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January 19, 2016

The Honorable Phyllis C. Borzi

Assistant Secretary, Employee Benefits Security Administration 

United States Department of Labor 

200 Constitution Ave NW 

Washington DC 20210 

Submitted at www.regulations.gov

Re: Comments on Notice of Proposed Rulemaking on Claims Procedure for Plans 

Providing Disability Benefits 80 Fed. Reg. 72014 (Nov. 18, 2015)

Dear Assistant Secretary Borzi:

These comments are submitted on behalf of the undersigned members of the Consortium for 

Citizens with Disabilities (CCD). The CCD is a working coalition of national consumer, 

advocacy, provider, and professional organizations working together with and on behalf of the 

approximately 57 million children and adults with disabilities and their families living in the 

United States. 

We appreciate the opportunity to comment on the notice of proposed rulemaking (NPRM) that 

the Department of Labor issued on November 18, 2015 regarding the claims procedures for 

disability plans under the Employee Retirement Income Security Act (ERISA) of 1974. 

The undersigned organizations strongly support the proposed updates to the regulations

implementing section 503 of ERISA contained in this NPRM that clarify the responsibilities of 

insurers to provide adequate notice of claim denials and full and fair reviews of denial appeals as 

is required under section 503 of ERISA. The claims and appeals process in disability insurance 

claims is opaque and claimants often don’t understand why the initial decision to deny their 

claim was made, what evidence they need to submit on appeal, when evidence has to be 

submitted by in order to be considered, or what evidence the insurer relied upon to deny the 

claim on appeal.

1 The undersigned organizations believe that the updates to the section 503 

regulations are necessary to ensure transparency in the claims and appeals process and to ensure 

that insured individuals get a full and fair review of their claim as is envisioned (and required) by 

section 503 of ERISA. 
2

Our comments regarding the specific provisions and responses to the request for comment on 

issues not directly addressed in the NPRM follow. 

§ 2560.503-1(b)(7) Impartiality of Decision Makers 

The undersigned organizations strongly support requiring insurers to ensure that their personnel 

policies and payments to contractors do not unfairly bias employees or independent medical 

examiners toward denial of claims or reward employees or contractors for doing the same. 

Unfortunately, disability insurers have a history of personnel practices that have rewarded 

employees for denying claims in a way that has biased their employees and prevented a full and 

fair review of claims for disability benefits, as well as a history of paying contractors to provide 

evidence that a claimant is not disabled.

2

We strongly support this provision and the wording to include all persons involved in the 

disability decision making process whether the individual is an employee or a contactor. We 

would suggest however that the language be strengthened so that the provision reflects not only 

policies that discuss prospective decisions but past decisions as well. We therefore suggest the 

language be changed to read, “...Accordingly, decisions regarding hiring, compensation, 

termination, promotion, bonuses or other similar matters with respect to any individual (such as 

a claims adjudicator or medical expert) must not be made based upon the fact that an individual 

has or the likelihood that the individual will support the denial of benefits.” (suggested changes 

bolded)

§2560.503-1(g)(1)(vii) and §2560.503-1(j)(6)(i)-(ii) Notice Requirements for Adverse Benefit 

Determinations 

The undersigned organizations strongly support the enhanced notice requirements proposed in 

these sections. The lack of information provided to claimants at both the initial claim and the 

appeals level unfairly disadvantages claimants both during the claim and appeals process, as well 

as in court should the claimant file a case after a final administrative denial, and impedes the 

ability of the insurer to complete a full and fair review.3 Requiring insurers to provide a full 

discussion of its decisions at all levels of administrative review (initial claim and appeal),

including why the plan did not follow recommendations of treating physicians (if applicable), 

any internal rules that the plan relied upon in making the decision (or that no such rules exist), 

and that the claimant is able to access at no cost a copy of the full file, including all evidence 

upon which the insurer relied to make the decision, is integral to the claimant receiving a full and 

fair review of their claim and appeal (see also our discussion of §2560.503-1(h)(4) below). 

