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GISELE M. NADEAU

ATTORNEY

55 PLEASANT AVE.

PORTLAND, ME 04103

207-671-0327

NADEAU@NADEAUERISADISABILITY.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 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 am well poised to comment because I have 

engaged in this practice exclusively for many years and have seen first hand how claimants are 

most frequently denied the benefits they deserve or are paid benefits in a grossly unfair amount 

on account of the fact the procedures and resulting substantive law are stacked against them. 

There are many proposed changes which will go some distance to cure the current inequities. I 

will not address each of them here but urge you to adopt such proposed changes. I want to 

address two issues and will expect my colleagues, other claimants’ attorneys will make cogent 

arguments in favor of each of the others. In particular, I want to urge you to 1. require that the 

letter denying benefits states clearly what is at stake in the appeal and encourage claimants’ to 

seek the advice of counsel and 2. allow claimants’ to have the “last word” in the appeals process

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 
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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.

(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).

I would require the following language be contained in the benefits denial 

letter: 

The Appeal is the last meaningful chance you have to present your 

case. Once the Appeal is decided, you cannot add any evidence of 

your disability through additional medical, vocational or other 

evidence except in the rarest of cases. If you go to court you will not 

have a trial except in the rarest of cases and will not even be able to 

present anything new to the judge. Accordingly, we recommend you 

engage the services of an attorney, knowledgeable in this area, most 

of whom will not require fees unless you prevail. Your attorney may 

supplement your record with additional evidence which may well 

serve to overturn our decision. It is strongly advised that you do not 

attempt to pursue your Appeal on your own. 

The Social Security Administration provides this warning. There is no 

reason why insurance companies should not be held to the same standard 

and allowed to hide the ball, hoping a claimant will helplessly fail in the 

appeal process. 

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:
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[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.

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 turnarounds 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 
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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.

I commend the efforts of the Department of Labor to insert equity into the ERISA disability 

claims process which is now so unfairly stacked against claimants and look forward to positive 

changes on behalf of my clients.

Sincerely,