OberC^Pekas A T T O R N E Y S A T L A W

January 19, 2016

Sent Via Email: fc-OUIrg dol.aov

ATTN: Phyllis C. Borzi, Assistant Secretary of Labor

Employee Benefits Security Administration ("EBSA")

R o o m M - 5 6 5 5

U.S. Dept. of Labor

2 0 0 C o n s t i t u t i o n A v e n u e N W

Washington D.C. 20210

Re: Claims Procedure Regulations for Plans Providing Disability

Benefits

R I N N o , : 1 2 1 0 - A B 3 9

Regulation: 29 C.F.R. §2560.503-1

Dear Assistant Secretary Borzi:

I offer this letter in support of the DOL's proposed changes. I am an attorney

who almost exclusively represents individuals in ERISA matters, specifically with

regards to long-term disability claims under fully insured policies; over 90% of my

practice is dedicated to plaintiffs' ERISA matters. In 2007, I began assisting

claimants with internal appeals governed by ERISA. Since becoming licensed to

practice law in January 2011, I have represented claimants in ERISA benefit matters

both in the internal appeal process and in litigation.

The DOL's proposed changes to the appeals process, if adopted, will

undoubtedly ensure a more full and fair review for claimants. The DOL is correct

that disability and lost earnings can be a source of severe hardship for many

individuals. Seemingly every day, I speak to claimants facing financial ruin due to a

denial or termination of disability benefits. The prospect of a fair recoveiy for

claimants with benefits governed by ERISA is poor, primarily because the potential

relief available to our clients is limited, and the incentive for insurance companies to

deny otherwise valid claims is great; in most instances, administrators are able to

secure a deferential (and therefore highly favorable) standard of review and, even if

claimants prevail under the more onerous standard of review, the courts provide relief

by "remanding" claims back to the very conflicted entity that denied the claim in the

first place.

The DOL's recommendations are valuable and critical to improving ERISA

and providing claimants with a full and fair review. I provide a few specific

c o m m e n t s b e l o w :

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Independence And Impartiality - Avoiding Conflicts Of Interest. 1

commend the DDL for addressing this very important issue, which

recently brought confusion to at least one United States District Court

facing the challenge of how to evaluate what it means to be a biased

medical reviewer. See Midlin v. Scoltsclale Healthcare Corp. Long Term

Disability Plan, 2016 U.S. Dist. LEXIS 2927. The courts do not know

how to solve the problem of a biased reviewer and therefore the DDL

should step in to provide instruction to the courts in this regard. In Miillin,

my attempt to enjoin the use of biased reviewers resulted in the court

agreeing that such an injunction would be "vague and unenforceable." The

DOL could set standards to assist the courts, and I believe the proposed

regulations provide the ideal opportunity for the DOL to do so. Currently,

administrators hide behind third-party vendors to argue that employed

reviewers are unbiased and "independent." Administrators routinely claim

to conduct no inquiry into the vendors or to keep any statistics on the

reviewers that they employ through vendors. Essentially, they use their

own ignorance to avoid responsibility to be impartial and investigate

conflicts. There should be requirements prohibiting an administrator not

only from contracting with reviewers who are known to support denials,

but also from contracting with vendors known to provide reviews which

favor the denial of claims. Administrators should be held accountable for

the vendors they choose to employ, especially when those administrators

have a direct financial incentive to deny claims.

Right To Review And Respond To New Information Before Final

Decision. 1 support the DOLs proposed changes in this regard, but 1 want

to highlight a common issue that I face in my practice. Often, the

administrator will use the need for {or acquisition of) new evidence to

"toll" its own deadlines to make a determination under ERISA. This is

especially frustrating for claimants when the new information should have

been secured prior to a denial of benefits. I would like to emphasize the

importance of the DOL's comments - that the evidence should be

furnished as soon as possible to the claimant for a response and,

additionally, that an administrator cannot "toll" its deadline or otherwise

justify an additional 45 days to make a determination based on the new

evidenced. Instead, the DOL should be clear that an administrator must

identify or generate the new evidence before the expiration of the 45-day

period, as well as provide the claimant with such evidence before the

expiration of the 45-day period.

Statute of Limitations Issue Vosi-Heimeshoff. I routinely ask

administrators to clarily the statute of limitations date on behalf of my

clients, and virtually every time, I am told that I am improperly asking for

a legal conclusion and refused a straight answer. The DOL is correct thai

administrators are in the best position to provide clarification on the

statute of limitations. While my clients are fortunate to have my legal

representation to assist in interpreting the plan provisions, it should not be
such a difficult task for claimants to determine when they must bring a

lawsuit in order to enforce their rights. Of the many obstacles a claimant

faces in filing lawsuits to recover benefits, this should not be one of them,

especially when it would be relatively easy for an administrator to clarify

this issue for claimants.

• 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.

Given the importance of developing the administrative record in these

claims, administrators should be required to specify this right to

representation in denial letters. Moreover. 1 often speak to claimants who

had been encouraged by claims specialists prior to appealing to "hurry up"

and submit an appeal without being told of the importance of building the

record prior to litigation. 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 claimants who are

bound to the evidence they develop on appeal in the event they must

proceed to litigation.

Thank you kindly for considering my comments. I am available for

any questions or further comments. I sincerely appreciate the DOL's efforts to

provide a full and fair review to claimants through its proposed changes to

ERISA's regulatory requirements.

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