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January 19, 2016

Office of Regulations and Interpretations,

Employee Benefits Security Administration

Room M-5655 Via Email Only: e-ORI@dol.gov

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 write to offer comments on the proposed regulations for amending the claims procedure regulations 

applicable to disability benefit plans. I am interested in the content of these regulations because I am an 

attorney whose practice is focused on the representation of claimants in ERISA-governed disability 

benefit disputes. I routinely represent individuals with short and long term disability claims as well as 

severance related claims. I have been doing so for the past 15 years of my 27 year practice tenure.

I have organized my comments as follows. First, I address the most important substantive issues for the 

DOL to address as it finalizes the proposed regulations. These comments relate to where I believe the 

DOL should make a substantive change in the proposed regulations. Second, I have set out what I see as 

the most important technical issues in the proposed regulations. These are matters that do not change 

the substance of a proposed regulation but request language changes for purposes of greater clarity or 

conformity with other regulations.

I. Comments on Substantive Matters in the Proposed 

Regulations

Comment on Notice for Applicable Statute of Limitations

The DOL has invited comment in 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 as the Heimeshoff decision has created confusion and much litigation. The 

DOL can assist by creating standards for what is a reasonable plan-based limitations provision in the 

same way that the DOL used its regulatory power to create timing deadlines for the claims process in 
Page 2 of 12

prior versions of the regulations. Since Heimeshoff left open the possibility that an internal limitations 

period could run before the appeals process is complete (even where exhaustion is mandatory), the DOL 

is in a good position to clarify that such an approach would violate full and fair review required by 29 

U.S.C. §1133. Additionally, because contractual limitations periods are plan terms, the claimant should 

receive notice about the limitations period from the plan just as is the case with other plan terms. As the 

DOL aptly points out in the preamble to these proposed regulations, plan administrators are in a better 

position to know the date of the expiration of the limitations period and should not be hiding the ball 

from claimants if the plan administrator is functioning as a true fiduciary. 

One court has interpreted the existing regulations to require notice of the expiration of a limitations 

period. Kienstra v. Carpenters' Health & Welfare Trust Fund of St. Louis, No. 4:12CV53 HEA, 2014 WL 

562557, at *4 (E.D. Mo. Feb. 13, 2014), aff'd sub nom. Munro-Kienstra v. Carpenters' Health & Welfare 

Trust Fund of St. Louis, 790 F.3d 799 (8th Cir. 2015)(“[a] description of the plan's review procedures and 

the time limits applicable to such procedures, including a statement of the claimant's right to bring a 

civil action under section 502(a) of [ERISA] following an adverse benefit determination on review.” 29 

C.F.R. § 2560.503–1(g)(iv)). This is a minority perspective. Here, the DOL should do more than interpret 

its own rules; it should re-write them to remove any ambiguity. 

I recommend 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 an alteration takes care of the different courts’ views on when claims “accrue” in that it 

makes clear that no limitations period can start before the internal claim and appeals process is 

complete. It also makes clear that there will be 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 threshold issue of the running of the limitations period. In addition, it 

may well lead to a standardization of internal limitations periods that would be salutary for both 

claimants and plan administrators. 

Accordingly, I 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 
Page 3 of 12

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 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;

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).

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

The DOL clearly wishes to improve things for claimants who are ambushed with new rationales or 

evidence during review on appeal. I commend this effort, since sandbagging has been a persistent 

problem in the ERISA appeals process and some courts have not appreciated how prejudicial this is to 

claimants. In Abram v. Cargill, 395 F.3d 882, 886 (8th Cir. 2005), the court articulated the problem as 

follows:

[w]ithout knowing what “inconsistencies” the Plan was attempting to resolve or having 

access to the report the Plan relied on, Abram could not meaningfully participate in the 

appeals process. . . This type of “gamesmanship” is inconsistent with full and fair review. 

Id. Given that it is often very hard to supplement the record in litigation, the proposed change offers 

some assurance that a claimant can contribute his or her relevant evidence to the record that the court 

will review. Where the claimant, as plaintiff, has the burden of proof on most issues, this only makes 

sense. In most litigation contexts, the party with the burden of proof is given the last word. Here, giving 

the last word to the claimant during the claims appeal process is, in effect, giving claimant the right of 

rebuttal in litigation. 

