Again, I have no idea what’s going on inside Unum these days, but the company’s internal claims, and now appeals review, is so off the normal beaten path of contractual authority, that the word “insurance rogue” comes to mind.

This action, in combination with Unum’s “suspending benefits” for no reason, and refusing to pay for no reason, places the company in violation of not only multi-state agreements, but state insurance laws.

In any event, Unum appeals is out of control and is deliberately misrepresenting policy provisions. Either Unum’s actions are deliberate attempts to harm (bad faith), or they are the result of insurance stupidity resulting from hiring personnel who can barely breathe without help.

Personally, I’m of the opinion Unum is just arrogant enough to think it can get away with anything. The company should either merge with a company of good standing, or close it’s doors.

There IS a level of insurance stupidity that is unacceptable. Unum isn’t just missing one taco from the combination plate, it’s missing several.

 

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Denied StampSun Life has never been on the DCS “Carrot” list. In fact, I’ve been watching the company carefully as it consistently hires Unum’s disgruntled or fired attorneys and other employees perpetuating unfair claims practices within.

In fact, I heard through legal channels that Sun Life employees were fired because they didn’t conduct themselves properly at a baseball game. (Another company you may not want to work for.)

Sun Life primarily employs outsourced resources to review and document claims for denial. I had an opportunity to review some of the charts and so-called proof these resources provide and for the sake of another word they appeared pretty “cheap.”

The claim in question was an STD claim submitted with a preponderance of medical information supporting disability. Although I find myself saying this a lot lately, I also realize that there are no insurers currently who actually “consider” other medical opinions from treating physicians.

Sun Life always was a mediocre company in terms of disability claims management and it appears it hasn’t changed much. The company is also known for overwhelmingly long application and update forms.

Clearly, we’re looking at a Unum clone here with virtually the same philosophy and strategies to deny claims.

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Good newsAfter nearly six months of attempting to over turn his own denial of an ERISA claim, a DCS client was successful in making his case to Reliance Standard. Readers may recall previous posts about Reliance Standard who refused to pay this client’s claim, despite the fact that a preponderance of medical evidence proved he more than met the definition of disability in his policy.

Although we applaud Reliance Standard for making the right decision eventually, we also recognize that the company delayed payment nearly 8 months while it conducted an appeal investigation including an IME that took RS several months to schedule.

While we can understand pushing the ERISA timeline somewhat, in my opinion, it was negligent of Reliance Standard not to be able to schedule IMEs within a reasonable period of time. DCS has been asked several questions this week about ERISA timelines and what happens when insurers fail to meet them.

Unfortunately, there are no government agencies or authorities overseeing whether insurers meet timelines or not, and the door is left open to abuse. Reliance Standard’s manager told me, “We’re just a small company, and we do no have a lot of resources.” That may be, but insurers often forget that  claimants are forced to live in poverty until benefits that are rightfully theirs are paid.

Although DCS did not directly or indirectly represent our client with respect to the appeal, now that the claim is once again in paid status DCS may assist with future claims management moving forward.

This claim is an excellent example of a claimant who was determined not to give up. Reliance Standard really took its time in making a decision and the claimant was financially harmed during that period. A real throwback to this process is that if RS pays the claimant all back benefits in 2015 (in the next two weeks), the benefits become 100% taxable.

It should be also noted that the U.S. Department of Labor was contacted and did very little to assist other than acting as “big brother looking on.” Whether or not that was helpful remains unclear, but the claimant won the appeal, and benefits will be reinstated.

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