:: Claims Appeals – The New Order Of Affairs For ERISA Plans (Part I)

As Tennyson said, “the old order changeth, yielding place to new”, and so it is in claims appeals after the PPACA. This is one of several segments on the claims appeals and review process for health plans after the new legislation.

In this segment, let’s look at the appeal process. Before the PPACA, ERISA only mandated internal review. Regulations on that process were promulgated.

Nothing is lost here in the new law. PHS Act section 2719 provides that plans and issuers must initially incorporate the internal claims and appeals processes set forth in 29 CFR 2560.503–1.

So much for the old order. Now what about the new?

Under the new law, the plan must give notice in a “culturally and linguistically appropriate manner” of claim denial and appeal processes. (Is that different than the old standard of “written in a manner calculated to be understood by the average plan participant”?)

Furthermore, the plan must provide information on available internal and external appeals processes. And the plan must allow participants to “review their file”. The whole file it would seem – but what in fact is the file? That should provide fodder for the litigation mill for quite a while.

But there is more. The participant must be allowed to present evidence and testimony as part of the appeals process. Evidence from what quarter? Does this speak implicitly to discovery rights or would that be reading too much into the new law?

In any event, here’s the kicker – coverage continues pending outcome of appeal. I will have more to say about that later. For now, let’s take some time to absorb the fact that the PPACA has altered the old order and replaced it with something, and something that appears quite new.