What You Need to Know about ERISA Regulations in Disability Claims

Welcome to Season 3, Episode 24 of Winning Isn't Easy, the podcast that unravels the intricacies of disability insurance claims. In this episode, we delve into a pivotal subject: "What You Need to Know About ERISA Regulations in Disability Claims."

Join us as we demystify the complex world of ERISA regulations and their impact on disability claims. Our expert host, Nancy L. Cavey, a seasoned disability attorney, breaks down the fundamental aspects of ERISA regulations and provides invaluable insights into their application in disability claims.

Through informative discussions, we'll explore the crucial components of ERISA regulations, how they affect disability claimants, and the specific steps you should take to navigate the claims process effectively. Whether you're new to ERISA regulations, or seeking to deepen your understanding, this episode equips you with essential knowledge to make informed decisions about your disability claim.

Tune in to empower yourself with information that can be a game-changer in securing the disability benefits you rightfully deserve.


Resources Mentioned In This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://caveylaw.com/get-free-reports/get-disability-book/

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://caveylaw.com/get-free-reports/disability-insurance-claim-survival-guide-professionals/

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.  

Transcript

ERISA Attorney Nancy L. Cavey: 0:10

I am Nancy Cavey, national ERISA and Individual Disability Attorney. Welcome to Winning Isn't Easy. Before we get started, I've gotta give you a legal disclaimer. The Florida Bar says, I've got to say what I'm about to say. This podcast isn't legal advice. The Florida Bar, as I said, says, I've gotta say it, so I've said it, but nothing will prevent me from giving you easy to understand information about your disability insurance claim, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Today I'm gonna be talking about various ERISA regulations, and I'm gonna talk about two specific topics. One, does ERISA regulations require that a disability insurance carrier consider your independent medical evaluation in deciding your appeal? And two, have the new in quotes, ERISA regulations transform the way that disability insurance carriers handle ERISA disability insurance claims. Let's take a break before we get started.

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ERISA Attorney Nancy L. Cavey: 1:42

