Douglas W. Ell 

Alvaro I. Anillo 

GRCDM LAW GROUP 

By E-Mail (e-ORI@dol.gov) & U.S. Mail 

Office of Regulations and Interpretations 

Employee Benefits Security Administration, Room N-5655 

U.S. Department of Labor 

200 Constitution Ave. NW 

Washington, DC 20210 

December 11, 2017 

Attention: Claims Procedure Regulation for Plans Providing Disability Benefits 

RIN 1210-AB39 

Dear Sir or Madam: 

The NFL Player Disability & Neurocognitive Benefit Plan ("NFL Player Disability 

Plan") greatly appreciates this opportunity to provide further comments on the Final Rule 

amending disability claims procedures (81 Fed. Reg. 92316 (Dec. 16, 20 16), the "Regulation") 

under ERISA. We attach a copy of our prior letter, dated January 19, 2016. In that letter we 

described why the Department's economic benefit analysis was inadequate, why the Regulation 

would greatly increase the cost and complexity of administering disability benefits, and why the 

Regulation would l.:aus~ wast~ful and expensive litigation. 

In this letter we focus on collectively-bargained multiemployer plans, like the NFL 

Player Disability Plan, and estimate the added costs. Nowhere are the costs and burdens created 

by the Regulation more apparent than for multiemployer plans. According to ALM's American 

Directory of Group Insurance, 1,062 multiemployer plans provide disability benefits, and those 

plans have a total of 3,661,426 participants. 1 As described below, we estimate the Regulation 

could easily add $45 million or more in annual administration and legal costs for multiemployer 

plans. That is $450 million over 10 years. Many, if not most, of these plans are defined benefit 

plans, and, because added costs reduce plan funding, a portion of this burden would ultimately be 

placed on the PBGC. 

Multiemployer plans often contain rules for disability appropriate for that industry, 

whether it be construction, manufacturing, trucking, or professional football. With 1,000 

multiemployer claims processing centers working with different rules, economies of scale 

generally do not exist. Multiemployer disability claims processing is significantly more 

expensive, per claim received, than claims processing by insurance companies. 

1 Data retrieved from ALM's American Directory of Group Insurance on November 29, 2017. 

GROOM LAW GROUP, CHARTERED 

1701 Pennsylvania Ave., N.W. • Washington, D.C. 20006-5811 

202-857-0620 • Fax: 202-659-4503 • www.groom.com 
GRCDM LAW GROUP 

RIN 1210-AB39 

December 11, 2017 

Page2 

I. The Disclosure and Rebuttal Rule is Unworkable, and Could Easily Add About 

$5 Million in Annual Administrative Costs. 

In paragraph (h)(4), the Regulation proposes to require all disability plans to provide 

claimants with any new evidence or rationale considered prior to issuing an adverse decision on 

review. According to the Regulation, all plans must produce this new evidence or rationale to 

claimants "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 ... to give the claimant a 

reasonable opportunity to respond prior to that date." 

This disclosure and rebuttal process is unworkable for multiemployer plans. The NFL 

Player Disability Plan's administrator-like the administrators of many collectively-bargained, 

multiemployer plans-is a board of trustees that meets on a quarterly basis. Because the board 

meets quarterly, and its decisions are due five days following each quarterly meeting, it will be 

impossible for the administrator of the NFL Player Disability Plan to ascertain the existence of 

any new evidence or rationale; assess its (adverse) impact on a claimant's appeal; and then 

provide the evidence or rationale and an explanation of the adverse impact to the claimant at any 

point prior to the applicable decision deadline, much less "sufficiently in advance" of the 

deadline "to give the claimant a reasonable opportunity to respond prior to that date." With its 

broad, one-size-fits-all approach lifted from the ACA, the Regulation does not take into account 

how multiemployer plans are administered. 2 

The most recent Uen Re Disability Fact Book (ih Ed. 2013-2014) indicates that 0.53% of 

covered participants file long term disability claims each year. Multiemployer plans frequently 

cover workers who perform physical labor, and the percentage of claims in those industries is 

higher. Even at 0.53%, when multiplied by the over 3.6 million participants covered by 

multiemployer disability plans, that's more than 19,000 new claims filed each year. We estimate 

the additional administrative burden of attempting to comply with the disclosure and rebuttal 

process at $250 per claim filed, partly because of the vagueness of determining what is new 

evidence or a new rationale, partly because of the delays and confusion in attempting to comply 

with the rule where the deciding fiduciary meets quarterly, and partly because 1,000 separate 

2 Prior comments received by the Department described how a plan might "have to send claimants new or additional 

evidence before the plan may have determined whether and how the evidence may contribute to an adverse appeal 

decision, claimants would receive new or additional evidence piecemeal as the appeals process continues[,] and 

claimants could be required to provide comments back without necessarily knowing how that information may, if at 

all, affect the decision." 81 Fed. Reg. at 92326. The Department flatly rejected this notion, explaining that a plan's 

obligation to provide new or additional evidence or rationales arises only "when the plan has decided that it is going 

to deny the claim on appeal." !d. This response shows the Department did not contemplate the Regulations' impact 

on multiemployer plans, because any multiemployer plan trying to comply with the Regulation would be forced to do 

precisely what the Department says the Regulation does not require: provide additional evidence to claimants before 

a board meeting occurred, and without knowing whether and how it would ultimately affect a decision. 
GRCDM LAW GROUP 

RIN 1210-AB39 

December 11, 2017 

Page 3 

claims processing units will have to adjust to the new rules. In many cases legal advice will be 

required. 

