PUBLIC SUBMISSION

Received: January 17, 2016

Status: Pending_Post

Tracking No. 1k0-8nft-grze

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-0035

Comment on FR Doc # 2015-29295

Submitter Information

Name: Dan Hall

Address: United States,

Email: beachbum56.dh@gmail.com

General Comment

See attached file(s)From my experience as a paralegal working for an attorney in the ERISA 

arena I find several advantageous points 

of the proposed changes such as:

1. A plan not being permitted to provide bonuses based on the number of adverse decisions of 

disability claims and/or appeals.

2. The claimant having an opportunity to respond to any new or adverse evidence the plan has 

developed while reviewing a claim for disability 

benefits prior to a claims decision being made. The claimant should have the right to defend their 

rights for a full and fair review prior 

to a claims decision.

3. That any third-party medical report be provided to the claimant during the the plan's 45-day 

period the plan has to make its decision 

on appeal and not having the right to extend the 45 to 90 day review period in which to acquire 

that third-party medical report from a 

medical provider who has not examined the claimant and not allowing the claimant a sufficient 
opportunity in which to respond to the 

third-party medical report.

4. That safeguards be put into place requiring adverse benefit decisions be offered in a culturally 

and linguistically appropriate manner

manner where appropriate.

Attachments

ERISA Decisions

a plan would not be permitted to provide bonuses based on the number of denials made by a claims 

adjudicator. Similarly, a plan would not be permitted to contract with a medical expert based on the 

expert's reputationfor outcomes in contested cases, rather than based on the expert's professional 

qualifications. These added criteria address practices and behavior which, in the context of disability 

benefits, the Department finds difficult to reconcile with the “full and fair review” guarantee in section 

503 of ERISA and which are questionable under ERISA's basic fiduciary standards.

The proposal would add criteria to ensure a full and fair review of denied disability claims by 

explicitly providing that claimants have a right to review and respond to new evidence or rationales 

developed by the plan during the pendency of the appeal, as opposed merely to having a right to 

such information on request only after the claim has already been denied on appeal, as some courts 

have held under the Section 503 Regulation. Specifically, the proposal provides that prior to a plan's 

decision on appeal, a disability benefit claimant must be provided, free of charge, with any new or 

additional evidence considered, relied upon, or generated by (or at the direction of) the plan in 

connection with the claim, as well as any new or additional rationale for a denial, and a reasonable 

opportunity for the claimant to respond to such new or additional evidence or rationale. See

paragraph (h)(4)(i)-(iii) of the proposal. Although these important protections are direct imports from 

the 2719 Final Rule, they would correct procedural problems evidenced in the litigation even 

predating the ACA. (13) It is the view of the Department that claimants are deprived of a full and fair 

review, as required by section 503 of ERISA, when they are prevented from responding at the 

administrative stage level to evidence and rationales. (14) Accordingly, adding these provisions to the 
Section 503 Regulation would explicitly address this problem and redress the procedural wrongs 

evidenced in the litigation under the current regulation.

As an example of how these new provisions would work, assume the plan denies a claim at the 

initial stage based on a medical report generated by the plan administrator. Also assume the 

claimant appeals the adverse benefit determination and, during the 45-day period the plan has to 

make its decision on appeal, the plan administrator causes a new medical report to be generated by 

a medical specialist who was not involved with developing the first medical report. The proposal 

would require the plan to automatically furnish to the claimant any new evidence in the second 

report. The plan would have to furnish the new evidence to the claimant before the expiration of the 

45-day period. The evidence would have to be furnished as soon as possible and sufficiently in 

advance of the applicable deadline (including an extension if available) in order to give the claimant 

a reasonable opportunity to respond to the new evidence. The plan would be required to consider 

any response from the claimant. If the claimant's response happened to cause the plan to generate 

a third medical report containing new evidence, the plan would have to automatically furnish to the 

claimant any new evidence in the third report. The new evidence would have to be furnished as soon 

as possible and sufficiently in advance of the applicable deadline to allow the claimant a reasonable 

opportunity to respond to the new evidence in the third report.

The proposal contains safeguards for individuals who are not fluent in English. The safeguards 

would require that adverse benefit determinations with respect to disability benefits be provided in a 

culturally and linguistically appropriate manner in certain situations. The safeguards include 

standards that illustrate what would be considered “culturally and linguistically appropriate” in these 

situations. The safeguards and standards are incorporated directly from the 2719 Final Rule and 

reflect public comment on that rule. The relevant standards are contained in paragraph (p) of the 

proposal.

Under the proposed safeguards, if a claimant's address is in a county where 10 percent or more of 

the population residing in that county, as determined based on American Community Survey (ACS) 

data published by the United States Census Bureau, are literate only in the same non-English 

language, notices of adverse benefit determinations to the claimant would have to include a 
prominent one-sentence statement in the relevant non-English language about the availability of 

language services. (18) In addition, the plan would be required to provide a customer assistance 

process (such as a telephone hotline) with oral language services in the non-English language and 

provide written notices in the non-English language upon request. Oral language services includes 

answering questions in any applicable non-English language and providing assistance with filing 

claims and appeals in any applicable non-English language.