There is, however, a countervailing concern that while this extra opportunity to submit proof to the plan 

exists, claimants will be extending their time without benefit payments. This is a problem that already 

exists and could be exacerbated. Plans have protested that giving the claimant the last word will make 

the internal appeals processes go on forever. This argument is out of touch with the reality of being an 

ERISA disability benefits claimant. These claimants, in my experience, would not continue the process 

ad nauseum while they are unable to pay their mortgages and feed their families.
Page 4 of 12

The following suggestion places reasonable limits on both claimants and plan administrators and 

responds to the concern that claimants will have to wait too long for determinations on review. While 

claimants will want to make fast work of their responses because they are usually without income 

during this process, the type of evidence they often need to respond to new evidence or rationales by 

the plan may require hiring an expert such as another physician, psychologist, or vocational consultant. 

These professionals are not always readily available for quick turn-arounds and, depending on the new 

information such experts are responding to, they may need weeks to evaluate the new information. For 

this reason, claimants should have at least 60 days to respond to new evidence or rationales provided by 

the plan on appeal. Moreover, the period for the decision on review to be completed should be tolled 

during this 60-day period. When the claimant has responded, the plan administrator should be allowed 

whatever time was left under the existing regulations or 30 days, whichever is longer, to issue its 

determination on review. This rule should apply whether the new information is a new “rationale” or 

new “evidence.” 

Accordingly, I suggest the following amendment to the proposed regulation (new language indicated by 

bolding and underlining):

2560.503-1(h)(4)(ii) [proposed regulations] 

(ii) Provide that, before the plan can issue an adverse benefit determination on 

review on a disability benefit claim, the plan administrator shall provide the 

claimant, free of charge, with any new or additional evidence or rationale 

considered, relied upon, or generated by the plan (or at the direction of the plan) 

in connection with the claim; such evidence must be provided as soon as 

possible and sufficiently in advance of the date on which the notice of adverse 

benefit determination on review is required to be provided under paragraph (i) of 

this section to give the claimant a reasonable opportunity to respond prior to that 

date. Such new evidence or rationale must be provided to claimant before 

the decision on appeal is issued and the claimant must be afforded up to 

60 days to respond. The time to render a determination on review will be 

suspended while the claimant responds to the new evidence or rationale. 

After receiving the claimant’s response to the new evidence or rationale or 

notification that the claimant will not be providing any response, the plan 

will have whatever time was left on the original appeal resolution time 

period or 30 days, whichever is greater, in which to issue its final decision.

Independence and Impartiality - Avoiding Conflicts of Interest

Alternative A

The proposed regulation regarding the impartiality of claims personnel is essential and I applaud the 

DOL’s effort to minimize the effect that biased individuals have on the claims and appeals process. 

However, the proposed regulation needs clarification in three areas.

First, the proposed regulation should make clear that impartiality is ensured, even where the plan, itself, 

is not directly responsible for hiring or compensating the individuals involved in deciding a claim. This 

clarification is necessary because, as a practical matter, plans frequently delegate the selection of 

experts to third-party vendors who, in turn, employ the experts. 
Page 5 of 12

Second, clarification is needed concerning which individuals are “involved.” Claims administrators often 

protest that physicians, or other consulting experts, are not “involved in making the decision” but 

merely supply information (such as an opinion on physical restrictions and limitations) that is considered 

by the claims adjudicator. Under this logic, plans may argue that consulting experts are not affected by 

the impartiality regulation. 

Finally, the proposed regulation should make clear that not only claims adjudicators and consulting 

physicians must be impartial. Vocational experts and accountants are also frequently used in the claims 

process and should be included in the scope of the impartiality requirement. 

In light of these concerns, I suggest that the proposed regulation language be amended as follows 

(added language is bolded and underlined): 

29 C.F.R. §2560.503-1(b)(7) [proposed regulation]

In the case of a plan providing disability benefits, the plan and its agents, 

contractors, or vendors (such as any entities who supply consulting 

experts to plans) must ensure that all claims and appeals for disability benefits 

are adjudicated in a manner designed to ensure the independence and 

impartiality of the persons involved in making the decision or who are consulted 

in the process of making the decision. Accordingly, decisions regarding hiring, 

compensation, termination, promotion, or other similar matters with respect to 

any individual, (such as a claims adjudicator, vocational expert, accounting 

expert, or medical expert) must not be made based upon the likelihood that the 

individual will support the denial of benefits.

