January 16, 2016

By Electronic Mail

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 submit comments on the 

proposed regulations for amending the claims procedure 

regulations applicable to disability benefit plans. Our organization 

is a public interest law firm, whose mission is to provide pro bono 

legal representation to low-income residents of Massachusetts. Our 

clients, who are chronically ill and disabled, are directly impacted 

by the limitations imposed by ERISA on their ability to access 

health and disability benefits. Our comments are informed by our 

considerable experience representing claimants in ERISAgoverned benefit disputes and advocating for fair claims decisionmaking processes for some of our nation’s most vulnerable 

consumers. The proposed regulations represent another step 

forward in promoting the requirements of ERISA for a “full and 

fair review” of claims, by strengthening vital consumer protections 

related to notice and ensuring “meaningful dialogue.” See 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” between the insurer and claimant. 

We have organized our comments as follows. First, we 

address the most important substantive issues for the DOL to 

consider as it finalizes the proposed regulations. These comments 

relate to where we believe the DOL should make a substantive 

change in the proposed regulations. Second, we have set out what 

we see as the most important technical issues in the proposed 

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Board of Directors

Mala M. Rafik, President

Brian P. Carey, Treasurer

Lisa Fleming, Clerk

Michael S. Dukakis

Ruth Ellen Fitch

Paula Gold

Joshua Greenberg

Daniel J. Jackson

Wendy E. Parmet

S. Stephen Rosenfeld

Amy Whitcomb Slemmer

Eleanor H. Soeffing

Executive Director

Matt Selig

Legal Staff

Litigation Director

Lorianne Sainsbury-Wong

Senior Staff Attorney

Clare D. McGorrian

Staff Attorneys

Caroline A. Clair

Andrew P. Cohen

Caroline T. Donahue

Ashley Jones-Pierce

Meira Russ

Wells G. Wilkinson

Mental Health Advocates

Marisol Garcia

Lisa Morrow

Legal Fellow

Kuong Ly

Paralegal/Intake Coordinator

Jocelyn L. McAuley

Administrative Staff

Chief Operating Officer

Robert MacPherson

Program and Development 

Associate

Emily Tabor
regulations. These are matters that do not change the substance of a proposed 

regulation but request language changes for purposes of greater clarity or 

conformity with other regulations.

I. Comments on Substantive Matters in the Proposed Regulations

Comment on Notice for Applicable Statute of Limitations 

The DOL has invited comment in 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). We agree that this is a crucial area for 

regulation as the Heimeshoff decision has created confusion for consumers and 

spurred significant litigation under health and disability plans. We urge the DOL 

to create 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 preclude a “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. We support the DOL’s preamble to these proposed 

regulations as to the remarks that plan administrators are in a better position to 

know the expiration date 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. To adequately protect 

consumers, the DOL should go beyond interpreting its own rules; it should rewrite them to remove any ambiguity. 

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]. The amended language should require the 

claims administrator to notify the claimant of the exact date of the expiration of 

any plan-based limitations period and should include a definition of a “reasonable 

limitations period”. This amendment would settle the different courts’ views on 

when claims “accrue” by clarifying that no limitations period can start before the 

internal claim and appeals process is complete. Specifically, we recommend the 

provision of no less than a one-year period after the completion of the plan’s 

appeals process in which a claimant can file suit. This rule would cut down on 

litigation devoted to the threshold issue of the limitations period. In addition, the 

rule may promote a standardization of internal limitations periods, thereby 
bringing consistency to the issue that would benefit claimants and plan 

administrators alike. 

Accordingly, we 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
It is evident the DOL aspires to improve the claims review process for 

claimants who are ambushed with new rationales or evidence during review on 

appeal. We commend this effort, since sandbagging has been a persistent problem 

in the ERISA appeals process and some courts have failed to appreciate 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. 

We have heard from consumers and fellow advocates that it is very 

difficult to supplement the record in litigation. The proposed change offers some 

assurance that a claimant may be allowed to contribute his or her relevant 

evidence to the record for the court’s review. 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. Plans have 

protested that giving the claimant the last word will make the internal appeals 

process continue forever. This argument is out of touch with the reality of being 

an ERISA benefits claimant. These claimants, in our experience, would not 

continue the process ad nauseum while they are unable to pay their mortgages and 

feed their families or, in the case of individuals seeking health insurance benefits, 

waiting for what is often life-saving treatment.

We suggest an amendment to the proposed regulation that places 

reasonable limits on both claimants and plan administrators, easing 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. Our suggested 

amendment below recognizes that these professionals are not always readily 

available for quick turn-arounds and may need weeks to evaluate the new 

information. For this reason, we suggest providing claimants at least 60 days to 

respond to new evidence or rationales provided by the plan on appeal. In addition, 

the period for the decision on review to be completed should be tolled during this 

60-day period. Following the claimant’s response, 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, we 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.

Independence and Impartiality - Avoiding Conflicts of Interest

The proposed regulation regarding the impartiality of claims personnel is 

essential. We applaud the DOL’s effort to minimize the effect that biased 

individuals have on the claims and appeals process. However, we urge the DOL 

to provide 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 light of these concerns, we suggest that the proposed regulation 

language be amended as follows (added language is bolded and underlined): 

29 C.F.R. §2560.503-1(b)(7) [proposed regulation]
In the case of a plan providing disability benefits, the plan and its 

agents, contractors, or vendors (such as any entities who 

supply consulting experts to plans) must ensure that all claims 

and appeals for disability benefits are adjudicated in a manner 

designed to ensure the independence and impartiality of the 

persons involved in making the decision or who are consulted in 

the process of making the decision. Accordingly, decisions 

regarding hiring, compensation, termination, promotion, or other 

similar matters with respect to any individual, (such as a claims 

adjudicator, vocational expert, accounting expert, or medical 

expert) must not be made based upon the likelihood that the 

individual will support the denial of benefits.

