The Employee Benefits Security Administration issued Information Letter 06-14-2021 stating that 29 C.F.R. § 2560.503-1 requires plan fiduciaries to disclose, on request, recordings and/or transcripts of phone calls between the claimant and the fiduciary, even if the recording was made only for quality assurance purposes.

EBSA summarized the request:

You are seeking guidance because you represent a claimant whose request for such a recording was denied. You indicate that the stated reasons for denial of the request for the audio recording are that the actual recording is distinct from the notes made available to you, which contemporaneously documented the content of the recorded conversation, and which became part of the “claim activity history through which [the insurer] develops, tracks and administers the claim.” By contrast, the denial stated that the “recordings are for ‘quality assurance purposes,’” and “are not created, maintained, or relied upon for claim administration purposes, and therefore are not part of the administrative record.”

Continue Reading EBSA Issues Guidance On Disclosure of Phone Call Recordings

On October 6, 2017, the Department of Labor signed a proposed Rule “to delay for ninety (90) days – through April 1, 2018 – the applicability of the Final Rule amending the claims procedure requirements applicable to ERISA-covered employee benefit plans that provide disability benefits.”

Specifically, the DOL proposes:

Section 2560.503-1 is amended by removing “on or after January 1, 2018” and adding in its place “after April 1, 2018” in paragraph (p)(3) and by removing the date “December 31, 2017” and adding in its place “April 1, 2018” in paragraph (p)(4).

The proposed rule is scheduled to be officially published on October 12, 2017. There will be a 15-day period for comments on the proposal to extend the applicability date. There will also be a 60-day period to submit “comments providing data and otherwise germane to the examination of the merits of rescinding, modifying, or retaining the rule[.]”
Continue Reading Department of Labor Proposes to Delay Implementation of Disability Claim Regulations

Running an employee benefit claims operation is a complex undertaking, which requires continual training and oversight. A robust quality assurance organization can play an important part in the overall management mix. Curran v. Aetna Life Ins. Co., 13-cv-289, 2016 WL 3843085 (S.D.N.Y. July 11, 2016), gives a concrete example of a quality assurance review catching a significant error that would have resulted in an incorrect six-figure payment, and documenting the correction of the problem in a responsible, non-biased way. I always think that an organization’s strength is best revealed by how it responds to a problem, so Aetna deserves a gold star for this case.
Continue Reading Internal quality assurance discussion about $100,000 error in plan interpretation not evidence of conflict

Shaw v. AT&T Umbrella Ben. Plan No. 1, 795 F.3d 538 (6th Cir. 2015) concerned denial of plaintiff’s claim for disability due to chronic neck pain. The district court affirmed the denial, but the 6th Circuit reversed, finding the determination arbitrary and capricious.

The court took issue with much of the claim

Ingravallo v. Hartford Life & Acc. Ins. Co., 2014 WL 1622798 (2d Cir. Apr. 24, 2014), doesn’t break any new legal ground, but it is nonetheless noteworthy for several reasons. It is rare that the Circuit reverses a District Court’s determination; here, it reversed and directed entry of judgment for Hartford. Second, it contains excellent findings regarding the adequacy of a claim administrator’s evaluation of a SSDI award, surveillance, and medical evidence.
Continue Reading Nice Second Circuit Decision Illustrating Appropriate Administrative Review

A divided panel on the Eleventh Circuit has imposed on plan administrators “an obligation to consider the evidence presented to the SSA” by the claimant. While it is not particularly novel to hold that an SSDI award must be considered – most circuits require disability claim administrators to consider an SSDI award, or at least to explain why it is not relevant – the Eleventh Circuit seems to have taken the requirement a step further, requiring the administrator to seek out the evidence the SSDI award was based on, and perhaps even delay an adverse decision until the SSDI process is completed.
Continue Reading Must disability claim administrators now obtain the SSDI file in the 11th Circuit?

Every so often a bit of legal synchronicity seems to occur. Sometimes its personal, like when you have several cases with the same uncommon issue, or multiple cases in the same rarely visited court. In 2013, there appears to be a larger force at work that has caused three circuits to address the question whether a plan that requires proof to be satisfactory to the insurer confers discretion.

It has long been clear that a plan document must give discretionary authority to an insurer in order to require courts to conduct an arbitrary and capricious review. It is also well-established that no “magic words” are required to give discretion. However, the vast majority of plans intending to grant discretion use the magic words anyway, and say that the insurer has “discretionary authority to determine claims and construe the plan” or some variant.

But what happens when a plan does not use the magic words?  
Continue Reading Effect of Requiring “Satisfactory” Proof Is A Popular Issue in the Circuits This Year

The Supreme Court heard arguments yesterday in this case, which involved the question whether a contractual limitations period in an ERISA benefit plan could begin to run before administrative remedies were exhausted.
Continue Reading Heimeshoff v. Hartford – Oral Argument in the Supreme Court

In petitioning for certiorari, Heimeshoff asked the Supreme Court to consider three questions:

1.         When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination?

2.         What notice regarding time limits for judicial review of an adverse benefit determination should an ERISA plan or its fiduciary give the claimant with a disability claim?

3.         When an ERISA plan or its fiduciary fails to give proper notice of the time limits for filing a judicial action to review denial of disability benefits, what is the remedy?

The Supreme Court granted certiorari, but only as to the first issue, as to which there was a conflict among the Circuits.

There are several axioms and rules underlying this case that are not in dispute.
Continue Reading Heimeshoff v. Hartford – Supreme Court Briefing

Any ERISA claim practitioner knows that a claimant is entitled to get a copy of the documents relevant to her claim on request and without charge. But when does the claimant’s right to this access become effective? More particularly, can the claim administrator defer production until after the claimant files an administrative appeal? A recent case in the Second Circuit suggests that it is sufficient to provide the claim file promptly after the appeal is filed. James v. Unum Life Ins. Co. of America, 2012 WL 4471541 (S.D.N.Y. 2012), aff’d, 2013 WL 4516424 (2d Cir. Aug. 27, 2013).
Continue Reading When Must a Claim Fiduciary Provide the Administrative Record? It May Be Later Than You Think