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within the sweep of the Affordable Care Act’s claims rules, it would have done so explicitly.
See, e.g., Central Bank of Denver y. First Interstate Bank, 511 U.S. 164, 176-77 (1994)
(although “Congress knew how to impose aiding and abetting liability when it chose to do so,” it
did not use the words “aid” and “abet” in the Securities Exchange Act of 1934, and so did not
impose aiding and abetting liability in that statute). The Affordable Care Act uses the word
“disability” 38 times in other contexts.

The Department nevertheless proposes “to uplift the current standards applicable to the
processing of claims and appeals for disability benefits so that they better align with the
requirements regarding internal claims and appeals for group health plans under the regulations
implementing the requirements of the Affordable Care Act.” The sole rationale given is that
because some plans that pay disability benefits also pay health benefits, the Affordable Care Act
rules are already familiar.

We believe the Department’s conclusion is flawed. Many if not most disability plans,
including the NFL Player Disability Plan, have no familiarity with the rules of the Affordable
Care Act. Moreover, disability benefits are fundamentally more like pension benefits than health
benefits. Disability benefits are intended to replace income, and generally involve a monthly
stream of payments over a period of time, extending as long as the recipient’s life span. Health
benefits generally involve payment for a product or service; invoices are created for each product
or service. There are other important differences. Disability claims decisions require a sensitive,
often much more complex holistic analysis of the claimant’s physical and mental condition.
Health claims decisions typically look only at whether the product or service sought to be
covered is appropriate for the stated diagnosis. Disability benefits require manual processing.
Health benefits are typically susceptible to automated processes.

The government’s own programs recognize these distinctions. There are differences
between how the Social Security Administration and the Veterans Administration process
disability claims, and how Medicare processes health claims. For example, a decision on an
initial application for Social Security disability claims takes an average time of over 100 days
(https://www.ssa.gov/open/data/Combined-Disability-Processing-Time.html). The Medicare
Claims Processing Payment Manual, by contrast, states that health claims normally should be
paid within 30 days (https://www.cms.gov/ Regulations-and-Guidance/Guidance/Manuals/
Downloads/clm104c01.pdf).

Because of these differences between health and disability benefits, Congress did not
extend the Affordable Care Act claims rules to plans providing disability benefits. The
Department should not go further than Congress.

c. The Department’s economic impact analysis grossly underestimates
the added costs.

Executive Orders 12866 and 13563 direct the Department to “assess all costs and benefits
of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches
that maximize net benefits.” Executive Order 12866 requires the Department to estimate costs


GRGOM LAW GROUP

° What if the standards of the Plan vary from the standards applied by the SSA, the
treating physician, or the third party disability payor? How is the Plan to know
the standards applied by a third party disability payor, and whether those
standards differ from the standards of the Plan?

e When the SSA makes a disability determination, what part of the determination
must be discussed? For example, SSA decides first whether a claimant is totally
and permanently disabled, but it also sets an onset date of total and permanent
disability. Are all SSA determinations as to onset dates subject to the Proposed
Rule, even though they may be unreliable when the SSA onset date precedes (as
is does sometimes by many months) the date as of which SSA benefits may
actually be payable? Similarly, in some cases SSA may identify the totally and
permanently disabling impairments; is that determination subject to the Proposed
Rule? SSA also takes into account factors that a plan may be prohibited from
recognizing, such as age and education at the time of application. How are such
factors to be addressed, if the complete SSA file is not provided to the Plan by the
claimant?

° What is a treating physician? How many visits does it take before a physician
becomes a treating physician? Is more discussion required when there is a long
history between a claimant and a physician than when there is a short history?
We note that treating physician reports are not entitled to deference. As Justice
Ginsburg noted in Black and Decker Disability Plan v. Nord, 538 US 822, 832
(2003), “the assumption that the opinions of a treating physician warrant greater
credit than the opinions of plan consultants may make scant sense when, for
example, the relationship between the claimant and the treating physician has
been of short duration, or when a specialist engaged by the plan has expertise the
treating physician lacks. And if a consultant engaged by a plan may have an
‘incentive’ to make a finding of ‘not disabled,’ so a treating physician, in a close
case, may favor a finding of ‘disabled.’”

