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DOL Announces April 1 Applicability of Final Disability Plan Claims Regulations

The U.S. Department of Labor (DOL) announced its decision for April 1, 2018, as the applicability date
for ERISA-covered employee benefit plans to comply with a final rule (released in December 2016) that
imposes additional procedural protections (similar to those that apply to health plans) when dealing with
claims for disability benefits. In October 2017, the DOL had announced a 90-day delay of the final rule,
which was scheduled to apply to claims for disability benefits under ERISA-covered benefit plans that
were filed on or after January 1, 2018.

Effective Date
While the DOL’s news release indicates that the DOL has decided on an April 1 applicability date for the
final rule, the regulatory provision modified by the 90-day delay specified that the final rule will apply to
claims filed “after April 1, 2018.”

Plans Subject to the Final Rule
The final rule applies to plans (either welfare or retirement) where the plan conditions the availability of
disability benefits to the claimant upon a showing of disability. For example, if a claims adjudicator must
make a determination of disability in order to decide a claim, the plan is subject to the final rule.
Generally, this would include benefits under a long-term disability plan or a short-term disability plan to
the extent that it is governed by ERISA.
However, the following short-term disability benefits are not subject to ERISA and, therefore, are not
subject to the final rule:

  • Short-term disability benefits they are paid pursuant to an employer’s payroll practices (i.e., paid out
    of the employer’s general assets on a self-insured basis with no employee contributions); and
  • Short-term disability benefits that are paid pursuant to an insurance policy maintained solely to
    comply with a state-mandated disability law (for example, in California, New Jersey, New York, and
    Rhode Island).

    In addition, if benefits are conditioned on a finding of a disability made by a third party other than the
    plan itself (such as the Social Security Administration or insurer/third-party administrator of the
    employer’s long-term disability plan), then a claim for such benefits is not treated as a disability claim
    and is also not subject to the final rule. For example, if a retirement plan’s determination of disability is
    conditioned on the determination of disability under the plan sponsor’s long-term disability plan, then the
    retirement plan is not subject to the final rule (but the final rule would apply to the underlying long-term
    disability plan).

Overview of the Final Rule
The DOL has published a Fact Sheet that provides an overview of the new requirements, which include
the following:

  • New Disclosure Requirements. New benefit denial notices that include a more complete discussion
    of why the plan denied a claim and the standards it used in making the decision;
  • Right to Claim File and Internal Protocols. New statement required in benefit denial notices that
    regarding claimant’s entitlement to receive, upon request, the entire claim file and other relevant
    documents and inclusion of internal rules, guidelines, protocols, standards, or other similar criteria
    used in denying a claim (or a statement that none were used).
  • Right to Review and Respond to New Information Before Final Decision. Plans may not deny
    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
  • Avoidance of Conflicts of Interest. Claims and appeals must be adjudicated in a manner designed
    to ensure independence and impartiality of the persons involved in making the decision. For example,
    a claims adjudicator or medical or vocational expert cannot be hired, promoted, terminated, or
    compensated based on the likelihood of such person denying benefit claims.
  • Deemed Exhaustion of Claims and Appeal Procedures. If a plan does not adhere to all claims
    processing rules, the claimant is deemed to have exhausted the administrative remedies available
    under the plan, unless the violation was the result of a minor error and other conditions are met.
  • Certain Coverage Rescissions are Subject to the Claim Procedure Protections. Rescissions of
    coverage, including retroactive terminations due to alleged misrepresentation of fact (e.g., errors in
    the application for coverage) must be treated as adverse benefit determinations, which trigger the
    plan’s appeals procedures. Rescissions for non-payment of premiums are not covered by this
  • Communication Requirements in Non-English Languages. Language assistance for non-English
    speaking claimants are required under some circumstances.

    Next Steps
    Before April 2018, employers should:

  • Identify which benefit plans (in addition to long-term disability) it sponsors are subject to the final rule
    (and consider whether to amend any plan that currently triggers the new rules to rely on the disability
    determinations of another plan to avoid having to comply with the final rule);
  • For any plan subject to the final rule, review and revise claims and appeal procedures prior to April if
    the plan is not already in compliance with the new rule;
  • Update participant communications, such as summary plan descriptions and claim and appeal
    notices, as needed; and
  • Discuss administration of disability benefits with any third-party administrators and insurers to ensure



About the Authors:
This alert was prepared for us by our friends at Marathas Barrow WeatherheadLent LLP, a national law firm with recognized experts on the Affordable Care Act. Contact Peter Marathas or Stacy Barrow at pmarathas@marbarlaw.com or sbarrow@marbarlaw.com.
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