How to appeal a denial or discontinuation

AuthorScott M. Riemer/Jennifer L. Hess
Chapter 7
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.
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:
 :    
 :    
 :   
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT