January 19,2016 

BY ELECTRONIC MAIL AND FIRST CLASS MAIL 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

RoomM-5655 

U.S. Dept. ofLabor 

200 Constitution A venue NW 

Washington D.C. 20210 

Re: 

RJNNo.: 

Claims Procedure Regulations for Plans Providing Disability Benefits 

1210-AB39 

Regulation: 29 C.FR. §2560.503-1 

Dear Assistant Secretary Borzi: 

We are writing to offer comments on the proposed regulations for amending the claims 

procedure regulations applicable to disability benefit plans. Our firm has been representing 

individuals who are chronically ill and disabled for 20 years under ERISA-governed employee 

welfare benefit plans. Our work has primarily been focused on the representation of individuals 

in short- and long-term disability claims, as well as health, life, long-term care and accidental 

death and disability claims. We have handled thousands of applications for benefits, represented 

clients in the internal appeals process, and litigated these cases in federal court. Our fitm handled 

McDonough v. Aetna Life Insurance Company of America, 783 F. 3d 374(1st Cir. 2015), cited in 

the proposed regulations. The proposed changes to the regulations would have avoided the five 

years of litigation Mr. McDonough endured to prove that the termination of his benefits without 

a thorough vocational evaluation, was required by ERISA. 

It has been over fifteen years since the procedures regarding the administration of claims 

have been updated. Since that time, there have been substantive changes in jurisprudence, which 

have limited our clients' access to the benefits to which they are entitled. The proposed 

regulations address a number of the issues our clients face every day in our practice, most 

significantly, new rationales for benefit denials posed for the first time on appeal with no 

opportunity to respond, the right to obtain all relevant information forming the basis of the 

decision to deny coverage and including internal guidelines. In addition, we are particularly 

heartened by the Department of Labor's ("DOL") request for commentary on the applicable 

statute of limitations, as this is an issue that has, in the last few years, caused unnecessary 

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Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page 12 

litigation for our clients because the accrual date of the contractual limitations period is 

uncertain. 

Our comments are organized as follows. First, we address the most important substantive 

issues for the DOL to address as it finalizes the proposed regulations. Second, we have set out 

what we see as the most important technical issues in the proposed regulations. These are matters 

that do not change the substance of a proposed regulation but request language changes for 

purposes of greater clarity or conformity with other regulations. A voiding ambiguity in the 

regulations will result in reduced litigation for ERISA claimants in the future. 

I. Comments on Substantive Matters in the Proposed Regulations. 

A. Comment on Notice for Applicable Statute of Limitations. 

The DOL has invited comment in the statute of limitations issues that have developed 

since the Supreme Court's decision in Heimeshoff v. Hartford Life & Ace. Ins Co., 134 U.S. 604 

(2013). This is a critical area for regulation as the Heimeshoff decision has resulted in significant 

litigation regarding confusion around the accrual date of the contractual limitations period 

contained in plans. In particular, since Heimeshoff was issued, our firm has regularly filed 

lawsuits while the internal appeals process is pending because the accrual date for the contractual 

limitations period is unclear and insurers refuse to provide guidance regarding the applicable 

deadlines. Not only does this increase the cost of pursuing claims for our clients, it unnecessarily 

clogs the courts' dockets with cases that need to be stayed pending the conclusion of the internal 

appeals process. 

To be clear, prior to filing litigation, our firm writes the insurance company in each case 

asking for clarification regarding the application of the contractual limitations provision, 

including the date the provision accrues and the date by which the insurer believes litigation 

must be filed. With the exception of one insurance company, every disability insurer we have 

written refuses to provide a substantive response to our inquiries. This failure to advise an 

ERISA claimant as to the date their claim accrues causes needless stress, and requires us to file 

preemptive litigation to preserve our clients' rights. This problem is easily resolved by the 

creation of standards for a reasonable plan-based limitations provision in the same way that the 

DOL used its regulatory power to create timing deadlines for the claims process. 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 is in a good position 

to clarify that such an approach would violate the full and fair review required by 29 U.S.C. 

