January 18, 2016

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: 

I am writing to provide comments on the proposed new regulations governing 

ERISA claims as it relates to disability benefit plans. Much of my work involves 

representing claimants in ERISA-governed disability benefit disputes. Dozens of 

claimants have come to me for representation after being denied benefits they need. 

These denials occur merely because the claimant has not mastered the technicalities 

and gamesmanship often encountered in the administration of disability benefit plans. I 

find this particularly true of those underwritten and administered by insurance 

companies, and I offer my comments from the perspective of plan participants.

My comments are not exhaustive, and I have limited them to those that I believe 

are the most important issues for the DOL to address as it finalizes the proposed 

regulations. 

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 & Accident 

Ins Co., 134 U.S. 604 (2013). This area is a crucial one for regulation; Claims 

administrators offer confusing interpretations of plan-based limitations provisions that 

are themselves ambiguous, such as those that accrued “when proof of claim is 

required.” This makes it difficult for the lay person to understand when their rights 

accrue. The DOL can assist by creating standards for what is a reasonable plan-based 

limitations provision in the same way that the DOL used its regulatory power to create 

timing deadlines for the claims process in prior versions of the regulations. Heimeshoff
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January 18, 2016

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left open the possibility that an internal limitations period could run before the appeals 

process is complete, even where exhaustion is mandatory. The DOL is in a good 

position to clarify that such an approach would violate full and fair review required by 29 

U.S.C. §1133. 

Contractual limitations periods are plan terms. The claimant should be entitled to 

receive notice about the limitations period from the plan, as is the case with other plan 

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

administrators are in the best position to know the date of the expiration of the 

limitations period. The plan administrator should not be hiding the ball from claimants if 

it is functioning as a true fiduciary. 

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, No. 4:12CV53 HEA, 2014 WL 562557, at *4 (E.D. Mo. Feb. 13, 2014), aff'd 

sub nom. Munro-Kienstra v. Carpenters' Health & Welfare Trust Fund of St. Louis, 790 

F.3d 799 (8th Cir. 2015)(“[a] description of the plan’s review procedures and the time 

limits applicable to such procedures, including a statement of the claimant's right to 

bring a civil action under section 502(a) of [ERISA] following an adverse benefit 

determination on review.” 29 C.F.R. § 2560.503–1(g)(iv)). Here, the DOL should do 

more than interpret its own rules; it should re-write them to remove any ambiguity. 

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. It should also include a definition of what is a reasonable limitations 

period. This amendment would eliminate litigation on when claims “accrue” and 

preclude a limitations period that starts before the internal claim and appeals process is 

complete.

The amendment should require 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. This would 

give the claimant sufficient time to obtain legal advice and have the claim file reviewed 

by the attorney. These amendments could well lead to a standardization of internal 

limitations periods that would be salutary for both claimants and plan administrators and 

eliminate one area of litigation. 

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

follows and renumbering accordingly (added language bolded and italicized):
Assistant Secretary Borzi

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January 18, 2016

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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

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).
Assistant Secretary Borzi

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January 18, 2016

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Timing of Right to Respond to New Evidence or Rationales

The DOL clearly wishes to address a problem described by the court in Abram v. 

Cargill, 395 F.3d 882, 886 (8th Cir. 2005), “[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.” In other words, claimants 

should not be ambushed with new rationales or evidence during the administrative 

without any opportunity to respond.

I wholly endorse the proposed changes which offer some assurance that a 

claimant can contribute his or her relevant evidence to the record that the court will 

review. 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 

effectively provides the claimant the right of rebuttal in litigation. 

This extra opportunity to submit proof might extend the time without benefit 

payments. However, the reality is that ERISA disability benefits claimants have every 

incentive to conclude the administrative process as expeditiously as possible. They 

need their benefits to meet their day to day living expenses and are unlikely to prolong 

the process unnecessarily. To address this concern, claimants should have at least 60 

days to respond to new evidence or rationales provided by the plan on appeal. Any 

shorter period will not provide a claimant with sufficient time to hire experts, such as 

physicians, psychologists or vocational consultants, to develop the evidence needed to 

respond to new evidence or rationales by the plan. A claimant who can submit 

responsive evidence in a shorter time frame should be able to notify the plan that the 

response is complete and that the review may continue. 

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 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 

(added language bolded and italicized):

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

Opportunity to Supplement the Record

A regulation should be adopted permitting claimants to supplement the record

with the plan administrator prior to suit being filed. Many meritorious disability claims 

are denied, and the courts affirm these determinations 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 time in issuing its decisions, and the SSA’s ruling may sometimes come after the 

final denial on appeal of the disability plan, and plan administrators often refuse to 

consider this type of evidence, choosing instead to shut the door on a meritorious claim, 

even though, if litigation is filed, the plan will seek to recover the offset that is provided 

by the SSA benefit. Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).

