Our First Guest Blog: Daniel Malito writes about struggles with getting his pain medication paid for

Insurance woes. Many of us have heard about a “friend of a friend,” or “some guy” who has been well and truly abused by their health insurance company. We all have the same response -- “that’s horrible,” or something to that effect. Luckily, though, most never get the pleasure of dealing with insurance shenanigans first hand. Well, I’m here to tell you that real people do have to deal with health insurance B.S., for lack of a better word, and it can range from being mildly annoying to thoroughly life-changing.

I was diagnosed with Rheumatoid Arthritis when I was nine. In 1987, before compact discs, the PC, and MTV, I was a mere third-grader who, we thought, had simply caught a bad case of the flu. After several weeks of harboring this “flu” without improvement, the doctors began to look for other causes. To cut a two-year story very short, let’s just say that I was diagnosed with something called Juvenile Rheumatoid Arthritis when I was eleven. My mother diligently spent hours upon hours reading and researching the disease at libraries all over – the “Wikipedia” of the real world at the time. Unfortunately, as is still true today, doctors did not have any idea what caused the illness. So, as one of the first serious cases of the disease in my area, my parents and I went from doctor to doctor, agreeing to test after test, just on the off chance one of the procedures would provide some insight into the ailment that was previously unknown. That never happened, though, and I went from a child with Juvenile Rheumatoid Arthritis to an adult with plain old R.A.

Throughout my childhood and early adulthood, I was lucky enough to be covered by what could be called a “Cadillac” insurance plan. I was able to choose my own doctors, purchase experimental medication, and have any procedure performed without pre-authorization. I cannot imagine what would have happened if we had to fight my health insurance company in those uncertain initial years – I could have ended up in a wheelchair. I tell you this because I want you to understand that I have experienced the good side of health insurance as well as the bad, and the difference is striking.

Eventually the Cadillac plan became too expensive to sustain. Because I was officially disabled, I was also automatically enrolled in Medicare. Because Medicare is always the primary insurance, I was basically paying upwards of $12,000 dollars a year for secondary insurance. So I dropped the Cadillac plan and Medicare became my sole insurance carrier.

Now, I have to take this opportunity to tell you that Medicare is one of the best insurance carriers I have ever dealt with – but that classification comes with two corollaries. First, it must be said that I suffer from a disease that is on the Medicare short list for ailments that are allowed a very large amount of leeway when it comes to insurance claims. Second, I am only talking about hospital stays, doctor’s visits, and medical procedure coverage. Prescription coverage is an absolute and utter nightmare.

For those of you who don’t know how Medicare works here is a brief summary. Part A is the hospital coverage, which covers hospital stays and part B is the actual medical insurance, which covers doctor’s visits and the like. Both of those parts pretty much take care of themselves and are more or less painless in their execution. Part D, though, is the prescription coverage, and even understanding it is a Rubik’s Cube of donut holes, external medical insurance companies, and denial appeals.

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Frontline Report Uncovers the Hidden Costs of Retirement Plans

Piggy bankThe financial industry has continued to grow over the past 30 years, even throughout the Great Recession. In 2010 money flowing to financial services comprised an all-time high 9% of the Gross Domestic Product (GDP). Expansion of employer-sponsored retirement savings accounts managed by banks and financial services companies has fueled this growth. According to the Urban Institute, total financial assets invested in retirement accounts is now $10 trillion. This year, Wall Street has seen unprecedented growth, and the stock market has reached an all time high, despite the fact that the average American family continues to face financial challenges.

A recent PBS Frontline documentary uncovered how average consumers with actively managed employer-sponsored retirement plans are paying huge chunks of their retirement savings in fees to investment managers and financial advisors. The report, which focuses on data from a study by Demos, found that a median-income family pays $150,000 in fees over the lifetime of an average retirement plan. In fact, after adjusting for inflation, the average mutual fund management company collects approximately 50% of the total growth of the fund over the course of an account’s life.

Although actively managed mutual funds claim to collect, on average, approximately 1% in fees annually, that number is based on the total value of the fund, not on the value of the fund’s earnings. When mutual funds’ ratio of earnings are examined over a 40-year period, including hidden and compounded fees, and those earnings are adjusted for inflation, the average retirement savings fund plan is actually collecting about 50% of its earnings in fees. This includes 401(k)s, 403(b)s, 457s, IRAs, Koeghs, and SEPs.   

