The Affordable Care Act and External Medical Appeals: One Step Forward, Two Steps Back?

By Monica Fawzy Bryant

Midwest Regional Director, Cancer Legal Resource Center

When the Patient Protection and Affordable Care Act (ACA) was signed on March 23, 2010, it included provisions that would strengthen a consumer’s right to appeal a health insurance company’s decision.  Insurance companies were now going to be required to implement an effective internal appeals process and abide by a more standardized external appeals process based on the National Association of Insurance Commissioner’s (NAIC) Uniform Model Act.  These types of decisions that were going to be appealable would include: a claim denial based on the fact that a drug was being used for an off-label purpose or if a treatment was considered experimental.

On June 23, 2011, the U.S. Department of Health and Human Services issued the final rules on external medical review that some see as a two steps back from the intent in the ACA with respect to the scope of decisions that could be appealed.  For any claim that has not been initiated before September 20, 2011, new rules will apply.

The new rules narrow the scope of the types of claims that can be appealed.  Now only claims that involve medical judgment or a rescission of coverage can be appealed.  This means that patients will not be able to appeal when the dispute is based on mistakes involving billing coding or disagreements about if the patient should be allowed to see a specialist outside of the network.  However, the medical judgment standard can be broad.  For example, the HHS rules describe the following as instances when external medical review of an adverse benefit determination based on medical judgment such as:

  • Inpatient vs. outpatient care,
  • Treatment by a specialist,
  • A plan’s general exclusion of an item or service (e.g., mental health services),
  • The frequency, method, or treatment or setting for a recommended preventative service, etc.

Other changes to the appeals process included changing the time frame for plans and issuers to make determinations from 24 hours to 72 hours in urgent care cases and shortened the time period for patient to file a complaint to two months from four.

Only time will tell if these changes will significantly impact patients’ ability to appeal adverse insurance determinations.

What do you think?

Leave a comment


  1. I love the approach in which you have related this particular topic. Very helpful.
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