ERISA Regulations, P2 - What Disclosures Must ERISA Disability Carriers or Plans Make to You in a Denial or Termination Letter, and More

Welcome to Season 4, Episode 36 of Winning Isn't Easy.  In this episode, we'll dive into the complicated topic of "ERISA Regulations, P2."

Host Nancy L. Cavey, a seasoned attorney with extensive experience in disability claims, explores more ERISA regulations. Specifically, she'll cover the disclosures disability carriers are required to make to you in a claim denial or termination letter. Despite ERISA regulations, carriers still often make mistakes or create tenuous reasons for justifying their actions in denial or termination letters, as they do in all parts of a claim. Today, your host, Nancy L. Cavey, will further discuss some of the many mistakes carriers make in handling claims, and how you can be aware of them.

In this episode, we'll cover the following topics:

1 -  What Disclosures Must an ERISA Disability Carrier or Plan Make in a Denial or Termination of Benefits Letter?

2 - What Are the Common Mistakes That ERISA Disability Carriers or Plans Make in a Denial or Termination of Benefits Letter?

3 - What Mistakes Are Made Regarding the Description of Additional Material and Information That the Carrier or Plan Thinks Is Necessary to Perfect Your Claim?

4 - Are There More Mistakes That Disability Carriers or Plans Make When They Deny or Terminate Your ERISA Disability Benefits?

5 - Why ERISA Carrier or Plan Explanations of the Medical, Scientific, or Clinical Judgment They Used Applies to Your Medical Condition Is Often Bull, and What You Must Do about It

6 - Using the Carrier or Plan’s Specific Internal Rules, Guidelines, Protocols, Standards, or Other Similar Criteria They Relied upon in Denying or Terminating Benefits to Overcome Your Claim Denial

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


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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Transcript

Nancy Cavey [00:00:15]:
 Hey, I'm individual disability and Arista disability attorney Nancy Cavey, and I want to welcome you to this episode of winning isn't easy. Before we get started, I have to give you a legal disclaimer. The Florida Bar association says I have to tell you that this podcast is legal advice. So now that I've said it, nothing will prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Have you received a denial or termination letter from your ERISA disability carrier? You probably were shocked and as you read it, you thought, are we talking about the same claim, same case? Because a lot of this doesn't sound familiar. In fact, it looks to me that they may have even cherry picked my medical records, misconstrued what my doctor has to say, and I'm calling me a liar because they don't think I'm credible and they've made up all of these reasons to deny or terminate my benefits. Well, there are some protections under the ERISA regulations that will help you overcome potentially and improper claim denial or termination if they violate ERISA rules or regulations.
 
 Nancy Cavey [00:01:34]:
 So I want to talk about six different things today, about mistakes and problems caused by an improper violating ERISA disability regulation denial or termination letter. And the importance of this is that ultimately we can use some of these mistakes potentially to overcome that wrongful denial or termination. So the first thing I'm going to talk about is what are the disclosures that an ERISA discipline carrier plan has to make in the denial or termination of benefit letter? Secondly, what are the common mistakes that they make in that denial or termination of benefits letter? Thirdly, what mistakes are made regarding the description of additional material or information the carrier plan thinks is necessary to perfect your claim? Fourth, are there more mistakes? Add more mistakes that disability carriers or plans make when they deny or terminate disability benefits. Five, why an ERISA disability carrier plans explanation of any medical, scientific, or clinical judgment they used applies to your medical condition and your claim is often bull and what you need to do about it. And lastly, how using the carriers or plans specific internal rules, guidelines, protocols, standards or other similar criteria can be used to overcome your claims denial. Got it? We've got a lot of talk about today, but before we do that, let's take a break for a moment. Okay? Welcome back to winning isn't easy. Now we're going to talk about what disclosures must an ERISA disability carrier plan make in a denial or termination of benefits letter.
 
 Nancy Cavey [00:03:31]:
 Have you gotten that denial or termination letter? You read it cover to cover. You don't understand what's going on. It's as clear as mud, and you, with good reason, are as mad as a wet hen. Did you know that most disability insurance policies or plans are governed by a federal law called ERISA, the Employee Retirement Income Security act? Regulations have been enacted under this statute that are designed to protect you, the policyholder or plan beneficiary. These ERISA rules or regulations include a full and fair review requirement that includes disclosure requirements to promote a meaningful dialogue between you and the disability carrier and plan about why your claim was denied or benefits were terminated and what you need to submit as part of the appeal. Now, under the ERISA statute, you have 180 days in which to file an appeal. That is the trial of your case, and you have to exhaust these administrative remedies before you can file a lawsuit. No due evidence is going to be allowed in front of a judge once the appeal process is completed.
 
