ERISA Litigation Roundup: The DOL Determines That Audio Recordings Must Be Produced Under ERISA’s Claim Regulations

On June 14, 2021, the Department of Labor (DOL) issued “Information Letter 06-14-2021,” providing guidance to plan fiduciaries on their duty to disclose and produce recordings or transcripts of phone calls between benefit claimants and plan representatives regarding their benefit claims.

ERISA’s claim regulations, 29 C.F.R. § 2560.503-1, require fiduciaries, on request, to provide claimants with “copies of all documents, records, and other information relevant to the claimant’s claim for benefits.” 29 C.F.R. § 2560.503-1(h)(2)(iii). After a claimant’s request for an audio recording was denied, the representing attorney requested further DOL guidance regarding whether recordings or transcripts of phone calls are “relevant” for purposes of the disclosure regulations if they are created only for “quality assurance purposes” and are not relied upon for claim administration or part of the administrative records. The DOL responded with the information letter, concluding that such recordings are relevant for purposes of the disclosure regulations and must be disclosed and produced to claimants on request.

The Department’s Analysis

The DOL noted that the claim regulations define “relevant” information as including information “generated in the course of making the benefit determination,” even if it was not “relied upon in making the benefit determination.” The DOL also noted that the disclosure regulations require disclosure of information that “demonstrates compliance with the administrative processes and safeguards” for benefit claim determinations, which includes information created for quality assurance purposes.

In summary, “a recording or transcript of a conversation with a claimant” is not excluded from the disclosure regulations “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.”

Faegre Drinker Perspective

Plan administrators should be aware of their own internal processes as well as their claim administrators’ processes for recording phone calls with benefit claimants and for storing any such recordings or transcripts. Plan administrators will need to ensure that their third-party administrators are aware of the DOL’s letter and are responding to requests for information appropriately. If all calls are recorded automatically for quality assurance purposes, for example, fiduciaries may be required to produce them on request to satisfy the disclosure regulations of 29 C.F.R. § 2560.503-1(h)(2)(iii), even if the recordings and/or transcripts were not relied on for claim administration or made part of the claim file. In all cases, fiduciaries should know where any recordings or transcripts are stored and ensure they are preserved appropriately.