Welcome back to witting Isn't Easy. Our first topic is going to be, do ERISA regulations require that a disability insurance carrier consider your independent medical evaluation in deciding your appeal? Now, disability carriers have many claims denial tools in their toolbox, and they're gonna use ERISA regulations that are designed to protect you to their advantage. ERISA regulations require that a disability insurance carrier plan give a denied policy holder a an appeal that's based on a full fair review. So what is the , what do those words mean? Well, the regulations in effect at the time of a claim, are gonna govern a disability carrier's duties. ERISA regulations require that a disability carrier consult with a health insurance , uh, a healthcare professional who , uh, has appropriate training experience , uh, in the field of medicine when deciding an appeal of any adverse benefit determination based in whole or in part on a medical judgment. And that's found in 29 CFR 2 5 6 0 5 0 3 1 , and a lot of subsections. Um , and , uh, what's important here is that many times a disability carrier will deny or terminate a disability insurance claim based on a paper review of your medical records. I call it a liar for hire review. Uh, or they're going to , uh, ask that you undergo a not so independent medical evaluation. Uh, and again, that's not necessarily going to be a fair one. Now, under the Arista regulations, you have to file an appeal of a denied or terminated claim within 180 days. That appeal is the trial of your case because once the appeal process is concluded, it can be difficult, if not impossible to add any new evidence to the record. And the record is your claims file. Now, as part of any appeal, you might want to undergo your own independent medical examination to rebut what the discipline carriers doctors had to say, and you'll submit that report , uh, in rebuttal, as I said, of the paper review or an I M e as part of your appeal of that wrongful denial or termination under the ERISA regulations, the disability carrier is opposed to consider your I m E report. But how does that really play out? I'm gonna explain what happened in the case of Wallace versus group long-term disability plan. Uh , and it's a case that came out of the second circuit. Hartford was the plan administrator, and , uh, she argued that she didn't get a full and fair , uh, uh, review because their medical reviewer in the , uh, appeal process didn't address her own independent medical examination report. Well, the court rejected that argument, and I think that they were entitled to reject the argument because the carrier's review reviewer listed her i m e report among the material that they had reviewed when reaching their conclusion , uh, that Ms . Wallace wasn't disabled from the duties of her job. So the second circuit noted that the regulations didn't state that a reviewing physician was required to address each document in detail before arriving at a determination, but suggested that they certainly had to acknowledgement acknowledge it, and the court ultimately found that Hartford had not abused its discretion and upheld the denial. So, so long as your I M E or your rebuttal material , uh, be it your own i m e report, a functional capacity evaluation, a report from your physician , uh, so long as that's , uh, listed in the disability carriers or plans , um, medical peer reviewer report or I m e report, it's going to be okay . And that reviewer, that liar for hire medical reviewer from the carrier of the plan isn't required to do a little synopsis or analysis of your particular supporting medical material. They just have to acknowledge that it was something that they , um, reviewed. Uh, and so long as they do that , um, they have satisfied, at least in the the second circuit, the their ERISA regulations. Now, I think it would be helpful if the disability carrier's paper reviewer discussed each report so that you actually , uh, if they're gonna reject it, you know why? And you can address that. Uh, or if, if they , um, have ignored it, you know that, that even though it may be listed, they didn't actually review it. In other words, just because you have listed it , I don't think, I don't think that's sufficient because I think that they should be addressing any particular or pertinent parts of your reports that they have rejected , uh, or have, you know, basically, you know, dissed if you will. Um, because you never know if they really have reviewed it. Just because they listed it doesn't mean that they reviewed it. And more importantly, one of the things that you need to understand is that more often than not, when there is a peer review or , uh, a second level peer review, the disciplinary carrier plans nurse is actually sending that paper reviewer a summary of your medical records by doctor normally by date. Uh, and that summary is based on their own subjective biased review of your medical records. In other words, it's not uncommon for the disability carriers nurse to cherry pick your records in the summary that they give to their peer review provider to comment. So in my experience, just because the peer reviewer or their I M E listed it as something that they may have seen, the reality is they one probably didn't see it. Two, they only saw a summary of it. And three, they have seen a cherry picked summary of those particular , uh, medical records. So in , in my view, just the fact that it's listed , uh, uh, is not really providing a full and fair review. And perhaps the court just didn't understand the realities of what happens in the peer review process. So , uh, again, a lesson learned. Ready, let's take another break before we come back to ERISA regulations. Part two,

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ERISA Attorney Nancy L. Cavey: 9:08

