When Does Exhaustion of Administrative Remedies Really Require Exhaustion

Like most lawyers who represent plans or their administrators in denied benefit disputes, one of the first things I check when a participant’s complaint is forwarded to me is whether the participant exhausted all review opportunities with the plan’s administrator. If not, the defense of failure to exhaust administrative remedies needs to be raised. For those on the opposite side of the “v” (i.e., the plaintiff), however, whether or not the failure to exhaust administrative remedies is fatal is not so cut and dry. Circuits vary on the circumstances under which such a defense is outcome determinative, and most circuits - probably all, but I have to admit I haven’t surveyed the more out of the way circuits on this question - provide participants with ways around this defense, as this informative blog post illustrates.