Denials for Experimental or Investigational Medical Services

A common reason health care claims are denied is that the service is experimental or investigational. Each health insurance policy defines "experimental" differently, but basically the health insurer is saying hat the treatment is not proven to treat the medical condition the patient suffers from.

These denials can be devastating because the patient may have already exhausted other treatment choices. She may have been told by her treating doctor that this particular treatment is the best one for her particular health condition. These are also very hard denials to overturn because what treatments are "experimental" is generally decided by the health insurer without having to defer to the treating doctor's opinion.

CNN posted a recent article about individuals with serious seizure disorders who want to get ablation surgery - a minor brain surgery to treat lesions on the brain causing seizures. The alternative surgery is much more invasive and dangerous. Aetna, the health insurer for the individuals, denied the claims for ablation surgery, stating that it is experimental.

"The laser surgery is approved by the Food and Drug Administration and is widely recognized within the epilepsy community as an effective treatment alternative to open brain surgery, especially when the location of seizure activity can be pinpointed to a specific part of the brain. Dr. Jamie Van Gompel, a neurosurgeon at the Mayo Clinic, disputes Aetna's assessment. He is not involved in Cara's care nor Rittereiser's treatment, but he said Aetna's assessment is wrong."I would not call it experimental at all," said Van Gompel, who is leading a clinical trial on the surgery at Mayo as part of a larger national study. "It's definitely not an experimental procedure. There've been thousands of patients treated with it. It's FDA-approved. There's a lot of data out there to suggest it's effective for epilepsy."

Read the whole article here: "Girl has blunt message for Aetna after her brain surgery request was denied"

Class Action ERISA case against UnitedHealth Group

Medical insurance plans and policies only cover health care that is "medically necessary". Different plans define "medically necessary" in different ways, and health insurance companies often have to come up with some internal guidelines about what type of treatment will be covered for certain conditions, and when different treatment must be sought first.

This is difficult in claims involving mental health and substance abuse. Recently, a class action lawsuit was filed against United Behavioral Health ("UBH") asserting that the guidelines being used to deny claims were not in line with standard medical practice. The plaintiffs allege that UBH guidelines required claimants to receive a lower level of medical care than should have been given to them considering their medical conditions. 

Read more here at California Labor Law News: click for article

What is a Life Waiver of Premium benefit?

A "Life Waiver of Premium" benefit - also called an "LWOP" benefit- is a provision that is commonly included in life insurance policies which waives the premiums normally required to maintain life insurance coverage for insureds who are disabled.

This benefit is extremely important to a disabled person because often based on her medical history, she will be unable to obtain life insurance coverage elsewhere in the free market. She also may not be able to return to work and obtain group term life insurance coverage through an employer.

Each life insurance policy that has an LWOP benefit will define "disabled". The insured needs to meet this definition to qualify to have her life insurance premiums waived. Usually the standard for being disabled is very high - for example, being unable to work in any job for any wages.

If you make a claim for LWOP benefits and the claim is denied, or if you were receiving an LWOP benefit and your benefit is terminated, if your claim is governed by ERISA you have the right to appeal that decision. Even if your claim is not governed by ERISA, your life insurance contract may allow you to appeal that decision to the insurer. You may want to hire an attorney to help with that appeal.

Contact the Law Office of Katherine L. MacKinnon for more information!

NY Times Article: Spouse's Consent is Required to Change Retirement Account Beneficiary

This article in the New York Times addresses the requirement that a spouse be informed of a change in beneficiary and consent to that change:

"WHY does a married person who has certain kinds of retirement accounts have to get his or her spouse’s permission to change the beneficiary of those accounts?

And why does a married person who is about to start receiving a pension have to get spousal permission to select a payment option that will not give the spouse at least half of those benefits for life if the pensioner dies first?

The short answer to both questions is, because the law says so. A longer answer came when President Ronald Reagan signed that law, the Retirement Equity Act of 1984.

“No longer will one member of a married couple be able to sign away survivor benefits for the other,” Mr. Reagan said, explaining that “a spouse’s written consent now will be required on any decision not to provide survivors’ protection.”

Check out the whole article here

Kate and Sarah honored as Volunteer Attorneys of the Year by Cancer Legal Line

Kate and I are proud to be honored by the Cancer Legal Line as Volunteer Attorneys of the Year. The Cancer Legal Line does a wonderful job providing legal advice to cancer patients, survivors, and their families. Check our Cancer Legal Line here.

