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Is it legal to limit disability insurance benefits to 24 months for mental nervous claims?

The question listed below was recently posted on our disability blog, but since it is a question that we receive on a weekly basis, we decided to make it a frequently asked question.

Thank you so much for this blog and your site. It is truly a resource for anyone with an ERISA claim.

From the start things are skewed when you have a “mental health” diagnosis. The inequities the mental health community has had to continually face is astounding. When you go to the State House & recruit a NAMIWALK team and your results yield $0 you know something is wrong. When you read a magazine Boston Proper & May is mental health month yet there are no charity events mentioned for mental health- you know there is a problem. All across the USA disability policies are allowed to have this 12-24 month limitation which is fundamentally unjust. When will Congress amend ERISA, so it can not blatantly discriminate against those with severe mental illnesses which are true diseases. Does anyone question this fact?

Politicians do not think this cause will look favorable in their CV, but I think
if they would just try on the cause they may be surprised with the high prevalence and huge cost to this society, why is it so off everyone’s radar? High prevalence and cost sounds to me like it really needs to be a PRIORITY. Realistically everyone is afraid of the man with untreated Schizophrenia even those in the mental health community.

But he needs compassion, services, medication and support & with treatment hopefully will be a responder, not treatment resistant, and his condition will improve. Instead an untreated schizophrenic man shoots dead his neighboor and the police beat to death another weaponless homeless man with schizophrenia. Could this country be doing a worse job for those severely mentally ill?

My first dealing with Aetna was through my denial notice which does not comply with the ERISA statute. There was no information regarding possibility of appeal or any time frame. There was only a phone number to call if I had questions. Needless to say, I am past the 180 days time frame which I later learned should have been on my appeal notice. And I am approaching the 1 yr limit for a claim mentioned in the SPD.

How many claim denial notices does Aetna mail a year? It is really beyond reproach to have an imcomplete letter with a time frame ommitted from someone with a mental health diagnosis? Motivation, responding in a timely manner is such a struggle if you have a mental health diagnosis so Aetna scrupuolously chose the right claim to leave off a deadline. Because I am barely functional at times so to actual even be able to complete the Appeal process for someone like me is a huge feat. I am ecstatic if I can get out of bed before half the day is gone, feed myself and shower at this point. I imagine countless of these claims go unfiled for just that reason. If you do not have a mental health advocate. I need to have someone stopping by to ensure I am completing this regularly.

To obtain a copy of my SPD, I had to contact my legislator and the DOL regional office. It was then that I received a copy by email.

And obtaining a lawyer is a huge challenge because not only is ERISA disability highly specific, but to also have successfully litigated mental health cases is virtually impossible. Will I be so fortunate to find a lawyer with these qualifications & who can take my case on contingency?

  1. ERISA background
  2. Successful long term disability mental health verdicts
  3. Willing to work on contingency
  4. and my year to file an appeal is 10/20/11

These requirements seem insurmountable to me.

I think the policy language is ambiguous, but I am not sure. The SPD and the Policy language do not agree.

Aetna is in the dual position of paying for the fund & having the discretion to decide eligibility of benefits. Therefore, there may be a conflict of interest.

It is clear to me that out of 2 year period that Aetna only obtained 6 months of my medical records. That does not appear that it would provide a fair and thorough review.

Aetna has required me to apply for social security disability which I was deemed fully disabled & Aetna immediately required my reimbursement of overpayment. Aetna will now be required to pay me my monthly benefit minus my social security award which is a financial incentive for Aetna. Thankful that I was approved for social security the first time, otherwise Aetna would have required me to reapply and appeal until I met their satisfaction.

There was no mention in my denial notice why Aetna did not consider my Social Security disability determination in my favor towards my disability claim with Aetna.

Was reading that the case could be tried in where I live, or the Plan is located or the fiduciary is located. That would include Circuit Court 1, Circuit Court 2 or Circuit Court 6. Does anyone know how to determine which Cicuit court favors
overturning ERISA 24 month limitation denials/termination of benefits for mental health diagnoses?

Appreciate any input. The clock is ticking and it is so stressful. And my illness is at its worse.

Thank you.

Unfortunately I don’t think Congress has the power to tell the insurance companies they cannot limit mental nervous claims. If Aetna failed to advise you of the 180 days to appeal, then you may still be able to appeal and file a lawsuit. I don’t know the exact number of claims Aetna denies each year, but based upon the number of Aetna Disability policy holders I speak to each year, I would estimate the number to be in the thousands. Aetna collects 500 million a year in disability insurance premiums. Overturning the 24 month limitation is not going to happen, but sometimes the mental health limitations are drafted in a manner that do not exclude certain mental illnesses. Additionally, if you have any other illnesses that are not mental, then you may be able to extend beyond 24 months.

There are 13 opinions so far. Add your comment now.

Sue:

Does unemployment compensation hinder the disability application process?

Attorney Greg Dell:

Sue,

The answer is yes. If you are a disability insurance claimant and you are collecting unemployment, then this will usually result in a claim denial and overpayment. By filing for unemployment you are required to certify that you are ready, willing and able to work. If your disability insurance policy defines disability as the inability to work, then it is almost impossible to claim entitlement to unemployment and disability insurance benefits.

