Proposed ERISA Disability Regs: Instructions and Sample for Public Comments

[Update 1/15/16: additional guidance for your comments here]

Below are instructions on how to submit your comments on the new regulations proposed by the Department of Labor (“DOL”) for long-term disability (“LTD”) benefits under the Employee Retirement Income Security Act (“ERISA”). The DOL asked for comments from the public on these proposed regulations. For details on the proposal, please see my prior blog post.

I am also posting my own comments, as people have asked for a sample. A few words about that. First of all, everybody should feel free to borrow from my submission. Please do not feel like your comments have to sound legalistic; they don’t. They also don’t have to be long or “perfect.” My own comments are far from perfect nor are they exhaustive. I merely picked some of the issues that jumped out at me. It would be helpful if you could include in your comments a few points (or even just one) about how proposed-to-be-changed provisions have negatively affected you personally in your dealings with your LTD carrier and in obtaining LTD benefits, but remember not to include any personally identifiable or confidential business information (see below). Basically, limit your remarks to things you would be comfortable with the whole world knowing about you. It might be useful to take a look at my prior post to decide what points you feel you can meaningfully address.

As a matter of background, the proposed regulations would provide strengthened procedures and safeguards for employees claiming LTD benefits under ERISA. If the proposal is adopted, it would be a game changer for disabled employees covered by ERISA and a big step towards putting a stop to the egregious commonplace wrongful denial of LTD benefits by LTD plans. Many, if not most, ME patients covered by an ERISA plan encounter unconscionable tactics by the powerful disability insurance companies designed to deny employees the benefits they are entitled to, precisely because ERISA has created a framework that overwhelmingly and devastatingly favors said insurance companies. Of course, the ERISA rules affect every LTD claimant regardless of the disabling disease. But ME patients are one of the patient groups that are particularly vulnerable, in part due to the pervasive ignorance, in the medical profession, of the grave disability it can cause. With its proposal, the DOL has put forward a new set of rules that is designed to counteract the unfair advantages insurance companies have had for decades and to provide a better chance for claimants to receive the benefits that are rightfully theirs.

I urge everybody who is able to do so to provide strongly supportive public comments to the DOL. As I have said previously, the DOL is not the big black hole that is HHS, where public comments are ignored or disappeared. The DOL wants to enact this proposal; it merely needs enough public support to justify doing so in light of the fact that they will receive strong pushback from the insurance and employer lobby. I feel quite optimistic that the new regulations will be put in place if we do our part to offset those lobbying efforts.

Instructions for Comment Submissions:

Comments must be in writing and received on or before January 19, 2016.

There are three ways to submit your comments: email, online or regular mail. I personally prefer email because that creates a record of the submission, although, unlike with HHS, the DOL does not have any incentive to make public comments disappear—quite the contrary. And in this case, it looks like the website will provide a receipt after submission. So, if it’s easier for you to submit your comments online or to send a letter, that should work just fine. Just make sure they are received by the deadline of January 19, 2016. (Specify RIN 1210-AB39 in the subject line of the email.)

Online:!documentDetail;D=EBSA-2015-0017-0001 (Click on “Comment Now!”)

Mail: Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5655, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, Attention: Claims Procedure Regulation Amendment for Plans Providing Disability Benefits.

All submissions must include the agency name, Department of Labor, and Regulatory Identifier Number, RIN-1210-AB39.

Do not include any personally identifiable or confidential business information that you do not want publicly disclosed because all comments will become part of the public record without any redactions or changes and will be available to the public, without charge, online at and, via search-engine searches and at the Public Disclosure Room, Employee Benefits Security Administration, Suite N-1513, 200 Constitution Avenue NW, Washington, DC 20210.

Important edit just to clarify (Thanks go to Mary Ann Kindel for pointing this out.):  Submissions may be withheld by some agencies if they contain “duplicate or near duplicate examples of a mass-mail campaign.” I do not know if the DOL is one of those agencies, but it is definitely important that your comments be “customized,” as suggested above even if you borrow some ideas or language.

My comments:

Re: RIN 1210-AB39

I am writing to comment on the Proposed Regulations issued by the Department of Labor, Employee Benefits Security Administration on November 18, 2015 (“Proposed Regulations”).

First of all, I want to commend the Department of Labor (“Department”) for this very constructive proposal. I strongly approve of the comment made by the Department in the preamble that “disability claimants deserve protections equally as stringent as those that Congress and the President have put into place for health care claimants under the Affordable Care Act.”

