EN FRANKEL & NEWEIELD, P.C.

evidence or rationale. After receiving the claimant’s response to the
new evidence or rationale or notification that the claimant will not be
providing any response, the plan will have whatever time was left on
the original appeal resolution time period or 30 days, whichever is
greater, in which to issue its final decision.

Independence and Impartiality - Avoiding Conflicts of Interest

Alternative A

The proposed regulation regarding the impartiality of claims personnel is essential and I applaud
the DOL’s effort to minimize the effect that biased individuals have on the claims and appeals
process. However, the proposed regulation needs clarification in three areas.

First, the proposed regulation should make clear that impartiality is ensured, even where the
plan, itself, is not directly responsible for hiring or compensating the individuals involved in
deciding a claim. This clarification is necessary because, as a practical matter, plans frequently
delegate the selection of experts to third-party vendors who, in turn, employ the experts.

Second, clarification is needed concerning which individuals are “involved.” Claims
administrators often protest that physicians, or other consulting experts, are not “involved in
making the decision” but merely supply information (such as an opinion on physical restrictions
and limitations) that is considered by the claims adjudicator. Under this logic, plans may argue
that consulting experts are not affected by the impartiality regulation.

Finally, the proposed regulation should make clear that not only claims adjudicators and
consulting physicians must be impartial. Vocational experts and accountants are also frequently
used in the claims process and should be included in the scope of the impartiality requirement.

In light of these concerns, I suggest that the proposed regulation language be amended as follows
(added language is bolded and underlined):

29 C.F.R. §2560.503-1(b)(7) [proposed regulation]

In the case of a plan providing disability benefits, the plan and its agents,

contractors, or vendors (such as any entities who supply consulting
experts to plans) must ensure that all claims and appeals for disability
benefits are adjudicated in a manner designed to ensure the
independence and impartiality of the persons involved in making the
decision or who are consulted in the process of making the decision.
Accordingly, decisions regarding hiring, compensation, termination,
promotion, or other similar matters with respect to any individual, (such as
a claims adjudicator, vocational expert, accounting expert, or medical
expert) must not be made based upon the likelihood that the individual will
support the denial of benefits.


GS FRANKEL & NEWFIELD, P.C.

the court does not remand, I suggest the following amendment (added language is bolded and
underlined, deleted language shown by strikeout):

29 C.F.R. 2560-503-1(I)(2)(ii) [proposed regulation]

If a court rejects the claimant’s request for immediate review under
paragraph (I)(2)(i) of this section on the basis that the plan met the
standards for the exception under this paragraph (I)(2)(ii), the claim shall
be considered as re-filed on appeal upon the plan’s receipt of the decision
of the court. Within ten (10) days after the receipt of the decision, the plan
shall provide the claimant with notice of the resubmission_and notify the
claimant of the right to supplement the appeal if she chooses. If the
court accepts the claimant’s request for immediate review, the court
will retain jurisdiction and decide the case applying de novo review.

Right to Claim File and Meaning of Testimony
There is a lack of clarity concerning what manner of “testimony” is contemplated by the new
regulations.

In the preamble to the proposed regulations, the DOL has stated: “the proposal would also grant
the claimant a right to respond to the new information by explicitly providing claimants the right
to present evidence and written testimony as part of the claims and appeals process.” Note the
underscored language refers to “written testimony.” But the actual proposed regulation uses this
phrasing: “[the processes for disability claims must] allow a claimant to review the claim file
and to _present_evidence and testimony as part of the disability benefit claims and appeals
process.” 29 C.F.R. §2560.503-1(h)(4)(i)[proposed regulation]. Here the regulation refers to
“testimony” without limiting the type of testimony to “written” testimony.

By comparison, the current regulation uses the following language: “[the process must] provide
claimants the opportunity to_submit written comments, documents, records, and_other
information relating to the claim for benefits.” 29 C.F.R. 2560.503-1(h)(i)(2)[current
regulation].