§1133. 

In addition, because contractual limitations periods are plan terms, the DOL should 

require insurers to provide notice regarding the limitations period in the plan just as it requires 

with respect to the application of other plan terms to an individual's claim. As the DOL aptly 

points out in the preamble to these proposed regulations, plan and claims administrators are in a 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page 13 

better position to know the date of the expiration of the limitations period. They should not be 

permitted to hide the ball from claimants if they are functioning as a true fiduciary. 

Our request is not without precedent. At least one court since Heimesho.ffhas interpreted 

the existing regulations to require notice of the expiration of a limitations period. See Kienstra v. 

Carpenters' Health & Welfare Trust Fund of St. Louis, No. 4:12CV53 HEA, 2014 WL 562557, 

at *4 (E.D. Mo. Feb. 13, 2014), affd sub nom. Munro-Kienstra v. Carpenters' Hecdth & Welfare 

Trust Fund of St. Louis, 790 F.3d 799 (8th Cir. 2015)("[a] description of the plan's review 

procedures and the time limits applicable to such procedures, including a statement of the 

claimant's right to bring a civil action under section 502(a) of [ERISA] following an adverse 

benefit determination on review." 29 C.P.R.§ 2560.503-1(g)(iv)). Yet another court has upheld 

a 45-day timeframe for filing litigation. See Davidson v. Walmart Associates Health and Welfare 

Plan, 305 F.Supp.2d 1059 (S.D.Iowa 2004). Prior to Heimeshoff, the federal courts looked to the 

most analogous state statute of limitations to apply to ERISA benefit claim actions. The DOL 

should explicitly prohibit the modification of this rule -.which is in effect, the modification of 

the state statute of limitations through the use of plan language. 

In light of the above, we recommend an amendment to the regulations governing the 

manner and content of notification of benefit determinations on review. 29 C.P.R. §2560.503-

10) [proposed regulation]. The amended language should require the claims administrator to 

notifY the claimant of the date of the expiration of any plan-qased limitations period and the 

accrual date. Such an alteration resolves the different courts' views on when claims "accrue" in 

that it makes clear that no limitations period may begin to run before the internal· claim and 

appeals process is complete. The amended language also makes clear that there Will be_'at least a 

one-year period after the completion of the plan's appeals process in which a claimant can file 

suit. Such a rule would reduce litigation devoted to the threshold issue of the running of the 

limitations period, and provide clarity in an otherwise ambiguous situation. In ·addition, it may 

well lead to a standardization of internal limitations periods that would benefit both claimants 

and plan administrators. 

Accordingly, we propose amending the proposed regulation by adding a section as 

follows and renumbering accordingly (added language is indicated by holding and underlining): 

29 C.P.R. 2560.503-1 G)(6) [proposed regulation] 

In the case of an adverse benefit decision with respect to disability benefits- (i) 

A discussion of the decision, including, to the extent that the plan did not follow 

or agree with the views presented by the claimant to the plan of health care 

professionals treating a claimant or the decisions presented by the claimant to the 

plan of other payers of benefits who granted a claimant's similar claims 

(including disability benefit determinations by the Social Security 

Administration), the basis for disagreeing with their views or decisions; and (ii) 

Either the specific internal rules, guidelines, protocols, standards or other similar 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page 14 

criteria of the plan relied upon in making the adverse determination or, 

alternatively, a statement that such rules, guidelines, protocols, standards or other 

similar criteria of the plan do not exist. 

(7) In the case of an adverse benefit determination on review with respect to 

a claim for disability benefits, a statement of the date by which a claimant 

must bring suit under 502(a) of the Act. However, where the plan includes its 

own contractual limitations period, the contractual limitations period will not 

be reasonable unless: 

a. it begins to run no earlier than the date of the claimant's receipt of the 

final benefit determination on review including any voluntary appeals 

that are taken; 

b. it expires no earlier than 1 year after the date of the claimant's receipt 

of the final benefit determination on review including any voluntary 

appeals that are taken; 

c. the administrator provides notice to the claimant of the date that the 

contractual limitations period will run; and 

d. the contractual limitations period will not abridge any existing state 

limitations period that provides for a period longer than one year. 

