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Archive for the ‘Breach of Contract’ Category

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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Unum’s ERISA group plans contain SSDI provisions requiring claimants to apply for SSDI and “keep the process going” to avoid estimates and early offsets. Claims handlers quickly become annoying because of their constant chasing for SSDI status updates to ensure offsets are taken and benefits are reduced soon after approval letters are received from SSA.

Of late, however, Unum is estimating SSDI and reducing benefits despite information provided to it by claimants that the process of applying for SSDI is continuing. Threatening letters are sent to claimants that estimated offsets will be taken if information is not received. Even when SSA update letters are received Unum is estimating offset reductions from benefits, which by the way, reduce financial reserve and contribute to profitability.

Simply put, Unum’s Plans do not allow Unum to offset benefits with SSDI offsets, IF the claimant is continuing the process of appeal though the Administrative Law Judge hearing, or is re-applying for benefits.

I received several phone calls this week from claimants who have been harassed by Unum for SSDI updates already sent only to have their benefits reduced for estimated SSDI anyway. Unum is not abiding by the Plan document that writes claimants can avoid estimates if they follow through with SSDI appeals and the process in general.

Is Unum misplacing proof sent to it by everyone, or is it more likely that taking estimated offsets is a deliberate focus to bolster its profitability for year-end? In addition, the really awful thing is that when claimants are denied SSDI benefits Unum doesn’t give the money back alleging, “it’s obvious you would have been awarded anyway.”

My money is on Unum having a deliberate focus to estimate benefits for SSDI in clear violation of Plan provisions. In one instance, one of my clients (with my assistance) challenged Unum’s SSDI breach of contract and demanded the estimate taken be returned to her with interest. It was.

When challenged on this issue Unum doesn’t have a leg to stand on when Plan provisions are cited as back-up. Again, Unum cannot, via most Plan provisions, reduce benefits with an offset for SSDI unless the claimant refuses to apply, or doesn’t continue the process through with at least two levels of appeals – reconsideration and Administrative Law Judge.

Unum’s arrogance in blatantly and openly breaching its Plan contract is astounding. Claimants should always check their Plan or policy provisions for what it actually says about any issue raised by Unum.

It’s getting to the point where the company can’t tell the truth about anything.

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It occurs to me that Unum Group is always the Village looking for its idiot.  Yesterday a claimant received a letter from Unum’s Offset Management Coordinator holding her accountable for an imaginary deadline to receive SSDI approval/denial decisions.

Unum’s rep Mr. DD said in his letter, “The national average decision time for the Social Security Administration to make a decision on an initial application is three to six months. We received notice of your proof of the Social Security Disability Application in January.”

Mr. DD goes on to threaten the claimant, “If we do not receive the information by September 5, 2017, we will begin reducing your benefit by the estimated amount indicated, resulting in a reduced Long Term Disability benefit.”

Since when does Unum arbitrarily decide when SSA should make its approval/decisions? And, how is it that the claimant will be penalized if SSA makes an error, or takes longer than the “national average” to report decisions? What if SSA requires the claimant to have an IME and takes longer than usual to make a decision? What if the claimant has to appear before an Administrative Law Judge and it takes a year to get a hearing date?

Needless to say, Unum Group is way out of line here. To begin, there is nothing in Unum’s ERISA Group Plans that gives the company the authority to hold claimants accountable for untimely SSDI decisions. Remember, Unum does NOT reimburse claimants for estimated payments taken if SSA doesn’t approve their claim for benefits. In fact, Unum recently refused to reimburse a claimant after it denied her claim and SSDI had not yet been awarded.

Therefore, any estimates taken by Unum Group are never reimbursed if SSDI doesn’t happen. If Unum’s rep, Mr. DD, is now saying that the company will be holding claimants responsible to receive SSDI awards on Unum’s timeline upon threat of removing estimates from benefits, well….in my opinion, that’s outright extortion.

Dealing with a government bureaucracy is not walking into Wal-Mart and making a purchase – it often takes time. Whatever the alleged “national averages are”, there is always the exception when the government process breaks down and future SSDI recipients are left holding the bag.

It has been recommended to this claimant that she file complaints, not only with her state, but also her federal Congressional senators.

If Unum needs money and profitability it should find other ways rather than penalizing their own claimants for a slow and often agonizing  government process.

Finally, Mr. DD should be made aware that Unum’s Plans do not have provisions that require SSDI decisions be made within certain time frames. His letter is entirely inappropriate. If he does follow through and reduce benefits with an estimate for untimely SSA decision-making, Unum can be sued, and it should be.

If you receive a letter from Unum telling you that SSA has been too slow in making a decision and it will reduce your benefit with an estimate by a certain date, file complaints and inform Unum it has no authority via the Plan to do it.

Claimants should also notify their employers of the scam Unum is attempting. Request that employers purchase their Plans elsewhere with companies that do not hold employees/claimants accountable for SSA’s untimely decisions.

Unum is acting out of line, out of Plan, and like the village idiot who is looking for a way to make the almighty buck!

