January	19,	2016

BY	U.S.	MAIL	&	EMAIL	TO: e-ORI@dol.gov

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:

Thank	you	for	the	opportunity	to	comment on	the	proposed	regulations	for	

amending	the	claims	procedure	regulations	applicable	to disability	benefit	plans.	We	are	

writing	on	behalf	of	United	Cerebral	Palsy	(“UCP”)	to	offer	comments,	as	set	forth	below.

BACKGROUND

Our	organization	educates,	advocates,	and	provides	support	services	to	a	broad	

spectrum	of	people	living	with	disabilities.	We	work	closely	with	our	community	affiliate	

network	to	advance	the	independence,	productivity,	and	full	citizenship	of	people	with	

disabilities.	As	such,	we	are	deeply	interested	in	the	content	of	these	regulations. The	

protection	of	workers	who	become	disabled	is	an	important	concern	and	we	appreciate	the	

Department	of	Labor’s	(“DOL”)	decision	to	further	develop	and	improve	upon	the	current	

procedural	protections	in	place	under	the	Employee	Retirement	Income	Security	Act	of	

1974,	29	U.S.C.	§	1001,	et	seq.		(“ERISA”).	
DISCUSSION

I. STATUTES	OF	LIMITATIONS	

The	Supreme	Court’s	decision	in	Heimeshoff is	a	landmine for	ERISA	disability	

benefit	claimants.	 Heimeshoff permits	an	ERISA	plan	to	prescribe	not	only	the	length	of	the	

limitations	period	(as	opposed	to	applying	the	closest	analogous	state	law	contractual	

limitations	period),	but	also	when	that period	commences.	The	result	is	that	a	plan’s	terms	

can	actually	start	the	statute	of	limitations	running	long	before	the	claimant	ever	has	the	

right	to	file	suit.	Such	a	result	can	have	drastic	consequences	on claimants’	ability	to	pursue	

their	disability	benefit	claims in	spite	of	the otherwise substantive	viability	of	the	claims.	

While	the	Supreme	Court	acknowledged	that	typically	Congress	does	not	intend	for	

statutes	of	limitations	to	commence	until	their	associated	causes	of	actions	accrue,	it

nevertheless	allowed	this	result because	the	parties have agreed	by	contract	to	do	so.	The	

Court	relied	on this	supposed	contractual	privity	despite	the	fact	that	ERISA	plan	

participants	are	rarely,	if	ever,	given	any	say	in	negotiating	the	terms	of	their	employer’s	

ERISA	plan,	much	less	given	the	chance	to	agree	by	contract	to	any	specific	provisions. By	

implementing	the three	recommendations	submitted	below,	however,	the	DOL	is	in	the	

position	to	mitigate the	oppressive	results	imposed by	Heimeshoff and	provide a	fuller	and	

fairer	system	of	disability	claim	processing as	intended	by	Congress	in	enacting	ERISA.

First, in	Heimeshoff,	the	plan	required	participants	to	file	suit for	benefit	

claims within	three	years	after	“proof	of	loss”	is	due,	which	occurred	in	December,	2005.	

The	claimant	went	through	the	Plan’s	administrative	process,	as	is	required,	and	a	final	

denial	was	issued	in	November,	2007. As	a	result,	almost	two	years	of	the	claimant’s	threeyear	statute	of	limitations	had	run	before	she	ever	had	the	right	to	file	suit	in	the	first	place.	

A	result	that	allows the	time	period	within	which	one	has	the right	to	obtain	legal	redress	

of a	wrong	to	be	running	against	them	before	they	have	even	been	legally	wronged is	

totally	incompatible	with	our	legal	system.	This	is	the	case	in	any	legal	setting,	but	it	is	

particularly	so	in	the	ERISA	context,	where	the	claimant	is	required	-- by	penalty	of	

dismissal	with	prejudice	-- to	fully	exhaust	the	plan’s	administrative	procedures controlled	

by	the	adversarial	party.

