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By e-mail to: e-ORI@dol.gov

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: Claims Procedure Regulations for Plans Providing Disability Benefits

RIN No.: 1210-AB39

Regulation: 29 C.F.R. §2560.503-1

Dear Assistant Secretary Borzi:

This letter contains my comments on the proposed regulations for amending the claims 

procedure regulations applicable to disability benefit plans. I am interested in the content of 

these regulations because I am an attorney whose practice is focused on the representation of 

claimants in ERISA-governed disability benefit disputes. I have 

My first comment addresses the vital issue of Statute of Limitations, which I have seen become a 

deadly landmine for unsuspecting beneficiaries, and I offer some suggested changes to the 

regulation to provide more clarity and avoid surprises to both claimants and claims 

administrators. My next comment relates to an issue I have encountered on numerous occasions, 

where claims administrators sandbag or change their rationales on review, leaving the 

beneficiary unable to respond to the new evidence and/or rationale. This practice is widespread 

and not in keeping with the fiduciary role of the claims administrator. Both of these comments 

relate to where I believe the DOL should make a substantive change in the proposed regulations. 

Comment on Notice for Applicable Statute of Limitations

The DOL has invited comment in the statute of limitations issues that have developed since the 

Supreme Court’s decision in Heimeshoff v. Hartford Life & Accid. Ins Co., 134 U.S. 604 (2013). 

I agree that this is a crucial area for regulation as the Heimeshoff decision has created confusion 

and much litigation. 

For instance, I have had several clients who have been receiving benefits for several years before 

being denied and cut-off by the claims administrator. Since most Plan terms state the Statute of 

Limitations runs from 3 years of the proof of loss (which is usually 180 days after the disability 

began), the Statute of Limitations has long run by the time the final denial has been issued. 

Being familiar with the status of the law, I have been able to file suit promptly after the

administrative appeals were exhausted, but many individuals who have been on-claim for a 

substantial amount of time are unrepresented and wholly unfamiliar with this law. Under the 

Heimeshoff decision, many will likely lose meaningful rights to court.
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To avoid this confusion, I recommend an amendment to the regulations governing the manner 

and content of notification of benefit determinations on review. 29 C.F.R. §2560.503-1(j) 

[proposed regulation]. The amended language should require the claims administrator to notify 

the claimant of the date of the expiration of any plan based limitations period and should include 

a definition of what is a reasonable limitations period. Such an alteration takes care of the 

different courts’ views on when claims “accrue” in that it makes clear that no limitations period 

can start before the internal claim and appeals process is complete. It also makes clear that there 

will be at least a one-year period after the completion of the plan’s appeals process in which a 

claimant can file suit. The justification for this rule is that it would cut down on litigation 

devoted to the threshold issue of the running of the limitations period. In addition, it may well 

lead to a standardization of internal limitations periods that would be salutary for both claimants 

and plan administrators. 

Accordingly, I propose amending the proposed regulation by adding a section as follows and 

renumbering accordingly (added language is indicated by bolding and underlining):

29 C.F.R. 2560.503-1 (j)(6) [proposed regulation]

In the case of an adverse benefit decision with respect to disability 

benefits— (i) A discussion of the decision, including, to the extent that the plan 

did not follow or agree with the views presented by the claimant to the plan of 

health care professionals treating a claimant or the decisions presented by the 

claimant to the plan of other payers of benefits who granted a claimant’s similar 

claims (including disability benefit determinations by the Social Security 

Administration), the basis for disagreeing with their views or decisions; and (ii) 

Either the specific internal rules, guidelines, protocols, standards or other similar 

criteria of the plan relied upon in making the adverse determination or, 

alternatively, a statement that such rules, guidelines, protocols, standards or other 

similar criteria of the plan do not exist.

(7) In the case of an adverse benefit determination on review with respect to 

a claim for disability benefits, a statement of the date by which a claimant 

must bring suit under 502(a) of the Act. However, where the plan includes its 

own contractual limitations period, the contractual limitations period will not 

be reasonable unless: 

a. it begins to run no earlier than the date of the claimant’s receipt of the 

final benefit determination on review including any voluntary appeals that 

are taken;

b. it expires no earlier than 1 year after the date of the claimant’s receipt 

of the final benefit determination on review including any voluntary appeals 

that are taken;

c. the administrator provides notice to the claimant of the date that the 

contractual limitations period will run; and
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d. the contractual limitations period will not abridge any existing state 

limitations period that provides for a period longer than one year. 