Hence, there is an inconsistency between the preamble and the proposed regulation in that the
preamble specifies “written testimony” whereas the proposed regulation just says “testimony.”
This could lead to costly disagreements over whether the regulation contemplates actual live
testimony, i.e. a hearing.

Furthermore, under the current regulation sometimes claimants submit testimony in the form of
an audio or video CD. This is particularly useful in cases where the claimant cannot read or
write so that a written statement is impossible. It is also helpful in those cases where actually

10


EN FRANKEL & NEWFIELD, P.C.

suit in district court; we are not establishing a rule that will adversely affect the
rights of claimants.

Id. In light of this holding from Vega, I recommend a rule that would require the plan
administrator to accept and review evidence and treat it as part of the record, so long as it is sent
in time for the administrator to consider the evidence before litigation is commenced.

Discussion of the Decision and Its Relationship to SSDI or other Disability Awards

Alternative A

The regulation as presented, requiring a claims administrator to meaningfully distinguish the
views of treating physicians or other entities that are paying benefits, will be helpful. Often,
administrators ignore evidence that is favorable to the claimant. Generally, if the administrator
pays any attention to contrary opinions, my clients receive pre-packaged or boilerplate
paragraphs in the denial letters that have nothing to do with their claims. Because of this they
cannot mount a response. This stands in the way of full and fair review. Sometimes courts do
not understand the difference between the type of explanation required by ERISA and these
empty paragraphs. Assuming that this regulation is intended to change plans’ reliance on this
sort of explanation or a wholesale failure to address the contrary evidence, I am in favor of the
regulation.

Alternative B

The regulation requiring a discussion about the difference between the plan’s decision and
awards made by other systems, such as Social Security, should be expanded to set forth a
deferential review requirement. The regulation could utilize the same language as the regulatory
settlement agreements that have been used by many state insurance commissioners in response to
concerns about disability claims processes used by insurers such as UNUM. For example, in the
regulatory settlement agreement UNUM was required to follow, this language was used:

The Companies must give significant weight to evidence of an award of
Social Security disability benefits as supporting a finding of disability,
unless the Companies have compelling evidence that the decision of the
Social Security Administration was (i) founded on an error of law or an
abuse of discretion, (ii) inconsistent with the applicable medical evidence,
or (ili) inconsistent with the definition of disability contained in the
applicable insurance policy.

Including similar language in the proposed regulation would be helpful to assure that plans give
the appropriate weight to an award made by another entity.

II. Comments on Technical Matters in the Proposed Regulations

Effective Date of Proposed Regulation


GS FRANKEL & NEWFIELD, P.C.

Alternative B

The proposed regulation appears to prohibit the plan from employing claims adjudicators or
experts who are conflicted. However, the regulation could use some more teeth to prevent
disagreements and litigation over mixed motives for using these individuals. The regulation
should make clear that if the conflict plays any part in the decision to retain, hire, or compensate
the claims handler or other expert, the decision would violate the regulations. In light of these

concerns, I suggest that the proposed regulation language be amended as follows (added
language is bolded and underlined):

29 C.F.R. §2560.503-1(b)(7) [proposed regulation]

Accordingly, decisions regarding hiring, compensation, termination,
promotion, or other similar matters with respect to any individual (such as
a claims adjudicator or medical expert) must not be made based upon the

likelihood, in whole or in part, that the individual will support the denial of
benefits.

Opportunity to Supplement the Record

Although the EBSA has not chosen to regulate about this, it should do so. Many meritorious
disability claims are denied and the courts affirm these determinations because of issues
regarding the scope of the record on review in the court. For instance, Social Security Disability
Insurance decisions, which are the focus of some of the proposed rules, are often crucial to
proving disability claims. However, the Social Security Administration (“SSA”) takes time in
issuing its decisions and the SSA’s ruling may sometimes come after the final denial on appeal
of the disability plan. This is true as well for other kinds of evidence. Even where it would not
be a problem to do so, plan administrators often refuse to consider this type of evidence,
choosing instead to shut the door on a meritorious claim. Meanwhile, plans will often
counterclaim to recover the offset that is provided by the SSA benefit. Metropolitan Life Ins.
Co. v. Glenn, 554 U.S. 105 (2008). Sometimes a claims administrator may rush an appeal
decision through simply to avoid the claimant being awarded SSDI and having that evidence in
the claims file. There is a clear solution to this that would track the Fifth Circuit’s en banc
holding in Vega v. National Life Ins. Serv., Inc., 188 F.3d 287, 300 (5th Cir. 1999), where the
Court wrote:

We hold today that the administrative record consists of relevant information
made available to the administrator prior to the complainant's filing of a lawsuit
and in a manner that gives the administrator a fair opportunity to consider it.
Thus, if the information in the doctors' affidavits had been presented to National
Life before filing this lawsuit in time for their fair consideration, they could be
treated as part of the record. Furthermore, in restricting the district court's review
to evidence in the record, we are merely encouraging attorneys for claimants to
make a good faith effort to resolve the claim with the administrator before filing


EN FRANKEL & NEWFIELD, P.C.

In the case of a claim for disability benefits, if the plan fails to strictly
adhere to all the requirements of this section with respect to a claim or
appeal,

Deemed Exhaustion of Claims and Appeals Processes

I am pleased that the DOL has undertaken to clarify the consequences that will result when the
plan does not comply with the procedural requirements of the regulations. The DOL has wisely
separated the consequences into two categories, ie. for serious violations and for minor
violations. I see four areas that could be improved in the proposal.

First, the standard of judicial review that will apply requires clarification because there is a
potential conflict between language in the preamble and the proposed regulation. The preamble
says: “in those situations when the minor errors exception does not apply, the proposal clarifies
that the reviewing tribunal should not give special deference to the plan's decision, but rather
should review the dispute de novo.” The underscored language clearly contemplates that a court
should exercise de novo review. However, the regulation itself says: “if a claimant chooses to
pursue remedies under section 502(a) of ERISA under such circumstances, the claim or appeal is
deemed denied on review without the exercise of discretion by an appropriate fiduciary.” 29
C.F.R. §2560.503-1(1)(2)(i) [proposed regulation]. I anticipate that plans will argue that this
underscored language does not go far enough to require a court to exercise de novo review. For
example, this language could mean simply that the plan did not make a decision and another plan
review would be ordered rather than de novo judicial review. To avoid a potential ambiguity on
this point, I suggest the following amendment to the proposed regulation (added language is
bolded and underlined):

29 C.F.R. 2560.503-1(I)(2)(i) [proposed regulation]

if a claimant chooses to pursue remedies under section 502(a) of ERISA
under such circumstances, the claim or appeal is deemed denied on
review without the exercise of discretion by an appropriate fiduciary, and
the reviewing tribunal should not give special deference to the plan's
decision, but rather shall review the dispute de novo.

Second, the portion of the proposed regulation concerning refiled appeals requires clarification.
The claimant whose appeal is refiled may need to supplement the record for the refiled appeal,
since it is possible that his or her attempt to communicate with the plan was thwarted in some
way. I suggest amending the regulation to require the plan to give the claimant notice of his or
her right to supplement the appeal.

Third, there could be unclarity arising from how to interpret the phrase “reasonable time.” It
would be better to specify a period of time. Ten (10) days seems reasonable.

Finally, for the same reasons as described above with regard to the appropriate standard of
judicial review, it would be beneficial to specify the standard of judicial review is de novo when


F

N FRANKEL & NEWFIELD, P.C. ATTORNEYS AT LAW
Justin C. Frankel* 585 Stewart Avenue
" Suite 312
Jason A. Newfield’ Garden City, NY 11530
“Admitted in NY, CT'and PA January 19, 2016 Tek: (516) 222-1600
Fax: (516) 222-0513
By Mail: Office of Regulations and Interpretations, www.frankelnewfield.com
Employee Benefits Security Administration
Room M-5655
US. Dept. of Labor
200 Constitution Avenue NW
Washington D.C. 20210
Re: Claims Procedure Regulations for Plans Providing Disability Benefits

RIN No.: 1210-AB39
Regulation: 29 C.F.R. §2560.503-1

Dear Assistant Secretary Borzi:

I write to offer comments on the proposed regulations for amending the claims procedure
regulations applicable to disability benefit plans. I am interested in the content of these
regulations because I am an attorney whose practice is focused on the representation of claimants
in ERISA-governed disability benefit disputes. I am well poised to comment because I litigate
these matters in Federal Courts throughout the United States and have an appreciation for the
impact of these issues upon my clients.

