Disability claim denied? Your chart notes may be why. [PODCAST]

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The words you put in a patient’s chart can be used to deny their disability claim. A note that says “stable” or “improved” can mean one thing to you and another to the insurer. Jennifer Hess, an ERISA disability attorney and Riemer Hess partner, represents physicians and other professionals in long-term disability claims. This episode is based on her article “Why your patient’s disability claim was denied,” published on KevinMD. You’ll hear why a fixed return-to-work date on a disability form can get benefits cut off, and what to write instead. You’ll also learn how to add context to notes about improvement, pain, or depression, and why a short narrative letter can go a long way. Jennifer explains why you can ask insurers to put their questions in writing instead of answering on a surprise call. She also makes the case for checking your own disability policy, since you could one day be on the other side of the table. Hear what to write, what to leave out, and what to read before you sign.

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Transcript

Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast. Today we welcome Jennifer Hess. She’s a disability attorney, and today’s KevinMD article is “Why your patient’s disability claim was denied.” Jennifer, welcome to the show.

Jennifer Hess: Hi, thank you so much for having me this morning. I really appreciate it.

Kevin Pho: All right. Before we talk about your article, let’s start by briefly sharing your story, and then we’ll jump right in.

Jennifer Hess: Sure. I am a long-term disability attorney located in Midtown Manhattan. I handle almost exclusively long-term disability claims for professionals and executives. I started out in this industry as a paralegal doing Social Security disability claims. I did that for about a year or two, give or take, and went to law school at night while continuing to work as a paralegal. I ultimately got very interested in family law, because I wanted to do something that allowed me to help people and put a better impact out into the world. But after interning and externing with some family law judges and seeing how messy that area of practice can really get, I pivoted and went back to the disability claim arena.

I have now been doing long-term disability claims and individual disability claims for about ten years, and it has developed into a narrower niche area of practice where I’m helping almost exclusively executives and professionals who have really high benefit amounts, where the insurance companies are just more aggressive, because there’s more money at stake, and they’re for-profit entities at the end of the day.

So I feel like I get to do very meaningful work every day, in the sense that I’m not only holding these insurance companies accountable for paying claims that they really are on the hook for paying, but also helping claimants through this really difficult process. People don’t know what to expect. People are completely overwhelmed. When they need to file an initial claim, a lot of people are not in a situation where they got in a car accident and need to file immediately. A lot of people are in a position where they have a progressive condition, something that’s been wearing at them for a while. They’re pushing through and pushing through, and eventually they just hit a tipping point where they can’t do it anymore, or they realize that their quality of life is suffering to the degree that they have nothing left to give to their friends and family at the end of the day. Their work is really it. Their weekends are nothing, and their evenings are nothing but recovery.

So we walk people through that process to help them file a successful claim and not have to deal with the stress of getting a denial and having to fight the insurance company. That’s really where our practice is focused: being very, very proactive, trying to anticipate the insurance company tactics that any given claim may present, and also anticipating how the insurance company may interpret the terms of the plan or policy in a way that won’t help the claimant but will help the insurance company, right?

We try to help those claimants get the claim approved from the beginning, so they don’t end up in a yearslong battle with the insurance company, which can be incredibly stressful when you’re already dealing with the horribleness and the uncertainty of whether you’re going to get your benefits. You’re dealing with a medical condition. You’re dealing with having to leave your career and everything that is tied to your identity. It’s just completely overwhelming for people. So being able to avoid those fights is really very important for people’s well-being, and I’m grateful I get the opportunity to do that every day.

Kevin Pho: All right. I can tell you that, from the physician standpoint, disability claims are a little bit of a black box. So I’m happy that we have you on the show today to help clarify a lot of the questions physicians have whenever patients come in and ask them to partner with them in applying for a disability claim. Your KevinMD article is titled “Why your patient’s disability claim was denied.” For those who didn’t get a chance to read that article, just briefly tell us what it’s about.

Jennifer Hess: Sure. The article is really about how the insurance companies will pick apart medical records, cherry-pick from them, and misinterpret lines that you put into the medical records. They’re really using those medical records for a purpose that you, as the treating physician, never intended them to be used for. They put them under the microscope and take them apart, looking for anything like “stable.” The insurance company will take the word “stable” as meaning there’s nothing wrong, when really it just means the patient is just as bad as they were last time. It just hasn’t gotten better, right? Or worse.

