ACA News & Publications

Health Care Reform – Interim Final Rules on New Appeals Process

August 2010

Executive Summary

Under the Patient Protection and Affordable Care Act, a non-grandfathered group health plan must adopt an improved internal claims and appeals process and follow minimum requirements for external review. On July 23, 2010, interim final regulations were issued implementing these requirements (the Interim Final Rule). The appeals process rules are effective for plan years beginning on or after September 23, 2010. Comments on the Interim Final Rule are being accepted until September 21, 2010.

Key provisions of the Interim Final Rule include information on:

  • How to comply with updated internal claims and appeals processes;
  • Determining whether a state or federal external review process applies for appeals, along with guidance for each process; and
  • Requirements for notices in connection with the appeals process.
This HCR Pathways summarizes the new Interim Final Rule. Please read below for more detailed information. For a copy of the regulations, see

Summary of The Interim Final Rule

Internal Claims and Appeals Process for Group Health Plans

Health care reform requires group health plans to implement an effective internal claims and appeals process. These plans, as well as health insurance issuers providing their health insurance coverage, must follow the Department of Labor’s claims procedure rules for group health plans (available at

In addition to the existing DOL claims procedure regulations, group health plans must follow a number of new requirements:

1. New Definition of “Adverse Benefit Determination.” The definition of the term adverse benefit determination is found in the claims procedure regulations. It includes a denial, reduction, termination of, or failure to pay for (in whole or in part), a benefit under the plan. It includes decisions based on an individual’s eligibility to participate in the plan, a benefit not being a covered benefit, imposition of an exclusion, or a benefit being experimental or not medically necessary. Denials can include both pre- and post-service claims.

The Interim Final Rule adds rescissions of coverage to the definition of the term adverse benefit determination. A rescission is a cancellation or discontinuation of coverage that has a retroactive effect. A cancellation because of a failure to timely pay premiums for coverage is not considered a rescission.

2. Expedited Notice for Urgent Care Claims. Under the Interim Final Rule, group health plans must notify claimants of a benefit determination involving an urgent care claim more quickly. The new deadline is as soon as possible, taking into account the medical circumstances, but not later than 24 hours after the plan gets the claim. There is an exception to the deadline if the claimant does not provide enough information to the plan. The prior rule required the notice to be given within 72 hours. The change is attributable to faster decision-making capabilities, due to electronic communication.

3. Full and Fair Review. In addition to complying with the claims procedure regulations’ existing requirements, group health plans must follow additional rules to make sure claimants receive a full and fair review. Specifically, the plan must give the claimant any new evidence related to the claim or new rationale for a decision, free of charge. It must be provided as soon as possible and early enough before the appeal deadline to let the claimant respond.

4. Avoiding Conflicts of Interest. Group health plans must make sure that all claims and appeals are decided in a way that avoids conflicts of interest. The decision method must be designed to ensure the independence and impartiality of the decision-makers. The decision to hire a person involved in deciding claims or appeals must not be made based on the likelihood that they will support a denial of benefits. For example, a plan cannot provide bonuses based on the number of denials made by a claims adjudicator. Also, a plan cannot hire a medical expert based on his or her reputation for outcomes in contested cases, rather than his or her professional qualifications.

5. Notice. The Interim Final Rule provides new standards regarding notice to enrollees. Group health plans must provide notices required by the claims procedure regulations in a culturally and linguistically appropriate manner. See the section entitled “Required Notices” below for a discussion of the culturally and linguistically appropriate standards. The notices must also include the following additional content:

  • Information sufficient to identify the claim involved, including the date of service, the health care provider, the claim amount, the diagnosis code and its meaning, and the treatment code and its meaning;

  • The reason for the denial must include the denial code and its meaning, as well as any standard used in denying the claim;

  • A description of available internal appeals and external review processes, including information about how to initiate an appeal; and

  • Contact information for any applicable office of health insurance consumer assistance to assist individuals with the internal claims and appeal and external review processes.

6. Deemed Exhaustion of Internal Claims and Appeals Processes. If a plan fails to comply with these rules, the claimant will be deemed to have exhausted the plan’s internal claims and appeals process, even if the plan claims that it substantially complied with the requirements. That means that the claimant is free to pursue other remedies, such as external review or a lawsuit.

