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December 11, 2017 

Via e-mail e-ORI@DOL.gov 

Timothy D. Hauser 

Deputy Assistant Secretary for Program Operations 

Employee Benefits Security Administration 

United States Department of Labor 

200 Constitution Avenue NW 

Washington D.C. 20210 

Re: Re-Examination of Claims Procedure Regulations for Plans Providing Disability 

 Benefits 

 RIN No.: 1210-AB39 

Regulation: 29 C.F.R. § 2560.503 

Dear Deputy Assistant Secretary Hauser: 

I am writing to comment on the Final Regulation on Claims Procedure for Plans Providing 

Disability Benefits, 81 Fed. Reg. 92316 (Dec. 19, 2016)), that are now scheduled to go into effect on 

April 1, 2018. I am writing to address what I understand to be the principal objections to the regulations 

and to oppose any efforts to amend or derail the regulations. 

First, the claim that the regulations would significantly increase costs is unproven. We have yet 

to see any actuarial study that would support such a claim; and we sincerely doubt that any such study 

could be produced. But even if the costs may modestly increase, the specter that fewer employers would 

offer benefits is sheer nonsense. Employers provide benefits to their employers for reasons that go well 

beyond altruism. Employee benefits are a valuable tool employers use to both recruit and retain 

outstanding employees. 

Second, given the nature of litigation of disability benefit claims, a more robust and fairer claim 

process may be the only means a claimant has to achieve due process. The federal courts treat ERISA 

claims as quasi-administrative. See Perlman v. Swiss Bank Corp., 195 F.3d 975 (7th Cir. 1999)). That 

means there is no trial (and obviously no jury trial), no discovery permitted, and no further evidence 

allowed. The most critical of the proposed regulations is the one that gives the claimant the last word in 

the claim process. Without a regulation permitting claimants the opportunity to comment on adverse 

evidence obtained by the benefit plan administrator/insurer during the claim process, claimants can be 

sandbagged since meaningful challenges to such adverse evidence are precluded. 

Third, the importance of a Social Security determination cannot be overstated. As part of their 

settlements of regulatory charges resulting from market conduct investigations, both Unum and CIGNA 

agreed to give deference to favorable Social Security determinations. Every disability insurer and plan 

administrator should be subjected to the same standard. The definition of “disabled” under the Social 
Employee Benefits Security Administration 

December 11, 2017

Page 2 

Security Act (42 U.SC. § 423) is far more stringent than the definitions in disability insurance policies; 

and a favorable outcome of a Social Security claim represents an objective process by a neutral 

administrative agency. The Social Security Medical-Vocational Rules that take into consideration a 

claimant’s age, education, and work experience have been recognized as “well-developed, relatively 

efficient and by no means overly generous to claimants-by which a plan may show adequate 

consideration of a claimant's vocational characteristics.” Demirovic v. Bldg. Serv. 32 B-J Pension Fund, 

467 F.3d 208, 216 (2d Cir. 2006). Hence, requiring disability plans to meaningfully explain a differing 

outcome from the Social Security determination would enhance the claim process and its fairness. 

Fourth, the regulations promote the use of impartial consultants. Especially in view of a 

litigation regime that effectively precludes discovery, the rule promotes the use of practitioners who 

bring more objectivity and fairness into the evaluation of claims instead of using doctors and other 

consultants who appear to earn the bulk, if not all of their income, reviewing disability claims and thus 

are influenced by the notion of regulatory capture into being biased to favor benefit denials. 

Fifth, the requirement of disclosure of the time limit for filing suits is simply a tool to prevent 

confusion and unnecessary premature adjudication of claims. Likewise, the disclosure of internal 

guidelines utilized by plans insures consistent treatment of similarly situated claimants. 

In summary, the regulations have already gone through an extended comment period and the 

comments presented were all taken into consideration before the final rules were issued in December 

2016. There is no reason whatsoever to delay the implementation of the rules, especially since insurers 

and benefit plan administrators have already been given more than adequate time to institute procedures 

and measures to comply with the rules. 

Very truly yours, 

KANTOR & KANTOR, LLP 

 Lisa S. Kantor 

LSK/nh