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According to the National Institute on Aging and Alzheimer’s, early identification of Alzheimer’s may lead to earlier medical treatment. This is due in part to two things: 1) medical advances allowing a better understanding of cognitive decline due to age versus Alzheimer’s and 2) new criteria from expert panels of the National Institute on Aging and Alzheimer’s, for clinical diagnosis of mild cognitive impairment due to Alzheimer’s. The new criteria helps identify people who are in the symptomatic predementia phase of Alzheimer’s, known as mild cognitive impairment. The new diagnostic guidelines replaces previous techniques for identifying early stages of Alzheimer’s, and provide medical professionals with a new tool to assess their patient’s cognitive impairments. This evolved criteria for diagnosing mild cognitive impairment is crucial as early stages of the disease can only be determined by a clinician. The criteria used will allow a medical provider to differentiate between cognitive issues from age, other causes, and that of Alzheimer’s.

The Alzheimer’s Association predicts that by the year 2050, the presence of Alzheimer’s will triple, affecting more than 13.6 million people in the U.S. The rise is estimated to create medical costs up to $1.1 trillion by that time. With early detection techniques, health care providers can implement critical treatment to provide important options to those in need.

We at Bonny G. Rafel have worked with many people suffering from Alzheimer’s to help them receive disability benefits that they are entitled to. If you have been diagnosed with Alzheimer’s and are unable to continue working, we can help you apply for the disability benefits you deserve.

The American Psychiatric Association has recently approved the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders, or DSMV. The New York Times reports that after an extensive debate, the Association compiled a manual that provides new criteria for addressing some of the most common and controversial mental disorders. In certain instances, new definitions may alter, limit, or enhance insurance coverage for mental disorders previously considered behavioral or biological.

Notably, the authors of the DMSV have devised a more inclusive definition of depression. The Fourth edition of the DSM contained a “bereavement exclusion,” which held that grieving a person’s passing did not qualify as a mental disorder. The DSMV eliminates that exclusion; thus, individuals who exhibit the symptoms of depression due to the grieving process will qualify for the diagnosis. This is controversial because it places a potentially stigmatic label on the bereaved. From a disability perspective, however, those rendered unable to work following the traumatic experience of loss will now have a diagnostic basis for claiming benefits.

The committee working on Autism also re-structured the way the disorder is characterized, which is a development we discussed in February 2012. While Autism and related syndromes have previously been broken down into categories including Asperger’s and pervasive developmental disorder not otherwise specified, all of the categories will now come under the unified heading of “autism spectrum disorder.” However, criteria for this new category are predicted to exclude some of those who previously would have qualified for a diagnosis. This raises concerns regarding disability resource availability–including private insurance and social security benefits–for those who no longer fall under the definition of autism.

With the American population aging and the future of the already-limited Medicare and Medicaid programs uncertain, private Long Term Care Insurance may be the best remedy for ensuring that elderly and chronically ill citizens receive suitable care to fit their medical and quality-of-life needs. However, the cost of LTCI remains out of reach for many middle-income families, and policyholders remain subject to unfavorable terms in their policies.

The Massachusetts State Legislature recently passed a Bill entitled “An Act Establishing Standards for Long-Term Care Insurance” in order to better protect LTCI consumers. Massachusetts has pioneered a Long-Term Care exemption, which allows Medicaid recipients with private Long Term Care Insurance policies to insulate their homes from Medicaid liens, and the new act enhances consumer protection under that law. Another protection that the Massachusetts law provides is the adoption of the National Association of Insurance Commissioners’ Long-Term Care Insurance Model Act, which provides various protections including prohibitions on deceptive sales practices and the cancellation of policies due to age or medical deterioration, disclosure requirements, and limitations on pre-existing condition exclusions. 46 other states, including New Jersey, have already passed legislation adopting all or part of the Model Act. New Jersey has incorporated the Act in its own Act on Long Term Care Insurance, N.J.S.A. § 17B:27E-1, et. seq., which regulates issues such as sales of policies, rescission, and grounds for denial.

Unlike Massachusetts, New Jersey has not passed a law exempting individuals with long term care policies from Medicaid Liens. New Jersey citizens applying for Medicaid cannot own more than $2,000 worth of assets in order to qualify for benefits. Passage of a law such as the Massachusetts Act would serve the simultaneous and worthwhile goals of preserving state resources with regard to long term care and providing incentives for seniors to remain in their homes to obtain care for as long as possible.

