On June 14, 2021, the U.S. Department of Labor (the “DOL”) published Information Letter 06-14-2021. This guidance addresses the question of whether ERISA’s claims and appeals provisions “require the responsible plan fiduciary to provide, upon a claimant’s request, a copy of an audio recording and transcript of a telephone conversation between the claimant and a representative of the plan’s insurer relating to an adverse benefit determination.”
The DOL began its analysis by noting that under ERISA’s claims and appeals provisions, claimants “shall be provided, upon request . . . copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.” For this purpose, a document, record, or other information is relevant to a plan participant’s or beneficiary’s claim if the document, record, or other information “was … generated in the course of making the benefit determination.” That was the case here. The DOL then noted that nothing in ERISA’s relevant provisions requires that “relevant documents, records, or other information” consist solely of written materials. Therefore, the DOL concluded, a recording or transcript of a conversation with a participant or beneficiary would generally not be excluded from the requirement to disclose relevant “documents, records, and other information” upon his or her request.
Although this guidance addresses the situation where “a representative of the plan’s insurer” spoke with a plan participant via phone, its conclusion should also apply to a representative of a plan’s recordkeeper or third party administrator. Plan sponsors may wish to discuss with their service providers those providers’ practices regarding recording telephone conversations with participants/beneficiaries and retaining records of those conversations.