From: Jennifer Danish 

Sent: Monday, December 11, 2017 8:16 PM

To: EBSA, E-ORI - EBSA

Subject: 1210-AB39

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: 

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 discourage the Department of Labor from modifying or further delaying the final 

disability claims regulations (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 have worked in the legal industry since 2003 specifically focusing on 

disability cases. I finished law school and have been an attorney practicing in the area since 

2009. I represent claimants before the Social Security Administration as well as insured against 

insurance companies in relation to ERISA and non-ERISA benefits.

Although I appreciate the opportunity to comment on the Department’s re-examination of the 

costs of the final rules governing disability claims, the concerns raised by the industry are not 

new and I have previously submitted related comments already on two other occasions. The 

insurance industry is simply re-arguing the merits of the final rules, which is completely 

inappropriate. I address below the objections that have been raised that I am most concerned 

about.

Costs Will Not Increase

The industry claims if the final rules go into effect there will be an increase in costs that will 

increase premiums resulting in less access to disability benefits. This costs argument was made 

in various industry comments to the proposed rules before final adoption. At that time, the 

Department concluded that costs would not outweigh the benefits. Furthermore, an agency is not 

required to "conduct a formal cost-benefit analysis in which each advantage and disadvantage is 

assigned a monetary value." Michigan v. Environmental Protection Agency, 135 S. Ct. 1699, 

2711 (2015).
Regardless, the Department has asked for data addressing whether costs increased in response to 

the last set of rules applying to ERISA disability plans that became effective in 2002. The 

Department can actually rely upon information supplied by its own Bureau of Labor Statistics. 

https://www.bls.gov/opub/btn/volume-4/disability-insurance-plans.htm. The data clearly shows 

that access and participation in employer-based disability insurance has increased, not decreased, 

between 1999 and 2014. This increase has occurred despite disability claims regulations issued 

in 2000 and a series of court decisions addressing conflicted decision-making, deemed 

exhaustion, the need to discuss and explain adverse benefits decisions, and plan participants' 

right to respond to new evidence. This BLS document also demonstrates that the cost of 

disability insurance is extremely modest, which supports the conclusion that even if costs did 

increase, the increase would be so small that it is unlikely to make any difference.

The Department has also asked for data about whether disability premiums increased in response 

to the adoption of statutory bans on discretionary language clauses in disability policies by some 

states. During the time period of the BLS study, many states enacted discretionary clause bans. 

This includes but is not limited to Arkansas Admin. Code 054.00.101-4 (2013); Cal. Ins. Code 

§10110.6 (2012); Colo. Rev. Stat. §16-3-1116 (2008); 50 Ill. Admin. Codes 2001.3 (2005); Md. 

Code ann. Ins. §12-211; Mich. Admin. Codes. R. 500.2201-2202 (2007); R.I. Gen. Law §§ 27-

18-79; Tex. Admin. Code §3.1202-1203; Tex. Ins. Code §1701.062, §1701.002 (2011); WAC 

§284-96-012 (2009). Notwithstanding these statutory developments, access and participation in 

disability plans increased according to the BLS data.

Given this history, any claim that costs will increase in response to the modest changes in the 

final rules are specious at best. I urge the Department of Labor not to change the final rules in 

response to the industry’s “argument" that the costliness of the final rules will impact access to 

disability benefits in the workplace.

 

Requiring the Plan to Discuss the Basis for Disagreement with Social Security Decisions or 

Other Contrary Opinions is Not Costly.

This rule merely requires disability plans to observe a fundamental due process principle that is 

imbedded in ERISA—namely the principle that a claimant is entitled to a well-articulated 

explanation for the adverse benefits decision so that the participant may fairly dispute it. The 

2000 regulations already require this.

As the Department has already noted, there are no additional costs associated with the 

requirement of discussing the reasons for disagreeing with a favorable Social Security decision. 

ERISA disability benefits have always been deeply intertwined with the Social Security system 

and mostly are simply supplemental to Social Security benefits. Most disability plans require 

claimants to apply for the SSA benefit, and the plans usually provide representation for claimants 

before the SSA. This is done so that the plan may take advantage of the plan term that the SSDI 

benefit will offset the LTD benefit. In many cases the ERISA disability benefit is de minimis or 

non-existent once this offset is taken. Particularly, where the plan/insurer is benefiting from the 
SSA determination, literally the least they can do is review, consider and explain how they 

analyzed the Social Security determination.

To the extent that the industry argues that increasing the cost of disability insurance will burden 

the government, and more specifically the SSA, the Bureau of Labor Statistics publication 

speaks to this:

It is important to note that expanding access to employer-provided disability insurance would not 

necessarily relieve the burden on SSDI. The ability to access disability insurance does not affect 

a worker’s eligibility for SSDI. People can receive SSDI benefits and long-term disability 

payments, but the private disability insurance payment is usually reduced by the amount of the 

SSDI payment. 

https://www.bls.gov/opub/btn/volume-4/disability-insurance-plans.htm.

Additionally, the disability plans and insurers are required in many jurisdictions to discuss why 

they are denying a disability claim when the Social Security Administration awarded benefits 

under an obviously more strenuous standard. Montour v. Hartford Life & Acc.Ins Co., 588 F.3d 

623, 635-637 (9th Cir. 2009); Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 679 

(9th Cir. 2011); Bennett v. Kemper Nat. Services Inc., 514 F.3d 547, 553-554 (6th Cir. 2008); 

Brown v. Hartford Life Ins. Co., 301 F. App'x 777, 776 (10th Cir. 2008). As a matter of Supreme 

Court precedent, it is arbitrary and capricious for the claims administrator to advocate for Social 

Security benefits, reap the benefit of the Social Security award by means of an offset, and then 

ignore the SSA’s determination. Metropolitan Life v. Glenn, 554 U.S. 105 (2008). As the 

industry comments often acknowledged, requiring an explanation of the reasons for disagreeing 

with the Social Security decision and other contrary evidence tracks the existing 

standard. Logically, it should not increase costs to simply codify this standard.

A rule clarifying that an explanation of the basis for disagreeing with a Social Security decision 

is a requirement will increase uniformity and predictability in the process, which is generally 

associated with costs savings and not cost increases.

--

Jennifer Danish

Managing Partner

Bryant Legal Group PC

205 N Michigan Ave, Ste 3910

Chicago, IL 60601

jdanish@bryantlg.com

(312) 561-3010 main line

(312) 235-4886 direct line

(312) 254-3140 fax

www.bryantlg.com
This communication may contain privileged and confidential information protected by 

the Electronic Communications Privacy Act, 18 U.S.C. Secs. 2510-2521. It is intended 

only for the use of the recipient named above. If you are not the intended recipient of 

this communication, or the employee or agent responsible for delivering it to the 

intended recipient, you are hereby notified that any dissemination, distribution, or 

copying of this communication is strictly prohibited. If you have received this 

communication in error, please immediately notify us by telephone or email.