List serv post Aug. 8, 2020 by Michelle D Schwab, PhD
In our first worldwide pandemic accompanied by huge mental health issues, we do need to be discussing these issues. We should be preparing to deal with unique ‘asks’ for at least the next 6-12+ months. I try to stay very low key about my background but perhaps it’s time to come out of the closet in case I can be of service to others. I worked as a “Medical Director” and also a “Physician QA Reviewer” at UNUM for many years, I did a stint as the Lead Medical Director in the Portland office and, until a few months ago, I did some work on the side as a behavioral health disability consultant, reviewing disability claims for other insurance companies. I know more than I want to about how insurance companies view claims for FMLA, STD, and LTD. I have also talked by phone or correspondence with hundreds of health care providers across the country regarding their opinions and the data upon which they are basing said opinion. I have been deposed numerous times regarding these types of cases. In short, I am an expert regarding Behavioral Health disability claims and co-morbid claims involving both medical and BH conditions. This background does pertain to things like requests for accommodations to perform a job remotely. So, there are my bona fides. Out of the closet.
I apologize in advance for the likely length of this post: this is a very complex issue and may be a snooze fest for many. I am not sure if what I offer here will be relevant to any one particular school in Maine, but hopefully it will provide a context for thinking about these matters and your decisions on behalf of your patients. Additionally, it is useful to learn ‘disability-speak’ because a 22-year-old, newly minted claims adjudicator can understand you better—I am not kidding! LOL!
- I agree with Tom about the need to be cognizant of intermingling a socioeconomic, politicized health crisis with a data-based request for accommodations or leave of absence. That said, I anticipate a huge influx of disability or FMLA claims as many workers are asked to return to their places of business or perform their duties in new ways. My impression from the news & my own clinical practice is that a significant # of teachers, maybe even a majority, would PREFER remote work at this time and/or expect to revert to remote teaching within weeks. If accurate, the anxious patient’s concerns will be moot. But Maine’s viral infection rate is so low that it might be more than a few weeks and many parents will cheer this. Personally, I am becoming a hoarder of specific items in anticipation of a very difficult late Fall and Winter. I hope I am wrong in which case you each will receive a free roll of Charmin. Those who respond to this post will also be eligible for a small bottle of hand sanitizer.
- Teachers in a union may have a separate set of rules for processing various requests for accommodations; some joined a union, some did not, and some are not eligible due to private schools, and so forth. Individual school districts may vary in how they deal with requests for accommodations. A union probably has guidelines on what data is needed. In some places a superintendent or principal may make such decisions. If such requests are sent to a 3rd party like an insurance company, the level of information required will probably be higher. And there can be differences depending on whether an employer is self-insured and uses the disability insurance company to process claims versus fully insured plans where the insurer’s money is on the table. If you know the system by which accommodations or FMLA is managed by your patient’s employer, then what follows may be irrelevant to your question at the present time.
- Disability insurers handle all sorts of work leaves/changes: FMLA & STD are typically run concurrently, having the impact of limiting total time off. The less financial risk a company has, the less information they request. Short term disability is lower risk because the time period for benefits is limited. Many FMLA/STD departments are transactional; claims are paid quickly with the provider completing forms. LTD claims can present a lifetime financial risk and much more detail will be requested from the provider. Physicians and psychologists are often surprised to learn that disability determination is a contractual decision, not a medical or clinical one. This is important when setting expectations with patients: our opinion does not prove disability or the need for accommodations. Rather, evidence found to support functional restrictions or limitations is compared with the job description — often as it’s performed in the national economy vs at a specific business or school.
- So, if you do write something or complete a form, be sure to understand to whom you are writing and the potential adverse implications for your patient. The most glaring is when people have to sign an authorization for release of medical information to evaluate the claim (e.g., your records to back up your opinion that they cannot work or a sufficiently thorough treatment summary such that your data can be discerned). In any behavioral health claim this will include a specific authorization for release of psychotherapy records, and progress notes or test data in particular. This is not illegal and is done with HIPAA and other confidentiality issues in mind; they have lawyers too. Of course you can choose to not release your records; but your patient’s claim can be denied for failure to provide proof of disability. In our usual informed consent documentation we explain the limited number of circumstances under which we are legally mandated to not maintain confidentiality. We don’t speculate on the ways in which our patients can waive privilege to pursue something of interest to them such as a disability claim, a lawsuit, etc. In my opinion, this should be discussed very quickly if a patient raises interest in such matters. You might think the PCP or some other physician is handling it so you’re off the hook. Maybe that is indeed accurate for some brief STD claims. Otherwise, expect to be pulled in and plan your boundaries and the impact on your therapeutic relationship.
- Health care providers of all types are not trained in presenting data to demonstrate functional impairment. Instead we offer impressions that are clinically reasonable. However, in terms of functional capacity, consider that our views are often based on patient self-report, brief MSE, and our many years of experience. Most of us don’t consider factors such as validity, secondary gain, job site-specific factors, patient preference versus lack of ability, inconsistencies in the FULL record (including the PCP, psychiatrist, Ob/gyn, employer data, surveillance data), etc. The existence of a diagnosis does not equate to a functional disability. Clearly many people work with psychiatric diagnoses all across the country every day. What makes your patient different? That type of thoughtfulness should serve as a guide as you write.
- Limitations are what the patient CANNOT do because of a sickness or injury. Restrictions are what the patient SHOULD NOT do because of the probability of exacerbating a serious condition. A restriction-based claim is harder to ‘prove’. I will stop writing now as the variables are endless. The discussion in this thread is about advocating for accommodations, presumably because the clinician has evidence of functional restrictions and/or limitations rather than patient apprehensiveness or discomfort (???). Maybe asking for accommodations is a friendly process for your patient. Perhaps a superintendent or principal decides if accommodations are merited or maybe they ask a 3rd party (an insurance company) to decide. The sheer volume of such requests this year and the need for fairness could result in a handoff to an insurer to make such determinations. I would expect disability insurance companies to have been preparing for COVID-related claims, including psychiatric claims. They will not be swayed by public opinion or values. They will make decisions based on evidence because they simply cannot pay every single claim and stay in business for future claims. They will know the best public health data currently available (and they know this will change and develop over time). I do not envy the principal or claims payor who has to make these decisions, but it’s much safer to anticipate their decisions will be based on your data, not just your opinion.
- Finally, leave any restrictions based on age or underlying medical conditions to your patient’s physician. You will lose credibility if you try to go there. Explicitly defer to their primary care physician or immunologist/etc and stick to the Anxiety Disorder. Best of all, call the PCP to demonstrate collaboration of care to 3rd parties but also to be sure you are on the same page! Many patients do not reveal the extent of their anxiety or depression to their physician. The other common scenario is for a PCP to say a patient is impaired by anxiety/depression/etc but have no clue how to document and defend such a claim. Work together, deferring to one another on relevant conditions. Do this with psychiatrists too because they are particularly reliant on patient self report; psychologists are well equipped to observe, describe, and document behavior and observable indicators of many subjective experiences. Bottom line, insurers look for consistency of patient report across providers and over time. Good care is coordinated and collaborative in an individual who is posited to be so impaired they cannot work; I don’t see why this wouldn’t also pertain to requests for accommodative work.
Separate from my missive above, as a clinician I would want to consider the possibility of avoidance behaviors in an anxious patient. Is it clinically in the best interests of my patient to work from home or is this an opportunity to work intensively around managing their anxiety? And if I pursued the latter position, encouraging them to return to work, I would document like crazy so that if they become functionally unable to do it, I can demonstrate they tried and failed — that is compelling in a disability file.
Michelle D Schwab, PhD