Eric L. Buchanan* 

Licensed in Tennessee 

and Georgia 

R. Scott Wilson* 

Licensed in Tennessee 

* Certified as a Social Security Disability Specialist by the Tennessee Commission on Continuing Legal Education and Specialization 

414 McCallie Avenue • Chattanooga, Tennessee 37402 

Mailing Address: PO Box 11208 • Chattanooga, Tennessee 37401 

Telephone (423) 634-2506 • Fax (423) 634-2505 • Toll free (877) 634-2506 

www.buchanandisability.com

 

By Mail: 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: Claims Procedure Regulations for Plans Providing Disability Benefits 

RIN No.: 1210-AB39 

Regulation: 29 C.F.R. §2560.503-1 

Dear Assistant Secretary Borzi: 

 

I am an attorney who regularly represents claimants who have been denied ERISA 

welfare benefits; mostly disability benefits, but also life insurance, health insurance and 

other benefits. I am submitting the following comments on the proposed regulations 

amending the claims procedure regulations applicable to ERISA welfare benefits and 

disability benefit plans. 

I am past-chair of the American Association for Justice (AAJ, formerly American 

Trial Lawyers Association) ERISA Healthcare and Disability Litigation Group, past-chair of 

the AAJ Social Security Disability Section, and past-chair of the Tennessee Bar Association 

Disability Law Section. I am currently president of the Tennessee Association for Justice 

(TAJ, formerly the Tennessee Trial Lawyers Association.) My firm has litigated hundreds 

of disability insurance or long term disability claims, mostly under ERISA, as well as other 

ERISA welfare benefits claims. I am also a regular speaker on many topics related to 

ERISA and ERISA benefits at national as well as local conferences. 

Generally, I am writing in support of the Department of Labor’s (DOL’s) proposed 

regulations; however, I believe in most cases the proposed regulations do not go far enough 

to provide due process or substantive protections for employees who have ERISA welfare 

disability benefits claims. In other words, I support the proposed changes as better than no 

changes, but I believe these changes would still allow ERISA fiduciary decision-makers to 

deny valid claims without adequate protections for plan participants and beneficiaries. 
January 12, 2016 

Page 2 

1. Comment on Notice for Applicable Statute of Limitations 

Before commenting on the proposed changes to the regulations, I offer the following 

in response to the DOL’s invitation for comments on the statute of limitations issues that 

have developed since the Supreme Court’s decision in Heimeshoff v. Hartford Life & Accid. 

Ins Co., 134 U.S. 604 (2013). I agree that this is a crucial area for regulation, and there 

remains significant confusion since Heimeshoff. Without further clarification from the DOL, 

there will continue to be extensive confusion and litigation. 

While many states have a statute of limitations for contracts that is incorporated into 

ERISA, most states also allow insurance contracts to contain shorter periods of limitations, 

often referred to as “contractual periods of limitations.” These contractual periods of 

limitations allowed under state law usually provide that a claimant must bring a law suit 

before a certain time (usually three years), but that time limitation begins to run from when a 

claim is first made or when benefits are first due. This has been interpreted under 

Heimeshoff and similar lower-court decisions to mean that the time for filing in court can 

run while a person is receiving benefits or while the mandatory administrative review is 

being conducted. Thus, for example, if a person is paid benefits for two years and then is 

denied ongoing benefits, and the it takes, say, nine months, to exhaust the required plan 

appeals, a person may only have three months to find an attorney, for the attorney to 

evaluate the claim, and then to file the lawsuit. Worse, if the person is paid for, say, four 

years, then under Heimeshoff, there is no clear rule determining how long the person has to 

file a lawsuit, just that the time from the final denial must be “reasonable.” 

I believe that the most clear rule the DOL should establish is that the time limit in a 

contractual period of limitation cannot run while a person is either on claim (i.e. while 

receiving the disability benefits) or while the person is exhausting his or her required 

appeals under the plan. Such a rule would provide the clearest and cleanest way for all 

involved to understand when a civil action could be brought. I also agree that requiring an 

ERISA administrator to state in a final adverse benefit determination when the case must be 

filed in court is a necessary rule that will provide clarity for all involved, as well as allowing 

unsophisticated plan participants and beneficiaries the information they need to know 

concerning how long they have to go to court. 

