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Disability plans

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[Guidance Overview] The DOL's Revised Regs Applicable to Disability Benefit Claims
"The easiest requirement to meet will be the inclusion of a statement as to when the limitations period will expire ... Writing decisions in a culturally and linguistically appropriate manner also should not present too much difficulty.... Insurers and benefit plans will also need to instruct their claims personnel and any consultants they retain on how to address conflicting opinions and Social Security findings. It will no longer suffice to simply note disagreement or assert that Social Security utilizes different standards." (DeBofsky, Sherman & Casciari, PC)
[Guidance Overview] DOL Boosts Disability Claimant Protections
"During the review process, disability claimants must be guaranteed the right to present evidence supporting their claim and to respond to any new information prior to the final decision. They must also be given notice and a fair opportunity to respond if benefits are to be denied on appeal based on new evidence or rationales not used to deny the benefit at the claims stage." (Fisher Phillips)
Disability Plans Must Follow Claims Procedures Final Rule
"[T]he DOL is attempting to create a more comprehensive review of disability claims, clearly hoping to reduce the need for participants to resort to litigation and reduce difficulties participants experience with delayed claims processing ... A defined benefit pension plan may be affected by these regulations ... [T]he regulations will impact only those pension plans under which a plan fiduciary -- rather than the employer's long-term disability insurer -- makes an independent determination of a participant's disability." (Society for Human Resource Management [SHRM])
[Guidance Overview] DOL Finalizes Regs on Disability Plan Claims Procedures (PDF)
"The vast majority of employers offering disability benefits buy long-term disability insurance, in which case the burden of complying with the new claim processing regulations falls predominantly on the insurer. Additionally, employers typically offer short-term disability benefits through a payroll practice (e.g., salary continuation). Payroll practices are not subject to ERISA, and so the new rules would not apply to those types of arrangements." (Lockton)
Leave Management Continues to Vex Employers, but Outsourcing and Integrated Systems Help
"Outsourcing of [FMLA] administration continues to increase ... 34 percent of employers with 50 or more employees outsource FMLA leave to a third-party administrator (TPA). 45 percent of employers with 1,000 and more employees do so. 80 percent of employers that also outsource management of short-term disability (STD) and long-term disability (LTD) leave do so through the same TPA that manages FMLA leave on their behalf." (Society for Human Resource Management [SHRM])
[Guidance Overview] ERISA Disability Claim Regulations Get a Facelift
"Plans must ensure independence and impartiality of persons involved in claims determinations ... [P]ractitioners, employers, and administrators should expect that plaintiffs will use the rule in litigation to engage in broad-reaching 'conflict' discovery.... [W]hile the rule is intended to reduce conflict and claim disputes, it probably does little to change how plans already operate on this front.... [It] threatens to increase discovery and litigation costs, contrary to ERISA's goals." (Lathrop & Gage, LLP)
Are Your 'Voluntary' Benefit Plans Subject to ERISA?
"[T]here are four requirements of the voluntary plan safe harbor.... The benefit plan must be completely voluntary and employee paid, with no employer contributions made in any form for any employees.... [T]he employer must not endorse the plan. In simple terms if you endorse it, you own it (for purposes of ERISA) ... Finally, under the safe harbor, employers are prohibited from receiving any compensation that exceeds reasonable reimbursement for collecting and remitting premium payments." (Graydon Head & Ritchey LLP)
Seven Things to Know About Limited Discovery in ERISA Long-Term Disability Cases
"[D]iscovery in ERISA cases is generally limited because of the 'significant ERISA policy interests of minimizing costs of claim disputes and ensuring prompt claims-resolution procedures.' Various circuits have different tests on when additional discovery may be taken beyond the administrative record. And, if limited discovery is allowed, then what discovery is allowed? [A] recent case ... highlights the point." [Aitken v. Aetna Life Ins. Co., No. 16-4606 (S.D.N.Y. Jan. 19, 2017)] (Lane Powell PC)
[Guidance Overview] Which Plans are Subject to the DOL's Final Rules for Disability Claims Procedures?
