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Halo and Strict Enforcement of ERISA Health and Disability Benefit Claim Procedures

By A. Christopher Wieber, Esq. (Law Office of Mark Scherzer)

In 2016, the Second Circuit Court of Appeals issued Halo v. Yale Health Plan, 819 F.3d 42 (2d Cir. 2016), a decision that has reinforced the important protections provided by ERISA’s full-and-fair-review procedural requirements.  ERISA’s regulations set forth rules regarding the timing and content of decision notices, the timing and procedural elements of appealing a denied claim, and the substance of a claimant’s right to access internal claim documentation relevant to the insurance company’s handling of his or her claim.  In Halo, the Second Circuit Court of Appeals held that a violation of these procedural rules could strip the insurer-claim administrator of the substantial advantage of ERISA’s deferential arbitrary and capricious standard of review.  While Halo involved defective decision notices, subsequent district court cases in the Second Circuit have invoked Halo to remedy violations of other procedural requirements by imposing de novo review.  Since the applicable standard of review is one of the most consequential factors in the outcome of an ERISA disability case, Halo and its progeny have given appropriate and well-needed teeth to ERISA’s procedural requirements.

Halo addressed regulations adopted in 2000 (the 2000 Regulations) by the Department of Labor’s Employee Benefits Security Administration (EBSA).  In some ways, the Halo decision prefigures changes implemented by EBSA’s newest, enhanced regulations — adopted in 2016, but ultimately made effective on April 1, 2018 (the 2018 Regulations).  The 2018 Regulations eschew  “substantial compliance” and instead adopt a standard of strict adherence that mirrors that outlined in Halo.  Like Halo, the 2018 Regulations provide that a violation results in de novo review, except in cases where the violation is de minimis, non-prejudicial, and otherwise made in the context of good-faith handling of the claim.  The 2018 Regulations also mirror Halo by also putting the onus on the insurance company to demonstrate that these exceptional circumstances exist.

Eventually, the 2018 Regulations will govern all claims.  However, many claims will still be governed by the 2000 Regulations.  Halo provides a well-reasoned argument for strict application of the 2000 Regulations.  Halo and its progeny also provide a good roadmap for how disability benefit cases will be handled under the 2018 Regulations.

Strict Adherence to Fiduciary Responsibilities is the Prerequisite
for a Claim Administrator’s Entitlement to the Arbitrary and Capricious Standard of Review

De novo review is ERISA’s default standard of review.1  Under de novo review, a long-term disability claimant and the LTD insurer-claim administrator are evenly matched before the court.  This is the standard of review generally applicable in a civil lawsuit.  Given that the claimant bears the burden of proof to establish disability, the de novo standard of review means the claimant must do so by a preponderance of the evidence, i.e., that the existence of the disability is “more likely than not true.”2  The Supreme Court — guided by principles of trust law — has held that where a plan grants “the administrator or fiduciary discretionary authority to determine eligibility for benefits…, a deferential standard of review [is] appropriate.”  That standard of review, however, puts a claimant at a significant procedural disadvantage.  It is not enough for the claimant to demonstrate disability by a preponderance of the evidence.  He or she must also show that the decision of the insurer-claim administrator was without reason, unsupported by substantial evidence, or erroneous as a matter of law.  This constitutes a significant “thumb” on the scale of justice, and courts regularly acknowledge that the arbitrary and capricious standard of review requires them to rule in favor of an insurer or claim administrator, even though the claimant has a stronger case.3  It does not matter if the claimant has a reasonable case (or even the most reasonable case), nor does it matter that the insurance company has the least reasonable case.  So long as the insurer’s decision is not patently unreasonable, a reviewing court will generally be obliged to uphold the decision under the arbitrary and capricious standard of review.