Further, some ERISA plans do contain language that runs the time for filing in court 

from the date of the final denial of benefits, but provide for extremely short limitations, such 

as 90 days or less. Because of this, I submit that DOL should help define just what a 

“reasonable” time is, and define “reasonable” as something more than just 90 days. That 

short period of time is often not long enough for a claimant to find and attorney, for the 

attorney to order the relevant documents from the ERISA administrator, review the 

documents, prepare a complaint, and file the complaint. When such a short period applies, 

attorneys may be forced to file prematurely, resulting in even more unnecessary litigation. 
January 12, 2016 

Page 3 

I respectfully request that the DOL consider an amendment to the regulations 

governing the manner and content of notification of benefit determinations on review. 29 

C.F.R. §2560.503-1(j) [proposed regulation]. The amended language should require the 

claims administrator to notify the claimant of the date of the expiration of any plan based 

limitations period and should include a definition of what is a reasonable limitations period. 

Such a regulation should also make clear that no limitations period can run while a 

beneficiary is receiving benefits and while the beneficiary is exhausting the internal claim 

and appeals process. In order to provide a clear rule as to what is reasonable, I suggest a 

rule requiring at least a one-year period after the completion of the plan’s appeals process in 

which a claimant can file suit. The justification for this rule is that it would cut down on 

litigation devoted to the issue of the running of the limitations period, and would provide 

clarity to beneficiaries and claimants as to just what the rules are. 

I respectfully propose amending the proposed regulation by adding a section as 

follows and renumbering accordingly (added language is indicated by bolding and 

underlining): 

29 C.F.R. 2560.503-1 (j)(6) [proposed regulation] 

In the case of an adverse benefit decision with respect to disability 

benefits— (i) A discussion of the decision, including, to the extent that the 

plan did not follow or agree with the views presented by the claimant to the 

plan of health care professionals treating a claimant or the decisions 

presented by the claimant to the plan of other payers of benefits who granted 

a claimant’s similar claims (including disability benefit determinations by the 

Social Security Administration), the basis for disagreeing with their views or 

decisions; and (ii) Either the specific internal rules, guidelines, protocols, 

standards or other similar criteria of the plan relied upon in making the 

adverse determination or, alternatively, a statement that such rules, 

guidelines, protocols, standards or other similar criteria of the plan do not 

exist. 

(7) In the case of an adverse benefit determination on review with 

respect to a claim for disability benefits, a statement of the date by which 

a claimant must bring suit under 502(a) of the Act. However, where the 

plan includes its own contractual limitations period, the contractual 

limitations period will not be reasonable unless: 

a. it begins to run no earlier than the date of the claimant’s receipt 

of the final benefit determination on review including any voluntary 

appeals that are taken;

b. it expires no earlier than 1 year after the date of the claimant’s 

receipt of the final benefit determination on review including any 

voluntary appeals that are taken;
January 12, 2016 

Page 4 

c. the administrator provides notice to the claimant of the date that 

the contractual limitations period will run; and

d. the contractual limitations period will not abridge any existing 

state limitations period that provides for a period longer than one year. 

(8) In the case of an adverse benefit determination on review with respect to a 

claim for disability benefits, the notification shall be provided in a culturally 

and linguistically appropriate manner (as described in paragraph (p) of this 

section). 

2. Comment on Timing of Right to Respond to New Evidence or Rationales

I commend the DOL for addressing the issue of ERISA fiduciaries ambushing 

claimants with new rationales and evidence during the review of an appeal. In my practice I 

have seen many cases in which we appeal our client’s claim based on the reasons given in 

the first adverse benefits determination, and on appeal the ERISA fiduciary/decision-maker 

provides a new reason for denying the claim, or obtains new evidence to support the denial 

of benefits, but also states in the decision that this is a final decision and no further appeals 

will be considered. This “sandbagging” by ERISA fiduciaries and decision-makers is an 

ongoing problem. 