° What is a “view” of a medical professional? Does every statement in a medical
report constitute a “view”?

° What level of discussion will satisfy the Proposed Rule? Is it enough to say that
the fiduciary weighed the evidence and found a treating physician or third party
disability payor unpersuasive? Is some greater level of discussion contemplated
by the Proposed Rule?

Because of the vagueness in the Proposed Rule, to be safe, plans will be forced to
undertake extraordinary steps in all cases to parse voluminous medical records, determine what
is worthy of discussion in an adverse benefit determination, and create a legalistic discussion that
exceeds what is necessary to fairly and clearly apprise the claimant of the decision and why it
was made. Plans will have to “staff up” to comply, which will greatly increase administrative
costs. The economic analysis in the Proposed Rule does not take into account this increased
cost.

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GRGDM LAW GROUP

We ask the Department to consider withdrawing the Proposed Rule so it can conduct a
more complete economic analysis.

Il. If the Department does not withdraw the Proposed Rule, the Department
should consider exempting multiemployer plans because collective
bargaining more effectively protects claimants.

Plans forged through collective bargaining, where decisions are made by committees and
boards comprised of equal numbers of employer and union representatives, should be exempt
from the Proposed Rule. Collective bargaining parties know the needs of their constituencies,
and will bargain for the procedural protections that are appropriate for their population.

In multiemployer plans, there can be no bias against claimants, and the Department need
not be concerned about the independence and impartiality of the decision makers. The emphasis
is solely on administering the plan according to its terms, which requires careful consideration of
all cases, under the existing legal standard of a “full and fair review.” In the multiemployer
context, it is established law that there is no conflict of interest among its fiduciaries because of
the equal representation requirement.

Collective bargaining protects workers better, and in a more cost-effective way, than
regulation. For example, the Proposed Rule requires that non-English language services be made
available if a participant happens to live in certain counties. Here that requirement is
unnecessary. The Plan is aware of no Players who lack fluency in English, yet will have to
spend money on meeting the Department’s requirements. The bottom line is that the bargaining
parties know better than the Department what the participants need.

We note again that collectively bargained plans, like the NFL Player Disability Plan,
typically have complex, industry-specific rules and standards, and have procedures in place for
fair and impartial review. If the Department makes multiemployer plans more costly to
administer, those additional costs must ultimately reduce wages. There is no free lunch. Again,
the bargaining parties are in a better position to allocate scarce resources.

Ill. Three features of the Proposed Rule are particularly troubling, and should
be excluded from any revision of the existing claims regulation.

A. The strict compliance standard is antithetical to decades of established
case law, encourages claimants to game the system, and
unconstitutionally involves the Department in the business of the federal
judiciary.

Under the Proposed Rule, “if the plan fails to strictly adhere to all the requirements of
this section... the claimant is deemed to have exhausted the administrative remedies.” If such
a claim is litigated, “the claim or appeal is deemed denied on review without the exercise of
discretion by an appropriate fiduciary.” In other words, even the slightest misstep by a plan will
allow a claimant to skip the administrative process and go directly to federal court. There, the
judge would decide the case de novo; he or she might even hold a hearing and allow testimony.


GRGDM LAW GROUP

and consequences using the best reasonably obtainable scientific, technical, economic, and other
information.

The Proposed Rule grossly understates some costs and does not take into account others.

e Plans will have to “staff up” to meet the requirements of the Proposed Rule. For
example, staff will have to scour voluminous medical records that are typically
submitted by claimants to find those notes or sentences that may be viewed as
favorable to a claim, and to describe in decision letters why the plan has not followed
those notes or sentences. New staff will also be required to respond to requests for
information and to track the status of appeals.

Litigation will increase. The Proposed Rule creates an incentive to game the system,
to “foot fault” a plan into making a minor procedural error, so that claimants can go
directly to court and obtain de novo review.

