:: Eleventh Circuit Joins Tenth On Production Of “Appeal-Level” Medical Reviews

Glazer argues that she was not provided a “full and fair review” of the denial of her request for benefits as required by ERISA. 29 U.S.C. § 1133(2). If benefits are denied, section 1133 requires the plan administrator, “[i]n accordance with regulations of the Secretary,” to provide a “full and fair review … of the decision denying the claim.” Id. § 1133. The administrator must “[p]rovide … upon request … all documents, records, and other information relevant to the claimant’s claim for benefits” for the review to qualify as a “full and fair review.” 29 C.F.R. § 2560.503-1(h)(2)(iii).

Glazer v. Reliance Standard Life Ins. Co. — F.3d —-, 2008 WL 1775437 C.A.11 (Fla.) (April 21, 2008)

With the distant thunder of opposing artillery in the MetLife v. Glenn Supreme Court case in the background (argument today), trench warfare continues in the workaday world of claims administration. In this recent decision, the Eleventh Circuit added its weight to that of the Tenth on an important aspect of the standard of “full and fair review”.

The Eleventh Circuit held that an ERISA plan administrator was not required to furnish a plan participant the report of physician who conducted independent peer review of participant’s medical records during review of the initial denial of participant’s benefit claim. The court accepted the plan administrator’s argument that it had not relied upon the report or used the report in the course of making the benefit determination until its final decision was reached.

According to the Court:

Glazer’s argument is contrary to the plain text of the regulations. Subsection (h)(2)(iii) requires the plan administrator to produce all “relevant” documents. A document is relevant if it “[w]as relied upon” or “[w]as submitted, considered, or generated in the course of making the benefit determination.” 29 C.F.R. § 2560.503-1(m)(8)(i)-(ii). Reliance had not “relied upon” the Hauptman report or used the report “in the course of making the benefit determination” until the determination had been made. After Reliance reached its final decision, all relevant documents generated during the review and initial claim determination had to be produced to the claimant. Id. § 2560.503-1(i)(5). This requirement would be superfluous if the claimant had a right to the documents during the pendency of the review. See Kornblau v. Dade County, 86 F.3d 193, 195 (11th Cir.1996) (courts should avoid rendering other provisions of a regulation superfluous or inoperative).

Note: The Tenth Circuit opinion influenced the decision of the Court as noted here:

The only other circuit court that has decided this issue reached the same conclusion as we do. The Tenth Circuit held, in Metzger v. UNUM Life Insurance Company of America, that “subsection (h)(2)(iii) does not require a plan administrator to provide a claimant with access to the medical opinion reports of appeal-level reviewers prior to a final decision on appeal.” 476 F.3d 1161, 1167 (10th Cir.2007). The court explained that requiring these documents to be produced earlier would create “an unnecessary cycle of submission, review, re-submission, and re-review.” Id. at 1166. The court agreed with the Department of Labor that the purpose of the production of these documents is to enable a claimant to evaluate whether to appeal an adverse determination. Id. at 1167 (quoting ERISA Claim Procedure, 65 Fed.Reg. 70,246, 70,252 (Nov. 21, 2000)). Documents produced before a decision is made would not assist a claimant in deciding whether to pursue an appeal because the claimant would not yet know if there has been an adverse determination. Id.