More ERISA: Update on the DOL’s Proposed Delay of the Disability Claims Handling Rules

Posted on: November 3, 2017 0

By Marti Cardi, VP-Product Compliance & Gail Cohen, Director-Employment Law/Compliance

Hello, all you ERISA folks.  How many of you are losing sleep over the new ERISA rules for disability claims handling?  As we previously discussed here, the DOL has proposed delaying the effective date of these rules (the “Final Rule”), which are currently scheduled to go into effect for claims filed on or after January 1, 2018.  But, as we previously reported, the US Department of Labor announced that it is “reviewing these amendments for questions of law and policy” and solicited public comments on its proposal to delay the effective date of the Final rule by 90 days (until April 1, 2018).

The public comment period on this proposal ended on October 27, and today the DOL posted the 108 comments received.  They can be reviewed here.  Not surprisingly, comments from claimants and attorneys for claimants oppose the delay, and claims handling and insurance companies  favor the extension.

Also today, I had a discussion with a DOL representative working on this issue to inquire when we could expect the DOL’s decision on the delay.  I was unable to obtain any specific information (not surprised!) but received assurances that the DOL is aggressively reviewing and considering the comments received.  They are very aware that affected parties are waiting eagerly – or anxiously – for the ruling.  We will provide immediate updates of any new developments on this blog.

For a refresher on the requirements of the changes to ERISA disability claims handling requirements, as set forth in the Final Rule, review our prior blog post http://matrix-radar.com/2017/01/a-game-changer-ERISA-releases-new-ERISA-disability-claims-rules/.

Tired of reports on ERISA, NY Paid Family Leave, and all things California?  Check out our recent blog posts on other topics:

The Headless Horseman – An ADA Halloween Tale

Lucky Employer Skates on ADA Liability

7th Circuit Rules that Extended Leave is not a Reasonable ADA Accommodation

And feel free to suggest any FMLA, ADA, disability, or other absence management challenges as topics for future blog posts!

What is Matrix Doing?  At Matrix we have been working diligently to prepare for the new rules.  Regardless of the outcome of the DOL review, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018, or other new effective date.  To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service.  Our practice leaders and account managers will keep clients, producers, and others apprised of our work during the lead-up to the effective date – whatever it is!  If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

DOL Proposes to Delay the Effective Date of ERISA Disability Claims Handling Rules and Seeks More Public Comment

Posted on: October 10, 2017 0

By Marti Cardi, VP-Product Compliance& Gail Cohen, Director-Employment Law/Compliance

 

It’s a moving target, but we’re watching!  The amended ERISA disability claims handling rules  (the “Final Rule”) are set to go into effect for claims filed on or after January 1, 2018.  But, as we previously reported, the US Department of Labor announced in July that it is “reviewing these amendments for questions of law and policy.”  Today the DOL issued a Proposed Rule that will be published in the Federal Register on October 12, 2017.  You can read an advance copy of the Proposed Rule here.

The DOL proposes to delay the effective date of the ERISA disability claims handling rules by 90 days, to April 1, 2018 (some irony there).  The reason for the delay is to allow the DOL time to “solicit additional public input and examine regulatory alternatives” to the Final Rule.  Here are some important dates:

  • Comments on the proposal to extend the applicability date for 90 days must be submitted to the Department
    on or before October 27, 2017 (15 days after publication of the Proposed Rule in the Federal Register)
  • Comments providing data and otherwise germane to the examination of the merits of rescinding, modifying,
    or retaining the rule must be submitted to the Department on or before December 11, 2017
    (60 days after publication of the Proposed Rule in the Federal Register)

We will provide immediate updates of any new developments on our blog, http://matrix-radar.com/ – please sign up!

For a refresher on the changes to the ERISA disability claims handling requirements, as set forth in the Final Rule, review our prior blog post http://matrix-radar.com/2017/01/a-game-changer-dol-releases-new-erisa-disability-claims-rules/.

