By: HUB’s EB Compliance Team
“This call may be recorded for quality assurance purposes.“
You’ve heard that statement uttered by a recorded voice so often that you probably ignore it. However, based on a recent ERISA Information Letter from the U.S. Department of Labor (“DOL”), that call recording may be for more than just quality assurance, if it involves a claim for benefits.
A Call for Help
The letter involved a request by an attorney to the DOL. The attorney said her client was not being given a copy of a recording or transcript of a call that involved her client’s claim between her client and the insurer. In other words, the client had called in, spoke to someone, the call was recorded, but all the attorney could get copies of were notes related to the call.
The insurer in this case said the recording was not part of the administrative record and therefore was not relied on in making the decision. Instead, the insurer said, it was only recorded for quality assurance purposes. As a result, the insurer argued the recording did not have to be provided.
Claims Record(ing)
The DOL disagreed. The DOL said the claims regulations require that all information “relevant” to the claim be disclosed. For this purpose, information is relevant if it was “generated” in the course of the claims process, even if it wasn’t relied on in making the decision.
Even if the recording was only for quality assurance purposes, the DOL said it would still have to be disclosed. In that case, the DOL argued, that it would help demonstrate that the plan had administrative processes and safeguards required by the claims procedure rules. Therefore, the recording would still be relevant to the claim.
Calling Out Exceptions
This does not mean every call recording has to be disclosed. Routine calls that are not connected with a particular claim likely will not need to be disclosed. Also, not every call is recorded.
Additionally, this ERISA Information Letter is non-binding guidance. Even the DOL does not have to follow it. However, it is informative of the DOL’s views on this issue. Therefore, employers and plan fiduciaries should take note.
Calling on Your Vendors
For employers, the effect of this is indirect. Most employers do not administer their plans and, even if they do, they likely do not record phone calls.
However, employers should consider confirming with their insurance carriers or third-party administrators that they are aware of this guidance and will comply. Most of them likely already are. Ultimately, the fiduciary responsibility for the administration of the plan falls on the ERISA plan administrator. In most cases, that is the employer. This is true even if the employer has hired third parties to handle the day-to-day administration of the plan. Therefore, while employers may have outsourced that day-to-day responsibility, the fiduciary responsibility to ensure vendors are complying likely ultimately rests with the employer.
If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.
NOTICE OF DISCLAIMER
The information herein is intended to be educational only and is based on information that is generally available. HUB International makes no representation or warranty as to its accuracy and is not obligated to update the information should it change in the future. The information is not intended to be legal or tax advice. Consult your attorney and/or professional advisor as to your organization’s specific circumstances and legal, tax or other requirements.