(8) In the case· of an adverse benefit determination. on review with respect to a 

claim for disability benefits, the notification shall be provided in a culturally and 

linguistically appropriate manner (as described in paragraph (p) of this section). 

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

The proposed regulations aim to resolve one of the most unfair aspects of the cunent 

internal appeals process: claimants being sandbagged with new rationales or evidence in 

response to their appeal, without an opportunity to respond. This is a persistent problem in the 

ERlSA appeals process. Unfortunately, the courts, without any regulatory guidance, have neither 

found this to a violation of law, nor appreciated how prejudicial this is to claimants. In Abram v. 

Cargill, 395 F.3d 882, 886 (8th Cir. 2005), the court articulated the problem as follows: 

[w]ithout knowing what "inconsistencies" the Plan was attempting to resolve or 

having access to the report the Plan relied on, Abram could not meaningfully 

participate in the appeals process ... This type of "gamesmanship" is inconsistent 

with full and fair review. 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19,2016 

Page 15 

Id Given that it is often very hard to supplement the record in litigation, the proposed change 

offers some assurance that a claimant can contribute his or her relevant evidence to the record 

that the court will review. Where the claimant, as a plaintiff in litigation, has the burden of proof 

on most issues, this only makes sense. In most litigation contexts, the party with the burden of 

proof is given the last word. Here, giving the last word to the claimant during the claims appeal 

process is, in effect, giving claimant the right of rebuttal in litigation. 

In every internal appeal handled by our office, we request from the insurer the 

opportunity to respond to any medical or vocational reviews conducted on appeal in order to 

allow a fair exchange of information. These requests are routinely denied. Claims decisions are 

then ultimately made on the basis of new medical reviews conducted of our clients' records that 

they are foreclosed from responding to, even if based on erroneous information. In one case, the 

insurer relied upon surveillance of the wrong person to deny our client's benefits. Because the 

record was closed, the insurer refused our attempts to respond to this error, and we were forced 

to file suit. If the goal is getting to the truth of a plan participant's disability, then allowing him 

or her the opportunity to respond to new information or rationales for denials on appeal is not 

only necessary, but should be required by law. 

There is certainly a countervailing concern that allowing plan participants the opportunity 

to respond to appellate reviews would make the internal appeals processes last indefinitely. This 

argument is out of touch with the reality of being an ERISA disability benefits claimant. ERISA 

claimants, in our experience, would not continue the process ad nauseum while they are unable 

to pay their mortgages and feed their families. 

The following suggestion places reasonable limits on both claimants and plan 

administrators and responds to the concern that claimants will have to wait too long for 

determinations on review. While claimants will want to make fast work of their responses 

because they are usually without income during this process, the type of evidence they often 

need to respond to may require hiring an expert such as another physician, psychologist, or 

vocational consultant. In our experience, obtaining medical and vocational responses on appeal 

takes at least sixty days. As a result, it is our opinion that participants should be permitted at least 

sixty days to respond to new evidence or rationales provided by the plan on appeal. Moreover, 

the period for the decision on review to be completed should be tolled during this 60-day period. 

When the claimant has responded, the plan administrator should be allowed whatever time was 

left under the existing regulations or 30 days, whichever is longer, to issue its determination on 

review. This rule should apply whether the new information is a new "rationale" for denying 

coverage or constitutes new "evidence." 