© Plans that do not currently provide non-English language services will have to do
so. The Department incorrectly assumes that disability plans already provide such
services because they also provide health benefits. That is not true.

e Inconnection with the new step that the Department proposes for all appeal cases, the
Department only considers the cost of sending the new evidence or rationale to the
claimant. The Department does not consider the additional costs involved in
assessing what the claimant then submits, which may be substantial. The claimant’s
submission may require substantial new review by medical specialists, which will
then trigger another round of comments by the claimant, and so on. None of those
additional costs are included in the Department’s estimate.

e With respect to the concept of hiring truly independent and impartial decision-makers
and medical experts, the conduct the Department proposes to eliminate is already
prohibited by law. Adding a duplicative regulatory obligation will impose additional
costs that the Department has not considered. For example, litigation costs will rise
as counsel depose decision-makers about their compensation and hiring practices.

¢ The Department appears to be contemplating a change in disclosure of applicable
statutes of limitations, but assesses no cost in connection with this regulatory
change. Plans and third party administrators will have to revise their communications
accordingly, and there are costs to that.

e The Department justifies the Proposed Rule by stating that its procedural protections
will increase the accuracy of decision-making, causing fewer incorrect benefit
denials. The Department fails to establish the critical predicate for their
assumption: that many incorrect benefit denials occur. Absent that predicate, the
costs associated with the Proposed Rule would be far greater than the benefits the
Department claims.


GRGOM LAW GROUP

The Department does not say, however, why each and every rule contained in the claims
regulation is so “essential to procedural fairness” that “a decision made in the absence” of any
one of them, where there otherwise has been substantial compliance, should forfeit the normally
applicable standard of judicial review.

Under the Proposed Rule, litigants will fight over the standard of judicial review in every
case, and efforts to game the system may be rewarded. For instance, undeserving claimants (or
their lawyers) can seek to win an award of disability benefits by overlooking a minor error by the
Plan at the initial stage, continuing through the claims process to completion, and, if dissatisfied
by the final decision, go to court for de novo review. Such gamesmanship makes a mockery of
the administrative review process. As another example, undeserving claimants (or their lawyers)
can try to “trip up” plans by taking actions to complicate the processing of their claims. The
Proposed Rule would allow such claimants or their lawyers to submit multiple medical reports,
and argue that the plan did not adequately explain “the basis for disagreeing” with some “view or
decision” of those physicians, thereby forfeiting the deferential standard of review that the plan
is entitled to receive. Such claimants or their lawyers may submit confusing arguments and
evidence, or delay and confuse deadlines, all in an effort to induce an error by the plan.

It appears that the Department wishes to tilt the litigation odds in favor of claimants and
against plans. We ask the Department to reconsider that intent.

B. The expanded disclosure requirement is vague, and will create burdens.

The preamble to the Proposed Rule states that is would require disability plans, in each
adverse benefit determination, to describe “the basis for disagreeing with any disability
determination by the Social Security Administration (SSA), a treating physician, or other third
party disability payor presented by the claimant, to the extent that the plan did not follow those
determinations.” The proposed regulation would also require a discussion of any disagreement
with the “views” of any medical professional whose report is submitted to the plan.

This expanded disclosure requirement is vague, and will not advance the statutory
standard required by ERISA for claims procedures (plans must “provide adequate notice in
writing to any participant or beneficiary whose claim for benefits under the plan has been denied,
setting forth the specific reasons for such denial, written in a manner calculated to be understood
by the participant.” 29 U.S.C. § 1133(1)).

The following questions illustrate the problem:

e How is the Plan to determine, exactly, what must be discussed, when a claimant
submits hundreds or thousands of pages of medical records? For example, if the
claim involves total and permanent disability, is it enough to describe those
determinations that explicitly address total and permanent disability, or must
medical descriptions of impairments that may render a claimant totally and
permanently disabled, individually or in combination, also be discussed in every
adverse benefit determination?


GRGDM LAW GROUP

Douglas W. Ell
Alvaro I. Anillo
January 19, 2016

VIA EMAIL (e-ORI@dol.gov) & U.S. MAIL

Office of Regulations and Interpretations
Employee Benefits Security Administration
U.S. Department of Labor

200 Constitution Avenue, NW

Room N-5655

Washington, DC 20210

Attention: Claims Procedure Regulation
Amendment for Plans Providing Disability Benefits

Dear Sir or Madam:

The NFL Player Disability & Neurocognitive Benefit Plan (“NFL Player Disability Plan”
or “Plan”) greatly appreciates this opportunity to comment on the proposed changes to the claims
procedures for plans providing disability benefits, as published at 80 Fed. Reg. 72014 (Nov. 18,
2015) (“Proposed Rule”).

