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National Multiple Sclerosis Society 

New York City – Southern New York Chapter

733 Third Avenue, 3rd Floor 

New York, NY 10017 

Tel: 212 453 3231

Fax: 212 986 7981

January 19, 2016

e-ORI@dol.gov

By Mail: 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:

These comments are submitted on behalf of the New York City-Southern New York Chapter of the 

National Multiple Sclerosis Society. The Chapter serves the thousands of New Yorkers living with 

Multiple Sclerosis (“MS”) and their families by providing comprehensive support services and 

educational programs and by funding a national research initiative seeking the cause, treatments and 

cure for this chronic neurological disease. There are more than 12,000 people affected by MS in the 

area covered by the Chapter, which includes New York City and the Counties of Westchester, 

Rockland, Putnam, Orange and Sullivan. Many of these individuals are totally disabled and are 

completely dependent on ERISA disability benefits and Social Security disability for their livelihood. 

The importance of having a claims procedure that assures that they receive a full and fair review 

cannot be overstated.

Our organization strongly supports the proposed regulations which will significantly improve the 

processing of claims at insurance companies, and will make the process more fair and accountable. 

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We narrow our comments to the five areas that we believe will be most beneficial to the ERISA 

disability claims of individuals suffering from the disabling effects of MS. In summary, our 

comments address:

1. Adding a New Section Permitting Claimants the Opportunity to Reopen Claims 

Under Certain Circumstances

2. Clarifying the meaning of “persons involved” and “based upon the likelihood” in 

(b)(7)

3. Granting Deference to Social Security Disability Awards
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4. Clarifying the Applicable Statute of Limitations

5. Lowering the Threshold for Culturally and Linguistically Appropriate Notices 

1. Adding a New Section Permitting Claimants the Opportunity to Reopen Claims Under 

Certain Circumstances 

The Department should add a new section to the proposed regulations that gives claimants the 

opportunity to reopen administrative remedies prior to a lawsuit being filed. We recommend a rule 

that permits a claimant to reopen administrative remedies using as a model based on Federal Rules 

59(e) and/or 60(b)(2). The Department could put a time restriction on it, such that a claimant can 

reopen the appeal within 180 days of the close of administrative remedies as a matter of right, and 

then thereafter, could reopen administrative remedies if he or she has newly discovered evidence 

that, with reasonable diligence, could not have been discovered in time to move to reopen 

administrative remedies within the initial 180-day period. The Department could make clear that 

reopening of administrative remedies pursuant to this right does not enlarge or otherwise stay the 

statute of limitations.

Such a right would alleviate the need for a lot of litigation, and would assure that insurance company 

determinations are more fair. Often relevant information is simply not available during the 

timeframes established by the current regulations. Moreover, the savings from avoiding needless 

litigation would more than offset any additional cost that insurers must bear in order to reopen 

administrative remedies. 

Such a right would be consistent with 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 suit in district court; 

we are not establishing a rule that will adversely affect the rights of claimants.

Such a right would help many of individuals suffering from MS. 

First, many individuals suffering from MS are in search of a proper diagnosis for a significant period 

of time. Many of the symptoms of MS also mimic other illnesses, making the initial diagnosis 

difficult. For many, administrative remedies are exhausted before a firm diagnosis of MS is even 

made. 

Second, many individuals with MS also seek Social Security disability benefits. In the New York 

Metropolitan region, it could take over two years before SSDI benefits are finally awarded. At that 

point, administrative remedies have already been exhausted. 
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Third, many individuals with MS in our geographical region are non-English speakers or are 

otherwise unsophisticated. Before ever consulting with a lawyer, they often do their own appeal, 

sending in a short letter to the insurer asserting that the insurer was incorrect. The insurer then 

denies the appeal and closes the record. Because these individuals did not create an adequate 

administrative record, their claim has very little chance of success in court. This result is extremely 

unfair, particularly when there is no requirement that the insurer even warn the claimant that he/she 

has the right to obtain an attorney and/or that if information is not sent to the insurer during the 

appeal, a court will not consider it later. 