They could look for things like improvement, any little indication of improvement. Maybe a patient had some sort of injection, and it provided temporary, partial relief. That really is some improvement, but it doesn’t mean the improvement is sufficient to return them to work on a sustained, consistent basis, right? But the insurance company will take it that way. So the article is really about how these insurance companies will home in on anything they can in these medical records. They sink their teeth in and use them against you to discredit the disability assessment that you may be providing for your patient.

So if you have a patient who has a very serious cancer, something where you’re looking at it and saying, “Well, obviously this person’s disabled. They can’t perform their work,” the insurance company is not looking at just the diagnosis. They’re looking at the records to see not only abnormalities but documentation of how that’s affecting the person’s functionality. How long can this person sit, stand, and walk? If they have a professional occupation, how is this affecting their cognition, their processing speed, and their ability to multitask and sustain really high-level work on a consistent and reliable basis?

They’re also looking for indications of how frequently this person would need to be out of work. How long would they be off task? Do they need to lie down in the afternoon after working for a couple of hours? Do they need to sit in a quiet, dark room in the afternoon if they have visual issues or migraines or pain and just get overstimulated? These are things that can really affect a patient’s employability, right? It’s not typically something that treating providers think to put in the medical records. But if your assessment of the patient’s disability and work status is that they can’t work, and then the insurance company goes and looks at the medical records and sees that they’re not quite aligned, they’re going to say, “Well, your assessment is not really supported by the records.” So they completely discredit you, and they’ll rip apart your opinion just because of the way the medical records are written.

There are a lot of things physicians can do to help their patients just by being mindful of what they’re putting into those records. In addition to the records, you can always submit a supplemental statement. With these disability claims, physicians are always asked to fill out these forms, right? I don’t know if you’ve ever seen them, but a lot of times it’s a three-page form, and a lot of times it’s asking you to check boxes. It’s not really allowing you to put enough information in there to help your patient. Those forms are designed to solicit information that helps the insurance company, not the claimant. A lot of those forms will not ask questions about somebody’s cognition or their visual issues or hearing issues. It’s things like, can they lift 10 pounds? How long can they walk for? It’s really standardized.

So, at least in our practice, we really encourage treating providers to write a statement. It doesn’t have to be long. It could just be a page or a paragraph, but a narrative, right? Free text, a narrative explaining why this person can’t work. If you can tie it to any of the abnormalities in the chart, that’s even better. If you can tie it back to the reduced range of motion or observations in a clinical setting, you can even write in these statements that your records are maybe not going to reflect every little thing that you observe when you see the patient, right? They’re there to jog your memory. They’re there for documentation purposes. But you can verify in your attached statement that you’ve personally observed that this person is having trouble concentrating. They’re having to repeat things. They’re asking a lot of questions. You’ve observed them be uncomfortable on the examination table. You’ve observed them have to avert their eyes if they’re sensitive to light or any other movement. These are things that may not be reflected in your records. If they aren’t, you have another opportunity to correct that by adding the narrative letter and verifying that you do actually see these things and how they affect the patient’s ability to work.

Kevin Pho: I’m sure that you’ve reviewed many, many medical records. In general, what are some of the biggest red flags or mistakes physicians make when filling out these forms and writing in a medical record on behalf of the claimant?

Jennifer Hess: That’s a great question. I would say the number one mistake, and I don’t know if it’s a mistake so much as something they don’t know, right, is putting down an anticipated return-to-work date. Those forms will always ask, “What’s the anticipated return-to-work date?” A lot of providers will put six weeks, eight weeks, six months, whatever, but they don’t really know. It’s uncertain. You need to reevaluate that patient before determining whether it’s appropriate for them to return to work. You don’t yet know how the treatment plan is going to pan out. Everybody’s different. People have complicating factors. Things happen.

Maybe you’re very hopeful that this person can return to work at that point, and you put that in with the intention of reassessing them and seeing how they’re doing. But what ends up happening is that when that date comes rolling around, the insurance company has it marked in their calendar, and they are knocking on the claimant’s door: “Are you ready to go back? Is now the time? You must be better now. Your doctor said you’re going to go back now.” Sometimes the patients don’t have an appointment date aligned perfectly with that date, and then they’re scrambling to get an appointment with you, the busy treating physicians that you are. Especially if you’re a specialist, you may not see that patient for another two weeks or so, and the insurance company could cut the benefits off in the meantime.

So I think a better practice, if you do need to reassess the patient before you can affirmatively return them to work, is to put “to be determined.” You can put “to be determined in approximately X amount of weeks.” Maybe don’t put a response that’s as absolute as a date. You could say “pending further evaluation” or “pending the outcome of treatment,” something to that effect, to leave it a little more open-ended. That really leaves you, as the treating physician, in a position of more control over your patient. Do you have the opportunity to actually see how they’re doing? Do they need more time? This could end up being a permanent thing.