We	believe the	DOL	is	in	an	excellent position	to	clarify	that	the approach	now	

permitted	by	Heimeshoff	violates	the full	and	fair	review required	by	29	U.S.C.	§1133 and	to	

adopt	a	rule tolling	all	applicable statute	of	limitations periods	until	the	claimant’s	receipt	

of	the	final	benefit	determination. Such	an	alteration	will	make	it	clear	that	no	limitations	

period	can	start	before	the	internal	claim	and	appeals	process	is	complete and	provide	

more	meaningful	access	for	disabled	workers.	Having	clarity	here	would	not	only	be	

equitable	for	the	claimant,	but	it	would	also	substantially	cut	down	on	litigation	devoted	to	

the	threshold	issue	of	the	limitations	period and	may	well	lead	to	a	standardization	of	

internal	limitations	periods	that	would	be	salutary	for	both	claimants	and	plan	

administrators.	

Second,	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,	“[i]nasmuch	as	

plans	are	responsible	for	implementing	contractual	limitations	provisions,	plans	may	be	in	

a	better	position	than	claimants	to	understand	and	to	explain	what	those	provisions	mean.”

Instead,	plans,	who	are	supposed	to	be	functioning	as	fiduciaries,	are	able	to enforce	time	

limitations	that	can	be utterly	incomprehensible	to	practitioners,	much	less	lay	disability	

claimants,	who	are	nevertheless	purposed	with	figuring	it	out on	their	own.

This	can	readily be	resolved,	however,	by	placing that	burden where	it	belongs, on	

the	plan	administrators who	crafted	these	limitations	and who	are	in	a	far	better	position	

to	know	the	date	of	the	expiration	of	their	own limitations	period. There	is	no	reason	to	

allow	fiduciaries	to	continue	to	hide	the	ball.	Thus,	we	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]),	wherein	the	claims	administrator	

is required	to	notify	the	claimant	of	the	exact	date	of	the	expiration	of	any	applicable	planbased limitations	period.	

Finally,	the	DOL	should	regulate	to	prevent	plans	from	contracting	around	

applicable	state	statutes	of	limitation, which	typically	range	between	one	and	three	years,

to	unreasonably	shorten	the	time	period	in	which	claimants	have	to	pursue	their	legal	

remedies.	

Together,	these	three requirements	would	be	minimally	invasive	to	plans	and	their	

administrators,	but	they would	be	extraordinary	in	their potential	to	make a	meaningful

impact	on	the	fairness	of	a	process	that	is,	by	all	accounts,	intended	to	be	fair.

II. COMMENTS	ON	THE	REGULATIONS	AS	PROPOSED.

The	proposed	amendments	to	the	disability	claim	regulations are	a	welcome	step	

forward	in	clarifying	and	protecting	the	rights	of	claimants,	as	well	as	in	providing	more	

accountability	to	plan	administrators.	We	believe	there	are	certain	areas	where	we	further	

modifications	could	be	made	to	further	improve	the	process.

1. Disclosure	of	Internal	Rules.

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. The	regulations	should	therefore	emphasize	

that	if	the	plan	relies	on	an	internal	rule,	it	cannot	maintain	it	is	confidential.	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.	As	with	

the	limitations	provisions,	there	is	no	reason	for	a	fiduciary	not	to	be	forthcoming	with	this	

information	upon	which	it	relied.	Moreover,	making	the	details	of	the	plan	and	the	rules	by	

which	they	are	playing	more	accessible	to	the	average,	unsophisticated	claimant	is	

undeniably	a	positive	step	in	the	advancement	of	the	rights of	the	disabled.