Alternative B

The proposed regulation appears to prohibit the plan from employing claims adjudicators or experts 

who are conflicted. However, the regulation could use some more teeth to prevent disagreements and 

litigation over mixed motives for using these individuals. The regulation should make clear that if the 

conflict plays any part in the decision to retain, hire, or compensate the claims handler or other expert, 

the decision would violate the regulations. In light of these concerns, I suggest that the proposed 

regulation language be amended as follows (added language is bolded and underlined): 

29 C.F.R. §2560.503-1(b)(7) [proposed regulation]

Accordingly, decisions regarding hiring, compensation, termination, promotion, or 

other similar matters with respect to any individual (such as a claims adjudicator 

or medical expert) must not be made based upon the likelihood, in whole or in 

part, that the individual will support the denial of benefits.

Opportunity to Supplement the Record

Although the EBSA has not chosen to regulate about this, it should do so. Many meritorious disability 

claims are denied and the courts affirm these determinations because of issues regarding the scope of 

the record on review in the court. For instance, Social Security Disability Insurance decisions, which are 

the focus of some of the proposed rules, are often crucial to proving disability claims. However, the 

Social Security Administration (“SSA”) takes time in issuing its decisions and the SSA’s ruling may 

sometimes come after the final denial on appeal of the disability plan. This is true as well for other kinds 
Page 6 of 12

of evidence. Even where it would not be a problem to do so, plan administrators often refuse to 

consider this type of evidence, choosing instead to shut the door on a meritorious claim. Meanwhile, 

plans will often counterclaim to recover the offset that is provided by the SSA benefit. Metropolitan Life 

Ins. Co. v. Glenn, 554 U.S. 105 (2008). Sometimes a claims administrator may rush an appeal decision 

through simply to avoid the claimant being awarded SSDI and having that evidence in the claims file. 

There is a clear solution to this that would track the Fifth Circuit’s en banc holding in Vega v. National 

Life Ins. Serv., Inc., 188 F.3d 287, 300 (5th Cir. 1999), where the Court wrote:

We hold today that the administrative record consists of relevant information made 

available to the administrator prior to the complainant's filing of a lawsuit and in a 

manner that gives the administrator a fair opportunity to consider it. Thus, if the 

information in the doctors' affidavits had been presented to National Life before filing 

this lawsuit in time for their fair consideration, they could be treated as part of the 

record. Furthermore, in restricting the district court's review to evidence in the record, 

we are merely encouraging attorneys for claimants to make a good faith effort to 

resolve the claim with the administrator before filing suit in district court; we are not 

establishing a rule that will adversely affect the rights of claimants.

Id. In light of this holding from Vega, I recommend a rule that would require the plan administrator to 

accept and review evidence and treat it as part of the record, so long as it is sent in time for the 

administrator to consider the evidence before litigation is commenced.

Discussion of the Decision and Its Relationship to SSDI or other Disability Awards 

Alternative A

The regulation as presented, requiring a claims administrator to meaningfully distinguish the views of 

treating physicians or other entities that are paying benefits, will be helpful. Often, administrators 

ignore evidence that is favorable to the claimant. Generally, if the administrator pays any attention to 

contrary opinions, my clients receive pre-packaged or boilerplate paragraphs in the denial letters that 

have nothing to do with their claims. Because of this they cannot mount a response. This stands in the 

way of full and fair review. Sometimes courts do not understand the difference between the type of 

explanation required by ERISA and these empty paragraphs. Assuming that this regulation is intended 

to change plans’ reliance on this sort of explanation or a wholesale failure to address the contrary 

evidence, I am in favor of the regulation. 

Alternative B

The regulation requiring a discussion about the difference between the plan’s decision and awards 

made by other systems, such as Social Security, should be expanded to set forth a deferential review 

requirement. The regulation could utilize the same language as the regulatory settlement agreements 

that have been used by many state insurance commissioners in response to concerns about disability 

claims processes used by insurers such as UNUM. For example, in the regulatory settlement agreement 

UNUM was required to follow, this language was used:
Page 7 of 12

The Companies must give significant weight to evidence of an award of Social 

Security disability benefits as supporting a finding of disability, unless the 

Companies have compelling evidence that the decision of the Social Security 

Administration was (i) founded on an error of law or an abuse of discretion, (ii) 

inconsistent with the applicable medical evidence, or (iii) inconsistent with the 

definition of disability contained in the applicable insurance policy.

Including similar language in the proposed regulation would be helpful to assure that plans give the 

appropriate weight to an award made by another entity.

II. Comments on Technical Matters in the Proposed Regulations

Effective Date of Proposed Regulation

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

before the effective date, I suggest the following text be added:

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

or after the date that the regulations go into effect.

