ST/LT Disability - ERISA - COBRA complex Question

What is the name of your state? Texas

I realize this thread might belong under employment law, but I am quite overwhelmed and confused. I also apologize for the length and complexity of my question(s).

I had acquired health insurance and both short term and long term disability (MetLife) insurance through my employer. (But am not 100% positive this brings it under ERISA or not.)

I went on medical leave of absence on 09/29 that my doctor initially stated wuold be for a period of 4 weeks. I received a notice that my short term disability benefits started after my waiting period 2 weeks later on 10/13. The insurance company said they would pay $200 per week, but I had signed up for $300 per week. (I never received a copy of the policy.)

On 10/19 my doctor wrote new information and stated that I would be unable to work for an "undetermined" period of time. I sent this information to my employer and requested an extension of my leave of my absence.

On 10/24 I received - still no check - but a denial of benefits notice dated 10/16 stating that no benefits would be payable beyond 11/1. I wrote a notice of appeal based on my doctor's new information. At that time I also made a written request for the policy since I never received one. I still have not received a copy of the policy.

I received my first check from MetLife for $275 in the mail on 11/3, even though I had completed MetLife's EFT form for direct deposit to my checking account and sent it to them with the claim form.

On 11/3 my employer's benefits coordinator told me verbally that my employment had been terminated effective 11/1 because I could not return to work. I asked her about my COBRA coverage because I need that insurance for my doctors and prescriptions. I have still not received anything. I am now not able to see my doctors or get my presriptions filled and I am very concerned about my long term disability coverage continuing if my short term runs beyond 12 weeks, and also if my employer terminated me unlawfully that I might not even have the long term disability coverage because the guy had said that the disability coverage is not portable when we signed up for it at work.

I requested copies of my medical records on 11/8 because I decided to file a claim for SSDI but haven't received them yet because everything has to go through a central release of information office.

In the meantime on 11/8 I received a notice from my employer that they were terminating my employment effective 11/1 but I can reapply when I am able to return to work. I am not covered under FMLA, because I was not with this employer for a full year, but the EEOC seems to think I might have a legitimate complaint for disability discrimination because requesting a leave of absence is requesting reasonable accommodation whether it is covered by FMLA or not.

On 11/24 I received a second check from Met Life for $485 in the mail - even after telling my case manager it took too long through the mail and they should EFT the funds - AND on 11/24 I also received a notice dated 11/8 stating that they are closing my claim effective 11/22 (2 days before I received the notice) unless they receive additional information from my doctor.

I did file a complaint with the Texas Department of Insurance regarding bad faith practices on the part of MetLife (before I knew anything at all about ERISA) because my claims handler is obtuse. I asked her several times to change my address to a PO Box so I could receive things faster in the mail and to at least have the courtesy to call and let me know if they were mailing the checks instead of direct depositing them, and she flat out refused to do so. Also, she made no attempt to obtain my records from my doctors before denying my claim, and I have to pay for those records, (never mind that I have to get them anyway for SSDI, because that might not have been the case!) MetLife could have requested those records using the authorization forms I had to return to them with my claim form, but my claims handler refused to do so even after I told her they were causing me a hardship. So they could not have denied my coverage for medical reasons, and they have really not even specified to me exactly what "additional information" it is they want.

I would appreciate sample letters if anyone has them that I can or should be sending to my employer or to MetLife regarding non-receipt of both COBRA and insurance policy information, and what are my recourses for them ignoring my requests for this information?

Some step by step guidance would also be appreciated if any is available. Thank you very much in advance and again I apologize if this is in the wrong forum.What is the name of your state?

I do not have sample letters; nor will they be necessary.

Your employer is still well within the legal time to send you COBRA information. If your last day of employment was 11/1 (I am assuming your coverage was terminated at that time) they have until December 14 to send you the COBRA information and they will still be legal.

