by Cody AllisonERISA Claims – Insurance Company Must Establish Reasonable Process
ERISA claims are unique in that the insurance company is responsible for paying a potential claim gets to act as the judge and jury during the claims process. However, the law dictates they must be consistent in this process. Below are guidelines (sections c through e) they must follow regarding their procedures.
(c) Group health plans. The claims procedures of a group health plan will be deemed to be reasonable only if, in addition to complying with the requirements of paragraph (b) of this section –
(1)
(i) The claims procedures provide that, in the case of a failure by a claimant or an authorized representative of a claimant to follow the plan’s procedures for filing a pre-service claim, within the meaning of paragraph (m)(2) of this section, the claimant or representative shall be notified of the failure and the proper procedures to be followed in filing a claim for benefits. This notification shall be provided to the claimant or authorized representative, as appropriate, as soon as possible, but not later than 5 days (24 hours in the case of a failure to file a claim involving urgent care) following the failure. Notification may be oral, unless written notification is requested by the claimant or authorized representative.
(ii) Paragraph (c)(1)(i) of this section shall apply only in the case of a failure that –
(A) Is a communication by a claimant or an authorized representative of a claimant that is received by a person or organizational unit customarily responsible for handling benefit matters; and
(B) Is a communication that names a specific claimant; a specific medical condition or symptom; and a specific treatment, service, or product for which approval is requested.
(2) The claims procedures do not contain any provision, and are not administered in a way, that requires a claimant to file more than two appeals of an adverse benefit determination prior to bringing a civil action under section 502(a) of the Act;
(3) To the extent that a plan offers voluntary levels of appeal (except to the extent that the plan is required to do so by State law), including voluntary arbitration or any other form of dispute resolution, in addition to those permitted by paragraph (c)(2) of this section, the claims procedures provide that:
(i) The plan waives any right to assert that a claimant has failed to exhaust administrative remedies because the claimant did not elect to submit a benefit dispute to any such voluntary level of appeal provided by the plan;
(ii) The plan agrees that any statute of limitations or other defense based on timeliness is tolled during the time that any such voluntary appeal is pending;
(iii) The claims procedures provide that a claimant may elect to submit a benefit dispute to such voluntary level of appeal only after exhaustion of the appeals permitted by paragraph (c)(2) of this section;
(iv) The plan provides to any claimant, upon request, sufficient information relating to the voluntary level of appeal to enable the claimant to make an informed judgment about whether to submit a benefit dispute to the voluntary level of appeal, including a statement that the decision of a claimant as to whether or not to submit a benefit dispute to the voluntary level of appeal will have no effect on the claimant’s rights to any other benefits under the plan and information about the applicable rules, the claimant’s right to representation, the process for selecting the decisionmaker, and the circumstances, if any, that may affect the impartiality of the decisionmaker, such as any financial or personal interests in the result or any past or present relationship with any party to the review process; and
(v) No fees or costs are imposed on the claimant as part of the voluntary level of appeal.
(4) The claims procedures do not contain any provision for the mandatory arbitration of adverse benefit determinations, except to the extent that the plan or procedures provide that:
(i) The arbitration is conducted as one of the two appeals described in paragraph (c)(2) of this section and in accordance with the requirements applicable to such appeals; and
(ii) The claimant is not precluded from challenging the decision under section 502(a) of the Act or other applicable law.
(d) Plans providing disability benefits. The claims procedures of a plan that provides disability benefits will be deemed to be reasonable only if the claims procedures comply, with respect to claims for disability benefits, with the requirements of paragraphs (b), (c)(2), (c)(3), and (c)(4) of this section.
(e) Claim for benefits. For purposes of this section, a claim for benefits is a request for a plan benefit or benefits made by a claimant in accordance with a plan’s reasonable procedure for filing benefit claims. In the case of a group health plan, a claim for benefits includes any pre-service claims within the meaning of paragraph (m)(2) of this section and any post-service claims within the meaning of paragraph (m)(3) of this section.