"The DOL noted that nearly two-thirds of all ERISA litigation involves claims under long-term disability plans, and the final rules are intended to improve the 'full and fair review' of disability claims ... by expanding the procedural requirements.... In order for the new rules to apply, both of the following must be true: [1] the plan must make disability determinations affecting plan benefits; and [2] the plan must be subject to ERISA's claims procedures." (Haynes and Boone, LLP)
District Court: Diagnosis Is Not Automatically Equivalent to a Finding of Disability
"[M]ere diagnosis of a condition (like fibromyalgia) is not enough to qualify for disability benefits under most policy definitions.... [The court found that it] was a problem that the treating physician 'diagnosed plaintiff with fibromyalgia [but] did not indicate whether she would be able to return to work or if her condition would be permanent.'  " [Decovich v. Venetian Casino Resort, No. 11-872 (D. Nev. Jan.26, 2017)] (Lane Powell PC)
[Guidance Overview] DOL Disability Regulations and the Impact on ERISA Plans
"[T]he majority of the ERISA plans impacted by these regulations will be health and welfare plans that provide disability benefits ... An ERISA pension plan may be impacted by these regulations if it provides for early or unreduced benefits in the event of disability. However, the regulations will impact only those pension plans under which a plan fiduciary (rather than an external entity such as the Social Security Administration or the employer's long-term disability insurer) makes an independent determination of a participant's disability." (Spencer Fane)
[Guidance Overview] DOL Issues Final Rule on Disability Benefit Claims and Appeals
"Employers should update all relevant disability benefit plan documents, SPDs, claims forms, denial letters and related systems to comply with the changes to the final requirements for claims and appeals by the effective date. Employers also might want to discuss with legal counsel the possibility of adding details about any contractual limitation periods on claims to all ERISA-covered plans, SPDs and denial letters, as the DOL seems to be taking the position that the requirement is not limited to disability claims." (Willis Towers Watson)
[Guidance Overview] DOL Publishes Final Regs on Disability Claims and Appeals Procedures (PDF)
"The final rule revises and strengthens the current rules primarily by adopting certain procedural protections and safeguards for disability benefit claims that are currently applicable to claims for group health benefits pursuant to the [ACA]." (United Actuarial Services, Inc.)
[Guidance Overview] DOL's Final Rule Modifies ERISA Disability Claim Regulations
"Addressing conflicts of interest, the final rule requires decisions regarding hiring, compensation, termination, or promotion of persons involved in making claim decisions not be based on the likelihood the individual will support denial of benefits.... The final rule expanded the definition of 'adverse benefit determination' to include 'any rescission of disability coverage,' including 'cancellation or discontinuance of coverage that has a retroactive effect.' " (Womble Carlyle)
[Guidance Overview] DOL Finalizes Disability Claims Procedure Rules (PDF)
"The DOL has finalized regulations that will change the procedures ERISA plans must follow in adjudicating claims for benefits conditioned on a determination of disability, including claims for disability retirement benefits. The final rules, which generally follow the proposed regulations, add a requirement that notices of an adverse benefit determination on review set out specific information about plan-mandated deadlines for bringing lawsuits under ERISA." (Conduent)
Seventh Circuit Lists Ways to Inoculate Claims Denials from Allegations That a 'Conflict of Interest' Affected Your Decision
"[A] record showing that the claims administrator changed its decision over time can help disprove allegations that a 'conflict of interest' played a role in the claims decision. [A] recent case ... explains four ways to inoculate claims from allegations that a conflict of interest affected the claims decision." [Geiger v. Aetna Life Ins. Co., No. 16-2790 (7th Cir. January 6, 2017)] (Lane Powell PC)
[Guidance Overview] DOL Finalizes Disability Benefit Plan Claims Regs
"The finalized regulations require: Independence and impartiality in decision-making ... Improved disclosure ... Rights to review and respond to new information or new rationale before final decision ... Disclosure of any contractual limitations period in denial notices ... Deemed exhaustion of claims and appeals processes ... Retroactive rescissions of coverage are appealable ... 'Culturally and linguistically appropriate' notices." (Trucker Huss)
[Guidance Overview] New ERISA Disability Rules Look to Level Playing Field for All
"Besides requiring an explanation for disagreement with treating doctor opinions, the regulations speak to situations where the Social Security Administration issues an award of disability benefits while the benefit plan reaches a contrary determination. Although no deference to a favorable Social Security determination is required, the regulations obligate benefit plans to provide "a more detailed justification [for reaching a different conclusion] ... in a case where the SSA definitions were functionally equivalent to those under the plan." (DeBofsky & Associates, P.C.)
