When the insurer misses its deadline or goes silent

A plan that does not answer on time has broken the rules, and you are not required to wait forever. Write to the plan, name the date the answer was due, and ask for a written explanation. If the plan did not follow the appeal rules and the failure was not a small slip, you may be able to go straight to external review or, for some plans, to court. Do this alongside your appeal, not instead of it.

What this means

Each step has a federal deadline. For a group health plan, the plan’s first decision on a claim must come within these limits:

• Urgent care: as soon as possible and no later than 72 hours.
• Pre-service (approval before care): 15 days.
• Post-service (a bill or care already received): 30 days.

The plan may extend a pre-service or post-service decision once, by up to 15 days, for reasons beyond its control, if it tells you before the first period ends. On an appeal the limits are 72 hours (urgent), 30 days (pre-service) and 60 days (post-service), or half of the 30 or 60 days at each level if your plan has two levels (an urgent appeal is still 72 hours at each level). The rules give group health plans no extension on appeal, except that certain multiemployer plans whose boards meet on a schedule may use that schedule. The clock starts when you file under the plan’s reasonable procedures, whether or not you sent everything.

The rules also say what happens when a plan does not follow them. The official term is deemed exhaustion. It means you are treated as having used up the plan’s appeal steps. For every employer plan covered by the Employee Retirement Income Security Act (ERISA), a plan that fails to set up or follow claims procedures consistent with the federal regulation leaves you free to go to court. For plans and insurers that are not grandfathered, there is a stronger version: if the plan does not “strictly adhere” to the internal appeal requirements, you may go to external review or to court, and a court treats the claim as denied “without the exercise of discretion” by the plan.

The small-mistake exception

The exception is called de minimis, which means minor. A violation does not trigger deemed exhaustion if all of these are true: it was minor and caused no harm, it had a good reason, it happened during a good-faith exchange of information, and it is not part of a pattern. Whether a particular delay counts as minor is for a reviewer or a court to decide, so do not assume yours does or does not.

You can demand a written explanation of the violation. The plan must give it within 10 days. That statement is useful whichever way it goes: it either explains the delay or shows that the plan has no good answer.

What to do

1. Write down the due date. Count from the day you filed, using the limits above. See how deadlines are counted and the decision clock.
2. Call the plan and ask for the status. Ask for the date it received your appeal, the name of the person handling it and a reference number. The script for chasing a silent appeal shows what to say. Log the call.
3. Write to the plan the same day (your step). State the date you filed, the date the answer was due, and that no decision has arrived. Ask for the decision now and for a written explanation of why it is late. The missed deadline letter has wording. Send it with proof of delivery.
4. Note the 10 days. Put the date the plan must reply with its written explanation on your calendar.
5. Move to external review if your plan is not grandfathered. You can ask for outside review without waiting for the plan if it has not strictly followed the appeal rules, within four months of the denial or final denial. See how to request external review. Your final denial letter should say where to send the request, and you can ask the plan in writing.
6. Complain to the regulator. For an insured plan, that is the state insurance department. For a private employer plan, it is the Department of Labor. A complaint does not stop your appeal deadline. See how to file a complaint with your state insurance department and how to get help from the Department of Labor.
7. Think about a lawyer if the case is serious. Court is a real option, but your plan document may set time limits. See suing your health plan.

What the plan may say, and what to say back

“We are still reviewing it.” Ask for the date the review will end and the rule that allows the extra time. Remind the plan of the date the decision was due.

“We never received your appeal.” Send the proof you kept: the return receipt, fax confirmation or portal receipt. Ask the plan to log the original filing date.

The rule

If a plan or insurer that is not grandfathered fails to strictly adhere to the internal appeal requirements, the claimant is deemed to have exhausted the internal process and may go to external review or to court, unless the violation was minor, caused no harm, was for good cause, took place during a good-faith exchange of information and is not part of a pattern. The claimant may request a written explanation, which the plan must give within 10 days. See title 29 of the Code of Federal Regulations (CFR), section 2590.715-2719(b)(2)(ii)(F) and, for all employer plans covered by ERISA, 29 CFR 2560.503-1(l).

Watch for

• Keep your own deadlines. A late reply from the plan does not extend your time.
• Check the date on your notice, which controls. The four months to ask for external review count from your receipt of the denial or final denial.
• Medicare Advantage. If a Medicare Advantage plan misses its deadline on a reconsideration, it must send the case file to the independent reviewer on its own, without you asking. See Medicare Advantage appeals.
• Medicaid managed care. For a plan authorization decision, one not made in time counts as a denial. See Medicaid appeals and fair hearings.

What next

• How to request external review: how to go outside the plan.
• How to file an internal appeal: the standard route and the decision deadlines in detail.
• Suing your health plan: what the law says about court, and why to talk to a lawyer first.
• When a prior authorization is stuck: the first request, before any appeal.