Additional appeals

• Author: Scott M. Riemer/Jennifer L. Hess
• Pages: 141-144

9-123

Chapter 9

ADDITIONAL APPEALS

§9.0 INTRODUCTION

You just worked many hours to provide the best appeal possible for

your client. Despite your best eorts, the insurer denies the appeal. Can

you now bring a lawsuit against the insurer on your client’s behalf? Most

likely yes, but maybe no.

e Department of Labor Regulations permit disability benet plans

to require a claimant to exhaust up to two appeals of an adverse benet

determination before bringing a civil action. See 29 C.F.R. §2560.503-1(c)

(2). Despite this, few if any disability insurers require that a claimant

submit more than one appeal. Many insurers, however, oer claimants

the opportunity to do a second voluntary appeal pursuant to 29 C.F.R.

§2560.503-1(c)(3), which provides as follows:

To the extent that a plan oers voluntary levels of appeal (except

to the extent that the plan is required to do so by State law),

including voluntary arbitration or any other form of dispute

resolution, in addition to those permitted by paragraph (c)(2)

of this section, the claims procedures provide that:

(i) e plan waives any right to assert that a claimant has

failed to exhaust administrative remedies because the

claimant did not elect to submit a benet dispute to any

such voluntary level of appeal provided by the plan;

(ii) e plan agrees that any statute of limitations or other

defense based on timeliness is tolled during the time that

any such voluntary appeal is pending;