Also, I continue to believe that the rules regarding the disclosure of internal guidelines are
a valid request to any insurance company administering a benefit plan. The insurance policies
issued to many American workers as "plan documents" or "summary plan descriptions" offer little
guidance as to how the insurance company is evaluating evidence. Workers should still have the
ability to insist on receiving any specific guidelines used by an insurer to evaluate disability.
Internal guidelines used by insurance companies are valuable in understanding how the insurance
company perceives a specific problem and also it gives the disabled worker an opportunity to be
able to prove their case.

My final comment to you is relative to the claimant's ability to respond to evidence obtained
in its final appeal review. It is not uncommon to see the following scenario: A claimant is denied
long-term disability benefits and the denial was based upon the opinion of a nurse employed by
the insurance company administering the plan. After the claimant consults their doctor and
submits an appeal, the insurance company will hire 4 cardiologists to each explain why the
claimant's doctor couldn't possibly be right. Upon receiving a final denial letter which has 4
cardiology opinions referenced in it, the claimant has no ability to respond. This practice, which
we refer to as "sand-bagging", regrettably puts the claimant at an extreme disadvantage. With a
new ability to have the "final word", the claimant may be able to clarify his or her medical
condition, medical symptoms or medical treatment or expose a misunderstanding of doctors hired
by insurers. Indeed, I can easily see a scenario where the claimant's response might reduce
unnecessary litigation. I can see a scenario where the information supplied in response to medical
rationale used to deny the claim, could cause the insurance company to reverse the denial and pay
the benefit. I believe that this practice of giving the claimant the last word has the likelihood of
decreasing litigation!

I encourage you to not modify any of the regulations scheduled to go into effect on April
1, 2018. I ask you to leave the regulation intact because frankly I can see no reason to do what the
industry requests.

As a final note, I feel compelled to point out that the insurance industry is not adhering to
the regulations in place presently. You do not have to look farther than the frustration that Judge
Katzmann had in Halo v Yale Health Plan, 819 F 3d 42 (2nd Cir., 2016). Likewise, I completed a
case in the Western District of New York where Aetna was hiding evidence that its own peer
reviewers requested when they communicated with the claimant. See Standish v. Federal Express
Corp. Long Term Disability Plan, et al., Case No. 6:15-cv-6226, (WDNY, Nov. 17, 2016, Judge
Michael Telesca), (...the standards imposed by ERISA requires that a plan administrator's notice
letter be written in a manner calculated to be understood by the participant). As you can see, the
enhancements to 29 C.F.R. § 2560.503 are necessary.


FORCING THE INDUSTRY TO OFFER A REASONABLE EXPLANATION OF HOW
THE SOCIAL SECURITY ADMINISTRATION CAN PAY DISABILITY BENEFITS
BUT THE PLAN CANNOT.

The Social Security Disability program is legislative in its delivery of benefits and benefits
are only paid by completing the five step process at 20 C.F.R. §404.1520(a), which examines the
ability to perform any full time job in our national economy. In contrast, long-term disability is a
non-specific contractual program which can be based on “own occupation" or occupations with a
specific level of income. The Social Security Act has more specifics regarding disabling
conditions than any long-term disability policy. Many people do not understand this subtle point.
In the Code of Federal Regulations at Appendix 1, Subpart P of Part 404, specific medical guidance
on proving disability can be found. Also, several Social Security Rulings (SSRs) provide advice
and guidance on pain and the evaluation of opinion evidence. You will not find any guidance in a
long-term disability policy whatsoever on how bad a medical condition has to be before a benefit
can be paid. This lack of specifics gives the insurance industry's medical cohorts an ability to
opine recklessly that an individual's severity would be good enough to obtain a benefit.

Thus, the specifics of the Social Security Act when compared to the generalization offered
by the long-term disability policy create an ironic inconsistency. I believe that this inconsistency
requires the long-term disability insurer to explain in a detailed way why its decision is contrary
to any Social Security ruling in favor of disability. Many people do not realize that the standards
in any long-term disability policy and the standards of any claimant under the age of 50 are
identical under both the long-term disability and under the Social Security Act. The government
uses no special rule that would disable an individual if they are under the age of 50. This is yet
another reason why it is absolutely necessary for plans to discuss their basis for disagreement with
a Social Security finding in favor of disability.

