Disability Denial Attorneys Blog

Long-Term Disability - Social Security Disability - Veterans' Disability

What to Know about the ERISA Administrative Appeal Procedure

Published on July 18, 2014 by

Filing an ERISA claim and receiving benefits is not an overnight process, and the ERISA administrative appeal procedure alone can take up to a year. Here’s what anyone filing an ERISA claim should know about the administrative appeal process and the statute of limitations.

Under federal law, a claimant cannot bring a claim under judicial review until an internal review is carried out. This internal review, or presuit administrative appeals procedure, begins when a claimant submits their proof of loss. At that point, the Plan has a set amount of time to carry out an internal review before the claim is taken to a judicial court. How does this work?

  • The Plan has 45 days to make adverse benefit determination (i.e. to determine that benefits are not a medical necessity to the claimant or that the claimant is not eligible for benefits for any other reason).
  • The Plan may use two 30 day extensions based on elements outside of their control, such as a claimant’s failure to submit documents necessary to make a decision based on their claim.
  • The claimant must appeal a denial of their claim within 180 days of that denial.
  • The Plan has 45 days to resolve any appeal with one 45 day extension.

The Statute of Limitations for Civil Action

Claimants need to pay close attention to the timeline for filing a lawsuit, because the statute of limitations for civil actions in ERISA cases has recently changed. As I mentioned before, statute 502 (a)(1)(b) requires that a claimant exhaust the internal review process before bringing their case under judicial review. ERISA does not provide a statute of limitations for actions under 502 (a)(1)(b), but a specific ERISA plan may have a limitation provision that goes into effect as soon as an individual files their claim.

Previously, the Supreme Court has been divided on whether an ERISA plan limitation provision is enforceable during the internal review process. Since the internal review process can take a year or more, it may use up a substantial amount of the claimant’s limited time to file a lawsuit. In 2013, the Supreme Court resolved this issue by ruling that a three year contractual limitation on an ERISA plan is enforceable, and the three year statute of limitations is measured from the time an individual files their claim (including the internal review process).

Claimants who are worried that the Plan is dragging out the ERISA administrative appeal procedure or otherwise trying to stop them from filing a lawsuit within the three year period should meet with an experienced ERISA attorney as soon as possible or read our free eBook to learn more.

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Social Security Disability:Top Ten Facts

Published on May 28, 2014 by

Turn on the news any given day and you’re almost guaranteed to hear about how the government is dealing with some sort of crisis with the budget. Either there’s not enough money or we’re spending too much money or (far more likely in recent years) the two parties simply refuse to compromise to make anything happen. But what really bothers me is when they attack Social Security and Disability, saying that it needs to be completely overhauled or reformed or fear-mongering with tales of the program running out of money.

Want the truth? Well, as luck would have it the Center on Budget and Policy Priorities put together a list of the top ten facts about Social Security at the end of 2012 to clear up misinformation, and right now seems like a good time to bring them up again.

  1. Social Security helps more than just retirees. It’s a retirement program, life insurance policy, and disability insurance all rolled into one. Across the country, Social Security benefits help 56 million Americans – about one out of every six people.
  2. Social Security helps those who need it and keeps up with the times. If you make more, you’ll get more back in benefits, but those with lower wages get a higher percentage of their salary. Benefits also go up as the cost of living goes up.
  3. Social Security has a higher payout per dollar than private pensions. Why? Because it’s universal, which makes it incredibly simple to administer. Costs are less than 1 percent annually – way better than private annuities.
  4. Benefits are modest. Anyone complaining that people on Social Security get too much should do more research. Average annual benefits are $14,800, or 41 percent of what people earned while working.
  5. Social Security helps kids. Six million children live in families where at least one person receives Social Security benefits. In 2011, those benefits helped more than a million of them get above the poverty line.
  6. It keeps the elderly out of poverty. Without Social Security, almost half of the senior citizens in the US would be living in poverty.
  7. Social Security benefits are the majority of most elderly beneficiaries’ income. Two-thirds of seniors get the majority of their income from Social Security, and one third get 90% of their money from benefits.
  8. It helps minorities. Social Security benefits represent 90% of the income for 42% of Asian Americans, 49% of African Americans, and 55% of Hispanics.
  9. And women. Women make up 56% of beneficiaries over 62 and 67% age 85 and older.
  10. Social Security has plenty of money. Despite many fear-mongers arguing that Social Security will be out of money in 2016, the truth is that there’s money until 2033.

