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Submitted by email to e-ORI@dol.gov 

October 27, 2017 

Office of Regulations and Interpretations 

Employee Benefits Security Administration 

Room N-5655 

U.S. Department of Labor 

200 Constitution Avenue, NW 

Washington, DC 20210 

Attn: Claims Procedures for Plans Providing 

Disability Benefits Examination

Re: RIN 1210-AB39

Docket ID: EBSA-2015-0017-0291

Ladies and Gentlemen: 

The American Federation of Labor and Congress of Industrial 

Organizations (“AFL-CIO”) is pleased to submit these comments to the 

Department of Labor (“DoL” or “Department”) on its Notice of Proposed 

Rulemaking (“NPRM”)1to extend for 90 days the applicability date of the Final 

Rule2amending the disability claims procedure requirements under the Employee 

Retirement Income Security Act of 1974, as amended (“ERISA”) for employee 

benefit plans that provide disability benefits. 

Currently, the Rule is scheduled to apply to disability benefit claims under 

ERISA-covered employee benefit plans filed on or after January 1, 2018. DoL 

states that the purpose of the proposed delay is to enable the Department to obtain 

additional public input on the Final Rule’s impact on affected entities and then

 

1 The Notice, published in the Federal Register on October 12, 2017 (82 Fed. Reg. 

47409), is available at https://www.gpo.gov/fdsys/pkg/FR-2017-10-12/pdf/2017-22082.pdf.

2

 The Final Rule, published in the Federal Register on December 19, 2016 (81 Fed. Reg. 

92316), is available at https://www.gpo.gov/fdsys/pkg/FR-2016-12-19/pdf/2016-30070.pdf.
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October 27, 2017

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consider regulatory alternatives that ensure the full and fair review of disability benefit claims 

“while not imposing unnecessary costs and adverse consequences.” 3

The AFL-CIO supports the Final Rule at issue moving forward on schedule in its current 

form; for the reasons discussed below, we see no justifiable reason for delaying its 

implementation. 

The AFL-CIO is a voluntary, democratic federation of 56 national and international labor 

unions that collectively represent 12.5 million working people. We work every day to improve 

the lives of people who work for a living. We help people who want to join together in unions so 

they can bargain collectively with their employers for fair pay and working conditions and the 

best way to get a good job done. Our core mission is to ensure that working people are treated 

fairly and with respect, that their hard work is rewarded, and that their workplaces are safe. 

Further, to help our nation build a workforce with the skills and job readiness for 21st century 

work, we operate the largest training network outside the U.S. military. We also provide an 

independent voice in politics and legislation for working women and men and make their voices 

heard in corporate boardrooms and the financial system. 

All working people have a stake in public policy that affects their income security and 

that includes the rules that determine whether the systems of earned public and private benefit 

plans work for them. Private disability benefits earned on the job are uniquely important because 

of the protections they provide when a working family endures the inherently simultaneous 

health and financial crises associated with the onset of a disability, regardless of whether it is a 

short- or long-term episode. Workers face a significant risk of becoming disabled: Before 

reaching retirement age, 1-in-4 20-year-old workers insured by Social Security, for example, will 

become unable to work for a year or longer at some point.

4 Among some particular occupations, 

and when periods less than a year are considered, the incidence of disability that interferes with 

the ability to work is even more common. Nevertheless, critical social insurance systems for 

workers who suffer from disabilities are far from adequate, meaning private coverage has an 

important role to play.5

 

3 82 Fed. Reg. 47409

4

Johanna Maleh and Tiffany Bosley, Social Security Administration, Office of the Chief Actuary, 

“Disability and Death Probability Tables for Insured Workers Born in 1997,” Actuarial Note No. 2017.6 (Oct. 2017) 

t. E available at https://www.ssa.gov/OACT/.

5 Social Security Disability Insurance covers long-term disabilities only and provides very modest benefit 

amounts. States increasingly have cut workers’ compensation benefits by restricting eligibility and reducing benefit 

amounts. Nick Buffie and Dean Baker, Rising Disability Payments: Are Cuts to Workers’ Compensation Part of the 

Story? (Center for Economic and Policy Research Oct. 2015) p. 4 available at http://cepr.net/documents/risingdisability-payments-2015-10.pdf. 
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October 27, 2017

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Union members have a significant stake in ERISA-covered employee benefit plans 

having fair disability claims procedures so that plan participants receive the benefits to which 

they are entitled in the event a disability renders them unable to work. Private-sector union 

members are more likely to participate in disability plans through work, often through their 

collectively bargained defined benefit pension plans.6

The Final Rule

Last year, with the aim of ensuring a full and fair disability claims review process, and in 

support of recommendations made by the ERISA Advisory Council,

7

the Department, under its 

regulatory authority,

8 updated its regulations as to the minimum procedural protections and 

 

6 A significantly greater number of union-represented, than non-represented, workers in the private sector 

participate in short-term disability plans— i.e. 65% of union workers vs. 37% of non- represented workers. U.S. 

