Make the Most of your ERISA Claim Review Rights by Preparing a Targeted, Effective ERISA Appeal

Over the years, our lawyers have developed some common-sense strategies for preparing effective ERISA appeals.  If you have questions about your life, health, and disability insurance coverage, we strongly encourage you to contact an attorney for legal assistance, particularly if you’ve received a claim denial or termination.  Consequently, that’s Tip 1.  Tips 2 through 9 provide some additional guidance that is drawn from the knowledge and experience of our attorneys.

TIP 1:  Consider Consulting with a Lawyer.  Talking with an attorney regarding your claim can be extremely useful.  While the denial of your claim may seem plainly wrong, and the basis for your appeal may seem obvious, the old saying — “Haste makes waste” — can be especially true in ERISA benefits cases.  It is important to understand the reasons why your claim was denied, and to fully address all those reasons with specific evidence.  Particularly in short and long term disability claims, it may also be important to strengthen other aspects of your disability claim — aspects that may not be highlighted in the insurance company’s denial letter.  Our experienced ERISA lawyers can assist by reviewing your claim, assessing the issues that need to be addressed, developing specific evidence to strengthen your claim, and preparing an appeal.  There are a variety of ways our attorneys can provide legal assistance for your ERISA health, life insurance or short or long-term disability claim.  However, until you are able to speak with a lawyer, the following additional tips may help you to avoid some common mistakes and to make sure you have the information your lawyer will need to provide you the best assistance possible.

TIP 2:  Get All Relevant Plan Documents.  ERISA provides that a participant in an employer-sponsored plan — whether life insurance, health insurance, short term disability, long term disability, or retirement — is entitled to obtain relevant plan documents within 30 days of a written request.  If you have questions about a plan’s benefits, your first step should be to request all documents that constitute and describe that plan.  Although you are entitled to the summary plan description, or SPD, this commonly distributed plan document contains only an abbreviated version of the plan and, therefore, may provide an incomplete picture of your health, life, or disability benefits.  ERISA gives you the right to copies of plan documents other than the SPD, as well, such as extended plan descriptions, master insurance policies, third-party administration (“TPA”) agreements, and other documents which set forth the benefits to which you are entitled, the applicable claim administration and appeal procedures, and the persons or entities who are authorized to make claim decisions.  In making a request, bear the following in mind:

• The request must be in writing. You should keep a copy of the written communication, and, preferably, proof of mailing — such as a return receipt — or other delivery.

• The request must be addressed to the “plan administrator,” and should state that the request is being made pursuant your rights under ERISA.  Since the plan administrator can be either the employer or the insurer, it is usually safest to mail a request for plan documents to both.  Requests to an employer can be addressed to the “[Employer Name, Plan Type] Plan Administrator,” e.g., The XYZ Co. Long Term Disability Plan Administrator, “care of” the employee in charge of personnel benefits or human resources.  Requests to the insurance company can be similarly addressed to the XYZ Co. Long Term Disability Plan Administrator, care of the person or department designated in your SPD (or by your employer) for filing a claim. Do not allow your employer and insurance company to shuttle you back and forth ~ make a written request to both.

• Make sure your request clearly asks for a comprehensive set of ALL plan documents.  A generic request for “plan documents” often receives only the SPD in reply (a document you may already have).  To get all relevant plan documents, be sure to indicate that you are requesting “all plan documents, including, but not limited to, the SPD, extended plan descriptions, insurance contracts, and TPA agreements.”

• You may be entitled to ERISA penalties for the plan administrator’s undue delay. ERISA provides that a plan administrator may have to pay penalties if it fails to provide the requested plan documents within 30 days of a written request.  In order to be eligible for such penalties, it must be clear that the request was in writing, was received by the designated plan administrator, and specified the document that wasn’t provided.  Following the steps above will help to demonstrate that you are entitled to penalties in the event your employer or insurance company takes longer than 30 days (a court, in its discretion, can award anywhere from $0 to $110 per day in penalties).  If you are experiencing such a delay (particularly, if you’re facing a claim denial and the clock is ticking on your deadline to file an appeal), it may be a good time to consider hiring a lawyer, if you haven’t already.

TIP 3:  Meet All Applicable Claim Requirements and Appeal Deadlines:  You should be careful to observe all notice, proof of loss, pre-authorization or other such requirements in making an initial claim.   Plan documents and claim denial notices should spell out the form, content and timing of a claim and any applicable appeal procedures.   Failure to observe these requirements can lead to the automatic denial of your claim or appeal.  Keep track of the plan deadlines for the claim administrator to render an initial claim determination or an appeal.  Polite inquiries may help to ensure that your health, life or disability claim is decided in a timely fashion.  Under ERISA law and regulations, a claim administrator’s failure to meet its deadlines may permit you to treat your claim as having been denied (a “deemed denial”), freeing you to pursue other legal remedies (such as litigation).

TIP 4:  Make Sure You Understand the Reason Your Claim was Denied.  ERISA requires that a denial notice describe the reasons for non-coverage, the plan provisions relied upon, any internal policies or guidelines relied upon, and the procedures for requesting an appeal.  Claim administrator’s often skimp in this regard, providing little more than boiler-plate language in their claim denial notices.  That’s why it’s important to request the administrative record for your claim denial (see the next Tip).