 Nancy Cavey [00:04:38]:
 So that's why this appeal really is the trial of your case. That in turn, makes it really crucial that the disclosure regulations are followed so that you in fact understand why they did what they did, how they did what they did, what you need to do to submit evidence to them in a manner that they want so that you can overcome this claims, denial or termination these disclosure regulations are really crucial to the full and fair review because otherwise they're going to hide the ball and move the goalpost in the appeals process. So what information are you required to be given in the denial or termination letter? There's a laundry list. First, the specific reasons for the denial or the termination. Two, reference to the specific policy terms or plan terms that are the foundation of the denial or termination. Three, a description of what additional material and information the carrier plan thinks that is necessary to perfect your claim. An explanation of why the additional material and information is needed. Next, a description of the plan or policy review process.
 
 Nancy Cavey [00:05:48]:
 And next, an explanation of why the carrier or the plan disagreed or did not follow the opinions of your physicians or the opinions of even their own liar for hire doctors. They also have to explain why they did accept their liar for hire physicians opinions over that of your doctor. They have to explain the opinions of the vocational evaluator that they used. They have to consider the opinions of and the decision of the Social Security Administration. They have to provide an explanation, if the determination is based on medical, scientific, or clinical judgment, how that applies to the terms of your policy or plan. They have to disclose and I discuss the specific internal rules, guidelines, protocols, standards or other criteria that they relied on in denying or terminating your benefits. And they have to tell you that you're entitled, upon request, to get a free copy of all the documents, records or other information relevant to your claim for disability benefits. They also have to tell you the timeframe that you have in which to submit an appeal and the timeframe in which they have to respond.
 
 Nancy Cavey [00:07:03]:
 And they have to tell you about your right to file a lawsuit and the time frame by which the lawsuit must be filed. Now I'm often asked, do these full and fair review disclosure requirements really work? I will tell you that these new regulations are an improvement on the old regulations, but carriers will still hide the ball. And in my view, they fail to clearly explain why they denied or terminated benefits. Look, we know that they don't want to pay and they know that we know they don't want to pay and they'll use the regulations to muddy the waters and hope you just give up and go away. But that's not how I operate. I'm a little bulldog. I'm not going to give up. And you shouldn't give up either.
 
 Nancy Cavey [00:07:44]:
 You really do want to get a copy of the claims file and start your review. Or better yet, have your lawyer get that claims file and start the review to determine first and foremost did they meet the actual disclosure requirements of the ERISA rules and regulations. Got it? Lets take a break.
 
 Speaker B [00:08:02]:
 Robbed of your peace of mind by your disability insurance carrier, you owe it to yourself to get a copy of robbed of your peace of mind which provides you with everything you need to know about the long term disability claims process. Request your free copy of the book@kvlaw.com today.
 
 Nancy Cavey [00:08:47]:
 Welcome back to winning isn't easy. What are the common mistakes that aristodes carriers or plans make in a denial or termination of benefits letter? It's done to get that denial or termination letter from your ERISA disability carrier or plan. You read it cover to cover. The letters confusing your medical records look like they've been picked over like a grocery store before a hurricane. There are lots of mistakes and mistakes that violate ERISA regulations. And in my view, these mistakes are the starting point for filing a winning appeal letter and getting your benefits. What are those mistakes that are made about the specific reasons for the denial or termination in reference to the specific policy or plan terms? And this is where I start. So the denial or termination letter may start out by saying that your claim is denied as of a certain date and no future benefits are payable.
 
 Nancy Cavey [00:09:43]:
 It might recite the date you claim you were disabled, the medical conditions you claim as the disabled basis of your disability claim your occupation, the period of benefits that were paid before it then starts quoting various provisions of your policy or plan that were the foundation of the denial or termination. Now, let's talk about the most commonly cited policy or plan provisions. They will cite, among other things, the pre existing condition clause, the definition of occupation the definition of disability during the own occupation period the definition of any occupation for that period of disability the definition of objective medical evidence the definition of subjective medical condition limitations the definition of mental nervous limitations the definition of reasonable and necessary medical treatment. So let me give you an overview, and this is an example. You might claim that you're disabled as a result of a heart attack and you were employed as a systems engineer at the time you became disabled. The carrier plan may have paid your benefits for two years under the own occupation standard of disability. Now, the standard of disability has changed from an inability to do your own occupation to an inability to do any occupation by virtue of your education, your experience as a systems engineer, and your restrictions and limitations. The denial or termination letter doesn't always quote the whole definition of any occupation.
 
