FAQ

ERISA requires that employee benefit plans have minimum participation, vesting, accrual, and funding standards. ERISA § 502(a) permits participants and beneficiaries to bring lawsuits for plan benefits, for breaches of fiduciary responsibility, or for “other appropriate equitable relief.” ERISA § 510 prevents your employer from taking any adverse employment action against you for exercising any of your rights under ERISA. An employer may also not interfere with your right to attain benefits.

ERISA applies to most employer-provided benefit plans in the private sector. ERISA requires employers to provide written plan documents explaining the terms of the benefit plan. Many plan documents will state affirmatively that the benefits are governed by ERISA. Sometimes, it is not so clear, and whether ERISA covers an employee benefit plan will depend on all the facts and circumstances. ERISA does not cover wages, vacation time, sick days, and other payroll practices.

ERISA does not cover employee benefit plans established or maintained by state, municipal, or other local governments or units or agencies therein.

ERISA requires employers to provide written plan documents to explain the terms of any benefit plan. Plan documents are any documents or instruments under which a benefit plan is established or maintained. In addition, a benefit plan administrator is required to distribute a summary plan description (also known as an SPD), which is a summary of the plan document. An SPD must contain all the plan’s material terms, including how to submit claims and any procedure regarding internal appeals. When you make a written request for the plan documents to the plan administrator, he or she has 30 days to provide you with all of the documents.

For a claim for benefits under ERISA § 502(a)(1)(B), ERISA provides no statute of limitations.  Courts will look to the most comparable state statute of limitations to determine the time limit for filing suit.  Usually, this will be a statute for breach of a written contract.  However, an ERISA plan document may provide a time limit for filing suit, and courts routinely uphold those time limits if they are reasonable.  For ERISA breach of fiduciary duty claims, ERISA proscribes a statute of limitations of 6 years from the alleged act or omission or 3 years after the claimant had actual knowledge of the claim.

Before you can file a lawsuit, you must “exhaust” any administrative remedies available to you. The plan document will set forth what you need to do upon receipt of a claim denial. Usually, you must submit at least one request for review (or appeal) to the claims administrator. You cannot file a lawsuit until the deadline for the administrator to make a decision has passed or the administrator has finally denied your claim. If you do not follow your plan’s claims procedure, a court will likely dismiss your lawsuit for failing to exhaust administrative remedies unless you can prove that exhaustion would have been pointless.

You are not required to have an attorney to represent you in your appeal, but having an attorney familiar with the ERISA claims and appeals process is important to the outcome of your case. If your appeal is denied and then you hire an attorney, he or she will be limited to the claims record to prove your case. That record is everything you submitted to the plan administrator in support of your claim and appeal and any other evidence that the plan administrator obtained before making a final decision. Hiring an attorney as soon as you receive a claim denial gives you the best chance to develop a strong claims record and win your case.

If you are facing an ERISA benefit claim denial, it is important that you hire an attorney who focuses on ERISA claims. This is because ERISA is a complex and developing area of the law. The ERISA claims process is highly regulated and any one mistake can significantly hamper your chances of success.

Many claimants are confused when they receive a long term disability claim denial after the Social Security Administration determined that they are disabled. Although Social Security determinations are persuasive, an ERISA plan administrator is not legally bound by an award of Social Security Disability benefits. Social Security Disability claims are governed by different rules and are decided by independent decision makers. Often, an insurance company interested in retaining profits is the same entity also deciding whether you are entitled to benefits. It’s important to hire an attorney familiar with the ERISA claims process to help you win your claim.

Even after your long term disability claim is approved, you are still required to prove your entitlement to continuing disability benefits. Depending on your particular claim, an insurance company may seek proof of disability every 3, 6, 9, or 12 months. Getting regular treatment and consistent documentation of your medical condition is key to ensuring that the insurance company does not terminate your benefit claim before you are able to return to work.

No. The term “disabled” has many different meanings. Whether you are entitled to disability benefits depends on whether you meet the disability policy’s definition of “Disabled.” Your doctor should describe why and how you meet the definition of disability while taking into consideration your diagnosis, symptoms, and functional limitations.

Sometimes telephone calls from the insurance company can be intimidating, but it is important that you do not avoid attempts to reach you. If your claims manager calls you multiple times and you do not answer, he or she will conclude that you must not be home and are active enough to be working. You should take notes of telephone conversations close in time to when they occurred just in case there is an issue in the future.

It is important to document in writing everything that relates to your disability claim with the insurance company. We recommend sending communications in a method that permits you to track and confirm receipt. If you speak to your disability claim representative on the phone, you should send a signed and dated letter to the insurance company confirming what was said on the call.

We recommend that you accept requests to meet in person but that you offer to do so at a neutral location where you can be comfortable and have a private conversation. You are not obligated to let an insurance company agent into your home. You are also entitled to have a legal representative present during any interview.

Most disability plans give the administrator the right to have you evaluated while your claim is pending. Unfortunately, many of the doctors hired by insurance companies tend to be skewed in favor of the companies and finding non-disability. To ensure a fair evaluation, bring another person with you to the exam and ask the doctor to permit you to videotape the examination. If you are unable to do that, take notes yourself during and after the examination so that you do not forget important details.

