JOHNSTON LAW OFFICE

131-A Stony Circle, Suite 500

Santa Rosa, California 95401

(707) 939-5299

Fax (707) 837-9532

e-mail: RichardJohnstonEsq@gmail.com

January 19, 2016

Via electronic mail transmission to e-ORI@dol.gov

The Honorable Phyllis C. Borzi

Assistant Secretary for Employee Benefits Security

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 CFR § 2560.503-1

Dear Ms. Borzi:

I write to comment on proposed amendments to claims-procedure regulations for

ERISA-governed disability benefit plans. These regulations interest me greatly because, in 

my law practice, I focus on representing claimants in disputes respecting these sorts of 

claims. I have considerable experience in how these regulations impact claimants and the 

claims process, as I have represented both claimants and institutional defendants in ERISA 

disability disputes over my 29-year legal career. 

I have organized my comments as follows. First, I discuss areas where DOL should 

make a substantive change in the proposed regulations. Second, I discuss the most 

important technical issues; these comments will not address the substance of a proposed 

regulation, but will offer suggestions for greater clarity or conformity with other regulations.

I. Comments on Substantive Matters in the Proposed Regulations

A. Comment on Notice of Applicable Statute of Limitations

DOL has invited comment on statute-of-limitation issues in the wake of the Supreme 

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

is a crucial area for regulation; Heimeshoff has generated significant confusion and 

protracted litigation. The regulations should impose standards for reasonable plan-based 

limitations provisions in the same way they already impose deadlines in other respects. 

Since Heimeshoff left open the possibility that a plan-based limitations period could run 

even before the internal-appeal process is complete (and even where exhaustion is 
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

Page 2

mandatory), the regulations should clarify that this approach fails to provide the full and fair 

review required by 29 USC § 1133. Already I have had claimants approach my office with 

likely-meritorious claims that were potentially foreclosed by the application, under 

Heimeshoff, of a respective plan-based deadline. Additionally, because contractual 

limitations periods are plan terms, the claimant should receive—from the plan—clear and 

timely notice about the limitations period as required in connection with other plan terms. 

As the DOL aptly points out in the preamble to these proposed regulations, plan 

administrators are in a better position to know the date of the expiration of a limitations 

period, and should not be hiding the ball from their claimants if they are to fulfill their 

fiduciary obligations. 

One court has interpreted the existing regulations to require notice of the expiration 

of a limitations period. Kienstra v. Carpenters' Health & Welfare Trust Fund of St. Louis,

2014 WL 562557, *4 (E.D. Mo.), aff'd sub nom. Munro-Kienstra v. Carpenters' Health & 

Welfare Trust Fund of St. Louis, 790 F.3d 799 (8th Cir. 2015). This, however, is a minority 

perspective. Here, DOL should do more than interpret its own rules; it should re-write them 

to ensure claimants are made aware of any plan-based deadline to initiate litigation and to 

avoid ambiguity. 

I recommend an amendment to the regulations governing the manner and content of 

notification of benefit determinations on review. See 29 CFR § 2560.503-1(j) [proposed 

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

claimant of a date certain for the expiration of any plan-based limitations period; the 

regulations should also define just what a reasonable limitations period is. This would

resolve different courts’ views on when claims “accrue” and make clear that no limitations 

period can start before the internal claim and appeals process is complete. It should also 

provide that there must be at least a one-year period after the completion of the plan’s 

appeals process in which a claimant may file suit. This would cut down on litigation over the 

threshold issue of the impact of a plan-based limitations period, and may well lead to a

salutary standardization of plan-based limitations periods. 

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

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

29 CFR § 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 
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

Page 3

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. 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 one 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

d. the contractual limitations period will not abridge any 

existing state-law 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).

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

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

rationales or evidence during internal appeal. Indeed sandbagging has been a persistent 

problem in the ERISA appeals process, and some courts have recognized the prejudice to 

claimants. In Abram v. Cargill, 395 F.3d 882, 886 (8th Cir. 2005), for example, the court 

observed:

[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. 

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 
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

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record that the court will review. Once in court, the claimant, as plaintiff, has the burden of 

proof on most issues, so 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 an appropriate right of rebuttal in 

litigation.

There is, however, a countervailing concern. First, this extra opportunity to submit 

proof to the plan will frequently mean that claimants must extend the time during which 

they must subsist without benefit payments. Plans, for their part, have protested with 

notable hyperbole that giving the claimant the last word will make the internal appeals 

processes go on “forever.” This is out of touch with the reality of being an ERISA disability 

benefits claimant. These claimants, in my experience, would not—and could 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 and plans 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 proffered 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 turn-arounds and, depending on the 

new information they 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. And 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 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):

29 CFR § 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 the 

claimant before the decision on appeal is issued and the claimant 

must be afforded at least 60 days to respond. The time to render a 

determination on review will be suspended while the claimant 
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

Page 5

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 

then 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.

