Residential Treatment for Eating Disorders: What Does Your Doctor Need to Say?

Slate.com had a great article recently by Katy Waldman talking about anorexia, and the potentially damaging narratives that even those in recovery from anorexia tell themselves.  As she writes: "[t]he anorexic impulse to lyricize one’s illness is a prescription for estrangement, for controlling and muffling the messy truths about who we are."

In the article, she calls for treatment that addresses the physical issues resulting from eating disorder: nutrition and weight restoration, rather than trying "to crack some psychological code—to unearth the mysterious psychic forces driving the illness "  

Whatever type of treatment a patient and his or her doctors want to pursue, obtaining insurance coverage for treatment of anorexia, bulimia and other eating disorders is challenging.  As with many issues with ERISA health benefits and group health insurance, what you think should work frequently doesn't.

In Connecticut, residential treatment of eating disorders, substance abuse and psychiatric illness has been difficult because there were no residential treatment programs for adolescents in the area.  There is now residential treatment for adolescents in Fairfield County, at Silver Hill Hospital, which I discussed in a prior blog post.   But, I believe we will still have many insurance companies denying coverage for residential treatment, even with a local provider.

So, what does your doctor need to say to get coverage for residential treatment of eating disorders, whether it is the "crack the psychological code" treatment or treatment addressed directly to the physical issues of eating disorders that Katy Waldman endorses?

• Typically, a doctor will tell you that:

Residential treatment is the best way for your daughter to recover

That should do it, right?  Nope.  

• What if your doctor tells you:

Residential treatment is the only way for your daughter to recover

That's got to do it, doesn't it?  The purpose of the policy is to provide treatment to cure problems, so if the treatment is medically necessary for the patient to get better, doesn't the insurance company have to pay for it?  

Still nope.  Under most health insurance policies, to get residential treatment for eating disorders, or for substance abuse treatment, or most any psychiatric illness, the doctor has to tell you:

Residential treatment is the only only way to protect your daughter from a serious risk of imminent death or serious injury to herself or others. 

I will post more in in the future about what specifically you need to do to make the best case for residential treatment for eating disorders, substance abuse treatment or other psychiatric issues, including the arcane treatment protocols that you have to follow to get benefits.  But, reviewing the policy and the incorporated treatment protocols before the claim is submitted will give you the best chance to get insurance coverage for residential treatment of eating disorders in Connecticut or in another state.   

An experienced health benefits attorney can help you get coverage for the treatment that you and your doctors think is best for treatment of eating disorders or other residential treatment.  

Residential Treatment for Eating Disorders Now Available in Connecticut

Patients and their parents in Connecticut have frequently encountered great difficultly in obtaining the residential treatment for eating disorders recommended by their doctors.   In the past, residential treatment of eating disorders was only available out of state.  Insurers fought hard to not cover out-of-state treatment, and I think the expense of out-of-state treatment was one reason for that.  I will discuss coverage for eating disorders in a upcoming post, and grounds for appealing a denial of benefits for residential treatment of eating disorders.  

Connecticut now has a residential treatment program for eating disorders.  Silver Hill Hospital in New Canaan recently started offering residential treatment.  I hope with in-state treatment available, it may be a little easier to obtain coverage for residential treatment of eating disorders in Connecticut.  It will still be a fight, but maybe we will start a little closer to the goal.  

Deceptive Attending Physician’s Statements: How to Fight the Form

What your treating physicians say about your condition and disabilities is the most important part of the claims process.  If you were an insurance company, wouldn’t it be great if it could come up with a way where it is almost impossible for the doctor to find that you are disabled?  Well, some insurers have done that with the form that asks the doctor to list your diagnosis, treatment, and you capacity to perform work-related activities like standing, walking, and lifting.  Different insurers have different names for the statements: 

• Sun Life and Aetna call it an Attending Physician’s Statement;
• Cigna calls it a Physician’s Statement of Disability;  
• Sedgwick calls is a Physician’s Certificate for Disability Benefits.

Some forms are fair, and others are intended to keep your doctor from certifying you as disabled so long as you can occasionally sit, stand or walk.   

Here’s a link to an unfair form that Aetna uses for some cases.  The crucial part of the form is in the middle, asking the doctor to state whether the patient's ability to sit, walk, stand, etcetera, is "Occasional," "Frequent," or "Constant."

How does this form convert a physician’s certification of disability into a certification of no disability?

• The form uses broad categories: The most restrictive category available is “Occasional,” for activities the claimant can perform from .5 to 2.5 hours a day.  There is no category for “Never.”  So, let’s say you doctor thinks you can stand, sit or walk for half an hour each, or a total of 1.5 hours in a day. So he fills in “O” for “Occasionally” for the sit, stand and walk categories.  The doctor understandably believes he has certified that you cannot do a sedentary job.