Many disability policies pay benefits if you cannot perform the functions of your job as it is performed in the local or national economy. Sometimes this means it is not enough just because you cannot perform the job as required by your specific employer. It is important that you obtain and submit an accurate job description from your employer. You should also prepare a detailed written statement of your duties and even get one from a co-worker or supervisor. The statement should include all of your responsibilities, hours worked, and your job’s physical requirements.

The forms provided by insurance companies provide little room for elaboration. That is intentional. However, you are not limited to the four corners of the claim forms. You can add additional pages that give you the space to answer questions as thoroughly and accurately as possible.

Most of our clients who live with chronic illnesses describe having “good days” and “bad days.” You should not describe your typical day as your worst day or your best day. Instead, you should describe if and how your symptoms vary, how much they vary, and how your activities depend on the severity of your symptoms. Insurers routinely use surveillance to undermine a claimant’s credibility. If you describe your typical day as your worst day, but you are surveilled on your best day, it can create unwanted problems for your claim.

When explaining to the insurance company the ways in which you are limited, avoid using ambiguous language or labels such as “always” and “never” unless they are 100% accurate. You should also avoid using phrases that are open to interpretation. Instead of stating that you “cannot sit for long,” describe what happens when you do sit for long. For example, “I cannot sit for more than 20 minutes before my lower back starts to ache.” Be clear and do not exaggerate or downplay your limitations.

Unfortunately, yes. Insurance companies routinely use surveillance as a way to deny claims by attempting to show that you are not credible and are “lying” about your disability. Investigators may film you anywhere they can see you from a public location. They may follow your vehicle while running errands or into malls and other public areas. Investigators will also follow you online, including on any social media forums (i.e., LinkedIn, Twitter, Facebook, Google Plus). This does not mean you should live your life in fear of being followed. You just must be truthful and accurate when describing your limitations to the insurance company. You should also perform activities within your doctor’s prescribed restrictions.

As a general matter, you should not rely on the insurance representative’s verbal statements about how to appeal. The insurance company must send you written notice of the reasons that it has denied your claim, as well as provide you with a statement instructing you on how to perfect your claim on appeal. It is not enough to send in a letter stating that you are appealing the denial. Your appeal must be supported with evidence establishing your entitlement to disability benefits.

If you have health insurance coverage through your employer, you may be eligible for COBRA continuation coverage when you are no longer able to work. Through COBRA, you can extend your coverage through the employer’s health plan for 18 months. If the Social Security Administration (“SSA”) determines that you became disabled within 60 days of losing health insurance coverage and the health plan administrator is informed of SSA’s decision within 60 days of the receipt of the Notice of Award, then you can extend COBRA coverage an additional 11 months after the initial 18-month period ends. This extension recognizes that it is 29 months before you can become eligible for Medicare. Besides COBRA, you can also obtain health insurance coverage through Covered California.

Most ERISA long term disability benefits plans require you to apply for Social Security Disability Insurance benefits. This is because they offset, or reduce, the amount of long term disability benefits payable to you by the amount the Social Security Administration awards you. Even if you do not apply, the insurance carrier may take an estimated offset and reduce your long term disability benefit anyway. Most insurance companies also reduce your long term disability benefit by the amount your dependent children are entitled to receive from the Social Security Administration as a result of your disability.

Most disability plans require you to apply for SSDI benefits so that they can reduce the amount of long term disability benefits that they have to pay. This is because most disability plans provide that SSDI benefits are an offset to long term disability benefit payments. If the long term disability carrier paid your full disability benefit and you receive a retroactive award of SSDI benefits, the insurance company may be entitled to a reimbursement of the overpaid long term disability benefit. This is often the amount that you receive in retroactive SSDI benefits. If you do not reimburse the insurance company, it may withhold your future long term disability benefits until it has recouped the entire overpayment.

Most employer-provided disability insurance policies will provide a benefit that is a percentage of your pre-disability income, subject to a cap or maximum benefit. Some policies provide a minimum benefit. The reason for the minimum benefit is due to policy “offsets.” If you receive other income, such as state disability insurance benefits, Social Security Disability Insurance benefits, Workers’ Compensation payments, retirement benefits, etc., these benefits may reduce the amount you receive under the disability policy. Most policies require that you apply for these other benefits so that the insurance company can take them as an offset and pay you less.

The short answer is no. Most disability policies will pay to age 65 or to Social Security retirement age. One thing to also be aware of is that most policies will only pay a limited benefit for certain disabilities. For example, it is common to see a mental illness limitation in disability policies. Many policies will pay a maximum of 24 months of benefits if you are disabled by a condition the insurance company describes as a mental illness. Other conditions may also be limited so it is important to obtain a copy of your policy and review the limitations and exclusions section.

Most employer-provided disability plans will contain an “own occupation” and/or an “any occupation” standard of disability. Generally, to be disabled from one’s own occupation means you cannot do the material and substantial duties of your occupation as it is generally performed in the local economy (not just how it is performed for your employer). To be disabled from any occupation means you cannot do any job for which you are reasonably qualified given your education, experience, or training. Every disability plan is different so it is important to review the terms of your employer’s plan.