The Employee Retirement Income Security Act (ERISA) is a federal law that controls employee benefits, including group long-term disability policies. ERISA provides that you have 180 days from the date you receive an adverse decision (a denial or termination) to file an appeal.
Hiring an attorney
When you hire an attorney to handle your appeal, while the goal is to get your appeal completed as quickly as possible, sometimes, we will need to use those full 180-days and in rare cases, more time, to make sure that all of the evidence needed to win your claim is developed. While we cannot promise that our work will be done significantly ahead of this deadline for several reasons as explained below.
Our first step will be to request your file from the insurance company and make them aware that we intend to appeal. Even if you have a copy of your medical records or your file from the insurance company, our request is detailed and specifically cites critical information the insurance company often leaves out when responding to requests.
The insurance company is required to respond to our request within 30 business days, and generally this isn’t an issue. Occasionally, we have to push, but for the most part, we will get your file in approximately a month.
Once we have a copy of your file, it needs to be reviewed. It may take a few weeks to review the file, depending on the size and other impending deadlines. We try to review files in order of deadline. It is important to again remember, we are doing our best to win your case and properly reviewing your claim file is critical. Our goal is to review a file within 30 days. We may review the file sooner depending on how close we are to the 180-day deadline. But, our rule of thumb is to try to get the file reviewed within 30 days of receiving it.
Review & Strategy
When reviewing the file, our focus is looking for any in-house nurse or case reviews the insurance company conducted. Oftentimes, these reviews outline their entire rationale as to why the insurance company believes benefits should not continue or be approved. We want to understand what went wrong, so that we can figure out how to set it right.
Our next step is to discuss and confirm strategy. We may call you to discuss and provide you with our thoughts on your file and any in-house nurse or case reviews the insurance company conducted. After this, we will contact your treating providers to help respond to any negative evidence. We also may decide to send you for an independent medical examination or test (like a functional capacity evaluation or neurocognitive testing) depending on what we need to show.
It is important to note that it is almost never adequate to simply “argue” the case with the insurance company. We must develop new evidence, and particularly, strong opinion evidence to overcome the idea that any rational person could have reached the conclusion that you are not eligible for benefits. This must be done at the administrative appeal when we are permitted to submit evidence. In most cases, if we have to go to federal court, we are forbidden from adding new evidence or taking testimony. This is why it’s important to note that just providing medical records is simply not enough. Again, we want to provide statements and facts about why you are unable to work and how your disability would cause limitations at work. This should be overwhelming evidence in support of your claim.
Filing the appeal
Once our appeal is submitted, the insurance company has 45 days to review our final appeal and can extend this for 30 days twice, if they have good reason to do so, which brings the total review process to a total of 105 days. Adding this to the 180-day deadline means that from the time your claim is terminated or denied, you will know whether or not your benefits will be granted in around 285 days. However, there is another factor in an insurance company’s review which may extend the deadline they get to review.
If the insurance company refers our appeal to an independent provider for review, they are required by law to provide our office with these reports and also to allow us additional time to respond. If this happens, and it often does, this could mean we will need additional time, depending on the measures we need to take to respond (which could be,a simple letter, sending the reports to your treating providers for a response or sending you for an evaluation). The time it takes your doctor or provider to respond to our request for assistance is out of our control.
We are always sympathetic to the urgency of having lost your income. But it is more important to get the appeal right. A quick denial doesn’t help you get back on your feet.
These additional extensions are the “worst case” scenario as the claim may very-well move much faster. On our end, when navigating the strategy of your case, especially since very few clients retain us the same day their claim is denied, we have to move quickly and efficiently to make sure we have what we need in a six-month timeline that is much shorter than it sounds.
Even when everything is executed perfectly in an appeal, sometimes the insurance company will still deny the appeal and we will have to go to federal court. ERISA insurers do this with impunity because, with few exceptions, there is little downside for them to wrongly deny claims. The law is designed in a way that we can only sue them for the benefits owed and sometimes if we are successful after protracted litigation we may be able to recover some attorneys fees. But, there are no damages for bad faith, pain and suffering, the financial loss or anguish of having your claim denied, or any other theory. Instead, ERISA limits our lawsuit only to the benefits that would have been paid if the insurer had just approved the claim in the first place. Obviously, under this framework, there is very little reason for the insurer to get right outside the litigation itself.
What we can do for you
Finally, when hiring our office you can expect that we will communicate with you, seek your input on which of your doctors and providers are likely to help us, strategize with you as to whether you need to retain an expert for an evaluation or test and respond to your requests for status. What we cannot promise is that we will resolve your case in a matter of weeks. Our goal is to build the strongest case we can, which may take some time. This is important because as we mentioned, cases can end up in federal court, where the record is sealed (meaning we cannot add any additional or new evidence). The focus is to get you the most complete record as soon as possible. This prioritizes content over speed, albeit within the constraints of our 180-day deadline (or whatever is left of the deadline when you hire our office).