From: Ron Dean [mailto:rdean@74erisa.com] 

Sent: Friday, December 08, 2017 4:47 PM

To: EBSA, E-ORI - EBSA

Subject: RIN 1210-AB39. Support for Amended Claims Procedures

I write in support of the new Disability Regulations. Implementation of 

them will not increase costs.

I am a lawyer and I represent both participants and plans. 

I understand that a number of insurers and plans oppose the new 

Regulations, claiming they will increase costs. My experience shows 

this simply is not so.

Opportunity to Review and Respond to New Evidence. In representing 

participants, I have seen many a court reject plan denials where new 

evidence was submitted without giving the participant a chance to 

respond. The court will review the new evidence itself, reject any 

decision based on it, or remand the matter to the plan. Each of these 

alternatives is incredibly more expensive to the plan that would be 

allowing the participant to respond to the evidence in the first instance. 

The only time it is less expensive is when the participant is 

unrepresented by counsel and just gives up, never further pursuing the 

matter. However it does not seem fair to punish those less 

sophisticated claimants who are usually more in need of the benefits in 

the first instance.

I understand the argument that allowing the claimant to respond to the 

new evidence will lead to an endless loop with no end of back and forth 

submission of new evidence. In my 47 years of experience this has 

never happened. Not even once. I have never been in or seen a trial 

where this occurred, nor have I ever read or heard about such an event. 

The whole point of due process is for each side to lay out its evidence for 

examination and response by the other side. It is a minimal expectation 

of our society. There is no reason to exempt insurers or plans from this, 

especially where the only possible goal is to discourage claimants from 

further pursuing legitimate claims.
In representing plans, we have always allowed claimants to respond to 

new evidence. Sometimes the new evidence will satisfy claimants and 

there will be no response. Sometimes the claimant will respond to the 

new evidence with important new information that clarifies the issues 

and allows us to pay the benefits. But not once, not even once in my 

entire 47 years, has it resulted in any open-ended back-and-forth 

increasing costs without any corresponding fairness benefit. Any claims 

of unreasonable cost increases must fail.

Deemed Exhaustion Requirement. In representing claimants I find 

that in the vast majority of cases plan responses are reasonably timely 

and no issue is presented. In those few cases where there is no 

response, I will always send at least two reminders to the plan asking 

for an answer. After all, if I go to court the odds are the court will 

remand the matter back to the plan for review within a specific 

deadline. The courts do not need the extra cases, and I do not need the 

extra expense. Not having a “deemed exhausted” requirement means 

that a plan only needs to respond to claims where it is ordered to do so 

by a court. While the vast majority of plans would not do so, while the 

vast majority of plans timely respond to claims, there is always a small 

minority that will exploit any perceived advantage. Without a “deemed 

exhausted” provision, a few plans will be able to game the system. On 

the other hand participants are cabined to a very limited set of 

remedies in a very limited subset of cases.

There are cases that hold that the statute of limitations to bring a 

benefit claim in court begins when the time for the plan response 

expires even though the plan has not yet responded. Not having a 

“deemed exhausted” rule creates a substantial ambiguity that will 

require just more litigation. Does the statute of limitations start even 

though the participant is not yet allowed to bring suit?

From the plan perspective, we consider the timely processing of claims a 

main fiduciary duty. We do not consider it any kind of burden and no 

employer would hesitate to provide benefits to its employees simply 

because the Regulations have been tweaked to provide a slightly 

greater level of fairness to participants. After all, the vast majority of 

plans and employers already provide these safeguards. They certainly 
do not consider themselves at any kind of competitive disadvantage to 

plans and employers that cut corners and that do not take seriously 

their fiduciary duties.

Notification of Contractual Limitations Periods. Whether from a 

participant or plan perspective, it cannot possibly cost any additional 

money to tell claimants this very important piece of information. Plans 

and insurers have skeletal forms to be used and tailored to specific 

cases. To add a sentence about any contractual limitations period to 

that form will take a one-time investment of five minutes.

Explanation of the Rejection of a Social Security Determination. 

Representing claimants, it has always been frustrating when plan’s 

reject out-of-hand social security’s finding of disability. Sure, there can 

be legitimate reasons that a plan may differ with the social security 

administration. But that is not the point. The point is that plans need 

to tell the claimant what those reasons are without relying on simple 

boilerplate words. For example, sometimes I will get boilerplate saying 

that social security’s definition of disability is “different.” Well, yes it is 

different but the plan’s definition of disability is a considerably easier 

definition to meet (e.g., the plan only requires that claimant be disabled 

from her own occupation while social security requires disability from 

any occupation). It is clear that the letter’s author simply pushed the 

“reject social security” button on the word processor and moved on. 

From the plan perspective, the social security determination is one of 

the most important pieces of evidence in the disability puzzle. Is social 

security always right? Of course not. But social security has a level of 

expertise and objectivity that requires a careful analysis of its decision. 

Because we engage in that analysis, we believe it is critical also to share 

that analysis with the claimant. After all, no one is more familiar with 

the important set of facts than is the claimant. 

In sum, the new Regulations are a solid step forward in due process in 

the benefits administrative process at a small, if any, cost to the plan. 

For the plans I represent, there has been no cost. The leap forward in 

transparency benefits both the plans and the participants.
Ron Dean

Attorney at Law

P.O. Box 910

Pacific Palisades, CA 90272

Phone: 310.459.1636

Fax: 310.459.6224