As described below, the Proposed Rule will inhibit, not improve, the administration of
complex, industry-specific plans such as the NFL Player Disability Plan. Accordingly, we ask
the Department to consider withdrawing the Proposed Rule, or exempting multiemployer plans,
such as the NFL Player Disability Plan, which are the most likely to contain complex, industry-
specific rules. We also comment on three parts of the Proposed Rule that are particularly
troublesome.

Because of the substantial complexities and dangers of the Proposed Rule, and the special
concerns of multiemployer plans, we ask the Department to hold a public hearing, and we
respectfully request the opportunity to present oral testimony.

THE NFL PLAYER DISABILITY PLAN

The NFL Player Disability Plan was forged through decades of collective bargaining
between the NFL and the NFL Players Association. It may provide the most generous disability
benefits in the world, and its procedures have been developed to evaluate claims
comprehensively and fairly. The Plan currently pays about $10 million a month to former NFL
Players.

Players have access to three types of disability benefits. They may apply for any one, any
two, or all three at a time. Ifa Player applies for all three, the Plan must still comply with all

Groom Law Group, CHARTERED
1701 Pennsylvania Ave., N.W. « Washington, D.C. 20006-5811
202-857-0620 « Fax: 202-659-4503 + www.groom.com


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Moreover, such repeating cycles of review within a single appeal would unnecessarily increase
cost of appeals. See Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10" Cir. 1992)
(noting that Congress intended to minimize the costs of claims settlement by passing ERISA).

The Proposed Rule does not address these sound policy reasons. Instead, the Proposed
Rule justifies itself in the following words:

It is the view of the Department that claimants are deprived of a full and fair
review, as required by section 503 of ERISA, when they are prevented from
responding at the administrative stage level to evidence and rationales.
Accordingly, adding these provisions to the Section 503 Regulation would
explicitly address this problem and redress the procedural wrongs evidenced in
the litigation under the current regulation.

The cryptic reference to “procedural wrongs evidenced in the litigation” (citing Metzger) is
nowhere explained by the Department. The Proposed Rule fails to give a justification for this
major change.

Second, this new step raises unanswered questions: What is the fiduciary to make of a
claimant who does not respond to such new evidence or rationale? What is required to give the
claimant a “reasonable opportunity” to respond—one week, thirty days, more, or less? What
happens if the claimant desires to submit materials, but cannot do so in the time provided?

Third, the Department describes this new step as an “overlay” to the existing timetable
for appeals. It is conceivable that in some cases the new step may be complete in a short time
period, but in other cases each turn around may require a substantial amount of time. For
example, if a claimant would like to rebut a new medical report with his own medical report, the
claimant may need weeks, or more, to obtain the rebuttal report from a busy doctor. It is not
administratively workable for plans to meet the existing timetables while also providing this new
step in every case.

For the three reasons described above, the Department should drop this change
altogether. If the Department insists on this new step, the only way to make it workable is to
reset the clock to zero each time the claimant begins a new cycle by submitting a response to
new evidence or rationale forwarded by the plan. That is the only way to achieve the meaningful
dialogue that the Department wishes to foster, while also providing plans the ability to make
well-considered decisions on the merits of the appeal and provide the final decision letters that
claimants deserve.'

' The Proposed Rule could create the disability claims equivalent of the famous tennis match of
John Isner versus Nicolas Mahut, in which Isner defeated Mahut after 11 hours, 5 minutes of
play over three days. Because the players exchanged game after game in much the same cyclical
manner as proposed by the Department, it took Isner 138 games to win the final set (by a score of
70-68). Normally a set requires no more than 10 to 12 games to finish. The Department should
not impose such burdens on claimants and plans.

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GRGOM LAW GROUP

C. The right to review and respond to new information before final decision
adds a substantial, time-consuming step to the appeal process, but the
Proposed Rule does not give additional time for final decisions.

