PUBLIC SUBMISSION

Received: October 18, 2017

Status: Pending_Post

Tracking No. 1k1-8zao-91x3

Comments Due: December 11, 2017

Submission Type: Web

Docket: EBSA-2015-0017

Claims Procedure for Plans Providing Disability Benefits; Extension of Applicability 

Date

Comment On: EBSA-2015-0017-0291

Claims Procedure: Plans Providing Disability Benefits

Document: EBSA-2015-0017-DRAFT-0366

Comment on FR Doc # 2017-22082

Submitter Information

Name: Kevin Koelbel

Address: 3030 North 3rd Street Suite 1230

Phoneix, AZ, 85012

Email: kevn@oberpekas.com

Phone: 602-277-1745

General Comment

Re: Claims Procedure Regulations for Plans Providing Disability Beneifts

RIN No. 1210-AB39

Regulation: 29 C.F.R. sec. 2560.503-1

Deputy Assistant Secretary Hauser:

I have been representing employees wrongfully denied ERISA benefits for almost 

twenty years in Arizona District Court, the United States Court of Appeals for the 

Ninth and Tenth Circuits, and the U.S. Supreme Court (technically, I defeated a 

petition for certoriari). I have worked hard to have ERISA interpreted and applied in a 

manner consist with Congress's stated purpose of promoting the interests of 

employees.
The Department finalized rules after a 60-day notice and comment period that 

generated numerous comments from various stakeholders, including industry 

organizations, insurers, and plans, all of who came out in force. Some of them 

speculated that implementing the rules would have associated costs, but offered no 

evidence or data to support their speculation. Many in the industry requested 

additional time to adjust to the new rules, which the Department accommodated by 

significantly delaying the effective date.

The situation now appears to be that information that was not provided during the 

notice and comment period will be considered. Considering information outside of the 

notice and comment period deprives employees and their representatives of an 

opportunity to address these new concerns because no information is being made 

available. There is no reason to believe that information gathered in a post-comment 

period could not have been timely provided or that it is inherently more valuable than 

the timely collected information. Two things are clear. The new regulations come 

closer to fulfilling Congress's goal of promoting the interests of employees. And, the 

industry representatives, unhappy with that result, asked for a do-over in meetings 

with certain members of Congress, the full content of which have not been disclosed. 

Apparently citing a "confidential" study that predicts increased premiums, the 

industry has prevailed in getting a do-over, with such a short notice and comment 

period, that it is not even possible to obtain information under FOIA to learn who or 

what influenced the do-over decision.

Worse still, the industry proposes to make new changes to the regulation based on 

data that will be shielded from public scrutiny. Without access to the new "study" or 

an opportunity to comment, protecting employees' rights in such a process is 

impossible. The proposed delay for implementing the final regulations raises serious 

issues regarding transparency in the rule-making process.

That premiums would increase is speculative, but even if true, if higher premiums 

avoided illusory coverage, employees would likely welcome them. I am skeptical that 

the industry is concerned with additional "costs" that it can pass on to employees in 

the form of higher premiums. It is far more likely that the industry is concerned with 

its profits. Affording more protection to employees might result in more claims being 

paid, which cannot be offset by higher premiums, because higher premiums may drive 

clients away shrinking the risk pool. The Department should not be implementing 

regulations to protect industry profits. It should be implementing regulations that 

fulfill Congress' purpose of protecting the rights of employees.

The effective date of the regulations should not be delayed because the reasons for a 

delay have been screened from the public eroding the public's trust and the inherent 
fairness that should attend the rule-making process. The new regulations provide 

marginally better protection to employees, which is consistent with Congress's 

purpose. Any delay will thwart that purpose.

Thank you,