§2560.503-(1)(g)(1)(viii) and § 2650.504-1 (p) Culturally and Linguistically Appropriate 

Manner 

The undersigned organizations commend the Department for including a requirement that 

adverse determination notices be provided in a culturally and linguistically appropriate manner to 

those literate in an applicable non-English language. This demonstrates an understanding of how 

important it is that limited English proficient (LEP) individuals receive complete information 

about their benefits in a manner they can understand.
3

However, this proposal does not go far enough. First, the “10 percent or more” standard is far too 

high for the definition of an “applicable non-English language.” A more appropriate standard 

would be for 5 percent or more of the population residing in a county to be literate only in the 

same non-English language. For example, in 2011, the Centers for Medicare & Medicaid 

Services (CMS) in the Department of Health and Human Services revised the requirements for 

plans participating in the Medicare Advantage and the Medicare Prescription Drug Benefit (Part 

D) Programs to strengthen beneficiary protections, by requiring plan sponsors to translate 

marketing materials into any non-English language that is the primary language of at least 5 

percent of the individuals who reside in a plan’s service area, when the threshold had previously 

been set at 10 percent in 2005.4

Second, the Department should require plans to provide all vital documents, such as the terms 

and conditions of the plan, notices regarding any changes to those terms and conditions, and 

general descriptions of procedural rights, in an applicable non-English language upon request, 

not just notices of adverse action. It is crucial that plans provide persons with limited English 

proficiency meaningful access to their benefits by ensuring they have access to this information 

in a language they can understand.

Third, the Department includes a requirement for plans to provide oral language services 

including answering questions and providing assistance with filing claims and appeals only to 

those speaking “an applicable non-English language,” which is again defined by the “10 percent 

or more” standard. We urge the Department to follow the standard set by CMS in 2011, when it 

clarified its requirement for Medicare Advantage and Part D plans to provide oral language 

services (such as through a toll-free customer call center) for all languages that are served in 

common by the largest commercial interpretation service providers in the U.S., which cover 

approximately 150 to 180 languages.5

 CMS clarified that plans “may use on-site interpreters, 

contract with a commercial interpretation service provider, or employ some combination of both 

approaches. For instance, many MA organizations and Part D sponsors provide Spanish language 

interpretation on-site while using one of the numerous and readily available commercial 

interpreter services to providers for other languages.”6

 The Department should put a similar 

requirement in place for all plans regardless of the percentage of non-English speaking 

beneficiaries in a particular county.

Finally, the Department proposes to require plans to include a prominent statement in all English 

notices clearly indicating how to access the language services provided by the plan. But once 

again, this statement must only be provided in “an applicable non-English language,” which is 

defined by the “10 percent or more” standard. Instead, we again urge the Department to follow 

the lead set by CMS, which requires all Medicare Advantage and Part D plans to include a 

“Multi-Language Insert” with their materials, which contains information translated into multiple 

languages, including Spanish, Chinese, Tagalog, French, Vietnamese, German, Korean, Russian, 

Arabic, Italian, Portuguese, French Creole, Polish, Hindi, and Japanese, regarding the availability 

of free interpreter services through their toll-free customer call centers.7

 

By enhancing the standards provided for in 29 CFR § 2560.503–1(p) in these ways, we expect 

that the Department’s proposal to provide information to LEP beneficiaries “in a culturally and 

linguistically appropriate manner” would be more fully realized.
4

§ 2560.503-1(h)(4) Requirements for a Full and Fair Review 

The undersigned organizations fully support these proposed changes. The current regulations 

permit insurers to base their denials, at both the claim and review stage, on information that the 

claimant may never have seen and is never able to see. This makes it exceptionally difficult for 

claimants to refute improper adverse determinations. 

Section 4(i) of the proposed regulations would allow claimants to review their claims files and 

give them the opportunity to present evidence and testimony during the claims and appeals 

process. This will increase the quality of decision making by ensuring that claims files are as 

complete as possible. As a result, claimants may be less likely to request reviews of decisions or 

file lawsuits regarding denial of coverage.

However, when a claimant does request review of an adverse decision, section 4(ii) of the 

proposed regulations provides appropriate access to information. The proposed regulations in 

4(ii) would require plans to provide claimants with any new or additional evidence considered, 

relied upon, or generated by the plan in connection with the claim. Claimants would have a 

reasonable opportunity to respond prior to the plan providing a notice of adverse benefit 

determination on review. This is a continuation of the insurer’s obligation in section 4(i) to 

provide access to the claimant’s complete case file. Allowing claimants to review the evidence 

used to make insurance determinations and respond to it allows for more complete case files. 

