The DOL has stated in a June 14, 2021 Information Letter, that under ERISA claims procedures, a participant must be given audio recordings of telephone conversations that are relevant to his claim for benefits.
Background. The participant requested a copy of an audio recording of a telephone conversation with the plan’s insurer relating to an adverse benefit determination. The plan and insurer denied the request for the recording, saying that the 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.”
DOL Information Letter. In its information letter, DOL noted that ERISA 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.” The regulations further say that a plan’s claims procedures do not provide for a full and fair review, unless, among other things, the claimant is “provided, upon request…with copies of, all documents, records, and other information relevant to the…claim for benefits.”
For this purpose, the DOL explained that a document, record, or other information is “relevant” to a claim if it:
(i) was relied upon in making the benefit determination; (ii) 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; (iii) demonstrates compliance with the administrative processes and safeguards; or (iv) constitutes a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant’s diagnosis.
Further, the DOL clarified that nothing in the regulation requires that “relevant documents, records, or other information” consist only of paper or written materials. An audio recording can be part of a claimant’s administrative record.
Therefore, the DOL concluded that a recording of a conversation with a participant would not be excluded from disclosure merely because the plan or claims administrator does not include the recording in its administrative record; does not treat the recording or transcript as part of the claim activity history through which the insurer develops, tracks and administers the claim; or because the recording or transcript was generated for quality assurance purposes.
DOL Information Letter 06-14-2021 is available at: https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/information-letters/06-14-2021