0) UnitedHealthcare

December 11, 2017

Office of Regulations and Interpretations
Employee Benefits Security Administration
Room N-5655

U.S. Department of Labor

200 Constitution Ave., NW

Washington DC 20210

Re: Claims Procedure for Plans Providing Disability
Benefits (RIN 1210-AB39)

Submitted Electronically: www.regulations.gov
Dear Sir/Madam:

UnitedHealthcare (UHC) is submitting comments regarding the standards for claims for
disability benefits under employee benefit plans subject to the Employee Retirement Income
Security Act (ERISA). A Proposed Rule delaying the implementation date of new requirements
for disability income (DI) benefit claims was published in the Federal Register on October 12,
2017 (82 Fed. Reg. 47409). UHC provides coverage and administrative services on behalf of
employee plans for short- and long-term disability income benefits. The goal of these programs
is to provide income security for disabled workers and ensure they have the resources to return to
work if possible after an injury.

UHC is dedicated to helping people live healthier lives and making our nation’s health care
system work better for everyone. UHC serves the health care needs of more than 100 million
people worldwide, funding and arranging health care on behalf of individuals, employers and the
government. As America’s most diversified health and well-being company, we not only serve
many of the country’s most respected employers, but we are also the nation’s largest Medicare
health plan — serving nearly one in five seniors nationwide — and one of the largest Medicaid
health plans, supporting underserved communities in 24 states and the District of Columbia.
Recognized as America’s most innovative company in our industry by Fortune magazine for six
years in a row, we bring innovative health care solutions to scale to help create a modern health
care system that is more accessible, affordable, and personalized for all Americans.

The Department of Labor (DOL) amended the standards applicable to claims for DI benefits in
December 2016. One provision established new requirements for the notice of an adverse
benefit determination that is provided to claimants by their plan:

(ii) In the case of a plan providing disability benefits, in addition to the
information described in paragraph (j)(4)(i) of this section, the statement of the
claimant’s right to bring an action under section 502(a) of the Act shall also
describe any applicable contractual limitations period that applies to the


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Employee Benefits Security Administration
December 11, 2017

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claimant’s right to bring such an acOtion, including the calendar date on which the
contractual limitations period expires for the claim.

29 CFR §2560.503-1 (4)(i) (emphasis added). This provision, which requires notices to include
the specific date by which claimants must file a federal court action, raises challenges for service
providers, such as UHC, which provides DI coverage for several thousand employer plans.

Plan limitation periods and their triggering events vary widely — in some cases the limitations
period begins when a claim for benefits is originally filed, in others it may run from the date the
plan issues its final internal appeal decision, the limitations period may be subject to tolling, etc.
(plans may have one or two levels of internal appeal). If the limitations period is not established
by the plan, state law controls.

Employers choose whether or not to offer benefits. Many employers choose third-party
administrators (TPAs) to administer plans as a cost-effective way of providing coverage, rather
than handling plan administration in-house. As a result, a TPA may be handling claims for
hundreds, if not thousands, of different plans. Given the number of plans that a TPA may
administer and the variability of both the limitations period and the triggering event, it is
challenging for the TPA to know the specific calendar date for the expiration of the limitations
period when the notice is sent to a claimant. Requiring the specific calendar date for the
termination of the limitations period in the notice may result in TPAs manually processing all
notices, which significantly increases costs to the plan.

The plan’s limitations period is generally described in the Summary Plan Description (SPD)
document which serves as the “source of truth” for all aspects of the plan. It is in the best
interests of the claimant to refer to the SPD for the specific limitations period, rather than the
adverse benefit determination notice which may not always accurately state the termination date.

The standards for ERISA plan claim denials require the inclusion of “a statement of the
claimant’s right to bring a civil action under section 502(a).” (29 CFR §§2560.503-1(g)(1)(iv)
and 2560.503-1(j)(4)). A number of federal appellate court opinions have recently interpreted
these notice rules to require disclosure of a specific limitations expiration date in the adverse
benefit determination notice without which the notice is considered non-compliant.! These
decisions suggest that a compliant SPD’s limitations language is rendered meaningless due to the
absence of a corresponding calendar date in the notice — an interpretation that runs counter to the
DOL’s own position that, “the SPD is the primary vehicle for informing participants and
beneficiaries about their rights and benefits under the employee benefit plans in which they
participate.” (65 Fed Reg. 70226, 70228 (Nov. 21, 2000)). As a result, there may be challenges
for TPAs having to consider the different plan limitations periods in the SPDs and jurisdictional
issues related to the employer’s and claimant’s residence if the limitations period has not been
established by the plan.

' See: Ortega Candelaria v. Orthobiologics, LLC, 661 F. 3d 675 (1* Cir. 2011), Moyer v. Met Life, 762 F. 3d 503
(6" Cir. 2014), and Mirza v. Ins. Admin of Am., Inc., 800 F. 3d 129 (3. Cir. 2015).


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Employee Benefits Security Administration
December 11, 2017

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We urge the Department to adopt the reasonable interpretation of the notice rules requiring a
statement alerting members of their rights to an ERISA 502(a) action. That statement,
accompanied by language directing members to the primary disclosure vehicle—the SPD—for
further detail and guidance, satisfies the intent of the rule to inform claimants of their rights
under ERISA.

We recommend that the notice include the statement of the claimant's right to bring a civil action
under Section 502(a) along with a statement that the claimant should refer to the SPD for the
limitations period and a copy of the SPD is available from his or her employer. We believe this
approach will give claimants the appropriate notice of their ERISA rights and where to determine
the specific timeframe for filing a legal action if necessary.

We also recommend that the notice informing the claimant that they should refer to the SPD for
the limitations period and where to obtain a copy of the SPD should be included in the final
adverse benefit determination sent to a claimant. Any such notice prior to the final adverse
benefit determination, particularly as many plans have two levels of appeal, would be premature
and potentially confusing to the claimant.

We appreciate the opportunity to provide comments to the DOL on this issue. Please feel free to
contact me if you have any questions.

Sincerely,

Deputy General Counsel
UnitedHealthcare