[Guidance Overview] New Disability Claim Procedures Require Strict Compliance
"If a plan violates any of the rules for disability claims, the claim is deemed denied without the exercise of discretionary authority. This gives the claimant the right to file a lawsuit without further delay and will allow a court to decide the merits of the claim de novo, without any deference to the fiduciary who violated the rules.... A copy of any internal rules and guidelines the plan relied upon must now be affirmatively provided without request to the claimant (or otherwise a statement that such materials do not exist)." (Greensfelder)
[Guidance Overview] DOL Issues Final Regs on Handling Disability-Related Claims
"[T]he Final Rule states that administrators of disability plans: (i) must provide more detail in adverse benefit decision letters (for both initial claim letters and appeal denial letters); (ii) adopt certain additional criteria to ensure independence and impartiality in the decision-making process; (iii) treat most rescissions as adverse benefit determinations; (iv) allow claimants to go directly to court if the claims procedures of the plan does not strictly comply with the requirements of the Final Rule; and (v) make disability claims subject to the same 'culturally and linguistically appropriate' rules as group health plan claims." (Benesch Friedlander Coplan & Aronoff LLP)
[Guidance Overview] Disability Claims Procedure Rules Changed to Require Plan Updates
"ERISA plan sponsors will need to review claim procedure language to determine whether updates are required. Such language may be present in the plan document, summary plan descriptions, or as standalone documents.... Minor regulatory changes ... apply to disability claims filed during a transition period beginning after the January 18, 2017 effective date and extending through December 31, 2017.... The remaining changes implemented under the regulation apply beginning January 1, 2018." (Michael Best & Friedrich LLP)
[Guidance Overview] The New ERISA Claims and Appeals Regulations for Disability Benefits
"The new regulations add the following requirements to the claims and appeals process for disability benefits: [1] Claims and appeals must be decided independently and impartially, meaning that those who decide claims should not be incentivized to deny claims.... [2] Denial letters must include [certain specified items] ... [3] Before an appeal can be denied, claimants must be given notice and a fair opportunity to respond if the appeal denial is based on new or additional rationales or evidence.... [4] Claimants are not barred from suing due to failure to exhaust the plan's claims procedures where the plan itself failed to comply with its claims procedures (except for certain minor failures). [5] Retroactive rescissions of coverage are considered benefit denials that trigger the plan's appeals procedures." (Jackson Lewis P.C.)
[Guidance Overview] DOL Releases Final Regulations for Disability Benefit Claims Procedures
"[P]articipants may now appeal rescissions of coverage. However, a rescission based on the participant's non-payment of premiums is not an adverse benefit determination.... Plan administrators must explain the protocols that were used to determine the participant's benefit claim.... Plan administrators must inform participants, in benefit denial notices, that they are entitled to access, free of charge, all documents relevant to the adverse claim determinations." (The Wagner Law Group)
[Guidance Overview] Final DOL Regs Extend Enhanced Claims Procedure Rules to Disability Benefits
"The final regulations, which apply to claims for disability benefits filed on or after January 1, 2018, follow the proposed rules fairly closely. In general, they require more detail in denial notices (for both initial claims and appeals), impose additional criteria to ensure independence and impartiality in decisionmaking, treat most rescissions as adverse benefit determinations, allow claimants to go directly to court if a plan's procedures do not strictly comply with the requirements, and make disability claims subject to the same 'culturally and linguistically appropriate' rules as group health plan claims." (Thomson Reuters / EBIA)
[Guidance Overview] ACA Facelift to Disability Claims Process Could Affect All Plans
"For insured disability plans, plan sponsors need to engage their insurance carriers in a discussion about how these procedures will apply to them and what changes are needed to the insurance contracts. Some insurers may be slow to adopt these new procedures, which could put plan sponsors in a difficult position. For self-funded disability plans, plan documents will need to be updated, and procedures put in place. For retirement plans, there are some decisions to make. Recall that the procedures only apply if a disability determination is required. One way to avoid this is to amend the definition of disability so that it relies on a determination by the Social Security Administration or the employer's long-term disability carrier. For defined contribution plans, this is likely to be the most expedient approach." (Benefits Bryan Cave)
[Guidance Overview] DOL Issues Final Regs for Claims Procedure for Plans Providing Disability Benefits
"The keystone of the regulations ... is the requirement to allow the claimant to have the last word in the claims process and thus have the right to respond to adverse information developed during the claim appeal process.... The regulations are also intended to permit claimants to submit supporting evidence regardless of whether such evidence meets 'courtroom evidentiary standards.' " (DeBofsky & Associates, P.C.)
