Plan Admin Can Be Required to Produce Recording in Claims Dispute

A plan administrator can be required to produce a recording or a transcript of a conversation between a claimant and plan representative, the Department of Labor has indicated in a recent Information Letter. 

In the letter, Eric Berger, Acting Chief of the Division of Coverage, Reporting and Disclosure at the DOL Office of Regulations and Interpretations, wrote to Cassie Springer Ayeni, President and Managing Attorney at the law firm Springer Ayeni, concerning claims procedure requirements under Section 503 of Title I of ERISA. More specifically, she asked whether ERISA section 503 and the Department of Labor’s implementing claims procedure regulation at 29 CFR 2560.503-1 require the responsible plan fiduciary to provide, upon a claimant’s request, a copy of an audio recording and transcript of a telephone conversation between the claimant and a representative of the plan’s insurer relating to an adverse benefit determination. Ayeni told the DOL that a claimant’s request for such a recording had been denied.

Berger writes that ERISA Section 503 requires every employee benefit plan to “afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim” and that implementing regulations require employee benefit plans to “establish and maintain reasonable procedures governing the filing of benefit claims, notification of benefit determinations, and appeal of adverse benefit determinations.” Further, he writes, those regulations require that a plan’s claims procedures will not provide a reasonable opportunity for that full and fair review unless “the claims procedures provide that a claimant shall be provided, upon request . . . copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.” 

Berger further notes the regulations state that information is relevant to a claimant’s claim if it “was … generated in the course of making the benefit determination,” even if it was not “relied upon in making the benefit determination.” Consequently, he says, “it is immaterial whether information was ‘not created, maintained, or relied upon  claim administration purposes.’” 

Berger also says that “nothing in the regulation requires that ‘relevant documents, records, or other information’ consist only of paper or written materials.” He adds that “in the preamble to recent amendments to 29 CFR. 2560.503-1, the DOL recognized that an audio recording can be part of a claimant’s administrative record.” 

“A recording or transcript of a conversation with a claimant would not be excluded from the requirements under 29 CFR 2560.503-1 to disclose relevant ‘documents, records, and other information’,” says Berger, just because the plan or claims administrator: 

• does not include the recording or transcript in its administrative record; 
• does not treat the recording or transcript as part of the claim activity history through which the insurer develops, tracks and administers the claim; or 
• because the recording or transcript was generated for quality assurance purposes.

A Caveat

DOL information letters are for informational purposes only; they are not binding on the DOL regarding any particular situation and set of facts. Therefore, this information letter provides information regarding Berger’s view given the matter Ayeni raised, but it is not formal guidance.