If you need assistance navigating your claim, or it is time to sue the insurance company, please do not hesitate to give Cody Allison & Associates, PLLC a call (844) LTD-CODY, or send us an e-mail Cody@codyallison.com. We provide representation nationwide and have successfully sued all the major insurance companies in many states. Our headquarters are located in Nashville, Tennessee. We offer a free consultation and would love to speak with you.
by Cody AllisonERISA Claims – Insurance Company Must Establish Reasonable Process
ERISA claims are unique in that the insurance company is responsible for paying a potential claim gets to act as the judge and jury during the claims process. However, the law dictates they must be consistent in this process. Below are guidelines they must follow regarding their procedures.
If you need assistance navigating your claim, or it is time to sue the insurance company, please do not hesitate to give Cody Allison & Associates, PLLC a call (844) LTD-CODY, or send us an e-mail Cody@codyallison.com. We provide representation nationwide and have successfully sued all the major insurance companies in various states. Our headquarters are located in Nashville, Tennessee. We offer a free consultation and would love to speak with you.
§ 2560.503-1 Claims procedure.
(a) Scope and purpose. In accordance with the authority of sections 503 and 505 of the Employee Retirement Income Security Act of 1974 (ERISA or the Act), 29 U.S.C. 1133, 1135, this section sets forth minimum requirements for employee benefit plan procedures pertaining to claims for benefits by participants and beneficiaries (hereinafter referred to as claimants). Except as otherwise specifically provided in this section, these requirements apply to every employee benefit plan described in section 4(a) and not exempted under section 4(b) of the Act.
(b) Obligation to establish and maintain reasonable claims procedures. Every employee benefit plan shall establish and maintain reasonable procedures governing the filing of benefit claims, notification of benefit determinations, and appeal of adverse benefit determinations (hereinafter collectively referred to as claims procedures). The claims procedures for a plan will be deemed to be reasonable only if –
(1) The claims procedures comply with the requirements of paragraphs (c), (d), (e), (f), (g), (h), (i), and (j) of this section, as appropriate, except to the extent that the claims procedures are deemed to comply with some or all of such provisions pursuant to paragraph (b)(6) of this section;
(2) A description of all claims procedures (including, in the case of a group health plan within the meaning of paragraph (m)(6) of this section, any procedures for obtaining prior approval as a prerequisite for obtaining a benefit, such as preauthorization procedures or utilization review procedures) and the applicable time frames is included as part of a summary plan description meeting the requirements of 29 CFR 2520.102-3;
(3) The claims procedures do not contain any provision, and are not administered in a way, that unduly inhibits or hampers the initiation or processing of claims for benefits. For example, a provision or practice that requires payment of a fee or costs as a condition to making a claim or to appealing an adverse benefit determination would be considered to unduly inhibit the initiation and processing of claims for benefits. Also, the denial of a claim for failure to obtain a prior approval under circumstances that would make obtaining such prior approval impossible or where application of the prior approval process could seriously jeopardize the life or health of the claimant (e.g., in the case of a group health plan, the claimant is unconscious and in need of immediate care at the time medical treatment is required) would constitute a practice that unduly inhibits the initiation and processing of a claim;
(4) The claims procedures do not preclude an authorized representative of a claimant from acting on behalf of such claimant in pursuing a benefit claim or appeal of an adverse benefit determination. Nevertheless, a plan may establish reasonable procedures for determining whether an individual has been authorized to act on behalf of a claimant, provided that, in the case of a claim involving urgent care, within the meaning of paragraph (m)(1) of this section, a health care professional, within the meaning of paragraph (m)(7) of this section, with knowledge of a claimant’s medical condition shall be permitted to act as the authorized representative of the claimant; and
(5) The claims procedures contain administrative processes and safeguards designed to ensure and to verify that benefit claim determinations are made in accordance with governing plan documents and that, where appropriate, the plan provisions have been applied consistently with respect to similarly situated claimants.
(6) In the case of a plan established and maintained pursuant to a collective bargaining agreement (other than a plan subject to the provisions of section 302(c)(5) of the Labor Management Relations Act, 1947 concerning joint representation on the board of trustees) –
(i) Such plan will be deemed to comply with the provisions of paragraphs (c) through (j) of this section if the collective bargaining agreement pursuant to which the plan is established or maintained sets forth or incorporates by specific reference –
(A) Provisions concerning the filing of benefit claims and the initial disposition of benefit claims, and
(B) A grievance and arbitration procedure to which adverse benefit determinations are subject.