Accordingly, we suggest the following amendment to the proposed regulation (new 

language indicated by bolding and underlining): 

2560.503-1(h)(4)(ii) [proposed regulations] 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page !6 

(ii) Provide that, before the plan can issue an adverse benefit determination on 

review on a disability benefit claim, the plan administrator shall provide the 

claimant, free of charge, with any new or additional evidence or rationale 

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

in connection with the claim; such evidence must be provided as soon as possible 

and sufficiently in advance of the date on which the notice of adverse benefit 

determination on review is required to be provided under paragraph (i) of this 

section to give the claimant a reasonable opportunity to respond prior to that date. 

Such new evidence or rationale must be provided to claimant before the 

decision on appeal is issued and the claimant must be afforded up to 60 days 

to respond. The time to render a determination on review will be suspended 

while the claimant responds to the new evidence or rationale. After receiving 

the claimant's response to the new evidence or rationale or notification that 

the claimant will not be providing any response, the plan will have whatever 

time was left on the original appeal resolution time period or 30 days, 

whichever is greater, in which to issue its final decision. 

In our experience, when an insurance company does allow treatment providers or our 

client's experts to respond to medical or vocational reviews conducted by the insurer on appeal, 

denials are often overturned because the meaningful dialogue contemplated by the regulations 

results in a better understanding of our client's disability. This is the essence of the full and fair 

review contemplated by the regulations. 

C. Independence and Impartiality- Avoiding Conflicts of Interest. 

a. Alternative A. 

The proposed regulation regarding the impartiality of claims personnel is essential. We 

applaud the DOL's effort to minimize the effect that biased individuals have on the claims and 

appeals process. However, the proposed regulation needs clarification in three areas. 

First, the proposed regulation should make clear that impartiality is ensured, even where 

the plan, itself, is not directly responsible for hiring or compensating the individuals involved in 

deciding a claim. This clarification is necessary because, as a practical matter, plans frequently 

delegate the selection of experts to third-party vendors who, in turn, employ the experts retained 

to review our client's claims. 

Second, clarification is needed concerning which individuals are "involved." Claims 

administrators often protest that physicians, or other consulting experts, are not "involved in 

making the decision" but merely supply information (such as an opinion on physical restrictions 

and limitations), which is then considered by the claims adjudicator. Under this logic, plans may 

argue that consulting experts are not affected by the impartiality regulation. 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page 17 

Finally, the proposed regulation should make clear that not only claims adjudicators and 

consulting physicians must be impartial. Vocational experts and accountants are also frequently 

used in the claims process and should be included in the scope of the impartiality requirement. 

In light of these concerns, we suggest that the proposed regulation language be amended 

as follows (added language is bolded and underlined): 

29 C.P.R. §2560.503-1(b)(7) [proposed regulation] 

In the case of a plan providing disability benefits, the plan and its agents, 

contractors, or vendors (such as any entities who supply consulting experts to 

plans) must ensure that all claims and appeals for disability benefits are 

adjudicated in a manner designed to ensure the independence and impartiality of 

the persons involved in making the decision or who are consulted in the process 

of making the decision. Accordingly, decisions regarding hiring, compensation, 

termination, promotion, or other similar matters with respect to any individual, 

(such as a claims adjudicator, vocational expert, accounting expert, or medical 

expert) must not be made based upon the likelihood that the individual will 

support the denial of benefits. 

For our clients, where the abuse of discretion standard allows an insurance company to 

hire or employ any expert (medical or vocational) and generally rely solely on that opinion rather 

than that of the treating physicians or experts submitted by the claimant, it is critically important 

to ensure impartiality. If an insurance company is employing the very person who has the fmal 

say as to whether that insurance company is going to pay the claimant, the process lacks the 

specter of neutrality contemplated by ERISA. For clients who have worked their entire lives and 

find themselves in circumstances they never expected, it would be unfortunate to allow bias to 

prevent them from receiving benefits they have not only paid premiums for, but also deserve, 

solely due to the hiring practices of an insurance company or third party vendor. The inherent 

conflict of interest that exists in the claim process can be mitigated by changes to the proposed 

regulations. 

b. Alternative B. 