[Guidance Overview] Final DOL Disability Claims Regs Require Notice of Contractual Limitations Periods
"[A] benefit is a disability benefit subject to the disability claims regulations if a plan conditions the benefit's availability on a showing of disability (regardless of how the plan characterizes the benefit or whether the plan is a health or retirement plan).... [T]he final regulations: [1] Limit conflicts of interest by requiring independence and impartiality of plan decisionmakers. [2] Expand the content requirements for denial notices involving disability claims. [3] Provide claimants notice and an opportunity to respond prior to appeal-level denials based on new or additional evidence or rationales.... [4] Require that claims notices be provided in a culturally and linguistically appropriate manner." (Practical Law Company)
[Guidance Overview] DOL Fact Sheet: Final Rule Strengthens Consumer Protections for Workers Requesting Disability Benefits from ERISA Employee Benefit Plans (PDF)
"[T]he final rule includes the following improvements in the requirements for the processing of claims and appeals for disability benefits: [1] Improvement to basic disclosure requirements.... [2] Right to claim file and internal protocols.... [3] Right to review and respond to new information before final decision.... [4] Avoiding conflicts of interest.... [5] Deemed exhaustion of claims and appeal processes.... [6] Certain coverage rescissions are adverse benefit determinations subject to the claims procedure protections.... [7] Notices written in a culturally and linguistically appropriate manner." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
[Official Guidance] Text of DOL Final Regs: Claims Procedure for Plans Providing Disability Benefits
98 pages. "This document contains a final regulation revising the claims procedure regulations under [ERISA] for employee benefit plans providing disability benefits. The final rule revises and strengthens the current rules primarily by adopting certain procedural protections and safeguards for disability benefit claims that are currently applicable to claims for group health benefits pursuant to the [ACA]. This rule affects plan administrators and participants and beneficiaries of plans providing disability benefits, and others who assist in the provision of these benefits, such as third-party benefits administrators and other service providers." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
DOL Announces Online Tool to Help Workers, Employers Understand Medical- and Disability-Related Leave
"The new tool asks users a few questions, such as type of business or organization, workforce size and if the entity receives federal financial assistance; with that information, the advisor quickly directs users to federal employment laws that apply and provides additional information. These laws include the Family and Medical Leave Act which provides eligible employees of covered employers up to 12 work weeks of leave in a 12-month period for certain reasons, among them the employee's own serious health condition; and the Americans with Disabilities Act and other disability nondiscrimination laws, under which leave may be considered a reasonable accommodation." (U.S. Department of Labor [DOL])
Failure to Present 'Objective Findings of Impairment' Supports Denial of Mental Disability Claim
"You know that courts can expect a claimant to establish 'objective evidence of impairment' from a physical condition. But does this apply to claims arising out of a mental condition? Courts can require the claimant to establish objective impairment related to a diagnosable mental condition, too." [Gailey v. Life Ins. Co. of North America, No. 15-564 (M.D. Penn. Oct. 17, 2016)] (Lane Powell PC)
BigLaw Benefit Trends Emerge
"In a stark reversal from prior years, [law firms] have achieved heath-inflation rates below the national employer averages for the middle-market segment and collectively have achieved increases averaging 3-5%.... Over the last two years, [there has been] a large increase in law firms embracing self-funding, embracing high-deductible health plans as the primary or single plan option ... while negotiating tighter prescription drug contracts with pharmacy benefit managers.... [M]any major firms are moving towards introducing exotic high-limit, Lloyd's disability policies that can now protect up to $250,000 of monthly partner compensation in the event of a disability." (Frenkel Benefits)
