The ERISA Industry Committee (ERIC) today filed an amicus brief in the Tenth Circuit case of D.K. v. United Behavioral Health, solely to rebut the position of the U.S. Department of Labor in its recent amicus brief that presents a new regulatory framework without using the federally required notice and comment rulemaking process.
ERIC does not take a position on the merits of the case or the regulatory standard that should apply, only that the DOL cannot and should not create or modify regulations via court filings. ERIC was drawn to act at this stage of litigation by the problematic and separable arguments made by DOL in its amicus brief – arguments that have only recently been made by the DOL years after this litigation commenced.
“The DOL’s attempt to substantively recast regulatory standards via court filing is not only inconsistent with its own previously established regulatory text, but also attempts to do so outside of the notice-and comment rulemaking process that is required by the federal Administrative Procedure Act,” said Annette Guarisco Fildes, President and CEO, ERIC. “Beyond flying in the face of federal administrative law, this sort of regulatory overreach ultimately jeopardizes the valuable employer sponsored benefits that these regulations are meant to govern and facilitate. Any ruling by the Tenth Circuit in this case must reject the interpretive position argued for in the DOL’s amicus brief and recognize the clear departure from proper APA process that it represents.” ERIC’s amicus brief focuses on key arguments against DOL’s attempted regulatory reinterpretation:
• DOL may not rewrite its regulations outside of notice-and-comment rulemaking
• DOL’s interpretation of its own regulations is inconsistent with the plain text of the regulations
• There are good policy reasons underlying differential treatment of health care and disability benefits determinations
• DOL’s interpretation of the regulations in its amicus brief is not entitled to deference under Auer or Kisor
ERIC, a national nonprofit organization advocating exclusively for large plan sponsors that provide health, retirement, paid leave, and other benefits to their nationwide workforces, supports our member companies’ commitment to providing workplace benefits such as mental health support that are critical to the well-being of today’s workforce and families
“ERIC routinely provides regulatory input to the DOL and other agencies on rules that impact employer-sponsored benefit administration, including the very same health and disability benefit standards that the DOL brief attempts to reinterpret,” said Guarisco Fildes. “If government agencies wish to alter existing regulations, it is essential that they follow well-established notice-and-comment standards and continue to consider the unique perspective of the large employers that ERIC represents.”
Click here to read ERIC’s amicus brief in its entirety.