The holding in Abram v. Cargill, 395 F.3d 882 (8th Cir. 2005), was seriously undermined when the Eighth

Circuit later concluded that its decision in Abram was grounded in the pre-2000 version of the claims 

regulations and would not apply to cases decided under the post-2000 claims regulations. See Midgett 

Washington Group Int’l LTD Plan, 561 F.3d 887, 894-96 (8th Cir. 2009). To avoid this sort of problem 

occurring again, the above suggested language should be added to the proposed regulations.

Notice of Right to Request Relevant Documents

The regulation concerning notice of the right to request relevant documents contained in 29 C.F.R. 

§2560.503-1(g)(1)(vii)(C) [proposed regulation] is an improvement since it was formerly missing from 

the regulation. However, it would be more helpful to claimants to use the words “claim file,” which is 

plain language and is consistent with the amendment at 29 C.F.R. §2560.503-1(h)(4)(i) [proposed 

regulation]. Attorneys understand the language of (g)(1)(vii)(C), but lay persons, who are the actual 

participants and often not represented, may not realize what rights are given here. 

Accordingly, I suggest the following amendment to the proposed regulation (added language is 

underlined and bolded):

29 C.F.R. §2560.503-1(g)(1)(vii)(C)[proposed regulation]

A statement that the claimant is entitled to receive, upon request and free of 

charge, reasonable access to the claimant’s claim file, including copies of all 

documents, records, and other information relevant to the claimant's claim for 

benefits. Whether a document, record, or other information is relevant to a claim 

for benefits shall be determined by reference to paragraph (m)(8) of this section.

Deemed Exhaustion Drafting Issue
Page 8 of 12

This regulation should be edited to clarify that the deemed exhausted provision applies to both claims 

and appeals, not just “claims.” Presumably, if there is a violation of the regulations, the claimant can 

seek review regardless of whether the claim is in the “claim” or the “appeal” stage. I suggest the 

following clarifying language (added language is bolded and underlined):

29 C.F.R. §2560.503-1(l)(2)(i) [proposed regulation]

In the case of a claim for disability benefits, if the plan fails to strictly adhere to all 

the requirements of this section with respect to a claim or appeal,

Deemed Exhaustion of Claims and Appeals Processes

I am pleased that the DOL has undertaken to clarify the consequences that will result when the plan 

does not comply with the procedural requirements of the regulations. The DOL has wisely separated

the consequences into two categories, i.e. for serious violations and for minor violations. I see four

areas that could be improved in the proposal. 

First, the standard of judicial review that will apply requires clarification because there is a potential 

conflict between language in the preamble and the proposed regulation. The preamble says: “in those 

situations when the minor errors exception does not apply, the proposal clarifies that the reviewing 

tribunal should not give special deference to the plan's decision, but rather should review the dispute de 

novo.” The underscored language clearly contemplates that a court should exercise de novo review. 

However, the regulation itself says: “if a claimant chooses to pursue remedies under section 502(a) of 

ERISA under such circumstances, the claim or appeal is deemed denied on review without the exercise 

of discretion by an appropriate fiduciary.” 29 C.F.R. §2560.503-1(l)(2)(i) [proposed regulation]. I 

anticipate that plans will argue that this underscored language does not go far enough to require a court 

to exercise de novo review. For example, this language could mean simply that the plan did not make a 

decision and another plan review would be ordered rather than de novo judicial review. To avoid a 

potential ambiguity on this point, I suggest the following amendment to the proposed regulation (added 

language is bolded and underlined): 

29 C.F.R. 2560.503-1(l)(2)(i) [proposed regulation]

if a claimant chooses to pursue remedies under section 502(a) of ERISA under 

such circumstances, the claim or appeal is deemed denied on review without the 

exercise of discretion by an appropriate fiduciary, and the reviewing tribunal 

should not give special deference to the plan's decision, but rather shall 

review the dispute de novo.

Second, the portion of the proposed regulation concerning refiled appeals requires clarification. The 

claimant whose appeal is refiled may need to supplement the record for the refiled appeal, since it is 

possible that his or her attempt to communicate with the plan was thwarted in some way. I suggest 

amending the regulation to require the plan to give the claimant notice of his or her right to supplement 

the appeal. 