Kate presenting - "Effect of New Administration"

Kate is presenting today on a webcast for Minnesota CLE on the "Effect of the New Administration" specifically on the U.S. Supreme Court. Catch it here if you missed it!

Assumptions, Calculations, and Formulas: Are My Benefit Payments Being Calculated Correctly?

            The letter finally arrived from the insurance company letting you know you will begin receiving monthly disability benefit payments.  A week or so later, a check arrives in the mail.  The check is in an amount less than your normal paycheck.  You knew disability benefits were only a percentage of your pre-disability income, so this is not surprising.  You deposit the check, assuming the insurance company has correctly calculated what you are entitled to receive.  Should you be doing more to check the amount of the payment?

            How the insurance company or plan administrator interprets your disability insurance policy or plan to create a formula to calculate your monthly benefit amount can make a significant difference in the amount of benefits you will receive.  The inputs that determine your monthly benefit are generally: your pre-disability income, the benefit percentage, and your offsets.  But the insurance company decides, based on the language in your policy, what is considered pre-disability income and what is an offset.  Moreover, the insurance company/plan administrator decides how these calculations are done and in what order.

            What is the benefit percentage?  Most policies and plans provide for a disability benefit payment that is a percentage of pre-disability income.  What percentage is used depends on the policy/plan language and what elections you made at the time you enrolled in the plan or signed up for the insurance.  Always double-check that the insurer is applying the correct percentage.  For example, if your policy provides a basic benefit of 50% and an optional additional benefit of 65%, make sure that you get paid based on the higher percentage if you elected it and paid premiums for it.

            What is “pre-disability income”? The next step is to define your pre-disability income because the benefit is going to be a percentage of that amount.  

For many people, calculating pre-disability income is simple.  It is the employee’s hourly wage or annual salary.  But for some people, how to calculate pre-disability income is less clear.  For example, with a salesperson, are his/her commissions “income” or is “income” only the hourly base wage?  Likewise, for a server in a restaurant, are tips “income?”  What about a doctor who teaches a class in addition to his/her clinical practice, is the money gained from teaching used to calculate “income?”  What about bonuses?  Whether or not these things are considered as part of pre-disability income could dramatically impact the amount of disability benefits.

What are “offsets”? Disability benefit payments will usually be reduced by income the individual receives from other sources while disabled.  Common examples of this would be Social Security Disability Insurance benefits received by the individual or his/her dependents, disability benefits from individual policies, or pension benefits.  

Your disability policy defines what income sources are considered “offsets,” and whether the amount you receive will be reduced by these “offsets.”  Sometimes it is unclear whether something you have received will be considered an offset.  For example, if you were disabled because of a car accident and you received money from a lawsuit based on the car accident, is that money an offset to your disability benefit payments?  What if you had to pay an attorney to represent you in the lawsuit, will your disability benefit only be offset by the amount you actually received from the lawsuit or will the attorney’s fee also be an offset?

The order of operations is important. The “order of operations” – the order in which these calculations are done-- also impacts your benefit amount.  For example, if your policy increases your monthly benefit over time to account for inflation (a cost of living adjustment), is that adjustment applied to your gross benefit (before offsets are applied) or to your net benefit (after offsets are deducted)?  Over time, this can cause a dramatic difference in the amount of your monthly disability benefit.

The point is… These are some decisions that are made by the insurance company, based on the language in the policy, as to how your monthly benefit is calculated.  When you begin receiving benefits, if you have any questions about how your benefit was calculated you can ask the insurance company for an explanation of how it calculated your monthly benefit amount.  If you disagree with how the benefit was calculated, you may be able to appeal to the insurance company and explain why your benefit should be calculated differently.  If you do not raise a concern about how your benefit was calculated when you first begin receiving benefits, you might waive this objection and be prevented from disputing the calculations at a later date. 

Contact an attorney specializing in employee benefits and ERISA law if you have questions about whether your benefit was calculated correctly based on the language in your policy. 

Open House Success!

The Law Office of Katherine L. MacKinnon has been open for 20 years. We thought this deserved a celebration! Thank you to everyone who was able to attend - we had a lovely time showing off our new office space and celebrating 20 years of serving clients.

Office is Moving!

Our office has moved to St. Paul in the Midway area. Our new address is:

2356 University Ave. West #230
St. Paul, MN 55114

We are keeping our same phone number (952-915-9215). Give us a call to schedule an appointment!

