ERISA Documents Relied on for Benefit Determination - When They Must Be Provided

During an administrative appeal of a denial of plan benefits, a plan administrator must provide to claimant documents relied upon during the initial benefit determination but is not required to provide any additional documents considered during the appeal if the documents do not contain new factual information. The Tenth Circuit in Metzger v. Unum Life Insurance Co., 476 F.3d 1161 (10th Cir. 2007), based its decision on the court’s interpretation of 29 C.F.R. § 2560.503-1(h)(2)(iii). The court stated that subsection (h)(2)(iii) requires a plan administrator to produce only those documents relied upon during the initial benefit determination and not the documents generated during the appeal process. If, however, the documents generated during that appeal contain new factual information, they must be provided to the plaintiff. The court reasoned that any other interpretation of subsection (h)(2)(iii) would permit the claimant to submit additional rebuttal documents during the appeal, which was not the intent of the regulations where no new facts were considered during the appeal. The court noted that its conclusion was consistent with the regulations because, in cases where a medical judgment is involved, subsection (h)(3)(iii) requires the plan administrator to consult with a health care profession. If the plan administrator were required to produce these documents prior to reaching a final decision on the appeal, the plaintiff would then be permitted to submit rebuttal expert reports, thereby creating an unnecessary cycle of submission, review, re-submission and re-review.

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