7. Continued Coverage Pending Outcome of Internal Appeals. Under the new rules, a plan must continue to provide coverage to the claimant until an internal appeal is resolved. Generally, this means that plans may not reduce or terminate an ongoing course of treatment without advance notice and an opportunity for advance review. Also, anyone in an urgent care situation or receiving an ongoing course of treatment may be allowed to proceed with an expedited external review at the same time as the internal appeal.

External Review Standards

Group health plans must comply with either a state external review process or the federal external review process. The Interim Final Rule provides guidance on which process must be followed.

State Standards for External Review

If a state external review process that applies to and is binding on an insurance issuer includes the consumer protections in the NAIC Uniform Model Act in place on July 23, 2010, then the issuer must comply with that state external review process. In that case, where benefits under a group health plan are provided through health insurance coverage, the issuer must provide the external review process and the group health plan itself is not obligated to do so. Some self-insured group health plans may be subject to the state external review process if they are not subject to ERISA preemption.

Any plan or issuer that is not subject to a state external review process must comply with the federal external review process. A plan or issuer will be subject to the federal process if there is not state external review process or if the state external review process does not meet the minimum requirements of the NAIC Uniform Model Act.

The Department of Health and Human Services (HHS) will determine whether a state external review process meets the minimum requirements. HHS will also provide a transition period for plan years beginning before July 1, 2011, where existing state external review processes will be treated as meeting the minimum requirements. This transition period will give states the opportunity to review and amend their processes. For plan years beginning on or after July 1, 2011, the federal external review process will apply unless HHS determines that the state process meets the minimum standards.

Federal External Review Process

The health care reform law requires a federal external review process to be established. The Interim Final Rule does not establish that process, but it does describe the standards that will be included. Plans or issuers that are not subject to a state external review process will have to follow the federal process. For an insured group health plan, if either the issuer or the plan complies with the federal process, then the obligation is satisfied for both the plan and the issuer.

The federal external review process will apply to most adverse benefit determinations or final internal adverse benefit determinations, including rescissions. However, it will not apply to denials based on a participant or beneficiary’s ineligibility for the plan.

The standards to be issued for the federal external review process will include procedures for initiating and conducting the review, an expedited external review process for certain claims, additional consumer protections for claims involving experimental or investigational treatment, and additional notices and disclosures to claimants.

Required Notices

Notices of available internal claims and appeals and external review processes must be provided in a culturally and linguistically appropriate manner. This means providing notices in a non-English language if certain thresholds are met for the number of people who are literate in the same non-English language.

For a group health plan that covers fewer than 100 participants at the beginning of the plan year, the threshold is 25 percent of all plan participants being literate in only the same non-English language. For a plan that covers 100 or more participants, it is the lesser of (a) 500 participants, or (b) 10 percent of all plan participants.

If an applicable threshold is met, the notice must be provided in the non-English language upon request. In addition, the plan or issuer must include a statement in the English version of all notices offering the notice in the non-English language. The statement must be prominently displayed in the non-English language. Once a request has been made by a claimant, all future notices to that claimant must be provided in the non-English language. Also, if the plan or issuer has a customer assistance process that answers questions or gives assistance with filing claims and appeals (such as a telephone hotline), the assistance must be provided in the non-English language.

Employer Considerations / Next Steps

  • Non-grandfathered group health plan sponsors will need to ensure that their plan (or insurance issuers, in the case of a sponsor purchasing insurance) has internal appeals and external review processes that conform with the Interim Final Rule.
  • Plan sponsors will have to determine whether their state’s existing external review standards meet the minimum requirements in the Interim Final Rule or whether their plan will instead be subject to the (yet-to-be-determined) federal external review process.
  • Participant notices and summary plan descriptions will need to be updated to include the new required information. Associated costs, if any, to comply with the Interim Final Rule should be estimated.
  • Sponsors of grandfathered group health plans should also review the Interim Final Rule for its likely implications if the plans lose their grandfathered status.

Sources: Milliman, Zywave - Content © 2010 Zywave, Inc

For More Information
For more information about this ACA Pathways or about any other health care reform-related provisions, please contact your Burnham Benefits consultant or Burnham Benefits at:

Burnham Benefits

This ACA Pathways is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

The information contained in this ACA Pathways includes emerging health care news from a limited perspective and does not encompass all views. The information was selected from a wide range of sources selected on the basis of their potential impact on employers and/or their employee benefit plans. For more information, please contact Burnham Benefits.

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