We therefore estimate the total added administrative costs at $5 million each year. This 

does not take into account start-up costs. Again, it also does not take into account that 

multiemployer plans often cover workers who perform manual labor, and that such workers 

apply for disability at a higher rate. Unfortunately, we do not have data to quantify this 

disproportionate claim rate. 

II. Added Litigation Costs Could Easily Add $40 Million a Year. 

The above $5 million estimate is only the tip of the iceberg. Not only is the disclosure 

and rebuttal rule unworkable, but, combined with the proposed "strict compliance" standard, it 

will lead to and exacerbate litigation expenses. If a plan "fails to strictly adhere" to the 

disclosure and rebuttal rule and many other provisions, paragraph (1) of the Regulation states that 

"the claimant [will be] deemed to have exhausted the administrative remedies available under the 

plan," and he or she will be "entitled to pursue any available remedies under section 502(a) of 

the Act on the basis that the plan has failed to provide a reasonable claims procedure that would 

yield a decision on the merits of the claim." The Regulation also provides that, "[i]f a claimant 

chooses to pursue remedies under section 502(a) of the Act under such circumstances, the claim 

or appeal is deemed denied on review without the exercise of discretion by an appropriate 

fiduciary." The Department has acknowledged that the "legal effect" of this provision "may be 

that a court would conclude that de novo review is appropriate" in any action brought under 

section 502(a)(1)(B) of the Act. 81 Fed. Reg. at 92328. 

In plain English, this means multiemployer plans will be forced to litigate the appropriate 

standard of judicial review in many cases. Where they lose, the court will review the claim de 

novo, which generally means a full-blown trial with discovery, depositions, and witnesses. The 

added legal costs will be enormous. 

It is reasonable to assume that litigation over alleged regulatory violations, and the 

appropriate standard of judicial review, would consume 100 hours of attorney time. At an 

average hourly rate of $400 per hour (a relatively low rate), multiemployer plans can be expected 

to expend $40,000 in attorneys' fees every time a claimant chooses to litigate the standard of 

review. If 1 ,000 multiemployer disability plans face just one such legal issue every other year, 

$20,000,000 in plan funds would be spent on legal fees-not benefits. Of course, this estimate 

says nothing about the disruption that such litigation would have on the day-to-day 

administration of a plan and the attendant costs of that disruption. It also does not speak to the 

added burdens that this ancillary litigation would impose on an already overburdened court 

system. 
GRCDM LAW GROUP 

RIN 1210-AB39 

December 11, 201 7 

Page4 

Obviously, if a plan loses on the standard of review, that plan will likely have to endure a 

full-blown trial, with discovery, depositions, and witnesses. Trials are very expensive. We 

estimate an equal amount- another $20 million a year- in the added legal costs of full-blown 

trials over disability claims. Plans will win some of the motions on standard of review and 

regulatory compliance but, where they lose, the legal costs of a full-blown trial will be greater 

than the legal costs of arguing over the standard of review. 

These costs were not intended by Congress. The Supreme Court has recognized the 

balance contemplated by ERISA, i.e., "Congress' desire to offer employees enhanced protection 

for their benefits, on the one hand, and, on the other, its desire not to create a system that is so 

complex that administrative costs, or litigation expenses, unduly discourage employers from 

offering welfare benefit plans in the first place." Varity Corp. v. Howe, 516 U.S. 489, 497 

(1996). 

For years, litigants and commentators alike have lamented the increasing burdens and 

costs oflitigation-related discovery. 3 Under existing precedent, discovery in ERISA disability 

benefits litigation is typically very limited. That will no longer be the case, however, because the 

Regulation invites wide-ranging discovery about the cause of alleged regulatory violations, the 

effect of those violations, and whether the violations are "part of a pattern or practice" by the 

plan. Written discovery, document productions, depositions, and mini-trials over the nature and 

extent of a plan's alleged regulatory violations will soon become the norm in benefits cases. 

Whether claimants pursue these allegations prior to a final benefits decision or after (the 

Regulation permits either scenario), they will surely pursue them. 4 Plans will have to defend 

against the allegations, and courts will be forced to resolve them, before ever reaching the merils 

of any given benefits decision. 

3 See, e.g., Lawyers for Civil Justice, Litigation Cost Survey of Major Companies (20 1 0) at 2 ("The survey confirms 

empirically what corporate counsel have long known anecdotally - the transaction costs of litigation against large 

companies, especially discovery, are so high that the mandate of Rule 1 ('the just, speedy, and inexpensive 

determination of every action and proceeding') is simply not being met.") (available at 

htt p://www.uscourts. gov/sites/default/fil es/litigation cost survey of ma jor companies O.pdl); id. at 4 ("Litigation 

transaction costs, independent of judgments awarded in disputes or settlements reached between parties, constitute a 

significant economic cost of doing business in the United States .. .. There is no doubt that a significant driver of the 

higher U.S. costs is the procedural and discovery costs associated with our justice system."); ABA, ABA Section of 

Litigation Member Survey on Civil Practice: Full Report (Dec. 11, 2009) at 2 ("Discovery is the reason most often 

picked by [survey] respondents as the primary cause of delay [in civil litigation]. 48% picked that reason, while the 

next most popular reason (delayed rulings on motions) garnered only 25%.") (available at 

https:/ /www .americanbar.org/conteni./dam/aba/m i grated/! iti g,a t ion/survey/docs/report aba report.aurhcheckdam .pd·l); 

id. ("82% agree that discovery is too expensive, but within that group only 61% ofp1aintiffs' lawyers think it so."). 

