Audio Recordings Fair Game in Claims Disputes, DOL Says

A plan sponsor asserts that an audio recording of a claims inquiry was made for quality assurance purposes and was not part of the administrative record, but the Department of Labor has a different opinion.  

Addressing the question of whether a plan sponsor is required to produce an audio recording of a phone conversation between a participant and a plan representative in relation to a claim for benefits, the DOL has taken the position that such a request would not be excluded under the ERISA claims procedure regulation. 

In DOL Information Letter 06-14-2021, the department maintains that a recording or transcript of a conversation with a claimant would not be excluded from the requirements under 29 CFR 2560.503-1 to disclose relevant “documents, records, and other information” merely because the plan or claims administrator:

• does not include the recording or transcript 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.

The Inquiry 

The June 14 Information Letter by the DOL’s Office of Regulations and Interpretations comes following an inquiry by an attorney representing a claimant following an adverse benefit determination. The attorney had requested a copy of an audio recording from the plan, but that request was denied. 

In the request to the DOL, the attorney inquired whether ERISA section 503 and the DOL’s implementing claims procedure regulation at 29 CFR 2560.503-1 require the plan fiduciary to provide, upon a claimant’s request, a copy of an audio recording and transcript of a phone conversation between the claimant and a representative of the plan’s insurer relating to the adverse benefit determination.

As background, ERISA section 503 requires employee benefit plans 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.” In addition, the implementing regulations require employee benefit plans to “establish and maintain reasonable procedures governing the filing of benefit claims, notification of benefit determinations, and appeal of adverse benefit determinations.”

According to the attorney, the stated reasons for denial of the request for the audio recording were that the actual recording is distinct from the notes made available to the attorney, which contemporaneously documented the content of the recorded conversation, and which became part of the “claim activity history through which [the insurer] develops, tracks and administers the claim.” 

By contrast, the attorney noted that the denial stated 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.”

The DOL’s Position

Citing the claims procedure regulation at 29 CFR 2560.503-1(m)(8), the DOL takes the position that such information is relevant to a claimant’s claim if the document, record, or other information “was … generated in the course of making the benefit determination,” even if it was not “relied upon in making the benefit determination.” Consequently, the DOL notes that it is immaterial whether information was “not created, maintained, or relied upon for claim administration purposes,” as the plan sponsor had asserted. 

Moreover, the DOL emphasizes that nothing in the regulation requires that “relevant documents, records, or other information” consist only of paper or written materials. Rather, in the preamble to recent amendments to 29 CFR. 2560.503-1, the DOL notes that it specifically recognized that an audio recording can be part of a claimant’s administrative record. 

While the DOL’s position seems clear in this context, a client alert from the Groom Law Group observes that the Information Letter addresses only a “narrow question” based on the representations made by the requesting attorney and the positions taken by the plan involved, and does not purport to address whether call recordings are required to be produced in all cases.

Moreover, Groom notes that the Letter is not binding on the courts—which may take a different view of the particular circumstances—or even on the DOL itself, since information letters generally are intended to be informational only. “Nevertheless, plan sponsors may want to review the Letter with recordkeepers, third party administrators, and individuals that communicate with claimants to confirm that they understand that such recordings and transcripts may be subject to disclosure and the associated implications,” the firm advises.