Social Security Administration Adopts New Criteria for Evaluating Mental Disorders

In addition to dealing with short term disability benefits, long term disability benefits, and health insurance denials, many of our clients are also tasked with applying for Social Security Disability benefits. On January 17, 2017, the Social Security Administration adopted new rules for evaluating mental disorders.  These rules reflect the most comprehensive revision in over 30 years to the criteria used to evaluate disability claims involving mental disorders. Changes to the rules reflect up-to-date standards and practices used in the mental health community. Most notably, the new rules reflect information from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM -5”), which is the mental health profession’s standard for classifying mental disorders. The new rules also reflect comments from members of the public and the expertise of disability policy experts, adjudicators, psychiatric professionals, and vocational experts.

Among the many changes are three new listings: 12.11 Neurodevelopmental disorders, 12.13 Eating Disorders, and 12.15 Trauma- and Stressor-Related Disorders.  Additionally, the titles of the listings have been updated to reflect the terms the American Psychological Association uses to describe the categories of mental disorders in the DSM-5.

This table shows the old and new listing numbers and titles:

OLD NEW
12.02 Organic mental disorders 12.02 Neurocognitive disorders
12.03 Schizophrenic, paranoid and other psychotic disorders 12.03 Schizophrenia spectrum and other psychotic disorders
12.04 Affective disorders 12.04 Depressive, bipolar and related disorders
12.05 Intellectual disability 12.05 Intellectual disorder
12.06 Anxiety-related disorders 12.06 Anxiety and obsessive-compulsive disorders
12.07 Somatoform disorders 12.07 Somatic symptom and related disorders
12.08 Personality disorders 12.08 Personality and impulse-control disorders
12.09 Substance addiction disorders 12.09 Reserved
12.10 Autistic disorder and other pervasive developmental disorders 12.10 Autism spectrum disorder
12.11 Neurodevelopmental disorders
12.12 Reserved
12.13 Eating disorders
12.15 Trauma- and stressor-related disorders

Under the new rules, these new mental health listings will remain in effect for five years. To read the full text of Social Security’s Mental Disorder Listings, click here https://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm#12_04 .

 

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April is Parkinson’s Disease Awareness Month

April is Parkinson’s Disease Awareness Month, which makes it a fine time to talk about the organization that provides information, support and education for those who suffer from Parkinson’s Disease (PD) as it provides a wealth of information useful in a disability claim.

The Parkinson’s Disease Foundation (PDF) works to find a cure, to advance research, to increase knowledge, to empower the community and to ensure that those living with the disease enjoy the best quality of life possible. http://www.pdf.org/en/mission

This organization can provide valuable information for our clients and their families on topics that include: understanding the illness, coping with a recent diagnosis, managing PD and support for care partners and family. These are just a few examples of the many resources available on the PDF’s website. The website also offers helpful suggestions on living with PD and coping with the trials and difficulties that result from suffering from this progressive condition.

If you are currently receiving long-term disability benefits from your insurance carrier you may be able to receive a lump sum buyout

A lump sum buyout, also known as a disability settlement, is one payment for the agreed upon value of a claimants disability insurance policy. After this onetime payment is made, the claimant will no longer be paid benefits on a monthly basis.

Additionally, the claimant no longer has an obligation to provide documentation that he or she is disabled. A lump sum buyout is not always available and sometimes not advisable for all disability insurance claimants.

In this video, Attorney Gregory Dell and Stephen Jessup discuss the many factors that go into an insurance company offering or even negotiating a lump sum buyout. Topics covered in this video include:

· What is the Future Value of Your Claim?
· Are You a Candidate for Lump Sum Buyout?
· Does Your Disability Insurance Company Have to Offer a Lump Sum Buyout?
· Would an Insurance Company Consider a Lump Sum Buyout with My Medical Condition?
· What Factors Go Into Determining the Value of Your Disability Policy
· Is a Lump Sum Buyout the Best Economic Decision for You?

Watch this video to learn more about lump sum buyouts. Our attorneys are skilled at negotiating with insurance companies to get your benefits paid. If a lump sum buyout is something you are considering, please call one of our attorneys for a free consultation.

In-Network versus Out-of-Network: What you need to know when selecting a medical provider

One of the first questions we ask clients calling about the denial of medical benefits is whether the provider (i.e. hospital, treatment center, doctor) was an in-network or ­out-of-network provider. Some insurers use different terms such as participating provider or contracted provider. These terms all mean that the insurance company, or its claims administrator, has negotiated with the provider for a certain rate of reimbursement. Insurance companies negotiate these rates of reimbursement with certain providers so that there is an expectation – from both the insurance company and the provider – of the amount that will be paid for medical services.