4 The Department has said that it "does not believe that the typical participant pursuing a disability benefit claim in 

the context of a fair and timely review process will. .. seek remedies in court in the case of insignificant missteps in 

claims management processes that have no impact on the ultimate decision on the claim." 81 Fed. Reg. at 92328. 

However, a claimant has every reason to try to capitalize on procedural missteps because, if successful, it would lead 

to de novo review of the participant's claim for benefits, a key objective of any claimant in disability litigation today. 

If unsuccessful, the participant loses nothing. 
GRCDM LAW GROUP 

RIN 1210-AB39 

December 11, 201 7 

Page 5 

III. Some Multiemployer Plans Will Reduce or Completely Eliminate Disability 

Benefits. 

The Department asked for data "on the price elasticity of demand for disability insurance 

coverage." Unfortunately, we do not have precise data on the extent to which, in collective 

bargaining, unions and employers may reduce or eliminate disability benefits because of added 

costs. Nevertheless, as the Department is well aware, many multiemployer plans and their 

industries are under substantial financial pressure. Added costs of $45 million per year will 

further stress the system. The Department should not ignore the obvious reduction in 

multiemployer plan disability benefit coverage that the Regulation will cause. 

* * * 

In closing, we appreciate the Department's willingness to review these issues. We ask 

the Department to withdraw the regulation altogether, rewrite it to account for the realities of 

multiemployer plan administration, or completely exempt multiemployer plans. Our attached 

letter of January 19, 2016 further describes how workers covered by multiemployer plans are 

protected better in collective bargaining than through one-size-fits-all regulation. 

Thank you for your time and attention to this very important matter. We will be 

following up to request a meeting with the Department to discuss this important topic. 

Enclosure 
Douglas W. Ell 

Alvaro I. Anillo 

GRCDM LAW GROUP 

VIA EMAIL (e-ORI@dol.gov) & U.S. MAIL 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

U.S. Department of Labor 

200 Constitution Avenue, NW 

Room N-5655 

Washington, DC 20210 

Attention: Claims Procedure Regulation 

Amendment for Plans Providing Disability Benefits 

Dear Sir or Madam: 

January 19, 2016 

The NFL Player Disability & Neurocognitive Benefit Plan ("NFL Player Disability Plan" 

or "Plan") greatly appreciates this opportunity to comment on the proposed changes to the claims 

procedures for plans providing disability benefits, as published at 80 Fed. Reg. 72014 (Nov. 18, 

2015) ("Proposed Rule"). 

As described below, the Proposed Rule will inhibit, not improve, the administration of 

complex, industry-specific plans such as the NFL Player Disability Plan. Accordingly, we ask 

the Department to consider withdrawing the Proposed Rule, or exempting multiemployer plans, 

such as the NFL Player Disability Plan, which are the most likely to contain compkx, inuustryspecific rules. We also comment on three parts of the Proposed Rule that are particularly 

troublesome. 

Because of the substantial complexities and dangers of the Proposed Rule, and the special 

concerns of multiemployer plans, we ask the Department to hold a public hearing, and we 

respectfully request the opportunity to present oral testimony. 

THE NFL PLAYER DISABILITY PLAN 

The NFL Player Disability Plan was forged through decadt:s of l:ullective bargaining 

between the NFL and the NFL Players Association. It may provide the most generous disability 

benefits in the world, and its procedures have been developed to evaluate claims 

comprehensively and fairly. The Plan currently pays about $10 million a month to former NFL 

Players. 

Players have access to three types of disability benefits. They may apply for any one, any 

two, or all three at a time. If a Player applies for all three, the Plan must still comply with all 

GaooM LAw GapuP, CJtARTBRED 

1701 Pennsylvania Ave., N.W. • Washington, D.C. 20006-5811 

202-857-0620 • Fax: 202-659-4503 • www.groom.com 
GRCDM LAW GROUP 

requirements of the claims regulation, including the need to make three timely decisions while 

juggling three different claims for different benefits under different standards. 

The first type of disability benefit is awarded where a Player is deemed totally and 

permanently disabled. In most plans of this type, the sole decision to be made is whether the 

claimant can work, and that decision follows fairly quickly after the claimant's working career 

ends. Frequently, such decisions may be based completely or in large part on treating physician 

reports. In contrast, the NFL Player Disability Plan generously allows Players to qualify for total 

and permanent disability benefits if they become unable to work, for any reason, before they 

elect to receive their pension, normally at age 55. Thus, these decisions are typically made many 

years, and in some cases decades, after the Player's NFL career has ended. These decisions may 

also follow a lengthy period of time during which a retired NFL Player chooses not to engage in 

work, or works only occasionally. 

If a Player is ultimately deemed to be currently unable to work, the decision-making 

process has only begun. The Plan's fiduciaries must next allocate each successful claimant to 

one of four categories of total and permanent disability, and establish an effective date for the 

total and permanent disability. Because of collectively-bargained rules, the decisions required 

may include: the cause of disability, whether the claimant was physically or mentally 

incapacitated from filing an application sooner, whether the condition has lasted or is expected to 

last for at least one year, and whether there are substance abuse or psychological issues involved. 