The proposed regulation appears to prohibit the plan from employing claims adjudicators 

or experts who are conflicted. However, the regulation requires more clarity to prevent needless 

litigation over mixed motives for using these individuals. The regulation should make clear that 

if the conflict plays any part in the decision to retain, hire, or compensate the claims handler or 

other expert, the decision would violate the regulations. In light of these concerns, we suggest 

that the proposed regulation language be amended as follows (added language is bolded and 

underlined): 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page 18 

29 C.P.R. §2560.503-1(b)(7) [proposed regulation] 

Accordingly, decisions regarding hiring, compensation, termination, promotion, 

or other similar matters with respect to any individual (such as a claims 

adjudicator or medical expert) must not be made based upon the likelihood, in 

whole or in part, that the individual will support the denial of benefits. 

D. Opportunity to Supplement the Record. 

In our practice we have found that few insurers will consider evidence submitted after a 

fmal appeal denial, but prior to litigation. However, in our experience, when such information is 

allowed to be submitted, it can avoid litigation all together. It is therefore imperative that a 

claimant be allowed to supplement the record. This is true for both Social Security Disability 

Insurance ("SSDI") decisions, as well for other kinds of evidence. The problem becomes that if 

the door is shut by the insurer, litigation becomes necessary for new, relevant, and potentially 

dispositive evidence to be reviewed, regardless of the merits of our clients' claims. We have had 

several cases where the insurer has refused to consider a SSDI decision that, while filed 

contemporaneously with the claim for disability benefits, is rendered after the conclusion of the 

internal appeals process. In each case, the insurer has refused to consider the SSDI decision. 

However, they often file a counterclaim to recover the offset that is provided by the SSDI 

benefit. Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). 

Similarly, many of our clients are correctly diagnosed only after the internal appeals 

process has concluded. The failure to obtain a correct diagnosis in a timely manner is not the 

fault of our clients, who often see innumerable specialists before a diagnosis is made and 

treatment initiated. In such situations, we often submit updated medical records to the insurer 

explaining the basis for our client's limitations, but to no avail, as the record was closed with the 

fmal denial. Accordingly, we recommend a rule that would require the plan administrator to 

accept and review evidence and treat it as part of the record, as long- as it is sent in time for the 

administrator to consider the evidence before litigation is commenced. 

Time and again, information we have sought to submit after the close of the internal 

appeals process would have made a critical difference in proving our client's case. The goal of 

the decision-making process should be to discover the truth, not to use the regulations as a shield 

to turn a blind eye to information that directly bears on our clients' eligibility for benefits. 

E. Discussion of the Decision and Its Relationship to SSDI or other Disability Awards. 

Similarly, unnecessary litigation could be avoided if the regulation requiring a discussion 

about the difference between the plan's decision and awards made by the Social Security 

Administration ("SSA"), or other systems, were expanded to set forth a deferential review 

requirement. Many state insurance commissioners found language to discuss this very issue in 

response to concerns regarding Unum and other disability insurers. The regulatory settlement 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page 19 

agreement with Unum provides language that requires a full explanation of the insurer's decision 

and how it varies from the Social Security Administration: 

The Companies must give significant weight to evidence of an award of Social 

Security disability benefits as supporting a finding of disability, unless the 

Companies have compelling evidence that the decision of the Social Security 

Administration was (i) founded on an error of law or an abuse of discretion, (ii) 

inconsistent with the applicable medical evidence, or (iii) inconsistent with the 

definition of disability contained in the applicable insurance policy. 

A similar mle would be avoid those situations where our clients have been approved for 

SSDI benefits on the basis of the same information provided to the insurer for review, but 

disability benefits denied without explanation. The SSA is an independent agency, unfettered by 

conflict. Insurers should be required to deal directly with the decision of the SSA, and if deciding 

the reject the decision, explain why. This is neither burdensome nor difficult. It is what insurers 

are required to do every day with respect to the medical information in the record. 