(ii) Such plan will be deemed to comply with the provisions of paragraphs (h), (i), and (j) of this section (but will not be deemed to comply with paragraphs (c) through (g) of this section) if the collective bargaining agreement pursuant to which the plan is established or maintained sets forth or incorporates by specific reference a grievance and arbitration procedure to which adverse benefit determinations are subject (but not provisions concerning the filing and initial disposition of benefit claims).
(7) In the case of a plan providing disability benefits, the plan must ensure that all claims and appeals for disability benefits are adjudicated in a manner designed to ensure the independence and impartiality of the persons involved in making the decision. Accordingly, decisions regarding hiring, compensation, termination, promotion, or other similar matters with respect to any individual (such as a claims adjudicator or medical or vocational expert) must not be made based upon the likelihood that the individual will support the denial of benefits.
by Cody AllisonLimitations Periods in ERISA LTD Claims Following the 2018 Regulation Changes
On April 1, 2018, The Secretary of Labor’s (DOL) new regulations concerning review of ERISA claims went into effect. These new regulations were put into place to create a fairer system within the ERISA claims review process. “Limitations Periods” was one of the areas on which the DOL focused.
“Limitations Periods” refers to the time a claimant has to file an appeal, or bring a lawsuit after denial by the insurance company. Prior to the 2018 regulation changes, this issue often presented a problem for claimants. Because the time limitation to file an appeal or lawsuit was not always clear in the denial letter, many claimants did not file their appeals or lawsuits in time and were forced to forfeit their claims forever.
Typically, a claimant has 180 days to file an appeal following denial of an ERISA long-term disability claim. A claimant may also ask the insurance carrier for an extension of that time which may or may not be granted. Prior to the regulation changes in 2018, once the appeal was denied, the claimant would need to check the policy language regarding timelines to file a lawsuit and make a calculation of the time limitation. If miscalculated, the claimant may wait too late to file a lawsuit and waive their right to make any claim under the policy. Following the 2018 regulation changes, the insurance carrier is required to put a specific date on which the limitation period to file a lawsuit expires in the denial letter.
An ERISA long-term disability appeal needs to be carefully crafted in order to put all relevant information in front of the claims adjuster. In ERISA long-term disability cases, once the appeal time limitation is exhausted no additional information can be added to the claims file (also known as the Administrative Record). This means that if you file a lawsuit, only the information contained in the Administrative Record at the time of the final denial can be considered by the Court. Therefore, it is very important to craft an appeal that puts all relevant evidence before the claims adjuster.
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a FREE lawyer consultation.
You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com
by Cody Allison2018 DOL ERISA REGULATION AMENDMENTS – NEW EVIDENCE
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com
On April 1, 2018, The Secretary of Labor’s (DOL) new regulations concerning review of ERISA claims went into effect. These new regulations were put into place to create a fairer system within the ERISA claims review process. “New Evidence” was one of the areas on which the DOL focused.
“New Evidence” refers to any information added to the Administrative Record in the appeal period on which the insurance company will rely in making a benefit determination. The Claimant must be given timely notice of this new information and the opportunity to respond.
While insurance companies opposed this provision being added to the new regs. They have since been forced to modify their processes to given claimants a reasonable opportunity to respond to the new information. Prior to this regulation change it was not uncommon for an insurance company to send a final denial letter that contained a report from a doctor they hired to review the claim. This final denial would end the appeal process and the claimant did not have an opportunity to review the report, or better yet, have their doctor review the report, prior to the time the claims file (Administrative Record) would close. As many could see, this old process gave the insurance company a tremendous advantage in having the last word.
While having an opportunity to respond to “New Evidence” is a good for the claimant it can cause the appeal process to drag out for a greatly extended period of time. Remember, the Administrative Record closes after final denial and only in extremely limited circumstance can any information be added to the record after that point. If given a final denial, you will bring the Administrative Record, as it exists at the time of final denial, into court should you pursue a lawsuit after that point. It is very important to add all information in your favor to the Administrative Record prior to final denial.
by Cody AllisonERISA Fibromyalgia Case
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com
We get calls from clients wanting to know the law as it relates to making a claim under their ERISA policy for fibromyalgia.
