Mark DeBofsky Comments on Proposed Regulations
November 30, 2015

Page 4

picture of your impairment, we will give the source's opinion more weight than we would
give it if it were from a nontreating source.

(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a
treating source has about your impairment(s) the more weight we will give to the source's
medical opinion. We will look at the treatment the source has provided and at the kinds
and extent of examinations and testing the source has performed or ordered from specialists
and independent laboratories. For example, if your ophthalmologist notices that you have
complained of neck pain during your eye examinations, we will consider his or her opinion
with respect to your neck pain, but we will give it less weight than that of another physician
who has treated you for the neck pain. When the treating source has reasonable knowledge
of your impairment(s), we will give the source's opinion more weight than we would give
it if it were from a nontreating source.

(3) Supportability. The more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more weight we will give
that opinion. The better an explanation a source provides for an opinion, the more weight
we will give that opinion. Furthermore, because nonexamining sources have no examining
or treating relationship with you, the weight we will give their opinions will depend on the
degree to which they provide supporting explanations for their opinions. We will evaluate
the degree to which these opinions consider all of the pertinent evidence in your claim,
including opinions of treating and other examining sources.

(4) Consistency. Generally, the more consistent an opinion is with the record as a whole,
the more weight we will give to that opinion.

(5) Specialization. We generally give more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to the opinion of a source who is
not a specialist.

(6) Other factors. When we consider how much weight to give to a medical opinion, we
will also consider any factors you or others bring to our attention, or of which we are aware,
which tend to support or contradict the opinion. For example, the amount of understanding
of our disability programs and their evidentiary requirements that an acceptable medical
source has, regardless of the source of that understanding, and the extent to which an
acceptable medical source is familiar with the other information in your case record are
relevant factors that we will consider in deciding the weight to give to a medical opinion.

Given the specific requirements necessary before a treating doctor’s opinion is given deference
according to the quoted regulation, a similar rule in disability insurance cases, which is simply a
reflection of common sense, can only enhance the process.

Very truly yours,

Ltt.)

Mark D. DeBofsky

MDD/ns



DeBofsky & Associates, P.C.

200 West Madison, Street, Suite 2670, Chicago, IL 60606
Phone: (312) 561-4040 + Fax: (312) 929-0309 ¢ Toll Free: (855) LID-LAW1 (855-583-529 1}
Web: www.debofsky.com

Mark DeBofsky
Martina Sherman Marie Casciari William Reynolds

November 30, 2015

Office of Regulations and Interpretations
Employee Benefits Security Administration
Room N-5655

U.S. Department of Labor

200 Constitution Avenue NW,
Washington, DC 20210

VIA U.S. MAIL

Attention: Claims Procedure Regulation Amendment for Plans
Providing Disability Benefits - RIN 1210-AB39

Dear Sir or Madam:

I wish to comment on “Claims Procedure for Plans Providing Disability Benefits,” 80 Fed.Reg.
72014 (November 18, 2015).

“Full and Fair Review”

I comment the Department of Labor for issuing proposed regulations that go a long way toward
closing gaps in the prior regulations, especially in relation to giving claimants an opportunity to
respond to new evidence or a newly advanced rationale during the claim process. The Notice of
Proposed Rulemaking cites a number of court rulings, but omitted a critical decision, Grossmuller
vy. Int'l Union, United Auto. Aerospace & Agric. Implement Workers of Am., U.A.W., Local 813,
715 F.2d 853, 858 n.5 (3d Cir. 1983), which captured the essence of the "full and fair review"
requirement by finding: “[T]he persistent core requirements of review intended to be full and fair
include knowing what evidence the decision-maker relied upon, having an opportunity to address
the accuracy and reliability of that evidence, and having the decision-maker consider the evidence
presented by both parties prior to reaching and rendering his decision.”

Recissions and Limited Benefit Conditions

One glaring issue that was overlooked by the regulations is the situation where a policy limitation
is invoked to limit the duration of benefit payments, such as in cases involving mental and nervous
disorders or for “self-reported” illnesses. 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. Many insurers defer the right to appeal
until the date the benefits end, which imposes significant economic hardship on claimants who
may then be deprived of benefits for several months while appeals proceed.