Social Security disability awards are binding on the Plan, but only with respect to whether the 

claimant currently is totally and permanently disabled. Social Security onset dates and findings 

as to causation are not binding on the Plan. 

These unusual, industry-specific factors make it difficult to determine whether a Player is 

entitled to total and permanent disability benefits, and, if so, what category. The bottom line is 

that these decisions require careful analysis. 

The second type of disability benefit is awarded where the Player is deemed to be 

partially disabled. This unusual benefit, called a "line-of-duty" disability benefit, has been 

designed specifically for professional football players. A Player who applies for line-of-duty 

disability benefits is simultaneously rated for dozens of potential impairments and disabilities, 

and is awarded "points" according to a complex custom system developed by some of our 

country's top orthopedic surgeons. This industry-specific rating system was developed through 

collective bargaining. 

The third type of disability benefit is a one-of-a-kind "neurocognitive" disability benefit. 

This benefit is the most recent product of collective bargaining. Evaluations require two days of 

medical examinations, the first day by a neurologist and the second by a neuropsychologist, each 

using examination protocols developed specifically for the benefit. Like the total and permanent 

disability benefit, this benefit contains special rules for substance abuse and psychiatric 

conditions. It requires a sophisticated screen for validity testing conducted under normed 

neuropsychological exams. 

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GRCDM LAW GROUP 

The decision-making fiduciaries of the Plan must not only carefully apply all ofthese 

rules, they must do so while reviewing voluminous records. It is typical for a claimant to submit 

hundreds or thousands of pages of documents, including their entire college and NFL medical 

records. 

The Plan has special procedures to review claims carefully and objectively. It has 

enlisted some of the most distinguished specialists in the nation, in fields such as orthopedics, 

cardiology, neurology, psychiatry, and so on. Each of these doctors is a renowned specialist in 

his or her field, and each is still actively practicing. Each of these doctors has also been 

reviewed and approved by both union and management sides of the Board. Specialist meetings 

are regularly held, and it is always emphasized that each physician must evaluate claims fairly, 

with no bias for or against the Player. 

In some cases the medical evidence is extremely difficult to evaluate, such as if there is a 

difference of opinion among doctors. In such cases, or where there is a deadlock, the Plan refers 

cases to a "Medical Advisory Physician," or MAP. MAP medical decisions are final and binding 

on the Board. All MAPs are distinguished specialists approved by both sides of the Board. 

THE PROPOSED RULE 

The Proposed Rule imports the recent changes to the claims procedure rules for group 

health plans, enacted in the Patient Protection and Affordable Care Act, into the context of 

disability benefits. The Proposed Rule does so even though Congress declined to do so, and 

there is no statutory basis for the changes. 

The following three provisions are particularly troublesome: 

1. Strict Compliance: The Proposed Rule would revise the deemed exhaustion provision of 

the existing rule and established case law. If a plan fails to strictly adhere to all rules for 

processing disability claims, a claimant is deemed to have exhausted the plan's 

administrative procedures and may sue at any time under a de novo standard of judicial 

review, unless a "minor errors exception" applies. In other words, any slight error or 

delay could eliminate the plan's right to deference, and a court could decide the case de 

novo, substituting its judgment for that of the plan's fiduciaries, and even hold a hearing. 

2. Expanded Disclosure Requirements: The Proposed Rule would require a discussion of 

why the plan disagrees with the views of a treating physician or with any disability 

determination by the Social Security Administration, treating physician, or other third 

party disability payor. 

3. Right to Review and Respond to New Information Before Final Decision: The Proposed 

Rule would require a disability plan to provide, prior to a plan's decision on appeal, any 

new or additional evidence considered, relied upon, or generated by (or at the direction 

of) the plan in connection with the claim. This information must be provided as soon as 

possible and in advance of the plan's decision on appeal to give the claimant a reasonable 

opportunity to respond to such new or additional evidence. 

3 
GRCDM LAW GROUP 

ANALYSIS 

I. Because the Proposed Rule is defective in three ways, the Department should 

consider withdrawing it. 

A. The Department should take great care not to impose undue costs and 

burdens on voluntary disability plans. 

Private sector disability benefits are provided voluntarily. They are not vested, and can 

be reduced or eliminated at any time. There are no minimum standards or coverage rules. 

When ERISA was enacted, Congress explicitly sought to avoid overburdening voluntary 

plans. Congress acknowledged what has been called the "ERISA bargain": participants receive 

certain federal protections in exchange for foregoing certain potential remedies. See 

Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148 n.l7 (1985) (citing H.R.Rep. No. 

93-533, 1, 9 (1973), 2 Leg.Hist. 2348, 2356; 120 Cong.Rec. 29949 (1974), 3 Leg.Hist. 4791; 120 

Cong.Rec. 29210-29211 (1974), 3 Leg.Hist. 4706-4707) (noting that "Congress was concerned 

lest the cost of federal standards discourage the growth of private pension plans"). 

Great care is appropriate before imposing extra administrative costs and litigation 

expenses. As the Supreme Court noted: 

[C]ourts may have to take account of competing congressional purposes, such as 

Congress' desire to offer employees enhanced protection for their benefits, on the one 

hand, and, on the other, its desire not to create a system that is so complex that 

administrative costs, or litigation expenses, unduly discourage employers from offering 

welfare benefit plans in the first place. 

