Delivering Specialized Legal Services in Employee Benefits Cases With Mark DeBofsky

Mark DeBofsky is the Principal at DeBofsky Law, a law firm dedicated to representing ERISA benefits claimants in matters relating to retirement and pension plans and disability, life, health, and long-term care insurance. With over 40 years of experience handling every imaginable type of benefits claims, Mark has been responsible for numerous precedent-setting appellate court decisions and other legal rulings. In addition to his legal practice, Mark is also an accomplished educator and prolific writer. He served as an Adjunct Professor of Law at the University of Illinois Chicago School of Law (formerly John Marshall Law School) for over 20 years. He has received many awards and honors and made significant contributions to the field through his writings, including being a regular columnist for Law360 and the Chicago Daily Law Bulletin and an annual contributor to the ERISA Survey of Federal Circuits published by the American Bar Association.

Here’s a glimpse of what you’ll learn:

• Mark DeBofsky talks about the areas of concentration at DeBofsky Law
• The Employee Retirement Income Security Act (ERISA) and its impact on employee benefits
• Sample cases that DeBofsky Law has handled
• How do people find lawyers who specialize in ERISA?
• Mark’s advice to law students
• Why it’s important to find specialized legal help for disability and ERISA cases

In this episode…

Can the complex and rapidly changing landscape of employee benefits law be mastered to deliver specialized legal services? How can a lawyer stay on top of this intricate area of practice? As an accomplished attorney, legal analyst, and litigator, Mark DeBofsky is an expert in health, life, and disability insurance as well as the Employee Retirement Income Security Act (ERISA), and he suggests that the answer lies in continuous learning and a profound understanding of the subject matter. Mark underscores the importance of specialized knowledge and keeping abreast of the latest developments, stressing that this specific area of law requires more than a generalized approach. For this reason, people must get the proper representation to manage these complex areas so their benefits are not denied. In this episode of 15 Minutes, host Bela Musits speaks with Mark DeBofsky, Principal at DeBofsky Law, about his experiences and insights in the niche field of employee benefits law under ERISA. Mark shares intriguing real-life case examples, illustrates the importance of specialized knowledge in navigating ERISA disputes, and emphasizes the need to update your legal knowledge constantly.

Resources mentioned in this episode:

• Bela Musits on LinkedIn
• Gladiator Law Marketing
• Mark DeBofsky on LinkedIn
• DeBofsky Law
• The Employee Retirement Income Security Act of 1974 (ERISA)

Sponsor for this episode…

This episode is brought to you by Gladiator Law Marketing, where we deliver tailor-made services to help you accomplish your objectives and maximize your growth potential. To have a successful marketing campaign and make sure you’re getting the best ROI, your firm needs to have a better website and better content. At Gladiator Law Marketing, we use artificial intelligence, machine learning, and decades of experience to outperform the competition. To learn more, go to gladiatorlawmarketing.com or schedule a free marketing consultation. You can also send an email to ad**@gl*******************.com .