Given the substantial advantage conferred by the arbitrary and capricious standard of review, it should not be forgotten that this advantage must be earned.  The Supreme Court has held that the same trust law principles that permit the arbitrary and capricious standard of review (when discretionary authority is properly delegated to an insurer or claim administrator) also (1) impose “higher-than-marketplace quality standards on insurers,” (2) require “that the administrator ‘discharge [its] duties’ in respect to discretionary claims processing ‘solely in the interests of the participants and beneficiaries’ of the plan,” and (3) “underscore the particular importance of accurate claims processing by insisting that administrators ‘provide a full and fair review of claim denials….’”4  In other words, if an insurer wishes to shield its decision with the heightened deferential review applicable to a fiduciary, it must faithfully observe the heightened fiduciary responsibilities that are the quid pro quo for that deference.  An insurance company must ignore its own financial self-interest and instead make disability benefit determinations with the best interests of plan beneficiaries in mind.  Moreover, it must do so with “the punctilio of an honor the most sensitive.”5

While fiduciary and trust law principles are a natural fit for traditional pension plans (which were frequently established and administered as trusts), they are less clearly suited to for-profit insurance companies.  Indeed, skepticism that it is even possible for insurance companies to conduct themselves as fiduciaries is reflected by a model law promulgated by the National Association of Insurance Commissioners (NAIC) that bars the inclusion of language in insurance policies that grants discretionary authority (thereby, precluding the possibility of deferential court review).6  The NAIC model law and/or similar statutory or regulatory provisions have been adopted in a number of states.7

For those short- and long-term disability policies issued in states without such laws, insurance carriers need only insert discretionary language into their policies and, presto!, they have conferred upon themselves the significant advantage of deferential court review.  But there is no requirement that the insurance carrier simultaneously set up obligatory training, rules and procedures to ensure that its claim personnel will conduct themselves as fiduciaries, at “higher-than-marketplace quality standards,” and with the “punctilio of an honor the most sensitive.”  Consequently, the Second Circuit Court of Appeals’ decision in Halo v. Yale Health Plan, 819 F.3d 42, 57-58 (2d Cir. 2016) — holding that a “plan’s failure to comply with the [DOL’s] claims-procedure regulation, 29 C.F.R. §2560.503-1, will result in that claim being reviewed de novo in federal court” and holding, additionally, that “the plan ‘bears the burden of proof on this issue’” — appropriately ties an insurer’s entitlement to deferential review to the strict observance of “higher-than-marketplace quality standards.”

Halo Gives Necessary Teeth to the 2000 Regulations

Under the 2000 Regulations, 29 C.F.R. § 2560.503-1, a violation of the mandatory procedures allows the claimant to deem those procedures exhausted and to thereby jump straight to a lawsuit.  The 2000 Regulations are silent as to the applicable standard of review in such circumstances.  Several Courts of Appeal have concluded that violations of the 2000 Regulations have no effect on the standard of review so long as:   (1)  the disability claim administrator rendered a disability decision, (2) there was “substantial compliance” with the regulations; and/or (3) the claimant failed to demonstrate actual prejudice.8  Meanwhile, remedies for a violation of the procedural rules have varied.  For example, “A procedural irregularity, like a conflict of interest, is a matter to be weighed in deciding whether an administrator’s decision was an abuse of discretion.”9  In other words, some courts have not altered the standard of review, but treated the procedural violation as a “factor” in the overall assessment of whether the disability insurance company’s decision was arbitrary and capricious.  Others have stripped the claim administrator of the deferential standard of review where the procedural violation is substantially non-compliant.10  Still others have suggested that de novo review is a remedy only for “wholesale and flagrant violations of the procedural requirements of ERISA.11   And several courts have held that remand to the claim administrator — rather than a de novo determination of the claim — is the generally appropriate remedy for procedural violations of the 2000 Regulations.12  In some instances, after such a remand, the claim administrator was still permitted the advantage of deferential review when the post-remand decision was subsequently challenged.13  Given that de novo review is the default standard of review, and that deferential review is earned by a disability insurer’s adherence to fiduciary levels of claim administration, it seems particularly perverse that a claimant who has established procedural violations inconsistent with fiduciary standards should be remanded back to the insurer for a “do-over” (instead of receiving a substantive de novo benefit determination by the district court) that may then (despite the insurer’s prior procedural violations) be treated to deferential review.  If anything, this approach incentivizes insurance companies to be careless in their observance of ERISA’s procedural regulations.  The worst that will happen is that an offending insurance company will get a second chance to determine the claim and redeem the deferential standard of review.  Meanwhile, payment of benefits has been indefinitely delayed.