The case of Demco v. Unum Life Ins. Co. of America, 2019 U.S. App. LEXIS 31102 (9th Cir. October 15, 2019) looks at an appeal of a dismissal in a fibromyalgia case.
Plaintiff Kelly Demko (“Demko”) was diagnosed with fibromyalgia in 2009, but thereafter continued to work as a human resources executive for Amblin Entertainment. In January 2016, Demko stopped working and submitted a claim for long-term disability (LTD) benefits under her employer’s LTD plan, claiming her fibromyalgia had become disabling, with “all over deep pain, foggy feeling, [and] severe depression.”
In the months before she stopped working, Demko’s medical records revealed that her fibromyalgia-related complaints were generally stable and well-controlled, and her diagnostic findings and physical examinations were normal, with no exacerbation or change in her condition. Additionally, Demko’s prescribed treatment plan was conservative and lacked the more aggressive pain management and other treatment techniques one would expect for a patient with the disabling complaints Demko reported to Unum Life Insurance Company of America (“Unum Life”). Furthermore, Demko’s psychiatrist reported that her cognitive functioning was normal, and her primary care physician routinely recorded normal mental status and cognitive functioning examination results.
Unum Life also contacted Demko’s employer, who reported that Demko’s work performance and work schedule had not changed in any way before she stopped working. The employer told Unum Life that Demko had stopped working because she was “terminated due to violation of company policy.”
The district court reviewed Unum Life’s claim decision de novo. In affirming the decisions, the court concluded that Demko did not show that her medical conditions rendered her totally disabled under the plan, and added that “mere subjective” complaints are insufficient to establish total disability.
Demko appealed to the Ninth Circuit. A panel of three judges affirmed the district court’s decision, concluding that the court did not err in finding that Demko “was able to perform her job normally until she was terminated for non-medical reasons.” The Ninth Circuit also rejected Demko’s objections to the district court’s evaluation of the evidence. The panel noted, inter alia, that the court had accorded Demko’s treating physicians the “greatest weight” and did not rely heavily on the opinions offered by Unum Life’s doctors, and also held that “an independent medical examination was not required, particularly when Demko proffered insufficient evidence to establish disability.” Additionally, the panel held that “the district court duly considered Demko’s subjective complaints, and reasonably concluded that they did not establish the requisite level of disability.”
by Cody AllisonHow To File A Claim for Your ERISA Disability Benefits.
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com
How do you file a claim for your disability benefits under ERISA. Before you even get to the point of needing an attorney’s help, you will need to file claim for your benefits to “get the ball rolling.” How do you do that.
Below is link to helpful information from the U.S. Department Labor, Employee Benefits Security Administration, that sets out the process for making a claim for your benefits.
Once you have made this claim, you may run into problems. Contact us — we can help you.
by Cody AllisonCan ERISA Plan Administrator Change Its Mind on Sufficiency of Evidence?
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com
In Geiger v. Aetna Life Ins. Co., 845 F.3d 357 (7th Cir. 2017), Aetna initially determined that plaintiff qualified for disability benefits due to bilateral avascular necrosis in her ankles, which prevented walking and driving. When the definition of disability was about to change, Aetna conducted an Independent Medical Exam, which found her capable of sedentary work, and had plaintiff surveilled, which showed her driving and visiting multiple stores. Aetna terminated benefits. On appeal, Aetna reinstated benefits in May 2013, after one of two peer reviewers determined she was not capable of sedentary work.
Aetna later conducted additional surveillance, again showing plaintiff driving and shopping, and terminated benefits again in May 2014, based on a nurse’s clinical review and a Transferrable Skills Analysis. On appeal, Aetna had obtained a third peer review, which concluded that plaintiff could perform sedentary work. Aetna also sent the peer review and surveillance to plaintiff’s doctors; only one responded, and said that the surveilled activities were the result of substantial amounts of pain medication. A follow up peer review did not change the initial conclusion.