Dept. of Labor, U.S. Bureau of Labor Statistics, National Compensation Survey: Employee Benefits in the United 

States, March 2017, Bulletin 2787 (Sept. 2017), t.16, “Insurance Benefits: Access, participation and take-up rates, 

private industry workers,” available at https://www.bls.gov/ncs/ebs/benefits/2017/ownership/private/table16a.pdf. 

Worker participation in both short-term and long-term disability benefit coverage is lower than other workplace 

benefits. In the private sector, only 40 percent of workers participate in short-term disability benefits and 32 percent 

do so with respect to long-term disability benefits. The participation rate differential for long-term disability 

benefits between represented and non-represented workers is only 6 percentage points, significantly smaller than the 

28 percentage point differential for short-term disability benefits. National Compensation Survey: Employee 

Benefits in the United States, March 2017, t.2, “Retirement benefits: Access, participation, and take-up rates, private 

industry workers, March 2017.” Further, collectively bargained defined benefits plans, in which two-thirds of 

private-sector union members participate, typically include this coverage. U.S. Bureau of Labor Statistics, National 

Compensation Survey: Health and Retirement Plan Provisions in Private Industry in the United States, 2014, 

Bulletin 2781 (April 2015), t.26, “Defined benefit plans: Availability of selected benefit features, private industry 

workers,” available at https://www.bls.gov/ncs/ebs/detailedprovisions/2014/ownership/private/ebbl0056.pdf. 

7

In 2012, the independent ERISA Advisory Council urged the Department to reexamine the disability 

claims procedure because of evidence that the existing claim procedure regulations were not protecting plan 

participants as intended. “The Council was made aware of reoccurring issues and administrative practices that 

participants and beneficiaries face when appealing a claim that may be inconsistent with the existing regulations.” 

2012 ERISA Advisory Council Report, Managing Disability Risks In An Environment of Individual 

Responsibility,” p. 6, available at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/about-us/erisa-advisorycouncil/2012ACreport2.pdf

8 Section 503 requires employee benefit plans to establish and maintain reasonable procedures regarding 

the filing of benefit claims, notification of benefit determinations, and appeal of adverse benefit determinations. See

29 USC §§1133 and 1135.
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safeguards required of plans offering disability benefits.9 The AFL-CIO filed comments in 

support of this action.10

The Department tailored the Final Rule, published on December 19, 2016, with an 

effective date of January 18, 201711 to achieve the following important objectives that build on 

the claims procedure regulations the Department adopted in 2000 providing enhanced protection 

for disability benefits:

12

 

• Ensure that disability claims and appeals are adjudicated independently and 

impartially; 

• Provide a full discussion of all reasons for a claim denial; 

• Ensure that claimants have access to their entire claim file and other relevant 

documents and be guaranteed the right to present evidence supporting their claim 

during the review process; 

• Provide claimants with an opportunity to respond to new evidence and rationale at 

the appeal level; 

• Ensure that claimants have the opportunity to seek court review if the plan fails in 

a major way to comply with claims procedure requirements; 

• Provide that certain coverage rescissions be treated as adverse benefit 

determinations, triggering a plan’s appeals procedures; and 

• Require that claims and appeals notices and disclosures are written in a culturally 

and linguistically appropriate manner. 

The Regulatory Impact Analysis (“RIA”) accompanying the Final Rule13 reflects the 

Department’s thorough consideration of all comments filed during the rulemaking. The RIA 

 

9 See 29 CFR §2560.503-1.

10

 Our comments in support of the proposed Rule, published on November 18, 2015, are available at

https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/public-comments/1210-

AB39/00100.pdf. With a few clarifications, the Final Rule largely tracked the proposed Rule.

11 As the Department made clear in its Regulatory Impact Analysis, the Department carefully incorporated 

into the Final Rule only certain of the procedural protections and safeguards added by the ACA to the claims 

procedures for group health plans, and made several adjustments to the ACA requirements to account for the 

different features and characteristics of disability benefit claims. 

12 Employee Retirement Income Security Act of 1974; Rules and Regulations for Administration and 

Enforcement; Claims Procedure; Final Rule, 65 Fed.Reg. 70246 (Nov. 21, 2000), available at

https://www.gpo.gov/fdsys/pkg/FR-2000-11-21/pdf/00-29766.pdf amended at 66 Fed. Reg. 35887 (July 9, 2001)

available at https://www.gpo.gov/fdsys/pkg/FR-2001-07-09/pdf/01-17145.pdf. 