Annual Statistical Report on the Social Security Disability Insurance Program, 2015 (PDF)
"Disability benefits were paid to just over 10.2 million people.... In December, payments to disabled beneficiaries totaled more than $11.4 billion.... Workers accounted for the largest share of disabled beneficiaries (87 percent). Average age was 54." (U.S. Social Security Administration [SSA])
Ninth Circuit Deems Compensation of Outside Medical Reviewers Relevant in LTD Litigation
"[A recent] decision by the Ninth Circuit ... [addressed] whether (and, if so, how) the number of reviews done by, and compensation earned by, outside medical reviewers used by an insurer to evaluate long term disability claims is relevant to arbitrary and capricious review.... [T]he majority of the panel found (at least implicitly) that evidence of this nature is discoverable in a case governed by arbitrary and capricious review, and must be considered by a court in passing on the question of whether a decision to deny benefits was arbitrary and capricious." [Demer v. IBM Corp. LTD Plan and Metropolitan Life Ins. Co., No. 13-17196 (9th Cir. Aug. 26, 2016)] (Stephen Rosenberg, The Wagner Law Group)
Estimating the Value of Public Disability Insurance Using Complementary Private Insurance
"[The authors] use premium variation among the employer-provided disability policies to quantify the surplus that would be generated by increasing the replacement rate of disability insurance for [the] sample population ... In addition, [they] estimate a lower bound on the surplus generated by public disability insurance in this context.... [F]indings suggest that public disability insurance generates substantial surplus for this population, and there may be gains to increasing the generosity of coverage in this context." (National Bureau of Economic Research [NBER])
Key Arguments in Defending a Disability Claim Based on Subjective Complaints
"Judge Fitzgerald concluded that Haber was not entitled to benefits under the 'any occupation' standard. His analysis highlights many key arguments for an insurance company in the defense of a claim under [ERISA sec. 502(a)(1)(B)] that is based on subjective complaints. [1] The claimant has the burden of proof.... [2] The claimant's subjective complaints do not have to be accepted as credible.... [3] There was no objective support for the claim.... [4] The clinical history did not support the claim." [Haber v. Reliance Standard Life Ins. Co., No. 14-9566 (C.D. Cal. Aug. 4, 2016)] (Ogletree Deakins)
TPA's Alleged Incentive to Deny Claims Does Not Trigger Nondeferential Review
"[M]any plan sponsors seek to avoid a conflict by delegating full discretionary authority to a TPA that has no financial interest in the claims decision. But claimants often question whether TPAs are truly independent, since they are hired by a party who is financially liable for approved claims. This decision represents an important acknowledgement of the professionalism of TPAs -- whose reputation is on the line each time they decide a claim." [Jones v. PepsiCo, Inc., No. 15-0426 (S.D.N.Y. May 6, 2016)] (Thomson Reuters / EBIA)
Court Allows Offset for Social Security Benefits Received by Children of Long-Term Disability Claimant
"Is it wrong to take an offset for Social Security benefits received by the children of a long term disability claimant? No, says a new decision.... [T]he court noted: '[t]he plan defines Social Security benefits as including family benefits' and the dependent benefits are awarded here because of plaintiff's disability. Also, the SSDI 'family award notices' expressly designate Jones as the payee and authorize her to use the funds" [Jones v. Life Insurance of North America, No. 08-03971 (N.D. Cal. June 14, 2016)] (Lane Powell PC)
Many Employers Want Guidance From Financial Advisors About Voluntary Benefit Options
"Two of five employers that currently do not rely on guidance from a financial advisor say they would welcome such help with voluntary benefit options such as retirement plans, life and disability insurance, and other protection benefits ... Firms that would characterize such assistance as 'extremely' or 'very' valuable range from 33 percent for those with fewer than 25 employees to 55 percent for those with 1,000 or more employees ... The percentages of employers that would see such advice as at least 'somewhat' or more valuable range from 75 percent for the smallest employers to 80 percent for larger firms[.]" (MassMutual)
