New ERISA Disability Claim Procedures: For Your Strict Compliance
In the latter part of 2016, the U.S. Department of Labor (DOL) published and released a final rule altering the ERISA disability claims procedure. The new rule applies to all ERISA-governed disability benefits claims filed on or after January 1, 2018. The final rule is designed to increase fairness and transparency and is aimed to cut down the number of lawsuit filings.
With the new alterations brought by the new rule, it is expected that new challenges and risks may arise. To avoid potential losses and unwanted costs, employers should ensure that their claim administrators and providers are updated with the latest trends and developments surrounding ERISA Disability Claim Procedures.
In this LIVE Webcast, a seasoned panel of thought leaders and professionals brought together by The Knowledge Group will help the audience understand all the important issues and key aspects in the New ERISA Disability Claim Procedures. Speakers will also present recent trends and developments and will underscore best compliance practices.
Key topics include:
- New ERISA Disability Claim Procedures: An Overview
- Major Provisions of the Final Rule
- Scope and Limitations
- Opportunities and Pitfalls
- Recent Trends and Developments
- Best Compliance Practices
Robert E. Goodman Jr., Member
Kilgore & Kilgore, PLLC
- Is compliance with the claim procedures going to improve in general? Probably not because those in effect for many years have still not been regularly observed in significant part.
- What are the implications for ERISA discovery? It certainly opens the door to discovery of procedural anomalies in violation of the regulations.
- What are the implications for remand? The expansion of requirements, even under a substantial noncompliance rule, would seem to warrant increased arguments for remand in the event of violation of any of the requirements.
- Are we still going to see appeals finally denied without an opportunity to comment on reviewers’ conclusions. Yes, some well observe the rule and some will ignore it.
- What are the implications for CIGNA and any other carriers which have regulatory agreements applicable to them? It would seem that the new rules reinforce the CIGNA agreement at least and allow for it to be used in argument more effectively now that some of its provisions have effectively been adopted.
- Is the change in the regulations going to turn the tide in reversals of denials? Slowly only, but it should send the message that unfairness is not to be tolerated.
- Are the new regulations going to change the practices with retaining, including identifying the name of and credentials of, reviewers? Probably not and it is difficult to get compelling evidence of conflict without wearing out the discovery process, but the new regulations should make the court feel less like it is dealing with technical matters than before and giving short shrift to conflict arguments.
- Are the new regulations going to remain in place? Hopefully, Trump will not begin tweeting on this subject.
Edna Sybil Kersting, Partner
- Independence requirement – and duty to monitor vendors, new (b)(7)
- Disclosure requirements, (g)(1)(vii)(A), (C) and (j)(6)(i)
- Right to review and comment on new information, (h)(4)
Nick Anthony Ortiz, Owner
The Ortiz Law Firm
- Right to Review and Respond to New Information Before Final Decision. The final rule prohibits plans from denying benefits on appeal based on new or additional evidence or rationales that were not included when the benefit was denied at the claims stage, unless the claimant is given notice and a fair opportunity to respond.
- Avoiding Conflicts of Interest. Plans must ensure that disability benefit claims and appeals are adjudicated in a manner designed to ensure the independence and impartiality of the persons involved in making the decision. For example, a claims adjudicator or medical or vocational expert could not be hired, promoted, terminated or compensated based on the likelihood of the person denying benefit claims.
- The new requirement that internal rules, guidelines, protocols, standards or other similar criteria of the plan relied upon in making an adverse benefit determination must be provided with the adverse benefit determination. Such information may not be withheld on grounds of confidentiality or that such information is proprietary. 29 C.F.R. § 2560.503-1(g)(1)(vii)(C).
Susan B. Grabarsky, Trial Lawyer
- Address the new requirement to provide the date on which plan believes limitations period would expire in the denial letter in the wake of Heimeshoff. (29 C.F.R. § 2560.503-1(j)(4)(ii).)
- Address the consequences for failing to adhere to the claims regulations (deemed exhaustion, de novo review), and the exceptions thereto. (29 C.F.R. § 2560.503-1(l)(2).)
- Go over the requirement for more detailed rationales in claim denials when disagreeing with a health care professional or vocational expert’s views (29 C.F.R. § 2560.503-1(g)(1)), and particularly when disagreeing with Social Security Disability determinations (29 C.F.R. § 2560.503-1(g)(1)(vii)(A)).
Who Should Attend:
- Plan Sponsors, Fiduciaries and Participants
- Retirement Plan Practicing Lawyers
- Employee Benefits & Compensation Lawyers and Consultants
- Employee Benefits & Compensation Officers
- Benefits Administrators
- Human Resource & Benefits Personnel
- Retirement Plan Financial Professionals
- Retirement Plan Sponsors
- Financial Advisers
- Public and Private Companies
Mr. Goodman is a lawyer licensed in Texas and Massachusetts, and has practiced law for 36 years, all but two years in Texas in Houston and Dallas. His primary areas of practice are employment law and benefits law, but he also handles other matters for individual clients and occasionally small businesses. He has pursued group and individual disability claims for almost 25 years, as well as severance and retirement claims, under Texas law and the Employee Retirement Income Security Act. He has aggressively used violations of the governing ERISA claims regulation as a basis for denial, remand and de novo review.