According to the Frontline report, the fundamental problem with retirement savings accounts is that, more often than not, mutual fund managers and financial advisors work together to invest in such a way as to maximize profit for themselves and not their clients, the workers saving for retirement. The most common retirement account investment is called an “actively managed fund” in which an investment firm carefully selects a range of stocks and bonds and then actively trades these stocks and bonds on behalf of clients in an attempt to create an average return of approximately 7%. Since the firm is paid a fee for each trade, active trading generates more work and more fees that clients must pay. Because financial advisors and mutual fund companies earn more money through actively managed portfolios, they tend to market these more heavily than index funds. An index fund is a type of mutual fund that attempts to match the returns of a market index such as the Standard and Poor’s 500 or the Dow Jones Industrial. Ample evidence shows that index fund investments out-earn actively managed funds, require much less labor to manage, and are much more transparent for the consumer.

Despite the fact that an estimated 85% of financial advisors do not owe any fiduciary duties to their clients, many workers believe that their financial advisors have their best interests at heart. Instead, advisors who have no fiduciary obligations can, and do, use retirement savings accounts to maximize their fees. While attempts to require all retirement account managers to be fiduciaries have failed due to strong financial industry opposition, other efforts to make the fees consumers pay investment firms for managing their retirement funds more transparent have been successful.

On October 20, 2010, the U.S. Department of Labor's Employee Benefits Security Administration issued a final rule to help America's workers manage the money they have contributed to their 401(k) accounts, or similar retirement plan accounts, by requiring the disclosure of information regarding the fees and expenses associated with their plans. This participant-level disclosure rule requires plans to provide investment information in a format that enables consumers to meaningfully compare their plan's investment options—similar to the way that interest rates are disclosed by credit card issuers under the Credit Card Responsibility and Accountability Disclosure Act (CARD). A second and related fee transparency rule requires, in part, that certain covered service providers furnish specified information to plan administrators so that they in turn can comply with their disclosure obligations to participants. This second rule, published by the Department on February 3, 2012, requires disclosures to employers sponsoring pension and 401(k) plans about the administrative and investment costs associated with providing such plans to their workers

As a result of these rules, plan administrators must provide plan participants with certain plan-related information and certain investment-related information, including an explanation of (1) administrative expenses, such as any fees and expenses for general plan administrative services that may be charged to or deducted from all individual accounts (i.e., fees and expenses for legal, accounting, and recordkeeping services), and (2) individual expenses, such as any fees and expenses that may be charged to or deducted from the individual account of a specific participant or beneficiary based on the actions taken by that person (i.e., fees and expenses for plan loans and for processing qualified domestic relations orders). Additionally, participants must receive statements, at least quarterly, showing the dollar amount of the plan-related fees and expenses (whether "administrative" or "individual") actually charged to or deducted from their individual accounts, along with a description of the services for which the charge or deduction was made. While these rules are a step in the right direction, 401(k) plans remain inherently unsuitable as the primary income supplement to Social Security for retirement since, in addition to high fees, they also pose a multitude of risks—such as losing one’s savings to a market downturn and outliving one’s savings—to workers’ retirement security.

The Shriver Brief has repeatedly highlighted the many ways that both the mainstream financial industry and the fringe financial market have found to get working middle- and lower-income Americans to hand over large portions of their paychecks. These include prepaid cards, payday loans, tax refund anticipation checks, overdraft fees, fees for checking and savings accounts, distribution of public benefits through electronic benefit transfer cards, and now, retirement savings accounts. Yet, most consumers are not aware of how their retirement funds can be drained. According to a recent study by NerdWallet, 9 in 10 Americans dramatically underestimated the amount of fees they incur through their retirement savings accounts. Most people thought the average lifetime fees were under $50,000, whereas in reality it is approximately $150,000 per household. Similarly, a 2007 AARP study on lay-person investment knowledge found that 65% of 401(k) account holders didn’t know they were paying any fees for their 401(k) accounts, and 83% lacked basic knowledge about what the fees were. 