What is Matrix Doing?  At Matrix we have been working diligently to prepare for the new rules.  Regardless of the outcome of the DOL review, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018, or other new effective date.  To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service.  Our practice leaders and account managers will be in touch with clients during the lead-up to the effective date – whenever it is! – to discuss changes to plan notifications, procedures, and more.  If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

 

DOL Announces it will Review ERISA Claims Disability Handling Rules Slated for 1/1/2018

Posted on: August 3, 2017 0

By Marti Cardi, VP-Product Compliance &

Gail Cohen, Director-Employment Law/Compliance

 

As we all know, the ERISA disability claims handling rules were revised by the US Department of Labor, to be effective for claims filed on or after January 1, 2018.  As part of the ever-changing governmental landscape under our current President, the DOL has now announced it is “reviewing these amendments for questions of law and policy.” 

The DOL announcement indicates it will issue a Notice of Proposed Rulemaking in September (09/00/2017 to be exact!), but there is no indication as to the scope of its review or potential subjects within the amended rules that will be reviewed.  Possibilities include repealing the amendments entirely, modifying or repealing parts them, and/or simply delaying the effective date.  

A Notice of Proposed Rulemaking (NPRM) is a public notice issued by law when one of the independent agencies of the United States government (like the DOL) wishes to add, remove or change a rule or regulation as part of the rulemaking process. It is a process for announcing proposed regulatory changes and subsequently taking public comment.  So, we may be in limbo for a while.  Even once the NPRM is issued, there will still be unanswered questions as we go through the period of public comment and await any revisions and finalization.

For a refresher on the requirements of the new ERISA rules, review our prior blog post http://matrix-radar.com/2017/01/a-game-changer-dol-releases-new-erisa-disability-claims-rules/.

So what to do now?  If the rules go into effect in their present or similar form for claims filed on or after January 1, there is not enough time to put all preparations on hold.  Moreover, we need to remember that many of the changes made to the ERISA claims handling rules are based on federal court rulings in cases where claimants challenged the plan’s decision and procedures.  As a result many aspects of the new rules, as currently written, are still good guidance on how to manage disability claims. 

Employers with ERISA disability plans should consult with their legal counsel for advice with respect to their specific plans and procedures.  In the meantime, here are some suggestions on where employers might want to place focus while the regulatory process runs its course:

Revamp denial letters to clearly and adequately explain why the employee’s medical condition (or other factors) does not qualify the claimant for disability benefits under the employer’s plan.

Review claims handling procedures and revise as necessary to ensure impartiality and avoid conflicts of interest.

Provide updated refresher training for claims management personnel to ensure good practices and consistency in determining claims.

WHAT IS MATRIX DOING?

At Matrix we have been working diligently to prepare for the new rules.  Regardless of the outcome of the DOL review and NPRM, Matrix will be ready to administer our clients’ disability plans in compliance with the new regulations by January 1, 2018; or a new effective date.  To this end, we have assembled a task force of experts in disability plans, claims handling procedures, ERISA, and customer service.  Our practice leaders and account managers will be in touch with clients during the remainder of 2017 to discuss changes to plan notifications, procedures, and more.  If you have questions in the meantime, contact your account manager or sales representative, or send us an email at ping@matrixcos.com.

 

Hat tip to Megan Holstein for breaking the news about this hard-to-find announcement, which you can link to here:  https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201704&RIN=1210-AB39 .

 

MATRIX CAN HELP!  Matrix provides leave, disability, and accommodation management services to employers seeking a comprehensive and compliant solution to these complex employer obligations. We monitor the many leave laws being passed around the country and specialize in understanding how they work together. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

Light Summer Reading from the Department of Labor

Posted on: July 21, 2016 0

By Marti Cardi, VP-Product Compliance
Back in April the U.S. Department of Labor unveiled its new Employer’s Guide to the Family and Medical Leave Act.  (Our report is here.) The Guide was released to coincide with the annual FMLA/ADA Employer Compliance Conference hosted by Disability Management Employer Coalition in Pittsburgh.  Helen Applewhaite, FMLA Branch Chief for the DOL, announced the Guide to attendees in opening remarks. Then Ms. Applewhaite and I co-presented on some tough FMLA issues (2nd/3rd opinions, anyone?), and presented parts of the Guide as a resource for employers.