Welcome back to Winning Isn't Easy. So let's talk about whether they, in quote , new ERISA regulations have transformed the way that a disability carrier or plan will handle a disability insurance claim. Now, the new ERISA regulations that govern long-term disability insurance claims went into effect April 1st, 2018. And here we are in 2023, still calling them new ERISA regulations. So while these new ERISA regulations provided much needed protection to disability carrier policy holders or plan beneficiary , uh, after years five years of enactment, I find that there is still disability carrier conduct that is causing delay and denials. So let's first talk about the impartial impartiality of the claims process. The regulations prohibit anyone allegedly involved in the claims process, such as a claims adjuster, a peer review doctor, or a vocational evaluator from being incentivized to deny the claim. Now, back in the day, ally carriers like Unum would reward their claims examiners with pizza parties and other goodies, if you will, for denying claims. If they met a certain threshold of claim denials, they got a bonus or they got a little party, the disability benefit determination is supposed to be independent and impartial. So in other words, this is kind of supposed to be walled off, but in my law office, I continue to see lots of disturbing trends in violation of these ERISA regulations. Uh , and one of them is where the liar for hire peer review provider, who was the basis of view of , if you will, of the first denial who criticized and cherry picked and even rejected the treating provider's opinions, is on appeal re-reviewing the medical evidence submitted when they deny policy holder or plan beneficiary appeals, the wrongful denial. So you're sending these case back to the fox, if you will, for a , you know , a second chance at eating the chickens. Um, so you know, the question becomes, does the carrier really expect that the peer re provider who gave the carrier the ammunition with which to justify its first denial is gonna change their mind about the medical evidence on appeal? Now, the me , the peer review provider is generally an internal physician or a physician on contract with , with a carrier or the plan , or is employed by a third party , uh, company that supplies medical reviewers. Everybody in this whole process knows where their bread is buttered . Um, the foxes not only watching the, the henhouse, the fox is having breakfast, lunch, and dinner on the chickens. So I don't think that that having , uh, a the same peer review, provider review the medical records on appeal is consistent with the regulations. Now, the regulations also talk about consideration of a favorable social security decision. Uh, the US Supreme Court and ERISA regulations require that a disability insurance carrier plan consider a favorable social security decision, and the carrier is supposed to explain why it disagrees with that favorable social security decision in upholding its claims denial or , or denying the claim. What the reality is is that many disability insurance carriers or plans don't even ask for a copy of the social security file to review the basis of the social security decision. They, if they ask for it, they don't even wait to get it before they make a decision. And then of course, if they get it, they'll look at it and say, well, you didn't have all of the evidence that we now have. Um, we had surveillance, we had our medical , uh, reviewers review this. Um, we , um, had , um, social media posts, we had all sorts of stuff that the social security judge didn't have, or that decision was so long ago, it's stale, doesn't count. And they will reject , uh, the claim, but they will not necessarily have reviewed the claim. The other thing they'll do is they'll say, you know, we have reviewed this , uh, and according to the case law, we're, we're gonna discuss what we see here. Um, and we have the right of course to accept it or reject it. And one of the reasons we're gonna reject it is, you know, we have more information. Um, our doctors disagree, but you know, that Social Security disability award was based on the grids. And at step five, people cannot be awarded benefits in part under the grids based on their age. If you don't grid out, then age is also a factor as you evaluate the ability to do other work in the mythical not real world national economy in view of the policy holders or plan beneficiaries, age, education, transferrable skills and restrictions. So they're gonna say it's a completely different standard of review. We don't take into consideration age social security does. And so what, too bad, so sad, we've, we've considered it, but we're rejecting it. Now, there's also a mixed bag , um, in that the new ERISA regulations will help ERISA disability policy holders in some respects, but practically it is a mixed bag because carriers are still playing games with the claims. So, as I said, they will have the liar for hire peer review, doctor do the second review. Um, they will send cherry picked records to that liar for hire , review reviewer to render , uh, their opinion. Uh, they may not send all of your material to their liar for higher people. Um, they still, in my experience, are incentivizing , um, adjusters and other players in the disability world for denials. Uh, and of course , um, they'll play the Social Security disability decision game . These are just three of the things I see the carriers still doing, not withstanding these new ERISA regulations. There is, however, some hope here in that I am also seeing , um, some of the courts take a look at the disability carriers failure to follow ERISA regulations. Uh, and in some egregious cases will actually say that the failure to follow those ERISA regulations change the standard of review from arbitrary and capricious, which is the kiss of death to de novo. So again, this is factual, a , a factual analysis based on each one of these cases and how bad the courts may feel that the disability carrier plans violations of the ERISA regulation is. Got it. Let's hope that the course really start enforcing these regulations and put some teeth in them so that they really mean what they mean. Uh, and the carriers are held, you know, their feet to the fire to meet the requirements of the , um, ERISA regulations. And again, one of the, the hopes that , uh, is becoming a a a reality, as I said, is egregious , uh, violations are being found sufficient to change the standard of review. So if, for example, the disability carrier is not rendering a decision , uh, within the first 45 days and doesn't timely or give legitimate reasons for the request for an extension, the courts are saying, whoa , that 45 days was a hard stop. You violated the regulations, the standard of review changes. So there's hope. Let's just hope that the courts , um, uh, become more educated, if you will, about the games that disability carriers and plans are using to violate these ERISA regulations, which were in fact designed to help protect disabled , uh, disability carrier or disability policy holders and , uh, claims beneficiaries. Got it. I hope that you enjoyed this week's episode of , uh, winning Isn't Easy and I would love it if you would , um, like our page, leave a review, share it with your friends, and subscribe to this podcast. That way you're gonna get notification when a new episode comes out. Thanks for listening. Talk to you next week.