Coverage type · Marketplace or individual plan
Grandfathered plan
A plan in place since 23 March 2010 without disqualifying changes. It skips some Affordable Care Act protections, including general independent review. Employer plans under ERISA keep the federal claims rules. Other plans follow their contract and state law.
On this page 7
- Who has this
- People in an employer plan or an individual policy that was in place on 23 March 2010 and has not made changes that end grandfathered status. These plans are rare and shrinking, but they still exist.
- Who regulates it
- Employer plan covered by ERISA: the Department of Labor's Employee Benefits Security Administration (help line 1-866-444-3272), plus your state insurance department if an insurer issues the policy. Government employer plan outside ERISA: your state insurance department if an insurer issues the policy, or the Centers for Medicare & Medicaid Services if the plan is self-funded. Individual policy: your state insurance department.
- Can your state help?
- Partly. Yes if an insurance company issues the policy, because the state regulates the insurer; your state insurance department can take a complaint. State law may give an insured grandfathered plan appeal or external review rights, but we did not check it, so ask your department. No if your employer pays claims itself. Find your state.
How to tell this is your coverage
- Look in your summary of benefits or plan booklet. A grandfathered plan must say that it believes it is grandfathered, with contact information, in any summary of benefits it provides.
- Call the contact named in that statement, or ask your human resources department or insurer in writing: Is my plan grandfathered under the Affordable Care Act? Please send the notice that says so.
- Check when the plan began. Grandfathered coverage had to be in place on 23 March 2010. Ask the plan in writing whether it has made changes since then that ended grandfathered status.
- Check whether your plan is an employer plan or a policy you bought yourself. That decides which rules cover your appeal.
The appeal steps, in order
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Appeal to the plan
Official name: Internal appeal
- Who decides
- Employer plan covered by ERISA: the plan or its administrator under the federal employer-plan claims rules. Individual policy: your insurer, under your policy and state law. A grandfathered plan is exempt from the Affordable Care Act appeal section, so the extra protections for non-grandfathered plans do not apply. A grandfathered government plan, or a church plan that did not elect ERISA coverage, has neither the ERISA claims rules nor the Affordable Care Act appeal section; ask the plan, or for an insured plan your state insurance department, what appeal steps apply.
- Your deadline
- Employer plan covered by ERISA: at least 180 days after you receive the denial notice; the plan may allow more. Individual policy: set by your policy and state law; read the notice and the policy now. Check the date on your notice, which controls.
- Their deadline
- Employer plan covered by ERISA: urgent care no later than 72 hours after your appeal is received; care you need approved first, 30 days (15 days at each level if the plan has two levels); care you already received, 60 days (30 days at each level if two levels). Individual policy: set by your policy and state law. Check the date on your notice, which controls.
- What to send
- A written appeal naming the claim and the denial, with your records, your doctor's letter and your reasons. Ask first for your claim file and the plan document. An employer plan covered by ERISA must give you the claim file free.
- If you lose, or hear nothing
- If the plan upholds the denial and has a second level, file it. Then look at the options below.
- The rule
- 29 CFR 2560.503-1, claims procedure (applies to every ERISA plan, grandfathered or not)
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Second appeal to the plan (ERISA employer plans, only if the plan has one)
Official name: Second-level internal appeal
- Who decides
- The plan. A group health plan may not require more than two appeals before you can sue.
- Your deadline
- Set by your plan documents and stated in the first appeal decision. It is not a fresh 180 days. Check the date on your notice, which controls.
- Their deadline
- Half the usual time at each level: 15 days before care and 30 days after care for each level if the plan has two levels. If urgent, no later than 72 hours. Check the date on your notice, which controls.
- What to send
- A new letter answering the reasons in the first appeal decision, with any new records or doctor's statement.
- If you lose, or hear nothing
- If the plan upholds the denial again, check whether your case qualifies for external review (next level), then consider a regulator complaint or a lawsuit.
- The rule
- 29 CFR 2560.503-1(c) and (i)(2), number of appeal levels and decision times
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External review, limited to surprise-billing denials
Official name: External review for No Surprises Act protections
- Who decides
- An independent reviewer, but only for denials involving the No Surprises Act surprise-billing and cost-sharing protections. A grandfathered plan is exempt from the general independent external review rule, so a denial for medical necessity does not qualify under federal rules. State law may add more for an insured plan; we did not check it.
- Your deadline
- For external review under the federal rules, at least 4 months after you receive the denial notice. Confirm the deadline in your notice. Check the date on your notice, which controls.
- Their deadline
- For external review under the federal rules, a standard decision is due within 45 days after the independent reviewer receives your request. Check the date on your notice, which controls.
- What to send
- Follow the instructions in your denial notice. Include the denial notice and the bill or explanation of benefits that shows the surprise bill.
- If you lose, or hear nothing
- If this level does not apply to your denial, go to a complaint or a lawsuit.
