materials and internal white papers on specific topics that are relevant to a
disability claim.

(C) A statement that the claimant is entitled to receive, upon request and free of
charge, reasonable access to, and 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.

Comment:

The phrase “pertinent documents” is not readily understood by Joe “Sixpack” and,
frankly, by most attorneys who do not practice in this arena. The current
regulations require that when a claim or appeal is denied the carrier must advise
the claimant of their right to review pertinent documents which is undefined in
the denial letter. Probably 70-80% of the matters referred to me involve a
situation where neither the claimant or his previous attorney obtained the claim
file in order to better understand why the claim was denied. | would respectfully
suggest that carriers include something along these lines in a denial letter:

Under ERISA you are entitled, upon request, to review all pertinent documents
that are relevant to your denied claim. These type of documents commonly
include a claim file, correspondence with you and your employer, medical
records, vocational reviews, email communications between claim examiners and
their managers and other materials (such as training materials, claim
investigation process guidelines, department memos or white papers) that
address an aspect of your disability claim. Your requesting this information may
better help you in understand why your claim was denied or if it was denied in

error.

Finally, carriers routinely define “claim file” narrowly. To that end, they do not
produce, even upon specific request, Settlement Files, Internal Medical
Review Files and Special Investigation unit Files (SIU).


RELEVANT EMPLOYME

10/08 to present

3/93-8/08

1/06- 12/08

8/97- 8/00

EXHIBIT A

GEORGE M THOMPSON
Suite 280, 1900 West Park Drive
Westborough, Massachusetts
(w) 508-366-1304

Thompson Law Office Westborough, MA.

Advise and represent policyholders, individuals and businesses in disability
(ERISA and Non ERISA), health, life, long term care and commercial insurance
claims, disputes and litigation. Website:www.insuranceclaim-attorney.com.

Unum Group (formerly Paul Revere Life) Worcester, MA
1993 Assistant Counsel

1994 Associate Counsel

1997 Counsel

1998 Assistant Vice President and Managing Counsel

2000-2008 Vice President and Managing Counsel

Manage, evaluate and mentor a team of attorneys and paralegals responsible for:
(1) providing ERISA and IDI claim coverage and claim risk analysis: (2)
managing individual (ERISA and Non-ERISA) disability insurance litigation in
the United States; and (3) counseling corporate clients on policy language
development, product compliance and underwriting. Meet regularly with Unum
officers, business unit managers and examiners to review legal issues, coverage
issues, claim files and discuss claims and/or litigation strategy. Provide bi annual
claim department wide training on ERISA LTD and other legal developments, i.e.
bad faith, HIPPA. Partner with outside counsel to prepare and defend the
company in disability insurance and punitive damage litigation. Prepare
witnesses for deposition and trial. Attend and participate in trials and mediations.
Prepare responses to state insurance department inquiries. Conduct due diligence
reviews of insurance blocks of business offered for sale. Manage and meet
regularly with UNUM TPA client AXA/Equitable to discuss legal needs and
trends. Worcester legal “Point Person” for reassessment support under
Regulatory Multi-State Market Conduct Settlement. Member of Worcester
Steering Committee with shared leadership responsibility for overall operation of
the Unum Worcester Operations Center.

UMASS School of Law Dartmouth, MA
Adjunct Professor teaching general Insurance Law.

Western New England College of Law Springfield, MA
Adjunct Professor of Life, Health, ERISA and Disability Insurance Law class as
well as a general Insurance Law class.


Other ERISA Disability Process Issues Relevant To Your Request For Comment

Contractual Limitations Period

A disability carrier that denies an appeal should include a specific sentence or
two in the denial letter that specifically tells the insured how much time they have
to file a lawsuit, the date that the lawsuit must be filed by, and provide an
example of how the deadline is calculated. Alternatively, require as part of the
ERISA claim process that the limitations period will always run from the date a
final appeal is denied.

Coverage Recissions-Adverse Benefit Determination

Group LTD disability coverage is not underwritten medically on an individual
basis. | have never seena carrier attempt to rescind group LTD coverage.

Provide Greater Regulatory Guidance On what a Reasonable Investigation Is
Require disability claim examiners (DCE) to :

1. Act affirmatively in using an Authorization signed by an insured to collect
necessary medical records. The purpose of the authorization is to allow the
carrier to get the records which they have significant resources and
experience to do. Many carriers let the Authorization sit in their file and put
the entire burden of production on the insured who is the least
experienced party in the claim process.

2. Act affirmatively in timely notifying an insured if it is having problems
obtaining records or employment information.

