Claims-related audio recordings may need to be disclosed to claimants upon request, according to an information letter dated June 14, 2021 (“Information Letter”), issued by the Department of Labor’s (“DOL”) Employee Benefits Security Administration (“EBSA”). Although DOL information letters are not binding, as a result of the Information Letter, claimants may start to request audio recordings of conversations relating to benefit denials. Plan sponsors and claims administrators should be prepared for these requests and should train personnel handling telephone calls with claimants accordingly.

The Information Letter addresses whether ERISA and DOL claims procedures regulations thereunder require a plan fiduciary to provide, upon a claimant’s request, a copy of an audio recording and transcript of a telephone conversation between the claimant and a representative of the plan’s insurer regarding a benefit denial. The request at issue in the Information Letter was denied by the claims administrator on the basis that “recordings are for ‘quality assurance purposes,’” and “are not created, maintained, or relied upon for claim administration purposes, and therefore are not part of the administrative record.” The claims administrator maintained that the actual recording is distinct from the notes made available to the claimant, which contemporaneously documented the content of the recorded conversation, and which became part of the “claim activity history through which [the insurer] develops, tracks and administers the claim.”

The Information Letter concludes that an audio recording or transcript of a conversation with a claimant is not excluded from the disclosure requirements merely because: (i) it was generated for quality assurance purposes; (ii) the plan or claims administrator does not include it in its administrative record; or (iii) the plan or claims administrator does not treat it as part of the claim activity history through which the insurer develops, tracks and administers the claim.

The Information Letter lays out the disclosure requirements under ERISA section 503 and DOL claims procedures regulations:

• • ERISA section 503 requires every employee benefit plan to “afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.” (emphasis added)
  • DOL claims regulations provide that in order to be deemed to provide a claimant with a “reasonable opportunity…for a full and fair review” of the claim denial, the claims procedures must, among other requirements, “provide that a claimant shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.” 29 CFR 2560.503-1(h)(2)(iii) (emphasis added).
  • DOL claims regulations further provide that a “document, record, or other information” is considered relevant to the claim if it:
    1. was relied upon in making the benefit determination;
    2. was submitted, considered, or generated in the course of making the benefit determination, without regard to whether such document, record, or other information was relied upon in making the benefit determination;
    3. demonstrates compliance with the administrative processes and safeguards required pursuant to paragraph (b)(5); or
    4. constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant’s diagnosis, without regard to whether such advice or statement was relied upon in making the benefit determination.

    29 CFR 2560.503-1(m)(8) (emphasis added).

• In the preamble to recent amendments to the claims procedure regulations, the DOL clarified that it does not intend to limit the types of evidence that claimants can submit, and that “the Department does not believe that plans could refuse to accept evidence submitted in the form of video, audio, or other electronic media.” 81 Fed. Reg. at 92325 (Dec. 19, 2016).

The Information Letter concludes that claimants may request audio recordings of telephone conversations with plan representatives or claims administrators regarding benefit denials, and leaves open the possibility of requests for other forms of electronic media.