Plaintiff argued that Aetna’s decision was arbitrary and capricious because it “relied on the same evidence it had previously considered when it reinstated her benefits, yet reached the opposite conclusion. Specifically, plaintiff claimed, the second round of surveillance observed the same activities as the first round. Plaintiff relied on a 2009 case, Leger v. Tribune Co., which held that a plan should not be allowed to relitigate what it already decided. The court rejected this argument, explaining: “Leger did not hold that a plan administrator’s prior determination in favor (or against) a claimant operates forever as an estoppel so that an insurer can never change its mind. … Indeed, ERISA does not prohibit a plan administrator from performing a periodic review of a beneficiary’s disability status. [quotation marks omitted].”
The court also rejected plaintiff’s argument that the district court abused its discretion in not allowing depositions of the peer reviewer and vocational consultant. The court approved the district court’s finding that Aetna had minimized any conflict of interest by obtaining numerous independent peer reviews; by reaching out to plaintiff’s doctors; by sending its surveillance to plaintiff’s doctors; and by previously reversing its own conclusion and reinstating benefits.
by Cody AllisonIntersection between ERISA and the Americans with Disabilities Act
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com
In the case of Rider v. Bluegrass Oxygen, Inc., 2019 WL 4934187 (E.D. Ky. 2019), the Court examined how the Americans with Disabilities Act and ERISA plans fit together.
An employee covered by his employer’s medical plan was terminated four years after the birth of his daughter who was diagnosed with cystic fibrosis and prescribed a medication costing $300,000 per year. The employee sued his employer under the Americans with Disabilities Act (ADA) for discrimination based on association with a person with a disability, arguing that the termination was due to his daughter’s condition. He also claimed the employer violated ERISA § 510 by retaliating against him for filing large health plan claims. The employer asserted that the employee’s termination was due to his poor performance as a branch manager, presenting evidence of a significant decrease in the branch’s profitability, declining income, the loss of a competitive government bid, and increased inventory losses, among other things. For three years, the employer had allegedly conducted monthly discussions with the employee regarding his performance issues, which the employee disputed.
Despite evidence of legitimate business-related reasons for termination, an employee can still prevail on an ADA claim by establishing that the reasons given were mere pretext by showing that those reasons have no basis in fact, did not actually motivate the termination, or were insufficient to warrant the termination. To prove the increase in medical claim costs motivated his termination, the employee cited a discussion with the human resources manager about whether there was a lower-cost option for his daughter’s medication and an email exchange between that manager and an insurance broker who said the employee’s daughter “jacked up [the plan’s] claims through the ceiling.” Because these individuals were not decisionmakers regarding his employment, however, and the instances cited occurred years prior to his termination, the court held that the employee failed to prove a discriminatory motive on the part of the employer. Regarding the ERISA claim, the court held the employee failed to demonstrate that the employer terminated him to interfere with his benefit rights. The employer’s motion for judgment without trial was granted, and the case dismissed.
So, we can see in this case that an employee can’t be fired for a reason that violates the ADA, and firing a person because they have a family member whose medical costs are going to be very expensive and thus increase the costs of the ERISA plan would be discriminatory. However, the employee has the burden of proving that the firing was because of the increased costs of the plan and not for other, legitimate business reasons.
by Cody AllisonIs Your Disability Plan Governed by ERISA?
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com
There are many types of disability insurance plans out there, and many employers provide these types of plans for their employees. However, not all of these plans are governed by the Employee Retirement Income Security Act, or ERISA. How do you tell if your plan is or is not governed by ERISA?
ERISA was a law enacted in 1974 and applies to private long-term and short-term disability insurance provided by an employer. It is designed to protect workers with these plans. ERISA sets up a framework for how disability claims are processed, the timeline for processing these claims, and what the policyholder’s rights are in the event of a denial of the insurance proceeds under these plans. You, as an employee, should receive a copy of your policy which provides the material provisions of your employer’s plan.
Most private companies which provide short- and long-term disability coverage will have plans that are governed by ERISA. However, your plan may not be covered if the employer makes no contributions to the plan and if participation in it is completely voluntary. Some employers may even allow these voluntary payments to be taken out of the paycheck automatically and allow the insurer to advertise the plan at the workplace, and still be be involved in the actual plan itself, which would mean that the plan is not covered by ERISA.