• The insurer using the top of the broad range: Despite your doctor’s intentions, the insurer can read this form to establish that your doctor believes you can do a sedentary job.  “Occasional” is defined in the form as up to 2.5 hours day.  So, adding together the maximum hours for the three categories gives a 7.5 hour a day work capacity. The insurer can therefore use this form to conclude that your doctor believes you can perform a sedentary job requiring sitting, standing and walking, even though your doctor thinks you can only do these things for 1.5 hours! 

So, what do you do?  How can you fight the form?  In my Connecticut LTD denial practice:

• I use my own form if the insurers’ forms are deceptive, breaking down the first category into “Never,” “Less than 5%,” “5-20%” and “20-33%” so that the insurer won’t be able to convert a doctor’s certification of an 1.5 of work capacity into a full day’s work, or

• I have the doctors prepare a narrative discussing more specifically what my client can and can’t do as it relates to the specific job duties of the position at issue, without being locked into the categories the insurer uses on its forms.  

Deceptive attending physician’s statement forms are one of the reasons it can be difficult to represent yourself, whether in an appeal of a LTD denial or an initial application for short-term disability or long-term disability.  The best way to fight these tactics is to have an experienced long-term disability insurance attorney in your corner who knows the games insurer’s play, and how to fight them.  

The Disability Insurer Is Calling You a Liar: Objective Evidence of Subjective Conditions

The most common reason stated by insurance companies for denying my clients benefits is there is no objective evidence of the client's impairments.  By this they mean that there are no medical or vocational test results assessing the extent the client's impairments affect her ability to work.

Of course, the medical records commonly include many statements by the claimant about her pain, cognitive difficulties, trouble walking, sitting for extended periods, or using a keyboard.  The insurers' hardly ever give any weight to these statements, claiming that they are mere subjective complaints; that is, they are not in themselves proof that the person is experiencing what she says she is experiencing.    The insurers are in essence calling the patients liars: the insurer clams the patient is telling untrue things to their doctors.  This happens frequently with chronic back pain, migraine headaches, fatigue, and early stage Parkinson's and multiple sclerosis.  

Why would a patient lie to her doctor?  The insurers never say, but there are only two possibilities:  

• the patients are suffering from a delusion, that they are not really experiencing the symptoms they are feeling, that the condition is a "somatic disorder" or "psychosomatic disorder"," which is what medical records say then a doctor believes the reported symptoms are the product of a delusion rather than an organic illness; or 

• the patients are lying in order to qualify for disability benefits, making up symptoms they are not real experiencing.  In the medical literature, lying about symptoms to get a financial benefit is called reporting symptoms for "secondary gain."

Discounting self-report of pain is fine if there is evidence that the claimant is lying or delusional, such as surveillance in the record, or activities reported in the medical records, that are inconsistent with the limitations the patient is claiming, or the patient claims to have cancer but no cancer can be detected.  

But in the absence of evidence of lying or a mental illness, why should insurers be allowed to call claimants liars just because a medical test doesn't show their chronic pain or cognitive impairment?   When objective evidence can't exist, courts in the past decade have done a pretty good job not allowing insurers to deny benefits based solely the fact the impairment is based on subjective complaints.  Kelly v. Reliance Std. Life Ins. Co., 2011 U.S. Dist. LEXIS 147133, 2011 WL 6756932 (D.N.J. Dec. 21, 2011) ("The defendants are not free to ignore the plaintiff's chronic and severe pain under the apparent theory that MRIs or EMGs must demonstrate some structural deformity for a person to be disabled because of back pain. Unfortunately for all parties involved, back pain, even severe pain, is not so simple.")

But, courts have rarely directly addressed the issue that insurers are really calling claimants liars when the insurers don't credit subjective reports of pain.  Remember the context in which these statements are made: in a doctor's office, where the patient is seeking diagnosis and treatment for serious conditions.  A patient who lies in a medical office risks painful, dangerous and expensive treatments to address an imaginary malady.  And frequently, the patient reported the pain at a time when there is no motivation to lie: the statements may have been  made before any application for disability benefits is filed; or when benefits are being paid routinely and the the claimant would have no reason to think their benefits were at risk.  

The rules that govern what evidence can be presented in Federal Court even acknowledge that statements made to a medical professional for purposes of diagnosis and treatment have "intrinsic indicia of reliability," which is judge talk meaning that the statements are likely enough to be true that they should be admitted into evidence.  Therefore, statements made to obtain medical treatment are an exception to the hearsay rule that out-of-court statements cannot be admitted into evidence to show that what was said was true.    Some courts have accepted this analogy.  Lasser v. Reliance Std. Life Ins. Co., 146 F. Supp. 2d 619, 640 (D.N.J. 2001) (“it was in Dr. Lasser's interests accurately to inform him of his daily activities in order to obtain an effective program of rehabilitation. Indeed, it is based on this indicium of reliability that such out-of-court statements by Dr. Lasser would be admissible under the Federal Rules of Evidence.”).