Sometimes a claims administrator may rush an appeal decision through simply to 

avoid the claimant being awarded SSDI and having that evidence in the claims file. The 

DOL should adopt a regulation that includes in the administrative record relevant 

information made available to the plan administrator in sufficient time to give the 

administrator a fair opportunity to consider it. See Vega v. National Life Ins. Serv., Inc.,

188 F.3d 287, 300 (5th Cir. 1999). Such a regulation will encourage attorneys 

representing claimants to make a good faith effort to resolve the claim before filing suit 

in district court. I have represented claimants who are too sick to submit relevant 
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medical information before the end of an appeal period; where the plan has accepted 

and considered such evidence, the deserving claimant has been able to resume needed 

benefits without burdening the courts.

The Relationship Between the Decision and SSDI

The regulation requiring a discussion about the difference between the plan’s 

decision and awards made by other systems, such as Social Security, should be 

expanded to set forth a deferential review requirement. The regulation could utilize the 

same language as the regulatory settlement agreements that have been used by many 

state insurance commissioners in response to concerns about disability claims 

processes used by 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 helpful to assure that 

plans give the appropriate weight to an award made by another entity. An easy to 

implement regulation, such as that proposed, would also likely reduce litigation on this 

issue.

Notice of Right to Request Relevant Documents

The regulation concerning notice of the right to request relevant documents 

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

improvement since it clarifies a right formerly missing from the regulation. It would be 

helpful to claimants, who are plan participants and not represented by counsel, 

however, to use the more understandable word “claim file,” which is plain language and 

is consistent with the amendment at 29 C.F.R. §2560.503-1(h)(4)(i)[proposed 

regulation]. 

The following suggested amendment to the proposed regulation (added language 

bolded and italicized) addresses this concern:

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.

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.” Presumably, if there is a violation 

of the regulations, the claimant can seek review regardless of whether the claim is in the 

“claim” or the “appeal” stage. The following clarifying language is suggested (added 

language bolded and italicized):

29 C.F.R. §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,

Deemed Exhaustion of Claims and Appeals Processes

The DOL properly has undertaken to clarify the consequences resulting from the 

plan’s failure to comply with the procedural requirements of the regulations. This is 

done by separating the consequences into two categories, i.e. for serious violations and 

for minor violations. I would suggest some areas of improvement. 

First, the regulations should be clarified to explicitly state that when the fiduciary 

administering the plan violates the regulations, the standard of judicial review should be 

de novo, and a court should not give special deference to the plan’s decision. To avoid 

a potential ambiguity on this point, I suggest the following amendment to the proposed 

regulation (added language bolded and italicized): 

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

decision, but rather shall review the dispute de novo.

Second, the proposed regulation should be clarified to require the plan to give 

the claimant notice of his or her right to supplement the appeal. 

Third, to avoid any confusion regarding how to interpret the phrase “reasonable 

time,” the regulation should specify a reasonable time, such as ten (10) days. 

Finally, 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. This is for the same reason under the first point, above I suggest the following 

amendment (added language bolded and italicized, deleted language is stricken):

29 C.F.R. 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 exception under this paragraph (l)(2)(ii), the claim shall 

be considered as re-filed on appeal upon the plan’s receipt of the decision 

of the court. Within a reasonable time ten (10) 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 the claimant 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.

Disclosure of Internal Rules

The proposed regulation regarding disclosure of the internal rules or criteria used 

to make a disability benefit decision, 29 C.F.R. §2560.503-1(g)(1)(vii)(B)[proposed 

regulation], helps. 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.

Plans sometimes argue that internal criteria are confidential or proprietary. But 

keeping the rules that are used to administer a plan secret is inconsistent with the most 

basic premise of ERISA. Benefits must be administered “in accordance with the 

documents and instruments governing the plan.” 29 U.S.C. §1104. In addition, much 

litigation would be avoided if the claimant could know what criteria he or she needed to 
Assistant Secretary Borzi 

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January 18, 2016 

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meet in an appeal. See e.g. Cook v. New York Times Co. Long-Term Disability Plan, 

2004 WL 203111, at *10 (S.D.N.Y. Jan. 30, 2004); 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 (9th Cir. 2007). 

Given that the regulations require adverse benefit determinations to include the 

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

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.”).

Notice of Right to Retain Counsel for Appeal 

Often ERISA claimants who have been wrongly denied disability benefits do not 

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. The DOL should adopt a regulation that benefit denials must 

advise claimants of their right to hire an attorney to represent them in the appeal phase. 

This is a practice followed by the Social Security Administration. There is no reason to 

hide this right from claimants. 

Thank you for the opportunity to comment on the proposed regulations. 

 Very truly yours, 

 Lawrence R. Chaban 

LRC/cd