FIRST CIRCUIT FINDS ERISA PLAN REQUIRED TO PRODUCE EVIDENCE GENERATED DURING ADMINISTRATIVE APPEAL UPON REQUEST, EVEN UNDER "OLD" VERSION OF DOL CLAIM REGULATION
In
Jette v. United of Omaha Life Insurance Company, 18 F.4th 18 2021 WL 5231971 (1
st Cir. 2021), the First Circuit, disagreeing with other circuit courts of appeal, found that United of Omaha failed to provide a “full and fair review” when it refused to produce a medical report generated during the administrative appeal that was requested by Jette.
Jette was covered by a long-term disability plan provided by her employer, which was governed by ERISA. The plan was funded by a group policy issued to the employer by United of Omaha. Claims were also administered by United of Omaha.
After being paid benefits for a period of time, United of Omaha discontinued benefits. Jette pursued an administrative appeal. United of Omaha upheld its decision.
Jette filed suit. The district court upheld United of Omaha’s decision, finding that it was not arbitrary and capricious. At the district court level, Jette also argued that United of Omaha had not provided her with a full and fair review because she was not given the report of an independent medical examination conducted during the appeal. Jette had requested during the administrative appeal that United of Omaha disclose any new medical opinions generated during the appeal process and provide her an opportunity to respond prior to making its final determination. United of Omaha refused, stating it was not required to provide Jette with a copy of the report. In United of Omaha’s view, ERISA claim regulations required only that it provide information generated prior to the appeal, and not again until after its decision on an appeal was rendered.
Before the First Circuit, Jette argued that United of Omaha violated 29 C.F.R. § 2650.503-1(h) by failing to allow her to review and rebut the IME report prior to the final decision on appeal. The First Circuit agreed. It is noteworthy that United of Omaha was administering Jette’s claim under the DOL claim regulation in place prior to its amendment in 2018. While the new regulation unequivocally requires a claim administrator to provide information generated during the administrative appeal and allow the claimant to respond, most circuit courts of appeal that addressed this issue have found that the claim administrator is not required to produce such materials under the prior claim regulation.
Under the First Circuit’s review of the regulation, however, it found such an obligation to exist. In the court’s review, based upon its interpretation of the regulation, upon a claimant’s request for documents after an initial adverse determination, the claim administrator must disclose any new documents relevant to the claim regardless of whether it is used to support the decision on appeal. The claimant then must be given the opportunity to respond to the new information as the claimant deems appropriate. At that point, the plan administrator is required to take into account the new submissions. In Jette’s case, by failing to do so, the First Circuit found United of Omaha denied Jette a full and fair review of her claim.
Given that the IME report was not provided by United of Omaha, the court found that Jette had been prejudiced by the procedural violation and therefore remanded the claim to United of Omaha where Jette would have the opportunity to submit a response to the IME report and United of Omaha would make a new determination based upon the supplemented record.
Administrators reviewing claims arising within the First Circuit are warned that regardless of the version of the DOL claim regulation being applied, information generated during the appeal, if requested, must be produced to the claimant with an opportunity to respond.
