As part of the federal government’s response to the COVID-19 epidemic, the United States Department of Labor extended many of the deadlines under ERISA, the federal law governing most employee benefits. Now that many of the policies implemented to address COVID-19 are being ended, the date when the COVID-19 ERISA deadlines extensions will end is unsettled. They could expire as early as June 9, 2023. or as late as July 10.
For background, in May 2020, US DOL issued guidance that all ERISA deadlines, including for filing appeals of benefit denials, were extended to 60 days after the end of the COVID 19 National Emergency. Fed Reg. Deadline Extension In May 2021, US DOL issued further guidance that the maximum extension of a deadline was one year. EBSA Disaster Relief Notice 2021-01. So, all the deadlines were extended for the sooner of one-year from the deadline, or 60 days after the end of the National emergency. A COVID-19 Public Health Emergency was also declared, but the extension of the time limits are under the National emergency, not the Public Health emergency.
Biden had announced that he intended to end both the National and the Public Health emergencies on May 11, 2023. Executive Order But, Congress passed a bill ending the National emergency, which Biden signed and became effective on April 10. The Public Health emergency is still scheduled to end May 11, 2023. So, currently, all the deadlines extended by the National emergency are scheduled to end June 9, 2023, 60 days after the end of the National emergency. But, DOL has evidently informally communicated that it will issue guidance extending the National emergency deadlines to the July 10, 2023, which would have been the date if Congress hadn’t ended the National emergency on April 10 rather than May 11. Proskauer Blog Post A deadline that is active at the end of the emergency (like for an appeal of LTD denial, the denial is less than 180 days before the end of the emergency) the period of time from the denial to the end of the emergency is disregarded. So, for a denial dated May 26, 2023, the appeal deadline would be 180 days plus 45 days, assuming the July 10 date for the end of the National emergency.
I have checked, and it doesn’t look like DOL has yet issued any guidance delaying the end of the filing deadline to July 10 rather than June 9. Here is a link to the EBSA website if you want to check yourself in the future. EBSA Coronavirus Response Page. So, for my long-term disability benefit appeals, I am going to prepare to comply with the June 9 date to make sure no deadlines are missed. I’ll post again when I learn that the guidance has been issued.
COVID-19 and the emergence of long COVID has introduced a new medical condition into the world of long-term disability insurance: Long COVID.
The potential chronic conditions caused by COVID-19 is at once one of the scariest aspects of the COVID-19 pandemic and the most unsettled, as shown by the many names for it: Long COVID, long-haul COVID, post-acute COVID, long-term effects of COVID, chronic COVID, and PASC (for Post-Acute Sequelae of SARS-CoV-2 infection). The community of Long COVID suffers commonly call themselves “long haulers.” The prevalence of Long COVID in different studies has ranged from 30% to more than 50% of those diagnosed with COVID-19.1 Major media outlets have already noted the problems long haulers have getting long-term disability benefits under group long-term disability plans and private disability insurance (“LTD claims”). 2 This article will discuss the challenges of establishing Long COVID LTD claims. I will also discuss how the research and awareness of long COVID might help claimants with other types of conditions with similar symptoms.
The list of Long COVID symptoms is extensive. The Centers for Disease control have identified that following Long COVID symptoms: difficulty breathing; tiredness and fatigue; brain fog; post-exertional malaise (symptoms that get worse after exercise); cough; chest or stomach pain; headache; heart palpitations; joint or muscle pain; pins-and-needles; diarrhea; sleep problems; fever; lightheadedness; rash; mood changes; change in smell or taste; change in menstrual cycles.3
Anyone experienced with long-term disability appeals who reviews this list will immediately see why many COVID long haulers are likely to have the same challenges experienced by claimants with conditions like fibromyalgia, chronic fatigue, or the early stages of chronic diseases such as multiple sclerosis or Parkinson’s disease. Cognitive issues and brain fog are common to all these conditions. But proving brain fog is difficult, as these cognitive impairments are not the type of extreme cognitive deficits that can be shown by a neuropsychological exam, but they can make it very difficult to work. Fatigue can also be hard to prove, as there is no objective measure for fatigue, and it can vary day to day. As an experienced long-term disability appeals lawyer, I expect that insurers will make the same arguments to deny claims of disability based on long COVID as for these other conditions.
