The Right to Respond

The third change that the new claim procedure regulation will require is the right to respond to newly-considered or newly-generated information. Many times, plans “sandbag” – that is they wait until the final appeal to require an independent medical evaluation or send the file out for a peer review after the claimant submits her appeal. Then, without letting the claimant see this new evidence, they make their final decision and refuse to consider anything further. This goes against notions of fairness and due process which any attorney understands.

However, plans justify it, stating that it costs too much to pay these doctors to deny or terminate typical claims, where the participant might not appeal it. So, waiting until the appeal makes business sense because then, only the really serious people will be involved. The unfairness in not allowing a right to respond to the new evidence, however, allows for a process that is designed to terminate all claims unfairly. Courts don't do this when weighing evidence, and neither should claim administrators.

Seasoned ERISA lawyers will know the new regulation and not permit this. Now under the new claim procedure regulation, the claimant will get the last word. When a claim is terminated the claimant has a right to see all evidence relied upon or generated and then provide a response. If this response causes the plan to generate new evidence, such as a peer review or an independent medical evaluation, then the claimant must be furnished this new evidence and allowed time to respond before a final decision is made. That could go on several time, so a watchful eye like a hawk as to abuse in dragging the matter out indefinitely will still be required.

If you think about it, no one would like to have a judge only rule on one side of the case. When considering new arguments, issues or evidence the other side is allowed a right to respond. In fact, the Fed. R. Civ. P. require this. Yet for many years there has been one-sided claims handling during the ERISA claim process. This change will inject a lot more fairness where it is desperately needed.