Mr. Goodman is a lawyer licensed in Texas and Massachusetts, and has practiced law for 36 years, all but two …
Edna Kersting is a partner in Wilson Elser’s Chicago office. She represents life, health and disability plans and their insurers in litigation matters throughout the United States in state and federal courts. She also consults with and represents insurers in matters involving bad faith and punitive damages, ERISA, class actions, and other insurance claims and coverage issues. Edna has published numerous articles on topics of interest in the Life, Health, Disability and ERISA practice area. In addition, she speaks at various insurance industry events. She is one of the vice chairs of the Life Insurance Law Committee of the ABA Tips Section and holds several committee positions in DRI’s Life, Health, Disability and ERISA Committee.
Edna Kersting is a partner in Wilson Elser’s Chicago office. She represents life, health and disability plans and their insurers …
Mr. Ortiz is a disability and injury Plaintiff’s attorney in Pensacola, Florida. About 95% of his practice is disability, split between Long Term Disability insurance claims and Social Security Disability claims. He is also a Board Certified Social Security Disability Attorney, certified by the National Board of Trial Advocacy. Mr. Ortiz is particularly interested in Long Term Disability insurance claims due to the complexity of that area of law. He likes the challenge of determining whether a claim is subject to Federal or State jurisdiction, and enjoys litigating cases on behalf of claimants – whether it be in Federal Court or State Court. He reads all new District Court and Circuit Court cases that come out in ERISA cases to stay abreast of changes in the law.
Mr. Ortiz is a disability and injury Plaintiff’s attorney in Pensacola, Florida. About 95% of his practice is disability, split …
Susan B. Grabarsky is a Trial Lawyer at DarrasLaw in California, where she has evaluated, litigated, and resolved thousands of ERISA disability insurance cases. She represents disabled claimants exclusively, though she is often consulted by employers, unions, and medical providers on behalf of policyholders in need of help. Her practice is focused on individual and group long-term disability, life, and long-term care insurance actions in state and federal court. Prior to becoming a lawyer, she worked as a cost-containment analyst for insurance companies and large self-insured employers in California. Given her legal and industry experience, she is frequently invited to write and speak on ERISA, insurance bad faith, and disability law topics.
Susan B. Grabarsky is a Trial Lawyer at DarrasLaw in California, where she has evaluated, litigated, and resolved thousands of …
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Method of Presentation:
Experience in employee benefits law
NASBA Field of Study:
Specialized Knowledge - Technical
NY Category of CLE Credit:
Areas of Professional Practice
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About Kilgore & Kilgore, PLLC
Kilgore & Kilgore, PLLC is an established Dallas law firm of nine lawyers who practice in various areas of specialty litigation, including employment law, benefits law, employment-related FINRA disputes, consumer fraud, trademark and copyright litigation and other niche practice areas. The firm is dedicated to assisting primarily individuals in such matters, and has a record of success in trials although it maintains a firm resolution-favoring orientation. The firm’s practice in the field of benefit claims has expanded significantly in the last seven years with the addition of Mr. Goodman.
About Wilson Elser
Wilson Elser, a full-service and leading defense litigation law firm (www.wilsonelser.com), serves its clients with nearly 800 attorneys in 31 offices in the United States and one in London. Founded in 1978, it ranks among the top 200 law firms identified by The American Lawyer and is included in the top 50 of The National Law Journal's survey of the nation’s largest law firms. Wilson Elser serves a growing, loyal base of clients with innovative thinking and an in-depth understanding of their respective businesses.
About The Ortiz Law Firm
Mr. Ortiz opened the Ortiz Law Firm in June 2012 after working at a boutique disability and injury law firm as an associate for seven years. The firm handles only plaintiffs’ claims, most of which are disability claims – both Long Term Disability and Social Security Disability claims. The Ortiz Law Firm primarily handles claims in Florida, but does represent Long Term Disability Insurance claimants across the country. Although Mr. Ortiz always intended to remain a solo attorney, the firm’s case-load has grown so much over the past several years that he just hired an associate to join the team.
DarrasLaw is the nation’s largest disability insurance practice representing policyholders. It provides free policy analysis, free case evaluation, and free claim assistance to thousands of disabled workers every year. The firm has represented disabled individuals from all walks of life, including high-profile athletes, entertainers, professionals, and blue-collar employees. DarrasLaw is based in California, but handles individual and group long-term disability, life, and long-term care insurance matters nationally.