3. Pay treating Doctors a reasonable fee for their time if the carrier has a need
to speak with a treating Doctor. Doctors are incredibly busy and, frankly, do
not enjoy working on disability forms because : (1.) they don’t get paid for
it by the insured’s medical carrier and (2.) their conclusions are often


(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 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; and (iii) Provide that, before the plan can issue an adverse benefit
determination on review on a disability benefit claim based on a new or
additional rationale, the plan administrator shall provide the claimant, free of
charge, with the rationale; the rationale 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.

Comment:

This is absolutely critical to ERISA’s promise of a full and fair review. Often times
the denial of an appeal contains new rationale to support the original denial from
new individuals. Sometimes the new individual working on a claim, i.e. a third
party “independent physician, will document a discussion in the claim file with an
insured’s doctor that is at worst, patently false or at best, significantly out of
context. Absent the ability to respond to this “new” evidence or rationale, the
insured is “sandbagged” and deprived of the promise of a full and fair review. For
example, a claim may be denied by a carrier initially upon the recommendation of
an internal/employee nurse who simply reviews the medical records. On appeal,
however, the medical reviewer for the insurance company often reaches out to
the treating physicians for their input. Finally, the additional rationale for the
denial needs to be specific and not conclusory and advise the insured as to why
their evidence supporting disability was not credible and rejected.


two financial quarters. The carrier can push the “hit” of a reserve reopen
into another quarter by always extending for special circumstances or
abusing the “tolling” process. This technique does not require the DCE to be
knowingly manipulating appeal reviews and claim reserves. Rather the DCE
may be an unwitting accomplice because he/she is merely following a
process established by others. If the DOL wants to investigate my point,
simply ask the five largest disability carriers to tell you how often do they
extend LTD appeal investigations because of special circumstances? I’d be
shocked if it was less than 75% of the time. Delay in decision making is
unfair to the claimant because it simply prolongs financial distress and
uncertainty.

Settlement Agreements

Many disability carriers, require claimants involved in claim settlements to sign a
release where by the insured promises that if he or she ever regain their health
and work for another employer who is insured by the same disability carrier, that
any claim they have under the new employer’s LTD plan will be null and void. This
is a very widespread practice and essentially asks the insured to agree to language
inconsistent with a subsequent employer’s disability plan language. The DOL
should declare the practice as unreasonable.

Thank you for your time and consideration of my comments.

Regards
GMP

George Thompson


The Law Office of George M. Thompson

P.O. Box 1181, Suite 280, 1900 West Park Drive, Westborough, MA 01581
Phone (508) 366-1304 Fax (508) 366-6182

gthompson@gthompsonlegal.com www.insuranceclaim-attorney.com

Office of Regulations and Interpretations October 19, 2015
Employee Benefits Security Administration

ATT: Claims Procedure Regulations Amendment

For Plans Providing Disability Benefits

Room N-5655

U.S. Dept. of Labor

200 Constitution Ave. N.W.

Washington, D.C.

20210

RE: Department of Labor, 2015 Notice of Proposed Rulemaking (Disability Plan
claims Procedures), RIN 1210-AB39

Dear Sir/Madam:
1. Introduction

Thank you for the opportunity to comment on the DOL’s November 18, 2015
Notice of Proposed Rulemaking regarding Claims Procedure Regulations
Amendment For Plans Providing Disability Benefits. My comments are the by-
product of a unique point of view in this field. For 15 plus years | worked as an
attorney for the largest private disability insurer in the world both training and
advising disability claims professionals and defending the company’s denial
decisions in litigation across the country. Since 2008, after leaving the disability


PRESENTATIONS:

Wellness ad The Affordable Care Act Boston, MA
November 2014 presentation to the New England Employee Benefit Council
HIPAA Boston, MA.

September 2013, produce three 1 hour webinars regarding September 2013 HIPAA
Requirements.

FMLA, ADA and COBRA: The Bermuda Triangle Southborough, MA.

August 2012, present seminar to Metrowest HR Chapter regarding key legal issues
and recent development in care law and regulatory enforcement.

Federal Health Care Reform, Affordable Care Act Update
Worcester, MA (Oct 2013)
Framingham, MA (June 2013)
Manchester, NH_ (April 2012)
Providence, RI (June 2012)

Review of current implementation and future requirements under
The Affordable Care Act.

