After a final denial: every option left

A final denial feels like the end, but it is not always the end. Before you give up on the care, check what is left: any review you have not yet used, a new request with new evidence, your employer if it pays claims itself, the regulator, a lawsuit, other ways to get the care, and the bill itself. Some of these have short deadlines, so start with the one closest to expiring. None of them is guaranteed to work.

This week

1. Write down the date on the final denial letter. Outside review is due within four months of getting it for most private job-based and individual plans. Check the letter, which controls.
2. Ask for outside review if you have not. Use the external review request letter and read how to request external review.
3. Call the hospital billing office. Ask about financial assistance and ask for a hold on collections. See hospital financial assistance.
4. Get free help. If your employer pays the claims itself, call the Employee Benefits Security Administration at 1-866-444-3272. If you have insurance bought from an insurance company, call your state insurance department. If your coverage is retiree coverage from a former employer, ask the plan administrator whether it is an employer plan.

What this means

“Final” means the plan has no more internal steps. It does not always mean that every outside option is gone. What remains depends on your coverage: a private employer plan, an insured plan, a marketplace plan, Medicare, Medicaid or something else. This page covers the choices that apply across private coverage and points to the coverage pages for public programs.

You are not required to take any of these steps, and you can do several at once. They fall into three groups: ways to reverse the decision, ways to push the plan or the system, and ways to deal with the cost and the care itself.

What to do

1. Check that the denial is truly final. Read the last letter for the words “final internal adverse benefit determination” or similar, and for any remaining steps. If the plan has a second level you have not used, use it. See second-level internal appeals. Check the date on your notice, which controls.
2. Use external review if you have not. For plans that are not grandfathered, you usually have four months after a final internal denial to ask for review by an independent reviewer. The decision binds the plan. See how to request external review. If external review has already gone against you, it is binding on you as well, except to the extent other remedies exist under state or federal law.
3. Ask the employer, if it pays the claims itself. An employer that funds its own plan may be able to approve an exception. This is a request, not a right. See asking your employer to overrule a denial.
4. Make a new request with new evidence. If the denial said evidence was missing, or your condition has changed, ask your doctor for a new letter and records and send a new request. We could not confirm that the plan must treat it as new, so ask in writing how the plan will handle it, and keep the original appeal dates in view.
5. Tell the regulator. An insured plan answers to the state insurance department. A private employer plan answers to the Department of Labor. A complaint does not reverse the decision, but it can ask the regulator to look at whether the plan followed the rules. See how to file a complaint with your state insurance department and how to get help from the Department of Labor.
6. Talk to a lawyer about a lawsuit. A lawsuit is possible in some cases, with strict limits. See below and suing your health plan.
7. Deal with the bill. Whatever happens with the denial, you can ask the hospital for financial assistance, negotiate the amount and set up a payment plan. See hospital financial assistance, how to negotiate a medical bill and payment plans and medical credit.
8. Look for another way to get the care. Ask your doctor whether another treatment or a different site of care is reasonable, whether there is a clinical trial, or whether a drug maker or a program offers help. Do not make medical choices without your doctor. See drug cost help.
9. Get help. A patient advocate, a state consumer assistance office, a legal aid group or a lawyer may see something you missed. See where to get free help, legal aid and paying for help.

What the plan may say, and what to say back

“This decision is final.” Ask: “Is the decision final under the plan, or only the internal appeal? What other reviews are open to me, and by what date?” Ask for the answer in writing.

“We have no more appeals.” Ask whether external review is open to you. For a plan that is not grandfathered, it should be open if the denial involves medical judgment, a surprise-billing protection or a rescission.

The rule

A participant in a private employer plan covered by the Employee Retirement Income Security Act (ERISA) may sue “to recover benefits due to him under the terms of his plan”, and a court may award reasonable attorney’s fees to either side. The federal law sets no deadline, but the plan document may set its own, and courts generally expect the claimant to finish the plan’s internal appeals first. See ERISA section 502 and Heimeshoff v. Hartford Life & Accident Insurance Co..

Watch for

• Time limits. A plan document may set a deadline for suing, even one that starts before your internal appeals end. A lawyer should check it early.
• Plans with no federal outside review. The Affordable Care Act external review rules do not apply to short-term plans, fixed indemnity plans and health care sharing ministries. What you have comes from the policy and state law. If a fixed indemnity plan comes through an employer, ask whether the general federal claims rule for employer plans applies; we could not confirm that.
• Medicare, Medicaid and military coverage. They have more levels and their own deadlines. Start at Medicare, Medicaid and children’s coverage or military, veteran and federal coverage.
• The bill keeps moving. A final denial may turn into a bill or a collections notice. See the bill while you appeal.
• Time and energy. You may decide to stop. That is a reasonable choice, and you can still work on the bill.

What next

• Asking your employer to overrule a denial: for self-funded job-based plans.
• Suing your health plan: what the law says and what to ask a lawyer.
• Hospital financial assistance: the bill options that do not depend on the plan.