Varity Corp. v. Howe, 516 US 489,497 (1996). 

The Proposed Rule is intended to enhance protections for participants, but it creates 

risks for participants. As plan sponsors experience the substantial extra costs and increased 

litigation risks described below, they may ask themselves whether providing disability benefits is 

worth the expense. They may note that their workers are covered for disability by Social 

Security, and that very few new hires focus on disability benefits. The Department should not 

lightly impose additional costs and burdens on plans providing voluntary disability benefits. 

B. Disability benetits and health benefits are fundamentally different, 

and different rules should apply. 

In the Patient Protection and Affordable Care Act ("Affordable Care Act"), Congress 

undertook a major overhaul of the marketplace for health coverage. Among other changes, it 

subjected disparate health markets to a unified set of rules for processing claims. These markets 

include employer sponsored plans covered by ERISA and individual plans not subject to ERISA. 

Congress did not, in any way, state that the claims procedure changes would or should have any 

effect beyond health claims. If Congress intended to include plans providing disability benefits 

4 

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GRCDM LAW GROUP 

within the sweep of the Affordable Care Act's claims rules, it would have done so explicitly. 

See, e.g., Central Bank of Denver v. Firstlnterstate Bank, 511 U.S. 164, 176-77 (1994) 

(although "Congress knew how to impose aiding and abetting liability when it chose to do so," it 

did not usc the words "aid" and "abet" in the Securities Exchange Act of 1934, and so did not 

impose aiding and abetting liability in that statute). The Affordable Care Act uses the word 

"disability" 38 times in other contexts. 

The Department nevertheless proposes "to uplift the current standards applicable to the 

processing of claims and appeals for disability benefits so that they better align with the 

requirements regarding internal claims and appeals for group health plans under the regulations 

implementing the requirements of the Affordable Care Act." The sole rationale given is that 

because some plans that pay disability benefits also pay health benefits, the Affordable Care Act 

rules are already familiar. 

We believe the Department's conclusion is flawed. Many if not most disability plans, 

including the NFL Player Disability Plan, have no familiarity with the rules of the Affordable 

Care Act. Moreover, disability benefits are fundamentally more like pension benefits than health 

benefits. Disability benefits are intended to replace income, and generally involve a monthly 

stream of payments over a period of time, extending as long as the recipient's life span. Health 

benefits generally involve payment for a product or service; invoices are created for each product 

or service. There are other important differences. Disability claims decisions require a sensitive, 

often much more complex holistic analysis of the claimant's physical and mental condition. 

Health claims decisions typically look only at whether the product or service sought to be 

covered is appropriate for the stated diagnosis. Disability benefits require manual processing. 

Health benefits are typically susceptible to automated processes. 

The government's own programs recognize these distinctions. There are differences 

between how the Social Security Administration and the Veterans Administration process 

disability claims, and how Medicare processes health claims. For example, a decision on an 

initial application for Social Security disability claims takes an average time of over 1 00 days 

(https ://www .ssa. gov /open/ data/Combined-Disability-Processing-Time.html). The Medicare 

Claims Processing Payment Manual, by contrast, states that health claims normally should be 

paid within 30 days (https://www.cms.gov/ Regulations-and-Guidance/Guidance/Manuals/ 

Downloads/elm 1 04c0 1. pdf). 

Because of these differences between health and disability benefits, Congress did not 

extend the Affordable Care Act claims rules to plans providing disability benefits. The 

Department should not go further than Congress. 

C. The Department's economic impact analysis grossly underestimates 

the added costs. 

Executive Orders 12866 and 13563 direct the Department to "assess all costs and benefits 

of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches 

that maximize net benefits." Executive Order 12866 requires the Department to estimate costs 

5 
GRCDM LAW GROUP 

and consequences using the best reasonably obtainable scientific, technical, economic, and other 

information. 

The Proposed Rule grossly understates some costs and does not take into account others. 

• Plans will have to "staff up" to meet the requirements of the Proposed Rule. For 

example, staff will have to scour voluminous medical records that are typically 

submitted by claimants to find those notes or sentences that may be viewed as 

favorable to a claim, and to describe in decision letters why the plan has not followed 

those notes or sentences. New staff will also be required to respond to requests for 

information and to track the status of appeals. 

• Litigation will increase. The Proposed Rule creates an incentive to game the system, 

to "foot fault" a plan into making a minor procedural error, so that claimants can go 

directly to court and obtain de novo review. 

• Plans that do not currently provide non-English language services will have to do 

so. The Department incorrectly assumes that disability plans already provide such 

services because they also provide health benefits. That is not true. 

• In connection with the new step that the Department proposes for all appeal cases, the 

Department only considers the cost of sending the new evidence or rationale to the 

claimant. The Department does not consider the additional costs involved in 

assessing what the claimant then submits, which may be substantial. The claimant's 

submission may require substantial new review by medical specialists, which will 

then trigger another round of comments by the claimant, and so on. None of those 

additional costs are included in the Department's estimate. 

• With respect to the concept of hiring truly independent and impartial decision-makers 

and medical experts, the conduct the Department proposes to eliminate is already 

prohibited by law. Adding a duplicative regulatory obligation will impose additional 

costs that the Department has not considered. For example, litigation costs will rise 

as counsel depose decision-makers about their compensation and hiring practices. 