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Readers may recall in a previous post that Unum deliberately deducted an estimate from a client’s benefits for estimated SSDI. After two months of taking the estimate, Unum at first refused to stop the deduction and pay back what it took out-of-contract.

After several letters from my client requesting reimbursement and interest, Unum agreed to repay her for the estimates taken in error and actually paid interest on the amount over 30 days.

Make no mistake, Unum didn’t send the reimbursement without a fight, but in the end Unum agreed the estimate was taken in error. My client was properly advised by DCS as to her rights and provisions under her employer’s Plan, and she brought the proper arguments to Unum’s attention along with a copy of a complaint made to the State DOI.

After written notification, my client sent me the following email: “Unum deposited over $5,000 today in to my checking account! As usual, your advice concerning my policy paid off. Thank you, Linda, for properly advising me!”

While my opinion of Unum’s tactics isn’t changed, in the interest of fairness it’s only fitting that I recognize the claims specialist from Unum’s financial department who made good on the error.

At least for now, it seems as though even the bad guys can make things right!

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stop-claimsAs if Unum doesn’t have enough unfair claims practices and strategies, the company seems to be “suspending benefits” in order to compel claimants and insureds to do what they request, when they request it. Ignoring the fact that physicians and others involved in the disability claims process do not work on Unum’s timeline, the company is now sending out letters, suspending benefits until insureds comply, or until the company decides to pay.

Technically, a “claim suspension” or cessation of payment is not a claim denial and therefore the claimant is denied appeal rights during the period of time benefits are not paid. In my opinion according to the policy contract itself, any insurance company is required to pay claims (assuming insureds meet the definition of disability) until such time as there is sufficient proof to deny. Contracts do not stipulate in the policy document that insureds can “suspend” benefits.

There is always a danger with Unum that once benefits are suspended, the company will require a preponderance of proof of claim to its own satisfaction, and deny reinstatement of benefits even when insureds provide whatever it was Unum requested. As many of you know there are times when its unclear whether Unum ever receives enough proof of claim to pay claims. It concerns me that Unum may exercise its own conflict of interest and keep “benefits suspended” forever leaving insureds without recourse at an appeal level.

Another concern is that Unum could “suspend benefits” even when it’s requests are unreasonable, burdensome and impossible to provide. The most recent example is Unum’s request for 10 years of personal and business tax returns when neither the IRS nor insureds are required to keep tax returns that long. Claimants don’t get paid, but Unum leaves the door open to provide the information for possible reinstatement. Of course, insureds can’t provide what doesn’t exist leaving Unum to benefit by its own unreasonable requests.

Insureds with suspended benefits should always provide the information requested by Unum, but if benefits are not immediately restored, insureds should find themselves a good attorney and file an appeal. In my opinion, there is a line that is crossed when suspended benefits are not immediately restored after requested information is provided.

Unum has contractual obligations under the policy to either pay or deny claims. “Suspending” benefits is an out of contract pay status that could leave claimants with unpaid benefits indefinitely at Unum’s discretion.

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Breach of ContractSecond only to Unum in unfair claims practices, Prudential continues to engage in claim strategies that are “out of contract.” This is probably true because the Vice President of Disability Claims is still Cathy Liston, a former Unum VP who was ousted shortly after Unum’s merger with Paul Revere/Provident. At one time I actually worked for Cathy Liston in the Central Benefits Administration and remember her saying, “Tell them to deny more claims!”

Prudential allows Registered Nurses to write medical documentation that is relied upon to deny claims. Although in my opinion this procedure allows RNs to practice medicine without a license, it is also gravely inappropriate given the fact that disability claims often involve thousands of dollars of financial reserve; good for Prudential, bad for claimants.

Prudential’s abuse of discretionary authority centers on its insistence in obtaining actual psychotherapy notes before it will pay mental health claims. Although Prudential’s contracts do not require the submission of actual psychotherapy notes to be eligible for benefits, the company rarely pays without them. Even when therapists provide excellent restrictions and limitations in summary form, Prudential denies claims for “lack of information.”

After reading hundreds of Prudential’s denial letters for mental health claimants it becomes clear why Prudential is so anxious to obtain mental health patient notes. Every reference to any and all activity citied in the notes; every inference that the patient is “doing better”; references to spouses, their jobs and problems; is used to discredit legitimate claims. In fact, Prudential is actually better than Unum in “snatching” key phrases favorable to it, while ignoring all references favorable to claimants.

Remember, it’s Prudential’s RNs that do this. Additionally, Prudential won’t pay mental health claims if certain information is missing, such as reports on “affect”, appearance, levels of functioning, WHO DAS, overall functioning etc. All of the normal modes of treatment for behavioral health must be addressed, or it’s a no-go from Prudential.

On the rare occasions Prudential requests IMEs, the evaluating physicians are generally  “old Unum claim killer doctors”, who in retirement, still review claims for the insurance industry or PDA, a well-known ex-Unum consulting firm, probably old acquaintances of Cathy Liston’s. Although Prudential’s policies do contain 24-month mental health limitations, Prudential eliminates most M&N claims due to alleged “failure to provide” when claimants, or their therapists refuse to provide actual psychotherapy notes.

