PUBLIC SUBMISSION

Received: December 09, 2017

Status: Pending_Post

Tracking No. 1k1-9099-82j5

Comments Due: December 11, 2017

Submission Type: Web

Docket: EBSA-2015-0017

Claims Procedure for Plans Providing Disability Benefits; Extension of Applicability

Date

Comment On: EBSA-2015-0017-0291

Claims Procedure: Plans Providing Disability Benefits

Document: EBSA-2015-0017-DRAFT-0424

Comment on FR Doc # 2017-22082

Submitter Information

Name: Mason Waring

Address:

1 Turks Head Place Suite 1100

Providence, RI, 02903

Email: mwaring@cck-law.com

Phone: 401-331-6300

General Comment

Dear Deputy Assistant Secretary Hauser: 

I ask that the DOL not modify or delay the Final Regulation on Claims Procedure for 

Plans Providing Disability Benefits, 81 Fed. Reg. 92316 (Dec. 19, 2016) that are 

scheduled to go into effect on April 1, 2018.

I am an attorney at Chisholm Chisholm & Kilpatrick in Rhode Island. We represent 

disabled individuals in their claims for wrongly denied longterm disability (LTD) 

benefits. I submitted comments in support of the regulations during the initial notice 

and comment period, and against the recent decision to delay their implementation.

There is no reason to modify or further delay implementation of the regulations. The 
objectors have not established that the regulations will significantly increase costs. 

This is an empty claim made by the insurance industry.

Even if there were a modest cost increase, it would be outweighed by the need for the 

new regulations, which provide procedural safeguards and promote fairness for 

claimants during the administrative process. This need is underscored by the 

significant procedural obstacles that ERISA LTD claimants face in court. For 

example: (1) there are no jury trials; (2) the administrative record is closed after the 

administrative appeal denial and the record can rarely be supplemented in litigation; 

(3) courts often apply an unfavorable standard of review, and (4) there are no 

remedies such as punitive damages to discourage unfair and self-serving behavior on 

the part of Plans and insurers. The United States District Court for the District of 

Massachusetts recently commented that "[t]he insurance industry found it could 

largely immunize itself from suit due to the Employee Retirement Income Security

Act ("ERISA")." United States v. Aegerion Pharm., Inc., 2017 WL 5586728, at *7 (D. 

Mass. Nov. 20, 2017).

The new regulations are an important step towards holding ERISA administrators to 

the "higher-than-marketplace quality standards" owed to claimants. See Metro. Life 

Ins. Co. v. Glenn, 554 U.S. 105, 128 (2008) ("ERISA imposes higher-thanmarketplace quality standards on insurers, requiring a plan administrator to 'discharge 

[its] duties' in respect to discretionary claims processing 'solely in the interests of the 

[plan's] participants and beneficiaries'").

The new regulations reinforce common sense principals, and mandate practices, to 

which insurance companies and other ERISA LTD plan fiduciaries should have 

committed themselves without regulation. For example, the new regulations promote 

the use of impartial consultants and require administrators to give the claimant the 

chance to review and respond to any new evidence or opinions before a final denial 

decision. This right is critical, where discovery is seldom allowed in court and where 

insurers sandbag claimants by relying on new evidence and opinions to deny an 

appeal, knowing that the record will be closed in court.

The new regulations require administrators to meaningfully consider and give weight 

to favorable Social Security Disability Insurance (SSDI) decisions. This makes sense 

given that the SSDI definition of disability is more difficult to meet than most ERISA 

Plan own occupation definitions of disability. It is certainly fair to require insurers to 

give weight to a favorable SSDI decision because, among other things, insurers 

require claimants to apply for SSDI benefits and then offset them, reducing the 

amount that the insurer has to pay the claimant each month.
Finally, the new regulations mandate that administrators disclose the time for filing a 

lawsuit. This is imperative because ERISA Plan contractual limitation periods can be 

confusing to claimants and indecipherable.

These are only a few examples of important issues addressed by the new regulations. 

Without these protections, many insureds will be left with what amounts to illusory 

LTD coverage. I ask that the DOL not modify or delay the Final Regulation on Claims 

Procedure for Plans Providing Disability Benefits, 81 Fed. Reg. 92316 (Dec. 19, 

2016) that are scheduled to go into effect on April 1, 2018.

Very truly yours,

/s/ Mason Waring