The government has implemented a mandatory program to shift the health industry into the digital age. The Health Information Technology for Economic and Clinical Health Act enacted under Title XIII of the American Recovery and Reinvestment Act of 2009, provides incentives to physician practices and hospitals. But for those who do not meet the electronic medical records deadline for implementation, the government has laid out a series of penalties which include a reduction on medicare reimbursements which increases each year. The incentives provided by the government is intended to help defray some of the costs of transferring medical records to EMR and incorporating a comprehensive software program in the medical practice.

The overall purpose of the program is to centralize all medical records so that your doctors can access your medical history at the touch of a keystroke. This modernizing medical record collection and access is a terrific medical advance which will improve the quality of care and definitely save lives. It will allow for a more comprehensive approach to your medical problems since your doctors records will all be in one place.

Yet, the electronic file system and the good it will do, is still far off. Since medical doctors do not have to use a uniform software program, a cottage industry has emerged with dozens of tech companies offering their own version of a software program which complies with federal regulations. Many doctors are stumbling with the software and having problems uploading all of their patient information.

Breast cancer strikes far too many women every year. However, new research has identified four different types of breast cancer, leading researchers to investigate how treatments may be specifically geared toward each type of cancer to make therapy more effective. Women become unable to work during cancer treatment including chemotherapy, which often causes cognitive challenges and fatigue, among other symptoms.

The New York Times reports on the research of the Cancer Genome Atlas, which has been working to discover and catalogue the various genetic mutations responsible for causing cancer. The study identified four different types of breast cancers that develop in the milk ducts. For example, basal cell cancer more resembles ovarian cancer than other forms of breast cancer in terms of its makeup, which may justify using ovarian cancer treatment for this form of breast cancer. Luminal cancer, which grows in the lining of the milk ducts, comes in two forms, A and B. As luminal A cancers generally have a better prognosis than luminal B cancers, researchers are investigating whether it might be more appropriate to treat type A with hormone therapy and reserve chemotherapy only for type B patients. The fourth type of cancer identified is known as HER2-enriched which contains an extra copy of a gene which causes it to grow. While scientists had previously prescribed the drug Herceptin to “block” the HER2 gene in all cancers containing an excessive amount of the gene, it appears as though the drug may in fact only be effective on those who have diagnosable HER2 cancers. Clinical trials will reveal the effectiveness of the proposed forms of treatment on the different types of breast cancer.

While new research looks promising, we remain keenly aware of the effect that cancer treatment can have on a woman’s life and her ability to work. Bonny G. Rafel is experienced in counseling breast cancer patients through the disability process, and will continue to approach each case with compassion and the unique attention that each deserves.

Chronic Fatigue Syndrome (CFS) is a serious medical condition that affects an estimated one million Americans. CFS can be a disabling condition that prevents you from working.

CFS is not easily diagnosed as there are no objective tests such as blood tests or scans that can detect CFS. The Center for Disease Control has specific criteria for rendering a diagnosis of CFS. That criteria is:

1. The individual has unexplained, persistent fatigue for 6 months or longer that is not due to ongoing exertion, is not substantially relieved by rest, has begun recently (is not lifelong)

Now that tri-state area residents are into the third week of Hurricane Sandy’s aftermath, and immediate issues such as power restoration and supply shortages begin to resolve, the attention for many will now turn to recompensing their losses caused by damage to their property. As the New York Times reports, this process will inevitably prove to be more difficult and complex than homeowners might expect.

In the first instance, many homeowners do not have flood insurance, and most homeowner’s policies do not cover damage caused by flooding. It is not uncommon in storms of Sandy’s magnitude for a structure to suffer damage from multiple causes such as water, wind, or objects such as trees falling on a home. However, many insurance policies contain what is known as an “anti-concurrent causation clause,” which will deny coverage for damage caused by a covered loss if an excluded loss also contributed to the same damage. This is likely to pose a problem for many residents, particularly in coastal areas such as the Jersey Shore or the Rockaways, which experienced flooding and damage by winds blowing trees onto homeowners’ properties.

The Times points out that homeowners should also be careful to maximize their recovery on items that are covered. Some policies contain “law and ordinance” coverage in order to assist owners of older homes to ensure that they comply with current building codes. Insurers may dispute the necessity of certain improvements to older structures. It is also essential that homeowners insist on comparable materials to replace damaged structures, as the cost of these materials tends to rise after a natural disaster.

