The insurer missed its own deadline to decide my appeal. What can I do?
On ERISA and ACA plans, a plan that fails to follow its own claims procedure, including the decision deadlines, is treated as having exhausted the internal process, which lets you go straight to external review or court without waiting further. Write to the plan that the deadline has passed, that you deem the appeal exhausted, and file the external review.
What to do, in order
- Step 1
Fix the date
Count from the day the plan received your appeal: 30 days for a pre-service appeal, 60 days for a post-service appeal on an employer plan; 72 hours if urgent. Insured plans often have shorter state limits. Keep the proof of when they received it.
- Step 2
Send the deemed-exhaustion letter
State the date received, the deadline that applied, that no decision was issued, and that under the plan's claims procedure you deem the internal appeal exhausted and are proceeding to external review. Ask for the claim file.
- Step 3
File external review
Use the plan's external review process (federal or state, named in your denial notice). An untimely internal decision is not a bar; the external reviewer takes the case on the record.
- Step 4
Medicare Advantage is different
If the plan misses its reconsideration deadline it must forward the case to the independent review entity automatically. If it has not, ask in writing that it do so today.
The deadline that applies
Plan decision deadlines: 72 hours urgent, 30 days pre-service, 60 days post-service (29 CFR 2560.503-1(i)); ACA plans the same (45 CFR 147.136). Deemed exhaustion is in 29 CFR 2560.503-1(l); for ACA-covered plans a minor, non-prejudicial violation does not trigger it (45 CFR 147.136(b)(2)(ii)(F)). External review must be requested within four months of the final internal decision, or of the date the internal process was deemed exhausted. The notice controls.
Calculate your date →Documents to gather
- Your appeal and proof of the date the plan received it
- Any acknowledgement or extension notice from the plan
- Your deemed-exhaustion letter
- The external review request
Go deeper
Related questions
Can the plan take an extension?
One extension is allowed on initial claims if the plan tells you in advance why and when. There is no extension on appeals except for multi-employer plans with quarterly committees.
What if the plan decides late, after I filed external review?
The external review continues. A late denial does not restart the clock.
Does this apply to self-funded plans?
Yes. ERISA governs both insured and self-funded employer plans; only governmental and church plans are outside it.
Sources
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