The district court, in Halo, adopted a version of the “substantial compliance” doctrine, holding that although it was ” troubled by some of the sparse denial notices [Yale Health Plan] issued in response to some of Halo’s claims,” the Plan’s “overall course of conduct …  provid[ed] sufficient and timely information of its benefit determinations and the reasons therefore,” and, consequently, the Plan “complied sufficiently with the notification requirements such that its decisions are entitled to arbitrary and capricious review.”  Halo v. Yale Health Plan, 49 F. Supp. 3d 240, 261-262 (D. Conn. 2014).

The Second Circuit Court of Appeals rejected the “substantial compliance” and remand approaches, holding that imposition of the de novo standard of review for violations of the procedural requirements of the 2000 Regulations better balances the advantages of deferential review vs. the fiduciary responsibilities underpinning the entitlement to such review:

In other words, if plans comply with the regulation, which is designed to protect employees, the plans get the benefit of both an exhaustion requirement and a deferential standard of review when a claimant files suit in federal court — protections that will likely encourage employers to continue to voluntarily provide employee benefits.  But if plans do not comply with the regulation, they are not entitled to these protections.  That result is not unnecessarily harsh, as those in favor of the substantial compliance doctrine have contended.  The failure to comply does not result in any oppressive consequence; plans will have to pay the claim only if it is a meritorious claim, which they are already contractually obligated to do. They will simply lose the benefit of the great deference afforded by the arbitrary and capricious standard. In short, this regulatory approach balances the competing interests of employers and employees and, accordingly, ERISA’s dual congressional purposes.

Halo, 819 F.3d at 56.  The Second Circuit Court of Appeals returned the case to the district court for reconsideration of the deficiencies it had identified in the denial notices and whether these violated ERISA’s procedural regulations.  If so, de novo review was the appropriate standard of review and, moreover, the district court could use its discretionary authority to admit new evidence, as necessary, to cure any defect in the completeness of the administrative record caused by the procedural violation:

We now expand on DeFelice to hold that good cause to admit additional evidence may exist if the plan’s failure to comply with the claims-procedure regulation adversely affected the development of the administrative record. Entitling a claimant to de novo review based on a plan’s failure to comply with the claims-procedure regulation may be cold comfort if the plan’s own compliance failures produced an inadequate administrative record that would prevent a full and fair hearing on the merits….  Accordingly, it is appropriate to allow the introduction of additional evidence if the plan’s compliance failures adversely affected the development of the administrative record. Because the admission of such evidence based on good cause is a discretionary determination for the district court, we leave it to the district court on remand to determine whether good cause exists here to admit additional evidence.

Halo, 819 F.3d at 60.  The Second Circuit Court of Appeals thus underscored that de novo review by the district court meant that the court should assume full management and decision-making authority over the claim — specifically including the admission of evidence outside the administrative record.

Subsequent district court cases in the Second Circuit have fleshed out Halo’s holdings, by identifying the sorts of procedural violations that will trigger de novo review.  In Schuman v. Aetna Life Ins. Co., 2017 U.S. Dist. LEXIS 39388, *40-42 (D. Conn. Mar. 20, 2017), for example, the court held that Aetna abdicated its entitlement to deferential review due to several procedural violations it committed during its handling of Mr. Schuman’s disability claim.  Principally, Aetna failed to consider an expert vocational assessment report submitted by Mr. Schuman in support of his appeal.  The District Court held that this violated procedural requirement 29 C.F.R. § 2560.503-1(h)(4)’s mandate that “full and fair review of a claim and adverse benefit determination” must “[p]rovide for a review that takes into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.”14  Id.  The Court secondarily concluded that Aetna’s actions also violated section (h)(3)(ii)’s mandate that Aetna “[p]rovide for a review that does not afford deference to the initial adverse benefit determination” because the failure to consider Mr. Schuman’s vocational assessment (which included a critique of the vocational assessment report Aetna relied upon to terminate his claim) meant that Aetna “wholly fail[ed] to address any concerns about the accuracy of [Aetna’s vocational consultant] report …,” and, consequently, Aetna failed to “proffer[] any evidence that [its] silence was not the result of improper deference to the initial determination.”15  Id.