2. Rescission.

The	proposed	language	regarding	treating	rescissions of	coverage as	adverse	benefit	

determinations	should	be	expanded	to	encompass	any	situation	where	a	limitation	is	

invoked	so	that	the	claimant	can	immediately	appeal.	For	instance,	a	plan	may	approve	

benefits	but	may	invoke	a	temporal	limitation	that	exists	in	the	plan,	such	as	for	mental	and	

nervous	disorders	or	for	“self-reported”	illnesses or	the	disability	definition	change	from	

“own	occupation”	to	“any	occupation.” Many	insurers	defer	the	right	to	appeal	until	the	

date	that	benefits	end,	which	imposes	significant economic	hardship	on	claimants	who	may	

then	be	deprived	of	benefits	for	several	months	while	appeals	proceed.	The	claimant	

should	have	the	option	to	immediately	appeal	that	determination	to	avoid	the	economic	

hardship	in	the	future.

3. Deemed	Exhausted.

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.		We suggest	adding	the	following	bold	and	underlined	

clarifying	language	to	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,	the	claimant	is	deemed	to	have	exhausted	the	

administrative	remedies	available	under	the	plan	...”

4. Disagreement	with	Other	Decisions.

The	regulation	requiring	a	discussion	about	the	difference	between	the	plan’s	

decision	and	awards	made	by	treating	doctors	or	other	systems,	such	as	Social	Security,	

should	be	expanded	to	set	forth	a	deferential	review	requirement.	Indeed,	the	Supreme	

Court	handed	the	Department	of	Labor	an	opportunity	to	issue	a	more	substantive	

regulation	requiring	that	deference	be	given	to	treating	doctor	opinions.	In	Black	&	Decker	

v.	Nord,	538	U.S.	822	(2003),	the	Supreme	Court	rejected	an	argument	that	plan	

administrators	should	give	discretion	to	opinions	rendered	by	treating	doctors,	much	as	

the	Social	Security	Administration	has	issued	a	regulation	requiring	such	deference.		20	

C.F.R.	§	404.1527(d).	 However,	the	Court	stated:

If	the	Secretary	of	Labor	found	it	meet	[sic]	to	adopt	a	treating	physician	rule	

by	regulation,	courts	would	examine	that	determination	with	appropriate	

deference.	See	Chevron	U.S.A.	Inc. v.	Natural	Resources	Defense	Council,	Inc.,
467	U.S.	837,	81	L.	Ed.	2d	694,	104	S.	Ct.	2778	(1984).	The	Secretary	has	not	

chosen	that	course,	however,	and	an	amicus brief	reflecting	the	position	of	

the	Department	of	Labor	opposes	adoption	of	such	a	rule	for	disability	

determinations	under	plans	covered	by	ERISA.		See	Brief	for	United	States	as	

Amicus	Curiae 7-27.		

538.	U.S.	at	832.	With	respect	to	other	systems	such	as	Social	Security,	the	regulations	

should	require	plans	to give	significant	weight	to	evidence	of	an	award	of	Social	Security	

disability	benefits	as	supporting	a	finding	of	disability,	unless	there	is compelling	evidence	

that	the	decision	was	founded	on	an	error	of	law	or	an	abuse	of	discretion,	inconsistent	

with	the	applicable	medical	evidence,	or	substantively	inconsistent	with	the	definition	of	

disability	contained	in	the	applicable	insurance	policy.

5. Meaning	of	“Testimony.”

In	the	preamble	to	the	proposed	regulations,	the	DOL	has	stated:	“the	proposal	

would	also	grant	the	claimant	a	right	to	respond	to	the	new	information	by	explicitly	

providing	claimants	the	right	to	present	evidence	and	written	testimony	as	part	of	the	

claims	and	appeals	process”	(emphasis	added).	But	the	actual	proposed	regulation	states	

that	a	claimant	may	“present	evidence	and	testimony	as	part	of	the	disability	benefit	claims	

and	appeals	process.”	29	C.F.R.	§2560.503-1(h)(4)(i)[proposed	regulation]	(emphasis	

added).	Hence,	there	is	an	inconsistency	between	the	preamble	and	the	proposed	

regulation	in	that	the	preamble	specifies	“written	testimony”	whereas	the	proposed	

regulation	just	says	“testimony.”		This	could	lead	to	costly	disagreements	over	whether	the	

regulation	contemplates	actual	live	testimony,	i.e.	a	hearing.	More	importantly,	under	the	

current	regulation,	claimants	can	submit	testimony	in	the	form	of	an	audio	or	video	CD.	

