1010 Grayson Street, Suite Three

Berkeley CA 94710

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bkim@bkkllp.com

www.bkkllp.com

January 19, 2016

By Email (e-ORI@dol.gov) and Electronic Submission (http://www.regulations/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:

I write to provide comments on the Department of Labor’s (“DOL”) proposed 

regulations for amending the claims procedure regulations applicable to disability benefit 

plans under the Employee Retirement Income Security Act of 1974 (“ERISA”). I am 

keenly interested in the content of these proposed regulations because I am an attorney 

whose practice for the past 10 years has been primarily focused on the representation of 

claimants in ERISA-governed disability benefit disputes. Moreover, a key focus of my 

law firm, Bolt Keenley Kim LLP, is the representation of insurance policyholders, 

including disability benefit claimants, in pre-litigation internal appeals and litigation under 

ERISA. The issues addressed by the proposed regulations are issues that I must deal with 

on a daily basis representing claimants in ERISA matters. Below are my comments to the 

proposed regulations, with proposed revisions to the proposed regulations highlighted and 

underlined.

I. The Regulations Should Require the Claims 

Administrator to Inform Claimants of the Date(s) When 

Any Applicable Limitations Period Runs

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 & Acc. Ins 

Co., 134 U.S. 604 (2013). This is a crucial area for regulation as the Heimeshoff decision
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has created confusion and much litigation, due to the uncertainty of the scope of the 

Heimeshoff decision. Heimeshoff held that “[a]bsent a controlling statute to the contrary, 

a participant and a plan may agree by contract to a particular limitations period, even one 

that starts to run before the cause of action accrues, as long as the period is reasonable.”

This holding from Heimeshoff is counterintuitive and places unreasonable burdens 

on claimants to decipher the limitations periods crafted by claim administrators. As should 

be self-evident, no claimant ever considers that a deadline to file suit to recover benefits 

would be running while his or her appeal is pending. 

The Heimeshoff decision has created much confusion because the Supreme Court 

failed to appreciate the inherently confusing nature of the boilerplate “proof of loss” 

language inserted into most group disability plans by insurers. For example, Unum Life 

Insurance Company of America inserts the following two provisions relating to the 

contractual statute of limitations into many of its group policies:

No action at law or in equity shall be brought to recover on this policy 

prior to the expiration of 60 days after written proof of loss has been 

furnished in accordance with the requirements of this policy. No action 

shall be brought after the expiration of three years after the time written 

proof of loss is required to be furnished.

. . .

Written proof of loss must be furnished . . . in the case of a claim for loss 

for which this policy provides any periodic payment contingent upon 

continuing loss, within 90 days after the termination of the period for 

which the insurer is liable and, in the case of claim for any other loss, 

within 90 days after the date of such loss.

(emphasis added). A layperson would assume the “the period for which the insurer is 

liable” lasts as long as his or her disability, yet surprisingly some courts deny this argument

and common sense. See, e.g., McArthur v. Unum Life Ins. Co. of Am., 45 F. Supp. 3d 1303, 

1307 (N.D. Ala. 2014); Kirkland v. Guardian Life Ins. Co. of Am., No. 3:06–cv–107, 2008 

WL 1990340, at *10–11 (M.D. Ga. May 5, 2008) (deciding the “period for which the 

insurer is liable” is the interval between a plan's scheduled benefit payments rather than the 

total period that an insurer may potentially be liable for payment). A disability benefit 

claimant is simply not equipped to evaluate these provisions to determine the running of 

an internal limitations period.

The DOL can alleviate the ambiguity and confusion caused by Heimeschoff 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. Since Heimeshoff left open the illogical 

possibility that an internal limitations period could run before the appeals process is 

complete (even in cases 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. 
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Additionally, because contractual limitations periods are plan terms, the claimant 

should receive notice about the limitations period from the plan just as is the case with 

other plan terms. As the DOL correctly points out in the preamble to these proposed 

regulations, plan administrators are in a better position to know the date of the expiration 

of the limitations period and should not be hiding the ball from claimants if the plan 

administrator is functioning as a true fiduciary. Surprisingly, even though plan and claim 

administrators are supposed to serve as fiduciaries to claimants, in my experience, 

administrators routinely refuse to clarify the relevant limitations period, even when our 

office requests clarity on the limitations period for a claimant’s claim.

As a result, I propose an amendment to the regulations (see below) 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. 

The proposed alteration takes into account 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. 

This proposed rule 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 beneficial for both claimants and plan 

administrators, reducing uncertainty and unnecessary transaction costs for all parties. 

Insurers are already required under certain state insurance laws to advise their 

insureds of applicable limitations periods in non-ERISA claims. California, for example, 

has long required the following as part of its Fair Claims Settlement Practices Regulations:

Every insurer shall disclose to a first party 

claimant or beneficiary, all benefits, coverages, 

time limits or other provisions of any insurance 

policy issued by that insurer that may apply to 

the claim presented by the claimant.

10 CCR §2695.4(a), emphasis added.

Except where a claim has been settled by 

payment, every insurer shall provide written 

notice of any statute of limitation or other time 

period requirement upon which the insurer may 

rely to deny a claim. Such notice shall be 

given to the claimant not less than sixty (60) 

days prior to the expiration date; except, if 

notice of claim is first received by the insurer 

within that sixty days, then notice of the 

expiration date must be given to the claimant 

immediately.
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10 CCR §2695.7(f)

Under California law, the failure to advise insureds of the applicable limitations 

period estops insurers from asserting such a defense. Spray, Gould & Bowers v. Associated 

International Ins. Co. (1999) 71 Cal.App.4th 1260, 1269-1273. This standard takes into 

account the common sense notion that plan administrators and insurers, as the drafters of 

these boilerplate “proof of loss” language, should be required to explain the implications 

of that language in plain English.

Moreover, at least one federal 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)). This is a minority perspective. 

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

remove any ambiguity. 

I therefore 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;
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b. it expires 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).

II. The Proposed Regulations Should Require the Claims 

Administrators to Inform Claimants of Their Right to 

Request Their Claim File

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 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 C.F.R. §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. 

As a result, I suggest the following amendment to the proposed regulation (added 

language is underlined and bolded):

29 C.F.R. §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 entire 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.

///

///

///
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III. The Proposed Regulations Should Require the 

Claims Administrator to Advise Claimants of 

Their Right to Retain an Attorney for Any

Internal 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. In 

my practice, I have been contacted by claimants who said they believed that the internal 

appeal process was an “informal” process and filed an internal appeal without realizing the 

importance of submitting additional evidence to establish their claim. I have found that 

claims administrators all too eager to deny appeals from self-represented claimants shortly 

after receiving the appeal, knowing that once an internal appeal is denied it is virtually 

impossible to introduce relevant evidence in litigation. In some cases, I have seen claims 

administrators deny appeals from self-represented claimants within days of the appeal, 

saying that no new information has been submitted.

29 C.F.R. section 2560.503-1(j)(4) currently requires any notice of an adverse 

determination of a benefit determination on review to inform the claimant of the right to 

bring an action under ERISA. This only implies the assistance of an attorney to file suit

and does not underline the right to retain counsel to submit an internal appeal. Therefore, 

to clarify that a claimant may obtain legal assistance to assist with a pre-litigation appeal, 

2560.503-1(g)(1) should be amended to require a plan administrator to inform a claimant 

of his or her right to “retain an attorney to represent you on appeal” from an adverse benefit 

determination.

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

Sincerely,

/s/ Brian H. Kim

Brian H. Kim

BOLT KEENLEY KIM LLP