When Hurricane Sandy swept through New Jersey and the tri-state area, its winds and rains wrought unprecedented property damage on the region. In the wake of the storm, the New York Times reports that insurers are expecting property damage claims in excess of ten billion dollars. Homeowners and businesses filing claims must be careful, because exclusions in policies will apply to limit or exclude claims. There are also limits in policies issued under the National Flood Insurance Program. There will likely be disagreements as to the “cause” of the loss, such as, did “wind” cause the damage as opposed to “rain” or “overflow of water.” Exclusions on homeowner policies for damage caused by power outages or for trees down but not striking homes, will also impact your ability to collect on your loss. We suggest that you consult with experienced lawyers or public adjusters to assist you in the filing of your claim.

Property insurance and umbrella policies often contain confusing and seemingly contradictory exclusions and limitations that could jeopardize your claim if not properly addressed. You should not compromise your access to the maximum recovery possible, and public adjusters, while well-intentioned, should also consult with counsel, to ensure that the advice they are providing to clients as to how to gather and submit insurance claims will result in the best outcome. The first step in the process following a disaster is to prepare an insurance inventory. The inventory should include a description of the property and the type (i.e. houseware, linens, furniture, clothing, toys, electronics, appliances, jewelry, and office items), where it was located in the house, its approximate age, and approximate cost.

Bonny G. Rafel is experienced in handling property insurance claims, having helped many clients following Tropical Storm Floyd. Contact us for a consultation to discuss how we can help you pick up the pieces after Hurricane Sandy.

The attorney-client privilege provides confidentiality for all communications between attorneys and clients pertaining to legal advice. However, the courts have carved out an exception for fiduciaries–including insurance claims administrators–under principles of trust law, which requires the furnishing of information to trust beneficiaries in order to protect their rights, and which holds that a trust attorney’s real clients are the beneficiaries rather than the trustees.

Thus far, the Third Circuit has declined to extend the fiduciary exception to communications between an insurance company and its in-house attorneys where the insurance company funds the disability plan and pays benefits out of its own assets. In Wachtel v. Health Net, Inc., the Court reasoned that the exception did not apply in the case of a fully-insured health plan. It rationalized that in such a case, the insurance company–not the beneficiaries–is the attorney’s real client, as the insurance company maintains ownership over the plan funds, pays its attorneys from its own assets, and owes fiduciary duties to multiple classes of customers rather than the beneficiaries of any one plan. Further, the Court concluded that while ERISA expanded certain trustee obligations to insurance companies, Congress did not intend to apply the entire scope of trust law obligations to ERISA fiduciaries.

In contrast, the Ninth Circuit in Stephan v. Unum Life Ins. Co. of Am. held that memoranda between Unum’s claims department and its in-house counsel regarding interpretation of the plaintiff’s disability insurance contract could be subject to disclosure. Mark Stephan filed for disability benefits after becoming a quadriplegic in a bicycling accident. Stephan disputed Unum’s calculation of his pre-disability earnings, as Unum interpreted the contract to exclude the plaintiff’s annual bonus from the earnings. Since the disability policy provided a monthly benefit of 60% of a claimant’s earnings, the exclusion of the bonus left the plaintiff with a considerably lower benefit figure.

Surveillance is a common practice among disability insurers. Insurance companies often enter into lucrative deals with security and surveillance firms in an endeavor to “catch” individuals performing activities that conflict with their claimed limitations. While this usually involves observing an insured outside of the home running errands or performing basic activities of daily living, the British security firm G4S has taken the tactic one step further.

G4S has now come under fire for using deceptive tactics to film disability claimants inside their own homes. Daily Mail, September 16, 2012. The UK’s Daily Mail reports that G4S regularly sends its surveillance agents to a claimant’s front door posed as a delivery person, and wearing a miniature hidden camera in what is known as the “parcel pretext.”

One “parcel pretext” victim–Tanya Joiner, who suffers from arthritis and fibromyalgia, among other conditions–has now brought suit against G4S, alleging that one of the company’s agents entered her home purporting to deliver a catalogue. When her husband advised that she was too ill to come to the door and sign for the delivery, the agent went into her living room and insisted that she sign for the package herself. In doing so, the agent obtained footage of the inside of Ms. Joiner’s home. Ms. Joiner’s insurer, Zurich, ultimately denied her disability benefits. Though G4S insists it followed legal procedures, it appears that it never obtained the government authorization necessary to film the inside of Ms. Joiner’s home.