As wealth inequality continues to grow, it’s time to ensure that all financial managers and advisors are looking out for their clients and not their own wallets. 

                                                                                                                                                                            

Transparency in Insurer Claim Approval and Denial Rates – Claim Denials Seem to Lead to Greater Profit

Like the average consumer, we are always curious about the claim approval and denial rates of health insurance companies. A new law in Vermont satisfies that curiosity by requiring health insurers who do business in Vermont to disclose claim denial rates. Not surprisingly, the insurer with the largest profit also had the highest denial rate. Blue Cross Blue Shield of Vermont denied 7.6% of claims, MVP denied 15.5% of claims, and Cigna denied 21% of claims. Blue Cross and MVP are non-profit companies and Cigna is a for-profit corporation.

The most alarming statistic is that of the 377,352 claims that were denied last year (as reported to Vermont) there were only 456 post-service appeals. That means that 99.8% of all denied claims are never appealed. What this really means is that health insurers are winning the fight unless insureds are willing to step up and hold insurance companies accountable for benefits that are available and payable under the policy. As the Vermont Public Interest Research Group (VPIRG) reported, “These numbers confirm what we already knew, that insurers have little disincentive to deny claims when there is such a miniscule chance that these denials will actually be appealed.”

You can read more about Vermont’s efforts to gain transparency at Vermont Public Interest Research Group’s website: http://www.vpirg.org/news/pulling-back-the-curtain-on-denied-claims/ and a link to the filings of MVP and Blue Cross at http://vtdigger.org/2013/03/20/new-disclosures-show-mvp-denied-15-5-percent-of-patient-claims-in-2012-blue-cross-denied-7-6-percent/
And http://www.huffingtonpost.com/wendell-potter/the-higher-health-insurer_b_3137831.html

Big Rigs Drive Big Risk For Cars

When big rig trucks and cars collide, the laws of physics determine the outcome. Most often, the smaller vehicle bears the brunt of the damage.The Insurance Information Network of California, the California Highway Patrol and the California Trucking Association have joined forces to focus attention on truck and car driver safety for the upcoming Memorial Day weekend. 

This One’s Gonna Hurt: What Will Happen to Families Who Lose Their Homes Because of Sequestration?

Public housingWhen travelers recently felt the sting of airline delays due to sequestration, Congress quickly acted to provide additional money for air traffic controllers. As more cuts are rolled out over the next few months, a cadre of interest groups will press to restore funding to various federal programs. One group that needs Congress’ attention and action right now: the millions of low-income families who rely upon federal housing assistance to keep a stable roof over their heads and are being threatened with losing access to these funds. If Congress does not act, deep cuts to federal housing programs will do more than just delay a vacation or business trip—they will push thousands of families into needless homelessness. And these cuts will encourage private property owners who participate in these programs to take a pass the next time they are offered a chance to help house the nation’s poor. 

The Housing Choice Voucher program, which gives low-income individuals and families a subsidy they can use to afford housing in the private market, is the dominant source of federal housing assistance for the nation’s poorest households. Because of sequestration, however, housing authorities across the country already have been forced to stop issuing newly available vouchers to households on their waiting lists—many of whom have been awaiting this help for years—and are even taking vouchers back from the households that were most recently given assistance. It is estimated that by the beginning of next year approximately 140,000 fewer households will be using vouchers to access affordable housing. 

Without this assistance to keep housing costs stable and at an affordable level, low-income households will face an ever-present risk of eviction. Families will be forced to double up with other households, or will wind up in shelters. Children who are forced to change schools will fall behind. Parents who lose access to public transportation will lose jobs. Both physical and mental health will suffer for the whole household. Family members will be separated as they struggle to find a way to stay off the streets. And those families who do manage to find a way to keep their homes will have to sacrifice other necessities such as utilities, food, and medicine.

The nation’s public housing resources are also threatened by the impact of sequestration. Cuts to the public housing operating and capital funds will mean the further deterioration of a housing stock that is already experiencing a severe backlog in addressing capital needs. At some point deferred maintenance cannot be undone, and we will lose these housing units dedicated to serving low-income individuals and families forever. Sequestration is doing long-term damage to our ability to meet the need for low-income housing—a need that already outpaces the assistance that is available by more than 8 million households.