C. Independence and Impartiality - Avoiding Conflicts of Interest

The proposed regulation regarding the impartiality of claims personnel is essential 

and I support DOL’s effort to minimize the effect of bias on the claims and appeals process.

However, the proposed regulation needs clarification in three areas.

First, the proposed regulation should make clear that impartiality must be ensured, 

even where the plan is not itself directly responsible for hiring or compensating the 

individuals involved in deciding a claim. This clarification is necessary because, as a 

practical matter, plans frequently delegate the selection of experts to third-party vendors. 

Second, clarification is needed concerning which individuals are “involved.” Claims 

administrators often protest that physicians, or other consulting experts, are not “involved 

in making the decision” but merely supply information (such as an opinion on physical 

restrictions and limitations) that is considered in turn by a claims adjudicator. Under this 

logic, plans may argue that consulting experts are not affected by the impartiality regulation. 

Finally, the proposed regulation should require that not only that claims adjudicators 

and consulting physicians must be impartial, but that vocational experts and accountants,

also frequently used in the claims process, be included in the scope of the impartiality 

requirement. 

In light of these concerns, I suggest that the proposed regulation language be 

amended as follows (added language is bolded and underlined): 

29 CFR § 2560.503-1(b)(7) [proposed regulation]

In the case of a plan providing disability benefits, the plan and its agents, 

contractors, or vendors (such as any entities who supply 

consulting experts to plans) must ensure that all claims and appeals for 

disability benefits are adjudicated in a manner designed to ensure the 

independence and impartiality of the persons involved in making the decision 

or who are consulted in the process of making the decision.

Accordingly, decisions regarding hiring, compensation, termination, 

promotion, or other similar matters with respect to any individual, (such as a 

claims adjudicator, vocational expert, accounting expert, or medical 

expert) must not be made based upon the likelihood that the individual will 

support the denial of benefits.
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

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Alternatively, or additionally, the regulation should provide that if a conflict plays any 

part in the decision to retain, hire, or compensate a claims handler or other expert, the 

decision would violate the regulations. In light of these concerns, I suggest that the proposed 

regulation language be amended as follows (added language is bolded and underlined): 

29 C.F.R. § 2560.503-1(b)(7) [proposed regulation]

Accordingly, decisions regarding hiring, compensation, termination, 

promotion, or other similar matters with respect to any individual (such as a 

claims adjudicator or medical expert) must not be made, in whole or in 

part, based upon the likelihood that the individual will support the denial of 

benefits.

D. Opportunity to Supplement the Record

The EBSA has not issued any regulations on this topic; it should. Many meritorious 

disability claims are denied—and courts affirm these denials—because of issues regarding 

the scope of the record on review in the court. For instance, Social Security Disability 

Insurance decisions, which are the focus of some of the proposed rules, are often crucial to 

proving disability claims. However, the Social Security Administration (SSA) takes 

considerable time in issuing its decisions, and SSA’s ruling often comes well after the final 

denial on appeal of a disability plan. This is true as well for other kinds of evidence. Even 

where it would be easy to do so, plan administrators often refuse to consider this type of 

evidence, choosing instead to shut the door on a meritorious claim. And plans often 

counterclaim against claimants to recover contractual offsets based on an SSA benefit. See, 

e.g., Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). Indeed in my experience it is 

not at all unusual for a claims administrator to expedite an appeal decision precisely to avoid 

having evidence of a pending SSDI decision make it into the claim file.

There is a clear solution to this that would track the Fifth Circuit’s en banc holding in 

Vega v. National Life Ins. Serv., Inc., 188 F.3d 287, 300 (5th Cir. 1999), where the court 

wrote:

We hold today that the administrative record consists of relevant information 

made available to the administrator prior to the complainant's filing of a 

lawsuit and in a manner that gives the administrator a fair opportunity to 

consider it. Thus, if the information in the doctors' affidavits had been 

presented to National Life before filing this lawsuit in time for their fair 

consideration, they could be treated as part of the record. Furthermore, in 

restricting the district court's review to evidence in the record, we are merely 

encouraging attorneys for claimants to make a good faith effort to resolve the 

claim with the administrator before filing suit in district court; we are not 

establishing a rule that will adversely affect the rights of claimants.
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

Page 7

In light of Vega’s holding, I recommend a rule that would require the plan administrator to 

accept and review evidence and treat it as part of the record, so long as it is sent in time for 

the administrator to consider the evidence before litigation is commenced.