The Proposed Rule obligates plans providing disability benefits to add an entirely new
step to all appeals. In this step, the plan must provide any new or additional evidence
considered, relied upon, or generated by (or at the direction of) the plan in connection with the
appeal to the claimant. The plan must also provide any new rationale for denial of the appeal.
The plan must do so as soon as possible, and sufficiently in advance of the appeal decision to
provide the claimant with a reasonable opportunity to respond to such new or additional evidence
or rationale. The Proposed Rule explains how this new step would work:

[A]ssume the plan denies a claim at the initial stage based on a medical report
generated by the plan administrator. Also assume the claimant appeals the
adverse benefit determination and, during the 45-day period the plan has to make
its decision on appeal, the plan administrator causes a new medical report to be
generated by a medical specialist who was not involved with developing the first
medical report. The proposal would require the plan to automatically furnish to
the claimant any new evidence in the second report. The plan would have to
furnish the new evidence to the claimant before the expiration of the 45-day
period. The evidence would have to be furnished as soon as possible and
sufficiently in advance of the applicable deadline (including an extension if
available) in order to give the claimant a reasonable opportunity to respond to the
new evidence. The plan would be required to consider any response from the
claimant. If the claimant's response happened to cause the plan to generate a third
medical report containing new evidence, the plan would have to automatically
furnish to the claimant any new evidence in the third report. The new evidence
would have to be furnished as soon as possible and sufficiently in advance of the
applicable deadline to allow the claimant a reasonable opportunity to respond to
the new evidence in the third report.

There are three major flaws in this proposal, as it is described by the Department.

First, as the Department recognizes in the preamble, courts have identified sound policy
reasons to exclude this step at the administrative appeal stage:

Permitting a claimant to receive and rebut medical opinion reports generated in
the course of an administrative appeal—even when those reports contain no new
factual information and deny benefits on the same basis as the initial decision—
would set up an unnecessary cycle of submission, review, re-submission, and re-
review. This would undoubtedly prolong the appeal process, which, under the
regulations, should normally be completed within 45 days. 29 C.F.R. § 2560.503—

1@GB)@).
Metzger v. UNUM Life Ins. Co., 476 F.3d 1161, 1166-67 (10 Cir. 2007).

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GRGOM. LAW GROUP

The proffered de minimis rule will not provide any relief. A plan would have to perfectly
meet five conditions, including that the violation is not “part of a pattern or practice of violations
by the plan.” Of course, every claimant will argue exactly that.

The Department is well aware of the rich case law following the Supreme Court’s
decision in Firestone Tire & Rubber Co. v. Bruch, 489 US 101 (1989). In those cases, the
federal courts studiously fleshed out the standard of judicial review for cases involving disputes
over benefit claims. This case law is at the very core of ERISA, and accurately reflects the
voluntary nature of the employee benefits system and the common law of trusts that underlies
ERISA.

Courts have overwhelmingly determined that “substantial compliance” by a plan with the
claims procedure prescribed by the Department does not disrupt the standard of judicial review.
Substantial compliance exists where there has been “an ongoing productive evidence-gathering
process in which the claimant is kept reasonably well-informed as to the status of the claim and
the kinds of information that will satisfy the administrator.” Gilbertson y. Allied Signal, Inc.,
328 F.3d 625, 634 (10th Cir. 2003) (citing Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 691 (7th
Cir. 1992)). The rationale for the substantial compliance doctrine is clear:

[Requiring strict compliance] could inhibit collection of useful evidence and
create perverse incentives for the parties. Even in cases where additional medical
information is clearly necessary for a proper decision, administrators would have
an incentive to issue a final denial on the inadequate record in order to preserve
their right to deferential review, rather than to wait for the information and risk
losing deference. On the other side, claimants might be encouraged to delay a
final decision by suggesting that they intend to produce additional information,
only to pull the plug and demand de novo review in federal court on the 121st
day. This result would be antithetical to the aims of ERISA. ERISA’s procedural
regulations are meant to promote accurate, cooperative, and reasonably speedy
decision-making, not to generate an endless stream of business for employment
lawyers. Thus, in the context of an ongoing, good faith exchange of information
between the administrator and the claimant, inconsequential violations of the
deadlines or other procedural irregularities [should not pose litigation
consequences].