Also, certain types of employers, even if they provide the plan, may not be covered by ERISA. These may include federal, state and local government employers and church employers. Be aware that if your employer contracts to work for governmental entities, even though your employer is not a governmental entity, this may mean your plan is not covered by ERISA. However, some governmental employers may be governed by laws that are similar to ERISA but designed for governmental entities.
If you have questions about whether or not your disability plan is covered by ERISA, call us. We are here to help.
by Cody AllisonChanges in the Department of Labor’s Disability Claims Procedure Regulations
If you believe you have been wrongfully denied your ERISA, or non-ERISA, long-term disability benefits, give us a call for a free lawyer consultation. You can reach Cody Allison & Associates, PLLC at (615) 234-6000, or toll free (844) LTD-CODY. We are based in Nashville, Tennessee; however, we represent clients in many states (TN, KY, GA, AL, MS, AR, NC, SC, FL, MI, OH, MO, LA, VA, WV, just to name a few). We will be happy to talk to you no matter where you live. You can also e-mail our office at cody@codyallison.com. Put our experience to work for you. For more information go to www.LTDanswers.com
On December 19, 2016, the Secretary of Labor (DOL) announced amended final disability claims procedure regulations, effective April 1, 2018, for ERISA-covered plans. 29 C.F.R. § 2560.503-1. The DOL had set an original implementing date of January 1, 2018, but in December of 2017, DOL delayed the implementing date to April 1, 2018. The amended regulations clarify existing regulations and impose new standards on ERISA fiduciaries to assure fairness when evaluating disability claims.
The amended DOL regulations contain four significant changes, among several others, regarding the adjudication of the disability claims under ERISA.
- Impartiality. Claims and appeals must be determined in a manner to assure independence and impartiality of the persons making the benefit decisions and their consultants.
- New Evidence. On appeal of an adverse benefit determination, claimants must be given timely notice of any new evidence “considered, relied upon, or generated” by the entity making the benefit determination and an opportunity to respond before a final determination is rendered.
- Thorough Discussion of Grounds for Denying Claim. Adverse-benefit determinations must contain a substantive discussion for a decision, including the basis for disagreeing with the views of health care professionals, vocational professionals, and with disability benefit determinations by the Social Security Administration.
- Limitations Periods. Adverse-benefit determination letters must inform the claimant of the limitation periods on filing administrative appeals, and in the case of an adverse determination on review, of the calendar date on which any applicable contractual limitations period for filing a lawsuit expires.
Point number two—New Evidence—was perhaps the most controversial amendment to the regulations, at least, from the perspective of insurance companies. The amended regulations do not define what constitutes “new evidence.” In the commentary period, opponents to the proposed amended regulation posited that “new evidence” might mean new facts, or it might mean a new medical opinion based on the same facts, or something in between. DOL declined to provide a definition, leaving it to the parties and the courts to sort it out. In addition, the opponents argued that giving the claimant the last word for commenting on “new evidence” would cause an endless loop of back-and-forth and never permitting the insurance company to render a final decision.
So, what has happened after April 1, 2018? Some insurance companies have modified their appeal procedures and now routinely turn over to claimants new reports from consultants and provide claimants with a reasonable time period to respond. These companies do not distinguish claims filed or appealed, before April 1, 2018. Other insurance companies, however, take the position that the April 1, 2018 amendments to the regulations apply only to claims first filed after April 1, 2018.
On March 25, 2019, a District Court in Connecticut confronted this dilemma with an adverse-benefit determination for a claim that arose and was denied on appeal to an insurance fiduciary before April 1, 2018. Hughes v. Hartford Life and Accident Insurance Co., —F.Supp.3d—, 2019 WL 1324947 (D. Conn.2019): The Court found that the prior version of the regulations applied to the claim at issue, but nonetheless held that the “full and fair review” guaranteed by ERISA required that the insurer provide the plaintiff an opportunity to respond to new evidence prior to issuing an adverse benefits determination on appeal. Id. at *5, 14.
Patricia Hughes, a registered nurse, worked at Children’s Healthcare of Atlanta. In 2011 she developed dizziness and balance challenges, and reported that she could not walk, drive or work due to Meniere’s Disease and other ailments. Ms. Hughes applied for disability benefits with Hartford Life and Accident Insurance Company (Hartford), which administers and insures the ERISA disability benefit plan of her employer.