Collecting disability benefits is not a guarantee that you can make a case for disability discrimination. A SHORT extension of a leave CAN be considered a reasonable accomodation yet, but not all or even most employees who are collecting disability benefits are actually covered by the ADA. Temporary conditions are not protected by the ADA and if the ADA is not invoked, no accomodation of any kind is necessary. Unless your condition is permanent or long lasting (by which is generally meant a year or more) AND it affects a a major life function (walking, talking, breathing, use of hands, etc.) the ADA is not triggered and your employer has no legal obligation to provide any accomodation at all. (Leave time is a last resort even under the ADA since the purpose of the law is to keep you working.)

Due to HIPAA restrictions, MetLife cannot obtain your medical records from your doctor without your written permission. That is why they did not go directly to your doctor. They are within their rights to cut off benefits if they do not receive the information they need.

It generally takes a minimum of one cycle before direct deposit kicks in.

Thank you for your reply.

My last day of employment was 11/1 but the last day I actually worked was 09/28.

Except for the fact that my doctors up to my last visit kept taking my insurance card, I do not know if my coverage was terminated or if I needed to be paying for it or not. That is one of the things I kept asking the Benefits Coordinator, as I was required to call and speak to her every Friday during the term of my leave of absence to "update her on my status". When I asked her (every Friday!) if I needed to pay for my insurance, she didn't know. Said she would find out. She never did.

I was not sure if a "qualifying event" to trigger COBRA should have been the beginning of my unpaid leave of absence (because there was no payroll to deduct the premiums from) or my subsequent employment termination.

I did not mean to imply that I thought my disability insurance meant that I have a disability. I DO have a disability that even falls specifically under the Social Security Administration guidelines as a disability. The "disability insurance" is more like "income protection" insurance in case one becomes unable to work, as I have. This is the second time in a year or so that I have been "sidelined" by my disability. I might get better "from time to time" (remission?) but I need to face the fact that I am never going to be able to do most of what I used to be able to do ever again. It is taking me a lot longer this time to adjust.

Also, MetLife had my written authorization right along with my claim form AND I signed a separate authorization at my doctor's office so that they were fully informed of my consent, so I think that yes they could have requested my records. You wrote "They are within their rights to cut off benefits if they do not receive the information they need." Does this apply even if they made no attempt to get it with authorization? Even if their request for information addressed to me was received 2 days after the deadline for supplying the information because they wantonly refused to update my mailing address or pick up the phone and notify me of a need for information even after I asked them to... even after I told them it was taking 2 to 3 weeks from the postmark date for their mail to get to me?

I can understand direct deposit taking one cycle to kick in. But they did not use the correct account number, had trouble with the bank, when the deposit was returned to them by my bank they mailed it without bothering to call me and let me know...not just the first time in October, but the second time in November as well, and refused to accept my change of address that would have shortened the mailing time substantially.

Between the time of posting my question and reading your reply, I had found a web site that seems to contradict some of what you (cbg) posted about the ADA. I am not posting this as an argument but for discussion, so I can learn more. This information seems to be from 2002 so I don't even know if it is outdated or has been modified.

http://www.eeoc.gov/policy/docs/accommodation.html

I am posting the relevant exerpts below. I am not posing this as an argument to you, cbg, but if you are trained in this area of the law, I would appreciate your insight - such as - where what you posted seems to contradict these EEOC policies, is what you said the stance most adjudicators take "in the real world"?

This is what it says:

How must an individual request a reasonable accommodation?

When an individual decides to request accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. To request accommodation, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." (you wrote that I would need to "invoke the ADA" - I "sort of did", when my Benefits Coordinator said in October that they might terminate my employment because my doctor had requested an extension of my leave of absence, I asked her if that meant they would fire me for having a disability unless I chose to disregard my doctor's instructions, and the woman did not answer my question.

The ADA requires employers to provide reasonable accommodations so that employees with disabilities can enjoy the "benefits and privileges of employment" equal to those enjoyed by similarly-situated employees without disabilities. Benefits and privileges of employment include, but are not limited to, employer-sponsored: (1) training, (2) services (e.g., employee assistance programs (EAP's), credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation), and (3) parties or other social functions (e.g., parties to celebrate retirements and birthdays, and company outings). If an employee with a disability needs a reasonable accommodation in order to gain access to, and have an equal opportunity to participate in, these benefits and privileges, then the employer must provide the accommodation unless it can show undue hardship.

