HEALTH INSURANCE APPEALS

The Patient Protection and Affordable Care Act requires health insurance plans to explain the reason for denial of coverage and to provide both an internal and external process to review the decision.  Health insurance benefits cannot be reduced or terminated without prior advance notice and an opportunity for advance review.   Benefits must continue pending the appeal.

ERISA claims regulations, 29 C.F.R. section 2560.503-1 and regulations of the Department of Health and Human Services, 45 C.F.R. section 147.136 govern the claim decision and appeals process.  A denial of a claim for benefits must describe rules, guidelines, protocols and criteria supporting the decision.   If the Plan contends that treatment is medically unnecessary or experimental,  the decision must disclose the scientific or clinical basis for a denial of a claim.

The Plan must give Claimants at least 180 days to appeal a denial of health benefits.   Plans must provide an expedited procedure for urgent care appeals.  Upon request, the Plan must provide free of charge all documents relevant to the decision from which an appeal is taken, including codes for diagnosis and treatment and an explanation of the meaning of codes.  If the decision is based on a medical judgment,  the Plan must engage a qualified expert in the applicable field of medicine and disclose the identity of the expert to the Appellant.   The Appellant has a right to review the file and present evidence prior to the deadline for the decision on appeal.

A decision on a claim for urgent care is due within 24 hours of the presentation of the claim; a decision on appeal of the denial of urgent care is due within 72 hours of receipt of the appeal.   For non-urgent appeals, a decision is generally due within 60 days after receipt of an appeal.

Decisions on requests for pre-service authorization of benefits are due within 15 days of the receipt of the claim, although the time may be extended.  Decisions on appeal of a denial of pre-service authorization are due within 30 days of filing the appeal.

After the denial of an internal appeal,  the Appellant may request an external review of the internal plan decision.   The Appellant must have at least 60 days after the final internal appeal decision to request an external review as described in the decision.

The summary plan description, policy or other evidence of coverage provided to enrollees must describe the internal and external appeal procedures and the availability of assistance in the appeal process.    Appellants may appoint an attorney, health care provider or other representative to pursue the appeal.

A beneficiary of an ERISA plan sponsored by an employer or union may file a lawsuit to recover benefits under Section 502(a) of ERISA.   Beneficiaries of non-ERISA plans may file a lawsuit in state court.   The failure of a health plan to strictly comply with the regulatory appeal requirements subjects the decision to judicial review under the de novo standard.   A health care provider may bring a lawsuit to recover benefits if the patient assigned rights to the provider.

Notice of ERISA Limitations Period

The Employee Retirement Income Security Act (ERISA) does not prescribe a statute of limitations applicable to lawsuits to recover benefits. Generally, the analogous state statute of limitations applies. However, a benefit plan may impose a different statute of limitations within the terms of the plan provided that the period is reasonable.
In Mirza v. Insurance Administrator of America, Inc. No. 13-3535 August 26, 2015, the Third Circuit Court of Appeals held that the notice of a denial of a benefit must include information about the time limits applicable to both the plan appeal procedures and the claimant’s right to bring a civil action in court. The limitations period provision was buried on page 73 of Insurance Administrator of America’s 91 page governing plan document.
To reach its conclusion, the Court interpreted the text of the Department of Labor’s regulations governing claim procedures, 29 C.F.R. §2560.503-(g)(1)(iv). To comply with the regulations, a notice of benefit determination must provide a “description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under section 502(a) of the Act [ERISA] following an adverse benefit determination on review.” “Including” encompasses the time limits to bring a civil action as well as the time limits to file a plan appeal. Plan administrators have a light burden, “trivial” in the words of the Court, to inform claimants of deadlines for judicial review in the adverse benefit determination.

Unable to Work in Regular Occupation – Long Term Disability Insurance

 

Most long term disability insurance policies have a two-tiered definition of disability. During the initial period, typically two years, the policy defines “disability” as an inability to perform the material and substantial duties of the insured’s regular occupation because of a medical condition. While the language varies somewhat from plan to plan, a definition requiring an inability to perform duties of the claimant’s regular occupation triggers the need for a vocational analysis as well as a medical analysis. The insurer must assess the claimant’s ability to perform the claimant’s regular occupational requirements in light of the diagnosis. The decision should explain how medical symptoms impact responsibilities to perform the actual occupational requirements on a regular basis.