Although the District Court, in Schuman, found de novo review applicable, it did not immediately proceed to a bench trial on the administrative record.  Rather, the District Court determined that remand was most appropriate because “in order to make a proper determination I would be required to consider significant evidence outside of the Administrative Record and, in a meaningful sense, to become the decisionmaker in the first instance rather than a reviewer of the decisions made by the Claims Administrator” and, consequently, remand would allow the parties “to supplement the Administrative Record with information necessary to permit Aetna to make an appropriate evaluation of Schuman’s LTD claim.”  2017 U.S. Dist. LEXIS 39388, *47-48.  This seems antithetical to Halo’s mandate that the District Court should take it upon itself to correct any omissions in the administrative record, rather than return the claim to the defaulting claim fiduciary for a second “try.”  But, it appears the District Court was persuaded that Aetna’s procedural violations reflected “incompetence, rather than bad faith or intentional conduct,” id. at *55-56, and perhaps on that basis felt Aetna should be given the opportunity to develop a more complete record.  Nonetheless, the District Court retained jurisdiction of the case during remand and, after the additional administrative proceedings failed to yield a satisfactory resolution of the claim, reopened the case for continued review under the de novo standard.  So, while the District Court delegated to Aetna the responsibility of collecting additional evidence, it still subjected Aetna’s new decision to the non-deferential review triggered by Aetna’s earlier procedural violations.  Ultimately, the District Court determined that the resulting administrative record remained deficient and that a bench trial would be appropriate.  Schuman v. Aetna Life Ins. Co., 2019 U.S. Dist. LEXIS 113375, *6, 13-18 (D. Conn. Jul. 9, 2019).  It appears that the case thereafter settled, as the parties stipulated to a dismissal on November 22, 2019.

While Schuman involved substantive violations of the ERISA regulations, the decision in Aitken v. Aetna Life Ins. Co., 2018 U.S. Dist. LEXIS 164008 (S.D.N.Y. Sept. 25, 2018) relied on both missed deadlines and substantive violations as triggers for de novo review.  Like Schuman, the principal substantive violation was Aetna’s failure to consider a vocational evaluation report submitted by the claimant.  Id. at *38-43.  There was no evidence that Aetna’s appeal examiner or its appeal-level vocational consultant reviewed the report and, as in Schuman, the District Court rejected Aetna’s argument that review of the report by its medical consultant was sufficient to satisfy its obligation to “take[] into account all comments, documents, records, and other information submitted by the claimant.”  Id.  The procedural violation consisted of Aetna’s improper extension of its deadline for rendering an appeal decision.  The District Court concluded that the initial 45-day deadline could be extended to 90 days only if there are “special circumstances,” and that Aetna’s proffered excuse — i.e., it was “in the process of referring [Plaintiff’s] claim file for a specialty matched medical opinion” — was insufficient:  “‘virtually every appeal of the denial of a disability benefits claim will require physician . . . review'” and, “[a]ccordingly, Aetna’s desire for a specialty matched medical opinion does not present an extraordinary circumstance.”  Id. at *31-36.  The District Court then conducted a de novo review, determined that neither party was entitled to summary judgment on their respective motions, and directed the parties to instruct the court how they wanted to proceed.16   It appears that the case thereafter settled, as the parties stipulated to a dismissal on February 28, 2019.

In Thoma v. Fox Long Term Disability Plan, 2018 U.S. Dist. LEXIS 209077 (S.D.N.Y. Dec. 11, 2018), the District Court applied de novo review because the claim administrator, Life Insurance Company of North America (LINA, a subsidiary of CIGNA), violated 29 C.F.R. § 2560.503-1(h)(4) by failing to consider Ms. Thoma’s appeal submissions, including (1) a vocational evaluation report, and (2) documentation obtained from Ms. Thoma’s Social Security disability claim file.  De novo review was also justified because LINA — in violation of 29 C.F.R. § 2560.503-1(h)(2)(iii) — withheld (until the lawsuit) relevant claim documentation that Ms. Thoma requested during the appeal process, including (1) SIU (Special Investigations Unit) Claim Referral forms, indicating the reasons Ms. Thoma’s claim had been slated for surveillance; and (2) internal policies and procedures (particularly those involving Social Security Disability Determinations and use of SIU Resources).  The District Court, on de novo review, concluded that Ms. Thoma established by a preponderance of the evidence that she was disabled from “any occupation for which . . . she is, or may reasonably become, qualified based on education, training or experience” and in which she could “earn 60% or more of her Indexed Earnings.”

