PUBLIC SUBMISSION

Received: October 24, 2017

Status: Pending_Post

Tracking No. 1k1-8zei-76fd

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-0376

Comment on FR Doc # 2017-22082

Submitter Information

Name: Shawn McDermott

Address: 2300 15th Street, Suite 200

Denver, CO, 80202

Email: shawn@mcdermottlaw.net

Phone: 3039054440

General Comment

To Whom It May Concern:

The Department of Labor has adopted new regulations applicable to disability 

insurance companies and long term disability claims. This was accomplished after the 

Department took many months to conduct an extensive notice and comment period 

from various interested parties, and many more months to consider those comments. 

Employee plans and their insurers were extensively involved in that process which 

resulted in the new regulations scheduled to become applicable to new disability 

claims filed on or after January 1, 2018. Now, the Department's proposed delay in the 

implementation date of the final regulations seems entirely unnecessary and raises 

issues about transparency in the rule-making process.

I am an attorney practicing primarily in the State of Colorado. Over the years, the 
primary focus of my law firm, which now includes myself and three other attorneys, 

has gravitated towards representing individuals with denied disability, health, life and 

accident death and dismemberment claims. The vast majority of such claims fall 

under employer-provided plans for which the Employee Retirement Income Security 

Act (ERISA) typically governs.

While the limited practitioners in this practice area understand the statutory frame 

work and the applicable regulations, the vast majority of attorneys that may find 

themselves working on one of these cases do not. I have had many conversations with 

attorneys who simply do not understand the claim process, the rights and obligations 

of both the plan and the plan participant, and the extreme importance of submitting a 

well-supported internal review request of an adverse benefit determination. The 

attorneys to whom I refer are often shocked and dismayed at how these procedures 

work and the clear advantage that is granted by these regulations to plans and their 

insurers. They are even more astounded by the limited remedies that exist under the 

statutory and regulatory framework. Discussing these same topics with a member of 

the general public or a potential new client seeking representation of a denied claim is 

even more frightening. Frankly, both the current regulations and the new ones do not 

go far enough in providing adequate notice to a denied claimant about the issues 

involved in an adverse benefit determination and the procedures to follow to, 

hopefully, perfect his or her claim and avoid the filing of a lawsuit. Many such 

individuals will contact our office before submitting their own internal appeal, which 

in my experience, is an absolute necessary step in order to successfully appeal a 

wrongly denied benefit or to at least have the claim adequately prepared for litigation. 

A lay person or an inexperienced attorney does not appreciate the difficulties 

associated with handling a denied ERISA benefits claim. There are many plans and 

particularly insurers who have manipulated the administrative appeal process. The 

new proposed rules which are already in effect and become applicable to employee 

benefit claims filed in 2018 serve as a significant clarification of how the 

administrative process should proceed and are very welcome by practitioner and plan 

beneficiaries.

The proposed delays in the application of these new rules will most definitely serve to 

prejudice these same beneficiaries. It appears to me that the insurance industry is 

attempting to assert its influence over the Department by manufacturing an excuse for 

delaying the full implementation of these new rules. The effective date of the 

regulations is apparently being delayed by 90 days without any public disclosure of 

communications between plans and the insurance industry with the Department which 

assert that the cost to implement these new regulations is simply too high. I have seen 

no studies or other data which supports this argument. The purpose of these rule 

changes was to make the ERISA claims process more fair to the plan participants and 
beneficiaries it was originally designed to protect. This delay, and the reasons which I 

understand to be at play, favors one set of interests (plans and insurers) over those 

protected participants and beneficiaries.

I am providing this comment to your Committee as it is impossible for these 

participants who are primarily affected by these changes to comment. Quite simply, 

the group of individuals who are to be protected by these new regulations (those filing 

claims on or after January 1, 2018) do not understand any of these issues, are not 

aware that a federal law exists which governs their claims or that the entire process is 

governed by a set of federal regulations. It is my responsibility and that of the 

Committee to protect these individuals.

I ask that you not delay the effective date of the regulations in any way.

Thank you for considering my comments. Shawn McDermott