(8) In the case of an adverse benefit determination on review with respect to a 

claim for disability benefits, the notification shall be provided in a culturally and 

linguistically appropriate manner (as described in paragraph (p) of this section).

Comment on Timing of Right to Respond to New Evidence or Rationales

The DOL clearly wishes to improve things for claimants who are ambushed with new rationales 

or evidence during review on appeal. I commend this effort, since sandbagging has been a 

persistent problem in the ERISA appeals process and some courts have not appreciated how 

prejudicial this is to claimants. In Abram v. Cargill, 395 F.3d 882, 886 (8th Cir. 2005), the court 

articulated the problem as follows:

[w]ithout knowing what “inconsistencies” the Plan was attempting to resolve or 

having access to the report the Plan relied on, Abram could not meaningfully 

participate in the appeals process. . . This type of “gamesmanship” is inconsistent 

with full and fair review. 

Id. Given that it is often very hard to supplement the record in litigation, the proposed change 

offers some assurance that a claimant can contribute his or her relevant evidence to the record 

that the court will review. Where the claimant, as plaintiff, has the burden of proof on most 

issues, this only makes sense. In most litigation contexts, the party with the burden of proof is 

given the last word. Here, giving the last word to the claimant during the claims appeal process 

is, in effect, giving claimant the right of rebuttal in litigation. 

There is, however, a countervailing concern that while this extra opportunity to submit proof to 

the plan exists, claimants will be extending their time without benefit payments. This is a 

problem that already exists and could be exacerbated. Plans have protested that giving the 

claimant the last word will make the internal appeals processes go on forever. This argument is 

out of touch with the reality of being an ERISA disability benefits claimant. These claimants, in 

my experience, would not continue the process ad nauseum while they are unable to pay their 

mortgages and feed their families.

The following suggestion places reasonable limits on both claimants and plan administrators and 

responds to the concern that claimants will have to wait too long for determinations on review. 

While claimants will want to make fast work of their responses because they are usually without 

income during this process, the type of evidence they often need to respond to new evidence or 

rationales by the plan may require hiring an expert such as another physician, psychologist, or 

vocational consultant. These professionals are not always readily available for quick turnarounds and, depending on the new information such experts are responding to, they may need 

weeks to evaluate the new information. For this reason, claimants should have at least 60 days to 

respond to new evidence or rationales provided by the plan on appeal. Moreover, the period for 

the decision on review to be completed should be tolled during this 60-day period. When the 

claimant has responded, the plan administrator should be allowed whatever time was left under 
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the existing regulations or 30 days, whichever is longer, to issue its determination on review.

This rule should apply whether the new information is a new “rationale” or new “evidence.” 

Accordingly, I suggest the following amendment to the proposed regulation (new language 

indicated by bolding and underlining):

2560.503-1(h)(4)(ii) [proposed regulations] 

(ii) Provide that, before the plan can issue an adverse benefit determination on 

review on a disability benefit claim, the plan administrator shall provide the 

claimant, free of charge, with any new or additional evidence or rationale 

considered, relied upon, or generated by the plan (or at the direction of the plan) 

in connection with the claim; such evidence must be provided as soon as possible 

and sufficiently in advance of the date on which the notice of adverse benefit 

determination on review is required to be provided under paragraph (i) of this 

section to give the claimant a reasonable opportunity to respond prior to that date. 

Such new evidence or rationale must be provided to claimant before the 

decision on appeal is issued and the claimant must be afforded up to 60 days 

to respond. The time to render a determination on review will be suspended 

while the claimant responds to the new evidence or rationale. After receiving 

the claimant’s response to the new evidence or rationale or notification that 

the claimant will not be providing any response, the plan will have whatever 

time was left on the original appeal resolution time period or 30 days, 

whichever is greater, in which to issue its final decision.

Thank you for taking the time to review my comments and your efforts to improve the rules 

governing employee disability benefit plans.

Sincerely,

 

Hudson T. Ellis

Attorney at Law