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).
For purposes of this article, I’ll assume that “relevant” documents are the documents in the claim file, so as not to complicate things with arguments about what else might or might not be “relevant”
James involved a claim for long-term disability benefits for alleged hypersomnia, or excessive daytime sleepiness. Unum denied the claim, and told James she had three options: she could submit additional information and ask for reconsideration of the denial; she could immediately file an administrative appeal; or she could seek reconsideration and then appeal. Unum also told her that, if she administratively appealed, she “will have access to all relevant documents as defined by applicable U.S. Department of Labor regulations.” This statement was consistent with the plan’s claim procedures. James sought reconsideration, telling Unum:
If Unum does not [approve the claim on reconsideration], then I will be making an appeal pursuant to the policy terms. If that becomes necessary (which I hope it does not), then I request that [my claim file] be provided to me in connection with such an appeal.
Unum did not change its decision on reconsideration. When it relayed its decision to James, it reminded her of the deadline to administratively appeal, and also said that it would provide the relevant documents once she administratively appealed. James appealed, and Unum produced the relevant documents promptly afterwards. Unum upheld its determination on appeal. A year later, James, now represented by counsel, filed what her attorneys called an administrative appeal, including new evidence. Unum refused to consider the “appeal,” telling James’ attorneys that she had previously exhausted her administrative remedies.
James sued, and her attorneys argued that Unum had not provided a full and fair review under ERISA because it did not provide her claim file when it was required to do so.
The Department of Labor has issued extensive regulations setting forth the minimum requirements for reasonable claims procedures. 29 C.F.R. § 2560.503-1. Subsection (h), which is titled “Appeal of adverse benefit determinations,” provides, in pertinent part:
(1) In general. Every employee benefit plan shall establish and maintain a procedure by which a claimant shall have a reasonable opportunity to appeal an adverse benefit determination to an appropriate named fiduciary of the plan, and under which there will be a full and fair review of the claim and the adverse benefit determination.
(2) Full and fair review. … [T]he claims procedures of a plan will not be deemed to provide a claimant with a reasonable opportunity for a full and fair review of a claim and adverse benefit determination unless the claims procedures–
(iii) Provide that a claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.
The sequence of the provisions in the regulation follows the flow of an administrative proceeding. Specifically, subsections (c) through (g) concern procedures leading up to an initial claim determination; there is nothing in those subsections giving a claimant the right to request a copy of her claim file, or requiring an administrator to provide it. It is not until subsection (h), which deals with administrative appeals, that the obligation to provide documents upon request is set forth.
When a statute or regulation is structured to “trace the progress” of a proceeding, a requirement pertaining to a later step should not be applied to an earlier step. See Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 300 (2d Cir. 2002). In other words, if the regulation intended to allow a claimant to demand the claim file before she filed an administrative appeal, it would have made that requirement explicit in one of the sections addressing pre-appeal procedures.
There is little, if any, case law squarely addressing the question whether a claim fiduciary could require a claimant to administratively appeal before it complied with a request for the claim file. But indirect support can be found. For example, several cases hold that a claimant cannot obtain documents generated during the course of anadministrative appeal until the appeal was concluded. Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161, 1166 (10th Cir. 2007) (seeking to avoid “an unnecessary cycle of submission, review, re-submission, and re-review”); Midgett v. Washington Group Int’l LTD Plan, 561 F.3d 887, 895 (8th Cir. 2009). The same reasoning applies to the initial claim determination. Before the claimant appeals (which results in the transfer of responsibility of the claim to the appeals unit), the claim is still being handled by the person or unit that made the initial determination. Thus, it is still not “final,” because it can be reconsidered by the original claim handler. It is reasonable to assert that the filing of the appeal is the event that makes the initial determination “final” enough to avoid the cycle of “submission, review, re-submission and re-review.”
Indirect support can also be found from decisions holding that a claim fiduciary violates ERISA procedures by not providing the claim file (after it was requested) until after multiple appeals had been completed, or until the court had ordered production. See, e.g. Anderson v. Sotheby’s, Inc., 2006 WL 1722576, *18 (S.D.N.Y. June 22, 2006) (fiduciary withheld documents it had relied on “until this Court ordered their production”); Cook v. New York Times Co. Long-Term Disability Plan, 2004 WL 203111, *16 (S.D.N.Y. Jan. 30, 2004) (“file was not provided until over seven months after the denial of her second appeal[, and not until] … her third appeal had already been under review for four months”). It makes sense that delaying production until an administrative appeal has concluded (or later) is improper. But that reasoning does not apply to production of the claim file promptly after an administrative appeal is filed, because the claimant has plenty of time to review the file and supplement her appeal with new argument or evidence, if appropriate. (In James’ case, she never sought to provide new evidence or argument – until her lawyers tried to do so a year after the administrative remedies had been exhausted.)
The District Court rejected James’ contention that Unum had improperly delayed producing the claim file. It relied primarily on the fact that she had not definitively demanded the file until after her appeal:
Plaintiff’s argument that Defendants “refused” to provide Plaintiff’s claim file misconstrues the record. In Plaintiff’s April 3, 2009 letter, Plaintiff did not request her claim file. Plaintiff merely indicated her intention to request the file if she appealed Defendants’ determination. When Plaintiff did in fact request that file [after she appealed], Defendants forwarded it to her[.]
Because James did not request her claim file before she filed her appeal, she could not complain that it was unfair for Unum not to provide it before she filed her appeal. See Balmert v. Reliance Standard Life Ins. Co., 601 F.3d 497, 502 (6th Cir. 2010) (“A claimant’s failure to fully explore and exercise her procedural rights does not undermine the fundamental fairness of an otherwise full and fair administrative review process”).
James appealed to the Second Circuit, and argued vigorously that she had, in fact, demanded the claim file shortly before she filed her administrative appeal, and that Unum improperly withheld the file until after she had appealed. The Second Circuit rejected that argument, holding:
We affirm substantially for the reasons stated in the District Court’s careful and clear Memorandum Decision and Order dated September 27, 2012. James raises a number of procedural objections to the processing of her claim, each of which was properly rejected by the District Court.
James sought reconsideration, again arguing that she had been denied a full and fair review because she had not timely received her claim file, which the Second Circuit summarily denied.
Because of the somewhat unusual facts – particularly the lack of a clear demand for the claim file before an administrative appeal – the decisions in themselves may not provide iron-clad authority for the proposition that a claim fiduciary never has to provide the claim file prior to the appeal. However, James and her attorneys mounted a full-court press in both the District Court and the Second Circuit on their assertion that it is manifestly improper to withhold the claim file until after the administrative appeal is filed. Had either court concluded that the ERISA regulation should be interpreted as James claimed, it is doubtful that it would have found that Unum had complied with all applicable claim regulations.