TIP 5:  Get a Copy of Your Claim File Before you Submit an Appeal.  Immediately after receiving a life, health or disability claim denial, you should make a written request to the claim decision-maker requesting a copy of all materials relevant to your claim.  Your right to such relevant documentation is provided through ERISA’s “full and fair review” regulations, and includes your access to: (1) plan documents, (2) benefit policies and guidelines, (3) medical and/or employment records, (4) any analysis or reports prepared for or considered by the claim administrator, and (5) internal claim processing records (such as telephone logs, emails, data or other informational entries maintained on computer, etc.).These materials — referred to collectively as the administrative record — typically provide invaluable insight into the claim administrator’s reasons for denying a claim and may reveal the existence of mistakes, missing records, or improper considerations.  Thus, the administrative record makes it easier for you and your lawyer to prepare a more targeted and effective appeal.

• NOTE: Do Not Miss your Deadlines.  If the claim administrator fails to provide the administrative record in time for you to use it in your appeal, you should nonetheless submit your appeal within the applicable deadline to avoid any possible claim of lateness.  Your appeal, however, should include a statement that you reserve your right to supplement the appeal once you’ve had an opportunity to review, and develop a response to, any information contained in the administrative record.

TIP 6:  Target Your Appeal.  You should carefully review the explanation for the denial of your life, health or disability insurance claim.  Review the reasons set forth in the benefit denial letter as well as those in the administrative record.  Once you have identified the key reasons your claim was denied, you should target your appeal to directly address these issues.  If a disability claim administrator doesn’t understand the demands of your job, you may want to get a job description from your employer, or download reliable internet information describing your occupation. If a health claim administrator views your treatment as not medically necessary, you may want to get a letter from your physician, provide articles from peer-reviewed medical journals, or undergo additional testing to show that you are an appropriate candidate for the treatment at issue.

• NOTE:  You Must Still Prove Your Claim Overall.  Although you should be careful to target the claim administrator’s particular questions or concerns regarding your health, life or disability claim, you should nonetheless also provide evidence supporting your claim overall (see Tip 6).  Should your case end up in court, you ultimately bear the burden of proving your claim.  Consequently, it is not enough to simply correct the mistakes made by your claim examiner or the medical consultants hired by the claim administrator.  You should carefully provide evidence on each element of your claim.  For example, in a disability claim, this means (1) detailed evidence of your occupation and job requirements (such as your employer’s job description, but including information from other sources, such as government databases like O*NET and the Occupational Outlook Handbook); (2) medical records, doctors’ letters and personal/witness statements substantiating your medical diagnoses and symptoms and how these limit or restrict your ability to work; (3) reliable scientific or medical literature regarding your illness, side effects of medications, and typical symptoms (much of which can now be easily researched on the internet through such online resources as Google Scholar, Medscape, MedlinePlus and PubMed, as well as patient-support websites established with regard to particular diseases and medical conditions); and (4) any other potentially relevant evidence.  You should assume that a claim examiner or judge knows nothing about your job or medical condition, and you must teach them about each element of your disability.

TIP 7:  Submit Comprehensive Medical Records, Occupational Information, and Other Relevant Evidence.  Throughout the initial claim and reconsideration process, you should develop, obtain and submit as much information supporting your life, health or disability claim — complete financial, employment and medical records; physician’s letters; statements of co-workers, colleagues and friends, etc. — as is possible.  This is imperative because (1) the burden of proof is on the claimant to demonstrate entitlement to benefits, and (2) in any subsequent lawsuit, a court may refuse to look at any information other than that submitted during the appeal process.

TIP 8:  Consider an External Appeal for Health Insurance Claim Denials.  An “external review” may be available for certain ERISA health insurance claim denials where the treatment was deemed not medically necessary, experimental, or investigational (see Requesting an External Review).  Unless the plan agrees to waive the appeal process, a participant is entitled to external review only after a request for reconsideration has been made and the plan upholds its initial determination.  If an external review is available, a participant may also nonetheless wish to initiate any remaining internal review, as well.  Generally, the external review must be initiated first.  Although a claim administrator is likely to follow the determination of an external reviewer (and, indeed, must if the external review finds in favor of coverage), there may be some circumstances where an internal review leads to coverage despite a no-coverage determination by the external reviewer.

• NOTE:  External review may not be available in self-funded ERISA plans (see What Does It Mean if My ERISA Plan is “Self-Funded” or “Self-Insured”?).   

TIP 9:  Consider a Lawsuit if You’ve Exhausted the Internal Appeal Procedure.  Once you’ve  exhausted a plan’s internal appeal procedures, you are entitled to start a lawsuit in federal district court to claim plan benefits.  Lawsuits must be filed, typically in New York, within either 6 years or a lesser period of time, if specified in the plan documents.  This deadline may start from any number of possible dates, including the date proof of claim was first due, the date of the original claim denial, and the date of the final appeal determination.  These deadlines can be extremely tricky, so a participant should be careful to engage counsel as soon as it becomes clear that a lawsuit is a potential option.

TELEPHONE:  212-406-9606

Mark Scherzer Law :: ERISA Life, Health Insurance, and Short and Long Term Disability Claim Appeals :: Claim Denials
ERISA Disability and Health Insurance Lawyers in New York (including New York County, Bronx County, Kings County, Richmond County, Queens County, Rockland County, Westchester County, Nassau County, Suffolk County, Orange County, Putnam County, Sullivan County, Ulster County, Dutchess County, Delaware County, Greene County, Columbia County, Albany County, Rennselaer County, Clinton County, Jefferson County, Oneida County, Schenectady County, Otswego County, Saratoga County and St. Lawrence County)