October 24, 2017

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 Examination

RIN No.: 1210-AB39

Regulation: 29 C.F.R. §2560.503-1

Sent Via portal at https://www.regulations.gov/document?D=EBSA-2015-0017-0291

Dear Deputy Assistant Secretary Hauser,

I submit these comments on the proposed regulations for amending the claims procedure 

regulations applicable to disability benefit plans. I am an attorney who represents individual 

claimants / plaintiffs in ERISA-governed disability benefit disputes. With fifteen years of 

experience in ERISA disability insurance claims, I have represented hundreds of individual 

claimants, and have witnessed the significant inequities they face in the claims process. 

The Department’s proposed delay of the Final Rule raises concerns of a lack of 

transparency and fairness in the rule-making process. Prior to finalizing the regulations, there 

was an extensive 60 day notice and comment period. Numerous comments were submitted from 

a multitude of stakeholders. A significant percentage of the comments were from insurers and 

plans, and organizations that represent insurers and plans. A significant theme of the industry 

comments suggested that there would be a rise in costs if the rules were implemented. However, 

such comments were largely theoretical in nature and unsupported by any measurable data. 

Likewise, many of these comments requested increased time to acclimate to the new rules. The 

Department accommodated these requests by significantly delaying the effective date. 

After this lengthy and transparent notice and comment period, the regulations were 

finalized. However, we are now informed that additional, non-disclosed, information, is being 

considered by the Department. Certainly, this information could and should have been 

contributed during the extensive notice and comment period. The ERISA participants (who the 

regulations are intended to protect) and their representatives have been left out of this process 

and have no way to respond to this information, since it is being withheld from the public. It is 

entirely unclear and unexplained why this additional information was not provided during the 

open and extensive 60 day proper notice and comment period, why this new information holds 

more weight than the comments submitted during the proper notice and comment period, why 
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this additional information is being withheld from the public, and why participants and their 

representatives are being left out of the process. 

It is extremely concerning that the public is only being given a mere 15 day notice and 

comment period. This effectively strips the public of the ability to obtain necessary information 

from a FOIA request. The public is being prevented from discovering the information, factors, 

and stakeholders influencing this process. 

What we do know is that after the proper notice and comment process concluded and the 

regulations were finalized, there were private meetings held with industry representatives. We 

also know that industry representatives and some members of Congress were sent 

correspondences regarding this matter. However, the content of the private meetings and of the 

subsequent correspondences has not been disclosed and is being withheld from the public. 

Apparently, the industry made reference to a confidential study that is expected to find that the 

implementation of the final regulations will result in an increase in premiums. It is unclear what 

data will be utilized in this confidential “study,” what methodology or protocol will be followed, 

or whether any steps will be taken to assess and assure the validity of the confidential “study’s” 

findings. A “confidential” study based on one-sided input from unquestionably financially 

motivated stakeholders can only result in a complete distrust of the process and findings. 

The industry is being permitted to create the study – it will determine the methodology to 

be followed and collect the data it deems appropriate. Based on the findings of this clandestine 

study (created and conducted solely by financially conflicted stakeholders) the Department 

proposes to make an entirely new determination as to the reasonable procedures necessary to 

protect participants’ rights in the disability benefits process. The Industry is being given carte 

blanche to create its own version of the facts, which favor its financial interests over those of the 

participants, who the regulations are supposed to actually protect. Basic fairness dictates that 

participants and those that represent participants not be barred from this process. However, this is 

exactly what is being done. It is impossible for participants to appropriately and effectively 

comment, validate the industry’s findings, or conduct an alternative study, as they are not in 

possession of the data and if they were, they do not have the requisite resources to process the 

data. 

I highly question the industry’s assertion that premiums for group disability benefits 

would increase by approximately 5-8%. In attempted support of its conclusion, the industry 

proffers an unreliable and non-analogous example. The industry argued that the premium 

increases which occurred after Vermont’s mental health parity statute was implemented suggest 

that changes to the rules governing the disability insurance claims process would also yield 

higher premiums. However, the enhancements to the claims process contained in the Final Rule 

are simply not as comprehensive as requiring equal coverage for the treatment of mental illnesses 

as is given to physical illnesses. 

That being said, if the enhanced protections of the Final Rule actually resulted in the 

premium increases suggested, it would certainly be an acceptable price to pay for true coverage. 
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Even a cursory review of the comments submitted during the proper notice and comment period 

illustrate the inequities that ERISA participants face in the claims process. Paying lower 

premiums for illusory coverage does not protect participants. 

I request that the effective date of the Final Rule not be delayed. The rationale for the 

delay lacks transparency and unnecessarily calls into question the fairness and reliability of the 

process. 

Thank you considering my comments,

/s/ Alicia Paulino-Grisham

Alicia Paulino-Grisham, Esquire