Episode Transcript

Intro  0:01   You’re listening to 15 Minutes, where we feature community leaders sharing what the rest of us should know, but likely don’t. Bela Musits  0:13   Hello, listeners. I’m Bela Musits host for this episode of the 15 Minutes Share Your Voice podcast, where we talk with top notch law firms and attorneys about what it takes to grow a successful law practice. This episode is brought to you by Gladiator Law Marketing, they deliver tailor made services to help your law firm accomplish its objectives and maximize your growth potential to have a successful marketing campaign. And to make sure you’re getting the best return on your investment, your firm needs to have a better website and better content. Gladiator Law Marketing uses artificial intelligence, machine learning and decades of experience to outperform the competition. To learn more, go to gladiatorlawmarketing.com where you can schedule a free marketing consultation. Today’s guest on the podcast is attorney Mark DeBofsky. He is a shareholder at DeBofsky Law, which focuses on helping clients resolve Employee Benefit disputes. Their work has led to the establishment of major legal precedents in the field of employee benefits law, especially with respect to disability, health and life insurance. Welcome to the podcast, Mark. Mark DeBofsky  1:25   Thank you, Bela. Bela Musits  1:31   Yes, thanks for being on the show. So let me ask you, can you tell us a little bit more about the law firm? Kind of in a broad sense? Mark DeBofsky  1:39   Sure. So our main area of practice, as you said is employee benefits. But the key word is ERISA. ERISA is an acronym for the Employee Retirement Income Security Act, which is a very broad based federal law that impacts both retirement and what the law refers to as welfare benefits, not welfare in the sense of public assistance, but benefits for the good and welfare of employees. And as a result of a 1987 Supreme Court decision, called pilot life versus dead cow. Even insured benefits fall under the umbrella of ERISA. And there has been a huge amount of litigation involving primarily health and disability insurance benefits, more self funded health and disability benefits. And that is the major focus of our practice. Bela Musits  2:48   Very nice. Now, does this affect all employees in the United States? Mark DeBofsky  2:54   Pretty much there. There are two major exceptions. But the major exceptions don’t impact most employees. If you are a government employee, if you work for the federal government, state government, municipal government, if you’re a public school teacher, your benefits are probably excluded from arrest. However, they may fall under ERISA. If your benefits are provided through a collective bargaining agreement, where the there might be another source of benefits other than the government itself. The other principle exception is what the law refers to as church plans. And the Supreme Court recently broadly defined church plans not only to include instances, such as somebody working for their local archdiocese, but also to encompass people who are working for health systems that either were originated by or have an ongoing association with the religious mission. And that potentially encompasses a large number of people. But even even if they are excluded from ERISA, because of church plan status. To make it more complicated, there’s a provision in the internal revenue code that allows the employer entities to opt into ERISA. And what has happened over the last few years is that religiously affiliated organizations have chosen to opt out of ERISA for their retirement plans in order to not be subject to funding and disclosure requirements, but then opt into ERISA or their welfare. Are benefits their health disability Life Insurance Group programs in order to, to some extent insulate themselves from liability? Bela Musits  5:11   Yeah, well, this sounds like a pretty specialized segment of practicing law. Mark DeBofsky  5:18   It is very specialized. So there are well over a million attorneys in the United States. And the number of attorneys who, like me represent individual claimants or represent smaller health care providers. Probably numbers about 200 nationwide, there are a few attorneys in this area. Bela Musits  5:47   Wow. And is this something they teach in law school? Or is this something that sort of happens after law school? Mark DeBofsky  5:54   This was not taught in the law school that I went to. So the ERISA law was passed in 1974. I graduated law school in 1980. I did not hear the word ERISA when I was in law school. I first encountered arresto. Early in my practice, when I agreed to represent a client whose wife had undergone foot surgery. And their health insurer, Blue Cross Blue Shield refused to pay the bill. So I filed a complaint in the circuit court of Cook County. And the next thing I knew the case was removed by the large law firm of general block to the federal district court in Chicago, where it was randomly assigned to the then Chief Judge of the district court, John Gray. Judge Grady called us in immediately and said to me, Mr. DeVos, ski. I don’t understand why this case is here. This case does not have a valuation that meets the jurisdictional minimum for federal court jurisdiction. So I’m very sorry, Your Honor, but there is no jurisdictional minimum for ERISA cases. So he said, Is there no way that you can get this case remanded to the state court, and I said, as much as I would like to be afraid this case is going to stay here. Whereupon the judge said, Okay, here’s the way it’s going to work. You guys are going to be here every morning at nine o’clock until you tell me the case is so it took three days. But my, my awakening through that case, to ERISA was really a huge wake up call to me, because I realized, Oh, my God, you know, this applies to health plans