From: David Lilienstein 

Sent: Monday, December 11, 2017 1:36 AM

To: EBSA, E-ORI - EBSA

Subject: 1210-AB39 Please, NO MORE UNNECESSARY DELAYS

Via EMAIL

Office of Regulations and Interpretations

Employee Benefits Security Administration

Room M-5655

U.S. Dept of LAbor

200 Constitution Avenue NW

Washington, DC 20210

re: Examination of Claims Procedures Regulations for Plans Providing Disability Benefits

RIN No: 1210-AB39

Regulation: 29 C.F.R. Section 2560.503

Dear Deputy Assistant Secretary Hauser, and any other interested individuals:

With this letter I strongly encourage you to ensure there are no further delays with the disability 

claims regulations that are scheduled to go into effect on April 1, 2018. Specifically, I refer to 

the Final Regulations of Claims Procedure for Plans Providing Disability Benefits, 81 Fed. Reg. 

92316 (Dec. 9, 2016).

I am an attorney with almost two decades of experience with ERISA disability claims 

procedures. I have assisted disabled ERISA insureds with the initial claims process, I have 

helped draft appeals, I have litigated ERISA actions in both state and federal courts, and I have 

participated in appellate appeals of ERISA actions. Most of these actions are individual 

disability actions; some have been ERISA class actions. At almost every level of participation, 

the claims procedures come into play, and I can say with absolute certainty, based on years and 

years of experience and hundreds and hundreds of cases, that these procedures directly impact 

individual americans' access to their disability benefits, and as such directly impact Congress' 

intent with in originally passed the Employment Income Security Act.

It is regrettable that this email is necessary, as these newest final rules governing disability 

claims took a long time to write, and were the result of a long, deliberative process, during which 

all parties had plenty of opportunity to be heard. I have reviewed the newest, latest industry 

objections to the final rules, and there is nothing new about them. They simply attempt to relitigate the merits of the final rules. In short, there is no there there. Further delay is not 

necessary, and will accomplish very litte other than consuming precious time and resources of 

you and your staff.

Specifically, the industry contends that the final rules will increase costs that will increase 

premiums that will result in fewer individuals receiving disability benefits. This is a chimera. It 
is the industry's go-to argument to justify delay and maintain the status quo. It has been 

considered and rejected, and is baseless. It is also not a basis for further delay, as an agency is 

not required to "conduct a formal costs-benefit analysis in which each advantage and 

disadvantage is assigned a monetary value." Michigan v. Environmental Prot. Agency., 135 

S.Ct. 1699, 2711 (2015).

As to specific data addressing whether costs increased after the last set of rule updates, I note that 

I have not seen anything affrimatively demonstrating that this actually happened. To the 

contrary, the data I have seen shows that access to employer-spoonsored disability insurance 

increased since the turn of the century. Please refer to the department of Labor's own 

information, at https://www.bls.gov/opub/btn/volume-4/disability-insurance-plans.htm.

On the issue of the impact of discretionary clauses on disability premiums, here again the 

industry cries wolf, and the real issue is the fines and regulatory settlement agreements that two 

of the largest insurers, UNUM and CIGNA, were subject to, due to their allegedly unfair and 

unlawful claims handling procedures. Go here:

http://www.maine.gov/pfr/insurance/publications_reports/exam_rpts/2004/unum_multistate/unu

m_multistate.html; 

http://www.maine.gov/pfr/insurance/publications_reports/exam_rpts/2009/pdf/cigna_mcreport_2

009.pdf. 

https://www.insurance.ca.gov/0400-news/0100-press releases/2013/release044-13.cfm

Given this history, I urge you and your staff to consider industry complaints and assertions with 

a very skeptical eye, and not to change or delay any of the final rules because of unfounded 

industry complaints. 

To be sure, the benefits of these new procedures far outweigh any purported costs of 

implementation. The Department has already stated that the purpose of these procedures is to 

ensure that claims are fairly adjudicated, and to prevent unnecessary financial and emotional 

hardship. Further delay would abandon these pruposes. To the exente that there might be some, 

existential, costs involved, the Department is not required to avoid all regulations that may 

impact the market in some way. Mkt. Synergy Group v. United States Dept. of Labor, 2016 U.S. 

Dist. Lexis 163663, 2016 Westlaw 6948061 (D.Jan. 11/28/2016). 

Also to be sure, there are plenty of other changes to the claims procedure that would benefit 

insureds throughout the United States that were not passed. Let's start with access to jury trials--

currently ERISA insureds are denied this Constitutional guarantee. Discretionary clauses, in 

those states where they still exist, slant the playing field dramatically against insures. Nothing in 

the new procedures will undo this unfairness. 

This, of course, is only the tip of the iceberg. As one court has said, there will never be a level 

playing field in ERISA matters, much less one that favors plan participants. United States v. 

Aegerion Pharmaceuticals, Inc., 2017 Westlaw 5586728 at *7 (D. Mass. 2017). 
Yours sincerely,

DAVID LILIENSTEIN

DL LAW GROUP

--

DAVID LILIENSTEIN, ESQ.

DL LAW GROUP

CONSUMER REPRESENTATION 

INSURANCE BAD FAITH EXPERTS

345 Franklin St

San Francisco, CA 94102

David@dllawgroup.com

Tel: 415-678-5050

Direct Cell: 415-392-2289

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