Thave organized my comments as follows. First, I address the most important substantive issues
for the DOL to address as it finalizes the proposed regulations. These comments relate to where
I believe the DOL should make a substantive change in the proposed regulations. Second, I have
set out what I see as the most important technical issues in the proposed regulations. These are
matters that do not change the substance of a proposed regulation but request language changes
for purposes of greater clarity or conformity with other regulations.

I. Comments_on Substantive Matters in the Proposed
Regulations

Comment on Notice for Applicable Statute of Limitations

The DOL has invited comment in the statute of limitations issues that have developed since the
Supreme Court’s decision in Heimeshoff v. Hartford Life & Accid. Ins Co., 134 U.S. 604 (2013).
I agree that this is a crucial area for regulation as the Heimeshoff decision has created confusion
and much litigation. The DOL can assist by creating standards for what is a reasonable plan-
based limitations provision in the same way that the DOL used its regulatory power to create
timing deadlines for the claims process in prior versions of the regulations. Since Heimeshoff left
open the possibility that an internal limitations period could run before the appeals process is


EN FRANKEL & NEWFIELD, P.C.

claimants who may then be deprived of benefits for several months while appeals proceed. The
claimant should have the option to immediately appeal that determination to avoid the economic
hardship in the future.

Disclosure of Internal Rules ete.

The DOL’s proposed regulation regarding disclosure of the internal rules or criteria used to make
a disability benefit decision, 29 C.F.R. §2560.503-1(g)(1)(vii)(B)[proposed regulation], is
helpful because internal rules, guidelines, protocols, standards, claims manuals, and similar
materials often create hidden plan terms that the claimant is unable to learn of or discover in
order to address them in the appeal. As is true in the healthcare context, plans sometimes argue
that internal criteria are confidential or proprietary. But keeping the rules that are used to
administer a plan a secret is inconsistent with the most basic premise of ERISA. Benefits must
be administered “in accordance with the documents and instruments governing the plan.” 29
U.S.C. §1104. In addition, much litigation would be avoided if the claimant could know what
criteria he or she needed to meet in an appeal See e.g. Cook v. New York Times Co. Long-Term
Disability Plan, 2004 WL 203111, at *10 (S.D.N.Y. Jan. 30, 2004); Craig v. Pillsbury, 458 F.3d
748, 754 (8th Cir. 2006)(decrying the use of “double-secret” plan terms); Samples v. First Health
Group Corp., 631 F. Supp. 2d 1174, 1183 (9th Cir. 2007). Given that the regulations require
adverse benefit determinations to include the reasons for the denial and the applicable plan
terms, this additional requirement should not be onerous and would promote the dialogue
between claimant and plan that ERISA contemplates. Booten v. Lockheed Med. Ben Plan, 110
F.3d 1461, 1463 (9th Cir. 1997)(“in simple English, what this regulation calls for is a meaningful
dialogue between ERISA plan administrators and their beneficiaries.”).

Notice of Right to Retain Counsel for Appeal

Often ERISA claimants who have been wrongly denied disability benefits do not realize that
they have the right to be represented in the administrative appeal process. Not knowing what
evidence would have proven their claim to the plan administrator, and limited by the
administrator or the court in submitting any new evidence in support of their claims in later
litigation, they have often squandered their last, best opportunity to prove a meritorious claim. I
propose that the DOL adopt a regulation that benefit denials must advise claimants of their right
to hire an attorney to represent them in the appeal phase. The Social Security Administration
does this. There is no reason to hide this right from claimants.