Opportunity to Supplement the Record

Although the EBSA has not chosen to regulate about this, it should do so. 

Many meritorious disability claims are denied and the courts affirm these 

determinations because of issues regarding the scope of the record on review in 

the court. For instance, many claimants’ conditions are progressive or defined by 

developing or changing diagnoses. In these cases, updated medical information is 

often crucial to proving disability claims. However, a diagnostic workup may 

take up to several years to complete, especially for claimants without continuous 

affordable health insurance coverage. For claims based on conditions without a 

definitive diagnosis, testing often emerges long after the disability claim is filed 

that sheds light on the nature of the claimant’s illness back to the onset of 

disability. This is true as well for other kinds of evidence. Even where it would 

not be a problem to do so, plan administrators often refuse to consider this type of 

evidence, choosing instead to shut the door on a meritorious claim. There is a 

clear solution to this that would track the Fifth Circuit’s en banc holding in Vega 

v. National Life Ins. Serv., Inc., 188 F.3d 287, 300 (5th Cir. 1999), where the 

Court wrote:

We hold today that the administrative record consists of relevant 

information made available to the administrator prior to the 

complainant’s filing of a lawsuit and in a manner that gives the 

administrator a fair opportunity to consider it. Thus, if the 

information in the doctors’ affidavits had been presented to 

National Life before filing this lawsuit in time for their fair 

consideration, they could be treated as part of the record. 

Furthermore, in restricting the district court’s review to evidence in 

the record, we are merely encouraging attorneys for claimants to 

make a good faith effort to resolve the claim with the administrator 

before filing suit in district court; we are not establishing a rule that 

will adversely affect the rights of claimants.

Id. 

In light of this holding from Vega, we recommend a rule that would 

require the plan administrator to accept and review evidence and treat it as part of 

the record, so long as it is sent in time for the administrator to consider the 

evidence before litigation is commenced.
II. Comments on Technical Matters in the Proposed Regulations

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 often not represented, may not understand 

what rights are given here. 

Accordingly, we 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. 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.

Right to Claim File and Meaning of Testimony

We find the proposed regulations’ contemplation of the manner of 

“testimony” lacks clarity.

In the preamble to the proposed regulations, the DOL 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.” Note the underscored language refers 

to “written testimony.” But the actual proposed regulation uses this phrasing: 

“[the processes for disability claims must] allow a claimant to review the claim 

file and to 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]. Here 

the regulation refers to “testimony” without limiting the type of testimony to 

“written” testimony. However, the current regulation uses the following 

language: “[the process must] provide claimants the opportunity to submit written 

comments, documents, records, and other information relating to the claim for 

benefits.” 29 C.F.R. 2560.503-1(h)(ii)(2)[current regulation].

In comparison, 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.” We anticipate this leading to costly 

disagreements over whether the regulation contemplates actual live testimony, i.e.

a hearing. Under the current regulation sometimes claimants submit testimony in 
the form of an audio or video CD. This is particularly useful in cases where the 

claimant, due to their disabling condition, cannot read or write. It is also helpful 

in those cases where actually seeing the claimant might be relevant to the 

disability determination. 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 put claimants in a worse position. 

Further, we worry the proposed regulation’s verbiage, i.e. “evidence and 

testimony” could be interpreted to impose courtroom evidentiary standards for 

claimants submitting proof of their claim – something that is not normally applied 

in the ERISA context. Plans are in a position to observe rules of evidence as they 

have in-house counsel and other legal resources to rely upon to assure compliance 

with the rules of evidence. But claimants, who are often unrepresented, are not 

equipped to understand, much less apply, the usual evidentiary standards 

suggested by the phrase “evidence and testimony.” We urge the agency to clarify 

that it is not curtailing or narrowing the types of information that claimants may 

submit to the administrator. 

III. Other Issues of Concern with the Regulations

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 essential because internal rules, 

guidelines, protocols, standards, claims manuals, and similar materials often 

create hidden plan terms that the claimant is unable to address 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.

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. We have 
heard from many claimants who were told by either their employer or plan 

administrator that they do not need representation. Not only are claimants 

laypeople faced with navigating the complex world of ERISA, but they are also 

facing a medical crisis, often suddenly and for the first time in their lives. Though 

their financial security is at stake, claimants are either cognitively, physically, or 

psychologically impaired in their ability to understand the denial rationale and 

develop an adequate response. We strongly urge the DOL to adopt a regulation 

that benefit denials must advise claimants of their right to hire an attorney to 

represent them in the appeal phase. The Social Security Administration does this. 

There is no reason to hide this right from claimants. 

IV. Conclusion

Health Law Advocates appreciates this opportunity to provide its 

comments on the proposed rule. If you find additional information from our 

organization may be helpful, please contact Executive Director Matt Selig at 

(617) 275-2986, or President of the Board of Directors Mala M. Rafik at (617) 

723-7470.

Sincerely.

Matthew Selig

Executive Director