 Nancy Cavey [00:11:11]:
 In fact, it may even use the wrong definition of any occupation because of another document that you want to get called the summary plan description. It may have a different definition of occupation than that in the policy or plan. So they're denying your claim, applying the wrong definition of any occupation. That can be the start of an appeal. But let's say for this example, the definition of any occupation is correct. While the regulations require that they tell you about the specific reasons for the denial or termination, that's not often the case. The letter will often inaccurately or incompletely summarize your medical records. They'll cherry pick your medical records in a way that justifies the claim denial or termination.
 
 Nancy Cavey [00:11:59]:
 The carrier plan may misinterpret test results and then claim that the results mean that your doctor's restrictions and limitations are invalid. Then they will claim that they're a liar. For hired doctors who have reviewed your medical records have reached a different conclusion. They won't identify their doctor. They won't tell you what questions they asked of the doctor, what information they gave to the doctor, whether the doctor consulted with your doctor, whether they asked their doctor to rewrite the opinion letter to make it more favorable to them, or even how their doctor reached the conclusion that you could allegedly even do a sedentary job that would allow you to do any occupation. Now, these are just some of the common violations of the regulations, but to get there, you obviously need to request a copy of the disability carrier's claim file they have on you and a copy of the policy of the plan so that you can literally be reading the claims file, the definition of applicable policy terms, and that denial or termination letter side by side. Got it. Now I want to tell you that these violations get worse.
 
 Nancy Cavey [00:13:06]:
 We're going to talk about that in our next episode. Let's take a break. Welcome back. Welcome back to winning isn't easy so what are the mistakes that are made regarding the description of additional material and information that the carrier or plan thinks is necessary to perfect your claim? In my experience, the carrier plan will make vague statements like, you should provide objective evidence of your restrictions and limitations in the form of x rays, ct scans, mris, EMG, nerve conduction study tests, or other studies that support your claim. Now, your policy or plan may not even require that you submit objective medical evidence, and that demand that you provide additional information is like a laundry list and it really isn't specific to what's relevant in your claim. They'll also make vague statements like your records don't adequately explain your symptoms, the studies aren't consistent with your restrictions, or you aren't getting appropriate treatment. If they don't tell you what the problem is or what they need, how on earth are you supposed to provide it? Often they will encourage you to submit what you think is important and relevant, and then they're going to complain that you didn't provide relevant information. For example, an echocardiogram, a stress test, or updated operative reports can explain your symptoms and restrictions.
 
 Nancy Cavey [00:14:59]:
 But you may not know what the carrier plan wants in terms of diagnostic studies or more importantly, the results of those studies, and more importantly, how that all impacts your inability to do your own or any occupation. So they give you a laundry list, but they don't explain the connection between what they want, why they want it, and how that impacts your claim. I think that's a mistake and a violation of the ERISA regulations. So how about mistakes that are made in the explanation of why they want this additional material and the information that's needed? Now, as I indicated, they may in part summarize what their liar for hire, peer review doctor or IME said, but they rarely provide you with a copy of that report at the time of the claim denial or termination. It's only when you ask for it and you get a copy of your claims file will you be able to review that liar for hire, peer review physician or IME doctor and then understand why the peer review or IME doctor said what they said and what information you really, really need to supply to address and rebut the basis of the denial or termination. And obviously you have 180 days in which to file an appeal and you're just burning up time because they're not supplying you with information that I think they should supply in the denial letter. So you're often left to guess what they want and why they need it. And then you need to formulate how you're going to develop the necessary medical, vocational and legal rebuttal.
 
 Nancy Cavey [00:16:31]:
 And to do that, you need to know the why. You have 180 days in which to file an appeal and the appeal is the trial of your case. I don't think you should be doing this yourself. This is not a Home Depot venture. This is your future, your financial future. You should, in my view, retain an experienced risk of disability attorney who is going to get the carrier file. They're going to read it. They're going to understand the legal, medical and vocational reasons for the denial or termination.
 
 Nancy Cavey [00:16:59]:
 They're going to formulate a winning strategy. They're going to implement that strategy and they're going to write an appeal that takes the knowledge of ERISA and the ability to put together winning evidence to write that appeal letter. It requires, in my view, dogged determination to take on a disability carrier. Got it? Let's take a break.
 