(A month or so before I was ordered "backstage" by my doctor, I had requested a reduction in hours to 4 days per week (32 hours per week) trying to stave off the need to take of leave of absence. They would not grant my request for a part time schedule unless I was willing to work only 28 hours per week or less. At that number of hours I would have been no longer eligible for my benefits package at all.)

Leave

Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation when necessitated by an employee's disability. An employer does not have to provide paid leave beyond that which is provided to similarly-situated employees. Employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave.

An employee with a disability may need leave for a number of reasons related to the disability, including, but not limited to:

* obtaining medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; or physical or occupational therapy;
* recuperating from an illness or an episodic manifestation of the disability;
(there are more listed there, I did not include them all)

May an employer apply a "no-fault" leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?

No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.

Modified Workplace Policies
# Is it a reasonable accommodation to modify a workplace policy?

Yes. It is a reasonable accommodation to modify a workplace policy when necessitated by an individual's disability-related limitations,(71) absent undue hardship. But, reasonable accommodation only requires that the employer modify the policy for an employee who requires such action because of a disability; therefore, the employer may continue to apply the policy to all other employees.

I found all of this quite fascinating but also quite exhausting to read. Any thoughts?

The qualifying event for COBRA is the last day of your employment; not the first day of your leave.

I did not say that YOU had to invoke the ADA, meaning that you had to initiate procedings. I'm sorry if that's how you read it. What I meant by that statement is that not all, or even most, disabilities qualify for ADA protection, and that only disabilities that are covered under the ADA have to be accomodated.

Whether or not reducing your hours to 4 days a week would be considered reasonable is not something I can make a judgement on based on the information available to me. What is considered reasonable is very situation specific and is dependent on the company, the position, and your limitations. Even if reducing your hours would be a reasonable accomodation, they do not have to continue providing you with the benefits of full time work. You don't get to have it both ways; that's not how it works. They MAY modify a workplace policy - they are not required to do so.

I'm not sure how any of what you posted contradicts anything I said.

Hello cbg

Maybe I did misunderstand something you wrote previously. I'm not sure. I came here to get some help on what I can do, because I am facing a very overwhelming and complex series of issues that are adversely affecting my life and that of my husband and children. I was looking for guidance, instructions, and the information I have received here is not particularly helpful and really only confusing me. I don't believe that modification of a workplace policy is a "can-if-they-wanna-do-option" according to the EEOC. It IS a reasonable accommodation under the ADA, and unless they can prove that it would be too much of a burden to do it, the employer IS required to do it.

I understood a qualifying event triggering COBRA was any reduction in hours. At least that is what I could understand on the Dept of Labor EBSA web site. Oh and some attorney's office called last week and told me the same thing, but said that I had to make a new request for my policies and the COBRA information via certified mail, since previously I had only talked to the benefits coordinator on the phone or faxed my requests for the information.

My husband will also be discussing my COBRA issue with a lady from the DOL EBSA office next week.

I believe that MetLife is guilty of bad faith insurance practices with regard to my disability payments. Since I am not sure that particular policy falls under ERISA like my health insurance coverage, I am going to go ahead and pursue this Short term disability issue in small claims court. If I get tossed out for improper suit then at least I will have my answer. Court rooms don't intimidate me. They had already received additional information from my doctor and extending my benefits by just one week when my doctor wrote "undetermined" when I would return to work...seems to me that they are toying with me. I read that MetLife will try to bully people into returning to work by not paying the disability benefits, and if that fails will follow and harrass you. I don't doubt it, not in the least.

A reduction in hours that results in coverage being cancelled does trigger COBRA - however, you did not indicate anything to suggest that your coverage was cancelled prior to the last day of employment, or if you did, I did not find it in that novel you wrote.

Since the time and effort I put into trying to answer your questions was not helpful, I won't put any more time or effort into it.