Massachusetts Bar Association Boston, MA.
June, 2009, CO-Chair Annual Health Law Conference, Health Insurance, ERISA
in the First Circuit

New England Claims Conference New York, NY
September, 1999- Preparing insurance company witnesses for deposition

March, 2008- “The Year In Review” Panel Presentation on ERISA/LTD and IDI
Risk Management and Litigation.

Eastern Claims Conference New York, NY
March, 1998- Organize and chair panel on Disability Insurance issues
March, 1999- Organize and chair panel on Disability Insurance issues
March, 2001- Organize and chair panel on Disability Insurance issues
March, 2005- Organize and chair panel on Disability Insurance issues
March, 2006- Panelist, Disability Insurance Roundtable

Western Claims Conference Palm Springs, CA
June, 2007- Mediation Issues preparation and strategy.

Defense Research Institute: Life, Health, and Disability

Section Annual Meeting Chicago, IL
April, 2005- Punitive Damage and Insurance Claim Defense Strategies
March, 2006-The Insurer’s Ongoing Duty of Good Faith During Litigation.


9/89-3/93

COMMUNITY
ACTIVITIES:

5/06- 3/12

3/00-5/06, 3/13-Present

5/90-9/98

Mirick, O’Connell, DeMallie & Lougee Worcester, MA
Litigation Associate. Admitted to State and Federal Bar in 1989. Involvement in
areas of construction and commercial litigation, life and disability insurance
litigation and medical malpractice litigation. Superior and District Court trial
experience, argued before the Massachusetts Court of Appeals.

Westborough Board of Selectmen
Elected member of Town’s Board of Selectmen, Chairman 2008

Westborough School Committee
Elected member of School Committee; Vice Chairman 2001; Chairman 2005.
Oversight responsibility for a $40 million budget.

Westborough State Hospital

Trustee (1990-96). Appointed by Governor Dukakis (D) of Massachusetts.
Reappointed by Governor Weld (R).

Responsible for reviewing and recommending policies affecting administration of
mental health services to patients.

President of Board of Trustees (1996-98).

PRO BONO/BAR PARTICIPATION:

2008-Present

2009-2010

2008- 2010

2005- 2010

1993-1996

1989-1993

Worcester County Bar Association Worcester, M A.
Insurance subcommittee, review, negotiate and recommend insurance
coverage for WCBA Membership

Society of Financial Service Professionals Worcester, MA.

Massachusetts Bar Association: Health Law Section Boston, MA.
Co-Chairman 2008

Health Law Advocates Boston, MA
Advisory Board Member.

Volunteer representing individuals/families below poverty level in obtaining
health insurance coverage and social security disability benefits from the state and
federal government as well as private insurers.

Worcester County Legal Aid Society
Draft Wills and Health Care Proxies for clients with AIDS, represent indigent and
elderly clients in apartment evictions.

Court Appointed Special Advocate
Appointed by Juvenile Court to serve as a fact finder in cases of child abuse and
neglect.


second guessed by a person who has never met their patient or had a
chance to assess the patient’s credibility.

. Ifacarrier, or an “independent physician” (IME) retained by the carrier
cannot speak or communicate with an insured’s physician, let the insured
know and ask for his assistance. Too often | see claim files where an IME
leaves 2-3 voice mails for the treating Doctor, does not get a response
within 24 hours, reaches a conclusion adverse to the insured’s interest and
the claim and/or appeal are denied event though the carrier still has more
time to review the claim or appeal.

. Provide the name and direct dial phone number of the claim and/or appeal
examiner. Some carriers, Aetna comes to mind, require their insureds to
navigate a minefield of voicemail and password prompts that can last
several minutes before you reach the phone of the claim examiner. This is a
painful and frustrating experience for anybody suffering from a
psychological illness who lacks the ability to focus and concentrate on a
multi step process. Make communication simpler. There is no harm or extra
cost in providing a first name and direct dial number on all communication.

. Start the appeal review/investigation sooner in the first 45 day period
rather than later when the appeal is submitted . Currently, the ERISA
disability claims procedures allow a carrier to extend the appeal review
process an additional 45 days for “special circumstances.” The clear import
of the regulation is that “special circumstances” should be the exception to
the rule. The reality, however, is that carriers more often than not routinely
extend their review for special circumstances late in the first 45 days of
review for an IME/outside medical peer review even though they know
their review process calls for such a review. In short, there is nothing
“special” about the extension at all since the extension is routine. Carriers
want to take longer to start the process because it allows them to keep
their DCE staffing levels down and they can better manage when a claim
reserve will reopen if an appeal is successful. In short, 90 days is 3 months,
or on a calendar basis, a single financial quarter or 90 days split between