The regulation as presented, requiring a claims administrator to meaningfully 

distinguish the views of treating physicians or other entities that are paying benefits, will be 

helpful. Administrators often ignore evidence that is favorable to the claimant. In my 

experience, if the administrator pays any attention at all to contrary opinions, that is 

addressed with boilerplate denial-letter verbiage having nothing to do with the respective 

claim. Because of this claimants cannot mount a much of a response. This is the antithesis of 

full and fair review. Sometimes courts don’t understand the difference between the type of 

explanation required by ERISA and this empty, meaningless boilerplate. Assuming that this 

regulation is intended to change plans’ reliance on this sort of explanation, or on wholesale 

failure to address contrary evidence, I am in favor of the regulation. 

Moreover the regulation requiring a discussion about the difference between the 

plan’s decision and awards made by other systems, such as Social Security, should provide 

for deference to these other (and almost always more impartial) decision-makers. The 

regulation could use the same language as regulatory settlement agreements between 

various state insurance commissioners and insurers such as UNUM. For example, in the 

regulatory settlement agreement UNUM was required to follow, this language was used:

The 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.

Including similar language in the proposed regulation would be help assure that plans give 

the appropriate weight to an award made by another entity.

II. Comments on Technical Matters in the Proposed Regulations

A. Effective Date of Proposed Regulation

The beneficial holding in Abram v. Cargill, 395 F.3d 882 (8th Cir. 2005), was 

seriously undermined when the Eighth Circuit later concluded that Abram was grounded in 

the pre-2000 version of the claims regulations, and would not apply to cases decided under 

post-2000 regulations. See Midgett Washington Group Int’l LTD Plan, 561 F.3d 887, 894–

96 (8th Cir. 2009). To avoid this sort of problem occurring again, the following suggested 
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

Page 8

language should be added to the proposed regulations:

The regulations shall apply to all claims pending with the plan fiduciary or 

administrator on or after the date that the regulations go into effect. 

B. Notice of Right to Request Relevant Documents

The regulation concerning notice of the right to request relevant documents 

contained in 29 CFR § 2560.503-1(g)(1)(vii)(C) [proposed regulation] is an improvement 

since it was formerly missing from the regulation. However, it would be more helpful to 

claimants to use the words “claim file,” which is plain language and is consistent with the 

amendment at 29 CFR § 2560.503-1(h)(4)(i) [proposed regulation]. Attorneys understand 

the language of (g)(1)(vii)(C), but lay persons, who are the actual participants and often not 

represented, may not realize what rights are given here. 

Accordingly, I suggest the following amendment to the proposed regulation (added 

language is underlined and bolded):

29 CFR § 2560.503-1(g)(1)(vii)(C) [proposed regulation]

A statement that the claimant is entitled to receive, upon request and free of 

charge, reasonable access to the claimant’s claim file, including copies of 

all documents, records, and other information relevant to the claimant's claim 

for benefits. Whether a document, record, or other information is relevant to a 

claim for benefits shall be determined by reference to paragraph (m)(8) of this 

section.

C. Deemed Exhaustion Drafting Issue

This regulation should be edited to clarify that the deemed exhausted provision 

applies to both claims and appeals, not just “claims.” Certainly, if there is a violation of the 

regulations, the claimant should be able to invoke judicial remedies regardless of whether 

the violation occurs in the “claim” or the “appeal” stage. I suggest the following clarifying 

language (added language is bolded and underlined):

29 CFR § 2560.503-1(l)(2)(i) [proposed regulation]

In the case of a claim for disability benefits, if the plan fails to strictly adhere to 

all the requirements of this section with respect to a claim or appeal,

D. Deemed Exhaustion of Claims and Appeals Processes

I am pleased that DOL has undertaken to clarify the consequences that will result 

when the plan does not comply with the regulations’ procedural requirements. DOL has 
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

Page 9

wisely separated the consequences into two categories, i.e. for serious violations and for 

minor violations. I see four areas that could be improved in the proposal.