II. Comments on Technical Matters in the Proposed Regulations. 

A. Effective Date of Proposed Regulations. 

To avoid the application of the previous regulations to disability claims that are already in 

process before the effective date, we suggest the following text be added: 

The regulations shall apply to all claims pending with the plan fiduciary on 

or after the date that the regulations go into effect. 

The holding in Abram v. Cargill, 395 F.3d 882 (8th Cir. 2005), was seriously undermined 

when the Eighth Circuit later concluded that its decision in Abram was grounded in the pre-2000 

version of the claims regulations and would not apply to cases decided under the post-2000 

claims regulations. See Midgett Washington Group Int'l LTD Plan, 561 F.3d 887, 894-96 (8th 

Cir. 2009). To avoid this sort of problem occurring again, the above suggested language should 

be added to the proposed regulations. 

B. Notice of Right to Request Relevant Documents. 

The regulation concerning notice of the right to request relevant documents contained in 

29 C.P.R. §2560.503-1(g)(l)(vii)(C) [proposed regulation] is an improvement since it was 

formerly missing from the regulation. However, it would be significantly more helpful to 

claimants to use the words "claim file," which is plain language and is consistent with the 

amendment at 29 C.P.R. §2560.503-l(h)(4)(i) [proposed regulation]. Attorneys understand the 

language of (g)(1)(vii)(C), but lay persons, who are the actual participants and often not 

represented by counsel, may not realize what rights are given by the proposed regulation. 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page 110 

Accordingly, we suggest the following amendment to the proposed regulation (added 

language is underlined and bolded): 

29 C.P.R. §2560.503-1 (g)(1 )(vii)( C) [proposed regulation] 

A statement that the claimant is entitled to receive, upon request and free of 

charge, reasonable access to the claimant's claim file, including copies of all 

documents, records, and other information relevant to the claimant's claim for 

benefits. Whether a document, record, or other information is relevant to a claim 

for benefits shall be determined by reference to paragraph (m)(8) of this section. 

C. Deemed Exhaustion Drafting Issue. 

This regulation should be edited to clarify that the deemed exhausted provision applies to 

both claims and appeals, not just "claims." Presumably, if there is a violation of the regulations, 

the claimant may seek review regardless of whether the claim is in the "claim" or the "appeal" 

stage. We suggest the following clarifying language (added language is bolded and underlined): 

29 C.P.R. §2560.503-1(1)(2)(i) [proposed regulation] 

In the case of a claim for disability benefits, if the plan fails to strictly adhere to 

all the requirements of this section with respect to a claim or appeal, 

D. Right to the Claim File and Meaning of Testimony. 

There is a lack of clarity in the proposed regulations concerning what manner of 

"testimony" is contemplated by the new regulations. 

In the preamble to the proposed regulations, the DOL has stated: "the proposal would 

also grant the claimant a right to respond to the new infmmation by explicitly providing 

claimants the right to present evidence and written testimony as part of the claims and appeals 

process." Note the underscored language refers to "written testimony." But the actual proposed 

regulation uses this phrasing: "[the processes for disability claims must] allow a claimant to 

review the claim file and to present evidence and testimony as part of the disability benefit 

claims and appeals process." 29 C.P.R. §2560.503-1(h)(4)(i)[proposed regulation]. Here the 

regulation refers to "testimony" without limiting the type of testimony to "written" testimony. 

By comparison, the current regulation uses the following language: "[the process must] 

provide claimants the opportunity to submit written comments, documents, records, and other 

information relating to the claim for benefits." 29 C.P.R. 2560.503-1(h)(ii)(2)[current 

regulation]. 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page 111 

Hence, there is an inconsistency between the preamble and the proposed regulations in 

that the preamble specifies "written testimony" whereas the proposed regulations simply states 

"testimony." We anticipate this leading to costly disagreements in litigation over whether the 

regulation contemplates actual live testimony, i.e. a hearing. 

