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Disability Retirement

Many plans permit you to elect disability retirement benefits if you become disabled and meet certain minimum eligibility requirements (e.g. 10 years of service). These plans typically calculate your pension under a formula which assumes that you retired at the plan’s early retirement date or normal retirement date. If you are younger than the early or normal retirement age under the plan, you therefore can receive your pension with little or no reduction for the fact that you are receiving it early.

Please note that these plans may have a different definition of total disability than both your long term disability policy and Social Security. Check the terms of your plan and SPD to see if you are eligible. A NY disability lawyer in our office will be able to help you decipher the myriad requirements that you must meet in terms of this definition.

What rights do I have to continue my health insurance?

If you work for a company with more than 20 employees, you will be eligible for COBRA continuation coverage in the event that you must leave your job. COBRA is the acronym for the Federal law passed in 1986 giving you the right to continue your health coverage when you lose your health coverage because of a “Qualifying Event.” Qualifying events include termination of employment and reduction in hours. Any NY disability lawyer will tell you that COBRA is an essential piece of the insurance puzzle.

Under COBRA, an individual who suffers a termination of employment is entitled to continued coverage for 18 months. In the event that such an individual is determined to be disabled under the Social Security Act, the continuation health coverage is for 29 months. Your health insurance company will be able to tell you your specific health coverage.

When you terminate employment, your employer is required to furnish you with a COBRA notice. The notice must inform you of your rights under COBRA and specify the monthly cost of your coverage. Under COBRA, the premium cost of the coverage is yours, even if your employer paid your premium while you were employed. The employer may in fact charge you an additional 2% over your premium charge to cover their administrative expenses.

When you receive your COBRA notice you must act quickly to retain your health coverage. COBRA gives you up to 60 days after you receive the notice to elect health coverage. If you fail to timely elect coverage, you will lose your right to coverage. Read your notice carefully and make sure that you comply with all time requirements.

In the event your employer had less than 20 employees, you are not entitled to COBRA continuation coverage. You may, however, be entitled to similar coverage under state law. Many states offer this type of continuation health coverage. It is usually described in the policy.

Check your policy. After COBRA continuation coverage ends, in many states you are able to convert your policy into an individual policy. These requirements are usually described in the policy. Check your policy. Please note that under a conversion policy the insurer is not necessarily required to charge the same premium.

What do I do if my employer does not send me a COBRA notice?

Despite the fact that COBRA has been the law for over 10 years many employers still fail to furnish COBRA notices to help employees continue their health coverage. If you terminate employment and do not promptly receive a notice, write your employer a letter demanding a notice. This letter should be sent certified mail, return receipt requested, and should be addressed to the administrator of the medical plan. If a notice is not sent, the employer could be subject to statutory penalties of up to $110 per day and could be liable for your otherwise covered medical expenses.

Can an insurer exclude my preexisting conditions?

Under a Federal law passed in 1997, no insurer or HMO may impose a preexisting condition limitation unless you had a break in coverage for 63 days or more. For instance, if you terminated health coverage under policy X as of June 30th, as long as you become covered under another policy within 63 days of such termination, the new policy cannot exclude any preexisting conditions.

For purposes of this new law, coverage under COBRA counts as continuous coverage. Therefore, you must obtain new health coverage within 63 days after the end of your COBRA continuation coverage. If you do not, a new policy can exclude preexisting conditions. Under the law, your insurer is required to give you a certificate which verifies that you were covered under their policy. This must be provided to you when your health coverage under the policy ceases.

In the event that you do have a break in health coverage, there are limitations on the nature of preexisting condition provisions. These provisions may only exclude a condition for a period of not more than 12 months. In addition, they can only exclude conditions for which medical advice, diagnosis, care, or treatment was recommended or received within the 6-month period prior to your enrollment in the new policy.

Can I sue the insurer when I receive a denial or must I exhaust the administration remedies offered by the plan or insurance company?

All disability plans obtained through your employer maintain an appeal procedure. It is required by law under ERISA. Before you can sue for disability benefits you must exhaust these internal administrative appeals. These appeals are very important. Not only is there a chance that the plan or insurance company will reverse the denial, the appeal presents a valuable opportunity to create a strong case should a lawsuit be necessary. The opposite is also true. If you do not create a good record during this process, you doom yourself to failure in any future lawsuit. It is therefore highly recommended that you seek professional help at this stage. A NY disability lawyer will be able to help guide you through the legal methods necessary to create a good record.

