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DOL: Plans May Need to Disclose Claims-Related Audio Recordings
Practical Law Legal Update w-031-4168 (Approx. 4 pages)
DOL: Plans May Need to Disclose Claims-Related Audio Recordings
by Practical Law Employee Benefits & Executive Compensation
| Published on 16 Jun 2021 • USA (National/Federal) |
The DOL's Employee Benefits Security Administration (EBSA) has issued an information letter addressing when it may be necessary for benefit plans and plan decisionmakers (including insurers in the benefit claims context) to disclose claims-related audio recordings to claimants on request. The DOL's letter rejects the notion that a recording is exempt from disclosure because it was generated for quality assurance purposes.
The DOL's Employee Benefits Security Administration (EBSA) has issued an information letter regarding when benefit plans, claims administrators, and other plan decisionmakers may need to disclose claims-related audio recordings to claimants (DOL Info. Ltr. (June 14, 2021)). The information letter addresses the question of whether ERISA and the DOL's claims procedure regulations require a plan fiduciary to provide—on request from a claimant—a copy of an audio recording or a telephone conversation transcript between the claimant and a representative of the plan's insurer regarding a benefits denial (29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1; see Practice Note, Internal Claims and Appeals Under the ACA).
The claimant at issue was provided notes that:
- "Contemporaneously documented" the content of a recorded conversation between the insurer and the claimant.
- Became part of the claim activity history used by the insurer to develop, track, and administer the claim.
However, the claimant's request for an audio recording of the conversation was denied on the grounds that the recording was:
- Distinct from the notes made available to the claimant.
- Created for quality assurance purposes, but not created, maintained, or relied on for claim administration purposes.
- Therefore not part of the claim's administrative record.
Analysis Under DOL Claims Regulations
Under the DOL's claims regulations, a claimant must be provided, on request, copies of all documents, records, and other information relevant to the claimant's benefits claim. A document, record, or other information is relevant to the claim if (among other reasons) it:
- Was relied on in making a benefit decision.
- Was submitted, considered, or generated in making the benefit decision (regardless of whether the information was relied on in making the decision).
- Demonstrates compliance with the administrative processes and safeguards required by the claims regulations.
Regarding the second bulleted item, the DOL observed that information can be relevant for disclosure purposes even if it was not created, maintained, or relied on for claims administration reasons. The DOL rejected the notion that a recording is exempt from being disclosed because it was generated for quality assurance purposes. For example, the DOL indicated that the recording could demonstrate compliance with the claims regulations' administrative processes and safeguards—making it subject to a disclosure request as relevant information.
According to the DOL, "relevant documents, records, or other information" also need not be limited to paper or written materials. Citing DOL comments made in finalizing changes to the disability claims regulations in 2016, an audio recording can be part of a claimant's administrative record. Specifically, the DOL indicated in the 2016 preamble material that:
- Claimants would not be prohibited from furnishing audio evidence in support of a claim.
- Video, audio, or other electronic material were types of evidence that plans could not refuse to accept.
As a result, a recording or transcript of a conversation with a claimant is not excluded from the requirement to disclose relevant documents, records, and other information merely because:
- The plan or claims administrator does not include the recording or transcript in its administrative record.
- The plan or claims administrator does not treat the recording or transcript as part of the claim activity history through which an insurer develops, tracks, and administers the claim.
- The recording or transcript was created for quality assurance purposes.
Practical Impact
DOL information letters are informational only and not binding on the DOL regarding any particular factual situation. Nonetheless, the DOL has offered participants and beneficiaries (and their counsel) a potentially useful tool for disputing benefit claims. Though generally favorable to claimants, the DOL's letter does require—on these facts, at least—that a claimant affirmatively request the audio recording.