that most employees have to disability plans that most employees have. So I better get up to speed on this, or I’m not going to get anywhere with with these types of claims. And I’m going to have the same thing happen again. Yeah. So I did what most young lawyers do. I reached out to the trial lawyers community, and I asked who’s doing these cases. And the response I got was no op. So I thought, this is a tremendous opportunity for me to be in a niche that nobody else is in. So I started attending seminars. And by the second seminar, I felt that I knew as much as the presenters because it was still kind of a new area. You know, the, I mentioned a 1987 Supreme Court case that that took this area up. This was not long after that case was issued. And the defense bar knew what was going on. But the plaintiffs bar really did it. And I picked up the mantle, and they’ve been there since. Bela Musits  9:04   Wow, that’s a great story. It’s a great, great story. So since this is a federal regulation, do all of these get get whatever the right word is tried or adjudicated in federal court? Mark DeBofsky  9:19   Not necessarily, but practically, yes. So there is a provision in the ERISA statute that says that state courts have concurrent jurisdiction of benefit claims. But that doesn’t preclude a defendant from removing the case to federal court. If I initiate the case in state court. From a practical standpoint, all of these ERISA cases get adjudicated in federal court. I see. Bela Musits  9:49   And is there a like I can imagine from state to state there’s sometimes there’s variations in their laws. So how does that get handled? You know, when there’s sort of a federal statute, and then there’s the state regulations that that maybe don’t meld together or make it at least very confusing. Mark DeBofsky  10:11   So that’s an even better question than you necessarily would have perceived when you asked it. So I need to get a little wonky with you. There’s a provision in the ERISA statute at 29. United States Code section 1144. That says that ERISA preempts any state law that relates to employee benefits. So you think, okay, you know, with the state variations, ERISA preempts it. Yes. But there’s a provision within that statute that says that state laws regulating insurance are not preempted. So if you live in a state that says, oh, group health insurance plans must provide X. The insurance company can’t say, well, that’s preempted. So we don’t have to provide them. Right. If if it’s a fully insured plan, they have to comply with that state statute. If it’s a self funded plan, there’s yet another provision in the ERISA statute that says that self funded plans are not deemed insured plans. And they do not have to follow those state regulations. But there has been considerable considerable amount of litigation over the years, including cases that have gone to the Supreme Court about the issue that you laid out in your question, which is inconsistencies with state laws varying from state to state. And the Supreme Court has, for the most part, steamrolled state laws where there is inconsistency, and basically has decreed the plan administrator is required to follow the terms of the plan, and they should not be subjected to the burden of having to ascertain every state’s different laws. Got it? Bela Musits  12:14   Got it. So given given that this is a federal statute, if you will, then does that mean you you? Can you take cases all across the country? Mark DeBofsky  12:24   We do. Bela Musits  12:26   So what’s it tell me a little bit about the from from from a firm perspective, what’s the difference between practicing in a specific geography versus sort of practicing, you know, in all 50 states? Mark DeBofsky  12:42   It really depends on what the case is, and what kind of evidentiary requirements there are going to be to try the case or adjudicate the case. So, for instance, we handle health insurance cases. And some of those cases involve life and death decisions, where somebody needs a particular treatment now, or if they don’t get it within a certain window there could potentially die. Those types of cases are traditionally resolved by temporary restraining order hearings, in court. It’s mostly impractical for us to handle a TR o proceeding outside of Chicago. But if we’re dealing with a denied claim, or disability denied health benefit claim or a disability benefit claim, it doesn’t really matter. Where we are, we are. The law varies somewhat from federal circuit, the Federal Circuit, but it’s generally uniform. Bela Musits  13:55   Yeah, yeah. That can you give a I know you sort of in talking about so far, you’ve made a couple of examples. Can you give us a few more examples, so that listeners can kind of get a feel for what what type of cases or what the issues are that you guys deal with? Mark DeBofsky  14:11   So let me give you an example of a life insurance manager that we handled. And then I can give you an example, a couple of examples, an example of disability and then health insurance perfect. We were approached a few years ago by the widow of a young man who had ruptured his Achilles tendon playing pickup basketball. And he had tendon repair surgery, which was successful. But when the day he returned to work, about a week or so after the surgery, he collapsed on the job, and he died of a pulmonary embolism. The insurance company asserted that He died due to a medical cause. We asserted that he died due to an accident, because the injury is what set off the course of events that led to his death. We ultimately prevailed on that case in the Federal Court of Appeals for the Seventh Circuit in Chicago, because an earlier case, pointed out that under an accidental death insurance policy if you die due to a medical condition, there’s no comfort. Yes, in the opinion, the judge gave the example of what if somebody suffers