I am presently a disability recipient under an employer-sponsored disability plan governed by the Employee Retirement Income Security Act of 1974 (“ERISA”) and its requirements regarding claims procedures. I can speak first hand to the potential abuses occurring under the current claims-procedure regulations and the urgent need to address these in the Proposed Regulations.

The proposed tightening of the conflict-of-interest rules is particularly welcome. Prohibition against a claims fiduciary (typically the insurance carrier insuring the disability claim under the employer plan) making any decisions regarding hiring, compensation, termination, promotion or similar matters with respect to any individual (such as a claims adjustor or medical expert), based on the likelihood that the individual will support the limitation or denial of disability benefits, should—going forward—help eliminate, or substantially reduce, the documented cases of such behavior by disability insurance carriers, most notably Unum/Provident (see John H. Lanbein, Susan J. Stabile, Bruce A. Wolk, Pension and Employee Benefit Laws at pp. 669-74). The insurance carrier would not be permitted to contract with a medical expert based on the expert’s pattern of denying claims, as is clearly the typical situation today, which I know from my own experience. This will, I hope, add a measure of integrity to independent medical exams (IMEs) used so frequently to contest, and ultimately deny, a disability claim notwithstanding the opinion of the claimant’s doctor.

The proposed amendments to the disclosure requirements should also prove helpful to disability claimants faced with a claim denial based on ill-defined reasons. The requirement to produce a detailed description of the denied decision, including the basis for the plan’s disagreement with the claimant’s treating physician or the Social Security Administration as well as the internal rules, guidelines, protocols, standards or other criteria applied to deny the claim, should prove helpful in appealing denied claims in court.

The other proposed changes are meritorious as well and should be adopted as part of the final regulations. For example, the “de novo” standard of review in cases where the plan has not followed the correct procedures should provide an effective incentive for disability carriers to comply with the relevant rules—an incentive that is unfortunately so desperately needed.

The Proposed Regulations give disability claimants more procedural rights and safeguards to partially offset what is a an unacceptably and unjustifiably uneven playing field at present. I can speak from personal experience that disabled claimants are faced with substantial procedural obstacles put in their way by disability carriers. This is particularly disturbing in light of the diminished capacity of most claimants—due to the limitations imposed by their disability—to get through all the gratuitously cumbersome procedural hurdles and grueling, harassing and irrelevant requirements placed on them by the disability carriers. Given the lack of a jury trial, the prohibition against punitive damages and the potential deferential standard of review of denied claims, these proposed changes are critical to provide at least some fairness to disabled claimants in a process that is heavily structured against them.

For the above reasons, I strongly support adoption of the Proposed Regulations as soon as possible.

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7 Responses to Proposed ERISA Disability Regs: Instructions and Sample for Public Comments

  1. Sharon says:

    Jeannette, this is great information – thank you sincerely (we just sent them our comments). The email address for comments (posted on the Federal Register’s page) is; they also recommend Including “RIN 1210-AB39” in the subject line of the message – hope this helps. Wishing you and your family a happy and healthy new year; may it be a year of greatly improved health and quality-of-life for us all 🙂

  2. The online submission is very easy and if you provide your email address (which will not become part of the public record), you can elect to have your submission receipt emailed to you.

  3. Rhonda Ovist says:

    Thank you for sharing this opportunity to comment and your own submission a an example. I’m near tears just reading as I d been struggling to survive after UNUM “lost” the medical test data that they were told was there, closed my claim and sent it to appeals where magically the test showed results were found. My payments were stopped In February and Ive been worki g a lawyer who gets 30% of any settlement and who makes more money the longer it takes. In the meantime. I’ve used up most of my resources , including my retirement and I have no help or much support. My health is in decline, and I feel like I can’t do this again. Five years dealing with UNUMs “reviews” (while social security won’t review for up to seven years) has taken a huge toll on me.

    I will contribute my comment to DOL even though I doubt things will change in time to save me.

  4. Pingback: Deadline for Comments on Proposed ERISA Disability Regs Fast Approaching : Additional Guidance | Thoughts About M.E.

  5. Pingback: Department of Labor Proposes Lowering Bar for ERISA Disability Claims, Requests Public Comments | Thoughts About M.E.

  6. I am so sorry, Rhonda. The practices of UNUM & Co. are unconscionable. They literally destroy people’s lives. I do hope that you will prevail in your fight.

    Thank you for submitting your comment.

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