Now the DOL has released a blog post, “What Employers Need to Know About the Family and Medical Leave Act,” more formally introducing the Employer’s Guide to the rest of the employer community.  The post has a short introductory video and a link to download or order copies of the Guide.  It also has links to the Matrix blog post and my friend Jeff Nowak’s blog announcing the introduction of the Employer’s Guide at the DMEC conference.  Thanks to the DOL for the nod!

If you haven’t yet reviewed the Employer’s Guide, you should.  It doesn’t answer all the difficult FMLA questions we encounter, but it does provide an easy-to-read, non-legal resource for employers.

While you’re at it, also take a look at the Family and Medical Leave Act Employee Guide.  This concise booklet can serve as a great training and reference tool for your employees.  What do I like about it?  The Employee Guide doesn’t just explain employee leave rights under the FMLA; it also advises employees of their obligations if they want to benefit from FMLA leave.  FMLA is a two-way street, with both parties – employer and employee – having rights and obligations.

Happy beach reading!

Matrix Can Help!  Even with the new Employer’s Guide, managing FMLA leave remains a tricky and complicated business.  Add various state leave laws, the Americans with Disabilities Act, worker’s compensation and company policies, and you have a perfect storm of challenging employee rights. At Matrix we are experts in these state and federal laws. We specialize in understanding how they work together and in monitoring developments so you don’t have to. For leave management and accommodation assistance, contact us at ping@matrixcos.com.

An Excellent Week for FMLA/ADA Geeks

Posted on: May 2, 2016 1

By Gail Cohen, Director, Compliance & Employment Law

One of Matrix’s promises to our clients it to be on top of developments in the world of accommodations and leaves of absence.  One way we do this is to develop relationships with the head honchos at the agencies that administer key laws:  the U.S. Department of Labor for FMLA, and the U.S. Equal Employment Opportunity Commission for the ADA.  Last week two members of our compliance team had opportunities to further those relationships.  Gail Cohen attended a meeting in Washington DC with two EEOC Commissioners, and Marti Cardi presented together with the DOL’s FMLA Branch Chief at the Disability Management Employer Coalition (DMEC) national FMLA/ADA Compliance Conference.   Here are summaries of these key events.

DMEC presentation with FMLA Branch Chief  On Monday April 25, Helen Applewhaite (head of the DOL’s FMLA branch) and Marti Cardi (Matrix’s Vice President of Product Compliance) jointly presented a plenary session at the DMEC conference entitled, “The DOL Steps Up For Employers:  Hands-On FMLA Leave Management Guidance.” A copy of the full presentation is available below. The session had 3 main areas of focus.

First, Applewhaite addressed specific challenges the DOL still sees employers struggling with more than 23 years after enactment of the FMLA.  These included the many employer notice obligations required by the regulations, including posting, general policy, eligibility, rights and responsibilities, and designation notices.  These may seem to employers like simple requirements, but the DOL continues to see violations of these notice obligations, which can be the basis for an FMLA interference claim.  Cardi added a reminder of the employer’s obligation to notify an employee each time a certification form will be required for a leave, addressed in the recent case Graziadio v. Culinary Institute of America  (2nd Cir. 2016).  Conference attendees were reminded to ensure not only that they comply with these notice requirements, but also that the contents are up to date.  Anything prepared prior to 2013 (the last major revision to the FMLA regulations) needs a close review and update.

Second, Cardi addressed FMLA challenges she sees from the practitioner’s perspective – areas that are not well addressed in the FMLA regulations and other DOL materials.  One such area is the use of second and third opinions in the certification process.   An employer can require a second opinion when it has reason to doubt the validity of the original certification from the employee’s health care provider (HCP) – but the term “validity” is never defined in the regulations or other DOL resources.  Cardi presented examples of circumstances that might justify a second opinion:  the HCP’s area of practice does not relate to the serious health condition at issue; the HCP is a close relative of the employee; the same HCP has provided identical certification information for multiple employees; or frequency and duration that are extremely excessive for the condition.