a deranged knee playing tennis, and they subsequently die of a complication from surgery to repair that injury, that would be confronted. And lo and behold, we had the same judge in my case, and he could not possibly get around his own hypothetical. Right? Right. Bela Musits  16:09   So it worked out really well for you. Mark DeBofsky  16:11   It worked out well for our client. An example of a disability benefit claim. We represented an accountant a few years ago, who had almost everything imaginable wrong with her. She was diabetic, which caused a host of other issues. And she claimed that she couldn’t work. So the insurance company had denied her claim, saying, Oh, she has the ability to work. But the policy terms provided that she could recover disability benefits if she was unable to perform the duties of her regular occupation. And we argued that the insurance company never took into consideration the mental duties that an accountant would perform the cognitive duties where you have to be maintain attention and concentration. And we supplemented that argument, or we supported that argument with a medical report that was generated in the course of a concurrent social security disability claim. That said that she had substantial impairment in the ability to concentrate and maintain attention. And the Court of Appeals overturned the denial of benefits in their case. And in the health insurance context. The one case that I am the most proud of, during the pandemic. Early in the pandemic, we were contacted by the family of a younger man who was dying of liver disease and needed a liver transplant. And his insurance company had denied approval for the transplant on the ground that he had developed liver disease due to alcohol use. And that under their guideline, you have to establish abstinence for at least six months before they will approve a liver transplant. I did some research. I learned that that guideline is no longer the consensus of medical opinion. In fact, the reality is that people who have developed syrup cirrhosis, due to an alcohol use disorder, if they get a liver transplant, the recidivism rate is essentially zero. Because they’ve gotten a new lease on life, and they do not return to drink. And so I was able to gather medical journals that supported that the guideline was invalid. I reached out to the health insurance company. And they said, this is very helpful, but we’re going to need to see all of the medical records. And my client had been listed at two facilities that were capable of doing the transplant. And I called the transplant surgeons at both of those facilities. Amazingly, I was able to reach both of them directly. And I said, you know we need to get your records. And both doctor said the same thing. I’m going to get those records to you in just a few minutes. I They don’t care about HIPAA, we want to save this guy’s life. They got us the records, the transplant was approved 24 hours later. My clients doing very well today. Bela Musits  20:11   Wonderful, what a great story. What a great story. So can you tell us a little bit about the firm, when, when it was started, how many attorneys you have, etc. Mark DeBofsky  20:22   So I’ve been doing this work for 40 some years. So, the current firm is just about to celebrate its 10th anniversary. I had previously been affiliated with another firm that no longer exists, where other people in the firm were doing different work. Although somewhat complementary, they were doing a lot of work in the social security disability area. We shortly after we started the firm, 10 years ago, we stopped doing social security disability claims entirely for a variety of reasons. And our focus is on employee benefits with an emphasis on health life and disability insurance, although we do handle some pension disputes as well, and retirement benefits like 401k plan dispute. Currently, we have four attorneys in the firm, if we get as many as five or six, even for a short time, but we’re really operating as a boutique firm. And we’re operating a lien, a lien law firm because we’re in this one lane that we feel we can handle very efficiently and effectively. And we’ll probably stay at this size for a while. Everybody in the firm is interested in doing legal work in representing clients and not in doing law firm administration. Yeah. So the leaner the law firm, the less the administration. Bela Musits  22:18   All right. All right, super. So, you know, I was thinking about this, as we’re chatting here. If, let’s say I had, I wanted to get some procedure done, and for whatever reason, my medical insurance declined me. And so I said, Okay, I want to contact an attorney, you know, I know a handful of attorneys, most of them tend to be corporate on the corporate side, and their business attorneys, you know, I’d call them one of them. So how does it how do I, what’s what’s the path for me to get to someone specialized like yourself, because it’s truly what I want. It’s just like, if I’m having a liver transplant, I want a liver transplant surgeon, I don’t I don’t want to go to somebody who’s who’s not doing that all the time. So what’s the path for me to sort of get to an attorney like yourself? Mark DeBofsky  23:07   There’s actually two parts to that question. And get to the part about how people find us second, the first part is I would encourage anybody in that situation to reach out to an attorney immediately. Because assuming a claim is going to be governed by is governed by ERISA, there is almost always a mandatory pre litigation appeal. That has to be conducted before you’re allowed to go to court to challenge a denial. And there are very detailed regulations pertaining to claim appeals that were drafted by the department US Department of Labor. And while ostensibly a layperson can navigate that it’s it’s a legal proceeding. And if you don’t do it properly, in a