This week, we look at the commandments of the appeal process – last week we discussed the claim process.  There are standards as to what is fair, and the rules are not so difficult that an ERISA decision-maker should fail to follow them. The rules on appeal are slightly different but remain critical as a failure to follow them may allow a plan participant to demand de novo review in litigation.  The judge would be deciding the claim the same as for an ordinary breach of contract case. U.S. Airways, Inc. v. McCutchen, 569 U.S. 88 (2013) and Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101 (1989) That typically means a fairer decision process since the judge is not paying the claim out of her or his own pocket.

So, what are the rules for a fair appeal process? These are the rules as mandated by 29 U.S.C. § 1133 and the Department of Labor's regulation at 29 CFR §2560.503-1:

1. Thou shalt give the participant the opportunity to comment and submit information relating to the claim and thou shalt read it and consider it. 29 CFR §2560.503-1 (h)(2)
2. Thou shalt provide the participant the claim record free of charge after an adverse decision. 29 CFR §2560.503-1 (h)(2), (m)(8)
3. Thou shalt give the participant at least 180 days to appeal any claim that involves a medical or disability determination. That includes long-term disability, a life waiver of premium or extension a benefit claim, health claims, and pension disability claims.  29 CFR §2560.503-1 (h)(3)
4. Thou shalt use a different and independent fiduciary, who does not give any deference to the initial decision, to decide the appeal. 29 CFR §2560.503-1 (h)(3)
5. Thou shalt consult with an expert who has training and experience in the field of medicine involved in making a medical or disability determination, if you choose to consult with a expert. 29 CFR §2560.503-1 (h)(3)
6. Thou shalt identify all medical and vocational experts consulted, and their opinions must be disclosed whether relied on or not.They also must not be the same experts used for the initial claim decision. 29 CFR §2560.503-1 1 (h)(3)
7. Thou shalt provide the participant sufficiently in advance of the date when a decision is due, all new evidence or new rationales considered on appeal with adequate time for participant to respond. 29 CFR §2560.503-1 (h)(4)
8. Thou shalt make a decision on appeal in 45 days and you shall only extend that timeframe by 45 days with notice during that time and only for good cause beyond your control. 29 CFR §2560.503-1 (i)(1),(i)(3)
9. Thou shalt give specific reasons in writing or electronically to deny a claim on appeal and the reasons must be calculated to be understood by the claimant and provided. 29 CFR §2560.503-1 (j)(1)
10. Thou shalt also reference specific plan provisions and show that that benefit determination is based on those plan decisions. 29 CFR §2560.503-1 (j)(2)
11. Thou shalt again inform the participant of the right to receive free of charge copies of all information relevant to the claim and appeal whether relied on or not whenever an adverse decision is made. 29 CFR §2560.503-1 (j)(3)
12. Thou shalt set out any contractual limitations for filing a lawsuit in the communication denying the appeal. 29 CFR §2560.503-1 (j)(4)
13. Thou shalt set out in the communication denying the appeal the basis for disagreeing with treating healthcare professionals and vocational professionals. 29 CFR §2560.503-1 (j)(7)
14. Thou shalt set out in the communication denying the appeal, a discussion of reasons to reject findings in a known Social Security disability decision, if those findings are in conflict with the communication.
15. Thou shalt provide good cause to excuse violations of these commandments within 10 days of a request if such a request is made during the claim or appeal.  If a pattern and practice of violations exists no good cause exceptions apply. 29 CFR §2560.503-1 (l)(2)

Thus, saith the Secretary of the Department of Labor.  If decision-makers closely follow these commandments, there would be far less litigation.  Just like there would be far fewer problems in the world if everyone followed the ten Commandments.