A Generation with Income to Protect (PDF)
"From an employee benefits perspective, generational differences undoubtedly play a big role in not only how to communicate with employees about their benefits but what benefits to offer.... This article discusses the state of Generation X's unique income protection and financial concerns. The author shows how offering income protection to Generation Xers not only helps them deal with today's expenses and prepare for the future but can also help employers meet business objectives such as attracting and retaining top talent." (Benefits Quarterly, published by the International Society of Certified Employee Benefit Specialists [ISCEBS])
Chief Actuary Cost Estimates for Proposed Changes to Social Security Disability Insurance (PDF)
"[This information is provided] in response to the request for estimates of the financial effects on Social Security of a number of potential proposals that may be considered for addressing financial shortfalls of the Social Security Disability Insurance (DI) program. All estimates provided in the enclosed table are based on the intermediate assumptions of the 2015 Trustees report.... [M]any of these estimates represent preliminary estimates that, given more time and careful focus, would be done in more detail with possibly somewhat different results. However, for the purpose of gaining an understanding of the order of magnitude of the effects of these proposals, we believe this table will be useful to you and the readers of the SSDI Solutions Initiative report." (U.S. Social Security Administration [SSA])
Text of Federal District Court Opinion: LTD Plan Did Not Need to Be Fully Executed to Confer Discretion (PDF)
"Magistrate Judge Corker found that the arbitrary and capricious standard of review should apply because the submitted plan gave the requisite discretionary authority to Defendant to determine benefit eligibility and because Reliance Standard, not another entity, made the final eligibility determination.... The magistrate judge correctly found that merely because the policy produced does not have one party's signature does not nullify the policy.... To find that the submitted plan is not in fact the plan that governs Plaintiff's claim would require the court ... to 'speculate that the 'actual' plan is lost.' The Court will not so speculate given the record before it." [Justice v. Reliance Standard Life Ins. Co., No. 2:15-cv-00134 (E.D. Tenn. Mar. 24, 2016)] (U.S. District Court for the Eastern District of Tennessee)
Text of all Comment Letters on DOL Proposed Regs for Disability Benefit Claims Procedures
143 comment letters; comment period closed Jan. 19, 2016. "Many comment letters were submitted with medical or personal health information. To preserve the substance of the comment letters, the Department did not redact the medical or personal health information, but instead removed personally identifiable information (such as name, address and other contact information) from these letters to protect the privacy of commenters and other named individuals." (Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL])
ERISA Does Not Stand for 'Equitable Relief In Swollen Assets'
"The court thus rejected all of the respondent's arguments asserting a right to enforce its lien on Montanile's general assets, including its claim that it could enforce its lien under the 'swollen assets doctrine,' which ostensibly allows an equitable recovery from an individual whose assets had swollen due to receipt of the funds claimed to be subject to restitution.... Montanile will afford injured tort claimants greater leverage in negotiating liens, particularly in situations where liability insurance is limited and the claimant's recovery falls far short of make whole relief. Otherwise, overly aggressive demands for full reimbursement will backfire on the benefit plans because putative plaintiffs will forgo seeking recompense for personal injuries if the recovery ends up entirely or mostly in the hands of the health benefit provider." (DeBofsky & Associates, P.C.)