Having a procedure to reopen a claim would help these claimants get a full review. While it is 

important that claims be considered expeditiously and in a cost-effective manner, having a 

procedure to reopen claims under certain circumstances is worth the added delay and/or cost. 

Without it, many claimants with meritorious claims are being denied a full review and then a 

meaningful day in court. 

2. Clarifying the meaning of “persons involved” and “based upon the likelihood” in (b)(7)

We propose the following changes to subsection (b)(7)(added language is bolded and underlined) in 

order to clarify which persons are “involved” with the decision and to clarify what is meant by 

“based upon the likelihood”: 

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, in whole or in part, that the individual will support 

the denial of benefits.

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 almost always delegate the 

selection of experts to third-party vendors who, in turn, employ reviewing doctors and other 

experts. 

Second, 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. 

As currently drafted, the regulation could lead to added litigation over whether instances of “mixedmotive” are prohibited. 

3. Granting Deference to Social Security Disability Awards

The proposed regulation as written would be helpful but we believe that a deferential review 

requirement would be more helpful to individuals suffering from MS, many of whom are also 

awarded SSDI benefits, under stricter standards than those in their ERISA policies. We recommend 
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that the Department use 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 (iii) 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 the SSA.

4. Comment on Notice for Applicable Statute of Limitations

The DOL has invited comments on 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). We

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 complete (even 

where exhaustion is mandatory), the DOL is in a good position to clarify that such an approach 

would deny a claimant a full and fair review as 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. 

We recommend an amendment to the regulations adding a new (j)(7) and making the existing (j)(7) 

in the proposed regulations, into (j)(8): 

(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 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;
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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).

This amendment will give needed clarity to both the claimant and the insurer. It also will assure that 

a claimant has sufficient time to file a lawsuit by mandating that the limit be at least a year. A 

minimum period is needed for individuals with MS because many of them are dependent on 

caregivers for not only their medical care, but also for managing their financial affairs. Caregivers 

often are preoccupied with day to day care needs and medical crises, and need sufficient time to 

focus on legal issues. 

5. Lowering the Threshold for Culturally and Linguistically Appropriate Notice

As the proposed regulations are presently drafted, the requirements of section (p) are triggered when 

the percentage of a county’s population in a specific non-English language is 10% percent or more. 

This provision is unhelpful to many if not most of the non-English language populations in NYC, 

which consists of 5 distinct counties, New York County (Manhattan), Kings County (Brooklyn), 

Bronx County, Queens County and Richmond County (Staten Island). According to Wikipedia, 

approximately 800 languages are spoken in New York City, and 36% of the City’s population is 

foreign born. Because the population is so large and the diversity of the population is so high, any 

given non-English language group is unlikely to satisfy the 10% threshold. Therefore, an 

unintended and regrettable consequence of the proposed regulation as written would be to leave 

uncovered the vast majority of non-English language claimants in NYC even though NYC is the 

situs of a significant percentage of all non-English individuals in the United States. 

We believe that the requirements of (p) should be triggered by a 5% County threshold, instead of a 

10% County threshold. This will put the regulations on par with the requirements of Medicare and 

Medicaid. In addition, we urge the Department to add an alternative threshold requirement that will 

help cover non-English language groups in NYC--The threshold of Section (p) should alternatively 

be satisfied if 5% of the plan’s participants are from the same non-English language group.

CONCLUSION

As an organization, we applaud the Department’s efforts in drafting the proposed regulations. We 

strongly support them, and believe that they will make the claims and appeals process more full and 

fair. We believe that individuals suffering from MS will benefit even more with the five important 

changes outlined above. 

Sincerely yours,

Scott M. Riemer
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Attorney for

National Multiple Sclerosis Society 

New York City – Southern New York Chapter

cc. Anne Davis, Esq.

Director, Legal Programs & Services