We are down to the wire; the deadline for public ERISA (“Employee Retirement Income Security Act”) comments—January 19, 2016—is fast approaching. As of yesterday, the Department of Labor (“DOL”) has received 23 comments in response to its proposed new ERISA long-term disability (“LTD”) regulations. Just to be clear, these proposed regulations relate to disability determinations under employer-sponsored LTD plans, not Social Security disability benefits. I have written about the substance of the DOL proposal and posted instructions for commenting and a sample comment.

Let me supplement what I said in my last post about the substance of the comments. Generic supportive comments along the lines of “I wholeheartedly support the proposed changes” are not as powerful as comments that go somewhat into detail. Don’t get me wrong, I believe if the DOL were to receive a fair number of generally supportive comments, that would definitely help. But ideally, the comments would have some meat to them addressing the specific changes that have been suggested by the DOL.

I realize that this is a potentially intimidating proposition for ME patients, given the cognitive limitations the disease imposes. And the last thing I want to do is discourage anybody from commenting. Therefore, I thought it might be useful for me to break down my analysis from my first ERISA blog post into a list. Try to think about which of the proposed changes would have been helpful to you as you went through the LTD approval process or would be helpful to you if you had to go through it because you currently are, or might in the future be, covered by an LTD plan and then address those points. Remember that the comments will be publicly available, so don’t disclose anything sensitive. Here is a summary list of the most important proposed changes:

1. Claims adjudicators and medical experts may not be hired, compensated, terminated or promoted based on the likelihood of their denying disability benefits or supporting the denial of such benefits.

[Note: This requirement is intended to ensure independence and impartiality of the persons involved in making the decision, which, in turn, is meant to guarantee a full and fair review.]

2. Medical experts may not be hired based on their reputation for outcomes in contested cases rather than based on their expertise.

[Note: This requirement is intended to ensure independence and impartiality of the persons involved in making the decision, which, in turn, is meant to guarantee a full and fair review.]

3. The notice of claim denial must include a discussion of the decision, including the basis of disagreement with a disability determination by the Social Security Administration or a treating doctor.]

[Note: This requirement is intended to aid claimants in understanding why the claim was denied and why the decision is inconsistent with that of the Social Security Administration and/or the treating physician.]

4. The notice of claim denial must include internal rules, guidelines, protocols, standards or similar criteria of the plan that were used to deny the claim.

[Note: This requirement is intended to aid claimants in fully understanding the reason for the denial and in meaningfully assessing the likelihood of success of an appeal.]

5. The notice of claim denial must include a statement that the claimant is entitled to receive—at that stage and not only at the later stage of denial of the appeal—all relevant documentation supporting the denial of the claim.

[Note: This requirement is intended to aid claimants in fully understanding the reason for the denial and in meaningfully assessing the likelihood of success of an appeal.]

6. Claimants must be given the right to review (free of charge), and respond to, new or additional evidence or rationales for denial considered, relied upon or generated during the appeal process and not only after the claim has been denied on appeal. The information would have to be made available as soon as possible and sufficiently in advance of the deadline and the plan would be obligated to consider the claimant’s evidence and written testimony in response to the plan’s new or additional information before making a decision on appeal.

[Note: This requirement is intended to ensure a full and fair review by affording claimants the opportunity to respond to new evidence or rationales during the administrative stage, before going to court.]

7. If the LTD plan has not followed all procedural rules (except in cases of minor errors), a claimant may proceed straight to court without first exhausting all administrative remedies.

[Note: This requirement is intended to allow claimants to proceed to court without exhausting all administrative remedies if the plan’s process fails to satisfy the regulatory minimum standards.]

8. If the LTD plan has not followed all procedural rules, the reviewing court will consider the matter de novo, i.e., the court will give no deference to the plan’s determination and instead set it aside and use its own judgment based on the administrative record.

[Note: De novo is a much more favorable standard for claimants than the usual abuse-of-discretion standard under ERISA, which merely reviews whether the plan’s decision was arbitrary and capricious.]

9. The retroactive rescission (cancellation or discontinuance) of coverage would constitute a so-called adverse-benefits determination regardless of whether the beneficiary/participant is currently receiving benefits. Classification as an adverse-benefits determination is important because it permits the claimant to invoke the ERISA claims-procedure requirements.

[Note: This is a very technical point. It broadens the definition of “adverse-benefits determination.” If the proposed change is adopted, it would, e.g., allow a claimant to invoke the ERISA claims-procedure requirements in case of a claim denial based on the retroactive assertion by the plan that the claimant made a misrepresentation on their application form even if the error was made innocently.]

10. The notice of claim denial must include a prominent one-sentence statement in the relevant foreign language about the availability of language services if the claimant resides in a county where at least 10% of the population are literate only in the same non-English language.

[Note: This requirement only applies in counties that satisfy the 10% hurdle (currently 255 counties) and only with respect to the particular language that is the only one spoken by 10% of the population.]

The proposed change in under 2. would, in my opinion, be the most important one, as many LTD cases are lost by claimants because of the biased opinion of a physician who is in the pocket of the insurance companies. The third proposed change is probably equally crucial. Nevertheless, it is important that the other points be addressed as well or they are more likely to fall victim to the insurance companies’ and employer organizations’ objections. That is not to say that everybody should address all points.

Some of the already submitted comments are likely from the insurance industry and employer organizations, trying to water down the proposed changes by whining about how cumbersome they would be for them. So, let’s rally and get some more comments submitted. I sincerely hope that our advocacy organizations recognize this important opportunity to get involved.

Contrary to what I said in my prior post, I believe now that the easiest and most reliable method of submitting your comments is online at http://www.regulations.gov/#!documentDetail;D=EBSA-2015-0017-0001. Make sure to request an emailed receipt. Please note that “Regulations.gov will undergo scheduled maintenance and as a result the site will be unavailable Monday, January 18, from 8:00 am through 4:00 pm (ET).” If you want to submit your comment during that time, you can email it to e-ORI@dol.gov.

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