Yinmin Shih:

My diagnosis are: major depressive disorder, generalized anxiety disorder, primary insomnia, conversion disorder, delusional disorder. I was also hospitalized for 10 days when it first happened. I also have chronical disease (HB) and Gastro esophageal reflux disease.

I’m currently on LTD through my employer and the benefit is limited to 24months due to the insurance company categorizing my case as “mental illness”. Is there any way I can challenge the insurance company to extend the benefit beyond 24 months?

Attorney Greg Dell:

Yinmin,

You need to get the insurance company to consider your physical ailments as disabling medical conditions. If they physical conditions are not disabling, then there is nothing that you can do.

Yinmin Shih:

What kind of physical ailments you are referring to? I have been suffering from chronic pain (fingers, elbows, knees and upper arms) for more than 10 years now, the aches/pains/sore/tingling/num are intolerable. The cervical spine MRI reveals bone spurs (pinched nerve), will that be enough to challenge the insurance company?

Attorney Greg Dell:

Yinmin,

If you have a doctor that will state that your pain causes restrictions and limitations from working in any capacity, then you have a good chance of being approved.

Sissy:

I have been on LTD from work since April 2013 which was classified as a mental illness (depression, anxiety, panic disorder, insomnia and OCD) which was mostly manageable until I got sick in March 2013 and doctors couldn’t find the cause of vision and balance problems along with numbness and tingling in arms and legs. I went through a battery of tests, some more invasive than others, over the course of 1.5 years.

My physical condition worsened in the past 6 months which now includes sensitivity to light, night vision problems, halos around lights, visual snow, flashing lights, floaters, after images, etc. 24/7 even with eyes closed and loud tinnitus in both ears in addition to pain and pressure in the back of my head and cognitive and short term memory problems and continued balance difficulties. These additional problems are possibly from a car accident in October 2014 where I was rear ended.

I was hospitalized in January 2015 and I have visited a couple of eye doctors that have a name for the visual condition but this condition typically produces eye exams that are mostly normal (which is the case with me) so they refuse to fill out disability forms since most visual tests performed so far show no abnormality for which I am thankful! I am, however, also frustrated and I don’t know what recourse there may be to extend benefits. LTD is supposed to be stopped in April 2014 which is the 24 month mark for the mental illness claim unless a doctor will state physical disorder.

I sometimes wonder if because of my history of mental illness doctors are not willing to believe this is a real problem for me. I wish they could get inside my head and live in my body and then they would know just how real all of the physical problems are.

Can LTD benefits be extended for conditions that don’t have any known objective tests or measurements? (http://eyeonvision.org/visual-snow.html)

What advice can you offer on next steps?

Thank you.

Justin:

What if you had a mental health diagnosis but all the while you had an underlying other condition that was affecting your health that was not diagnosed until after your 2nd appeal had been completed. The Dr. stated that you had had this condition for 10 years. Now you have a 2nd illness with extremely large medical bills.

What happens if the 2nd diagnosis is made just after the 2nd appeal is completed and your lawyer sends the information to the insurance company anyways?

Attorney Stephen Jessup:

Sissy,

It really depends on the language of your policy as some policies also contain limitations for self-reported symptom conditions. Regardless, you will need treatment for any of the physical conditions you report to the carrier to be struggling from as well as a doctor who will support your disability from a physical perspective. Please feel free to contact our office should you have any additional questions.

Attorney Stephen Jessup:

Justin,

If the diagnosis was made and information sent following a final denial of benefits it may not be allowed into the claim file for consideration by a judge. You will need to discuss this thoroughly with your attorney.

Joe A:

I was approved for SSDI and then filed for LTD. It was approved, but with a 12 month limit for ‘mental illness’. The only language in the policy is ‘all mental illness’. No description given. I’ve read other policies and they all say something like “conditions diagnosed by a psychiatrist or psychologist using the current version of the DSM”.

I have asserted in an appeal that my condition is not mental, it’s biological and neurological. Further, since the policy is so vague and ambiguous in this particular clause, that according to contra-proferentem they can not limit benefits on a vague inconclusive clause, and I dispute inclusion in the clause as bipolar is accepted to be a physical illness.

Any advice? Thanks :)

Attorney Stephen Jessup:

Joe, under employer provided disability plans your carrier likely has a discretionary clause that would allow the carrier to interpret its plan provisions and require a judge to defer to the carrier’s interpretation. I have yet to see a policy that does not define to some level what constitutes a mental illness. As your appeal is already submitted all you can do at this point is wait for the determination. If you requested a copy of your claim file there should likely be a copy of your LTD plan as well.

Joe A:

Thanks you Stephen. I did read the policy and it says ” the lifetime cumulative maximum benefit period for all disabilites due to (in bold) mental illnesses, alcoholism, or drug abuse, is limited to 12 months.”

There is no description or other language in that section that defines ‘mental’. I have read two other polices, and both have clear additional limitations ie. diagnosed by a psychiatrist using the current version of the DSM.

Thanks!

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