Third, throughout the session, Applewhaite and Cardi referred attendees to resources available to employers on the DOL FMLA website (www.dol.gov/whd/fmla).  These include links to the FMLA regulations themselves plus important guidance like fact sheets, FAQs, forms, Administrator Interpretations, and more.  Applewhaite also introduced the extensive new Employer’s Guide to the Family and Medical Leave Act, available on the FMLA website.  See our prior blog post about the new Guide here.  Applewhaite and Cardi reminded attendees that using broad internet searches for answers to FMLA questions is risky.  Some sources are less than trustworthy, and even those that are dependable (such as this one!) may become out of date on a particular topic down the road.

Here’s a copy of the presentation.

Meeting with EEOC Commissioners Feldblum and Lipnic On Tuesday, April 26, 2016, Gail Cohen had the privilege of attending a small meeting with EEOC Commissioners Victoria Lipnic and Chai Feldblum at EEOC headquarters in Washington, D.C.  The meeting was sponsored by the Labor and Employment Section of the Association of Corporate Counsel.  During the meeting the Commissioners addressed certain important ADA-related topics.

ADA Leave as an Accommodation – Interaction with the FMLA According to Commissioner Feldblum, anytime an employee makes a request for FMLA leave for his or her own serious health condition, this is an opportunity for the employer to also consider its obligations to engage in the interactive process under the ADA.  Commissioner Feldblum further expressed the opinion that the requirement to initiate consideration of leave as an accommodation under the ADA arises even if the employee has not returned the required certification of health care provider to support his or her need for FMLA leave despite being afforded the opportunity to do so.  We at Matrix do not agree with the EEOC’s interpretation that an employer has to chase after an employee who has failed to support his or her request for FMLA leave.   However, it is wise to consider, prior to taking any adverse action against that employee for an absence not supported by FMLA paperwork, what other steps, if any, the employer  might want to take to ensure that a decision to take adverse action in close proximity to an FMLA request is appropriate and well-documented.

EEOC Priorities For ADA  Enforcement At the meeting, Cohen had the opportunity to ask Commissioners Lipnic and Feldblum about the EEOC’s priorities for ADA enforcement.  Those priorities are:

  • Leave as an accommodation under the ADA. Many employers have inflexible leave policies with automatic termination at a certain point, such as exhaustion of a certain number of weeks of leave, completion of the worker’s compensation process without being able to return to work full time/full duty, and exhaustion of disability benefits without being “100% healed.”   The Commission continues to stress the need for an individualized analysis of the employee’s specific situation to determine whether or not an extension of leave may be a reasonable accommodation that will enable the employee to return to work;
  • Employer job descriptions that identify as essential job functions items which are actually “qualification standards.” Commissioner Feldblum cautioned that the EEOC is scrutinizing employer job descriptions to ensure that they describe essential functions – which she defined as the tasks required to perform the job as opposed to a pre-existing qualification for the position. An example she gave is whether “the ability to work any shift” is truly an essential job function as opposed to something that is not truly a job requirement and therefore is fair game for employers to be flexible.
  • Commissioners take a sunny view of the hurdle of hardship. Both Commissioners expressed the opinion that showing a requested  accommodation is an undue hardship is not the insurmountable hurdle employers believe it to be.  If an accommodation is reasonable and effective, then the employer’s only reason not to provide the accommodation is that it poses an undue hardship.  Despite the Commissioners’ optimism, employers must closely analyze the hardship posed by a requested accommodation and be able to support a hardship determination with specific facts (financial, operational, or otherwise).
  • Reassignment as an ADA accommodation. Many employers don’t fully understand their obligation to provide reassignment to a vacant position as the accommodation of last resort. If an employee’s limitations prevent him or her from performing the essential functions of the job, the employer has the obligation to search for a vacant position for which the employee is qualified.  See our post on this topic here.

MATRIX CAN HELP! The Americans with Disabilities Act presents many challenges for employers.  Addressing accommodation requests doesn’t have to be one of them.  Matrix’s ADA Advantage leave management system and our dedicated ADA accommodation team helps employers maneuver through the accommodation process and reduce the risk of being involved in a lawsuit for failure to accommodate.  We will initiate an ADA claim for your employee, conduct the medical intake if needed, manage the interactive process, assist in identifying reasonable accommodations, document the process, and more.  Contact Matrix at 1-800-866-2301 to learn more about these services.