Handling the Unrepresented Claimant
What you should and shouldn’t do in pro se situations.
Filing a claim is uncharted territory for many individuals, and it often leads to an increased sense of apprehension and feelings of uncertainty. Some individuals immediately gravitate toward legal assistance, while others begin the journey without representation. The path chosen by the individual may impact the experience, but it does not change the rules of the game. An understanding of some of the sensitivities that may arise during what can be a difficult time can lead to an improved claims experience for all involved.
When dealing with any claim, it’s important to employ solid technical skills, good manners, and good judgment. For the unrepresented claimant, this matter is personal, and the claims process may cause increased anxiety or anger. In the instance of working with a representative of the claimant, the claims professional must take care to confirm documentation to support the individual’s ability to discuss the claim and to participate in settlement discussions.
The claims professional needs to begin by confirming the claimant is not represented. Oftentimes, individuals may threaten to obtain a lawyer. They need to know that the claims professional will continue any claims discussions with their retained counsel.
The first encounter with any claimant is important, and this first impression will likely set the tone for how the process will proceed, including the investigation and evaluation of the claim. Ground rules should be established at the outset, and the claimant needs to understand that the claims professional is a representative of the insurer.
It’s important to promote an environment of trust and mutual respect through the use of active listening. Don’t personalize hostility you perceive from claimants; they may be nervous. Listening carefully and responding truthfully and respectfully can reduce a claimant’s anxiety and promote her willingness to engage in meaningful discussion.
With that said, avoid oversharing personal information in an effort to create a “relationship.” Don’t overpromise or guarantee anything. Rather, let the claimant know that you and the client are interested and involved in resolution efforts.
It’s also important to communicate in writing to avoid misunderstandings. Most often, a claimant or litigant is proceeding without having a foundational understanding of claims or the law. In contrast, a claims professional may rely on many sources of information to shape the management of a claim. An unrepresented person may be relying on a wide variety of sources, including internet research, gossip, television, and movies. These sources can create confusion and misunderstandings on the part of the claimant.
Educate the Claimant
It’s also important to avoid using too much legal jargon in your communications because claimants may find this confusing or interpret it as an effort to bully, threaten, or intimidate them. The internet is filled with plaintiffs’ attorneys’ websites that decry claims professionals and warn readers that while they are friendly on the phone, claims professionals are the puppets of insurance companies and may be getting rewarded for achieving low settlement figures.
With that in mind, explain the rules and tell the claimant what types of documents you need and why. Following jurisdictional rules can avoid a bad-faith claim later.
You’ll also need to explain basic terminology, such as what constitutes a tort, what HIPAA guidelines mean, and why they have to be followed. In the event of a claimant who is not the injured person, make sure she understands what a durable power of attorney for health care is and why it is needed. You’ll also need to make certain the claimant understands that consent forms should be completed and returned without making changes. Explain that medical authorization forms contain language dictated by state and/or federal requirements. In order to avoid delays, the forms should be executed as directed and without changes, additions, redactions, interlineations, or annotations.
It is also important that the individual understands the statute of limitations. Make sure the claimant knows what the timeframe is for the claims process period. Some clients may be willing to agree to tolling the statute of limitations if there is evidence a claim can be resolved within a relatively short period of time. Some examples of the basis for such action could be a delay in obtaining medical records or where there is additional time needed to obtain a final Medicare lien letter. Because agreeing to toll the statute of limitations in these examples could result in a savings of defense costs, it is worth discussing with a client on a case-by-case basis.
Understanding Medicare and other lien status is crucial to resolution, and consideration must be given to individual state requirements. The claims professional must be sure that claimants know how to obtain their Medicare lien information. If claimants are unable to do so, then the claims professional must obtain consent to gather Medicare lien information on their behalf.
Finally, claimants must understand that their descriptions of the events do not constitute a full investigation of the claim. The claims professional still has the obligation to investigate the claim by conducting interviews, taking statements, obtaining medical records and/or photographs, and securing other evidence.
Negotiating the Settlement
It is not uncommon for claimants to look to claims professionals for legal advice, direction, or to tell them how much their claims are worth. Again, it is important to use good claims-handling practices and transparency so that a claimant understands the claims professional’s role is on behalf of the client and not the claimant or injured party.
Claims professionals should never provide guidance, advice, or suggestions that could be interpreted as legal advice, but they should make sure that the claimant is aware of any jurisdictional limits that could affect her recovery. Be clear about the liens and the requirements to satisfy them. Remind claimants that they have the right to negotiate with Medicare or other lienholders themselves. Be clear about the terms of the settlement.
As soon as possible, confirm all details of the settlement in writing. If there is a lien amount to be considered, discuss with the claimant first and follow up with a letter that confirms the terms of the settlement and the details of any apportionment of the settlement or set-aside.
During the course of the investigation, it may become clear that the claim is non-meritorious. In that instance, it’s important to be truthful and explain why a claim is being denied or why there is a disagreement with the claimant’s own assessment of the value of the claim.
Keep in mind that it is crucial to practice within the Fair Claims Practice Act of the jurisdiction. Courts tend to allow leniency with unrepresented claimants and litigants in order to make sure self-representation does not impair their right to assert their claims.