These are only the highlights of the facts. If you want to read the full paper, head here. You can also get an overview of the Social Security Disability process by reading our free eBook, and keep up with the latest changes in the law by following our blog.

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What to Do If You’re Told Your Disability Insurance Is ERISA

Published on May 23, 2014 by

There’s an unfortunate trend happening right now where companies that offer disability insurance are suddenly telling policyholders that their plan is governed by the Employees Retirement Income Security Act when they file a claim – even though this fact was never mentioned anywhere before then!

Why’s this going on? Because insurers know that they’re far more protected from legal liability under the Employee Retirement Act than they would be if the plan in question was independent. This has led them to attempt to retroactively alter plans so that they are covered under the federal rule, and sometimes even bend the truth or outright lie to people when they make a long term disability claim.

Luckily, there are ways that a policyholder can determine whether or not their plan really is under these far more insurer-friendly regulations, but you’re going to have to look into the matter yourself if you want to appeal a denial.

When Your Insurance Policy Isn’t an ERISA Policy

How can you prove that your policy isn’t what they say it is? Check the facts.

Was it sold to you as an individual policy? By definition, the Employee Retirement Income Security Act covers group policies. If you purchased your policy individually – even if an employer pays for it – that does not mean that it’s covered under the federal act.

Can you switch jobs and keep your insurance? If it’s possible for you to leave your current job and still maintain your current insurance policy, then there’s no way that it falls under federal regulations.

Are you the individual owner of a personal corporation? The Employee Retirement Act clearly doesn’t govern plans for these types of individuals, but that won’t stop insurers for trying to classify your policy in whatever way benefits them most.

Experienced disability attorneys can show you not only what to look for, but also how and where to find that information and what to do with it.

Check out our free disability eBook to learn more about different policies and how you can fight for the benefits that you need.

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Social Security Disability Claims: Factors in Winning or Losing

Published on May 21, 2014 by

If you’re thinking about applying for disability, you probably want to know about the kinds of things that might affect whether you win or lose your claim. Is there a certain time of year that’s better? Do people with your disability typically end up receiving benefits?

Well, recently the Social Security Advisory Board looked into a variety of factors to determine what influenced a claimant winning or losing their claim at the initial level. It didn’t go into the appeals process, so that’s a completely separate issue. What are these factors?

Most Important Factors in Deciding Claims at the Initial Level

Before we go into it, I should tell you that the data for this study comes from SSA records. I mention this because even the SSAB complained that it wasn’t very comprehensive and recommended several changes to the SSA to improve their data collection. That being said, it’s still helpful to look at the information they did have.

Not all diagnoses are created equal. While people who have neoplasms, intellectual impairments, and genitourinary diagnoses are “relatively more likely” than other applicants to win their claim at the initial level, those with primary musculoskeletal diagnoses are less likely to get a favorable decision.

Older is better. The older you are, the more likely it is that you will receive a favorable initial decision. In contrast, minors who apply for SSI have a very difficult time winning their claims.

High unemployment means lower acceptance. There are two ways to interpret this data. One is that the SSA tries to “tighten its belt” in specific states where jobs are scarce because the overall economy isn’t doing well and they want to conserve money. The other way is to assume that higher unemployment causes more people with “marginal” disabilities to apply and the SSA is good at weeding them out.

Representation leads to benefits. Though there wasn’t a dramatic difference in acceptance rates at the initial level, those claimants who worked with Social Security Disability attorneys did win a higher percentage of the time than those without reps.

Don’t file your claim blindly. Before you move forward, check out our free disability eBook that explains the process in depth and follow our blog for the more up-to-date Social Security news

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