Thank you for your consideration of these important issues.
Very truly yours,

mane ve po PC.

By: Jason ‘ome

12


EY FRANKEL & NEWFIELD, P.C.

seeing the claimant might be important. As such, I am concerned that the reference to “written
testimony” in the preamble might give plans the ammunition to disallow any audio or video
submissions on the grounds that these forms of evidence do not represent “written evidence.” If

this were the interpretation given to the language in the proposed regulation, it would actually
put claimants in a worse position than they face at present.

Further, the proposed regulation’s verbiage, i.e. “evidence and testimony” could be interpreted to
impose courtroom evidentiary standards for claimants submitting proof of their claim —
something that is not normally applied in the ERISA context. Plans are in a position to observe
tules of evidence as they have in-house counsel and other legal resources to rely upon to assure
compliance with the rules of evidence. But claimants, who are often representing themselves,
are not equipped to understand, much less apply, the usual evidentiary standards suggested by
the phrase “evidence and testimony.” The agency needs to make clear that it is not curtailing or
narrowing the types of information that claimants may submit to the administrator.

III. Other Issues of Concern with the Regulations

Adverse Benefit Determination to Include Rescission

Alternative A

An addition to the regulation that an adverse benefit determination includes an adverse decision
on coverage is necessary. However, I question whether the definition of “rescission” in 29
C.F.R. §2560.503-1(m)(4)(ii) [proposed regulation] is sufficient to cover the situation where the
plan asserts that coverage never existed in the first place. Coverage disputes regarding disability
benefits should be appealable by the claimant as a matter of full and fair review. I suggest the
following amendment (added language indicated by bolding and underlining):

29 C.F.R. §2560.503-1(m)(4)(ii) [proposed regulation]

In the case of a plan providing disability benefits, the term “adverse benefit
determination” also means any rescission of disability coverage with
respect to a participant or beneficiary (whether or not, in connection with
the rescission, there is an adverse effect on any particular benefit at that
time). For this purpose, the term “rescission” means a cancellation or
discontinuance of coverage or any other repudiation of coverage that
has retroactive effect, except to the extent it is attributable to a failure to
timely pay required premiums or contributions towards the cost of
coverage.

Alternative B

The proposed language regarding treating rescissions as adverse benefit determinations should
be expanded to encompass any situation where a limitation is invoked so that the claimant can
immediately appeal. For instance, a plan may approve benefits but may invoke a temporal
limitation that exists in the plan, such as a mental illness limitation. Many insurers defer the
right to appeal until the date that benefits end, which imposes significant economic hardship on

11


EN FRANKEL & NEWFIELD, P.C.

To avoid the application of the previous regulations to disability claims that are already in
process before the effective date, I suggest the following text be added:

The regulations shall apply to all claims pending with the plan
fiduciary on or after the date that the regulations go into effect.

The holding in Abram v. Cargill, 395 F.3d 882 (8th Cir. 2005), was seriously undermined when
the Eighth Circuit later concluded that its decision in Abram was grounded in the pre-2000
version of the claims regulations and would not apply to cases decided under the post-2000
claims regulations. See Midgett Washington Group Int'l LTD Plan, 561 F.3d 887, 894-96 (8th
Cir. 2009). To avoid this sort of problem occurring again, the above suggested language should
be added to the proposed regulations.

Notice of Right to Request Relevant Documents

The regulation concerning notice of the right to request relevant documents contained in 29
C.F.R. §2560.503-1(g)(1)(vii)(C) [proposed regulation] is an improvement since it was formerly
missing from the regulation. However, it would be more helpful to claimants to use the words
“claim file,” which is plain language and is consistent with the amendment at 29 C.F.R.
§2560.503-1(h)(4)(i) [proposed regulation]. Attorneys understand the language of (g)(1)(vii)(C),
but lay persons, who are the actual participants and often not represented, may not realize what
rights are given here.

