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Is It Too Late to Appeal My ERISA Disability Claim?

Posted by David P. Martin | Jun 05, 2023 | 0 Comments

 

A client comes to you with a disability claim on a policy from her workplace. Her initial claim was denied by a letter dated March 31, 2022. That letter provided a 180-day deadline to challenge the decision denying the claim. That deadline passed over six months ago. Can a late challenge be submitted? Is there time to do anything to help this poor lady? You have heard it is critical to make a strong claim record, so you are not optimistic.  

However, with Covid extensions, there is time. President Trump declared a National Emergency on March 13, 2020, concerning the Novel Coronavirus Disease (COVID-19) outbreak. The Department of Labor extended certain deadlines under this proclamation. President Biden continued the relief. Only last week, Biden declared the Covid emergency ends on May 11, 2023. So, what does that mean? You can wade through the bureaucrat language at the end, or you can use this simple guide below, which is based on that. Here is how it boils down now:

  1. If the claim is denied from March 1, 2020, and until July 9, 2022, then the deadline to appeal is one year from the date of the letter plus 180 days.
  1. If the claim is denied on July 10, 2022, and until May 11, 2023, the appeal is due January 6, 2024.
  1. For those denied after May 11, 2023, we are back on the clock noted in the plan or policy (minimum of 180 days, which is what the plan usually says) running from the date the client received the letter denying or terminating benefits. Again, not the date of the letter … but the date the client received the letter.

Here is the actual regulatory language if you wish to review it:

Accordingly, under the authority of section 518 of the Employee Retirement Income Security Act of 1974 (ERISA) and section 7508A(b) of the Internal Revenue Code of 1986 (the Code), the Agencies are extending specific timeframes otherwise applicable to group health plans, disability and other welfare plans, pension plans, and their participants and beneficiaries under ERISA and the Code.[4]

Subject to the statutory duration limitation in ERISA section 518 and Code section 7508A,[7] all group health plans, disability and other employee welfare benefit plans, and employee pension benefit plans subject to ERISA or the Code must disregard the period from March 1, 2020, until sixty (60) days after the announced end of the National Emergency or such other date announced by the Agencies in a future notification (the “Outbreak Period”) [8] for all plan participants, beneficiaries, qualified beneficiaries, or claimants wherever located in determining the following periods and dates—

(6) The date within which claimants may file an appeal of an adverse benefit determination under the plan's claims procedure pursuant to 29 CFR 2560.503-1(h),

(7) The date within which claimants may file a request for an external review after receipt of an adverse benefit determination or final internal adverse benefit determination pursuant to 29 CFR 2590.715-2719(d)(2)(i) and 26 CFR 54.9815-2719(d)(2)(i) …

Further guidance to understand/apply the regulatory changes was provided as follows:

The relief provided pursuant to the Notices continues until sixty (60) days after the announced end of the COVID-19 National Emergency (as defined in the Joint Notice) or such other date announced by the relevant Agency or Agencies in a future notification (the “Outbreak Period”), but as noted above, under section 518 of ERISA and section 7508A(b) of the Code, the disregarded period for individual actions “required or permitted” is expressly limited by statute to a period of 1 year from the date the individual action would otherwise have been required or permitted. One year from March 1, 2020, is February 28, 2021, and stakeholders have inquired about the continuation of relief beyond that date.

Individuals and plans with timeframes that are subject to the relief under the Notices will have the applicable periods under the Notices disregarded until the earlier of (a) 1 year from the date they were first eligible for relief, (2) or (b) 60 days after the announced end of the National Emergency (the end of the Outbreak Period). On the applicable date, the timeframes for individuals and plans with periods that were previously disregarded under the Notices will resume. In no case will a disregarded period exceed one year.

So … as to ERISA-governed disability claims denied before May 11, 2023, there is more time than many insurers and plans have indicated in denial letters. Some get it right and at least paste the technical language above in their letter denying the claim. (Any claimant who can decipher that is well above average!) Regardless, for any claimant denied benefits after March 1, 2020, and until May 11, 2023 … there is still time.

David Martin

About the Author

David P. Martin

Senior & Managing Attorney

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