This	is	useful	in	cases	where	the	claimant	cannot	read	or	write	so	that	a	written	statement	

is	impossible.	It	is	also	particularly	helpful	in	those	cases	where	actually	seeing	and	hearing	

the	claimant	might	be	important.	As	such,	we	are	concerned	that	the	reference	to	“written	

testimony”	in	the	preamble	might	give	plans	the	ammunition	to	disallow	any	audio	or	video	

submissions	on	the	grounds	that	these	forms	of	evidence	do	not	represent	“written	

evidence.”	If	this	were	the	interpretation	given	to	the	language	in	the	proposed	regulation,	

it	would	actually	put	claimants	in	a	worse	position	than	they	face	at	present.

6. Independence	and	Impartiality.

The	proposed	regulation	regarding	the	impartiality	of	claims	personnel	is	essential	

and	we applaud	the	DOL’s	effort	to	minimize	the	effect	that	biased	individuals	have	on	the	

claims	and	appeals	process.	However,	the	proposed	regulation	needs	clarification	in	three	

areas. 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	frequently	delegate	the	selection	of	experts	to	third-party	vendors	who,	in	turn,	

employ	the	experts.	Second,	clarification	is	needed	concerning	which	individuals	are	

“involved.”	Claims	administrators	often	protest	that	physicians,	or	other	consulting	experts,	

are	not	“involved	in	making	the	decision” but	merely	supply	information	(such	as	an	

opinion	on	physical	restrictions	and	limitations)	that	is	considered	by	the	claims	

adjudicator.	Under	this	logic,	plans	may	argue	that	consulting	experts	are	not	affected	by	

the	impartiality	regulation.	Finally,	the	proposed	regulation	should	make	clear	that	not	only	

claims	adjudicators	and	consulting physicians	must	be	impartial.	
Vocational	experts	and	accountants	are	also	frequently	used	in	the	claims	process	

and	should	be	included	in	the	scope	of	the	impartiality	requirement.	

In	close,	we	think	that	the	proposed	regulations, together	with	our	

recommendations	submitted	herein,	go	a	long	way	towards	strengthening,	improving,	and	

updating the	rules	that	are	applicable	to	plans	providing	disability	benefits	under	ERISA.	

We	thank	you	for	the	opportunity	to	comment	on	the	proposed	regulations	and	to	

participate	in	this	process.	

If	you	have	any	questions,	please	do	not	hesitate	to	contact	us.

Sincerely	yours,

s/

Jennifer	McCue

Director	of	Advocacy,	United	Cerebral	Palsy

About	United	Cerebral	Palsy

United	Cerebral	Palsy	(UCP)	educates,	advocates	and	provides	support	services	through	an	affiliate	

network	to	ensure	a	life	without	limits	for	people	with	a	broad	range	of	disabilities	and	their	

families.	Together	with	nearly	100	affiliates,	UCP	has	a	mission	to	advance	the	independence,	

productivity	and	full	citizenship	of	people	with	disabilities	by	supporting	more	than	176,000	

children	and	adults	every	day—one	person	at	a	time,	one	family	at	a	time.	UCP	works	to	enact real	

change—to	revolutionize care,	raise	standards	of	living	and	create	opportunities—impacting	the	

lives	of	millions	living	with	disabilities.	For	more	than	60	years,	UCP	has	worked	to	ensure	the	

inclusion	of	individuals	with	disabilities	in	every	facet	of	society.	Together,	with	parents	and	

caregivers,	UCP	will	continue	to	push	for	the	social,	legal	and	technological	changes	that	increase	

accessibility	and	independence,	allowing	people	with	disabilities	to	dream	their	own	dreams,	for	

the	next	60	years,	and	beyond.	For	more	information,	visit www.ucp.org.