Accordingly, I suggest the following amendment to the proposed regulation (added language is
underlined and bolded):

29 C.F.R. §2560.503-1(g)(1)(vii)(C) [proposed regulation]

A statement that the claimant is entitled to receive, upon request and free
of charge, reasonable access to the claimant’s claim file, including
copies of all documents, records, and other information relevant to the
claimant's claim for benefits. Whether a document, record, or other
information is relevant to a claim for benefits shall be determined by
reference to paragraph (m)(8) of this section.

Deemed Exhaustion Drafting Issue

This regulation should be edited to clarify that the deemed exhausted provision applies to both
claims and appeals, not just “claims.” Presumably, if there is a violation of the regulations, the
claimant can seek review regardless of whether the claim is in the “claim” or the “appeal” stage.
I suggest the following clarifying language (added language is bolded and underlined):

29 C.F.R. §2560.503-1(I)(2)(i) [proposed regulation]


EY FRANKEL & NEWFIELD, P.C.

that the court will review. Where the claimant, as plaintiff, has the burden of proof on most
issues, this only makes sense. In most litigation contexts, the party with the burden of proof is
given the last word. Here, giving the last word to the claimant during the claims appeal process

is, in effect, giving claimant the right of rebuttal in litigation. This is part and parcel of a full and
fair review.

There is, however, a countervailing concern that while this extra opportunity to submit proof to
the plan exists, claimants will be extending their time without benefit payments. This is a
problem that already exists and could be exacerbated. Plans have protested that giving the
claimant the last word will make the internal appeals processes go on forever. This argument is
out of touch with the reality of being an ERISA disability benefits claimant. These claimants, in
my experience, would not continue the process ad nauseum while they are unable to pay their
mortgages and feed their families.

The following suggestion places reasonable limits on both claimants and plan administrators and
responds to the concern that claimants will have to wait too long for determinations on review.
While claimants will want to make fast work of their responses because they are usually without
income during this process, the type of evidence they often need to respond to new evidence or
rationales by the plan may require hiring an expert such as another physician, psychologist, or
vocational consultant. These professionals are not always readily available for quick turn-
arounds and, depending on the new information such experts are responding to, they may need
weeks to evaluate the new information. For this reason, claimants should have at least 60 days to
respond to new evidence or rationales provided by the plan on appeal. Moreover, the period for
the decision on review to be completed should be tolled during this 60-day period. When the
claimant has responded, the plan administrator should be allowed whatever time was left under
the existing regulations or 30 days, whichever is longer, to issue its determination on review.
This rule should apply whether the new information is a new “rationale” or new “evidence.”

Accordingly, I suggest the following amendment to the proposed regulation (new language
indicated by bolding and underlining):

2560.503-1(h)(4)(ii) [proposed regulations]

(ii) Provide that, before the plan can issue an adverse benefit
determination on review on a disability benefit claim, the plan
administrator shall provide the claimant, free of charge, with any new or
additional evidence or rationale considered, relied upon, or generated by
the plan (or at the direction of the plan) in connection with the claim; such
evidence must be provided as soon as possible and sufficiently in
advance of the date on which the notice of adverse benefit determination
on review is required to be provided under paragraph (i) of this section to
give the claimant a reasonable opportunity to respond prior to that date.

Such new evidence or rationale must be provided to claimant before
the decision on appeal is issued and the claimant must be afforded
up_to 60 days to respond. The time to render a determination on
review will be suspended while the claimant_responds to the new


EN FRANKEL & NEWFIELD, P.C.

a statement that such rules, guidelines, protocols, standards or other
similar criteria of the plan do not exist.

(7) In the case of an adverse benefit determination on review with

respect to a claim for disability benefits, a statement of the date by
which a claimant must bring suit under 502(a) of the Act. However,

where the plan includes its own contractual limitations period, the
contractual limitations period will not be reasonable unless:

a. it_ begins to run_no earlier than the date of the claimant’s
receipt of the final benefit determination on review including any
voluntary appeals that are taken;

b. it expires no earlier than 1 year after the date of the claimant’s

receipt of the final benefit determination on review including any
voluntary appeals that are taken;

c. the administrator provides notice to the claimant of the date
that the contractual limitations period will run; and

d. the contractual limitations period will not abridge any existing
state limitations period that provides for a period longer than one

year.

