QUESTION: The claims administrator for our ERISA group health plan sometimes records telephone conversations between a plan participant or beneficiary and the claims administrator’s representative. These recordings are used for training and quality assurance purposes only, not claim administration. Contemporaneous notes of the conversation are used for tracking and administering the claim, and are included in the administrative record that is available to claimants upon request. If a claimant requests a recording or transcript of a phone call, do we have to provide it?
ANSWER: The DOL’s claims procedure regulations require that plans provide “full and fair review” of an adverse benefit determination. One requirement for full and fair review is that a claimant must be given—upon request and free of charge—copies of all documents, records, and other information relevant to the claim. According to the DOL, a document, record, or other information is “relevant” to a claim if it was generated in the course of making the benefit determination, regardless of whether the item was actually relied on in making the determination or created for claim administration purposes. This means that a recording (or transcript) of a claim-related phone conversation likely will be considered relevant and subject to disclosure upon request.
Moreover, the DOL has said that because the regulations specify that information is relevant if it demonstrates compliance with the required claims procedures, the fact that a recording is made for quality assurance purposes supports, rather than negates, its relevance. In addition, nothing in the regulations limits the items that must be disclosed to paper or written materials. In fact, the preamble to the regulations recognizes that audio recordings can be part of the administrative record.
The ERISA plan administrator is legally responsible for the plan’s compliance with the claims procedure rules and must ensure that claims administrators and similar entities follow required claims procedures. Compliance failures—including failure to provide relevant documents upon request—can affect the treatment of benefit disputes that end up in court, potentially increasing the likelihood of an unfavorable outcome for the plan. In addition, group health plans may be subject to an excise tax for failing to provide full and fair review. Given these consequences, any proposal to withhold requested documents, records, or other information (in any format) from a claimant should be discussed with experienced benefits counsel.
For more information, see EBIA’s ERISA Compliance manual at Sections XXXIV.C (“Group Health Claims: Effective Dates and Consequences of Noncompliance”), XXXIV.H.6 (“Access to and Copies of Information ‘Relevant’ to Claim”) and XXXV.F (“Procedures for Processing Disability and Other Non-Health Claims and Appeals”). See also EBIA’s 401(k) Plans manual at Section XXX.E (“Appeal of Adverse Benefit Determinations”) and EBIA’s Self-Insured Health Plans manual at Section XXVI.G (“Full and Fair Review”).
Contributing Editors: EBIA Staff.