Some victims of Long COVID should not have these challenges if they have symptoms that can be shown with objective testing: lung damage can be shown on MRIs and lung function can be measured objectively by tests such as spirometry. Cardiac damage can be shown by cardiac MRIs or cardiopulmonary exercise tests.4 But studies have shown that fewer than half of COVID Long Haulers have verifiable organ damage. Those who have functional impairment which may not be subject to objective testing could have a harder time getting long-term disability insurers to accept their claim.5
For some Long Haulers, even establishing that one has Long COVID will be a challenge. It may be a challenge to even establish that you had COVID, much less that you suffer from Long COVID. One Stamford Connecticut long-term disability client of mine believes he had COVID early in the outbreak, but he did not have a fever. In the early days of the outbreak doctors believed a fever always accompanied COVID and sought to conserve scarce COVID testing resources by only testing if the patient had a fever. So, this client can’t even establish that he had COVID. He has several other conditions that we were able to prove, and we won his appeal. But others might not have such conditions and would have great difficulty proving that they even had COVID, much less establishing that they are disabled due to COVID.
How Long COVID is diagnosed can also be a challenge. Long COVID can be a “disease of exclusion,” which means it’s a diagnosis made after excluding all possible alternative diagnoses that could cause the symptoms.6 In my LTD appeal practice, I’ve found insurers are particularly skeptical of diagnoses of exclusion, as they want to explain symptoms that are not tied to a specific diagnosis to malingering or mental illness rather than an illness.
With every long-term disability claim or appeal, the diagnosis is only the first step. As the insurers like to say, a disability does not equal a disability – you must still show that the diagnosed condition keeps you from performing your job.
To successfully file a claim for LTD benefits for Long COVID or to win an appeal of a denial requires an individual and comprehensive strategy to prove a diagnosis and the impairments resulting from the diagnosis that prevent you from performing your job. This differs for every claimant. A long-term disability lawyer who has experience proving disability from difficult conditions can develop this strategy, which can include testing to establish a diagnosis and quantify impairments, statements from doctors, and functional tests.
Insurance companies, doctors, courts and the general public have been skeptical of conditions like chronic fatigue syndrome or fibromyalgia/myalgic encephalomyelitis that do not have a clear physical cause. In my experience, those who suffer from these conditions avoid discussing them because they don’t want to be its “just in your head.” The impairments these conditions cause can cause sufferers of the conditions to lead isolated lives. That means many people may not realize they know people who suffer from these conditions. Lastly, funding levels for these conditions have been subject to controversy.
I believe the publicity regarding Long COVID and funding for research could help those who suffer from other conditions that don’t have a clear physical cause. Due to the extent of the COVID pandemic and the coverage of the great suffering it has caused, many more people are likely to personally know someone who is suffering from Long COVID than these older conditions. It is easy to dismiss a condition that affects an unknown person across the country. When it affects someone you know, it is much harder to be skeptical. Media outlets from The Washington Post and the New Yorker to People Magazine have covered it. I hope the public’s acceptance of the reality of Long COVID will lead more people to accept the reality of these other conditions.
Money has poured into Long COVID research. Congress has provided $1.15 billion to the National Institutes of Health to study Long COVID. This research could help establish physical causes of some of the symptoms of these other conditions.
To help COVID Long Haulers, lawyers handling long-term disability applications and long-term disability appeals will have to use all the knowledge and tools they have developed over their careers helping those with claims insurance companies love to deny. We can all hope, however, that due to the knowledge and research generated by Long COVID, these hurdles for both COVID Long Haulers and victims of these other conditions will become easier to overcome.