Life insurance beneficiary forms - common mistakes

Filling out the beneficiary form for your life insurance can be more tricky than you think. There are several common mistakes, including:

• Naming a minor child without designating how the money should be distributed. Money cannot be given directly to a minor child. It needs to be placed in a trust account or special account for minors such as an UTMA or UGMA account.

• Forgetting to update the beneficiary form. An insurance policy is a contract, and the money will generally be distributed how your beneficiary form says it should be done. If you have your wife as your beneficiary, and get divorced but forget to change the beneficiary designation, usually the proceeds will go to your ex-wife.

• Only naming one beneficiary. If you only name one beneficiary, and that person predeceases you, there will be no beneficiary. Make sure to name at least one secondary beneficiary.

The problems caused by a mistake on a beneficiary form will not impact you, but will greatly impact those you love.

Check out more tips in this article.

We advise both insureds and beneficiaries who have questions or problems with life insurance. Contact our office if you would like more information.  

Star Tribune Article on Disabled Adults

 As attorneys who represent persons with varying disabilities, a recent article in the Star Tribune discussing the menial jobs given to people with disabilities was heartbreaking. The article talks about "sheltered workshops", where workers are paid wages for below the minimum wage and given tasks that are menial and unrewarding.

"Many states, inspired by a new civil rights movement to integrate the disabled into mainstream life, are shuttering places like this. Not Minnesota. It still subsidizes nearly 300 sheltered workshops and is now among the most segregated states in the nation for working people with intellectual disabilities.

The workshops are part of a larger patchwork of state policies that are stranding legions of disabled Minnesotans on grim margins of society. More than a decade after the U.S. Supreme Court ruled that Americans with disabilities have a right to live in the mainstream, many disabled Minnesotans and their families say they still feel forsaken — mired in profoundly isolating and sometimes dangerous environments they didn’t choose and can’t escape."

Full article: click here

Hopefully the attention given to this issue will inspire some changes in how Minnesota views its responsibilities to the disabled adult residents of our state.

Kate talks Obergefell and same-sex marriage

Kate recently had the opportunity to speak at Minnesota CLE about the recent decision in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584, 192 L.Ed. 2d 609 (6/26/15).

In the ground-breaking decision, Justice Anthony Kennedy, writing for the Court’s majority, held that the Due Process and Equal Protection Clauses afford same-sex couples the fundamental right to marry in all states. Additionally, the Supreme Court majority held that the same constitutional protections require a state to recognize a same-sex marriage lawfully licensed by and performed in another state.

Kate discussed the reasoning behind the decision and its implications on other areas of law such as employee benefits and religious expression.

You can see the telecast of the live CLE on September 3, 2015. For more information go to: Minnesota CLE video replay   

ERISA is a current hot topic in the federal courts!

There has been a considerable amount of interest recently in ERISA at all levels of the federal courts. Having a lawyer who understands and can navigate this complicated and changing area is critical to whether your case will be successful.

This article discusses why a business should hire experienced ERISA lawyers:

Top 10 reasons to have an ERISA litigator on speed dial

Although we represent claimants, the reasons behind hiring a lawyer who understands ERISA are still on point. It is exciting to hear that ERISA is such a hot topic!

 

Kate and Sarah are North Star Lawyers!

Kate and Sarah were recognized as North Star Lawyers for providing pro bono service to those in need of legal service but unable to afford it. Here we are holding the announcement in the Star Tribune:

FAQ: When should I get an attorney involved in my disability/life insurance/pension issue?

                There are three common times when you should think about involving an attorney in your ERISA employee benefits dispute or claim: (1) when submitting an application for benefits, (2) after the denial of benefits, and (3) at the commencement of litigation. Here is why you might choose to retain an attorney at any one of these times.

                You might decide to hire an attorney to submit your application or claim for benefits. This is a good strategy if you have a complicated situation or issue that may affect your application. One example might be if you are applying for long-term disability benefits after being terminated from employment or quitting from your job. Another example might be if your disabling condition is complicated your application for disability benefits may require some explanation as to why you can no longer perform you job. Applications are time consuming and complicated, so sometimes people hire an attorney to handle the application because he or she does not have the time or energy to devote to making sure the insurer receives all the information necessary. As long as your benefit plan is governed by ERISA, you will be allowed a chance to appeal any decision made by the plan administrator that is adverse to you, so many claimants choose to apply for benefits on their own and then hire an attorney only if they are denied.

