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Edward Comitz Named as an Arizona Business Leader in Healthcare Law

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Edward O. Comitz, the head of the healthcare and disability insurance law practice at the Scottsdale law firm of Comitz | Beethe, has been selected as an Arizona Business Leader in the area of Healthcare Law.  According to the editor in chief, Arizona Business Magazine made its final selections from a pool of over 5,000 of “the best and brightest Arizona business leaders in healthcare, real estate, construction, education, banking, financial services and law.  Over the course of more than two dozen meetings, that list of 5,000 leaders under consideration was pared down to about 500 names, which the selection panel considered to be the most influential leaders in their industries, broken down into categories.”

Other Arizona leaders named in 2015 include U.S. Senator John McCain, Phoenix Mayor Greg Stanton, and sports executive and former owner of the Phoenix Suns, Jerry Colangelo.


What to Do When Your
Disability Insurance Claim Is Denied

Disability Claim Denials, Disability Insurance Attorney, Disability Resources, ERISA, Filing Disability Claims | No Comments

claim denied man - black and white

A large part of our practice consists of helping physicians and dentists whose disability insurance claims have been denied or terminated.  When our clients come to us, we carefully analyze their medical records, the claim file, and the law to craft a specific strategy for getting the insurer to reverse its adverse determination.  Unfortunately, we sometimes find that in between receiving notice that their claim has been denied or terminated and getting in touch with our firm, doctors will inadvertently take actions that prejudice their claims.  With that in mind, it’s important to review what to do and what not to do in the first few days after your claim is denied or terminated.

  1. In all likelihood, you will first find out that your insurer is denying or ending your disability benefits via a telephone call from the claims consultant who analyzed your claim.  As we’ve explained before, the consultant will be taking detailed notes about anything you say during that call.  Therefore, even if you are justifiably upset or angry, be very mindful of what you say.  Anything you tell the consultant will certainly be written down and saved in your file.
  2. During the call with your consultant, make your own notes.  You don’t have to ask a lot of questions at this stage, but you do want to make sure to record whatever information the consultant gives you.
  3. Following the phone call, you should receive a letter from the insurance company stating that it has denied your claim or discontinued your benefit payments.  According to most state and federal law, the letter should have a detailed explanation of the evidence the company reviewed and why the insurer thinks that evidence shows you aren’t entitled to benefits.  When you receive the letter, read through it carefully.  Make notes on a separate document about any inaccuracies you identify.
  4. Make sure you keep a copy of the denial or termination letter as well as the envelope it came in.  You should also make a note of the date on which you received the letter.  The date the letter was actually mailed and received could be important to your legal rights in the future.  Then, the best thing to do is to scan the documents electronically or make a photocopy for your file, just in case the original denial letter gets lost or damaged.
  5. Once you find out that your claim has been denied or terminated, you should contact a disability insurance attorney.  Some doctors and dentists attempt to handle an appeal of their claim on their own, but we strongly suggest at least consulting with a law firm.  Every insurance  company has its own team of highly-trained claims analysts, in-house doctors, and specialized insurance lawyers to help it support the denial of your claim.  Having your own counsel can level the playing field by making sure you know your rights under your policy and what leverage the applicable law provides you, and help you avoid the common traps that insurance companies lay for claimants on appeal.
  6. The lawyer you consult can be in your area, or it can be a firm with a national practice that’s physically located in another state.  You may want to review these questions to ask potential attorneys before you decide who you would like to represent you.
  7. Whatever attorney you choose to contact, make sure you do so as soon as possible.  In many circumstances, you will only have a limited amount of time to appeal the insurance company’s decision.  Particularly in claims governed by the federal law ERISA, the clock starts ticking as soon as you find out your claim has been denied or terminated.
  8. It’s usually best to contact an attorney before you respond to the denial letter, to avoid saying anything that could prejudice your appeal.  For instance, if you have a policy that is governed by ERISA, and you submit some additional information, the insurance company may not allow you to submit any additional information after your initial response.
  9. Before you meet with potential disability insurance lawyers, gather whatever documents you can to help them evaluate what’s going on with your claim.  Our firm will always want to review the insurance policy or policies.  (Here’s information on how to get a copy of your policy). We typically also like to see your relevant medical records and any correspondence between you and your insurance company.  If you aren’t able to locate this information, it could cause delays in starting the appeal process.
  10. If you are a physician or dentist that is totally disabled, you should not try to go back to work just because your insurance company thinks you don’t qualify for benefits.  Trying to practice when you aren’t in a physical or mental condition to do so could cause you to re-injure yourself or accidentally harm your patients.  Of course, trying to work on patients after you’ve claimed that you are totally disabled can expose you to professional liability as well.  Further, trying to return to work could impair your ability to collect your benefits upon appeal.

