PUBLIC SUBMISSION

Received: January 19, 2016

Status: Pending_Post

Tracking No. 1k0-8nh9-urmo

Comments Due: January 19, 2016

Submission Type: Web

Docket: EBSA-2015-0017

Claims Procedure for Plans Providing Disability Benefits

Comment On: EBSA-2015-0017-0001

Claims Procedure for Plans Providing Disability Benefits

Document: EBSA-2015-0017-DRAFT-0060

Comment on FR Doc # 2015-29295

Submitter Information

Name: 

Address: United States,

Email:

General Comment

Re: Department of Labor, RIN-1210-AB39

Thank you for formulating these proposed regulations. As a former ERISA attorney (now 

disabled), I know how ERISA's claims procedure affects both employees and employers. In sum, 

the process for claiming disability benefits is strongly skewed in favor of plan administrators and 

against the claimant. Plans take advantage of disabled claimants' poor state of health and delay or 

deny claims unfairly, hoping the claimant will give up. I have seen this in my own case as well 

as others.

The Department of Labor took a big step in the right direction when it took into account the 

similarity between disability and health insurance claims by revising the claim procedure 

regulations in 2000. However, more needs to be done.

Given the current judicial environment and the abuse of discretion standard, regulations ensuring 

that the claims procedure is as fair and impartial as possible are necessary. These requirements 

must be spelled out or plans will decide what "fair and impartial" means. The proposal to 

prohibit compensating claims adjudicators for claim denials and contracting with medical experts 

based on their reputation of denying claims are absolutely necessary. I would urge the 

Department to go further in spelling out what is deemed fair and impartial. For example, while 
the current regulations call for a supposed independent review on appeal, often the person 

considering the appeal is the original reviewer's supervisor and not particularly independent.

The ERISA claims procedure disclosure requirements also need strengthening. The Department's 

proposals in this are are very welcome. Disability claims rely on facts and interpretation, and the 

plan's interpretations are critical for claimants to have for a full and fair internal review of 

adverse benefit decisions. In particular, requiring the plan to explain how it reconciles its 

decision with decisions for other disability sources such as Social Security is excellent. Insisting 

plans cite and explain how a treating physician's reports were handled is also important. It would 

be fruitful to add to the regulations a requirement that the treating physician's opinion be 

allocated more weight than those of the plan's consultants. 

I would also suggest you include a fine for each day the plan goes over the disclosure deadline 

for requested documents in this section and all other pertinent ones. This would encourage plan 

compliance and relieve claimants of the need to sue for non-disclosure or late disclosure.

Likewise, the right to review new evidence generated by the plan after a claims denial and before 

an appeal is necessary. The claims procedure is meaningless without access to all information 

generated by a plan relating to a claim. Internal rules an procedures also need to be made 

available. As to tolling, see my above remarks. Anything to make life easier for a disabled, often 

sick, claimant should be incorporated in to the new regulations.

Allowing claimants to file a lawsuit and have it considered under the de novo standard of review 

if the plan has not followed the correct procedures is an important addition to the claims 

procedure regulations. I suggest that the language regarding exceptions to this rule, i.e., de 

minimis violations that are for "... good cause or due to matters beyond the control of the plan 

and that the violation occurred in the context of an ongoing, good faith exchange of information 

between the plan and the claimant" be expanded on and strengthened to discourage plans from 

abusing them.

The other proposed changes should be kept. 

I am very happy to see the Department address this issue. It is very difficult for disabled plan 

participants to go through the claims process, and even more difficult to file a lawsuit if their 

internal appeal is denied as well. As you no doubt know, court decisions to date do little to 

encourage plans to approve disability claims. It is all about the bottom line and has nothing to do 

with the rights of employees who have forfeited pay in lieu of participation in a disability plan. I 

do not know of anyone who wanted to stop working and claim disability benefits. To deny 

claims precisely when they are needed is unjust to the extreme. Anything that can be done to 

discourage unfair and unlawful denials on the part of plans should be done.