Even as sequestration pushes more low-income families who rely on housing assistance toward homelessness, it will also deprive local communities of the homeless assistance funds that they use to keep people housed in times of crisis and to move families from shelters into permanent housing.

Furloughs of our nation’s civil servants will be tough to be sure, but homelessness creates far greater burdens—not just for the families that experience it, but also for the communities where they live. The debate over sequestration needs to address restoration of funding for the rental assistance programs that keep millions of Americans in stable housing.

Supreme Court Grants Writ of Certiorari in ERISA Lawsuit, HEIMESHOFF V. HARTFORD

The Connecticut Plaintiff, Heimeshoff, filed an ERISA lawsuit against Hartford challenging their denial of long-term disability benefits. Hartford filed a Motion to Dismiss as Heimeshoff filed her lawsuit past the 3-year statute of limitations which was clearly stated in her policy. The District Court granted Hartford's Motion to Dismiss and Heimeshoff appealed.

The Second Circuit Court of Appeals cited to the following: ERISA does not contain a specific limitations period for challenging the denial of benefits. See Burke v. PriceWaterHouseCoopers LLP Long Term Disability Plan, 572 F.3d 76, 78 (2d Cir. 2009). Instead, the controlling limitations period is provided by the "most nearly analogous state limitations statute." See id.

Heimeshoff argued that the 3-year statute of limitations defined in Hartford's policy did not begin to run until the final of denial of benefits. Connecticut's general statutes contain a 6-year statute of limitations for contract actions, which applies in this case. However, under Connecticut law, parties to an insurance contract may shorten the statute of limitations period to not less than one year. Additionally, pursuant to Burke (572 F.3d at 81), a statute of limitations specified by an ERISA plan for bringing a claim under Section 1132, may begin to run before the claimant can file a lawsuit.

Hartford's Plan stated that the 3-year statute of limitations period began from the time that proof of loss was due pursuant to the Plan. Because the policy language was unambiguous and it is permitted under the statute to have the limitation period begin before the claim accrues, the Circuit court found that Heimeshoff's action was time-barred.

The Supreme Court will now review this matter solely as to the question, "When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit decision?"

Congratulations to Kantor & Kantor’s Associate Brent Dorian Brehm for being named 2013 “Lawyers on the Fast Track” by the Recorder

Brent Dorian Brehm, a seventh year associate of Kantor & Kantor LLP, was recognized by The Recorder as part of their 2013 Lawyers on the Fast Track list - which recognizes California’s young emerging legal leaders.

Unlike many other honors in the legal field, this list considers both a lawyer’s body of significant legal achievements and their achievements in serving the larger community. As such, this award sets Mr. Brehm apart from his peers, highlighting a body of motion and trial experience few attorneys have compiled to this point in their career while recognizing the work he has performed in the greater Los Angeles community.

Mr. Brehm has spent his entire career advocating for individual’s rights to disability, life, health, and long term care insurance benefits with one of the preeminent firms in the area of ERISA (Employee Retirement Income Security Act) and bad faith insurance litigation, Kantor & Kantor, LLP. While with the firm, Mr. Brehm has resolved well over 150 disputes with insurance companies on behalf of his clients, and has made the transition to lead attorney on many of his cases. At least 13 nationally reported decisions in his client’s favor (including five cases published in the official reporter and five trial judgments in which Mr. Brehm was lead counsel) speak as testament to Mr. Brehm’s advocacy skill and experience gained through practice.

In addition to his many legal accomplishments, Mr. Brehm gives back to his community. When not practicing law, Mr. Brehm enjoys volunteering for Reading to Kids, an organization dedicated to helping inspire a love of reading in children from underserved portions of inner-city Los Angeles. Mr. Brehm was recognized by Reading to Kids when it named him as a recipient of the Distinguished Volunteer award. This effort to better serve the underprivileged members of his community has its roots in Mr. Brehm’s early volunteer activities with the Mexico Orphanage Mission and Food Not Bombs. After law school, his efforts sprouted into working to improve the quality of life for the homeless through work with the East San Gabriel Valley Coalition for the Homeless. On an international level, Mr. Brehm has paired his love of cycling with World Vision’s Bikes for Africa project: helping raise awareness for the project in addition to offering financial support.