Given that at least some of the evidence contemplated by section 4(ii) is generated by or at the 

direction of the plan, and all of the evidence is in the plan’s possession, the plan administrator is 

best positioned to supply this evidence to the claimant. 

Section 4(iii) of the proposed rules would require plans that use new or additional rationales on 

review to provide claimants with a copy of the rationale and reasonable opportunity to respond to 

it. Like the other portions of Section 4, this provision remedies some of the information 

asymmetries that currently occur in disability benefit determinations. This provision does not 

restrict plans’ ability to use new or additional rationales in adverse determinations; it merely 

reduces the chance that such determinations will be incorrect, or that additional evidence will be 

submitted in later stages of the appeals process. Furthermore, the requirement that new or 

additional rationales be supplied free of charge to the claimant is not particularly onerous. A 

rationale need not be lengthy. Plans are not required to supply new or additional rationales when 

making adverse benefit determinations on review; they can simply uphold their initial 

determinations using their initial rationales. Finally, this provision encourages plans to include 

all applicable rationales in their initial denials, thus further increasing the quality of decision 

making. 

§2560.503-1(l) Failure to establish and follow reasonable claims procedures 

The undersigned organizations support the inclusion of these proposed provisions in the final 

regulations. The remedies available to individuals under 502(a) of ERISA are the only way that 

plan participants can enforce their rights when an insurance company is acting in bad faith or 

otherwise not honoring the terms of the insurance contract. Deeming the failure to establish or 

follow reasonable claim procedures that meet the requirements in these regulations to be 

administrative exhaustion for the purposes of the ability to access the civil remedies provided 

through 502(a) is important. This provision will provide clarity to individuals as to when they 
5

can proceed to file in court and will not miss the applicable statute of limitations due to not 

knowing when it is okay to file. It will also provide clarity to judges regarding when 

administrative exhaustion has occurred and help eliminate confusion as to when the period of the 

statute of limitations for filing suit begins.8

§2560.503-1(m)(4) Including rescission as an adverse benefit determination under certain 

circumstances

The proposed regulation would amend the definition of adverse benefit determination to include 

rescission of disability insurance coverage even if the person is not currently receiving benefits. 

The undersigned member organizations of CCD support this amendment as proposed because it 

seeks to close a loophole in the current ERISA regulations. We believe that this amendment 

will protect beneficiaries against the unfair retroactive cancellation or discontinuance of benefits 

under most circumstances, except upon failure to pay premiums and or required contributions 

toward the cost of coverage. By defining rescission as an adverse benefit determination, these 

revised regulations will give individuals access to all of the claims procedure requirements 

contained in this section, which is appropriate and necessary. We strongly support this proposed 

amendment and urge its adoption by the Department.

§2560.503-1(m)(9) Definition of “claim file”

The NPRM proposes a new definition of the term claim file. The proposed definition references

§2560.503-1(m)(8), which defines relevant information as it relates to the claimant. The 

undersigned member organizations of CCD support the inclusion of this new definition as it 

gives clear guidance as to the information claimants are to receive if they request their claim file 

as part of the full and fair review of every disability benefit claim. This definition also provides 

clear guidance to both claimants and insurers as to what must be included to satisfy the 

requirements of §2560.503-1 (h)(4)(i) allowing a claimant to review the claims file. 

Other issues upon which the Department requested comment: 

Tolling:

In response to the NPRM’s request for comment on tolling and the allotted time given to plan 

claimants responding to decisions on their claims, the undersigned CCD member organizations 

recognize that the inclusion of language similar to Section 2719 of the Affordable Care Act 

