Key points
- Your path depends on whether your employer pays claims itself (self-funded) or buys insurance (fully insured). Find that out first.
- You get at least 180 days after you receive the denial to file the plan's own appeal. Independent review has its own window, at least four months after the final denial.
- You can ask for the claim file and plan documents in writing before you appeal, and the plan cannot charge you to appeal.
- Check the date on your notice, which controls. Your plan may allow more time than the federal minimum, never less.
A denial from a plan you get through a job or a union can go through four stages: the plan’s own appeal, an independent review by people outside the plan, a complaint to the agency that oversees your plan, and, last, a lawsuit. You do not have to use all four. Most people stop earlier, and the first job is to learn which kind of plan you have, because that decides which agency and which independent reviewer apply to you.
What this means
There are two kinds of job-based plan. In a self-funded plan, your employer pays the claims from its own money. An insurance company whose name is on your card may only be running the paperwork. In a fully insured plan, your employer buys a policy and the insurer pays the claims. The card can look the same in both cases.
The difference decides who oversees you. The federal Employee Retirement Income Security Act (ERISA) governs most private employer plans. A self-funded plan answers to the Employee Benefits Security Administration (EBSA), part of the United States Department of Labor, and state insurance rules generally cannot be applied to it. A fully insured plan answers to both ERISA and your state insurance department. The reference pages for each kind are Employer plan the employer funds itself and Employer plan bought from an insurer.
Government employers and churches follow different rules. If that is you, read Government and church employer plans instead.
What to do
- Read the denial notice today (you). Find the reason, the plan’s appeal deadline and the date on the notice. The notice must give the specific reason and the plan rules it relied on.
- Find out which kind of plan you have (you). Your summary plan description (SPD) must name any insurance company involved and say whether benefits are guaranteed by an insurance policy. If you cannot tell, ask the plan administrator in writing. Self-funded or fully insured shows how.
- Ask for the claim file and the plan documents in writing (you). The plan must give you, free, the documents and records relevant to your claim. The plan administrator must give you the latest SPD and the plan’s governing documents when you ask in writing, and may charge a reasonable copying fee of no more than 25 cents a page.
- File the plan’s internal appeal inside the deadline (you). You have at least 180 days after you receive the denial notice. The plan cannot charge a fee. Send it so you can prove the date it arrived.
- Ask your doctor to say so if waiting is dangerous (your doctor). If a physician who knows your condition says the claim is urgent, the plan must treat it as urgent. Urgent appeals must be decided within 72 hours at most.
- If the plan upholds the denial, ask for independent review within the time on your notice, which is at least four months (you). A self-funded ERISA plan uses the federal process through private independent review organizations. A fully insured plan generally uses your state’s process. A grandfathered plan (in place on 23 March 2010 and not changed in disqualifying ways) is exempt from general external review except for surprise-billing denials; see the page for grandfathered plans.
- Call the right agency if the plan broke the rules (you). For a private employer plan, EBSA’s help line is 1-866-444-3272. For an insurer, use your state insurance department.
- Before you think about court, read the plan document for its time limit (you). Then talk to a lawyer.
The plan’s decision times
After you appeal, the plan must decide within 72 hours if urgent, 30 days if you are asking for approval before care, and 60 days if you are asking it to pay for care you already had. If the plan has two appeal levels, each level has half of the 30 or 60 days, and an urgent appeal is still 72 hours at each level. A group health plan may not require more than two appeals before you can go to court.
The rule
A group health plan must give you at least 180 days after you receive a denial notice to file an appeal. A plan may allow more time, never less. (Title 29 of the Code of Federal Regulations (CFR), section 2560.503-1(h)(3)(i))
Check the date on your notice, which controls.
Watch for
- Two clocks. The appeal window is 180 days at least. The independent review window is at least four months after the final denial. Do not assume the longer one covers the shorter one.
- Half the time at each level. If your plan has two internal levels, you do not get a fresh 180 days for the second.
- A plan that skips its own rules. If the plan does not follow the claims procedure, you can be treated as having finished its appeal and may go on to independent review or court. Ask what that means in your case before you rely on it.
- A request for codes is not an appeal. Asking for the diagnosis and treatment codes does not start your appeal clock. File the appeal separately.
- The lawsuit deadline may start early. ERISA sets no deadline for benefit suits, but the plan document can set one, even one that starts before your internal appeal ends.
- Damages claims. For ERISA plans, state-law suits for damages over a benefit denial are generally not allowed. The suit is for the benefit itself.
- Old extensions. The pandemic extensions of appeal deadlines were set to end on 10 July 2023. Do not rely on them.
What next
- File an internal appeal walks through the letter and the proof of delivery.
- Request external review explains the four-month step in detail.
- Get help from the Department of Labor shows what EBSA can and cannot do.
- Job-based plans lists every page for this kind of coverage.