A lot of physicians, particularly surgeons, are always very hopeful that the treatment they’re providing is going to return the patient to work or cure all of the symptoms. But maybe it improves them to a degree, not completely, and not to the point where they can return to work. So I think just leaving it a little more open-ended and giving yourself a window of opportunity to reassess is really, really helpful.

Then you’re also not dealing with the patient calling you crying and sending you these really long, panicked emails: “This thing’s due tomorrow. I need to get in.” I think a lot of treating physicians have been there. I’ve seen a lot of my clients there. It’s really stressful, not only for the client, or the patient in your case, but also for the treating provider and your staff, if you have a patient showing up with these forms that need to be filled out because a deadline was set. It can be avoided by being a little more open-ended.

Kevin Pho: You alluded to this earlier in terms of the types of things that we need to include in our medical records. If there were a top-three checklist physicians need to keep in mind when writing in a medical record for a potential disability claimant, what would those top things be?

Jennifer Hess: I think that if there’s improvement, provide some context. Of course you want your patient to improve, right? The patient typically wants to improve and get back to work too, obviously. But if you write that there’s improvement, you might want to add a little more context, like “in response to recent treatment; need to assess the long-term effect.” Maybe the treatment that gave them improvement was something that was just partial or temporary, like an injection, for example.

Also, maybe the improvement the individual is experiencing is because they haven’t been working. They weren’t engaging in the aggravating activities. I represent a lot of physicians and surgeons, for example, and a lot of the surgeons go out for issues with their hands and issues with their cervical spine. They were bent over for long periods of time, and they might experience improvement in their symptoms when they’re no longer performing those activities, because those activities were aggravating the symptoms and making them so much worse. But if the treating provider puts in the notes, “Improved, much better, much better,” without adding that it’s because they’re avoiding these aggravating activities, the insurance company will latch on to that and say, “Well, they must be able to return to work again.” So just adding that element of context, whatever the facts may be, can be very, very helpful.

Also, claims that involve subjective symptoms, things like pain, fatigue, migraines, and dizziness, are really difficult to objectively measure, right? The science just doesn’t exist. Be mindful that those claims will typically come under a higher level of scrutiny from these insurance companies, and they’re going to be going through your records with a fine-tooth comb. In your statements and assessments of disability, it may be helpful to add that the known diagnosis and the clinical presentation are consistent with what the patient is reporting. There may be no objective way to actually measure the degree of pain. But looking at the clinical observations, the clinical abnormalities, the diagnostic testing, and the greater picture, maybe you can assess that there’s no real reason not to believe this patient, given the circumstances.

That can go a long way, because really, as a treating provider, you don’t have any interest in that. You’re not getting anything out of assessing this for your patient. It’s not like you’re being paid to write these forms. Typically, this is taking time out of your day. So statements like that can go a really long way with the insurance company. They have their own internal doctors who are reviewing these files, and when they see something like that, I think they will often nod to the treating provider, like, “OK, I get it. They get it.” It can be really helpful.

But it’s also important to understand that a lot of those subjective claims can be evaluated under mental illness limitations in these policies. I don’t know, Kevin, if you’re familiar, but a lot of these policies have limitations on benefits payable for mental illness conditions like depression or anxiety. In almost all claims, if somebody’s dealing with pain and fatigue and an inability to work, they’re going to have some level of depression or anxiety, right? They’re stuck at home. They used to work, and now they’re dealing with these medical conditions. But the insurance companies will often try to pigeonhole claims for pain, fatigue, and things like that into just depression and anxiety claims. They’ll say, “You’re really just depressed. It’s all in your head. The pain’s not that severe.” Then they try to limit benefits to twenty-four months or so under these policies. It benefits them financially.

So when you’re adding in the records that the patient has depression or anxiety, or they’re crying during the clinical examination, or they seem really stressed out or anxious, it’s again helpful to add context: that maybe those issues seem secondary, or that they’ve experienced these issues for years before and this wasn’t the disabling condition, that they’ve always had this problem, if you’re aware of it. Just be aware that the insurance company will often latch on to those notes about mental states and downplay everything else about the pain. We see a lot of claims for migraines, traumatic brain injury, Parkinson’s disease, and Lyme disease. These types of claims can be subjected to the mental illness limitations in the policy just because of a lot of subjective presentation, and a lot of times they will come with that depression component. So just being aware of that issue and making sure that you’re providing context in your letters and in your notes is tremendously helpful.