 Speaker B [00:17:20]:
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 Nancy Cavey [00:18:20]:
 Welcome back to winning isn't easy. Are there more mistakes that disability carriers or plans can make when they deny or terminate your ERISA disability benefits? Absolutely. Have you ever seen that old episode of I Love Lucy where Ricky tells Lucy that she has some splaining to do? Well, I think reading an ERISA denial or termination letter is like a mashup of a horror show, a comedy show, a Sci-fi show. You get to deal with a financial horror of the lack of income, a crazy cockamamie reason for the denial, termination letter and a letter that you know is out in left field outer space. It just doesn't make any sense. Under the EriSA regulations, a carrier plan is supposed to do some splaining. They're required to provide an explanation for why the carrier plan agreed or disagreed and didn't follow the opinions of your doctors. Accepted the opinions of their liar for hire doctors or not so independent me doctors, the opinions of their vocational why they rejected the decision of the Social Security Administration.
 
 Nancy Cavey [00:19:32]:
 They've got splaining to do. And I will tell you right out of the box, they are generally going to reject your doctor's opinions. It might be that they think the testing was normal, your examination was normal, the doctor's relying on your subjective complaints. You name the reason. But the first line of attack is going to be the opinions of your doctor. And they don't necessarily explain why they are rejecting the opinions of your doctor in the denial letter. They are going to go to some great lengths to explain the opinions of their doctors, their liar for hire doctors, and why their opinions are better, right and more believable than your doctor's opinions. You name the reason, they'll raise it.
 
 Nancy Cavey [00:20:14]:
 Now they're also going to be addressing vocational opinions. You may have submitted a vocational report, and they will cherry pick that vocational report for lots of reasons. It might be that your vocational evaluator used the actual opinions of your physician and not of the carrier or plans liar for hire doctors, and who, by the way, are always going to say that you can do at least sedentary work. They will play games with the classification of your occupation, your education or work experience. They'll even come up with occupations that you didn't do because of your need to change positions frequently, need to take naps, cognitive issues. So they're going to cherry pick your medical records, decide that you can work in some sedentary capacity. They're going to then decide there are occupations that you can perform or that you can perform in such a manner that your wages would not result in any exposure to the disability carrier plan for benefits. And of course, they're going to ignore all the functional restrictions and limitations that would prevent you from doing your own or any occupation.
 
 Nancy Cavey [00:21:22]:
 They only really look at what we call the physical or exertional requirements of occupations. They don't look at other things like non exertional impairments, the requirement to alternate sitting and standing, the need for breaks, being off pace, absenteeism. So their vocational opinions are a bit, well, not bit. They are one sided. They also, if you've gotten Social Security disability benefits because you were required to apply under the terms of the policy or plantain will basically whipsaw that decision. What do I mean? If the carrier says, hey, you got a favorable decision, they're going to say, too bad, so sad, because it's not time relevant. The Social Security Administration did not have additional information that their liar for hire for doctors have come up with. And by the way, that Social Security decision was based on your age, which is not a factor in the definition of disability.
 
 Nancy Cavey [00:22:20]:
 On the other hand, if your claim was denied, they're going to say, you got it. We're right, baby. And the Social Security agrees with our denial. Now, I think that there should be an explanation beyond the hey, we got it. We looked at it. We disagreed because of old doctors opinions. We have different opinions. Social Security didn't consider this or that, but I rarely see that they do that.
 
 Nancy Cavey [00:22:42]:
 And I argue that that is a violation of the ERISA regulations. You got to give us an explanation. You just can't say, we got it. We looked at it, we ignored it. Got it. Okay, let's take a quick break before we come back to the next ERISA regulation violation, which is explanations of medical, scientific, or clinical judgment that they used in reviewing your medical condition. Got it. Let's take a break.
 
 Nancy Cavey [00:23:46]:
 Welcome back to winning isn't easy. Why ERiSA carrier plan explanations of the medical, scientific, or clinical judgment they use and applies to your medical condition is often bool and what you have to do about it. Now, disciplined carriers or plans have stables of liar for hire doctors that they use over and over, and they say the same things over and over. One refrain, for example, we see in fibromyalgia cases, is that there is no objective basis of the restrictions and limitations your doctor assigned and that if you only exercised, you could work. They will cite outdated medical literature and hang their clinical judgment on that outdated medical literature. And now carriers will often, in turn, hide behind the skirts of that medical literature that are cited to support a rejection of your doctor's opinions. They'll hide behind this because they simply haven't examined you, they haven't practiced in that specialty, or they haven't practiced in a million years. So they look for medical literature that will support their biased and unsupported opinions and they will hang their hat on it.
 
