PUBLIC SUBMISSION

Received: December 10, 2017

Status: Pending_Post

Tracking No. 1k1-909y-5393

Comments Due: December 11, 2017

Submission Type: Web

Docket: EBSA-2015-0017

Claims Procedure for Plans Providing Disability Benefits; Extension of Applicability

Date

Comment On: EBSA-2015-0017-0291

Claims Procedure: Plans Providing Disability Benefits

Document: EBSA-2015-0017-DRAFT-0426

Comment on FR Doc # 2017-22082

Submitter Information

Name: Tony Merry

Address: 7100 N. High Street, Suite 302

Worthington, OH, 43085

Email: tmerry@tmerrylaw.com

General Comment

Thank you for the opportunity to comment on the concern expressed about the 

proposed new regulations. I am an attorney in Ohio, and I have been representing 

disabled individuals seeking benefits under ERISA-regulated disability plans for 25 

years.

I am writing to take exception to the industry's concern that the new regulations will 

increase litigation and, therefore, increase costs. Quite the contrary. Imposition of the 

new claims regulations should reduce the transaction costs associated with disability 

claims because they will bring uniformity to claims administration that does not now 

exist.

I understand one of the industry's objections to be the requirement to evaluate 

evidence that contradicts the insurer's own conclusion - Social Security 

determinations, for example. For the most part, this rule already exists in the Sixth 
Circuit, where I practice. Many claims administrators, however, seem to be unaware 

of this rule, so they make a determination without regard to adverse evidence. 

Because we understand the Sixth Circuit rule, we would litigate every such decision, 

with a high probability that we would prevail, at least to the extent of a court order 

remanding the claim to the claims administrator with instructions to evaluate the 

contrary evidence. All of these transaction costs can be avoided if the claims 

administrator considers the adverse evidence in the first instance.

The same is true of the regulation affording plan participants the opportunity to 

address the opinions of the insurers' medical reviewers before a decision becomes 

final. That, too, is a rule in some courts, but not in others. The claims process will 

become more efficient - and transaction costs thereby reduced - if all insurers 

administered these claims uniformly.

I also wish to address the regulation clarifying the circumstances under which 

litigation can be filed if an insurer does not resolve a claim in a timely manner. The 

individuals I represent are usually in pretty tough shape by the time I become involved 

with their claim. They are sick or injured and cannot work, and they have no income. 

The Social Security claims process takes forever. In most cases their only hope of 

income is the long-term disability insurance they purchased, or that their employers 

purchased on their behalf. Thus, the claims processing regulations reasonably require 

insurers to decide claims within specified time limits. I do not, however, typically rush 

to the courthouse once the claims processing deadline arrives because, like anyone 

else, I have no interest in needlessly driving up transaction costs. But at some point, 

with a claimant who is desperate for income and a claims administrator who seems 

not to sense any urgency, we must be able to proceed to court. I have trouble believing 

that this regulation will increase the insurer's transaction costs, but even if it does, that 

cost must be weighed against the cost of continuing to deny a claimant the benefit to 

which she is entitled. After all, with no income, these individuals become dependent 

upon the so-called social safety net, the costs of which are borne by the taxpayer.

Thank you for the opportunity to comment.