lot of courts, you would not be allowed to introduce any new evidence in court if the appeal was unsuccessful, so you want to put the appeal in the hands of somebody who has expertise. As far as how we generally ask people or generally expect people to find us. It would be completely unfeasible for us to do anything like advertise on television, right? We’d get so many calls, that we wouldn’t be able to handle those calls. So we need to narrow get in the mid 1990s when the internet was just starting. I was an early adopter and I set up a while website, even though basically I had a one person firm at that time. And the reason that I did that was not so much to attract business. But that T to use it as a validator of who I was what my experience was. So if a potential client was considering me, they could go to the internet, and sure what my experience was, that’s changed. And the internet is certainly a source of business. All of the members of our firm also publish a great deal, both in professional and lay publications. We speak all over the place, mostly to legal groups, but some delay groups. And we network a lot. You know, I never know, nobody told me about this in law school. And I’ve realized over the years, the importance of networking, as broadly as possible. The, you know, historically, or traditionally, lawyers network with other lawyers, or associations. And while that still exists, to an extent, I think that the reach of that kind of networking has diminished over the years. So I do belong to a couple of different networking groups, which I have described as a far a force multiplier for my network. Because it just increases my visibility. And I’m particularly focused to the extent I can be of doing things that make me known to the corporate lawyers who you described, when that email comes flying around their their law firm saying, Does anybody know a lawyer who does this? That they’re going to respond? Call Mark de Bosque? Right. And usually, when that happens, the potential client calls and says, You got to be the person because I got your name from three different sources. Right? Bela Musits  27:36   Right. That’s always a good, a good sign when you get your name from three different places. Super. So let me ask you, I saw on your background that you’ve done some teaching at law school. So if I was a law student, you know, I’m going to graduate in a few months. What advice would you give me? Mark DeBofsky  27:59   Actually, if if you have any interest in employee benefits, it’s a very hot area. And employers are looking for employee benefits lawyers. And even though that’s been the case for several years, the Career Services offices at law schools don’t seem to have gotten that message. But, you know, I’m trying to think how I want to break this up. We have been contacted from time to time by law students who, for some reason or another, had an interest in the field. Some of them had worked in HR before they went to law school. So that kindled their interest. Right taught at University of Illinois Chicago School of Law for 20 years, which was formerly known as the John Marshall Law School. And they had a Master’s of law program that was specifically devoted to employee benefits. And I taught it I’ve taught a class in Employee Benefits litigation through that program. And the program has suffered some attrition. It I’m not sure why. But that program attracted a number of people who had an interest in the Employee Benefits bill. And those students have gone on to great things. A lot of them are very highly placed now within the US Department of Labor, with employee benefits organizations like Mercer, Morgan Stanley, other organizations, large accounting firms, consulting practices, so they’ve done very well because It’s specialized knowledge that is in high demand. Bela Musits  30:04   Yeah. Excellent. Excellent. So Mark, I want to wrap up where we’ve been, we’ve been chatting for almost a half hour here. So what if our what’s the best way for our listeners to find you and to reach out to you? Mark DeBofsky  30:17   Probably through our website. The website is www.debofsky.com. So let me spell that. It’s debofsky.com. Bela Musits  30:38   Excellent. And I will make sure that information is in the show notes. So people can find it. So my last question, is there anything that I have not asked you that I should have asked you? Or do you’d like to share with our listeners? Mark DeBofsky  30:54   The only thing that I want to add in and I think you covered this is that this is really important stuff for most people. And, you know, nobody expects to experience a disability or lose a loved one or in an accident or incur a major medical expense that isn’t going to be covered by their insurance. But it does happen. And when it does, it’s really important to make sure you find somebody who has the experience and the knowledge to really assist in resolving these problems. Because these are not issues that should be handled by general practitioners or dabblers. You know, I I subscribe both to Westlaw and Lexus. And every morning, I get every new ERISA case that’s issued by the courts so that I can keep up. This is not a static area of practice, it changes dramatically and rapidly. So it’s, like, I love what I do. I really enjoy working in this area. It’s exactly what I wanted. When I first thought about going to law school, like most people who consider going to law school, their motivation is they want to help people. And this is a wonderful outlet to help people working in this area. Bela Musits  32:37   That’s a great, great way to to wrap up this podcast. Mark, I really appreciate you being on the podcast. You were a great guest and I really enjoyed our conversation. Mark DeBofsky  32:48   Thank you. Likewise. Outro  32:51   Thanks for listening to 15 Minutes, be sure to subscribe and we’ll see you next time.