How to appeal a denial or discontinuation

• Author: Scott M. Riemer/Jennifer L. Hess
• Pages: 105-136

7-87

Chapter 7

HOW TO APPEAL A DENIAL

OR DISCONTINUATION

§7.0 INTRODUCTION

Despite your best eorts in ling a well-supported claim for your

client, the insurer nonetheless may deny the claim. At that point, an appeal

must be led with the insurance company’s appeal unit. You cannot at

this point start a lawsuit even though you suspect that the insurance com-

pany will deny the appeal. Courts require ERISA claimants to exhaust all

administrative remedies at the insurer, including internal appeals.

An appeal should be prepared as if you were preparing the case for

litigation. In other words, determine what you will need in the claim

le to prevail in litigation, and then submit it. Not only does this better

prepare the claim for a potential future litigation, but it makes it more

likely that the appeal will be granted. is will involve working directly

with your client’s physicians to submit written statements supporting

disability. is also will involve drafting supportive statements from the

claimant and the claimant’s friends, work colleagues, and family.

You also may need to send your client to specic experts for addi-

tional testing, such as neuropsychological evaluations, functional

capacity evaluations, and vocational evaluations. is new testing often is

essential to change the dynamic of the denial. An appeal unit is unlikely

to reverse a denial if the only documentation sent with an appeal is a

report from the treating doctor refuting the opinion of the insurance

company’s reviewing doctor. An appeal is much stronger when it contains

new testing that was not previously reviewed by the insurer.

Remember the appeal is your last opportunity to submit evidence

in support of your client’s claim. If you do not submit evidence during

§7.1 ERISA Disability Claims and Litigation 7-88

the administrative process, it is very unlikely a court will review it. If

you do not use it, you lose it. Conversely, you have no obligation to do

the insurance company’s job. If you send your client for testing and the

testing is not supportive, you have no obligation to submit it. is is

your opportunity to create the best record for your client.

§7.1 REQUEST MORE INFORMATION FROM THE INSURER

e rst step is to send a letter to the insurer announcing your rep-

resentation. With the letter, send an authorization for you to represent

the claimant in the appeal and an authorization for you to review the

claimant’s medical documentation under HIPAA. e letter also should:

(1) Instruct the insurer that all future communications should be

through you and not to the claimant;

(2) Revoke all previous authorizations regarding the claimant’s

health care providers to the extent they permit the insurer or its

representative to communicate in any fashion other than writing;

(3) Demand copies of the claim le, the insurance policy, the sum-

mary plan description, and any audio or video recordings;

(4) Request a statement under 29 C.F.R. §2560.503-1(g)(1)(iii) of

any additional material or information necessary for the claimant

to perfect her appeal and an explanation why such material or

information is necessary;

(5) Demand a fuller explanation of the reasons for denial as required

by 29 C.F.R. §2560.503-1(g)(1)(i); and

(6) Demand all electronically stored information regarding the client

and claim be preserved.

Once the claim le is requested, ERISA requires the insurer provide

it to you within 30 days. Do not be surprised if the claim le sent to you

contains hundreds of duplicates and looks shued. Also, do not be

surprised if the rst “claim le” sent to you is incomplete. e claim le

should include the following:

• Policy document(s);

• Treatment records;

• Requests for treatment records;

• Peer review reports;

7-89 How to Appeal a Denial or Discontinuation §7.2

• Requests for peer review reports;

• Vocational assessments;

• Video surveillance tapes and reports;

• Detailed insurer claim notes (sometimes referred to as SOAP

notes, “Subjective, Objective, Assessment, Plan”);

• Screen printouts of claim information.

If the le you receive does not contain all of this information, write a

second (or third) letter to the insurance company insisting it be provided.

Don’t forget to save a tree. Many insurance companies will send the

claim le on a disk if you request it. is also saves your sta from the

burden of scanning the le.

Forms & Samples: See the following in the Appendix:

 :    

 :    

 :   

§7.2 ADDRESS ALL INSURER CONCERNS

Denial letters are not always written in a logical and coherent manner.

Much time is spent quoting policy provisions and summarizing medical

records within the claim le. Much of the portion of the letter assessing

the claim is repetitive and unclear. Because it is important to address

every concern raised by the insurer in the denial, we recommend you

spend time highlighting and scoring the letter. Note each time the insurer

criticizes the claimant’s evidence. is could happen in both the portion

of the letter summarizing the evidence and the portion assessing the

claimant’s disability. You also need to note each time the insurer indi-

cates that certain evidence is missing. e end result should be a list of

these criticisms and/or missing evidence that need to be addressed in

the appeal.

e same also must be done with the claim le, particularly with

the SOAP notes, peer review reports, and vocational assessments. ese

documents often contain criticism of the claimant’s evidence not other-

wise specied in the denial letter. Although the insurer has a statutory

obligation to specify all reasons for denial in the denial letter itself, some

courts have relaxed this requirement when the reasons are specied in

the claim le and the claimant had access to the claim le.