Id. at 635. The Department would undo this substantial body of law.
The Department’s rationale boils down to the following:
The Department's intentions in including this provision in the proposal are to
clarify that the procedural minimums of the Section 503 Regulation are essential

to procedural fairness and that a decision made in the absence of the mandated
procedural protections should not be entitled to any judicial deference.


GRGDM LAW GROUP

ANALYSIS
I. Because the Proposed Rule is defective in three ways, the Department should

consider withdrawing it.

A. — The Department should take great care not to impose undue costs and
burdens on voluntary disability plans.

Private sector disability benefits are provided voluntarily. They are not vested, and can
be reduced or eliminated at any time. There are no minimum standards or coverage rules.

When ERISA was enacted, Congress explicitly sought to avoid overburdening voluntary
plans. Congress acknowledged what has been called the “ERISA bargain”: participants receive
certain federal protections in exchange for foregoing certain potential remedies. See
Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 0.17 (1985) (citing H.R.Rep. No.
93-533, 1, 9 (1973), 2 Leg.Hist. 2348, 2356; 120 Cong.Rec. 29949 (1974), 3 Leg.Hist. 4791; 120
Cong.Rec. 29210-29211 (1974), 3 Leg Hist. 4706-4707) (noting that “Congress was concerned
lest the cost of federal standards discourage the growth of private pension plans”).

Great care is appropriate before imposing extra administrative costs and litigation
expenses. As the Supreme Court noted:

[C]ourts may have to take account of competing congressional purposes, such as
Congress’ desire to offer employees enhanced protection for their benefits, on the one
hand, and, on the other, its desire not to create a system that is so complex that
administrative costs, or litigation expenses, unduly discourage employers from offering
welfare benefit plans in the first place.

Varity Corp. v. Howe, 516 US 489, 497 (1996).

The Proposed Rule is intended to enhance protections for participants, but it creates
risks for participants. As plan sponsors experience the substantial extra costs and increased
litigation risks described below, they may ask themselves whether providing disability benefits is
worth the expense, They may note that their workers are covered for disability by Social
Security, and that very few new hires focus on disability benefits. The Department should not
lightly impose additional costs and burdens on plans providing voluntary disability benefits.

B. Disability benefits and health benefits are fundamentally different,
and different rules should apply.

In the Patient Protection and Affordable Care Act (“Affordable Care Act”), Congress
undertook a major overhaul of the marketplace for health coverage. Among other changes, it
subjected disparate health markets to a unified set of rules for processing claims. These markets
include employer sponsored plans covered by ERISA and individual plans not subject to ERISA.
Congress did not, in any way, state that the claims procedure changes would or should have any
effect beyond health claims. If Congress intended to include plans providing disability benefits

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GRGDM LAW GROUP

The decision-making fiduciaries of the Plan must not only carefully apply all of these
rules, they must do so while reviewing voluminous records. It is typical for a claimant to submit
hundreds or thousands of pages of documents, including their entire college and NFL medical
records.

The Plan has special procedures to review claims carefully and objectively. It has
enlisted some of the most distinguished specialists in the nation, in fields such as orthopedics,
cardiology, neurology, psychiatry, and so on. Each of these doctors is a renowned specialist in
his or her field, and each is still actively practicing. Each of these doctors has also been
reviewed and approved by both union and management sides of the Board. Specialist meetings
are regularly held, and it is always emphasized that each physician must evaluate claims fairly,
with no bias for or against the Player.

In some cases the medical evidence is extremely difficult to evaluate, such as if there is a
difference of opinion among doctors. In such cases, or where there is a deadlock, the Plan refers
cases to a “Medical Advisory Physician,” or MAP. MAP medical decisions are final and binding
on the Board. All MAPs are distinguished specialists approved by both sides of the Board.

THE PROPOSED RULE

The Proposed Rule imports the recent changes to the claims procedure rules for group
health plans, enacted in the Patient Protection and Affordable Care Act, into the context of
disability benefits. The Proposed Rule does so even though Congress declined to do so, and
there is no statutory basis for the changes.