[Guidance Overview] New Proposed Claim Procedures for Disability Plans (PDF)
"[This article] [1] Reviews the current ERISA claim and appeal procedures for disability plans; [2] Reviews changes proposed by the new regulations; [3] Clarifies the difference between pay practices and ERISA plans; [4] Provides action steps for employers." (Marsh & McLennan Agency LLC)
[Opinion] American Benefits Council Comment Letter to EBSA on Proposed Regs for Disability Claims Procedures
"We urge the Department to reconsider its Proposed Regulations and to promulgate a final rule that strikes a better balance between the goal of ensuring a full and fair review of all claims with the need for continued employee access to affordable disability coverage." (American Benefits Council)
[Guidance Overview] Comments on Proposed Changes to Regs on Disability Claims Procedures Due January 19
"Pension plans, disability plans, and grandfathered group health plans are not necessarily familiar with the claims procedures established under the ACA for non-grandfathered group health plans. The new requirements may have greatest administrative impact on those plans that are administered internally by the plan sponsor.... Plans with a definition of disability the same as under the Social Security Act may be able to minimize additional administrative costs by relying on a determination of disability made by the Social Security Administration where practical." (Cheiron)
[Guidance Overview] Six Things Insurers Need to Know About the DOL's Proposed Procedural Protections for Disability Claimants
"If adopted, the proposed regulations will subject most group disability plans to many of the same requirements currently imposed on group health plans under the [ACA]. The proposed regulations affect six main aspects of the disability claim process.... [1] Conflicts of interest ... [2] Adverse benefit determinations ... [3] Right to review and respond to new information ... [4] Deemed exhaustion of administrative remedies ... [5] Rescission -- expanded definition of 'adverse benefit determination' ... [6] Linguistically appropriate notice requirements." (Hinshaw & Culbertson LLP)
So How Many Hours Is 'Full-Time,' Anyway?
"[A]pplying general principles of contract, what is the definition of 'full-time'? It's the 'amount of time considered customary or standard' -- and that could be a lot more than 40 hours per week." [Safdi v. Covered Employer's Long Term Disability Plan, et al., No. 14-3598 (6th Cir. Nov. 24, 2015)] (Lane Powell PC)
[Guidance Overview] DOL Issues Proposed Regs Implementing ACA Protections for Disability Claims
"Claims and appeals must be adjudicated in a manner designed to ensure the independence and impartiality of the person involved in making the decision. Benefit denial notices must contain a full discussion of why the plan denied the claim and the standards behind the decision. Claimants must have access to their entire claim file and be allowed to present evidence and testimony during the review process.... Claimants are deemed to have exhausted administrative remedies if the plan does not adhere to all claims processing rules.... Notices must be written in a culturally and linguistically appropriate manner." (The Wagner Law Group)
[Guidance Overview] DOL Proposes Update to Regs for Disability Benefit Claims (PDF)
"DOL has ... expressly requested comments on two specific topics.... [1] [W]hether it should modify the existing timing rules for deciding disability benefit claims to allow claimants and plans sufficient time to engage in a dialogue regarding new evidence and rationales prior to the determination of the claim or appeal.... [2] [W]hether the regulations should require plans to provide, in the final notice of adverse benefit determination on appeal, a statement of the plan's applicable contractual limitations period and the period's expiration date." (Trucker Huss)
[Guidance Overview] DOL Proposes to Bring ERISA Disability Denials in Line with the ACA
"Plans should consider the effect of this proposal on their arrangements with claims administrators and third-party vendors.... [M]any claims administrators contract with outside vendors to identify factors that warrant rescinding disability coverage. Coupled with other provisions in the Proposed Rule, the outside vendor's determination may constitute an adverse benefit determination and the information it considered in rendering its determination may have to be produced to the claimant." (Proskauer's ERISA Practice Center)
[Guidance Overview] DOL Issues Proposed Rule That Would Significantly Alter Claims Procedures (PDF)
"The Proposed Rule would almost certainly increase the administrative costs and burdens of administering disability plans, and would encourage claimants to pursue their claims in court.... Changes of concern include: [1] Disclosure of the basis for disagreeing with a third party ... [2] Strict compliance and possible de novo review ... [3] Right to review and respond to new information before final decision." (Groom Law Group)
Interpleader Can Prevent Overpaying for Death Benefits
