Law	Office	of	Patrick	Mause,	PLLC 				290	North	Meyer	Avenue

					Tucson,	AZ	85701

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January 11, 2016

Via Electronic Mail

(e-ORI@dol.gov)

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:

For the past ten and a half years, I have been handling ERISA short- and long-term disability 

claims; initially as a defense lawyer and for the past four and a half years representing 

claimants. Because my practice is almost exclusively in the area of ERISA-governed STD and 

LTD claims, I wish to comment on the proposed amendments to the regulations governing STD 

and LTD claims procedures. 

1. Notice Regarding Applicable Statute of Limitations.

Since Heimeshoff v. Hartford Life & Accid. Ins Co., 134 U.S. 604 (2013), there has been much 

confusion regarding when an applicable statute of limitations may run. Certainly, most STD or 

LTD claimants — who are not working, not receiving income (because their claims were 

denied), are likely suffering severe medical or psychological conditions, and are facing the 

potential of financial ruin — are not aware of Heimeshoff and the issues it raises. When I meet 

with potential clients, they typically are not aware of the applicable plan statutes of limitations 

and likely either do not have, or have not read, the benefit plan. In some cases, the claimants’ 

deadlines can be repressively short; sometimes only a few months. 

ERISA claim administrators do not hesitate to cite or quote plan terms favorable to them when 

denying a claim. There is no burden to them to likewise notify claimants of additional 

information that would have an adverse effect on their claim, such as when any applicable 

deadlines or statutes of limitations would run. Moreover, notifying claimants of such deadlines 

is consistent with the administrators’ fiduciary obligations to act in the claimants’ interests. This 

is especially true since Heimeshoff leaves open the possibility that a statute of limitation could 
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run even before the claimant has exhausted his or her administrative remedies, or shortly 

thereafter. 

For example, some plans mandate that claimants go through a second level appeal. They might 

also have a short statute of limitations for filing claims; say one or two years. Thus, if the 

administrator and claimant take the maximum time period for submitting information and 

deciding a claim, the statute of limitations could run before the claimant could exhaust his or 

her administrative, or could run within days or weeks of a final decision. Failing to apprise the 

claimant of his or her rights and the applicable deadlines can lead to legally harsh and 

personally devastating consequences. A claimant who lost her home shouldn’t be barred from 

exercising her ERISA rights simply because the fiduciary administering her claim set short 

deadlines and failed to apprise her of that information. As the DOL itself discusses in the 

proposed regulations’ preamble, plan fiduciaries know the date any applicable statutes of 

limitation would expire. As fiduciaries under ERISA, they should not be allowed to keep that 

information from sick, potentially destitute claimants and then spring it on them later. 

The amended language to 29 C.F.R. §2560.503-1(j) should require the claims administrator to 

advise the claimant of the date any deadlines or statutes of limitations would expire. This would 

resolve the difficulties of determining when a claim accrues and address the likelihood that 

unsophisticated, disabled claimants would not be aware of limitations buried in plan documents 

they may never have seen. The proposed regulation also makes clear that claimants will have at 

least one year after the completion of the plan’s appeals process to file suit. It is fundamentally 

unfair to bar a claimant’s “ready access to the federal courts,” 29 U.S.C. § 1001(b), where the 

plan limitation expires before or shortly after the administrative appeal process is exhausted. 

The alternative, of course, would be clogging the courts with potentially moot protect-thestatute-of-limitations lawsuits filed before the administrator makes a final decision. 

Thus, I propose amending the proposed regulation by adding the language indicated in bold and 

underlined: 

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 
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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

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).

2. Notice of Right to Request “Claim File”.

The regulation regarding a claimant’s right to request relevant documents, 29 C.F.R. 

§2560.503-1(g)(1)(vii)(C) [proposed regulation], would more clearly advise claimants of their 

rights by using the words “claim file” rather than more technical terms a lay person is not likely 

to understand. Adding “claim file” is also consistent with the amendment to 29 C.F.R. 

§2560.503-1(h)(4)(i) [proposed regulation]. Thus, I suggest modifying the proposed regulation 

as follows, with the added language in bold and underlined:

29 C.F.R. §2560.503-1(g)(1)(vii)(C)[proposed regulation]
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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.

3. The Regulations Should Provide That Claims That Are Deemed Exhausted Should Be 

Reviewed De Novo.

When a claimant does not comply with his or her ERISA deadlines, such as filing suit after an 

applicable plan statute of limitations has passed, the claim is barred and the claimant is likely 

out of luck. On the other hand, when claim administrators do not comply with their deadlines —

such as their deadlines to make a decision on an appealed claim — they at most risk a “deemed 

exhausted” lawsuit subject to the same plan terms including, in many cases, discretionary 

review. This is fundamentally unfair. ERISA administrators should not be permitted to use 

deadlines as both a shield and a sword. 

Thus, I recommend amending the regulations to provide that “deemed exhausted” claims are to 

be reviewed de novo. In the absence of such a regulation, and given that noncompliant 

administrators then quibble about whether the violation was de minimis or significant, there is 

no clarity. If claimants do not meet their ERISA-imposed deadlines, there is a bright-line rule: 

No claim for you. There should likewise be a bright-line rule for administrators: If the 

administrator does not comply with its ERISA-imposed deadlines, it may not benefit from 

discretionary review. Thus, I propose amending the regulations as follows:

29 C.F.R. 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 deference to the plan’s decision but shall review the dispute de novo.

