From: Lisa Serebin [mailto:lisa@creitzserebin.com] 

Sent: Monday, December 11, 2017 9:25 PM

To: EBSA, E-ORI - EBSA

Subject: Claims Procedure Regulations for Plans Providing Disability Benefits; RIN No. 1210-AB39 

Dear Deputy Secretary Hauser:

I am a former DOL attorney, now in private practice. I have practiced ERISA and employee 

benefits law for nearly 30 years. I represent many individual plan participants in benefit disputes, 

including a large number of disability benefit claimants. I previously wrote to you to oppose 

further delay in the implementation of the DOL’s Final ERISA Claim Regulation at 81 Fed. Reg. 

92316. I am writing to you now to oppose further modification or delay of the regulations.

The regulations were adopted after an extensive notice and comment period as required under the 

rulemaking provisions of the Administrative Procedure Act of 1946, 5 U.S.C. § 551 et seq. The 

insurance industry and plan sponsors who are now attempting to delay implementation of the 

final regulation had ample opportunity during the rulemaking process to provide their input. Not 

only has the DOL already carefully considered their input, the DOL has also already carefully 

considered the cost of implementing the regulations and determined that the cost would be 

minimal to the insurance industry.

There is simply no basis for the disability insurance industry’s assertion that the DOL’s 

regulation will increase the cost of plan administration, thereby driving up premiums and 

decreasing disability coverage for employees. The disability insurance industry trots out this 

tired argument every time the DOL attempts to level the playing field between disability 

claimants and the insurers. The DOL recognized that the ERISA claims process is skewed in 

favor of insurers when it issued the final regulation, noting that the regulation merely serves to 

strengthen protections for disabled workers by promoting fairness and accuracy in the claims 

review process. The explosion in federal court litigation over disability benefits has been driven 

by the lack of regulation, not the opposite, as claimants must avail themselves of the courts in 

order to obtain a full and fair hearing of their benefit claims – which is a plan participant’s right 

under ERISA.

The fact that the regulation will not increase costs, thereby decreasing overall disability 

coverage, is borne out by the DOL’s own data gathered by BLS. BLS’s data (found here: 

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

1999 and 2014, there was an increase, not a decrease, in access and participation in disability 

benefit plans, despite the DOL’s issuance and enforcement of the 2000 disability claims 

regulations. It is notable that during this period of time, two of the major players in the disability 

insurance field – UNUM and CIGNA – were both cited and fined by state insurance 

commissioners for their poor claims handling processes. As a result, both UNUM and CIGNA 

were subjected to remedial provisions of regulatory settlement agreements. Yet BLS’s statistics 

still indicate an uptick in access and participation in disability benefit plans during this period of 

time.
There is no evidence to indicate that the regulations would increase the cost of disability plan 

administration. Yet even if there is an incremental cost increase, the DOL cannot lose sight of the 

fact that ERISA exists to protect benefit plan participants, and any incremental cost increase in 

plan administration is outweighed by the benefit the regulations provide to plan participants. The 

DOL’s stated position that the purpose of the regulations is to ensure that claims are fairly 

adjudicated and to prevent unnecessary financial and emotional hardship cannot be abandoned, 

especially given the fact that the administrative process provided under ERISA already 

disadvantages plan participants whose benefits are denied: there is no right to a jury trial under 

ERISA, the evidentiary record in an ERISA case is limited almost entirely to the administrative 

record assembled by the insurer; courts frequently adopt a deferential standard of review to 

benefit denials; and there are no punitive remedies to deter unfair and self-serving conduct by 

insurance companies. When claimants come to my office for help in appealing their benefit 

denials, they are shocked to discover that there is virtually no incentive for the fair and just 

adjudication of their disability claims because of ERISA’s lack of remedies. Even the courts 

recognize that because of ERISA’s limitations on remedies, insurers can act with impunity in 

denying benefits because claimants have such limited recourse. (“The insurance industry found it 

could largely immunize itself from suit due to the Employee Retirement Income Security Act 

(“ERISA”). United States v. Aegerion Pharmaceuticals, Inc., 2017 WL 5586728, at *7 (D. Mass. 

November 20, 2017)).

There is no reasonable justification for the further delay and implementation of the regulations. 

The changes to the claims procedure regulations were long overdue and are a necessary step in 

the right direction towards providing disabled participants and beneficiaries with adequate due 

process in claims administration.

Sincerely,

Lisa Serebin

Creitz & Serebin LLP

100 Pine Street, Suite 1250

San Francisco, CA 94111

ph : 415.466.3090

fax: 415.513.4475

lisa@creitzserebin.com

http://www.creitzserebin.com

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