One issue that the proposed regulations could be clearer about is that, if adopted, the 

regulations only give the claimant a “reasonable time” to address the new rationale or 

evidence. A chance to respond is better than no chance, and the proposed regulation is an 

improvement over the current regulations. However, for even greater clarity, rather than just 

saying “a reasonable time,” perhaps the DOL should be more specific and provide a 

minimum time to allow the claimant to respond, such as 45 or 60 days. 

3. § 2560.503-1(g)(1)(vii)(B) Improvements to Basic Disclosure Requirements. 

Among several improvements in the current claims regulations (effective January 20, 

2002) over prior regulations was to provide a claimant access to all of the documents that 

were “relevant” to the claim as defined in 29 C.F.R. § 2560.503-1(m)(8). The same 

regulations also required that similarly situated claimants be treated similarly. 29 C.F.R. § 

2560.503-1 (b)(5). 

One recurring problem is that many disability insurance companies that provide 

ERISA benefits have claims manuals that provide internal regulations, protocols, rules or 

standards that are used, or should be used when making claims decisions. However, when a 

claimant asks for these documents, either as part of the review process or later in court, 

many disability insurance companies claim that their internal regulations were not “relied 

upon” in a given particular case. This, of course, begs the question as to whether any 

particular decision was actually made in violation of their own internal rules, or at least, 
January 12, 2016 

Page 5 

whether they are treating similar claimants differently, by applying the internal rules in some 

cases and ignoring them in others. 

The proposed language within the additional paragraph (g)(1)(vii)(B) uses the same 

“relied upon” language which has continued to be a problem from the pre-2001 regulations 

and in the current regulations. 

I respectfully propose amending the proposed regulation by adding a section as 

follows and renumbering accordingly (added language is indicated by bolding and 

underlining): 

Current: 

(B) Either the specific internal rules, guidelines, protocols, standards or other similar 

criteria of the plan relied upon in making the adverse determination or, alternatively, a 

statement that such rules, guidelines, protocols, standards or other similar criteria of the plan 

do not exist. 

Proposed: 

(B) The “relevant” (as defined by ¶ (m)(8)(iii) and (iv) of this section) internal 

rules, guidelines, protocols, standards or other similar criteria of the plan, plan 

administrator, claims administrator or other entity making the adverse determination. 

4. Effective Date of the Regulations 

The current regulations at 29 C.F.R. § 2560.503-1(o) contained the following 

language that has proven problematic: “Applicability dates. This section shall apply to 

claims filed under a plan on or after January 1, 2002.” The big problem with this language 

is that in disability cases, a person becomes disabled and may be paid benefit for a period of 

years before being denied ongoing benefits. Over the last fourteen years we have had 

several clients who originally applied for disability benefits before January 1, 2002, but were 

not denied benefits until many years later. For those claimants, under the language in § 

2560.503-1(o), their claims were and will always be controlled by the claims regulations in 

effect before January 1, 2002. Thus, rather than providing for consistent regulation for all 

claimants, older claims were treated differently, and continued to be treated differently. 

To avoid the application of the previous regulations to disability claims that are 

currently being paid, but are denied in the future, or to claims that are currently pending, I 

respectfully suggest that the effective date for these regulations be stated as follows: 

 

The regulations shall apply to all claims pending with the plan fiduciary 

on or after the date that the regulations go into effect. 
January 12, 2016 

Page 6 

 Alternatively, if the decision is made to use language that that the regulations will 

not apply to currently pending claims, but only to those that are denied in the future, I 

respectfully suggest the following language: 

The regulations shall apply to all claims that are filed on or after the date that 

the regulations go into effect or any claim that receives an adverse benefit 

determination after that date. 

In addition to these specific comments, I otherwise support the new proposed regulations. 

While there might be some other ways that the proposed regulations can be further improved, I 

commend the DOL for these proposed changes, and recommend that they be adopted.

 Sincerely, 

 /s/ Eric L. Buchanan 

 Eric L. Buchanan