Field Interviews: What to Expect After the Interview Ends

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We’ve discussed why an insurer might want to schedule a field interview and what to expect before and during the interview itself.  Now we review what claimants can expect can expect after the interview ends.  Again, the process is usually different depending on whether not a disability insurance attorney is involved.

After the Field Interview

After your interview ends, the field representative will leave to do some additional reconnaissance.  Without telling you, the representative may drive to your office to talk to people on your staff.  He or she will see what the office looks like, if it’s busy, and whether your name is still listed on the door.  If you have an attorney, the attorney will have discussed this with you ahead of time, and together you will have taken steps to make sure the representative doesn’t bother your staff or catch them off guard.

Some days after the field interview, the representative will send you a copy of his or her report, which purports to summarize your conversation.  The report will ordinarily be 8 to 10 pages or more.  He or she will ask you to review the report, make any changes you see fit, and return it.  The representative will advise that if you don’t make any changes by a certain date, he or she will assume that everything in the report is accurate.

For claimants with legal representation, the report will be sent to your attorney’s office. Your attorney will review the report to make sure that it accurately reflects the facts of your claim.  He or she should be able to correct any seemingly harmless statements that a claims adjuster may take out of context to support denying or terminating your claim.  If any important information is missing, your attorney will make sure to include it along with the report.

Meanwhile, the field representative will usually send a separate report to the insurance company.  This second report will have the representative’s personal observations about you, their conversations with your staff, and any other information he or she was able to gather about your outside of the interview.  You will not be provided with a copy of this report unless you’re able to obtain the claim file after your claim has been terminated or denied.  If you have an attorney, this second report will be much more limited, as the representative will not have had the opportunity to visit your home or to pry into irrelevant or confidential information.  If your claim is denied or terminated, your attorney will obtain and review this report for any inaccuracies or misstatements.

A field interview can be intimidating, but knowing why the interview is being conducted and what to expect during the process can make you better prepared to handle it in a way that doesn’t prejudice your claim.  If you have questions or concerns about a field visit, contact a disability insurance lawyer right away.


Field Interviews: What to Expect Before and During the Interview

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Our last post discussed why an insurance company might want to conduct a field visit or field interview.  Now that you know what the insurer is trying to accomplish, we’ll discuss what exactly to expect before the interview, during the interview, and afterwards.  As with many aspects of the claims process, the field interview will be different depending on whether or not you have a disability insurance attorney involved.  First, what to expect before and during the interview:

Setting Up the Field Interview

Initially, the field representative will call or e-mail you personally to set up a time to meet.  He or she will ask to come to your home, or sometimes your office (particularly if you have been practicing as a dentist or physician), and talk one-on-one. If you’re being represented by a disability insurance lawyer, the field representative will call or write a letter to the lawyer’s office to request a field interview.  Your attorney will evaluate whether the in-person interview is necessary and appropriate under the terms of your policy and your particular claim situation.  If so, your attorney will likely ask the field interviewer to meet at the attorney’s office, rather than in your home or office.  Your attorney, and sometimes an assistant as well, will attend the interview.  The attorney and/or his or her assistant will take careful notes of the entire conversation.

During the Field Interview

When the representative arrives, he or she may ask to take your photograph.  The representative may also ask to audio-record your conversation.  If an attorney is present, the representative will usually refrain from asking to take a photograph or audio-record the conversation, knowing that your legal counsel will likely determine it unnecessary and/or inappropriate.

The field representative will sit down and talk with you for an hour or more.  He or she will have an extensive list of questions to ask you, most of which your claims analyst will have specifically requested the representative address. For those with legal representation, your attorney will have prepared you for each of the questions the representative will ask, so you’ll be ready to give accurate and well-considered answers.

During your conversation, the representative will be very warm and friendly.  The representative will normally try to establish a rapport so that you’ll relax and talk openly.  He or she will try to get you to talk without thinking, encourage you to go into unnecessary detail, and may ask personal questions that a claims adjuster would normally avoid.