For patients who are seeking benefits for medical services, a provider’s network status is important because it affects how much the patient will pay out of pocket for treatment. When patients use an out-of-network provider, there is an additional coinsurance, or charge, that patients must pay out of pocket. This coinsurance can range from 20% to 50% of the eligible charges. Eligible charges are a lesser amount determined by any number of factors in the insurance policy, such as Medicare rates. So when patients receive bills from the provider, or statements from the insurance company, which show that only a fraction of the out-of-network provider’s charges were paid, the reason is that the eligible charge was determined to be less than the billed charges and a coinsurance applied. This can dramatically reduce what the insurance company will pay for an out-of-network claim.

Here are some tips for reducing out-of-pocket medical expenses:

WORKPLACE DISABILITY MORE COMMON THAN WORKERS BELIEVE

A 2014 study of Canadian workers revealed that most individuals vastly underestimate the likelihood that they will become disabled. While nearly half of workers surveyed believe that disability occurs rarely, in reality over 14% of Canadians are currently on disability, while roughly 33% of individuals will experience a period of disability lasting longer than 90 days during their working lives.

While this study only involved Canadian workers, there is no reason to believe the same statistics, and the same lessons, can’t be applied to American workers.

Mark Hardy, senior manager of Life and living Benefits at RBC insurance stated that “research indicates that Canadians are overly optimistic about avoiding a disability and lack of understanding reinforces the need for more education around this critical issue.”

The Transition from Short Term Disability (STD) to Long Term Disability (LTD) Benefits

Disability benefit plans are often structured to provide two different types of benefits. The first is for short term disability or often just refered to as STD, which typically provides benefits for the first 3-12 months of disability.  After the conclusion of short term disability benefits, the claim is then transitioned for approval of long term disability benefits, also referred to as simply LTD. Often, the same insurer administers both the short and long term plan and the definition for eligibility of benefits is identical. However, many of our clients find that after the expiration of short term benefits, they do not continue to receive benefits and have to go through the approval process all over again to receive approval for their long term disability claim!

Unfortunately, this is a normal course of events. We find that even though a client has been approved as disabled under a short term disability plan, insurance carriers treat the long term claim as a new claim and require a new submission of new proof. One of the reasons we suspect that this transition is not “seamless,” (as may be promised) is that the employer funds short term benefits out of its own account, and for the benefit of its employees, whereas long term disability is funded with an insurance policy where the insurer is on the hook to pay benefits.   Ordinarily, insurers have no allegiance to employees.  Therefore, even though the definitions of disability are the same under the short and long term plan, it is more difficult to be approved for long term disability benefits.

As a result, when the claim is transferred to the long term disability unit, the insurance company may require new and additional attending physician and employer statements, updated medical records and claimant completed statements before it will evaluate the claim. This can cause a delay in long term disability benefits and even a denial of the claim, despite the fact that the same insurance company approved the disability claim just weeks before!

Trumpcare will cut mental health care and substance addiction treatment for 1.3 million people

Trumpcare, the Republicans’ proposed plan to replace the Affordable Care Act (ACA) — also known as “Obamacare” — will cut mental health and addiction treatment for 1.3 million people, just as the country is struggling to cope with an epidemic of opiate addiction. The Washington Post reported on March 9, 2017, that House Republicans admitted under questioning by Rep. Joe Kennedy III (D-MA) that their ACA repeal-and-replace plan would remove a requirement to offer substance abuse and mental-health coverage that’s now used by at least 1.3 million Americans.

Substance abuse and mental-health services are among the “essential benefits” states are required to provide under the ACA’s expansion of Medicaid, a program that provides health-care coverage to those who cannot afford it. As the article explained, if states opt out of providing those benefits, Medicaid recipients would not only lose coverage for mental-health care, but also coverage for care aimed at addressing substance abuse treatment, a critical area of care given the current drug overdose epidemic many states are dealing with. According to estimates by health-care economists, about 1.3 million Americans’ sole access to these services is through the ACA.

 

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Top 7 Benefits of the Affordable Care Act…Some of Which May Soon Disappear.