In addition, there are several parts of the insurance industry's complaints that make little
sense but above all, I want to address the rule requiring disclosure of a statute of limitation.
Presently, I have cases in my office for plans that require the filing of suit within 1 year of the date
of the original denial of the claim. I have other plans that are 2 years from the day that "proof was
due." Finally, I have others that are 3 years from the day the final denial is issued.

Considering the loss of continued long-term disability can be catastrophic to American
workers, what could our motivation possibly be for hiding the statute of limitations from the
worker and/or his lawyer? If an adverse benefit decision that says that the claimant's appeals are
exhausted, it should contain the day that the disabled worker must file his or her lawsuit. Nothing
the industry says will discourage me from the view point that the statute of limitations is important
information that should not be left to guess work or interpretation. Making the insurer tell the
worker when a lawsuit must be filed by is a burden on no one and protects everyone.



Protecting the rights of American workers is and always will be the most important thing
in ERISA. Therefore, I strongly urge you to leave the regulation presently due to be effective
April 1, 2018 intact.

JPM/ksw



McDonald & McDonald - ERISA Disability Attorneys,
Let Cun Family Fight Fon Your Family! ®
December 11, 2017 wu, McDonaldAndMcDonald, com

Via email at e-ORI@dol.gov

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: Examination of Claims Procedure Regulations for Plans Providing
Disability Benefits

RIN No: 1210-AB39

Regulation: 29 C.F.R. § 2560.503

Dear Deputy Assistant Secretary Hauser:

I am writing to you with a simple request. Please avoid any modification of the final
version of 29 C.F.R. § 2560.503, which is now scheduled to go into effect on April 1, 2018.

My name is Joseph P. McDonald and I am the President of McDonald & McDonald Co.,
L.P.A., an employee benefits law practice in Ohio. My wife and I exclusively focus on
representing individuals participating in long-term disability plans that are governed by ERISA.
We practice in multiple states and make appearances in several Federal Courts. I am admitted to
the practice of law in Ohio and New York.

As a practitioner who works exclusively in this area of the law, I believe that I have gained
a perspective which will be valuable to the choices that are made concerning the final regulation
which was published on December 19, 2016. That final regulation represents a necessary
enhancement to the existing regulatory structure at 29 C.F.R. § 2560.503.

This will be the third time that I have voiced my concerns relative to the new regulation. I
submitted my original comments on January 18, 2017, when the Department of Labor was
considering changes to 29 C.F.R. § 2560.503. I also resisted the industries’ attempt to delay the
enhancements to 29 C.F.R. § 2560.503 when I wrote to the Department of Labor on October 24,
2017. T understand that the effective date of the regulatory change is now delayed until April_1,

2018.
200 E. Spring Valley Rd, Suite A a 987-428-9800 Joe McDonald, Esq.
Dayton, Ohio 45458 Fax 1-937-347-5441 Christy McDonald/ Esq.

Toll Free 877-428-9806


I write to you today because I am concerned that many of the observations and arguments
offered by the insurance industry are insufficient to modify the regulation after the public comment
period expired.

It is my understanding that the delay in regulation was largely prompted by concerns of the
insurance industry after the public comment period was completed. Based upon concerns of
insurers and plan administrators, the Department was asked to consider the impact of the enhanced
regulation, and whether it is contrary to Executive Order 13777.

At this point, it is incumbent upon me to remind anyone who would like to listen, that the
current regulations have been in place for nearly 20 years. Thus, the industry has had the same
regulatory guidance on the administration of welfare benefit claims for some time. When the 2000
regulations were under consideration, the Department of Labor received over 800 comments and
felt compelled to take two days of live testimony before enacting the regulation! In comparison,
the current enhancements to 29 C.F.R. § 2560.503 generated less than 200 comments and very
little input from the insurance industry. Now those same insurers are avoiding scrutiny by
rewriting the rule making process. The lack of timely objection by the insurance industry makes
their new argument against the enhanced regulations hard to hear.

