19839 NORDHOFF STREET ▪ NORTHRIDGE ▪ CA 91324 

TEL (818) 886-2525 ▪ FAX (818) 350-6272 

WWW.KANTORLAW.NET 

December 11, 2017 

Via e-mail to e-ORI@DOL.gov

Timothy D. Hauser 

Deputy Assistant Secretary for Program Operations 

Employee Benefits Security Administration 

United States Department of Labor 

200 Constitution Avenue NW 

Washington D.C. 20210 

Re: Re-Examination of Claims Procedure Regulations for Plans Providing Disability 

 Benefits 

 RIN No.: 1210-AB39 

Regulation: 29 C.F.R. § 2560.503 

Dear Deputy Assistant Secretary Hauser: 

I am writing to request that the Department not modify or delay its final disability claims 

regulations (Final Regulation on Claims Procedure for Plans Providing Disability Benefits, 81 Fed. Reg. 

92316 (Dec. 19, 2016)), which are currently scheduled to go into effect on April 1, 2018. 

I am a lawyer who has practiced in this field for twenty years. I have represented both plan 

administrators and plan beneficiaries during that time. For most of that time, I have assisted 

beneficiaries, and have relied on the current regulations on numerous occasions for help in interpreting 

what ERISA requires. The new regulations improve on the current regulations by ensuring that both 

administrators and beneficiaries know their respective rights and responsibilities. They also help to 

ensure that beneficiaries get a “full and fair” review as required by ERISA. 

I understand the Department is now re-examining the regulations due to concerns raised by the 

insurance industry. However, these objections are not new. Instead, they have already been fully 

considered by the Department in promulgating the regulations. The regulations are based on policy 

choices that have been made by Congress, this Department, and the federal courts interpreting ERISA. 

Allowing further argument, and more delay, is inefficient and unproductive. 

Furthermore, the insurance industry’s primary objection to the regulations – that the regulations 

will be costly – is misplaced. This argument was made in various industry comments to the proposed 

rules before final adoption. After conducting due diligence, the Department concluded that costs would 

not outweigh the benefits. 

The Department has asked for data addressing whether costs increased in response to the last set 

of rules applying to ERISA disability plans that became effective in 2002. However, such data already 
Employee Benefits Security Administration 

December 11, 2017

Page 2 

exists. The Department’s own statistics show that access and participation in employer-based disability 

insurance has increased, not decreased, between 1999 and 2014. This increase occurred despite a 

significant rise in employment in the service industry, in which employer-based disability coverage is 

uncommon. 

This increase also occurred despite an increase in protections for beneficiaries arising from the 

following: (1) the 2000 disability claims regulations; (2) an increase in the number of states barring the 

use of discretionary clauses in disability insurance policies; and (3) a series of court decisions involving 

conflicted decision-making, exhaustion of claims, the need to discuss and explain adverse benefits 

decisions, and a participant’s right to respond to new evidence. Despite all these developments, 

participation in disability benefit plans rose and the insurance industry thrived. 

In short, there is no reason to revisit the regulations because the concerns raised by the insurance 

industry have already been considered and addressed. Furthermore, the concerns are without merit. 

There is no evidence to suggest that the new protections afforded by the proposed regulations will 

significantly harm insurers. To the extent there may be any harm, those harms are decidedly minor, and 

are outweighed by the benefits to plan participants. After all, it is the Department’s obligation to 

faithfully execute the will of Congress, which has explicitly stated that the purpose of ERISA is to 

protect “the interests of participants in employee benefit plans and their beneficiaries.” 29 U.S.C. § 

1001. 

Very truly yours, 

 Peter S. Sessions, Esq. 

PSS/nh