(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 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;

Comment: The challenge here is that often times the internal claim file will show
largely conclusory reasoning underpinning the disagreement with the insured and
serving as the basis for the denial. In effect, the examiner is not saying the insured
is not disabled...but that the insured has not sufficiently proven that they are
disabled under the terms of the plan. A classic example that is wide spread in the
industry is that often claims are denied because the nature of the medical
evidence was not “objective” in the eyes of the disability claim adjudicator. The
problem is two fold: (1.) the insurer fails to educate the claimant if and how one
can objectify something that is subjective such as fatigue or pain and (2.) the
examiner dismisses entirely the credibility of the insured and the AP. Another
barrier that claims examiners often create is to, in effect... require “perfect proof
“ of aninsured’s disability as opposed to “reasonable proof.” For example,
medical records from a psychologist attesting a to a client’s severe depression are
often rejected and deemed unacceptable by disability carriers. What the carrier
will ask the insured to produce is a neuropsychological evaluation...which can
costs well over $5,000 and is often time not covered under an insured’s health
insurance assuming they have health insurance. The cost of providing “perfect
proof” can be exorbitant and beyond the reach of the average claimant.

(B) 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; and

Comment:

Often times carriers will take the position that the terms of the plan language
constitute “the internal rules, guidelines, protocols, etc. This contention is

nonsensical. They should be required to disclose available and relevant training
4


What was the rate of appeals upheld/reversed by the plan, the insurer or
Third Party Administrator (TPA) in the previous calendar year in regards to
the specific insurance product?

If the plan engages a third party vendor to assist in reviewing a claim/and
or appeal, what is the percentage of claims that the third party
upholds/agrees with the earlier denial or reverses the earlier denial?
Require annual certification from the General Counsel or Chief financial
Officer for the employer of a self inured plan, insurer or TPA that he/she
has conducted an annual audit and is satisfied that the appeals unit is
entirely independent in both operation and decision making form the
financial goals of the claims department.

Underscore the seriousness of the need for absolute independence in the
claim process by crafting an appropriate criminal sanction for any party
unduly influencing the decision on a claim for reasons unrelated to the

merits of the underlying decision.

Given the amount of money that disability plans and insurers pay for claims
adjudication services, it would be reasonable to expect that this type of

information is already tracked by either the insurer or the plan which would allow

for easy implementation. Moreover, this information will help engender
participant and public confidence that the disability claims process is truly fair,
indepedent and not overwhelmingly one sided it its results and also empower

employer consumers and employers to make fully informed decisions about from

whom they should purchase disability insurance.
§ 2560.503-1 Claims procedure.

(g) RK (1) RK

(v) In the case of an adverse benefit determination by a group health plan—
xe KKK

(vii) In the case of an adverse benefit determination with respect to disability

benefits—


industry, | have represented individuals in employee benefit disputes.’ See Exhibit
A. It is my hope that my comments provide some value and insight to the DOL.

§ 2560.503-1 Claims procedure.

(7) In the case of a plan providing disability benefits, the plan 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. Accordingly, decisions regarding hiring, compensation,
termination, promotion, or other similar matters with respect to any individual
(such as a claims adjudicator or medical expert) must not be made based upon
the likelihood that the individual will support the denial of benefits.

Comment: It will be a simple exercise to require this type of certification in either
the hiring process or part of the denial letter process. | have seen perhaps two
carriers adopt the practice of putting a paragraph in the initial denial letter and
final appeal denial letter attesting to the examiner’s independence. The biggest
challenge, however, is insuring internal appeal unit independence which will go
farther in assuring examiner independence. For example, aside from the
attestation of an individual examiner, | think it is paramount to make sure that the
manager of the appeals unit be able to work with absolute independence from
the manager or head of a claims department. To this end, | would recommend
certification that the appeals unit does not have an annual financial goal (defined
in terms of dollars or percentages) to either uphold or deny a certain number of
earlier denials. It would also be consistent with the goals of independence and
transparency to require the plan to disclose:

“My written opinions expressed in this letter do not reflect on any specific experiences that | had working at The
Paul Revere Life Insurance Compnay/UNUM as an attorney that may be protected by the Attorney Client privilege
but rather spring from my collective experience representing insureds in claim disputes with a variety of fully
insured and self insured plans.

2


American Law Firm Association New York, NY
June, 2001- Punitive Damage Defense strategies and Disability Insurance
Litigation

June, 2003- State Farm vs. Campbell and the impact on Insurance Litigation