Mark DeBofsky Comments on Proposed Regulations
November 30, 2015

Page 2

Contractual Limitations Periods

The limitations problem is another issue on which there should be a regulation, especially after the
confusion engendered by the Supreme Court’s ruling in Heimeshoff v. Hartford Life and Acc. Ins.
Co., 134 S.Ct. 604 (2013). That ruling raises the specter of a limitations period expiring before
the claimant can even appeal and the ruling does not allow for tolling of a limitations period during
the claim appeal. A regulation may easily be issued amending 29 C.F.R. § 2560.503-1(j) to
provide: A statement that all applicable limitations periods are tolled during the claim appeal.
The claim administrator must also include in its final denial notification a statement setting forth
the date calculated by the claim administrator on which the relevant limitations period expires.

The Effect of a Favorable Social Security Determination

The proposed requirement that plan administrators/insurers must address their disagreement with
the treating doctor or with a Social Security determination is significant, but does not go far
enough. In the multi-state regulatory settlement agreements between Unum and CIGNA and state
insurance departments (and the U.S. Department of Labor), the insurance companies agreed to
give deference to favorable Social Security findings. Unum, to its credit, has established an
elaborate procedure for doing so and documenting a rationale explaining the basis for disagreement
with the Social Security finding in situations where it has rendered a contrary decision. CIGNA,
however, has not yet fully implemented procedures for meaningfully giving deference to the Social
Security finding. The regulation should be expanded to explicitly set forth a deferential
requirement utilizing the same language as the regulatory settlement agreements. The Unum
Regulatory Settlement Agreement, for example, states: “[T]he 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.”

Consulting versus Treating/Examining Physicians

The Department’s concern about financial bias of medical consultants retained by benefit plans
can also be more forcefully addressed by imposing a requirement that the medical consultant
certify that no more than 20% of their income is derived from reviewing files for insurance
companies and/or self-funded disability benefit plans. Such a proposal would fulfill two salutary
goals:

1) it would assure that the consultants are independent of the insurance companies and thus address
aconcern raised in Black and Decker v. Nord, 538 U.S. 822, 832 (2003)(“Nor do we question the
Court of Appeals' concern that physicians repeatedly retained by benefits plans may have an
incentive to make a finding of ‘not disabled in order to save their employers money and to preserve
their own consulting arrangements." (internal quotations omitted)) that consultants may be
financially beholden to the insurance companies that retain them; and


Mark DeBofsky Comments on Proposed Regulations

November 30, 2015

Page 3

2) it would assure that the consultants be actual practitioners who are familiar with the medical
conditions that they are addressing and up to date on medical testing and treatment for such
conditions.

Finally, while the proposed regulations impose a requirement that insurers must furnish a rationale
for disagreeing with the treating doctor or with the findings of the Social Security Administration,
the Supreme Court handed the Department of Labor an opportunity to issue a more substantive
regulation requiring that deference be given to treating doctor opinions. In Black & Decker v. Nord,
538 U.S. 822 (2003), the Supreme Court rejected an argument that plan administrators should give
discretion to opinions rendered by treating doctors, much as the Social Security Administration
has issued a regulation requiring such deference. 20 C.F.R. § 404.1527(d). However, the Court
stated:

If the Secretary of Labor found it meet [sic] to adopt a treating physician rule by regulation,
courts would examine that determination with appropriate deference. See Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S.
Ct. 2778 (1984). The Secretary has not chosen that course, however, and an amicus brief
reflecting the position of the Department of Labor opposes adoption of such a rule for
disability determinations under plans covered by ERISA. See Brief for United States as
Amicus Curiae 7-27.

538 US, at 832.

Hence, there is no reason why the DOL cannot adopt a rule identical to the one used in Social
Security cases, 20 C.F.R. § 404.1527(c), which provides:

(1) Examining relationship. Generally, we give more weight to the opinion of a source who
has examined you than to the opinion of a source who has not examined you.

(2) Treatment relationship. Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating source's opinion on the
issue(s) of the nature and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in your case record, we will give it controlling weight. When we
do not give the treating source's opinion controlling weight, we apply the factors listed in
paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining the weight to give the opinion. We will always
give good reasons in our notice of determination or decision for the weight we give your
treating source's opinion.

(i) Length of the treatment relationship and the frequency of examination. Generally, the
longer a treating source has treated you and the more times you have been seen by a treating
source, the more weight we will give to the source's medical opinion. When the treating
source has seen you a number of times and long enough to have obtained a longitudinal