"If two or more parties are claiming to be the rightful beneficiary of a deceased participant's benefit, one option is to review all the facts and make a determination applying the plan's terms through its claims procedures. The risk of this approach is that if the administrator makes a decision that is overturned on review by a court, the plan could end up paying twice. A second option is for plan administrators to preemptively file an interpleader action. A plan can file an interpleader action as a plaintiff in a case, name the disputing beneficiaries as defendants, and then tender the benefit to the court and let the court resolve who is the rightful owner. A recent case illustrates how choosing between these forums can mean drastic differences in determining who receives the benefit." [Jenkins-Dyer v. Drayton, No. 2:13-CV-02489-JAR (D. Kan. Sept. 25, 2015)] (HR Daily Advisor)
[Guidance Overview] DOL's New Disability Claim Rules Add to a Plan Administrator's Duties Under Welfare and Retirement Benefit Plans
"These new proposed disability claim rules attempt to preserve all defenses available to benefit plans prior to ERISA benefit litigation.... These proposed rules would apply to any disability-based ERISA benefit claim, whether the claim arises under a welfare plan (e.g., a long-term or short-term disability plan) or a retirement plan (e.g., a disability retirement benefit under a pension plan).... The rules would require that plans not make hiring, compensation, promotion or termination decisions based upon a claim adjudicator candidate's propensity for denying disability benefits. Plans would also need to review a medical expert's professional qualifications rather than his/her reputation for outcomes in contested cases." (McDermott Will & Emery)
[Guidance Overview] DOL Proposes New Regs for Disability Benefit Claims
"One of the key additions to the regulations is a requirement giving the claimant the 'last word' in the appeal process.... The regulations require 'automatic' timely disclosure of the new evidence and an opportunity for the claimant to respond before the appeal decision deadline expires; and that if the response triggers another round of point/counterpoint, the claimant must be furnished with new evidence and given an opportunity to respond even if it means tolling the time to decide the appeal until the claimant responds." (DeBofsky & Associates, P.C.)
[Guidance Overview] DOL Issues Proposed Revisions to Disability Plan Claims Regulations
"Failure to establish or follow claims procedures consistent with the new (and existing) requirements will result in the claimant being deemed to have exhausted the administrative remedies under the Plan and entitled to pursue any available remedies under ERISA Section 502(a), unless the violation is de minimis. The claim or appeal will be deemed to have been denied on review without the exercise of discretion by an appropriate fiduciary." (Seyfarth Shaw LLP)
[Guidance Overview] DOL Proposed Rules for Disability Claims Include Changes for Denial Notices
"The proposed rules would expand the requirements for disability denial notices to include: [1] A discussion of the plan's decision, including the basis for disagreeing with any disability determination by the Social Security Administration (SSA), treating physician, or other third party payor, to the extent that the plan did not follow the determinations presented by the claimant. [2] The plan's internal rules, guidelines, protocols, standards, or other similar criteria used in denying the claims (or a statement that they do not exist). [3] A statement that the claimant is entitled to receive relevant documents upon request at the claims stage (as opposed to providing that information for the first time in a denial notice at the appeal level)." (Practical Law Company)
Work Incentives in the Social Security Disability Benefit Formula
"The return to working an additional year at an income level just large enough to earn Social Security credits for the year is large and positive through age 60. However, the return to working an additional full year is substantially smaller and becomes negative at approximately age 57. Thus, older workers face strong incentives to earn enough to obtain creditable coverage through age 60, but they face disincentives for additional earnings. In addition, workers ages 61 and older face work disincentives at any level of earnings." (National Bureau of Economic Research [NBER])
District Court Says 'Aetna's Goal Was to Deny the Plaintiff's Claim'
"The court was disturbed by Aetna's insistence on 'objective medical evidence' in the absence of a policy requirement mandating such evidence. Moreover, the court found that the nature of [the employee's] impairment made it impossible for him to produce the type of evidence that Aetna demanded. The court was also dubious about the validity of Aetna's vocational assessment and also questioned its medical consultants' findings.... [The court] pointed out that Aetna did not have a license to ignore reliable evidence, yet it appeared to the court that Aetna did just that." [Charles v. UPS Long Term Disability Plan, No. 12-06223 (E.D. Pa. Oct. 29, 2015)] (DeBofsky & Associates, PC)

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