First: the applicable standard of judicial review requires clarification because of a 

potential conflict between language in the preamble and the proposed regulation. The 

preamble says: “in those situations when the minor errors exception does not apply, the 

proposal clarifies that the reviewing tribunal should not give special deference to the plan's 

decision, but rather should review the dispute de novo.” The emphasized language clearly 

contemplates that a court should exercise de novo review. However, the regulation itself 

says: “if a claimant chooses to pursue remedies under section 502(a) of ERISA under such 

circumstances, the claim or appeal is deemed denied on review without the exercise of 

discretion by an appropriate fiduciary.” 29 CFR § 2560.503-1(l)(2)(i) [proposed 

regulation]. I anticipate that plans will argue that this emphasized language does not go so 

far as to require a court to exercise de novo review. For example, this language could mean 

simply that the plan did not make a decision and another plan review would be ordered,

rather than de novo judicial review. To avoid a potential ambiguity on this point, I suggest 

the following amendment to the proposed regulation (added language is bolded and 

underlined):

29 CFR § 2560.503-1(l)(2)(i) [proposed regulation]

if a claimant chooses to pursue remedies under section 502(a) of ERISA 

under such circumstances, the claim or appeal is deemed denied on review 

without the exercise of discretion by an appropriate fiduciary, and the 

reviewing tribunal should not give special deference to the plan's 

decision, but rather shall review the dispute de novo.

Second: the portion of the proposed regulation concerning refiled appeals requires 

clarification. The claimant whose appeal is refiled may need to supplement the record for the 

refiled appeal, since it is likely that his attempt to communicate with the plan was 

compromised. I suggest amending the regulation to require the plan to give the claimant 

notice of his or her right to supplement the appeal. 

Third: the phrase “reasonable time” could cause confusion. Ten days seems 

reasonable. 

Fourth: for the same reasons described above with regard to the appropriate standard 

of judicial review, it would be beneficial to specify the standard of judicial review is de novo 

when the court does not remand. I suggest the following amendment (added language is 

bolded and underlined, deleted language shown by strikeout):

29 CFR § 2560-503-1(l)(2)(ii) [proposed regulation]

If a court rejects the claimant’s request for immediate review under paragraph 

(l)(2)(i) of this section on the basis that the plan met the standards for the 
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

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exception under this paragraph (l)(2)(ii), the claim shall be considered as refiled on appeal upon the plan’s receipt of the decision of the court. Within a 

reasonable time ten days after the receipt of the decision, the plan shall 

provide the claimant with notice of the resubmission and notify the 

claimant of the right to supplement the appeal if she chooses. If the 

court accepts the claimant’s request for immediate review, the 

court will retain jurisdiction and decide the case applying de novo 

review.

E. Right to Claim File and Meaning of “Testimony”

The new regulations’ references to “testimony” are unclear.

In the preamble, DOL has stated: “the proposal would also grant the claimant a right 

to respond to the new information by explicitly providing claimants the right to present 

evidence and written testimony as part of the claims and appeals process.” Note the 

emphasized language refers to “written testimony.” But the actual proposed regulation uses 

this phrasing: “[the processes for disability claims must] allow a claimant to review the claim 

file and to present evidence and testimony as part of the disability benefit claims and 

appeals process.” 29 CFR § 2560.503-1(h)(4)(i) [proposed regulation]. Here the regulation 

imposes no limitation to “written” testimony.

By comparison, the current regulation uses the following language: “[the process 

must] provide claimants the opportunity to submit written comments, documents, records, 

and other information relating to the claim for benefits.” 29 CFR § 2560.503-

1(h)(ii)(2)[current regulation].

Thus, the preamble and the proposed regulation are inconsistent; the preamble 

specifies “written testimony” and the proposed regulation just says “testimony.” This could 

lead to costly disagreements over whether the regulation contemplates actual live testimony, 

i.e. a hearing. Under the current regulation, claimants sometime submit testimony in the 

form of an audio or video CD. This is particularly useful in cases where the claimant cannot 

read or write so that a written statement is impossible. It is also helpful in those cases where 

actually seeing the claimant might be important. I am concerned that the reference to 

“written testimony” in the preamble might give plans ammunition to unduly disallow any 

audio or video submissions. If this were the interpretation given to the language in the 

proposed regulation, it would actually make things worse for claimants than they are now. 

Further, the proposed regulation’s verbiage, i.e. “evidence and testimony” might be 

interpreted to impose courtroom evidentiary standards for claimants submitting proof of 

their claim—something that is not normally applied in the ERISA context. Plans are in a 

position to observe rules of evidence, as they have in-house counsel and other legal 

resources at the ready. But claimants, who often represent themselves, are not equipped to 

understand, much less apply, the standards potentially suggested by the phrase “evidence 

and testimony.” The agency should make clear that it is not curtailing or narrowing the types 
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

Page 11

of information that claimants may submit to the administrator. 