After careful review of the professional and civic achievements from nearly 200 California attorneys in their first 10 years of practice, Mr. Brehm was selected as a top contributor to the practice of law and to his community. Mr. Brehm is honored to be recognized by The Recorder. Earlier this year Mr. Brehm was recognized by the Los Angeles and San Francisco Daily Journal, as part of their “Top 20 Under 40” list as a rising star in the California legal industry. Mr. Brehm is proud that these publications, through such awards, recognize the importance, skill, and dedication of all ERISA attorneys in protecting the rights of claimants.

See an online version of the Recorder’s announcement here: http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202596780843&Introducing_50_California_Lawyers_on_the_Fast_Track&slreturn=20130319154839. Be sure to check a special edition of The Recorder on June 24th for the full profile.

To learn more about Mr. Brehm and the firm of Kantor & Kantor see www.kantorlaw.net or call (800) 446-7529.

Your Insurance Company Pays Less Than You Think

If you have long term disability insurance through your employer, you probably know that you are entitled to a benefit if you ever become unable to work because of injury or sickness. The amount of the benefit varies, but it is typically 50-60% of your salary.

However, what you may not know is that most long term disability benefit plans usually don’t even pay that much. Why? Because most plans contain “offset” provisions.

What are offset provisions? Offset provisions state that if you are receiving money for your disability from other sources, the plan can reduce your benefit by that amount. Typically, benefit plans contain offsets for such things as state disability benefits, Social Security disability benefits (both SDI and SSI), and worker’s compensation benefits, among other things. Plans can even offset for income that isn’t related to your disability, like pension benefits.

If this is all new to you, you might want to get an idea of how this offset could work for Social Security Disability Benefits. You can go to the SSA website to calculate an estimated benefit, which you can then use to estimate how the offset would reduce your long term disability benefit. Visit the SSA site here: http://www.ssa.gov/OACT/quickcalc/index.html

Because most people are entitled to at least one other form of disability benefit, this means that your employee benefit is usually not even the 50-60% amount stated in the benefit plan – it’s actually less. In fact, in some cases, your benefits from other sources can be large enough that your employee benefit is reduced to zero. Some plans will still pay a nominal minimum benefit in such cases, but some do not. In other words, even though you are disabled and eligible for an employee disability benefit, your benefit amount could be nothing at all.

Because the amount of your employee benefit is dependent on your receipt of other benefits, you must be very careful in deciding whether to apply for other benefits, and if so, how to do it. Realize however, that sometimes, you may not even have a choice as your disability plan may require you to apply for these other benefits. As employee benefit specialists, we can help if you have questions. If an insurance company is reducing your benefit because of offsets, and you think they have made a mistake, please contact us.

California Supreme Court Hears Argument on Whether Insurance Code Limits UCL Lawsuits Against Insurers

By Samuel Sorich and Larry Golub

On May 8, 2013, the California Supreme Court convened to hear oral argument in Zhang v. Superior Court. The case presents the issue of whether conduct of an insurer, which is related to conduct that would violate California’s Unfair Insurance Practices Act, Insurance Code, §790.03(h) et seq. (UIPA), can be the basis for a private civil cause of action against the insurer under California’s Unfair Competition Law, Business & Professions Code, §17200 et seq. (UCL).

The Court of Appeal in Zhang had ruled in October 2009 that an insurer may be sued by a private citizen for conduct prohibited by the UCL even though the conduct is within the scope of the UIPA. The Supreme Court accepted review of the matter in February 2010.

At the oral argument session, counsel for the insurer relied on the California Supreme Court’s 1988 ruling in Moradi-Shalal v. Fireman’s Fund Insurance Companies, which held that violations of the UIPA may be prosecuted only by administrative action taken by the Insurance Commissioner, not by civil action by private citizens. Counsel argued that the holding in Moradi-Shalal bars a UCL action against an insurer when the action is based on insurer conduct that is governed by the UIPA.

Counsel for the plaintiff insured responded that Moradi-Shalal does not preclude the insured’s UCL action against the insurer, pointing to language in the Moradi-Shalal decision which noted that “the courts retain jurisdiction to impose civil damages or other remedies against insurers in appropriate common law actions, based on such traditional theories as fraud, infliction of emotional distress, and (as to the insured) either breach of contract or breach of the implied covenant of good faith and fair dealing.”

