There is an excellent article in Massachusetts Lawyers Weekly this week by Eric Berkman on a new District Court decision by Judge Woodlock in Massachusetts concerning mental health benefits and the nature of the review provided by an insurer. The decision, K.D. v. Harvard Pilgrim Healthcare, found that the insurer had an insufficient basis for denying out of network benefits to the insured because the insurer failed to directly address and refute the insured’s medical basis for seeking the out of network treatment. To me, the decision reflects a move toward a more searching analysis of the administrative record to determine whether a denial was proper, and away from allowing insurers to deny benefits based on general conclusions as to the overall body of evidence.

I am quoted in the article, explaining what I see as the lessons for both plaintiffs and defendants in the case:

Stephen Rosenberg, an ERISA attorney in Boston, said the decision provides important lessons for attorneys representing ERISA claimants and insurers alike.

For plaintiffs’ attorneys, the case highlights the need to master the evidentiary record and call attention to specific instances when a denial is made without the plan administrator specifically grappling with and rejecting evidence in the record that is contrary to the denial, he said.

And for defendants and their attorneys, Rosenberg said, the case demonstrates the risk of relying on broad arguments that the overall weight of the record supports the denial.

“Instead, [they should] be shifting their focus to proving that … the administrator directly grappled with and then reasonably rejected the arguments and supporting evidence focused on in the administrative process by the claimant and his or her medical providers,” he said.

Photo of Stephen Rosenberg Stephen Rosenberg

Stephen has chaired the ERISA and insurance coverage/bad faith litigation practices at two Boston firms, and has practiced extensively in commercial litigation for nearly 30 years. As head of the Wagner Law Group’s ERISA litigation practice, he represents plan sponsors, plan fiduciaries, financial…

Stephen has chaired the ERISA and insurance coverage/bad faith litigation practices at two Boston firms, and has practiced extensively in commercial litigation for nearly 30 years. As head of the Wagner Law Group’s ERISA litigation practice, he represents plan sponsors, plan fiduciaries, financial advisors, plan participants, company executives, third-party administrators, employers and others in a broad range of ERISA disputes, including breach of fiduciary duty, denial of benefit, Employee Stock Ownership Plan and deferred compensation matters.