Key points
- A job-based group health plan may require no more than two internal appeals before you can sue. Your denial notice tells you how many your plan has.
- With two levels, the plan's time to decide is split in half for each level: 15 days each for pre-service claims and 30 days each for post-service claims.
- An extra, voluntary appeal level must be free, cannot be required before court, and pauses the plan's time limit for suing while it is open.
- A voluntary level cannot be required before you sue. Ask the plan in writing whether it affects your time to ask for external review.
Check your denial notice or your plan’s summary plan description (a booklet that explains how your plan works) to see how many internal appeal levels your job-based plan has. If it has two, do not treat the first denial as the end. File the second appeal within the time on that notice, and answer the plan’s reasons directly. If a level is offered but not required, think carefully before using it, because it can use up time you may need for outside review.
What this means
A group health plan may require up to two internal appeals before you can go to court. Many plans have one. Some have two. A plan cannot require more than two. An insurer selling individual coverage may offer only one internal level, which is why this page is written for job-based plans.
The Department of Labor’s booklet on claims says the same rules apply at each level, but with the plan’s time to decide cut in half. It also says that you do not necessarily get a full 180 days to file the second appeal. The notice you receive after the first level should tell you the time limit for the next step. Read it as soon as it comes.
There are two different kinds of extra level, and they work differently:
- A required second level. This is one of the two internal appeals the plan may require. Courts generally expect you to finish the plan’s internal appeals before you sue.
- A voluntary level. This is an additional, optional review that a plan or its administrator may offer after the required levels. It is on top of the two.
How the time limits change
With one level, a group health plan decides an appeal within 72 hours for urgent care, 30 days for pre-service claims and 60 days for post-service claims. With two levels, each level gets half of the pre-service and post-service periods.
| Type of claim | One level | Each of two levels |
|---|---|---|
| Urgent care | 72 hours | 72 hours |
| Pre-service | 30 days | 15 days |
| Post-service | 60 days | 30 days |
The count starts when you file the appeal under the plan’s reasonable procedures. The regulation allows group health plans no extension of these appeal deadlines, except that certain multiemployer plans whose boards meet on a schedule may use that schedule. If the date passes without a decision, see when the plan misses its deadline.
What to do
- Read the first-level decision letter on the day it arrives. Look for the words “second-level appeal” or “final internal decision”. Find the deadline and the address. Check the date on your notice, which controls.
- Count your own deadline. Do not assume you have 180 days again. See how deadlines are counted.
- Read the plan’s reasons and answer them. The plan must give you the specific reason and the plan provisions it relied on. If the plan gave new evidence or a new rationale, answer it. Before a final internal denial, a plan that is not grandfathered must give you any new evidence or reason it relied on, free of charge, in time to respond.
- Add new evidence. A reviewer must consider everything you send, including material the first review did not see. Ask your doctor for an updated letter. See how to ask your doctor for a letter.
- Write the second appeal. The second-level appeal letter is built for this step. Refer to the first appeal by date and claim number.
- Send it with proof of delivery. Keep a copy. The appeal tracker holds the dates.
- Ask for the outside review form early. Some plans will give you the external review request at the same time as the final decision. See how to request external review.
What the plan may say, and what to say back
“This is a voluntary second appeal. You do not have to use it.” Ask in writing whether using it affects your time to ask for external review or to sue. Ask the plan to put the answer in writing. Keep your four-month external review deadline in view.
“You must complete the second-level appeal before external review.” That is true unless the plan waived the requirement, failed to follow the appeal rules, or you are asking for expedited external review at the same time as an expedited internal appeal. If one of these applies, say so in writing and cite the rules on this page.
“We will arbitrate.” Mandatory arbitration is allowed only as one of the two permitted appeal levels, and it cannot stop you from challenging the result in court. Ask for the arbitration terms in writing and talk to a lawyer before agreeing to anything that changes your rights.
The rule
A group health plan may not require a claimant to file more than two appeals before bringing a lawsuit. Any additional, voluntary level must be free, cannot be required as a condition of going to court, and any time limit for filing a lawsuit is paused while the voluntary level is pending. See title 29 of the Code of Federal Regulations (CFR), section 2560.503-1(c)(2) to (4).
Watch for
- Court deadlines. The federal law that governs most private employer plans sets no deadline for benefit lawsuits, but your plan document may set one, even one that starts before your internal appeals end, as long as it is reasonable. Ask a lawyer to check it early. See suing your health plan.
- Voluntary does not mean harmless. A voluntary level pauses a lawsuit deadline. The four-month deadline for external review counts from when you receive a denial or final internal denial, so ask the plan in writing which decision it treats as final, and do not let the four months pass while you wait.
- Lost time for urgent cases. If waiting could seriously harm you, ask for outside review at the same time as your urgent appeal, rather than going through every level. See how to get an expedited appeal.
- Fully insured and self-funded plans differ at the next step. Where the outside review is handled depends on how your plan is funded. See external review for self-funded employer plans.
- Government and church plans. They may follow different rules. See government and church employer plans.
What next
- How to request external review: the step after your last internal level.
- The employer plan appeal path: how the pieces fit together for job-based coverage.
- Suing your health plan: what to know before a lawsuit, and why to see a lawyer early.