Halo’s Inadvertent and Harmless Exception

The Second Circuit Court of Appeals, in Halo, did articulate a narrow exception to its requirement of strict compliance, holding that a procedural violation may be excused if the “plan has otherwise established procedures in full conformity with the regulation and can show that its failure to comply with the claims-procedure regulation in the processing of a particular claim was inadvertent and harmless.”  Halo, 819 F.3d at 57-58 (Emphasis in original).  The Court underscored that “[t]o prevent the exception from swallowing the rule, … such deviations should not be tolerated lightly” and that “the plan bears the burden of proof on this issue.”  Id.  As an example, the Court noted that “one can well imagine human error causing, for example, a plan to respond in 73 hours when the regulation requires that it do so in 72, … or in 16 days when the regulation specifies 15,” and “that such slight delays might not harm the claimant.”  Id.  This has lead at least one district court to determine that the failure to render a decision within the applicable time frame was inadvertent and harmless where “there was a single denial of Plaintiff’s claim that, while untimely, provided the specific reason for the denial and was otherwise in full conformity with the applicable regulations and the Plan”; the Plan had delayed a decision pending receipt of coroner and police reports and “upon receipt of the police report on July 23, 2013, Aetna denied her claim within one day”; “Plaintiff has not alleged that she was in any way harmed by the delay”; and claimant waived the right to de novo review because she did not take advantage of the regulatory provision permitting her to deem the appeal process exhausted, and initiating a lawsuit, when Aetna failed to render a decision within the applicable 90-day period:  “Plaintiff, who was represented by counsel, did not take advantage of this provision and instead waited until Aetna received all of the information needed to render its decision.”  Wilson v. Aetna Life Ins. Co., 2016 U.S. Dist. LEXIS 135396, *23 (N.D.N.Y. Sept. 30, 2019).

Nevertheless, Halo’s exception is far more narrowly drawn than the “substantial compliance” approach developing in several of the other circuits.  By placing the burden of proof on the claim administrator to establish that any procedural violation is inadvertent and harmless, the Second Circuit Court of Appeals has underscored its position that claim administrators must strictly adhere to ERISA’s full and fair review requirements.

The 2018 Regulations Follow Halo’s Lead

EBSA’s new 2018 procedural requirements follow Halo in two respects:  (1) mandating strict adherence to the requirements, and (2) placing a heavy burden on the claim administrator to justify any procedural violation.  The new 2018 requirements clarify that a procedural violation results in both deemed exhaustion and a deemed denial and expressly underscores that this results in de novo review:  “If a claimant chooses to pursue remedies under section 502(a) of the Act [i.e., a lawsuit]…, the claim or appeal is deemed denied on review without the exercise of discretion by an appropriate fiduciary.”  EBSA’s commentary explained that “[t]he Department’s intentions in including this provision in the proposal are to clarify that the procedural minimums of the Section 503 Regulation are essential to procedural fairness and that a decision made in the absence of the mandated procedural protections should not be entitled to any judicial deference.”

The new regulations do include a “minor errors exception,” but requires the claim administrator seeking the protection of this exception to establish that the procedural violation was “(i) de minimis; (ii) nonprejudicial; (iii) attributable to good cause or matters beyond the plan’s control; (iv) in the context of an ongoing good-faith exchange of information; and (v) not reflective of a pattern or practice of non-compliance.”  Moreover, a disability claimant faced with a procedural violation may demand an explanation for any non-compliance.  The disability insurance company or claim administrator must provide a response within 10 days setting forth any basis on which it believes it is subject to the “minor errors exception.”

