SINCLAIR

LAW @ FIRM

December 11, 2017

Via Electronic Mail

Office of Regulations and Interpretations,
Employee Benefits Security Administration
Room M-5655

US. Dept. of Labor

200 Constitution Avenue NW

Washington D.C. 20210

Re: _ Re-Examination of Claims Procedure Regulations for
Plans Providing Disability Benefits
RIN No.: 1210-AB39
Regulation: 29 C.F.R. §2560.503

Dear Deputy Assistant Secretary Hauser:

For the past 17 years, I have represented claimants pursuing disability benefits
provided through ERISA-governed plans. I have reviewed thousands of ERISA-
governed disability claims.

After lengthy and thoughtful consideration, as well as a commentary period during
which more than 200 comments were collected, the Department enacted certain Claims
Procedure Regulations for Plans Providing Disability Benefits which would govern
claims filed after January 1, 2018. At the eleventh hour, disability insurance carriers
provoked a delay and have asked to submit additional evidence in support of
maintaining the status quo. Transparency and clarity in the administrative process
(both here and in disability claims) is crucial. Your Regulations as presently drafted
offer consumers, the industry and ultimately the courts that clarity. Those clarifications
came about after a process that reflected the thoughtful consideration of recent U.S.
Supreme Court opinions.

Transparency and clarity in these Regulations are crucial to tens of millions of insured
Americans who rely upon these benefits as their safety net. To understand the
importance of the clarifications contained in the present drafting of the regulations, we
need to look no further than this process which insurance carriers have muddied to the
point that highlights the importance of not delaying these Regulations.

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December 11, 2017
Page 2

The insurance lobbyists who have written you and asked for you to re-open the
commentary window and delay the enforcement of these Regulations are going to
perform at the eleventh hour a document dump in which they provide you with
evidence that no other party has an opportunity to examine and comment on. That is
exactly the problem that courts across the country have had to address with regard to
these same entities’ behavior in administering ERISA-governed disability benefits. This
type of behavior was exactly what was addressed by the currently drafted regulations.

The suggestion by the disability insurance industry and industry lobbyists that these
Regulations will somehow deny hard working Americans their benefits could not be
farther from the truth. Presumably, in support of their position (one which they surely
could have and did suggest during the original commentary period), the industry
apparently intends to submit “new evidence” in support of their contention. Again, this
will be done in the blind so that no one outside of the Department and the industry will
have an ability to examine those evidentiary submissions in support of their position.

This sort of behavior by the industry is precisely what one of the clarifications enacted
by the Department intended to address when it arose in terms of a disability claim. The
industry had an opportunity to submit the evidence, make it available to all those who
wish to address in comment, and the industry chose not to.

Take for example the industry's claim that allowing claimants to review and respond to
decisions will create a “costly” process. Compare that to the industry’s complaint in
asking this Regulations’ comment period be reopened. It would seem that on the one
hand additional response to administrative decisions is good when the industry is
responding to regulatory decisions but bad (and “costly”) when individual claimants
are seeking to respond to industry denial of benefits decisions. Consistency is not their
strong point. The rule of law should not be left in the hands of those who describe two
sets of laws - one for them and one for everyone else.