Kevin Pho: How about when the insurance company calls and wants to have a conversation with the physician to clarify anything in the forms? As the physician is talking to that insurance representative, what are some things they need to keep in mind?

Jennifer Hess: That’s a great question. When we have a client who’s represented by counsel, the first question should be, “Is this person represented by counsel?” If you don’t know, you can ask the representative on the phone or the peer-to-peer doctor. If that patient is represented by counsel, the insurance company has probably been told not to call you directly, OK? And you shouldn’t be talking to them. You should say, “Put these questions in writing.”

You should understand that these calls are not recorded. They’re not transcribed. A lot of times, the insurance company will completely flip your words. They twist your words. They’ll omit things that you said that were actually very helpful to your patient, and they will just make it seem like you weren’t as supportive as you were. Sometimes we actually see notes from the internal insurance company doctors, and they’re completely different from what the treating provider actually said.

So when you’re talking to them, the first question should be, “Are they represented by counsel?” If they are, I would redirect this through counsel. Counsel should be able to help with this and put the questions in writing. You don’t have to answer these questions on the call. You can say, “I am a busy treating provider. I don’t have time for this right now. Put your questions in writing, send them to me, and I will respond.” That is usually the better bet, because then you can actually take the time to check the chart and make sure you’re talking about the right patient. I’m sure you’ve had this: They will sometimes call you at two o’clock on a Tuesday, unannounced. You don’t have the chart in front of you. You’re between seeing patients. You’re rushed, right? So ask for it in writing, and then you actually have the chance to take your time and write a response that can be helpful and is more truthful and accurate, without the risk that the insurance company is going to omit things you’re saying or twist your words. It’s there, and it’s in writing.

Another thing along those lines to be aware of is that these insurance companies will often write up a summary of their call with you, or of their medical assessment of the patient, and send it to you, and they’ll say, “Do you agree or do you disagree?” with a little line for you to sign and date at the bottom. I find in my practice that a lot of treating providers sign it and send it back, I think without really reading it. They think they’re helping, and they’re not, because most of the time it’ll say, “Do you agree that your patient is a malingerer and an exaggerator, that there’s nothing wrong with them, that they can work, and that your clinical notes don’t line up with your assessment of functionality?” And a lot of the treating doctors just go, “Yeah, uh-huh,” and send it back, because you’re busy.

But if you get something like that, you should really read it. Take the second to read it. They’re usually not that long, maybe a page and a half. I see it so many times, and it can tank a case. A lot of times we have to go back to the treating provider and say, “Did you realize? Did you know? You must not have understood, because this is not what you’ve been saying to your patient, and not what you’ve been saying in all of the assessments that you’ve been writing and taking time out of your day to do.” A lot of times we then have to walk it back, and the doctor has to explain, “I was rushed, and I didn’t read it at all.” But it’s still something that’s difficult to come back from once that bell has been rung. The insurance company is latching on to it.

Kevin Pho: We’re talking to Jennifer Hess. She’s a disability attorney. Today’s KevinMD article is “Why your patient’s disability claim was denied.” Jennifer, thank you so much for giving us this advice and clearing things up. I’m going to have you leave some take-home messages for the KevinMD audience.

Jennifer Hess: Sure, thank you. My take-home message would be to be absolutely mindful of what you’re putting into those treatment notes, but also to check your own policies. You never know when you’re going to be on the other side of the table, and you’re the one asking a treating provider to fill out these forms and having your treating doctor’s records go under the microscope.

We consistently see these insurance companies downgrade policies for physicians, like own-occupation, specialty-specific policies. They’ll downgrade them to more of an any-occupation type of standard, or maybe indicate that you have the burden of showing not only your inability to do your work as a physician but also your inability to do administrative tasks. If you’re a hospital medical director or something like that, you have to show that you can’t do that stuff too, as if that were a separate occupation. We see that all the time.

So really being aware of what your own policy says, and of the fact that you could one day be on the other side of the table dealing with these insurance companies, can create more mindfulness, not only to protect yourself and make sure you have adequate, good coverage, but also to have that empathy when your patient is begging for these forms that are going to take up a lot of your time. It really does matter how you handle these. I think that’s a really important takeaway.

Kevin Pho: Jennifer, thank you so much for sharing your perspective and insight, and thanks again for coming on the show.

Jennifer Hess: Thank you. Thank you so much. Have a great weekend.

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