(8) In the case of an adverse benefit determination on review with respect
to a claim for disability benefits, the notification shall be provided in a
Culturally and linguistically appropriate manner (as described in paragraph
(p) of this section).

Comment on Timing of Right to Respond to New Evidence or Rationales

The DOL clearly wishes to improve things for claimants who are ambushed with new rationales
or evidence during review on appeal. I commend this effort, since sandbagging has been a
persistent problem in the ERISA appeals process and some courts have not appreciated how
prejudicial this is to claimants. In Abram v. Cargill, 395 F.3d 882, 886 (8th Cir. 2005), the court
articulated the problem as follows:

[w]ithout knowing what “inconsistencies” the Plan was attempting to resolve or
having access to the report the Plan relied on, Abram could not meaningfully
participate in the appeals process. . . This type of “gamesmanship” is inconsistent
with full and fair review.

Id. Given that it is often very hard to supplement the record in litigation, the proposed change
offers some assurance that a claimant can contribute his or her relevant evidence to the record


EN FRANKEL & NEWFIELD, P.C.

complete (even where exhaustion is mandatory), the DOL is in a good position to clarify that
such an approach would violate full and fair review required by 29 U.S.C. §1133.

Additionally, because contractual limitations periods are plan terms, the claimant should receive
notice about the limitations period from the plan just as is the case with other plan terms. As the
DOL aptly points out in the preamble to these proposed regulations, plan administrators are in a
better position to know the date of the expiration of the limitations period and should not be
hiding the ball from claimants if the plan administrator is functioning as a true fiduciary.

One court has interpreted the existing regulations to require notice of the expiration of a
limitations period. Kienstra v. Carpenters' Health & Welfare Trust Fund of St. Louis, No.
4:12CV53 HEA, 2014 WL 562557, at *4 (E.D. Mo. Feb. 13, 2014), affd sub nom. Munro-
Kienstra v. Carpenters' Health & Welfare Trust Fund of St. Louis, 790 F.3d 799 (8th Cir.
2015)(“[a] description of the plan's review procedures and the time limits applicable to such
procedures, including a statement of the claimant's right to bring a civil action under section
502(a) of [ERISA] following an adverse benefit determination on review.” 29 C.F.R. §
2560.503-1(g)(iv)). This is a minority perspective. Here, the DOL should do more than interpret
its own rules; it should re-write them to remove any ambiguity.

I recommend an amendment to the regulations governing the manner and content of notification
of benefit determinations on review. 29 C.F.R. §2560.503-1(j) [proposed regulation]. The
amended language should require the claims administrator to notify the claimant of the date of
the expiration of any plan based limitations period and should include a definition of what is a
reasonable limitations period. Such an alteration takes care of the different courts’ views on
when claims “accrue” in that it makes clear that no limitations period can start before the internal
claim and appeals process is complete. It also makes clear that there will be at least a one-year
period after the completion of the plan’s appeals process in which a claimant can file suit. The
justification for this rule is that it would cut down on litigation devoted to the threshold issue of
the running of the limitations period. In addition, it may well lead to a standardization of internal
limitations periods that would be salutary for both claimants and plan administrators.

Accordingly, I propose amending the proposed regulation by adding a section as follows and
renumbering accordingly (added language is indicated by bolding and underlining):

29 C.F.R. 2560.503-1 (j)(6) [proposed regulation]

In the case of an adverse benefit decision with respect to disability
benefits— (i) A discussion of the decision, including, to the extent that the
plan did not follow or agree with the views presented by the claimant to
the plan of health care professionals treating a claimant or the decisions
presented by the claimant to the plan of other payers of benefits who
granted a claimant's similar claims (including disability benefit
determinations by the Social Security Administration), the basis for
disagreeing with their views or decisions; and (ii) Either the specific
internal rules, guidelines, protocols, standards or other similar criteria of
the plan relied upon in making the adverse determination or, alternatively,