From: Bob June [mailto:bobjune@junelaw.com] 

Sent: Monday, January 18, 2016 9:59 PM

To: EBSA, E-ORI - EBSA

Subject: RIN 1210-AB39

January 18, 2016

Via Email: e-ORI@dol.gov

Ms. Phyllis C. Borzi

Office of Regulations and Interpretations

Employee Benefits Security Administration

U.S. Department of Labor

200 Constitution Avenue NW

Washington, DC 20210

Re: RIN 1210-AB39

Claims Procedure for Plans Providing Disability Benefits

Dear Assistant Secretary Borzi:

Thank you preparing the proposed rulemaking on entitled Claims Procedure 

for Plans Providing Disability Benefits, RIN 1210-AB39. I greatly appreciate the 

obvious effort that went into this proposed rulemaking.

I am an attorney representing claimants in ERISA disability cases, and I 

have been doing so for most of my 21 years of practicing law. Unnecessary 

procedural obstacles frequently prevent claimants from obtaining the benefits to 

which they are otherwise entitled, and I believe the proposed rules will provide 

great help in this regard. I offer these specific comments regarding a few of the 

proposed changes.

Right to Review and Respond to New Information Before Final Decision

This proposal is very important. In all too many cases, I have seen insurers 

and claims administrators completely change their rationale when issuing an 

appeal denial. In some cases, the administrator admits that the initial decision was 

completely flawed, but the administrator then claims that there is an entirely new 

basis for denying the claim. But declaring that all appeals have been exhausted, 

the administrator refuses to accept any response to the new rationale, compelling 

the claimant to file suit. Some courts reviewing these claims then determine that 
there was a procedural flaw defeating the claimant's right to a full and fair review, 

but the remedy is simply to remand the claim to the administrator to process a 

response to the appeal decision. The result is an unnecessarily prolonged process 

that frustrates claimants and consumes court resources. Requiring administrators 

to afford claimants a reasonable opportunity to respond to new information before 

finalizing the claim decision will do a great deal to solve this problem. Coupled 

with the proposed requirements for detailed articulation of the rationale for a 

benefit denial, I believe this provision will eliminate many procedural defects in 

ERISA disability claims and truly ensure that claimants receive a full and fair 

review in the administrative process.

Requiring a Statement of the Applicable Limitation Period

I believe it is very important to address notification of the applicable 

statutory or contractual limitation period in the proposed regulations. The Sixth 

Circuit has taken a step in the right direction with the decision in Moyer v. 

Metropolitan Life Insurance Co., 762 F.3d 503, 505 (6th Cir. 2014). More needs 

to be done. I have represented a claimant in one case where the insurer paid 

benefits for the initial two-year "own occupation" period, but then denied 

subsequent benefits under an "any occupation" standard. However, the insurer 

argued that, under its convoluted contractual limitation period, the claim had 

accrued and the limitation period began long before the denial, while the benefits 

were still being paid during the "own occupation" period. This is simply unfair. 

The limitation period should not begin to run until a final administrative denial of 

the claim appeal is issued, at the point when the claimant first becomes entitled to 

file a lawsuit. Accordingly, I believe it is very important for the final regulation to 

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 to prohibit 

the contractual limitations period from beginning to run before that final notice of 

adverse benefit determination on appeal is issued.

Deemed Exhaustion of Claims and Appeals Processes

The proposed changes in the regulation relating to claims that are "deemed 

exhausted" is also very important. Particularly where administrators flagrantly 

violate established claim procedures, it is essential to afford claimants a de novo

evidentiary hearing of the claim in district court. Right now, it is possible for an 

administrator to violate the claims regulations and plan procedures in such a 

manner as to defeat the purpose of the appeal procedure entirely, and if the 
claimant proves the violation is substantial, the administrator may then expect to 

get a remand where it will once again enjoy deferential review. This should not be 

permitted. A substantial deviation from the claims procedure should mandate a de 

novo evidentiary hearing in the district court in order to preserve the claimant's 

right to a full and fair review. The provision permitting the administrator to show 

that a violation was de minimis is reasonable, provided that this burden is not 

inadvertently shifted to the claimant. A claimant should not be required to prove a 

negative – that the procedural violation was not de minimis – in order to obtain a 

de novo evidentiary hearing under these circumstances. This is a matter of 

fundamental fairness.

I greatly appreciate this opportunity to comment on the proposed 

regulations, and I strongly support adoption of the proposed regulatory changes. 

Thank you.

Respectfully submitted,

s/Robert B. June

Robert B. June

Law Offices of Robert June, P.C.

415 Detroit Street, 2nd Floor

Ann Arbor, MI 48104-1117

Phone: (734) 481-1000

Email: bobjune@junelaw.com

Dated: January 18, 2016