Hartford approved her claim and paid her benefits based on the effective disability date in 2012. Hartford gathered other evidence and terminated her claim on October 6, 2016. She appealed on March 28, 2017. Hartford sent her for a medical examination with a physician that its vendor selected. That physician sent a report to Hartford on May 23, 2017. Ms. Hughes requested a copy of the report so she could respond before Hartford made a final determination. Hartford refused and denied her appeal. The lawsuit followed.
The Court framed the case:
This is an ERISA case about what it means for an insurance company to give a “full and fair” review of a claim for disability benefits. The defendant insurance company terminated plaintiff’s disability benefits, once on an initial review and then again after plaintiff filed for an internal appeal review. But while the internal appeal was pending, the insurance company hired a doctor to examine plaintiff, and the doctor then sent the insurance company a report of his findings. Despite plaintiff’s request, the insurance company did not give plaintiff a copy of the doctor’s report, much less allow plaintiff to respond to the report. The company then denied plaintiff’s appeal, while relying heavily on the doctor’s report to do so.
Id. at *1.
The court began its analysis asking: “Just what does it mean to have a full and fair review?” In answering the question, the court remarked that the process boiled-down to “‘knowing what evidence the decision-maker relied upon, having an opportunity to address the accuracy and reliability of that evidence, and having the decision-maker consider the evidence presented by both parties prior to reaching and rendering his decision.’” (internal citations omitted). Id. at *5. In reaching this conclusion the court turned to the specificity of the regulations, which “creates three related rights for a claimant during the appeal process.” The court summarized the rights as: (1) a right to submit information to the plan for consideration on appeal; (b) a right of access to obtain information from the plan at the appeal stage relevant to the claim for benefits; (3) a right for the plan to consider the information submitted by the claimant at the appeal stage. Id. at *5-6.
The court concluded those rights together form “essential components of what the regulation defines to be a full and fair review” and the reasons a benefit plan or fiduciary must allow a claimant the right of access to a report of the physician and to respond to the physician’s report before the fiduciary makes a final determination. To hold otherwise, the Court reasoned, would make the regulations meaningless. “Full and fair review suggests a review that is thorough, comprehensive and transparent – not one in which a plan may order up a doctor’s report at the final hour and then deny the claimant access to this information until it is too late for the claimant to respond.” Id. at *9.
The court turned to an earlier opinion in which the Eighth Circuit had been offended by what amounted to sandbagging; in that case, the Court concluded that by not disclosing a report to the claimant, the insurer had failed to provide a full and fair review. Abram v. Cargill, Inc., 395 F.3d 882, 886 (8th Cir. 2005). The court addressed the cases which Hartford had cited where courts had ruled that similar reports did not need to be disclosed before making a final benefit determination: Midgett v. Wash. Group Int’l Long Term Disability Plan, 561 F.3d 887 (8th Cir. 2009); Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241 (11th Cir. 2008); Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161 (10th Cir. 2007). Opposing those decisions, the court found a more recent opinion in the Ninth Circuit more persuasive under the general notion that sharing information fostered full and fair review. Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 680 (9th Cir. 2011).
The court concluded that decisions of the Eighth, Tenth and Eleventh Circuits were inconsistent with the plain text of the regulations. The court cited the Secretary of Labor’s position on the timely disclosure issue as expressed in amicus briefs and in the Federal Register’s announcement of proposed changes to the regulations in 2016. The Court reasoned that the DOL’s recent regulatory amendments were made, essentially, to clarify that the DOL had always considered it “the plan’s duty to disclose new evidence on appeal,” stating that the DOL revised the regulations “in order to make explicit its prior interpretation of the rule and to correct the errant court rulings that misconstrued it.” Hughes, 2019 WL 1324947 at *14. In the end, the court concluded that Hartford’s refusal to turn-over the physician’s report violated Hughes’ right to a full and fair review and remanded the case to Hartford for reconsideration. Hughes, 2019 WL 1324947 at *14.
This is one court’s very thoughtful opinion. We cannot expect final resolution of this issue until circuit courts decide it, or so much time passes that no pre-April 1, 2018 claims exist.
This analysis is from the American Bar Association article written by Jonathan M. Feigenbaum.