The representative often acts somewhat more reserved when an attorney is present.  Field representatives know that if they ask any questions that are irrelevant, seek confidential information, or are otherwise inappropriate, your attorney will intervene and let you and the representative know that you don’t need to answer the question.

While you’re talking, the field interviewer will take copious notes.  These notes will include the interviewer’s own observations about your appearance, how well you move, how long you were able to sit or stand, what your house looks like (if in your home), and whether you seem nervous or not.  If your attorney attends, the representative will know that his or her notes will be compared against the attorney’s, so he or she will be especially careful to document the circumstances accurately.

In our next post, we’ll talk about what happens after the field interview ends.


Why Does My Insurer Want to Conduct a Field Interview?

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At some point after you’ve filed a disability insurance claim, your carrier may contact you to arrange a “field interview.”  Also called a “field visit,” a field interview is when a disability insurer hires a representative to come meet with you face-to-face to talk about your benefit claim.  Most times, the company will ask that you meet the field representative at your own home or office.

Your claims analyst will probably tell you that the field interview is just a way to get to know you better, or to help the company gain a better understanding of your claim.  What the claims analyst won’t tell you are the real reasons why insurance companies put so much time and effort into planning in-person field interviews, such as:

  • To take your picture so that a private investigator will recognize you during surveillance.
  • To find out what your house and/or office looks like to further aid in surveillance.
  • To look inside your house and see if you’ve been doing a lot of housework, paperwork, cooking for yourself, etc., all of which (according to the insurance company) can mean you’re able to work in your own occupation.
  • To see if you look like you’re in pain, if you can sit down for a long period of time, or if you can walk without any gait abnormalities.
  • To see if you look like you might have current monthly income from sources other than your occupation (i.e., if you have a nice car, a big house, a boat, etc.).
  • To drop in and try to interview your spouse, former business partners, office manager, or neighbors.
  • To try and get you to relax and open up, or to catch you off guard so that you give information the company can use against you.

In our next post, we’ll discuss what you can expect during the field interview itself.


Why Won’t My Doctor Help With My Disability Insurance Claim?

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We frequently discuss how important it is for your treating doctor to support your disability insurance claim.  Oftentimes, though, doctors are reluctant to help with the process.  Understanding why your provider is hesitant to get involved can better equip you to enlist his or her support.

In our experience, these are the most common reasons why treatment providers decline to assist with disability insurance claims:

They don’t have time.  Doctors have extremely busy schedules.  Often, they’re concerned that they simply don’t have enough time to properly complete all of the insurance company’s required forms or to answer questions from your claims adjuster.

They are worried about the insurance company harassing them.  Many healthcare providers know how complex and combative disability insurance claims can be.  Sometimes, providers don’t want to get involved with a claim at all, because they’ve heard of (or experienced) claims personnel harassing treating doctors.  This can be a legitimate concern, as left unchecked, insurance companies will often bother treating doctors with repetitive requests for information, pushy phone calls, or by second-guessing the doctors’ treatment plan.

They are worried about doing something to hurt your claim.  On the other hand, many providers aren’t familiar with the private disability insurance claims process at all.  This sometimes makes providers hesitant to complete Attending Physician’s Statements or to discuss your claim with an adjuster for fear that they will inadvertently say something that prejudices you.

They don’t know the definition of disability in your policy.  Not every treatment provider is familiar with the type of own-occupation policy that many physicians, dentists, and other professionals purchase.  When some providers hear the word “disability,” they think of a state of total helplessness, or of the much more stringent Social Security definition of “disability.”  If a provider doesn’t know that your policy deems you “disabled” if your condition prevents you from performing the duties of your own job, he or she might think you don’t qualify for benefits.

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Understanding Residual Disability Benefits: Are They Worth The Cost? Part 3 – Current Monthly Income

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In our previous posts, we identified the basic formula disability insurers use to calculate residual (partial) disability benefits and discussed variations in how disability insurers calculate Prior Monthly Income.  Now, we will examine the other principal component in calculating a residual disability benefit: Current Monthly Income.

Current Monthly Income is the calculation of how much a doctor is earning now, versus how much he was earning prior to his disability.  Although this sounds like a simple concept, calculating Current Monthly Income can be challenging in the healthcare industry.  Many physicians and dentists own their own practices or are a partner in a practice group.  Their income is not only based on their productivity, but also includes a passive component from the other business activities of the practice.  For example, a dentist may employ one or more hygienists or associate dentists who generate additional revenue.  When a doctor becomes disabled, the practice revenue may remain relatively constant as associates increase their production to account for the doctor’s reduced schedule.