What are my rights during the administrative process?

Any NY disability lawyer should tell you that under ERISA you are entitled to a full and fair review of your claim. When benefits are denied, you must be told in writing:

(i) the specific reason for the denial; (ii) the plan provision(s) on which the denial is based; (iii) any additional material and information that is needed before the insurer will pay the claim and an explanation of why this is needed; (iv) the plan’s review procedures and the time limits applicable for such procedures; and (v) any specific rule, guideline, protocol, or similar criteria relied upon in making the determination (a copy should be provided to you free of charge upon request).

If your denial letter fails to tell you about any of these items, your rights are being violated.

What initial steps should I take if I receive a denial of benefits?

The first step you should take is to read your denial letter and determine whether it satisfies the above requirements. If it does not, a letter should be sent to the plan or insurance company complaining of the deficiency. You should also note the date that an appeal must be sent to them (usually within 180 days). Because many courts enforce these deadlines, you must be very careful to submit a timely appeal. A NY disability lawyer will explain that any delay in submitting these appeals could jeopardize your ability to obtain benefits.

If the denial letter specifies that your records were reviewed by a specific doctor on behalf of the plan or insurance company, you should include in your letter a demand for that doctor’s report and any other information that they relied on in denying your benefits, including any rule, guideline or protocol. In addition, if you have not already done so, you should also request copies of the Plan and/or policy.

Very early on you should also show the denial letter to your doctor. It is important that your doctor prepare a report addressing every concern raised by the Plan in your denial letter. Because doctors are very busy, often the best way to do this is to bring the letter with you during your next appointment. Have your doctor dictate a response at that visit.

Another helpful step is to gather all medical evidence that supports your claim and addresses the concerns raised in the denial letter. Sometimes this will include your doctor’s office visit notes or other medical records. It may also be helpful to gather professional literature that supports your case.

What are common reasons given for denials?

Among the many reasons that insurers give for denying disability insurance, the following are fairly common.

There is no objective evidence in support of total disability.

This is a reason that is very common for disabilities caused by chronic fatigue syndrome, depression, soft tissue injuries and the like. If your denial letter says this, you should check the language of your policy or plan. If the plan does not specifically require objective evidence in support of disability, some courts have ruled that this is not a sufficient reason for approving disability insurance.

In any event, you should make sure that your doctor’s letter does describe any objective evidence establishing your disability. Disability insurance wants to see such objective evidence from a medical professional. At a minimum your doctor should render an opinion as to whether your symptoms are consistent with your diagnosis.

We have spoken with your doctor and he agrees with us.

Many insurers send out letters saying that they have spoken with your doctor and that he or she agrees with us. If your disability insurance denial letter says this, check with your doctor. In many cases it is just not true. If your doctor never said what they said, have your doctor write a letter correcting the record.

Your job was sedentary and you are not disabled from performing sedentary work.

This is a common reason for disability insurance denial when the reason for disability is fatigue and/or pain. It is hard to quantify fatigue and pain. The insurers take the position that your job does not involve a lot of physical activity so that you can still do it despite your fatigue and pain. If this is the denial you receive, it would be very helpful if you could obtain a letter from your doctor opining that you cannot work even in a sedentary position. You may also want to obtain a description of your job’s duties from your employer. This could help demonstrate that your job was not sedentary or caused significant stress.

We had your records reviewed by Doctor X. Dr. X says you are not disabled.

If you receive this type of disability insurance denial it is important to request a copy of the report of Dr. X. Once you receive it, you should have your doctor write a report contesting its findings. One way to attack the report is to argue that your condition cannot be evaluated without a physical examination. This argument, of course, sets you up for an independent physical examination. Before making it, you have to assess the risks and benefits of such an examination.

You are no longer disabled.

All long term disability insurance plans and policies periodically review the cases of individuals currently receiving benefits. If you receive a denial which says you are no longer disabled, you have the right to appeal the denial just like you did at the initial application.

These discontinuations can often be attacked by demonstrating that your condition has not improved.

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