13 The RIA is Part III of the preamble to the Final Rule at pages 92331 through 92340. 
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concludes that the Rule will entail minimal cost,14 and that its expansion of claimants’ due 

process rights is necessary if they are to receive a full and fair review. Specifically, the RIA 

shows how the Final Rule will: alleviate the hardship of those who have become so disabled that 

they are unable to work, but whose claims are denied; result in greater consistency in the 

handling of disability claims and appeals; improve access to information about how claims and 

appeals are adjudicated; and lead to efficiency gains at both the macro-economic and individual 

plan levels. 

As to the Rule’s potential costs, the RIA is clear that opponents failed to offer evidence to 

support their allegations of cost burden.15 Even so, in response to assertions that it 

underestimated costs, the Department adjusted the Final Rule to reflect those concerns.16

Furthermore, there were several requirements opponents expressly supported. 17

As the RIA notes, the comments received from some industry groups support the 

conclusion that the allegedly “burdensome” protections adopted in the Final Rule reflect best 

practices that many insurers and benefit provides already follow voluntarily. 

 

14 The RIA addresses each cost objection one-by-one. 

15 See, e.g., RIA at 92335 (“The commentator provided no alternative estimates or data supporting their 

assertions that the Department could use to revise its cost estimates [for staff to identify, and respond to, the 

additional new information or rationale required in the event of an adverse benefit determination or that this new 

information would trigger a response by the claimant which would entail a costly response].” RIA at 92338 (“One 

commentator questioned whether the $500 per document translation cost accurately reflects the costs to comply with 

this provision. The commentator, however, failed to explain its rationale or provide any alternative information the 

Department could use to refine its estimate.”); and RIA at 92339 (“While all these scenarios [of increased litigation 

and the accompanying costs] are possible, the Department does not know of, nor did commentators provide, any 

data or information that would even be suggestive of, the frequency of these events, or the added expense resulting 

from their occurrence.”)

16 RIA at 92332.

17 For example, “The Department received numerous comments either generally supporting or not 

objecting to the idea that the independence and impartiality requirements for disability claims procedures should be 

consistent with the ACA’s claims procedures requirements for group health plans.” RIA at 92319. Further, no 

objections were made to the requirement that an adverse benefit determination at the initial claims stage include a 

statement that the claimant must receive, upon request, documents relevant to the benefits claim [RIA at 92324]; or 

to the requirement in an adverse benefit determination to explain a disagreement with a treating health care 

professional [RIA at 92320]; or to the amending of “adverse benefit determination” to include a rescission of 

disability benefit coverage that has a retroactive effect. RIA at 92328. 
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No Legitimate Justification for a Delay 

The Final Rule and supporting RIA were published less than a year ago. In the short time 

since then, we have seen no evidence that would minimize the Rule’s projected benefits. The 

Department, however, has decided to propose a delay in the applicability date based on 

unsupported assertions by insurance industry and employer lobbying groups and their 

representatives that the Rule “will drive up costs, cause an increase in litigation and thus impair 

workers’ access to disability insurance protections.”18

For example, in the preamble to the proposed rule, the Department describes a private 

email communication to DoL officials that references a “confidential survey” of group long-term 

disability insurance carriers conducted by unnamed “stakeholders.”19 The preamble describes

this “confidential survey” as including statements from “several survey participants” that the 

Final Rule would “cause average premium increases of 5-8% in 2018.” We find it deeply 

troubling that the Department is re-opening this already thoroughly considered and deliberated 

Rule based on these kinds of unsubstantiated assertions by unnamed “stakeholders.”

Our concern is heightened by the Department’s lack of transparency concerning this 

information. We note the Department has not made it possible for the AFL-CIO, or any other 

stakeholder, to access this new “evidence”20 online or evaluate what is clearly part of the 

administrative record. This unprecedented and outrageous action by the Department should be 

immediately reversed by making all of the “evidence” publicly available. 

A Delay Rewards Those Who Have Not Made a Good Faith Effort Towards Implementation.

There is no indication that the plan sponsors who are taking seriously their obligation to 

comply with the Rule by January 1, 2018 have not begun to alter their disability claims 

procedures in order to meet the current deadline. Accordingly, if the Department imposes an 

implementation delay, it will penalize those who have already expended time and energy to 

come into compliance—while rewarding those plans who have been less conscientious about 

their legal obligations. 

 

18 82 Fed. Reg. at 47411.

19 82 Fed. Reg. at 47411 (citing email from Michael Kreps, Principal, Groom Law Group, to John J. Canary 

and Jeffrey J. Turner, Office of Regulations and Interpretations, Emp. Benefits Sec. Admin. (July 13, 2017) (on file 

with the Emp. Benefits Sec. Admin., U.S. Dept. of Labor).

20 The “evidence” includes the communications referenced in NPRM footnotes 2, 3, 6, 7, and 9 (82 Fed.

Reg. 47411).
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We appreciate the opportunity to submit these comments. If you have any questions or 

need additional information, please do not hesitate to contact us. 

Very truly yours, 

/s/ Shaun C. O’Brien 

Shaun C. O’Brien 

Assistant Policy Director for Health and Retirement