Also, Prudential often makes references to “no objective evidence or testing” in its denial letters when there is no objective evidence standard requirement in its contract policies. Neuropsychological testing is often not considered a diagnostic tool for treatment of depression and anxiety. Prudential won’t require it, but it will deny claims not providing “objective evidence” for mental health claims.

It is extremely unfair for any disability insurer to insist on actual psychotherapy notes since many therapists are now keeping their notes proprietary to them personally. This is a very wise decision since mental health patient notes are not written to support, or not support disability claims, but rather represent “reminder notes” of value only to the therapist who is consulting with the patient. The only possible reason why Prudential (and other insurers) demand the notes is to engage in “snatching” in hopes of discrediting claims.

Prudential and Cathy Liston are well aware that the objective evidence standard is not in its disability policies. In fact, with the elimination of the Global Assessment of Functioning (GAF) and the insertion of WHO DAS 2.0, types of psychological testing are few and far between.

I have always been of the opinion that submission of mental health records to any insurance company destroys the confidential and private nature of the therapy received. Claimants who know in advance their records are sent to insurers will be more reluctant to share personal information in therapy thereby removing the value of it.

Although I do not mention Prudential on the blog that often, it, too, is a pretty awful insurance company. Prudential has a few tricks up its sleeve such as denying claims just short of STD max duration in order to allege claimants did not meet the EP for LTD. That’s pretty bad.

Prudential’s letter communications consist of repetitive regurgitation of policy provisions presumably taken from templates. Most Prudential claims reps can’t explain anything about the provisions, but they send out pages and pages of policy provisions and still fail to address any important issues relative to the claim. Most claimants might be intimidated and eventually confused with all the contract mumbo-jumbo, but it’s an intentional strategy to scare claimants.

In the end Prudential’s review of mental health records end up in a “damned if you do, and damned if you don’t” claim situation. If your therapist doesn’t submit patient notes, claims are denied; if notes are submitted, Prudential “snatches” enough information to deny anyway. Where’s the “good faith and fair dealing” in that?

Allowing RNs to document assessments of behavioral health issues is ridiculous since RNs are not qualified to render mental health opinions concerning disability. RNs are not psychiatrists and the documentation they provide isn’t credible.

DCS receives quite a few phone calls regarding Prudential’s treatment of mental health claimants. The process is deliberate, unfair, and abusive.

As a close second to Unum, we can expect no more or less from Prudential. In my opinion, it might be a good time for Cathy Liston to retire.

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Breach of ContractMr. Nolan (not his real name) suffered a heart attach in 2008 when he was 59 years old. The next year, when Mr. N. turned 60 he sought treatment with a therapist to help  him resolve his depression and anxiety  since he was near death for several hours. Subsequent to his heart attack Mr. N. went back to work in his office but never performed his own occupation as a dentist. Although he tried to do the administrative paperwork, he was overwhelmed by fatigue and couldn’t continue to go to his practice.

Mr. N. has a Provident policy managed by Unum with a maximum duration for Sickness that stipulates if his disability occurred under the age of 60 he would be paid Lifetime benefits; if he is over 60 the policy only pays until age 65.

Mr. N. filed for Unum disability citing a date of disability resulting from his heart attack and subsequent cardiac issues when he was 59. Unum, however, reviewed Mr. N.’s claim and rejected his cardiac date of disability, but paid the claim for mental and nervous reasons (when he was 60) thereby avoiding the payment of Lifetime benefits.

The monetary value lost to Mr. N. as a result of Unum’s breach of contract is roughly 1.5M. With benefits of nearly $6,100 per month, Unum very cleverly avoided the payment of Lifetime benefits by throwing out the earlier cardiac disability in favor of a later mental and nervous impairment that would not have existed were it not for the cardiac event.

And….this is not the first time it has been brought to my attention that Unum changed dates of disability in order to benefit from not paying Lifetime benefits. The company was cited for unfair claims practices on this issue particularly in the California Settlement Agreement, but we all know that Unum is operating in violation of all of the agreements that took place 2002-2004.

Unum’s breach of contract will be litigated in a Florida court because the insured IS entitled to Lifetime benefits. These are the types of issues that gain Unum such a bad reputation. It is inconceivable to me that Unum Group continues to get away with such tactics as “patterns of practices.”

Unum’s breach of contract actions are deliberate, intentional and harm insureds by denying multi-million dollar benefits to those who should receive them under the terms of their DI contracts.

The above issue is relevant exclusively to Disability Income Replacement Policies and not ERISA Plans.

Those with DI Unum policies should be very aware of the possible issue of Sickness versus Lifetime/Age 65 maximum durations and push back for breach of contract. Although Unum can be very clever insureds often prevail on these issues when litigated for bad faith. Or, Unum agrees to settle on the courthouse steps.

 

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