Conclusion

Like Halo, the 2018 regulations thus establish a strict enforcement approach to violations of the new disability claim procedures.  Failure to abide by these rules automatically constitutes a “deemed denial” and exhausts the disability claimant’s obligation to participate in any further claim or appeal procedures.  The disability claimant can immediately file a lawsuit.  Most important, a violation of the procedural rules triggers non-deferential de novo review.  To re-establish entitlement to deferential review, the insurer/claim administrator bears the burden of proving the five elements of the “minor errors exception.”  Those elements are both more concrete and more stringent than the amorphous “substantial compliance” formulation previously developing in the courts.

 


 

Chris Wieber is a Long Term Disability Attorney at the New York law firm of Mark Scherzer and has nearly 30 years’ experience in ERISA short- and long-term disability claims.

 


Footnotes

1Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (“Consistent with established principles of trust law, we hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan”).

2E.g., Bennett-Brady v. Aetna Life Ins. Co., 2019 U.S. Dist. LEXIS 20168, *15-16 (W.D.N.Y. Feb. 7, 2019) (noting that “‘[t]o establish a fact by a preponderance of the evidence means to prove that the fact is more likely than not true.,'” and that “[i]f the evidence is evenly balanced, the burden of proof is not satisfied“).

3E.g., Kirkendall v. Halliburton, Inc., 2019 U.S. App. LEXIS 2280, *8 (2d Cir. Jan. 24, 2019) (“This panel indeed finds the interpretation of the Plan advanced by Appellants to be more reasonable…., [b]ut in such cases, under the standard of review we must apply, the administrator’s interpretation will not be disturbed by the courts”); Fessenden v. Reliance Std. Life Ins. Co., 2018 U.S. Dist. LEXIS 7754, *1-2 (N.D. Ind. Jan. 17, 2018) (“I am inclined to believe that Donald Fessenden is in fact disabled by his medical conditions, oddly, that conclusion is not what dictates the outcome here”; “Instead, given Judge Lee’s earlier ruling, I am limited to a highly deferential standard of review which means Reliance’s rejection of Fessenden’s claim for benefits will not be overturned unless Fessenden demonstrates that Reliance’s decision was ‘downright unreasonable'”).

4Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115 (2008).

5Pegram v. Herdrich, 530 U.S. 211, 224-25 (2000) (citing Justice Cardozo’s opinion in Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928), i.e., “Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties,” “A trustee is held to something stricter than the morals of the market place,” and “Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior”).

6NAIC Model Law 42, “Prohibition on the Use of Discretionary Clauses Model Act.”

7E.g., Arkansas Department of Insurance Rule 101 (2013); California Insurance Code §10110.6 (2012); Colorado Revised Stat. § 10-3-1116(2) and (3) (2008); Illinois Admin. Code, Tit. 50, §2001.3 (2005); Maryland Code Ann. Ins. §12-211 (2011); Michigan Admin. Code R. 500.2201 to 500.2202 (2007); Minnesota Stat. §60A.42 (although enacted as §62A.241) (2015); Montana Administrative Register, Issue No. 6, pp. 504-507 (2003); New Jersey Administrative Code §11:4-58 (2006), but effectively neutralized by the courts, e.g.Baker v. Hartford Life Ins. Co., 440 Fed. Appx. 66 (3d Cir. Jul. 27, 2011); Oregon Admin. Rules §836-010-0026 (2015); Rhode Island Gen. Laws §27-18-79 (2013); South Dakota Ins. Code §20:06:52 et seq. (2008); Texas Admin. Code §3.1203 (2010); Utah Admin. Code §590-218 (2003); Washington Admin. Code §284-44-015 (2009); Wyoming Stat. §26-13-304 (2009).

8E.g.Dimery v. Reliance Standard Life Ins. Co., 597 Fed. Appx. 408, 409-10 (9th Cir. 2015) (“ERISA procedural violations do not alter the standard of review unless the violations cause the beneficiary substantive harm”); Shedrick v. Marriott Int’l, Inc., 500 Fed. Appx. 331, 338 (5th Cir. 2012) (“‘Challenges to ERISA procedures are evaluated under the substantial compliance standard'”); Kough v. Teamsters’ Local 301 Pension Plan, 437 Fed. Appx. 483, 486 (7th Cir. 2011) (“Under this regulation, ‘substantial compliance is sufficient'”).

9Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 972 (9th Cir. 2006) (standard to be applied where a decision rendered). See alsoWhite v. Life Ins. Co. of N. Am., 892 F.3d 762, 771 (5th Cir. 2018), the Fifth Circuit appeared to apply the arbitrary and capricious standard (“we next consider whether LINA’s denial of benefits, on the merits, is supported by ‘substantial evidence.'”), after first finding that “LINA did not substantially comply with ERISA’s procedural requirements and, consequently, denied White a ‘full and fair review,'” and ultimately the court treated the procedural impropriety, effectively, as a “factor” in its analysis (ala Abatie):  “In sum, taking into account LINA’s conflict of interest, its procedural unreasonableness, its denial of a full and fair review, and the counter-balanced nature of the evidence, we hold that LINA abused its discretion in denying benefits.”

10LaAsmar v. Phelps Dodge Corp. Life, 605 F.3d 789, 800 (10th Cir. 2010) (“For these reasons, we will review MetLife’s decision to deny the LaAsmars’ claim for AD&D benefits de novo because MetLife failed to comply substantially [with the 2000 Regulations’ procedural requirements]”).

11Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148, 157 (5th Cir. 2009).

12Lafleur, supra at 157 (5th Cir. 2009) (“Remand to the plan administrator for full and fair review is usually the appropriate remedy when the administrator fails to substantially comply with the procedural requirements of ERISA”); Kough v. Teamsters’ Local 301 Pension Plan, 437 Fed. Appx. 483, 488 (7th Cir. 2011) (“The remedy is not, as the plaintiff argues, an award of benefits,” but, rather “[w]here, as here, it is not clear from the record that the plaintiff is entitled to benefits, the more appropriate remedy is to remand to the plan administrator for a de novo benefits determination”).

13E.g.Kough v. Teamsters’ Local 301 Pension Plan, 2012 U.S. Dist. LEXIS 55193, *4 (N.D. Ill. Apr. 19, 2012).

14Significantly, the Court held it was not enough that the vocational assessment was provided to a physician reviewer retained by Aetna, because “the reviewer is a podiatrist … and it is clear that his review was intended to evaluate the medical evidence of Schuman’s disability, as opposed to prior assessments of his transferable skills and specific employment prospects” and “[a]ccordingly, it would be wholly unreasonable for the appellate reviewer to rely on [the physician reviewer’s] assessment of Bailey’s report in order to determine whether its critique of the initial vocational assessment was valid.”  2017 U.S. Dist. LEXIS 39388, *40.  The Court also held that Aetna “bear[s] the burden to show that their determination is consistent with the claims procedures regulations,” so that it was not enough for Aetna to argue that there was no evidence that it didn’t consider the relevant evidence.  Rather, Aetna must “proffer[] … affirmative evidence that the appellate reviewer did consider [the vocational assessment] report.”  Id. (emphasis in original).

15Nor were these the only violations identified by the District Court.  The District Court found that Aetna’s failure to provide existing internal guidelines in response to Mr. Schuman’s written request during the appeal process violated section (h)(2)(iii), which requires that “relevant documents” be made available to a claimant on appeal.  2017 U.S. Dist. LEXIS 39388, *42-44.  Aetna’s unexplained failure to promptly identify and provide operative plan documents during the claim, appeal and lawsuit, constituted a violation of section (b)(5), which requires the establishment of administrative processes, including “safeguards designed to ensure and to verify that benefit claim determinations are made in accordance with governing plan documents.”  2017 U.S. Dist. LEXIS 39388, *44-45.

16Under governing Second Circuit precedent, a district court may not convert motions for summary judgment to a bench trial (or so-called “motions for judgment on the administrative record”) without the explicit agreement of the parties.  Aitken, 2018 U.S. Dist. LEXIS 164008, *44 fn. 6 (citing O’Hara v. Nat’l Union Fire Ins. Co., 642 F.3d 110, 116 (2d Cir. 2011)).

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