Received: January 19, 2016

Status: Pending_Post

Tracking No. 1k0-8nh8-njlu

Comments Due: January 19, 2016

Submission Type: Web

Docket: EBSA-2015-0017

Claims Procedure for Plans Providing Disability Benefits

Comment On: EBSA-2015-0017-0001

Claims Procedure for Plans Providing Disability Benefits

Document: EBSA-2015-0017-DRAFT-0057

Comment on FR Doc # 2015-29295

Submitter Information

Name: Paul Sullivan

Address: 

580 Village Blvd.

Suite 280

West Palm Beach, FL, 33409

Email: sullilvanpaul01@gmail.com

Phone: 561-689-7222

General Comment

Re: Employee Benefits Security Administration (EBSA) 

Proposed Rule: Claims Procedure for Plans Providing Disability Benefits

29 CFR Part 2560

RIN 1210- AB39

29 C.F.R sect. 2560-503-1

Dear Assistant Secretary Borzi:

Based on my observations and experiences representing individuals as beneficiaries or 

participants in ERISA welfare benefit plans 

since Pilot Life's arrival in 1987, may I ask you to take these few comments into consideration in 

regard to the above. 

Perhaps no more apt introduction could be found than on Page 72020 of the Federal Register, 

where under "Benefits" it is stated:
"In addition, it could prove costly to a participant to hire a lawyer to provide an interpretation 

that should be readily available to the

plan at little or no cost. Accordingly, the Department solicits comments whether the final 

regulation should require plans to provide 

claimants with a clear and prominent statement of any applicable contractual limitations period 

and its expiration date for the claim 

at issue in the final notice of adverse benefit determination on appeal and with an updated notice 

if tolling or some other event causes 

that date to change." 

Hiring a lawyer is in my view a critical part of the process for any participant or beneficiary. The 

federal courts have required participants and

beneficiaries to participate in a process presuit under a court doctrine called the "exhaustion of 

administrative remedies." The irony is that there

is no administrative agency charged with hearing the participants' appeals. In my opinion the 

courts have created a legal fiction designed to force the

unwitting ERISA benefit claimant to participate in a process where what is not being explained 

and what is not being done to provide the participant a

full and fair claims handling and review process is left to be uncovered, if possible, after the fact 

by experienced attorneys acting on behalf of those

participants after-the-fact and at the denied claimants' own expense. 

The only effective way to provide a plan participant access to the administrative process is for 

their to be some provision for an award of 

attorney fee for work done on behalf of the participant presuit. Having endorsed implicitly as a 

"benefit" that the participant could avoid the expense

of having effective legal representation the Department has in effect inserted itself into the fray 

on behalf of the plans and in a position adverse to that

of the claimants. 

The language employed by the Department in the proposal, e.g. at page 7026 in reference to 

subsection (b)(7), "adjudicated in a manner," ironically it seems

elevates the erstwhile "nonadversarial" process by implication to a quasi-judicial agency 

decision. The decisions of the Administrative Law Judges in the Social Security 

appeals process are what immediately and inescapably come to mind. 

Far from encouraging the federal courts to take corrective measures to remedy unfair claims 

processing, this language appears to provide a disincentive to the federal courts

to become involved. "Ready access" to the federal courts is what ERISA was intended to 

provide, not ever more convoluted claims processing steps, with each one more

challenging and daunting for the participant to attempt. 

I have found that what often has happened to claimants is that the plans have not provided a 

glimmer of hope for them to comprehend what is not being provided to them in the 

claims process. Not only is specifically required information not being provided in the 
notifications in writing already required by the claims procedure regulation, in many instances it 

is 

not at all clear what the plans or their insurers have been addressing in supposedly applying the 

provisions of the plans. A glaring example is the common approach of measuring nothing more 

that "functionality" in the sense of the ability to move a body part when supposedly attempting to 

determine whether a participant can perform any or all of the substantial duties of his or her 

regular 

occupation. The underlying assumption is apparently that anyone whose body functions can 

perform whatever duties, be the material or substantial or not, which he or she had been required 

to 

perform in his or her regular occupation. In this situation pain is not questioned as to whether it 

is reasonably consistent with the observations of the participant's physicians on examination or 

by the results of 

laboratory or other objective tests. Pain is simply disregarded. However, the plan provisions do 

not purport to disregard pain. Money was paid to the plan or its insurer on the premise that the 

insurer would

if called upon provide for a disability as set forth in the plan's provisions, not by changing the 

question after the fact.

In short, some provision for attorney fees for the participants must be included in the revised 

regulation. Failure to do so leaves the participants without claims procedures that are 

meaningful.