Some insurers take advantage of this by calculating Current Monthly Income not on the doctor’s production, but rather on the practice’s revenue.  This fails to take into account the true financial impact of a disability because, while revenue may remain high, expenses increase as associate doctors and hygienists work more (and earn more) to fill in for the disabled doctor.

Additionally, many doctors pay themselves based on a percentage of their own production, in addition to the income they earn as practice owners.  When a doctor becomes partially disabled, his income from working in the practice will drop, even if the practice’s overall profitability does not.  Depending on the language in a particular policy, the policy may not take into account the drop in production, and the doctor may not be able to recover the full loss caused by his disability.

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Electronic Medical Records: What You Don’t Tell Your Doctor Might Hurt Your Disability Claim

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Over the last ten years, there has been an increasing movement away from paper records and toward Electronic Medical Records (EMR).  This move has been accelerated by the federal government’s mandate that doctors who treat Medicare and Medicaid patients must have adopted and implemented EMR systems as of January 1, 2014.

There are many benefits to using EMR.  They can facilitate patient care between referring doctors, improve data tracking over time, increase efficiency and reduce errors.  However, EMR systems have drawbacks when they are used for purposes never intended, such as to document a disability claim.

Many EMR systems allow the doctor to input his findings for every major system in the human body, such as the cardiovascular, musculoskeletal, gastrointestinal, neurological and psychiatric systems.  However, if the doctor does not put in something regarding one of the symptoms, the default setting on the EMR will report the system as being “within normal limits” or that the patient has “no complaints.”  The concern with this from a disability perspective occurs when a patient sees his doctor for a condition unrelated to his disability.

For example, a patient with a history of degenerative disc disease could visit his doctor for an unrelated infection or illness.  Since the doctor is conducting only a limited examination for purposes of treating the presenting illness, he may not input any information related to the patient’s disabling condition.  The EMR will then generate an inaccurate record stating that the patient’s musculoskeletal system and neurological system are within normal limits.

Disability insurance carriers can then use these default settings to their own advantage to raise questions about the severity of the claimed disability, justify an independent medical examination or functional capacity evaluation, or support a claim termination.  For patients who are receiving disability benefits, it is therefore important to know what their medical records look like and to effectively communicate with their physicians to ensure that their conditions and symptoms are accurately recorded on each visit.


Beware the “Offset”

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Insureds may think that if their claim is approved and the insurer begins paying benefits, they have won the battle. In reality, however, even the insurer’s complete admission that the insured is disabled within the terms of the policy does not mean that the insurer will pay the full monthly benefit listed in the policy. Most of us think of disability insurance as providing a stream of income to replace lost salary, but few understand that these policies often contain language effectively cutting off other benefits to which the insured would otherwise be entitled.

Disability insurance policies, especially long-term disability policies, frequently contain “offset” provisions, which offset other benefits against the insurer’s monthly payments. Common offsets include benefits which the insured receives from Social Security disability or retirement, unemployment compensation, worker’s compensation, no-fault auto insurance, sick leave, severance pay, and others. The net effect of these offsets is that should the insured receive a benefit from another source, the disability insurance company will reduce its monthly payment by the same amount.

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How Can I Keep My Disability Insurance Company From Contacting My Doctors Without My Consent?

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In our recent post, “Should Disability Insurance Companies Be Deciding What Kind of Care You Receive?” we explained that insurance companies will often contact your treatment providers directly without your consent, ambushing them with medical studies and demanding answers to a plethora of questions about your medical treatment in an effort to undermine your disability claim.  In many instances, insurance companies will refuse to produce the medical reports their in-house doctors wrote about you, but still expect full access to your treatment providers and their reports.

If this happens to you, you may (justifiably) feel like the insurance company is going behind your back and unfairly manipulating the claims process.  Your treatment providers may become upset because the insurance company is harassing them to respond to detailed questions without adequate time to understand the questions and/or provide thorough answers.  You may even notice your doctors acting differently towards you after speaking with the insurance company.  For example, your doctor might begin to avoid you when you ask him or her to provide you with documentation to support your claim.

How can you protect your treatment providers from being ambushed by insurance companies and protect your claim from being manipulated?

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