October 25, 2017

Sent Via 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

Examination

RIN No.: 1210-AB39

Regulation: 29 C.F.R. §2560.503-1

Dear Deputy Assistant Secretary Hauser,

Over the past twelve years I have represented hundreds of individuals in their 

claims for disability benefits under ERISA-governed disability plans at all stages in the

process (claim filing, pre-litigation appeals, district court litigation, and Circuit court 

appeals). In addition to being on the front lines, I regularly research, write, and speak 

about ERISA disability benefit claim issues. For example, every week I review and 

publish short summaries on recent ERISA case decisions, many of which arise in the

disability benefit context. I’m also a regular contributing author for the ERISA Litigation 

(Bloomberg BNA) book and the Employee Benefits Law (Bloomberg BNA) book. 

I am writing because the Department’s proposed delay of the final regulations 

raises serious issues regarding transparency in the rule-making process. The Department 

finalized rules after an extensive notice and comment period that provided 60 days and 

yielded numerous comments from various stakeholders. Insurers and plans, and the 

organizations that represent them, were vocal in the process. Many of industry comments 

suggested that there were cost issues associated with implementing the rules. Those 

comments were highly speculative and not supported by any relevant data. The industry 

comments asked for more time to adjust to the new rules and the Department honored 

this request by significantly delaying the effective date. 
Now we are told that other input is being relied upon - information that could 

have been contributed during the proper notice and comment period but somehow was

not. The ERISA participants and their representatives have no way to respond to this 

input, since it is not being made available. The public is not being told why this post 

notice and comment information is more valuable than what was collected during the 

notice and comment period itself. It is clear that there were meetings with industry 

representatives and that the industry and certain members of Congress sent letters, but the 

content of these meetings and letters are not entirely disclosed. The industry apparently 

referenced a “confidential” study that predicts an increase in premiums. It is likewise 

curious that the very short 15-day notice and comment period does not even provide time 

for an individual to make a FOIA request to uncover what is influencing this process. 

To make matters worse, the industry study that the Department is now proposing 

seems to allow for this process to become even less transparent. The industry will collect 

data in a way that will be hidden from the public, and based on this, the Department 

proposes to make a new decision on how to protect participants’ rights reasonable 

procedures in the adjudication of disability benefits. Such an endeavor is completely 

unfair to plan participants. There is no way that participants can effectively comment or 

provide their own “study,” since they are not in possession of the data and could not 

muster the resources to process it, even if they were. 

I do not assume that the industry is correct in estimating that premiums for group 

disability benefits would increase by 5-8%. But to the extent that premiums would be 

increased to provide real coverage, ERISA participants would likely welcome this and it 

would present no additional burden to public programs. If the difference in premiums is 

the difference between paying something for nothing and paying something for 

something, the argument surrounding the increase rings hollow. To the extent the 

Department thinks a delay is needed to prevent such an increase, this needs to be 

reconsidered, as the costs will not outweigh the benefits even in the worst case scenario. 

I ask that the effective date of the regulations not be delayed, since the reason for 

doing so lacks the necessary transparency and undermines the sense of trust and fairness

that should inhere in this rule-making process. 

Thank you considering my comments,

Michelle Roberts Bartolic, Esq.

Roberts Bartolic LLP, Partner