 Nancy Cavey [00:24:52]:
 Now, as an experienced ERISA disability attorney, I attack. I attack. I attack. I am going to try to destroy this reliance on the outdated or inappropriate medical literature that's being relied upon by the liar. For higher peer reviewed doctors, one of the crucial things you need to understand is that there is no treating physician rule. The carrier gets to pick and choose who they believe. And of course they're going to believe their doctors, the doctors they hired, the doctors who give them a reason to deny or terminate your benefits. So ultimately this attack is going to be for the benefit of the court.
 
 Nancy Cavey [00:25:29]:
 If the carrier plan doesn't reverse their denial or termination, the court ultimately may end up deciding this case if it doesn't get settled and the carrier or plan doesn't always supply you with the reports that the doctor is relying on that are the basis of the denial. So you have to ask for the claims file. They have to provide it to you free of charge. Now, when you get it, and generally when I get it, it looks like the carrier file has been copied, thrown down a set of stairs, recopied, thrown down the stairs a second time, it's out of order, it's got duplicate copies, no copies of some things, and then it's scanned and sent to us where we get to run it off or we look at it online. One of the things that I do right off the bat is look at those adjusting notes. I want to review them, I want to outline them. I want to see each referral that they've made to an in house medical staff, and I want it summarized. I want to check what it is that this liar for hire or medical staff reviewed to make sure that they actually reviewed all the relevant file material.
 
 Nancy Cavey [00:26:30]:
 Now, we also summarized the external liar for hire medical review report and check for what material they had to review. What I often find is that they're using a summary prepared by a nurse of the carrier or the disability plan that's not accurate. So they are not necessarily reviewing the medical records. Or if they do review the medical records, they come up with their own inaccurate summary. They'll cherry pick the medical records, they'll create inappropriate or incorrect assumptions, and of course they'll bring their bias to their medical conclusions. I always want to obtain the medical or scientific literature and review it and summarize it, because often I find that the literature that the liar for hire doctor is relying on really doesn't support or say what they say it says. And so we've got a lot of lies, if you will, biases, incorrect conclusions stacked upon stack upon stack upon stack. And if we can pull that underlying lie, if you will, we can really attack the basis for the buyer for hire peer review report.
 
 Nancy Cavey [00:27:46]:
 So we want to attack the literature and say, it doesn't say what you say it says. And since it doesn't say what you say it says, your conclusion, not correct. And therefore, the carrier's reliance on your incorrect reading of this literature and your incorrect opinions should fail, should fail, and benefit should be paid. And so that's how we go about attacking, attacking, and attacking. Got it? Let's take a break. Welcome back. Let's talk about how we can use the carrier or plan specific internal rules, guidelines, protocol standards, or other similar criteria in denying or terminating your benefits to our benefit and to overcome a claims denial or termination. So let's start out by talking about what are specific internal rules, guidelines, protocol standards, or other similar criteria.
 
 Nancy Cavey [00:29:14]:
 One of the hidden balls that we often see, if you will, once we get the claim file. Now, I ask for the claim file, and in my letter asking for the claims file, there is a laundry list of things I asked for, including the specific internal rules, guidelines, protocol standards, or other similar criteria. And do I often get them? No. And do I have to ask for them again? Yes. And I really try to nail them to the wall about whether or not they used any specific internal rules, guidelines, protocols, or other criteria. And if so, I want them. Why do I want them? Well, it provides me with insight into the carrier or plans thinking, or the lack thereof. These internal rules will often tell the claims adjuster how to analyze the claim.
 
 Nancy Cavey [00:30:04]:
 Did you know that carriers have guidelines for different medical conditions like fibromyalgia, migraines, MECF conditions, psychiatric conditions? You want those guidelines because those guidelines may not, in fact, be scientifically valid or reliable, or the adjuster didn't properly apply them, or their liar for hire doctor didn't apply them appropriately. And I think they're fertile ground for attack. And I love shoving in their face as part of our appeal. The fact that they didn't follow their own internal rules, standards, guidelines, protocols, or other similar criteria, and call them out on that and I will tell you. Alternatively, if I find that they followed them, I'm going to argue that they are generally not based, in fact, law or medicine. So I love arguing about these types of guidelines, internal rules, protocols, standards, or other similar criteria. I think it's a great and fertile area for argument in an appeal. Got it? Well, I hope that you have enjoyed this week's episode of winning isn't easy.
 
 Nancy Cavey [00:31:15]:
 Please like our page, leave a review, share it with your family or friends, and subscribe to our podcast. That way you're going to get notification every week when a next episode drops. Please tune in next week for another insightful episode of winning isn't easy.