4. Forum Selection Clauses Should Be Deemed Inconsistent With ERISA And Therefore 

Unenforceable. 

Congress’ purpose in enacting ERISA was to protect “the well-being and security of millions of 

employees.” 29 U.S.C. § 1001(a). Congress therefore provided that “it is desirable in the 

interests of employees and their beneficiaries” that “safeguards be provided with respect to the 
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establishment, operation, and administration of such plans.” Id. To ratify its intent and reflect 

the public policy embodied in the statute, Congress then included multiple employee-protective 

elements in the statute; including setting standards of conduct for fiduciaries and by providing 

employees with “ready access to the Federal courts.” 29 U.S.C. §1001(b). 

To further protect employees, Congress permitted plan beneficiaries to bring suit “to recover 

benefits due to him under the terms of his plan” or “to enforce his rights under the terms of the 

plan.” 29 U.S.C. § 1132(a)(1)(B). Then, to facilitate this employee-protective term, Congress 

authorized claimants to bring suit “where the plan is administered, where the breach took place, 

or where a defendant resides or may be found.” 29 U.S.C. § 1132(e)(2) (emphasis added). 

Congress also required each fiduciary to “discharge his duties with respect to a plan solely in 

the interest of the participants and beneficiaries” and “in accordance with the documents and 

instruments governing the plan insofar as such documents and instruments are consistent with 

the provisions of this subchapter and subchapter III of this chapter.” 29 U.S.C. § 1104(a)(1)(D). 

Under ERISA, therefore, plan terms that interfere with claimants’ “ready access to the Federal 

courts” or that violate the fiduciaries’ obligations to act in beneficiaries’ interests are 

unenforceable. 

Some disability plans include forum- or venue-selection clauses, specifying that a claimant —

regardless of where he or she may live and regardless of his or her circumstances — may only 

file suit in a specific district court. This unfairly impedes claimants’ “ready access to the Federal 

courts” and interferes with the claimant’s right to exercise her Congressionally-granted right to 

bring suit “...where the breach took place...” Because forum- or venue-selection clauses 

interfere with claimants’ rights, the EBSA should invalidate them. 

First, disability plans’ ability to enforce forum-selection clauses results not from any intent of 

Congress, but from the statute’s inartful drafting. If we reword 29 U.S.C. § 1132(e)(2)’s venue 

provision to omit Congress’ passive voice, it would read: “A beneficiary may bring suit under 

this subchapter in the district where the plan is administered, where the breach took place, or 

where defendant resides or may be found.” (emphasis added). Congress’ intent should be clear: 

ERISA beneficiaries my file suit where the breach occurred, in their home forum. 

Second, forum-selection clauses have a very real chilling effect on claimants’ ability to protect 

their ERISA rights. As an attorney, filing suit in a foreign jurisdiction due to a forum-selection 

clause is burdensome and expensive. Due to my lack of familiarity with foreign jurisdictions’ 

practices and local rules, I believe it is prudent to retain local counsel. This not only requires 

finding and retaining capable local counsel familiar with ERISA, but also creates economic 

disincentives for both me and my client. Even something as simple as appearing pro hac vice
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increases costs as those fees can be several hundred dollars. The disincentive to handle cases 

with a foreign forum-selection clause is particularly salient in cases that have lower claim 

values. Thus, forum- or venue-selection clauses not only interfere with all claimants’ “ready 

access to the Federal courts,” but they unfairly prejudice claimants who did not earn much 

money, leading to a lower claim value, and unfairly harms people who may most need access to 

the courts to protect their benefits. 

Third, forum-selection clauses likely prevent most disabled claimants from attending the 

proceedings that affect their futures. Recall, a disability claimant involved in a lawsuit had his 

or her benefits denied. He or she may be destitute, especially after going through a months-long 

administrative exhaustion before filing suit. Not only may the claimant be unable to afford 

expensive interstate travel, he or she may be physically or psychologically incapable of 

traveling and may be homeless or living off the kindness of others. Such a claimant would 

simply be precluded from participating in his or her own case. Forum-selection clauses may 

therefore effectively bar claimants from accessing the courts, violating Congress’ intent. 

Fourth, I have personally met with potential clients whose plan I knew was subject to a forum 

selection clause. When meeting with such potential clients, I believe I am obligated to inform 

them of the plan’s forum selection clause and the hurdles such a clause would create. I have 

personally seen potential clients go from hopeful and optimistic about their claim to feeling 

hopeless at the huge burden they would have to overcome to pursue their case in a foreign 

jurisdiction. 

Fifth, I believe that plan administrators that include forum selection clauses in their disability 

plans do so knowing it will likely decrease claim incidence. There is no doubt in my mind that 

if the DOL investigated the motive and effect of such clauses (and I strongly encourage it do 

so), it would learn that ERISA fiduciaries not only intend that such clauses work exclusively to 

their benefit, including by reducing claim or lawsuit incidence, but that the clauses do indeed 

have that effect. This is a clear violation of Congress’ intent and the administrators’ fiduciary 

obligations and should not be permitted. 

Thus, I recommend that DOL propose a regulation requiring barring the use of venue- or forumselection clauses in disability plans. 

Sincerely, 

/s/ Patrick W. Mause