We have monitored the Zhang case and other appellate court decisions on the interplay between the UIPA and the UCL in prior blogs. Please see here, here, here and here.

The Supreme Court is required to issue a written opinion in the Zhang case within 90 days of the date of the oral argument, or by August 6, 2013.

The Supreme Court focused on the UCL this week. On May 7, 2013, the Court heard oral argument in Rose v. Bank of America which presents an issue analogous to the issue in Zhang. The question in Rose is whether a cause of action under the UCL can be predicated on an alleged violation of the Truth in Savings Act (12 U.S.C. $4301 et seq.) despite Congress’s repeal of the private right of action initially provided for under that Act.

 

Employer Credit Checks: A Discriminatory Practice

Credit ScoreLenders use credit reporting information to determine a borrower’s creditworthiness and to make lending decisions. However, a new report by Demos reveals that a growing number of companies are checking credit reports as part of the hiring process.     

According to Demos, 1 in 4 unemployed people reported that a potential employer requested to check their credit report as part of the job application. Employers’ rationale for this practice is that people with bad credit scores will be less reliable or won’t be hard-working or high-quality employees. Yet the report clearly shows that negative beliefs about people with poor scores are nothing more than false stereotypes. According to Demos, financial misfortune is the major driving force behind peoples’ low credit scores, not irresponsibility or poor work ethic. Job loss, loss of health coverage, and medical debt are the leading reasons for poor credit scores—not laziness or irresponsibility. While these factors might hinder a person’s creditworthiness, there is no evidence to suggest that they hinder a person’s job performance. Additionally, African Americans and other minorities are more likely to have poor credit scores, partially due to the proliferation of predatory lending schemes that target minority neighborhoods. Often, these predatory financial products leave people with no option but to default on their loans. The practice of using credit checks in the hiring process is a clear example of structural racism and could be a driver of the ever-growing racial wealth gap.  

Moreover, credit scores are prone to error, and therefore cannot be relied upon as an accurate predictor of a person’s reliability as an employee. According to a recent Federal Trade Commission (FTC) study, 1 in 4 consumers identified at least one potentially material error among their three credit reports that could negatively affect their credit scores. Out of the people who found errors in their reports, just 5.2% were able to have their credit scores adjusted enough to move to a lower credit risk score. This study revealed that the Fair Credit Reporting Act (FCRA) is inadequate in allowing consumers to control their own credit scores. The Consumer Financial Protection Bureau (CFPB)’s recent comprehensive study of credit reporting found that ongoing efforts to measure credit report accuracy will likely continue to rely on consumers to identify potential inaccuracies in their credit reports and to rely on the dispute resolution system to validate that inaccuracies have occurred. However, the FCRA’s existing consumer dispute process will not identify or ameliorate certain types of errors that may be associated with the credit reporting agencies’ data processes.

As part of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act, the CFPB was given authority to supervise both consumer reporting companies and those that provide consumer reporting companies with consumers’ credit information, such as large banks and many types of nonbanks. In July 2012, the CFPB adopted a rule to extend its supervision authority to cover larger consumer reporting agencies, and in September it released the examination procedures it will use to examine these companies. Previously, these companies were not supervised at the federal level. In October 2012, the CFPB began accepting consumer complaints about credit reporting; for the first time, this gave consumers individual-level complaint assistance with consumer reporting agencies at the federal level. The CFPB has indicated that it may also consider the development and implementation of data quality and accuracy metrics to reduce risk to consumers and assure compliance with FCRA obligations.

As of February 2013, eight states (California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont and Washington) have passed laws prohibiting the use credit checks as part of the hiring process. During 2012, 35 bills in 17 states and the District of Columbia were pending related to restrictions on the use of credit information in employment decisions. Given credit checks’ low probability of providing reliable proof of a worker’s abilities and its disparate impact on minorities, this practice should be banned nationally. Moreover, when credit rating agencies make errors on reports, the person with the damaged score should not be punished. Requiring people who have suffered financial misfortune to face greater barriers to employment embodies everything America is not about.