On November 24, 2017, the DOL issued a final rule that delays by 90 days the applicability date of final regulations governing the claims procedure requirements for ERISA plans that provide disability benefits (81 Fed. Reg. 92316 (Dec. 19, 2016); 29 C.F.R. § 2560.503-1). Issued in December 2016, the final regulations amended the existing DOL claims regulations for plans providing disability benefits (see Legal Update, Final DOL Disability Claims Regulations Require Notice of Contractual Limitations Periods and Practice Note, Claims Procedure Requirements for Disability Claims). The final rule adopts without change the DOL's proposed rule, issued October 10, 2017, to delay by 90 days the applicability date of the final disability claims procedure regulations (see Legal Update, DOL to Delay Updated Disability Claims Rules Through April 1, 2018; 82 Fed. Reg. 47409 (Oct. 12, 2017)).

Without the 90-day delay, the DOL's final disability regulations would have applied for disability benefits under ERISA plans filed on or after January 1, 2018. With the now-final 90-day delay, the changes to the disability-related claims regulations under the December 2016 regulations apply to claims for disability benefits filed after April 1, 2018.

In proposing its 90-delay to the final regulations' applicability date in October 2017, the DOL also sought comments and data on whether the December 2016 final disability regulations should be rescinded, modified, or retained. The comment period for responses regarding these issues closes on December 11, 2017.

The changes under the DOL's disability final regulations reflected similar claims procedure enhancements applicable to group health plans under the Affordable Care Act's (ACA's) internal claims and appeals rules (see Practice Notes, Internal Claims and Appeals Under the ACA and Affordable Care Act (ACA) Overview). Among other changes, the DOL's disability final regulations:

For analysis of these changes in the context of plans that provide disability benefits, see Practice Note, Claims Procedure Requirements for Disability Claims.

In finalizing the 90-delay, the DOL expressly rejected commenters' requests for an even longer delay. In the DOL's view, it would be premature to consider a delay of longer than 90 days without reliable data and information supporting commenters' assertions that the final disability regulations will lead to unwarranted cost increases and a reduction in disability benefits. If the DOL receives data and information supporting these assertions, it may provide additional time for the regulated community to submit comments on the data and information. Only then would the DOL consider any further delay of some or all of the requirements of the final disability regulations beyond April 1, 2018.

As noted, the period for providing comments, data, and other information about whether the DOL's December 2016 final disability claims regulations should be rescinded, modified, or retained remains open until December 11, 2017. The DOL was not persuaded by comments arguing that this deadline should be extended.

It's difficult to tell at this point whether the December 2016 final regulations will become applicable in 2018 – or if they will instead be delayed or rescinded altogether. The DOL suggests that its decision will largely depend on whether commenters submit persuasive comments and data by the December 11, 2017 deadline in support of their calls to revise or rescind the rule. For now, however, this remains a topic that we'll be keeping a close eye on in early 2018.