In my Connecticut disability insurance practice, I will keep arguing that an insurer can't dismiss a claimant's pain unless there is a factual basis for it.  The insurance company's insist on objective evidence of pain; courts should start requiring long-term disability insurers to produce "objective evidence" that the patient is lying or delusional before calling the claimant a liar.  We'll see if Connecticut federal courts will start turning the tables and require  insurers to show "objective evidence" that the claimant is not telling the truth in reviewing decisions on long-term disability insurance appeals.  

What is ERISA: Retirement Benefits & Fiduciary Duties

ERISA was enacted primarily to regulate something that we would all like to have, but hardly exists anymore: the private-sector traditional pension plan.  These plans promise retirees a certain payment every month for the rest of their life, and sometimes a reduced for the life of a spouse.  These are called “defined benefit plans” under ERISA, since the plan promises to pay definite amount every month.  No matter what happens with the market, the amount you get doesn’t change. 

In the other type of retirement plan, the plan promises that a certain amount of money will go into the plan each year, and the amount you get each month when you retire depends on what happens with the stock market.  These are called “defined contribution plans.”  These are the 401k plans and cash balance plans that most of us have now.  In the defined benefit plan, the risk of market changes rests with the employer.  With the defined contribution plan, the risk of market changes rests on the retiree. 

As discussed in my first post in the “What is ERISA?” series of post, the primary purpose of ERISA was to protect the traditional defined benefit pension plan. Most employers have moved to defined contribution plan, ERISA applies to these plans, too. 

In the prior post on ERISA and welfare benefits, I discussed some of the differences between the way ERISA treats welfare benefits versus retirement benefits: retirement benefits are vested prior to you actually receiving the benefit; and ERISA imposes substantive requirements on retirement plans while imposing few on welfare benefit plans.

The most significant effect of ERISA on retirement plans is that it imposes fiduciary duties on the people who administer retirement plans.  A fiduciary duty means that someone has the obligation to act in another’s interest, rather than his or her own interest.  So, a plan fiduciary responsible for investing the plans assets is supposed to seek the best/safest return possible, rather than investing in the hot new club opening down the block.  Huge treatises have been written on the scope of fiduciary duties, but below are some examples of cases involving fiduciary duties under ERISA:

• Nationwide Life Insurance administers 401k plans for small and medium-sized companies, and chooses the investment options to be offered to the plan participants.   The companies that it managed the plans for sued Nationwide for allegedly choosing mutual fund companies based on what the mutual fund companies paid Nationwide, rather than choosing the companies that offered the best investment options at the lowest cost.  Such an action, acting in its own interest rather than the interests of those it owed fiduciary duties to, would violate ERISA’s fiduciary duties.  Northwestern settled the case for $140 million, a record settlement.  

• In Amara v. Cigna, a  Connecticut ERISA litigation matter,that has already gone to the U.S. Supreme Court once, and is likely to go again, CIGNA was sued for telling plan participants that the change from a defined benefit plan to a defined contribution plan would have no effect on benefits, and that it was not being done to save money.  In fact, the benefits were worse for many participants, particularly those eligible for early retirement, and there were internal emails stating that the change was intended to save CIGNA money.    One of the most notable things about this case is that even though the plan fiduciary was flat out lying to the participants, courts have struggled to come up for a remedy.  As I have discussed in other posts, the courts have severely limited the remedies available under ERISA.  That is may take two trips to the Supreme Court to figure out how to fix this wrong shows how messed up the ERISA remedial scheme is.  Some courts are making baby steps towards removing the shackles on ERISA remedies (see this post  and this one), and the Amara case may be the case that ultimately unchains ERISA’s remedies.

• How plan fiduciaries invest plan assets has been fertile grounds for ERISA fiduciary litigation.  After the 2008 stock market crash, many cases, called “stock drop cases,” were brought against plans that invested in the employer’s stock.  While few of the cases succeeded, they generated a lot of law about the scope of an ERISA fiduciary’s duties in investing plan assets.  See, for instance, the U.S. Supreme Court case Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014). This case is an example of why ERISA drives lawyers nuts.  The one line summary of the case is pro-plaintiff, as the Court rejected a defense commonly used by plan fiduciaries in these cases.  In the body of the case, though, the Court sets for rules for what a plaintiff must prove to win that are so difficult that few plaintiffs will be able to satisfy them.  Little is simple with ERISA litigation.

ERISA fiduciary duties have a significant impact on retirement plans, but the duties also apply to welfare benefit plans.  For instance, in Devine v. Combustion Engineering, a case where I was counsel for plaintiffs in a nationwide class action, we alleged Combustion Engineering had breached its fiduciary duty to the participants by promising lifetime free health benefits in connection with an early retirement programs, and then reducing the benefits after they had retired. 

The distinction between retirement benefits and non-retirement benefit under ERISA is one of the arcane distinctions that scare away many attorneys from practicing ERISA law.  If you choose to have a lawyer represent you in these matters, make sure he or she is comfortable with this and the other arcane aspects of ERISA.