• The Department appears to be contemplating a change in disclosure of applicable 

statutes of limitations, but assesses no cost in connection with this regulatory 

change. Plans and third party administrators will have to revise their communications 

accordingly, and there are costs to that. 

• The Department justifies the Proposed Rule by stating that its procedural protections 

will increase the accuracy of decision-making, causing fewer incorrect benefit 

denials. The Department fails to establish the critical predicate for their 

assumption: that many incorrect benefit denials occur. Absent that predicate, the 

costs associated with the Proposed Rule would be far greater than the benefits the 

Department claims. 

6 
GRCUM LAW GROUP 

We ask the Department to consider withdrawing the Proposed Rule so it can conduct a 

more complete economic analysis. 

II. If the Department does not withdraw the Proposed Rule, the Department 

should consider exempting multiernployer plans because collective 

bargaining more effectively protects claimants. 

Plans forged through collective bargaining, where decisions are made by committees and 

boards comprised of equal numbers of employer and union representatives, should be exempt 

from the Proposed Rule. Collective bargaining parties know the needs of their constituencies, 

and will bargain for the procedural protections that are appropriate for their population. 

In multiemployer plans, there can be no bias against claimants, and the Department need 

not be concerned about the independence and impartiality of the decision makers. The emphasis 

is solely on administering the plan according to its terms, which requires careful consideration of 

all cases, under the existing legal standard of a "full and fair review." In the multiemployer 

context, it is established law that there is no conflict of interest among its fiduciaries because of 

the equal representation requirement. 

Collective bargaining protects workers better, and in a more cost-effective way, than 

regulation. For example, the Proposed Rule requires that non-English language services be made 

available if a pa11icipant happens to live in certain counties. Here that requirement is 

unnecessary. The Plan is aware of no Players who lack fluency in English, yet will have to 

spend money on meeting the Department's requirements. The bottom line is that the bargaining 

parties know better than the Department what the participants need. 

We note again that collectively bargained plans, like the NFL Player Disability Plan, 

typically have complex, industry-specific rules and standards, and have pruceuures iu place for 

fair and impartial review. If the Department makes multiemployer plans more costly to 

administer, those additional costs must ultimately reduce wages. There is no free lunch. Again, 

the bargaining parties are in a better position to allocate scarce resources. 

III. Three features of the Proposed Rule are particularly troubling, and should 

be excluded from any revision of the existing claims regulation. 

A. The strict compliance standard is antithetical to decades of established 

case law, encourages claimants to game the system, and 

unconstitutionally involves the Depa11ment in the business of the federal 

judiciary. 

Under the Proposed Rule, "if the plan fails to strictly adhere to all the requirements of 

this section . . . the claimant is deemed to have exhausted the administrative remedies." If such 

a claim is litigated, "the claim or appeal is deemed denied on review without the exercise of 

discretion by an appropriate fiduciary." In other words, even the slightest misstep by a plan will 

allow a claimant to skip the administrative process and go directly to federal court. There, the 

judge would decide the case de novo; he or she might even hold a hearing and allow testimony. 

7 
GRmM LAW GROUP 

The proffered de minimis rule will not provide any relief. A plan would have to perfectly 

meet five conditions, including that the violation is not "part of a pattern or practice of violations 

by the plan." Of course, every claimant will argue exactly that. 

The Department is well aware of the rich case law following the Supreme Court's 

decision in Firestone Tire & Rubber Co. v. Bruch, 489 US 101 (1989). In those cases, the 

federal courts studiously fleshed out the standard of judicial review for cases involving disputes 

over benefit claims. This case law is at the very core of ERISA, and accurately reflects the 

voluntary nature of the employee benefits system and the common law of trusts that underlies 

ERISA. 

Courts have overwhelmingly determined that "substantial compliance" by a plan with the 

claims procedure prescribed by the Department does not disrupt the standard of judicial review. 

Substantial compliance exists where there has been "an ongoing productive evidence-gathering 

process in which the claimant is kept reasonably well-informed as to the status of the claim and 

the kinds of information that will satisfy the administrator." Gilbertson v. Allied Signal, Inc., 

328 F.3d 625, 634 (lOth Cir. 2003) (citing Halpin v. W. W. Grainger, Inc., 962 F.2d 685, 691 (7th 

Cir. 1992)). The rationale for the substantial compliance doctrine is clear: 

[Requiring strict compliance] could inhibit collection of useful evidence and 

create perverse incentives for the parties. Even in cases where additional medical 

information is clearly necessary for a proper decision, administrators would have 

an incentive to issue a final denial on the inadequate record in order to preserve 

their right to deferential review, rather than to wait for the information and risk 

losing deference. On the other side, claimants might be encouraged to delay a 

final decision by suggesting that they intend to produce additional information, 

only to pull the plug and demand de novo review in federal court on the !21st 

day. This result would be antithetical to the aims of ERISA. ERISA's procedural 

regulations are meant to promote accurate, cooperative, and reasonably speedy 

decision-making, not to generate an endless stream of business for employment 

lawyers. Thus, in the context of an ongoing, good faith exchange of information 

between the administrator and the claimant, inconsequential violations ofthe 

deadlines or other procedural irregularities [should not pose litigation 

consequences]. 

Id at 635. The Department would undo this substantial body of law. 

The Department's rationale boils down to the following : 

The Department's intentions in including this provision in the proposal are to 

clarify that the procedural minimums of the Section 503 Regulation are essential 

to procedural fairness and that a decision made in the absence of the mandated 

procedural protections should not be entitled to any judicial deference. 