The larger question that we have to consider is: what is really new about the regulation
enhancements that will go into effect on April 1, 2018? The fundamental thrust of this regulation
has been to generate an environment which ensures that a disabled American worker will receive
a "full and fair review" of their appeal after an adverse benefit decision. The enhancements, which
are scheduled to go into effect on April 1, 2018, don't change the fundamentals in any material
way. It is not as if these regulations require insurance companies to engage in new behaviors or
mandate new actions. The regulatory enhancements are directed to subtle components such as
timing, language, information, disclosure and the submission of proof in a disability claim. None
of these enhancements will add to the existing cost structure of any plan administrator.

The insurance industry has always fought any regulation of disability claims and they
routinely cite increased cost and wave the threat that these benefits will go away if expenses
increase. In contrast, I am pleased to report that the insurance industry has thrived under the
current set of regulations! If you were to conduct a survey of insurers who participate in the
administration of disability plans, you would not find any of them teetering on the edge of
bankruptcy. In a recent Motion for Attorney Fees, I was forced to look at Liberty Mutual's profit
for a calendar year. The number was staggering. It is beyond any reasonable argument that costs
will increase in a material way to affect the already substantial profitability of the participating
insurance companies. Complaints of increased costs, even if true, would not harm the already
immense profit margins that these participating insurers enjoy. As I wrote to you in October 2017,
I do not think these regulations in any way, would impact jobs or job creation or somehow restrict


the ability to employ any American worker. Therefore, I urge you to not change the final rule
because the industry's claim of increased costs seems illusory at best.

THE BENEFITS IN ENACTING THE ENHANCED RULE ON APRIL 1, 2018
WITHOUT MODIFICATION, OUTWEIGH ANY POTENTIAL COSTS.

The comments which drove the formulation of the enhanced regulation were meaningful
because they updated the administration of welfare benefit claims. We must keep in mind that the
goal of these regulations is to ensure a "full and fair review." The goal of these regulations is the
protection of the plan participants. ERISA, fundamentally, operates under a fiduciary construct.
That is to say, the insurance company which administers a long -term disability plan has a fiduciary
obligation to ensure that the claimants are treated fairly and that plan assets are not wasted. By
enhancing the regulation at 29 C.F.R. § 2560.503, American workers are guaranteed that the
benefit plans they participate in can be clearly understood.

The Department of Labor, in its notice seeking public comment, shared an idea that abuse
was occurring in benefit administration. Indeed, many commenters provided specific examples
where the insurance industry was not following the existing regulatory guidelines.

Without the enhancements to 29 C.F.R. § 2560.503, we are putting American workers at
tisk. No one in the United States Senate or the House of Representatives or the White House is
against American workers. Therefore, it remains a matter of mystery to me how enhancing
regulations which protect working Americans is something that violates Executive Order 13777.
The enhanced protections within 29 C.F.R. § 2560.503 are reasonable and continue to remind the
industry that they serve the disabled workers in a non adversarial environment. The more
protection that we can provide to those workers, the better off we will all be. The benefits of the
enhanced regulatory protection outweigh any alleged but dubiously non-specific increases in costs
argued by the insurance industry.

As an ERISA professional, I keep track of how many cases I do not take. The number of
working Americans who exhaust their administrative appeals without doing anything is
significant. Not even the best lawyers can undo the damage done by a plan participant who does
not understand that they are not going to get a trial or testify or call their doctor to supply testimony
at the courthouse. ERISA's procedural paradigm is unique in American law. In ERISA, you will
not be able to obtain a bench trial or a jury trial in a long-term disability case. Most potential
clients of my firm are absolutely stunned to know that they will not be able to modify any of the
information in their claim file after suit is filed. The enhancements to 29 C.F.R. § 2560.503 help
to eliminate the "surprise" that ERISA's unique procedural rules create.