Office of Regulations and Interpretations,

Employee Benefits Security Administration

Room M-5655

U.S. 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.

As an attorney whose primary area of practice is representing individuals in ERISAgoverned disability benefit disputes, 29 C.F.R. § 2560.503-1 impacts both me and my 

clients directly. I have practiced in this area as an attorney for just one year, but 

clerked for this same firm working, on ERISA-related matters, for a total of three 

years. Therefore, I am familiar with the impact of the historical changes made to the 

claim regulation in 2000. I offer the following comments:

Context:

The vast majority of disability plan administrators (or at least claim decisionmakers) are insurance companies. In Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 

2343, 2350 (2008), the Supreme Court clearly stated that ERISA imposes,

higher than marketplace quality standards on insurers 

... [a] special standard of care ..., namely, that the 

administrator “discharge [its] duties” in respect to 

discretionary claims processing “solely in the interests 

of the participants and beneficiaries” of the plan, [under 

ERISA, 29 U.S.C.] §1104(a)(1)...

Id. This emphatic statement regarding the standard to which the Court holds these 

administrators must be reflected in the claim regulations.

Comment on Requiring Administrator to Explain Why It Rejected Treating 

Medical Professional Opinions and SSD Decision and Proposed Additional 

Language:

I applaud the DOL for suggesting the addition of the language articulated in 

proposed regulation § 2560.503-1 (g)(vii)(A) and (j)(6)(i) requiring an explanation 

for why treating physician or agency decisions were rejected. However, the addition 

should extend to vocational rehabilitation opinions that are often used in disability 

claims, or other such experts consulted during the pre-suit appeal process, as well 
as a requirement that administrators actually explain how they weighed the 

evidence in the claim. This should include not only why a professional’s opinion 

was rejected, but also why another professional’s opinion was relied upon.

Disability plan administrators will commonly accept one medical or vocational 

source’s opinion over another. However, unlike other fact finders such as the 

federal district courts or Administrative Law Judges in Social Security Disability 

claims, ERISA disability plan administrators do not have to explain the reasons why 

weight was provided to one provider over another. This hampers federal court 

review, because administrators are free to accept one provider over another 

without explaining why the selected provider was better qualified or position to 

offer an opinion, or why that provider’s rationale was more reliable than another’s.

To remedy this problem, I propose the addition of the following bold/underlined 

language to the language proposed for addition to § 2560.503-1 (vii)(A):

(A) 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 or vocational rehabilitation

professionals 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 the disagreeing with their views or 

decisions and an explanation of every reason why a particular 

professional’s view was selected over another.

Limited the administrator’s requirement to why it rejected a particular 

professional’s view requires the administrator to provide only half of the story. By 

mandating that administrators explain why other professional’s views were relied 

upon, reviewing courts will have insight into whether a principled decision was 

made. A reviewing court will also have clear facts upon which it can determine if 

the administrator made a correct or reasonable decision under the applicable 

standard of review.

Comment on the “Minor Errors” Provisions of Proposed Rule §2560.503-

1(l)(2)(ii):

As articulated in the proposed rule and preamble, deemed exhaustion will not be 

available in the case of “minor errors.” This proposed rule presents significant 

hurdles in light of common insurance administrator practices that include serial 

requests for additional information. Many carriers will wait until a large portion of 

the time to decide the claim passes, and then send out 2, 3, or even several request 

for information over the course of a few weeks. These requests often create an 

environment where insurers repeatedly claim that any deadlines are tolled while 

responses to various requests are outstanding, without stating when the tolling 

expires or what the “new” decision deadline is. When one also considers that a 

claimant is not afforded any type of extension to his or her appeal period, the “minor 
errors” provisions off the proposed rule are inequitable, because they create an 

environment where the administrator has greater rights than the claimant. The 

proposed rule also creates uncertainty, because one cannot know the actual 

decision deadline in play.

The proposed rule does not appear to change the administrator’s deadline (i.e. the 

number of days). However, it easily will create a quagmire in which many claims 

will descend. Administrators are encouraged to fail to make a decision within the 

maximum 90 day period, yet claim that one of the various minor errors applies to 

the claim.

I acknowledge that a “pattern or practice” exception is included in the proposed 

regulation, but proof of such a pattern or practice will be difficult and primarily 

anecdotal. Further, a claimant will have to be fortunate enough to hire experienced 

plaintiff ERISA counsel to tap into their knowledge base of past claims. Because the 

plaintiff’s bar is quite limited in ERISA cases, this may prove to be very 

difficult. Worse, proving the pattern or practice will prove to be very costly for both 

sides in ERISA litigation, as there are no standards for demonstrating the level of 

proof required when arguing that such a pattern or practice existed. If this 

proposed rule is be kept, continuing to place the burden of proof on plan 

administrators to rely upon this exception is crucial.

Comment Related to 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(l)(2)(i) [proposed regulation]

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,

Comment on Notice for Applicable Statute of Limitations:

The DOL has invited comment related to 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 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 

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 its 

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), aff'd 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, 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 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.

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 turnarounds 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 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.

Comment and Suggest Language Related to 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. It also would be more helpful to specify that the claim file 

includes documents contained in the administrator’s computer system, not just 

paper copies or selected records.

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, to include any 

information kept in digital or electronic format. 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.

Comment Related to Disclosure of Internal Rules etc.:
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.”). 

Proposal to Adopt Language Requiring 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. More individuals than I 

can count have called me over the years and expresses surprise at the way the 

record is closed once the final appeal decision is issued in ERISA cases. Not only 

claimants, but many attorneys fail to not understand the standards of review or the 

significance of submitting all substantive evidence before the final decision is made 

by the administrator. 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, and that they will not have the opportunity to submit additional 

evidence once the final decision is made, including during a lawsuit.

Respectfully submitted,

s/ Amy Ray

Amy Ray 

Attorney
Tucker & Ludin, P.A.

5235 16th St. N.

St. Petersburg, FL 33703

phone: (727) 572-5000 x 205

direct: (727) 471-1690

fax: (727) 571-1415 

email: ray@tuckerludin.com

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