Third, there could be unclarity arising from how to interpret the phrase “reasonable time.” It would be 

better to specify a period of time. Ten (10) days seems reasonable. 
Page 9 of 12

Finally, for the same reasons as described above with regard to the appropriate standard of judicial 

review, it would be beneficial to specify the standard of judicial review is de novo when the court does 

not remand. I suggest the following amendment (added language is bolded and underlined, deleted 

language shown by strikeout):

29 C.F.R. 2560-503-1(l)(2)(ii) [proposed regulation]

If a court rejects the claimant’s request for immediate review under paragraph 

(l)(2)(i) of this section on the basis that the plan met the standards for the 

exception under this paragraph (l)(2)(ii), the claim shall be considered as re-filed 

on appeal upon the plan’s receipt of the decision of the court. Within a 

reasonable time ten (10) days after the receipt of the decision, the plan shall 

provide the claimant with notice of the resubmission and notify the claimant of 

the right to supplement the appeal if she chooses. If the court accepts the 

claimant’s request for immediate review, the court will retain jurisdiction 

and decide the case applying de novo review.

Right to Claim File and Meaning of Testimony

There is unclarity concerning what manner of “testimony” is contemplated by the new regulations.

In the preamble to the proposed regulations, the DOL has stated: “the proposal would also grant the 

claimant a right to respond to the new information by explicitly providing claimants the right to present

evidence and written testimony as part of the claims and appeals process.” Note the underscored 

language refers to “written testimony.” But the actual proposed regulation uses this phrasing: “[the 

processes for disability claims must] allow a claimant to review the claim file and to present evidence 

and testimony as part of the disability benefit claims and appeals process.” 29 C.F.R. §2560.503-

1(h)(4)(i)[proposed regulation]. Here the regulation refers to “testimony” without limiting the type of 

testimony to “written” testimony.

By comparison, the current regulation uses the following language: “[the process must] provide 

claimants the opportunity to submit written comments, documents, records, and other information

relating to the claim for benefits.” 29 C.F.R. 2560.503-1(h)(ii)(2)[current regulation].

Hence, there is an inconsistency between the preamble and the proposed regulation in that the 

preamble specifies “written testimony” whereas the proposed regulation just says “testimony.” This 

could lead to costly disagreements over whether the regulation contemplates actual live testimony, i.e.

a hearing. 

Furthermore, under the current regulation sometimes claimants submit testimony in the form of an 

audio or video CD. This is particularly useful in cases where the claimant cannot read or write so that a 

written statement is impossible. It is also helpful in those cases where actually seeing the claimant 

might be important. As such, I am concerned that the reference to “written testimony” in the preamble 

might give plans the ammunition to disallow any audio or video submissions on the grounds that these 

forms of evidence do not represent “written evidence.” If this were the interpretation given to the 
Page 10 of 12

language in the proposed regulation, it would actually put claimants in a worse position than they face 

at present. 

Further, the proposed regulation’s verbiage, i.e. “evidence and testimony” could be interpreted to 

impose courtroom evidentiary standards for claimants submitting proof of their claim – something that 

is not normally applied in the ERISA context. Plans are in a position to observe rules of evidence as they 

have in-house counsel and other legal resources to rely upon to assure compliance with the rules of 

evidence. But claimants, who are often representing themselves, are not equipped to understand, 

much less apply, the usual evidentiary standards suggested by the phrase “evidence and testimony.” 

The agency needs to make clear that it is not curtailing or narrowing the types of information that 

claimants may submit to the administrator. 

III. Other Issues of Concern with the Regulations

Adverse Benefit Determination to Include Rescission

Alternative A

An addition to the regulation that an adverse benefit determination includes an adverse decision on 

coverage is necessary. However, I question whether the definition of “rescission” in 29 C.F.R. 

§2560.503-1(m)(4)(ii) [proposed regulation] is sufficient to cover the situation where the plan asserts 

that coverage never existed in the first place. Coverage disputes regarding disability benefits should be 

appealable by the claimant as a matter of full and fair review. I suggest the following amendment 

(added language indicated by bolding and underlining):

29 C.F.R. §2560.503-1(m)(4)(ii) [proposed regulation]

In the case of a plan providing disability benefits, the term “adverse benefit 

determination” also means any rescission of disability coverage with respect to a 

participant or beneficiary (whether or not, in connection with the rescission, there 

is an adverse effect on any particular benefit at that time). For this purpose, the 

term “rescission” means a cancellation or discontinuance of coverage or any 

other repudiation of coverage that has retroactive effect, except to the extent it 

is attributable to a failure to timely pay required premiums or contributions 

towards the cost of coverage.

