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 

ERISA-governed disability benefit disputes, 29 C.F.R. §2560.503-1 impacts 

both me and my clients. I have practiced in this area for nearly 25 years, 

and am familiar with the impact of the changes made to the claim 

regulation in 2000. I have personally represented well over 3500 

individuals in ERISA claims and litigation since I accepted my first ERISA case 

in 1991. I have lectured and written on the topic of ERISA claims and

litigation numerous times, including CLE conferences sponsored by the 

American Bar Association and The Florida Bar. I also chaired an ERISA 

Litigation Group for the American Association for Justice. I offer the 

following comments:

Context:

The vast majority of disability plan administrators (or at least claim 

decision-makers) 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, 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 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 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/ John V. Tucker

John V. Tucker

Attorney

5235 16th Street North

St. Petersburg, FL 33703-2611

Phone: (727) 572-5000

Fax: (727) 571-1415

E-Mail: tucker@tuckerludin.com

Web: www.tuckerludin.com
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