Furthermore, under the current regulations, claimants often submit "testimony" in the 

form of an audio or video CD. This is particularly useful in cases where, due to physical, 

cognitive, or mental disability, the claimant cannot read or write so that a written statement is 

impossible. We have also found visual presentations of our clients' lives speak volumes 

regarding their limitations. As such, we are concerned that the reference to "written testimony" 

in the preamble might give plans the ammunition to disallow any audio or video submissions on 

the grounds that these forms of evidence do not represent "written evidence." If this were the 

interpretation given to the language in the proposed regulation, it would actually put claimants in 

a worse position than they face at present. 

Further, the proposed regulation's verbiage, i.e. "evidence and testimony" could be 

interpreted to impose courtroom evidentiary standards for claimants submitting proof of their 

claim - something that is not normally applied in the ERISA context. Plans are in a position to 

observe rules of evidence as they have in-house counsel and other legal resources to rely upon to 

assure compliance with the rules of evidence. But claimants, who are often representing 

themselves, are not equipped to understand, much less apply, the usual evidentiary standards 

suggested by the phrase "evidence and testimony." The DOL needs to make clear that it is not 

curtailing or narrowing the types of information that claimants may submit to the administrator. 

III. Other Issues of Concern with the Regulations. 

A. Disclosure of Internal Rules etc. 

The DOL's proposed regulation regarding disclosure of the internal rules or criteria used 

to make a disability benefit decision, 29 C.P.R. §2560.503-1(g)(l)(vii)(B)[proposed regulation], 

is helpful because internal rules, guidelines, protocols, standards, claims manuals, and similar 

materials often create hidden plan terms that the claimant is unable to learn of or discover in 

order to address them in the appeal. As is true in the healthcare context, plans sometimes argue 

that internal criteria are confidential or proprietary. But keeping the rules that are used to 

administer a plan a secret is inconsistent with the most basic premise of ERISA. Benefits must be 

administered "in accordance with the documents and instruments governing the plan." 29 U.S. C. 

§ 11 04. In addition, much litigation would be avoided if the claimant could know what criteria he 

or she needed to meet in an appeal. In fact, we are often placed in the position of having to file 

costly discovery motions to obtain the internal guidelines required to be disclosed by the current 

regulations. These internal guidelines often make the difference between winning or losing for 

our clients. See e.g. Glista v. Unum Life Ins. Co. of Am., 378 F.3d 113 (1st Cir. 2004). Given that 

the regulations require adverse benefit determinations to include the reasons for the denial and 

the applicable plan terms, this additional requirement should not be onerous and would promote 
Assistant Secretary Borzi 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

January 19, 2016 

Page 112 

the dialogue between claimant and plan that ERISA contemplates. Booten v. Lockheed Med Ben 

Plan, 110 F.3d 1461, 1463 (9th Cir. 1997)("in simple English, what this regulation calls for is a 

meaningful dialogue between ERISA plan administrators and their beneficiaries."). 

B. Notice of Right to Retain Counsel for Appeal. 

ERISA claimants who have been wrongly denied disability benefits or whose benefits 

have been terminated are often unaware of the process required to appeal the decision or that 

they are able to retain counsel to assist with process. In fact, a significant number of our clients 

were told by claims representatives to simply send the insurer a letter stating that they appeal the 

adverse decision. Claimants do so, the denial is upheld, and an incomplete record exists that 

makes prevailing in litigation virtually impossible. These individuals, debilitated by their illness, 

with families overwhelmed by the loss of income and caring for a sick family member, neither 

appreciate the type and nature of the evidence that needs to be submitted during the internal 

appeals process, or the ramifications of failing to do so. As a result, we propose that the DOL 

adopt a regulation that ERISA administrators must advise claimants of their right to hire an 

attorney to represent them during the internal appeals process. The Social Security 

Administration does this. There is no reason to hide this right from claimants. 

Thank you for the opportunity to submit a response to the proposed regulations. 

Please do not hesitate to contact us with any questions or concerns. 

Sincerel~y, 

MalaM 

~ 

On behalf of Rosenfeld Rafik & 

Sullivan, P.C.