The following three provisions are particularly troublesome:

1. Strict Compliance: The Proposed Rule would revise the deemed exhaustion provision of
the existing rule and established case law. If a plan fails to strictly adhere to all rules for
processing disability claims, a claimant is deemed to have exhausted the plan’s
administrative procedures and may sue at any time under a de novo standard of judicial
review, unless a “minor errors exception” applies. In other words, any slight error or
delay could eliminate the plan’s right to deference, and a court could decide the case de
novo, substituting its judgment for that of the plan’s fiduciaries, and even hold a hearing.

2, Expanded Disclosure Requirements: The Proposed Rule would require a discussion of
why the plan disagrees with the views of a treating physician or with any disability
determination by the Social Security Administration, treating physician, or other third
party disability payor.

3. Right to Review and Respond to New Information Before Final Decision: The Proposed
Rule would require a disability plan to provide, prior to a plan’s decision on appeal, any
new or additional evidence considered, relied upon, or generated by (or at the direction
of) the plan in connection with the claim. This information must be provided as soon as
possible and in advance of the plan’s decision on appeal to give the claimant a reasonable
opportunity to respond to such new or additional evidence.


GRGDM LAW GROUP

requirements of the claims regulation, including the need to make three timely decisions while
juggling three different claims for different benefits under different standards.

The first type of disability benefit is awarded where a Player is deemed totally and
permanently disabled. In most plans of this type, the sole decision to be made is whether the
claimant can work, and that decision follows fairly quickly after the claimant’s working career
ends. Frequently, such decisions may be based completely or in large part on treating physician
reports. In contrast, the NFL Player Disability Plan generously allows Players to qualify for total
and permanent disability benefits if they become unable to work, for any reason, before they
elect to receive their pension, normally at age 55. Thus, these decisions are typically made many
years, and in some cases decades, after the Player’s NFL career has ended. These decisions may
also follow a lengthy period of time during which a retired NFL Player chooses not to engage in
work, or works only occasionally.

Ifa Player is ultimately deemed to be currently unable to work, the decision-making
process has only begun. The Plan’s fiduciaries must next allocate each successful claimant to
one of four categories of total and permanent disability, and establish an effective date for the
total and permanent disability. Because of collectively-bargained rules, the decisions required
may include: the cause of disability, whether the claimant was physically or mentally
incapacitated from filing an application sooner, whether the condition has lasted or is expected to
last for at least one year, and whether there are substance abuse or psychological issues involved.
Social Security disability awards are binding on the Plan, but only with respect to whether the
claimant currently is totally and permanently disabled. Social Security onset dates and findings
as to causation are not binding on the Plan.

These unusual, industry-specific factors make it difficult to determine whether a Player is
entitled to total and permanent disability benefits, and, if so, what category. The bottom line is
that these decisions require careful analysis.

The second type of disability benefit is awarded where the Player is deemed to be
partially disabled. This unusual benefit, called a “line-of-duty” disability benefit, has been
designed specifically for professional football players. A Player who applies for line-of-duty
disability benefits is simultaneously rated for dozens of potential impairments and disabilities,
and is awarded “points” according to a complex custom system developed by some of our
country’s top orthopedic surgeons. This industry-specific rating system was developed through
collective bargaining.

The third type of disability benefit is a one-of-a-kind “neurocognitive” disability benefit.
This benefit is the most recent product of collective bargaining. Evaluations require two days of
medical examinations, the first day by a neurologist and the second by a neuropsychologist, each
using examination protocols developed specifically for the benefit. Like the total and permanent
disability benefit, this benefit contains special rules for substance abuse and psychiatric
conditions. It requires a sophisticated screen for validity testing conducted under normed
neuropsychological exams.


GRGOM LAW GROUP

* * * * *

Again, the NFL Player Disability Plan appreciates the opportunity to comment on the
Proposed Rule. The Plan respectfully asks the Department to hold a public hearing on the
Proposed Rule, and requests the opportunity to present oral testimony at that hearing.

Sincerely,

edd s

Doeglas W, Ell

OO

Alvaro I. Anillo

Counsel for the NFL Player Disability &
Neurocognitive Benefit Plan

13