III.Other Issues of Concern with the Regulations

A. Adverse Benefit Determination to Include Rescission

The proposed language 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. For instance, a plan may approve benefits but may invoke a 

temporal limitation that exists in the plan, such as a mental illness limitation. Many insurers 

defer the right to appeal until the date that benefits end, which imposes significant economic 

hardship on claimants who may then be deprived of benefits for several months while 

appeals proceed. The claimant should have the option to immediately appeal that 

determination to avoid the economic hardship in the future.

B. Disclosure of Internal Rules etc.

DOL’s proposed regulation regarding disclosure of internal rules or criteria used to 

make a disability benefit decision, 29 CFR § 2560.503-1(g)(1)(vii)(B) [proposed regulation], 

is helpful because internal rules, guidelines, protocols, standards, claims manuals, and 

similar materials often create hidden plan terms that the claimant is unable to learn of or 

discover in order to address them in the appeal. I am currently litigating a case where a 

third-party claims administrator applied internal criteria to my client’s claim that were 

materially different (and more onerous) than the criteria imposed by the plan itself; this 

ought not to occur at all, much less be an issue requiring judicial scrutiny. Moreover, as is 

true in the healthcare context, plans sometimes argue that internal criteria are confidential 

or proprietary. But keeping the rules that are used to administer a plan a secret contravenes 

a most basic premise of ERISA: benefits must be administered “in accordance with the 

documents and instruments governing the plan.” 29 USC § 1104. In addition, much litigation 

would be avoided if the claimant could know what criteria he needed to meet in an appeal

See, e.g., Cook v. New York Times Co. Long-Term Disability Plan, 2004 WL 203111, *10 

(S.D.N.Y.); Craig v. Pillsbury, 458 F.3d 748, 754 (8th Cir. 2006) (decrying the use of 

“double-secret” plan terms); Samples v. First Health Group Corp., 631 F.Supp.2d 1174, 1183 

(D.Ariz. 2007). Given that the regulations require adverse benefit determinations to include 

the reasons for the denial and the applicable plan terms, this additional requirement should 

not be onerous and would promote the dialogue between claimant and plan that ERISA 

contemplates. Booten v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 1463 (9th Cir. 1997)(“in 

simple English, what this regulation calls for is a meaningful dialogue between ERISA plan 

administrators and their beneficiaries.”).
Honorable Phyllis C. Borzi

Re: Proposed amendments to ERISA disability claims regulations

January 6, 2016

Page 12

C. Venue Selection Provisions Inconsistent with ERISA

There is a serious issue that is not addressed in the proposed regulations that should 

be considered. The regulations should provide that ERISA’s broad venue provision cannot 

be thwarted by contrary plan or policy provisions. Some courts have permitted plans to draft 

around ERISA’s venue requirements. At a minimum, the present state of the law means that 

there will continue to be litigation on this question before the merits of a dispute can even be 

reached. Venue selection clauses are mostly used to disadvantage ERISA claimants in 

litigation or create barriers to their statutory right to sue. McQuennie v. Carpenters Local 

Union 429, 2015 WL 6872444, *5 (D. Conn.)(pro se litigant allowed to sue in home state of 

Connecticut because he could not afford to travel to California); but see Turner v. Sedgwick 

Claims Mgmt. Servs., 2015 WL 225495 (N.D. Ala.). In Turner the court encouraged the 

agency to regulate in this area as opposed to filing amicus briefs in some cases and not 

others. Id. at 21 (“[a]lso underwhelming is that the Secretary has expressed his view only 

rarely, through the ad hoc, highly informal means of amicus briefs in private litigation, 

rather than in a regulation, an enforcement setting, or even in a published statement of 

policy or guidance.”). I am concerned that other courts will take this same point of view, 

which would harm disability claimants.

Accordingly, I recommend that DOL propose a regulation requiring that in the final 

denial letter plans not only notify claimants of their right to sue and the date of the 

expiration of any internal limitations period, but also of the statutory ERISA venue 

provision. 

D. Notice of Right to Retain Counsel for Appeal

Often ERISA claimants who have been wrongly denied disability benefits don’t realize 

that they have the right to be represented in the administrative appeal process. Not knowing 

what evidence would have proven their claim to the plan administrator, and limited by the 

administrator or the court in submitting any new evidence in support of their claims in later 

litigation, they have often squandered their last, best opportunity to prove a meritorious 

claim. I propose that the DOL adopt a regulation that benefit denials must advise claimants 

of their right to hire an attorney to represent them in the appeal phase. The Social Security 

Administration does this; there is no reason to hide this right from ERISA claimants.

Thank you for the opportunity to comment on these very important regulations.

 

Very truly yours,

Richard Johnston

RJ/tlv