Alternative B

The proposed language regarding treating rescissions as adverse benefit determinations should be 

expanded to encompass any situation where a limitation is invoked so that the claimant can 

immediately appeal. For instance, a plan may approve benefits but may invoke a temporal limitation 

that exists in the plan, such as a mental illness limitation. Many insurers defer the right to appeal until 

the date that benefits end, which imposes significant economic hardship on claimants who may then be 

deprived of benefits for several months while appeals proceed. The claimant should have the option to 

immediately appeal that determination to avoid the economic hardship in the future. 
Page 11 of 12

Disclosure of Internal Rules etc.

The DOL’s proposed regulation regarding disclosure of the internal rules or criteria used to make a 

disability benefit decision, 29 C.F.R. §2560.503-1(g)(1)(vii)(B)[proposed regulation], is helpful because 

internal rules, guidelines, protocols, standards, claims manuals, and similar materials often create 

hidden plan terms that the claimant is unable to learn of or discover in order to address them in the 

appeal. As is true in the healthcare context, plans sometimes argue that internal criteria are confidential 

or proprietary. But keeping the rules that are used to administer a plan a secret is inconsistent with the 

most basic premise of ERISA. Benefits must be administered “in accordance with the documents and 

instruments governing the plan.” 29 U.S.C. §1104. In addition, much litigation would be avoided if the 

claimant could know what criteria he or she needed to meet in an appeal See e.g. Cook v. New York 

Times Co. Long-Term Disability Plan, 2004 WL 203111, at *10 (S.D.N.Y. Jan. 30, 2004); Craig v. Pillsbury, 

458 F.3d 748, 754 (8th Cir. 2006)(decrying the use of “double-secret” plan terms); Samples v. First 

Health Group Corp., 631 F. Supp. 2d 1174, 1183 (9th Cir. 2007). Given that the regulations require 

adverse benefit determinations to include the reasons for the denial and the applicable plan terms, this 

additional requirement should not be onerous and would promote the dialogue between claimant and 

plan that ERISA contemplates. Booten v. Lockheed Med. Ben Plan, 110 F.3d 1461, 1463 (9th Cir. 

1997)(“in simple English, what this regulation calls for is a meaningful dialogue between ERISA plan 

administrators and their beneficiaries.”).

Venue Selection Provisions Inconsistent with ERISA

There is a serious issue that is not addressed in the proposed regulations that should be considered. 

The regulations should make clear that ERISA’s broad venue provision cannot be thwarted by contrary 

plan or policy provisions. Some courts have permitted plans to draft around ERISA’s venue 

requirements. At a minimum, the present state of the law means that there will continue to be 

litigation on this question before the merits of a dispute can even be reached. Venue selection clauses 

are mostly used to disadvantage ERISA claimants in litigation or create barriers to their statutory right to 

sue. McQuennie v. Carpenters Local Union 429, No. 3:15-CV-00432, 2015 WL 6872444, at *5 (D. Conn. 

Nov. 9, 2015)(pro se litigant allowed to sue in home state of Connecticut because he could not afford to 

travel to California); but see, Turner v. Sedgwick Claims Mgmt. Servs., No. 7:14-CV-1244-LSC, 2015 WL 

225495 (N.D. Ala. Jan. 16, 2015). In Turner the court encouraged the agency to regulate in this area as 

opposed to filing amicus briefs in some cases and not others. Id. at 21(“[a]lso underwhelming is that the 

Secretary has expressed his view only rarely, through the ad hoc, highly informal means of amicus briefs 

in private litigation, rather than in a regulation, an enforcement setting, or even in a published 

statement of policy or guidance.”). There is a fear that other courts will take this same point of view, 

which would harm disability claimants. 

Accordingly, I recommend that DOL propose a regulation requiring that in the final denial letter plans 

not only notify claimants of their right to sue and the date of the expiration of any internal limitations 

period but also of the statutory ERISA venue provision. 

Notice of Right to Retain Counsel for Appeal
Page 12 of 12

Often ERISA claimants who have been wrongly denied disability benefits do not realize that they have 

the right to be represented in the administrative appeal process. Not knowing what evidence would 

have proven their claim to the plan administrator, and limited by the administrator or the court in 

submitting any new evidence in support of their claims in later litigation, they have often squandered 

their last, best opportunity to prove a meritorious claim. I propose that the DOL adopt a regulation that 

benefit denials must advise claimants of their right to hire an attorney to represent them in the appeal 

phase. The Social Security Administration does this. There is no reason to hide this right from 

claimants.

Thank you for your efforts.

Very Truly Yours, 

Howard L. Bolter