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GRCDM LAW GROUP 

The Department does not say, however, why each and every rule contained in the claims 

regulation is so "essential to procedural fairness" that "a decision made in the absence" of any 

one of them, where there otherwise has been substantial compliance, should forfeit the normally 

applicable standard of judicial review. 

Under the Proposed Rule, litigants will fight over the standard of judicial review in every 

case, and efforts to game the system may be rewarded. For instance, undeserving claimants (or 

their lawyers) can seek to win an award of disability benefits by overlooking a minor error by the 

Plan at the initial stage, continuing through the claims process to completion, and, if dissatisfied 

by the final decision, go to court for de novo review. Such gamesmanship makes a mockery of 

the administrative review process. As another example, undeserving claimants (or their lawyers) 

can try to "trip up'' plans by taking actions to complicate the processing of their claims. The 

Proposed Rule would allow such claimants or their lawyers to submit multiple medical reports, 

and argue that the plan did not adequately explain "the basis for disagreeing" with some "view or 

decision" of those physicians, thereby forfeiting the deferential standard of review that the plan 

is entitled to receive. Such claimants or their lawyers may submit confusing arguments and 

evidence, or delay and confuse deadlines, all in an effort to induce an error by the plan. 

It appears that the Department wishes to tilt the litigation odds in favor of claimants and 

against plans. We ask the Department to reconsider that intent. 

B. The expanded disclosure requirement is vague, and will create burdens. 

The preamble to the Proposed Rule states that is would require disability plans, in each 

adverse benefit determination, to describe "the basis for disagreeing with any disability 

determination by the Social Security Administration (SSA), a treating physician, or other third 

party disability payor presented by the claimant, to the extent that the plan did not follow those 

determinations." The proposed regulation would also require a discussion of any disagreement 

with the "views" of any medical professional whose report is submitted to the plan. 

This expanded disclosure requirement is vague, and will not advance the statutory 

standard required by ERISA for claims procedures (plans must "provide adequate notice in 

writing to any participant or beneficiary whose claim for benefits under the plan has been denied, 

setting forth the specific reasons for such denial, written in a manner calculated to be understood 

by the participant." 29 U.S.C. § 1133(1)). 

The following questions illustrate the problem: 

• How is the Plan to determine, exactly, what must be discussed, when a claimant 

submits hundreds or thousands of pages of medical records? For example, if the 

claim involves total and permanent disability, is it enough to describe those 

determinations that explicitly address total and permanent disability, or must 

medical descriptions of impairments that may render a claimant totally and 

permanently disabled, individually or in combination, also be discussed in every 

adverse benefit determination? 

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GRCUM LAW GROUP 

• What if the standards of the Plan vary from the standards applied by the SSA, the 

treating physician, or the third party disability payor? How is the Plan to know 

the standards applied by a third party disability payor, and whether those 

standards differ from the standards of the Plan? 

• When the SSA makes a disability determination, what part of the determination 

must be discussed? For example, SSA decides first whether a claimant is totally 

and permanently disabled, but it also sets an onset date of total and permanent 

disability. Are all SSA determinations as to onset dates subject to the Proposed 

Rule, even though they may be unreliable when the SSA onset date precedes (as 

is does sometimes by many months) the date as of which SSA benefits may 

actually be payable? Similarly, in some cases SSA may identify the totally and 

permanently disabling impairments; is that determination subject to the Proposed 

Rule? SSA also takes into account factors that a plan may be prohibited from 

recognizing, such as age and education at the time of application. How are such 

factors to be addressed, if the complete SSA file is not provided to the Plan by the 

claimant? 

• What is a treating physician? How many visits does it take before a physician 

becomes a treating physician? Is more discussion required when there is a long 

history between a claimant and a physician than when there is a short history? 

We note that treating physician reports are not entitled to deference. As Justice 

Ginsburg noted in Black and Decker Disability Plan v. Nord, 538 US 822, 832 

(2003), "the assumption that the opinions of a treating physician warrant greater 

credit than the opinions of plan consultants may make scant sense when, for 

example, the relationship between the claimant and the treating physician has 

heen of short duration, or when a specialist engaged by the plan has expertise the 

treating physician lacks. And if a consultant engaged by a plan may have an 

'incentive' to make a finding of 'not disabled,' so a treating physician, in a close 

case, may favor a finding of 'disabled.'" 

• What is a "view" of a medical professional? Does every statement in a medical 

report constitute a "view"? 

• What level of discussion will satisfy the Proposed Rule? Is it enough to say that 

the fiduciary weighed the evidence and found a treating physician or third party 

disability payor uripersuasive? Is some greater level of discussion contemplated 

by the Proposed Rule? 

Because of the vagueness in the Proposed Rule, to be safe, plans will be forced to 

undertake extraordinary steps in all cases to parse voluminous medical records, determine what 

is worthy of discussion in an adverse benefit determination, and create a legalistic discussion that 

exceeds what is necessary to fairly and clearly apprise the claimant of the decision and why it 

was made. Plans will have to "staff up" to comply, which will greatly increase administrative 

costs. The economic analysis in the Proposed Rule does not take into account this increased 

cost. 

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GRCDM LAW GROUP 

C. The right to review and respond to new information before final decision 

adds a substantial, time-consuming step to the appeal process, but the 

Proposed Rule does not give additional time for final decisions. 