Eligibility for disability benefits depends upon the precise language of the policy or plan. Plans may contain a detailed description of the scope of the occupation. For example, a plan insuring a physician may define the regular occupation as a particular recognized specialty, rather than the more general occupation of “physician”.   Eligibility criteria frequently require a prescribed loss of pre-disability earnings due to sickness or injury.

In the claim and plan appeal process, the claimant should submit evidence of the physical and mental functions required to successfully work in the claimant’s regular occupation as well as evidence of any loss of earnings.   O*Net online, www.onetcenter.org, is a valuable database of the knowledge, skills and abilities required to engage in listed occupations.

The particular provisions of the entire insurance policy or plan must be applied to each particular claim.  The entitlement to benefits ultimately requires medical and vocational evidence demonstrating that the claimant fulfills all the eligibility factors in the policy providing coverage.

Federal Employees’ Remedies for Reprisal

Do federal employees have any recourse for retaliation for filing a grievance, appeal or any claim, e.g., a claim for workers’ compensation, a travel reimbursement claim, or prior appeal to the Merit Systems Protection Board?

It is a prohibited personnel practice for an Agency to:

(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of paragraph (8); or
(ii) other than with regard to remedying a violation of paragraph (8);
(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);
(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
(D) for refusing to obey an order that would require the individual to violate a law.

Paragraph 8 protects whistleblowers who disclose a violation of a law, rule, or regulation or gross mismanagement, gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety.

Whistleblowers invoking rights under 5 U.S.C. §2302(b)(8), employees who appeal, complain or grieve reprisal for whistleblowing, and employees who suffer retaliation for activity protected by paragraphs 9 (B), ( C ) or ( D ) have a right to file an appeal with the Merit Systems Protection Board after exhausting administrative remedies with the Office of Special Counsel (OSC). If OSC closes the investigation, the employee may file with the MSPB within 60 days of the close out letter from OSC or after the lapse of 120 days of filing the complaint if OSC takes no action. 5 C.F.R. § 1209.2(a).

Employees who file an appeal, complaint or grievance may complain to the OSC about retaliation. The OSC may investigate and seek corrective action to rectify the effect of retaliation. If the OSC does not find merit to the complaint of a (b)(9)(A)(ii) violation, the individual employee has no individual remedy, unless the Agency subjects the employee to an adverse action otherwise appealable to the MSPB. Appealable adverse actions consist of removal, suspension for more than 14 days, a reduction in pay or grade, an improper reduction in force, a denial of within-grade salary increases, or a furlough of a maximum of 30 days. An employee may raise any prohibited personnel practice, including a violation of (b)(9)(A)(ii), as an affirmative defense in an appeal of an adverse action to the MSPB. The MSPB does not have jurisdiction over appeals of less drastic disciplinary action, denials of appointments, promotions, details, transfers, reassignments, performance evaluations, pay, benefits, awards, training, ordering psychiatric testing, harassment, or any other change in duties, responsibilities or working conditions that do not rise to the level of an adverse action.

Employees experiencing retaliation for filing an appeal, compliant or grievance, e.g., a workers’ compensation claim or a MSPB appeal, have limited independent recourse. However, if the employee can prove that testimony, assisting employees or making a protected disclosure triggered the retaliation, the employee may have an individual right of action.

The employee subject to an otherwise appealable action must elect between remedies of; request for corrective action or a direct appeal of an adverse action. 5 C.F.R. §1209.2(b)(2). If the prohibited personnel practice violates a collective bargaining agreement, employees covered by the bargaining agreement also have the option to file a union grievance.

Bargaining unit employees must elect among the three possible options: 1) appeal to the MSPB under 5 U.S.C. §7701, 2) exercise the employee’s individual right of action to seek corrective action at the MSPB or 3) file a grievance under 5 U.S.C. §7121(d). Legal counsel familiar with the laws applicable to federal employment can help an employee to decide among the options.