As health care litigators, we are often asked about the benefits of the Affordable Care Act (“ACA” aka Obamacare). The bottom line is that more people have received more comprehensive coverage through the Affordable Care Act because of the following measures:

  1. No preexisting exclusion. Health plans can no longer charge more or deny coverage to you or your child because of a pre-existing health condition like asthma, diabetes, or cancer. https://www.hhs.gov/healthcare/about-the-law/pre-existing-conditions/index.html
  2. Young adults can remain as dependents on their parents’ health plans until age 26. Young people generally do not have access to sufficient individual health plans and do not have careers that provide the opportunity for an employer based plan so the opportunity to remain on a parent’s health plan is a great benefit. http://www.forbes.com/sites/emilywillingham/2017/01/25/have-a-teenager-you-should-worry-about-aca-repeal/#4a89ca150604

Michigan District Court overturns denial of benefits by Liberty Life Assurance Company of Boston

People often contact us asking how they can be approved for Social Security Disability benefits yet be denied by their insurance company. Another recurring question is how the insurer can rely on the opinion of a physician hired to perform a file review over the opinion of a treating physician. While insurance companies are allowed to make a decision that is different from the SSA and/or rely on their own file reviews in many cases, they cannot do so arbitrarily. In other words, they have to provide a reason why they rely on such information over other, perhaps more credible information.

A recent case decided by a district court out of Michigan addresses these questions and involves Liberty Life Assurance Company of Boston. There is nothing groundbreaking about this court ruling but the court decision provides a good review of prior rulings in which other courts have assessed the value to be placed on SSA findings and the weight to be given to a reviewing doctor and vocational reports based solely on a reviewing doctors opinion.

In this case, the claimant had a long history of treatment for her lower back and thoracic spine dating back to at least 2006. Over the years she was able to manage the pain and continue working with treatment but as time went on her pain became less responsive to conservative treatment. Eventually, conservative treatment proved to be insufficient to control the pain.

Despite her doctors best efforts she had to stop working by June 2012 to undergo a lumbar fusion and was unable to return to work following the surgery because the pain was so severe. When she filed her claim, liberty requested that she complete activities questionnaires, which reflected her declining condition. She reported that she could not perform gainful employment due to pain in her back; leg pain; difficulty in sitting, standing and walking for any length of time. She also reported that she spent 14 hours a day in bed.

Concurrent with her application with liberty, she applied for SSDI benefits which were approved. Liberty also approved her claim and paid her benefits during the own occupation period but denied her benefits after the first 24-months of payments following a file review that determined she could work at a light-exertion level occupation.

Based on that file review, a vocational consultant found her capable of working at other occupations and her benefits were terminated in sept 2014.

She appealed, submitting a report from her primary care physician stating she could not work on a full time basis at any occupation due to her uncontrolled pain.
 
Liberty rejected this opinion and upheld its decision which led to litigation.
  
The court applied a de novo standard of judicial review and after reviewing the claim, the court found for the claimant. In addition to the treatment records the court gave great weight to the SSA finding based on a 2008 6th circuit court case which found that if: A plan administrator encourages an applicant to apply for SSDI benefits, financially benefits from the applicant’s receipt of SSDI benefits and then fails to explain why it is taking a position different from the SSA on the finding of disability, the reviewing court should weigh this in favor of a finding that the decision was arbitrary and capricious.

Since those factors were met and there was an absence of an explanation as to why Liberty accorded more weight to its reviewing doctor than to the treating doctor, the court placed heavy emphasis on the SSA determination.

The court also recognized the treatment records, which evidenced a clear pattern of pain and lack of improvement and found the treating physicians’ opinions were consistent with the medical evidence.

In regards to the reviewing doctor’s opinion, the court assigned less weight for several reasons: first, the reviewing doctor did not perform an in person examination of the claimant; also, the record showed that the doctor did not have all the available evidence when performing his review including pertinent records from 2011. Liberty also failed to provide the doctor with the SSA’s finding of disability.

Ultimately, this case is a good example of an inadequate review on the part of Liberty Mutual. It is important to remember that not every case will hinge on a Social Security decision and a Social Security finding of disability is not always weighed so heavily. The weight afforded to the SSA decision in this case had a lot to do with the inadequacy of Liberty’s review and the also the credibility of the claimant’s medical history.

If you have insurance, you need to know about the “notice-prejudice” rule!

Insurance denial, ERISA denial, claim denied
Every insurance policy requires that you give notice of your claim for benefits to the company before benefits can be paid.  It doesn’t matter if the claim is for medical services, disability benefits, life insurance, fire, flood, theft, etc. Obviously, notice and information about your claim is necessary before the insurance conpany can process and pay the claim. Policies also usually require that notice of a claim be given within a specified time period following the loss, for example, “30 days,” or “as soon as practicable,” or “as soon as reasonably possible,” etc.  Again, this is fair because evidence related to the claim is fresh, and most readily available nearer the time of the event.

But, what happens if you can’t, or don’t comply with the policy notice requirement?  What happens if don’t give notice until months, or even years after your claim accrued?

Good questions.