                The most common time individuals hire an attorney is after he or she has had a pension, life insurance, or disability benefit denied. The attorney can then submit an administrative appeal for the claimant. An administrative appeal is a written appeal to the plan administrator explaining why the decision to deny benefits was wrong, and submitting any new evidence in support of the claim. An administrative appeal is VERY important, because once it is submitted you are frequently no longer allowed to submit any new evidence to support your claim to the insurer. Generally, it is best to consult an attorney when submitting your administrative appeal, so you can be sure the evidence in the administrative record (everything submitted to the plan administrator by you, and everything the plan administrator gathers or creates on its own in regards to your claim) is as complete as possible so the insurer can make a full and fair review of your claim for benefits.

                Once you have completed all your administrative appeals, the only option to pursue your case further is usually to bring a lawsuit in federal court. At this phase, you should almost always hire an attorney to represent you in your case. ERISA cases have complex legal issues like how much deference should be given to the insurer’s decision. It is best to have good legal representation once litigation begins.

Article about Kate in Minnesota Lawyer

From the article in Minnesota Lawyer about Kate:

“'Kate MacKinnon has been a solo or very small firm lawyer for many years, a group that deserves more recognition in the legal community generally,' said Hennepin County District Court Judge Mary Vasaly, who nominated MacKinnon for Attorney of the Year.  “In the many years she (MacKinnon) has practiced in this community she has demonstrated her excellence and professionalism. She focuses on ERISA and appeals, two very difficult areas, particularly for a solo practitioner.”

"One of MacKinnon’s recent significant legal victories was a landmark reversal in an insurance coverage case. In Jacky L. Larson v. The Northwestern Mutual Life Insurance Co., the Minnesota Supreme Court ruled that the insurer acted improperly when it refused to pay the death benefit for an insured.  The court said the rescission of an insurance policy 'requires proof of the insured’s subjective intent to deceive.'"

"MacKinnon said she loves being a lawyer because of the intellectual problems she gets to handle. “It is fascinating and interesting. It is never dull.'"

Read more about Kate's 2014 Attorney of the Year Award in Minnesota Lawyer here: http://minnlawyer.com/2015/02/20/attorneys-of-the-year-katherine-l-mackinnon/

Attorney of the Year Ceremony

Kate was recently recognized as an Attorney of the Year for 2014 by Minnesota Lawyer. Here are pictures of Kate receiving her award:

It was a lovely ceremony. The attorneys recognized had made incredible contributions. It was a great honor, and Kate was thrilled. Thank you to everyone who has reached out with to congratulate her!

Unemployment Compensation Appeal Argument

Here are pictures from Sarah Demers' argument at the Minnesota Court of Appeals today! The case was an appeal of a denial of unemployment compensation benefits.

Administrative Appeal Exhaustion

If the insurer makes an "adverse benefits determination" (meaning a decision that is in some way not favorable to you - such as terminating or denying your benefits claim), ERISA regulations require that you be allowed to submit an administrative appeal to the insurer. The administrative appeal must be submitted to the insurer within a time frame that is determined by the type of benefit for which you are making a claim, and should include all information you can gather in support of your claim. The administrative appeal is VERY important because once the insurer has received you appeal, there is no other chance to submit any new information. The insurer will decide whether to stand by or reverse its original decision based on what you have submitted. If the insurer decides to stand by its original decision to deny or terminate your benefits, your only recourse is usually to bring a case in federal court.


Sometimes people ask us why they should bother with submitting the administrative appeal. Maybe you are sure the insurer will deny the appeal anyway. Or maybe you are in a hurry - administrative appeals take time and money to prepare, and you may end having to bring a lawsuit in the end anyway. Why not bypass all that hassle and go right to court?


The answer is that ERISA requires you to do all required administrative appeals before bringing a lawsuit. If you initiate a lawsuit before completing the administrative appeals, your lawsuit will be dismissed without being heard. While there are a few exceptions to this rule, generally you must submit all required administrative appeal process before going to court.


If you have questions about administrative appeals, you can contact us at the Law Office of Katherine L. MacKinnon for a consultation on your case.

Katherine MacKinnon named an Attorney of the Year for 2014!

Kate was recently named an Attorney of the Year for 2014 by Minnesota Lawyer. This is a wonderful honor, and Kate is thrilled to be in the company of the other attorneys who have received this award.


Congratulations, Kate!


To read the entire article in Minnesota Lawyer about all the honorees, click here.