Feinstein 

Doyle 

~yne& 

I<ravecLLC 

Tybe A. Brett 

tbrett@fdpklaw. com 

429 Fourth Avenue 

Law & Finance Building, Suite 1300 

Pittsburgh, PA 15219 

www.fdpklaw.com 

T: 412.281.8400 

F: 412.281.1007 

Via U.S. First Class Mail and Electronic Mail (e-ORI@dol.gov.) 

Office of Regulations and Interpretations, 

Employee Benefits Security Administration 

Room M-5655 

U.S. Dept. ofLabor 

200 Constitution A venue NW 

Washington D.C. 20210 

Claims Procedure Regulations for Plans Providing Disability Benefits Examination 

RIN No.: 1210-AB39 

Regulation: 29 C.F.R. §2560.503-1 

Dear Deputy Assistant Secretary Hauser: 

I represent many claimants in ERISA-governed disability benefit disputes. I submit the 

following comments on the Department of Labor's proposal to delay the applicability of the 

Final Rule amending the claims procedure requirements applicable to ERISA-covered employee 

benefit plans that provide disability benefits. I have seen dozens of claimants who have been 

denied needed benefits, merely because they have not mastered the technicalities and 

gamesmanship often encountered in the administration of disability benefit plans, pmiicularly 

those underwritten and administered by insurance companies. I offer my comments from the 

perspective of plan participants. 

The Final Rule merely inwrporates many of the practices that courts have imposed on 

insurers of employer sponsored disability plans for many years. The Final Rule will require 

those practices uniformly throughout the United States. If insurers and other administrators of 

disability plans followed these practices, claimants would be better able to navigate the claims 

process and obtain fairer results without the need to hire lawyers to embark on litigation to obtain 

needed benefits to which they are entitled under ERISA disability plans. 

It is deeply troubling to those of us who have followed the process of promulgating the 

Final Rule that the Department now seeks to delay their effective date. The rules were finalized 

after an extensive notice and comment period that provided 60 days and yielded numerous 

comments from various stakeholders. Insurers and plans -- and the organizations that represent 

them -- had ample opportunity to contribute their views, and they availed themselves of that 

opportunity. Many industry comments argued that there were cost issues associated with 

implementing the rules, but these arguments were unsupported by relevant data. Nonetheless, the 
Deputy Assistant Secretary Hauser 

October 20, 2017 

Page 2 

request by industry for more time to adjust to the new rules was honored by the Department in 

already significantly delaying the effective date. 

Despite that extensive process, the Department now states that other information that 

could have been contributed during the proper notice and comment period was not. The ERISA 

participants and their representatives have no way to respond to this input, which likely includes 

the same sort of speculation about costs that was submitted during the comment period, since it 

is not available to the public. Worse yet, the industry will collect data in a way that will be 

hidden from the public, and the Department will decide how to protect participants' rights in a 

fair adjudication of their disability claims based on this secret information. The very purpose of 

a notice and comment period is to make the rulemaking process transparent to all stakeholders. 

A proposed delay for some secretive "Star Chamber" proceeding violates the letter and spirit of 

the Administrative Procedures Act, 5 U.S.C.A. § 553. 

The regulations in question were adopted to implement ERISA§503, 29 U.S.C § 1133, 

which provides that every employee benefit plan shall "afford a reasonable oppmiunity to any 

participant whose claim for benefits has been denied for afu/1 and f air review by the appropriate 

named fi duci ary of the decision denying the claim." Any delay in the implementation of the 

"full and fair review" regulations, developed through a robust rulemaking procedure, in favor of 

secret rulemaking is contrary to the substance of the statute intended to be implemented. 

I am skeptical of any argument by the insurance industry that the implementation of the 

Final Rule would dramatically increase premiums. In fact, such arguments are an admission that 

premiums are now set with the expectation that legitimate claims will not be paid because the 

process is unfair and actually supports the need for a fairer claims process. In fact, ERISA 

participants would welcome a slight increase in premiums to avoid illusory coverage. Since 

disability insurers have had many years of experience to price disability coverage, there is no 

need to delay the Final Rule so that insurers can figure out how to price disability coverage. 

The effective date of the regulations should not be delayed, since the reason for doing so 

violates the letter and purpose of the Administrative Procedures Act and the "full and fair 

review" provisions of ERISA. 

Thank you considering my comments. 

Very truly yours, 

Tybe A. Brett 

TAB/aam