January 15, 2016

By U.S. Mail and E-mail – e-ORI@dol.gov

Office of Regulations and Interpretations,

Employee Benefits Security Administration

Room M-5655

U.S. Dept. of Labor

200 Constitution Avenue NW

Washington D.C. 20210

Re: Claims Procedure Regulations for Plans Providing Disability Benefits

RIN No.: 1210-AB39

Regulation: 29 C.F.R. §2560.503-1

Dear Assistant Secretary Borzi:

I write to offer comments on the proposed amendments to the claims procedure 

regulations applicable to disability benefit plans. I am interested in the proposed amendments 

because my law firm’s practice includes representation of claimants in ERISA-governed 

disability benefit disputes. I have represented disability plan claimants for over twenty years and 

I have argued two ERISA disability claims in the U.S. Court of Appeals for the Ninth Circuit –

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006) (en banc), and Mongeluzo v. 

Baxter Travenol Long Term Benefit Disability Plan, 46 F.3d 938 (9th Cir. 1995).

I. Comments on Substantive Matters in the Proposed 

Regulations

Comment on Notice for Applicable Statute of Limitations

The DOL has invited comment on the statute of limitations issues resulting from the 

Supreme Court’s decision in Heimeshoff v. Hartford Life & Accid. Ins Co., 134 U.S. 604 (2013). 

The DOL can resolve confusion caused by the Heimeshoff decision by creating standards for 

what is a reasonable plan-based limitations provision in the same way that the DOL used its 

regulatory power to create deadlines for the claims process in prior versions of the regulations. 

Since Heimeshoff left open the possibility that an internal limitations period could run before the 

appeals process is complete (even where exhaustion is mandatory), the DOL should clarify that 

such an approach would violate full and fair review required by 29 U.S.C. §1133. 
Asst. Secretary Phyllis Borzi 

January 18, 2016

Re: Claims Procedure Regulations for Disability Plans

Page 2

Additionally, because contractual limitations periods are plan terms, the claimant should 

receive notice about the limitations period from the plan just as is the case with other material 

plan terms. As the DOL aptly points out in the preamble to these proposed regulations, plan 

administrators are in a better position to know the date of the expiration of the limitations period 

and should not hide the ball from claimants if the plan administrator is functioning as a true 

fiduciary. 

The proposed amendments to the claims procedure regulation should provide that a 

contractual limitations period cannot begin to run prior to the date of the claimant’s receipt of the 

final benefit determination on review and cannot expire earlier than one year after the date of the 

claimant’s receipt of the final benefit determination. The claim review process is supposed to be 

non-adversarial and many disability plan participants pursue their administrative claims without 

representation by counsel. These participants need qualified legal counsel to represent them in 

court if they decide to litigate a claim denial. Participants often face difficulty in retaining 

qualified counsel.

Comment on Timing of Right to Respond to New Evidence or Rationales

Plan administrators should not be permitted to sandbag disability claimants with new 

rationales for denying a claim that are asserted for the first time in denying an administrative 

appeal or in court. See, e.g., Marolt v. Alliant Techsystems, Inc., 146 F.3d 617, 620 (8th 

Cir.1998) (“We will not permit ERISA claimants denied the timely and specific explanation to 

which the law entitles them to be sandbagged by after-the-fact plan interpretations devised for 

purposes of litigation.”). Likewise, claimants should be permitted to respond to any new 

evidence relied upon by the plan administrator in denying an appeal. 

Given that plan participants are usually prevented from presenting new evidence of 

disability in court or supplementing the record to respond to new arguments, the claimant must 

have an opportunity to supplement the record during the administrative claims process as a 

matter of basic fairness. Therefore, the proposed amendments to the disability claims regulation 

should be revised to permit claimants up to 60 days to respond to any new evidence or rationale 

relied on by the plan administrator in denying a request for review.

Independence and Impartiality - Avoiding Conflicts of Interest

The DOL’s proposal seeks to ensure that plans use independent and impartial 

personnel in deciding disability claims, but the scope of the proposed regulation should be 

expanded. In my experience, many disability insurers acting as claims fiduciaries hire 

third-party vendors to supply medical experts. These medical review companies have 

rosters of doctors who consistently provide opinions supporting claim denials. Many of 

these doctors do not have active medical practices – they generate most of their income by 

providing helpful reports to insurance companies. Thus, the proposed regulation should 

make it clear that the new rules apply to the plan’s agents and contractors. In addition, the 
Asst. Secretary Phyllis Borzi 

January 18, 2016

Re: Claims Procedure Regulations for Disability Plans

Page 3

scope of the impartiality rules should also include vocational experts, not just medical 

experts.

Thank you for giving me the opportunity to comment on the proposed amendments 

to the disability claim procedures regulation.

Sincerely,

FEINBERG, JACKSON,

WORTHMAN & WASOW LLP

 By 

Dan Feinberg

dan@feinbergjackson.com