(ACA) would be repetitive given the already existing rules allowing for consumer response 

during the appeals process under 29CFR2560.503-1(i). Section 2719 of ACA was established to 

incorporate similar provisions that did not exist for group insurance providers. Section 2719 

makes multiple references to regulations in Section 503-1, which we believe already includes 

reasonable times allotted for response to adverse decisions during the appeal process. It should 

be noted that the special circumstances allowing for such extensions may vary from case to case, 

as the needs of any individual at the onset of disability are quite unique. Some claimants may 

require additional time to respond due to changes in living conditions and/or the newly acquired 

need for reasonable accommodations. These life changes may be quite different than those 

experienced during claims for standard group health insurance policies. For this reason, we 

believe the current regulations are sufficient for the needs of consumers covered under this 

regulation.
6

Notification regarding the statute of limitations: 

The undersigned organizations strongly support including notice requirements regarding the 

inclusion of any and all applicable statutes of limitations for filing suit to contest an adverse 

benefit determination in a final determination notice in the final regulations. As discussed in the 

preamble to the NPRM, insurers are in the best position to know whether the insurance contract 

contains any statute of limitations on filing a claim in court that are different than the ones 

contained in state law. Claimants who receive disability insurance through an employer might 

never have seen the plan documents that include those contractual provisions (they are often only 

provided a summary of benefits). Providing that information represents a very small burden on 

insurers. Although the information regarding the statute of limitations contained in state law is 

more readily available to claimants, we encourage the Department to include a requirement that 

every final notice of adverse benefit determination include the deadline for appealing that 

determination in court, whether it is governed by a contractual statute of limitations or the one 

set by the state of jurisdiction. This will ensure that there is clarity for all parties, including a 

judge, as to when the administrative process has concluded and when the statute of limitations 

begins to run. 

Conclusion: 

The undersigned organizations strongly support the updating of these regulations to make the 

disability insurance claim process transparent and ensure that claimants get a full and fair review 

of their claim as is envisioned under section 503 of ERISA. 

Sincerely,

American Association of People with Disabilities 

American Association on Health and Welfare

American Council of the Blind 

American Foundation for the Blind

Association of University Centers on Disabilities 

Autism Speaks 

Autistic Self Advocacy Network 

Bazelon Center for Mental Health Law

Easter Seals 

Goodwill Industries International

Justice in Aging 

National Alliance on Mental Illness

National Association of Disability Representatives

National Council on Behavioral Health 

National Disability Rights Network 

National Multiple Sclerosis Society 

National Organization of Social Security Claimants’ Representatives 

Paralyzed Veterans of America

RESNA 

The Arc of the United States 
7

United Cerebral Palsy 

United Spinal Association 

Endnotes

 1 See e.g. Mark Debofsky, testimony before the 2012 ERISA Advisory Council Hearing on Managing Disability Risks 

in an Environment of Individual Responsibility, August 28, 2012, p 1, http://www.dol.gov/ebsa/pdf/ACDeBofsky.pdf; see also Mala M. Rafik, testimony before the 2012 ERISA Advisory Council Hearing on Managing 

Disability Risks in an Environment of Individual Responsibility, August 28, 2012, p. 4, 

http://www.dol.gov/ebsa/pdf/AC-Rafik.pdf 2 See e.g. The Patients Perspective in Nancy G. Klimas and Roberto Patarca Routledge eds, Disability and Chronic 

Fatigue Syndrome: Clinical, Legal, and Patient Perspectives, May 1, 2014, p.96; Evan George, “Doctors Paid To Aid 

Insurers In Disability Claim Denials,” Daily Journal, October 13, 2009; David Kohn, Did Insurer Cheat Disabled 

Clients, CBS News, 60 Minutes, November 15, 2002, available at http://www.cbsnews.com/news/did-insurercheat-disabled-clients-15-11-2002/ 3 See Debofsky, id 1, p 1-3; see also Rafik, id 1, p. 1-3 4 76 Federal Register 21432, at 21512 (April 15, 2011). 5 76 Federal Register 21432, at 21502; 42 CFR § 422.111(h)(1)(iii) and 42 CFR § 423.128(d)(1)(iii). 6 76 Federal Register 21503. 7 CMS, Medicare Marketing Guidelines, Section 30.5.1, issued June 12, 2012, available at 

https://www.cms.gov/Medicare/HealthPlans/ManagedCareMarketing/Downloads/2014MedicareMarketingGuidelines.pdf 8 See Debofsky, id 1, p 3 for a discussion of this issue.