The US Department of Labor (DOL) issued Information Letter 06-14-2021 last month to the attorney of a plan participant who requested a copy of an audio recording and transcript of a phone conversation he or she had with the plan’s insurer. The participant was requesting this information in relation to the participant’s denied claim under the plan.

The plan denied the participant’s request for the recording because as it stated:

  • the recording is distinct from the notes made available to the participant, which became part of the claim activity history through which the insurer develops, tracks, and administers the claim; and
  • recordings are for quality assurance purposes, and are not created, maintained, or relied upon for claim administrative purposes and therefore are not part of the administrative record.

The participant’s attorney contacted the DOL for guidance about whether ERISA’s claim procedures requirement requires the plan to provide the participant with a copy of the recording.

As background, ERISA Section 503 requires every employee benefit plan to provide a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review of the denied claim.

DOL regulations provide that a claims procedure will not provide a reasonable opportunity for a full and fair review unless the procedure provides that the participant will be provided, upon request, copies of all documents, records, and other information relevant to the participant’s claim for benefits. The regulations provide that a document, record, or other information is relevant if it, among other things:

  • was submitted, considered, or generated in the course of making the benefit determination, without regard to whether it was relied upon in making the benefit determination; or
  • demonstrates compliance with the administrative processes and safeguards designed to ensure that benefit claim determinations are made according to governing plan documents and have been applied consistently with regard to similarly situated claimants.

The 06-14-2021 Information Letter emphasizes that information is relevant if it was generated in the course of making the benefit determination, regardless of whether it was relied upon in making the benefit determination. Thus, contrary to the plan’s claim, whether the information was created, maintained, or relied upon for claim administrative purposes is immaterial.

Also, the Information Letter points out the regulation provides that information is relevant if it demonstrates compliance with the required administrative processes and safeguards. Thus, the fact that the recording was made for quality assurance purposes actually supports its relevance to the claim and thus subject to disclosure to the participant.

Last, the Information Letter states that nothing in the regulation requires that relevant documents, records, or other information consist only of paper or written materials. In fact, in the preamble to amendments to the regulation issued in 2016, the DOL recognizes that an audio recording can be part of a claimant’s administrative record.

Therefore, the Information Letter concludes that the recording or transcript would not be excluded from the requirement to disclose relevant documents, records, or other information merely because:

  • the plan does not include it in its administrative record;
  • the plan does not treat it as part of the claim activity history through which the insurer develops, tracks, and administers the claim; or
  • the recording or transcript was generated for quality assurance purposes.

It should be noted that, according to ERISA Procedure 76-1, an information letter issued by the DOL is informational only and is not binding on the department with respect to any particular factual situation.