- The rule
- 45 CFR 147.136(a)(1)(ii), external review for grandfathered plans and No Surprises Act protections
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Complaint to a regulator
Official name: Regulator complaint
- Who decides
- Employer plan covered by ERISA: the Department of Labor, 1-866-444-3272. Insured plan: your state insurance department. A complaint that a plan is not following the No Surprises Act can be sent to the federal government, which must acknowledge it within 60 business days.
- Your deadline
- We could not confirm a deadline for this step. A complaint does not stop your appeal deadlines. Check the date on your notice, which controls.
- Their deadline
- Acknowledgement of a No Surprises Act complaint: within 60 business days. Otherwise set by the agency.
- What to send
- A short written complaint with your plan name, member number, the denial notice and the dates of every appeal.
- Form
- Find your state insurance department (National Association of Insurance Commissioners)
- If you lose, or hear nothing
- Use what the agency tells you in a lawsuit or in your next request.
- The rule
- 45 CFR 149.150, complaints about No Surprises Act compliance
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Lawsuit in court
Official name: ERISA suit for an employer plan; state-law claim for an individual policy
- Who decides
- A judge. Employer plan covered by ERISA: you can sue under section 502(a) of the Employee Retirement Income Security Act (ERISA) to recover benefits, and the court may award reasonable attorney's fees and costs to either side. Individual policy: ERISA does not apply, so state-law claims such as breach of contract may be available, depending on your state's law, which we did not check.
- Your deadline
- ERISA sets no deadline for a benefit lawsuit, but your plan document may set its own if it is reasonable. For an individual policy, your state's law and your policy decide. Ask a lawyer early. Check the date on your notice, which controls.
- Their deadline
- Set by the court.
- What to send
- A lawyer files the suit. Put your records, your doctor's letter and your arguments in the appeal itself; do not count on adding them later in court.
- If you lose, or hear nothing
- Free legal aid or a lawyer who handles insurance or benefit disputes can tell you which rules apply.
- The rule
- ERISA section 502, 29 U.S.C. 1132
If waiting could harm your health
If waiting could seriously harm your health, ask for an urgent appeal. An employer plan must decide within 72 hours, and must treat the claim as urgent if a doctor who knows your condition says it is. An individual policy follows its own terms and state law; ask the insurer for its urgent process and call your state insurance department if it will not give you one.
Free help for this coverage
- Department of Labor benefits advisors
Free help at 1-866-444-3272 for questions about private employer plans, including a grandfathered employer plan.
- Your state insurance department
Takes complaints about insurers and their policies. Find yours in the National Association of Insurance Commissioners directory.
- Your state Consumer Assistance Program
The Centers for Medicare & Medicaid Services list gives contacts by state. It says no program receives federal grant money as of its September 2024 update, so confirm your state's listing is current.
- Patient Advocate Foundation case management
Free one-on-one help for patients who qualify, by phone at 1-800-532-5274, Monday to Friday, 8:30 a.m. to 5:00 p.m. Eastern (hours as listed in November 2026). It has limits on how many people it can take each day.
Who this covers
This page is for you if your plan was in place on 23 March 2010 and has not been changed in ways that end its grandfathered status. It may be a plan your employer offers or a policy you bought yourself. The Affordable Care Act (ACA) lets these plans skip some of its rules.
How to tell this is your coverage
The plan must say that it believes it is grandfathered, with contact information, in any summary of benefits it provides. Ask the plan or insurer in writing for that statement.
What does not apply to you
A grandfathered plan is exempt from the ACA appeals and external review section, from the rule on preventive services at no cost to you, from clinical trial coverage, and from certain other patient protections that apply to plans that are not grandfathered. It remains subject to the ban on cancelling coverage after the fact (rescission) and on lifetime dollar limits. The No Surprises Act applies to it, and so does external review for denials involving those protections.
Where people go wrong
- Believing a grandfathered plan has no appeal rights. An employer plan covered by ERISA still has the federal claims rules: a denial notice with reasons, at least 180 days to appeal, decision deadlines and your right to documents.
- Expecting general independent external review. It does not apply, except for surprise-billing denials.
- Calling the wrong agency. ERISA employer plans go to the Department of Labor; insured plans can also go to the state.
Sources
- 45 CFR 147.140, preservation of right to maintain existing coverage
- 42 U.S.C. 18011, preservation of existing coverage
- 45 CFR 147.136, internal claims and appeals and external review
- 29 CFR 2590.715-2719, internal claims and appeals and external review
- 29 CFR 2560.503-1, claims procedure
- 45 CFR 149.150, complaints about No Surprises Act compliance
- ERISA section 502, 29 U.S.C. 1132
- Filing a Claim for Your Health Benefits
- Ask EBSA, request help from a benefits advisor
- State insurance departments directory
- Consumer Assistance Program
- Patient Advocate Foundation case management