The Proposed Rule obligates plans providing disability benefits to add an entirely new 

step to all appeals. In this step, the plan must provide any new or additional evidence 

considered, relied upon, or generated by (or at the direction of) the plan in connection with the 

appeal to the claimant. The plan must also provide any new rationale for denial of the appeal. 

The plan must do so as soon as possible, and sufficiently in advance of the appeal decision to 

provide the claimant with a reasonable opportunity to respond to such new or additional evidence 

or rationale. The Proposed Rule explains how this new step would work: 

[A ]ssume the plan denies a claim at the initial stage based on a medical report 

generated by the plan administrator. Also assume the claimant appeals the 

adverse benefit determination and, during the 45-day period the plan has to make 

its decision on appeal, the plan administrator causes a new medical report to be 

generated by a medical specialist who was not involved with developing the first 

medical report. The proposal would require the plan to automatically furnish to 

the claimant any new evidence in the second report. The plan would have to 

furnish the new evidence to the claimant before the expiration of the 45-day 

period. The evidence would have to be furnished as soon as possible and 

sufficiently in advance of the applicable deadline (including an extension if 

available) in order to give the claimant a reasonable opportunity to respond to the 

new evidence. The plan would be required to consider any response from the 

claimant. If the claimant's response happened to cause the plan to generate a third 

medical report containing new evidence, the plan would have to automatically 

furnish to the claimant any new evidence in the third report. The new evidence 

would have to be furnished as soon as possible and sufficiently in advance of the 

applicable deadline to allow the claimant a reasonable opportunity to respond to 

the new evidence in the third report. 

There are three major flaws in this proposal, as it is described by the Department. 

First, as the Department recognizes in the preamble, courts have identified sound policy 

reasons to exclude this step at the administrative appeal stage: 

Permitting a claimant to receive and rebut medical opinion reports generated in 

the course of an administrative appeal--even when those reports contain no new 

factual information and deny benefits on the same basis as the initial decisionwould set up an unnecessary cycle of submission, review, re-submission, and rereview. This would undoubtedly prolong the appeal process, which, under the 

regulations, should normally be completed within 45 days. 29 C.F.R. § 2560.503-

1 (i)(3)(i). 

Metzger v. UNUM Life Ins. Co., 476 F.3d 1161, 1166-67 (101h Cir. 2007). 

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GRCDM LAW GROUP 

Moreover, such repeating cycles of review within a single appeal would unnecessarily increase 

cost of appeals. See Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (101

h Cir. 1992) 

(noting that Congress intended to minimize the costs of claims settlement by passing ERISA). 

The Proposed Rule does not address these sound policy reasons. Instead, the Proposed 

Rule justifies itself in the following words: 

It is the view of the Department that claimants are deprived of a full and fair 

review, as required by section 503 of ERISA, when they are prevented from 

responding at the administrative stage level to evidence and rationales. 

Accordingly, adding these provisions to the Section 503 Regulation would 

explicitly address this problem and redress the procedural wrongs evidenced in 

the litigation under the current regulation. 

The cryptic reference to "procedural wrongs evidenced in the litigation" (citing Metzger) is 

nowhere explained by the Department. The Proposed Rule fails to give a justification for this 

major change. 

Second, this new step raises unanswered questions: What is the fiduciary to make of a 

claimant who does not respond to such new evidence or rationale? What is required to give the 

claimant a "reasonable opportunity" to respond-one week, thirty days, more, or less? What 

happens if the claimant desires to submit materials, but cannot do so in the time provided? 

Third, the Department describes this new step as an "overlay" to the existing timetable 

for appeals. It is conceivable that in some cases the new step may be complete in a short time 

period, but in other cases each turn around may require a substantial amount of time. For 

example, if a claimant would like to rebut a new medical report with his own medical report, the 

claimant may need weeks, or more, to obtain the rebuttal rt:pot1 fl'om a busy doctor. ll is not 

administratively workable for plans to meet the existing timetables while also providing this new 

step in every case. 

For the three reasons described above, the Department should drop this change 

altogether. If the Department insists on this new step, the only way to make it workable is to 

reset the clock to zero each time the claimant begins a new cycle by submitting a response to 

new evidence or rationale forwarded by the plan. That is the only way to achieve the meaningful 

dialogue that the Department wishes to foster, while also providing plans the ability to make 

well-considered decisions on the merits of the appeal and provide the final decision letters that 

claimants deserve. 1 

1 The Proposed Rule could create the disability claims equivalent of the famous tennis match of 

John Isner versus Nicolas Mahut, in which Isner defeated Mahut after 11 hours, 5 minutes of 

play over three days. Because the players exchanged game after game in much the same cyclical 

manner as proposed by the Department, it took Isner 138 games to win the final set (by a score of 

70-68). Normally a set requires no more than 10 to 12 games to finish. The Department should 

not impose such burdens on claimants and plans. 

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GRCDM LAW GROUP 

* * * * 

Again, the NFL Player Disability Plan appreciates the opportunity to comment on the 

Proposed Rule. The Plan respectfully asks the Department to hold a public hearing on the 

Proposed Rule, and requests the opportunity to present oral testimony at that hearing. 

13 

Sincerely, 

~a; 

(!;{}--/ 

Alvaro I. Anillo 

Counsel for the NFL Player Disability & 

Neurocognitive Benefit Plan