LAW OFFICES OF

JULIAN M. BAUM & ASSOCIATES

9 Tenaya Lane, Novato, California 94947

Telephone: (415) 963-4424 Fax: (888) 452-3849

Writer’s Electronic Mail: JMB@JMBLawGroup.com

December 11, 2017

Submitted vial e-mail: e-ORI@Dol.gov

Hon. Timothy D. Hauser

Deputy Assistant Secretary

Employee Benefits Administration

Department of Labor

200 Constitution Avenue NW

Washington D.C. 20210

Re: Re-Examination of Claims Procedure Regulations (RIN No. 1210-AB39)

Dear Deputy Assistant Hauser:

I write to urge the Department not to further delay or revise the final disability claims 

regulations, which are now scheduled to take full effect on April 1, 2018.

I am an attorney of over thirty years’ experience. My practice for more than twenty years has 

been primarily in the field of ERISA benefits litigation, representing employee-beneficiaries. 

Before that, I was an attorney with large national firms representing corporate clients in complex 

litigation.

The final rules, as written, bring needed clarity and consistency to ERISA claims procedures. The 

Department carefully concluded that the final rules will not unduly increase the costs of claims 

administration. The Department was correct, and nothing has changed in that regard. To the 

contrary, I believe that in practice they will actually decrease the costs to claims stakeholders and 

to the federal judiciary. Insurance industry arguments against the final regulations are neither 

new to the Department nor do they withstand informed scrutiny.

While I believe that the particulars of the final rules are interdependent, important, and salutary 

to ERISA’s statutory and public policy purposes, I wish to emphasize one particularly important 

element: the provision explicitly requiring an ERISA insurer to allow a claimant and his 

physicians the right to respond to new evidence or a new rationale that the insurer relies upon to 

deny a benefits claim. This would appear to be a common-sense requirement of fairness. Yet it 

most often does not happen in practice. The final rules explicitly require that beneficiaries be given 

that opportunity to respond before their claims are finally denied or terminated. There is no 

principled reason – other than a blindly partisan desire to favor insurers over beneficiaries -- to 

revise or rescind that rule.

The rule will actually decrease claim costs. I base this view on long experience. Allowing 

benefits claimants to respond to new evidence, and requiring ERISA insurers by federal 

regulation to review and consider those responses, will reduce federal litigation regarding those 
Submitted Comments on ERISA Claims Regulations Page 2 of 2

RIN No. 1210-AB39 December 11, 2017

benefits, and will streamline those suits that are ultimately filed, saving large costs and expenses 

to the parties and decreasing the burdens of those cases on the federal judiciary.

In closing, I wish to echo the trenchant observations of another commenter, attorney Stephen R. 

Bruce of Washington, D.C.:

I urge the Department not to change the final disability regulations on the basis of

never-produced evidence and the raw assertion of backroom deals. The 

Department of Labor has a responsibility under ERISA Section 503 to ensure a 

“full and fair review” of a denied benefit claim. In 2015-2016, the Department 

took long-due steps to carry out that responsibility, by noticing, considering, and 

finalizing the claims regulations. The Department should not be deterred from 

making those reforms effective beyond the 90 additional days it has already given. 

As the Supreme Court has held, ERISA was enacted to ensure “higher-thanmarketplace standards.” MetLife v. Glenn, 554 U.S. 105, 115 (2008). The insurance 

industry’s displeasure with the Department of Labor performing its

statutory duty is no basis for overturning duly-authorized and already-final 

regulations. Moreover, the idea that the insurance industry can comment, and then 

have a second or a third opportunity to block final rules, still without producing 

any evidence on costs, betrays not only the values of ERISA but also those of the 

APA.

Thank you for your consideration.

Very truly yours,

Julian M. Baum