Why ERISA controls your appeal
The Employee Retirement Income Security Act of 1974 ("ERISA") governs nearly every employer-sponsored health benefit plan in the private sector. The statute's claims-procedure mandate sits at 29 USC § 1133, which requires every employee benefit plan to "provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied" and to "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim." Those two phrases - adequate notice and full and fair review - are the entire architecture of ERISA appeals. The Department of Labor implements them in detail at 29 CFR § 2560.503-1.
ERISA matters because it preempts most state insurance law for self-funded plans (see Aetna Health Inc. v. Davila, 542 U.S. 200 (2004)), removes jury trials, and limits damages in benefit disputes to the value of the benefit itself plus, in some cases, attorney's fees under 29 USC § 1132(g). There are no compensatory or punitive damages available against an ERISA plan for a wrongful benefit denial. Knowing this changes how you fight: the goal of an ERISA appeal is not to scare the plan into a settlement; it is to build a record that will force the plan to pay or, failing that, force a federal judge to order the plan to pay.
Step 1: Confirm you have an ERISA plan and request the documents
Before you write a single word of appeal, send a written request for the documents you are entitled to under 29 USC § 1024(b)(4) and 29 CFR § 2560.503-1(m)(8). Specifically, ask for (1) the full plan document and Summary Plan Description, (2) every internal rule, guideline, protocol, or criterion the plan relied on to deny the claim, (3) the identity, credentials, and specialty of every medical reviewer, (4) the claim file, and (5) any agreement with a third-party administrator or utilization-management vendor relevant to the denial. The plan administrator must produce these materials free of charge. If they refuse or stall past 30 days, the statute authorizes a penalty of up to $110 per day for failure to produce plan documents on request - see 29 USC § 1132(c)(1) and 29 CFR § 2575.502c-1.
Step 2: Calendar the 180-day appeal deadline
29 CFR § 2560.503-1(h)(3)(i) requires every group health plan to give the claimant at least 180 days from receipt of the adverse benefit determination to file an internal appeal. The plan may grant longer; almost none do. Treat the 180th day as if it were a court deadline. Mail the appeal via USPS Certified Mail with Return Receipt and keep the green card. Most insurers will accept fax or portal upload too; when you have the option, do both - certified mail proves the date, portal upload guarantees the document was logged.
Step 3: Read the denial against 29 CFR § 2560.503-1(g)
Section 2560.503-1(g) lists what the denial letter itself must contain. If any of the following is missing, the denial is procedurally defective and that defect alone is an appeal argument:
- The specific reasons for the denial.
- Reference to the specific plan provisions on which the determination is based.
- A description of any additional material or information needed to perfect the claim.
- A description of the plan's review procedures, the time limits, and a statement of the right to bring civil action under 29 USC § 1132(a) following an adverse determination on review.
- For denials based on medical necessity or experimental treatment, a statement that an explanation of the scientific or clinical judgment will be provided free of charge upon request.
- The internal rule, guideline, or protocol relied upon, or a statement that one was relied upon and will be provided free of charge on request.
Procedural defects are powerful. The Department of Labor's regulation at 29 CFR § 2560.503-1(l)(2) provides that if a plan fails to follow the claims procedures, the claimant is deemed to have exhausted administrative remedies and may proceed straight to court, where the de novo standard of review (rather than the deferential arbitrary-and-capricious standard) applies.
Step 4: Build the record like you are already in court
Federal courts review ERISA benefit denials almost exclusively on the administrative record - meaning the documents the plan considered when it issued the final adverse determination. Evidence you discover later usually cannot be added. Front-load everything:
- Treating physician's letter of medical necessity. See our medical necessity letter guide for a template.
- All relevant office notes, imaging reports, lab results, hospital discharge summaries, and prior treatment history.
- Peer-reviewed literature supporting the requested treatment for your specific condition. Cite the PubMed ID and quote the relevant finding.
- Specialty-society guidelines (NCCN, AHA/ACC, AAN, ASCO, ACOG, APA).
- The plan's own published medical-coverage policy, if any, with the eligibility criteria highlighted and your facts mapped to each criterion.
- Any prior authorization correspondence, peer-to-peer review notes, and the credentials of the plan reviewer who issued the denial.
Step 5: Hit the plan's response deadline
29 CFR § 2560.503-1(i) sets the maximum response times for group health plans on appeal:
- Pre-service claims: 30 days from receipt of the appeal.
- Post-service claims: 60 days from receipt.
- Urgent care claims: as soon as possible, no later than 72 hours.
- Concurrent care reductions: before the treatment ends.
If the plan blows the deadline, it has not satisfied 29 USC § 1133's "full and fair review" requirement. The DOL regulation at 29 CFR § 2560.503-1(l) deems administrative remedies exhausted, and your next stop is either external review or federal court.
Step 6: External review under the ACA (if internal appeal fails)
After internal appeals are exhausted (or deemed exhausted), non-grandfathered ERISA plans must offer external review under 42 USC § 300gg-19, implemented at 29 CFR § 2590.715-2719. Self-insured plans typically use the federal external review process administered through one of three accredited Independent Review Organizations contracted by HHS. The IRO's decision is binding on the plan. See our external review and IRO guide for detailed mechanics.
Common ERISA appeal mistakes
- Treating the appeal like a customer service complaint. Plans owe a fiduciary duty under 29 USC § 1104. Frame the appeal as a demand that the fiduciary follow the plan terms - not a request for sympathy.
- Missing the 180-day deadline. A late appeal is almost always fatal. There is no equitable extension absent extraordinary circumstances.
- Not requesting the claim file. The denial letter rarely tells you who reviewed your case, what guideline they applied, or why. The claim file does.
- Submitting evidence piecemeal. Once the final adverse determination issues, the record closes. Send everything with the appeal.
- Missing the same-specialty review demand. 29 CFR § 2560.503-1(h)(3)(iii) requires the plan to consult a health-care professional with appropriate training and experience in the relevant field. Demand same-specialty review in writing.
Sample appeal opening paragraph
"This letter is a formal appeal under 29 USC § 1133 and 29 CFR § 2560.503-1 of the adverse benefit determination dated [DATE] denying coverage for [SERVICE/CPT CODE]. The denial is contrary to the plan terms, was issued without the same-specialty review required by 29 CFR § 2560.503-1(h)(3)(iii), and is not supported by the medical evidence in the claim file. Pursuant to 29 CFR § 2560.503-1(m)(8), I hereby request, free of charge, copies of all documents, records, and other information relevant to this claim, including any internal rule, guideline, protocol, or other similar criterion that was relied upon in making this determination."
When to hire an ERISA attorney
Counterclaim drafts the internal appeal; an ERISA attorney litigates when the plan refuses to fix it. Talk to one if the disputed coverage exceeds roughly $25,000, the denial involves a transplant, complex oncology, or experimental designation, or you have already lost external review. Many ERISA plaintiff attorneys take cases on contingency or under the fee-shifting provision at 29 USC § 1132(g).
Frequently asked questions
Do I have an ERISA-governed plan?
If your health insurance comes from a private-sector employer (not a church and not a state, county, or municipal government), it is almost certainly ERISA-governed. Look at the Summary Plan Description (SPD); it is required by 29 USC § 1022 to identify the plan administrator and ERISA status. Self-funded employer plans are governed by ERISA but are exempt from state insurance regulation; fully-insured employer plans are also ERISA plans, but state insurance law applies to the underlying policy.
How long do I have to file an internal ERISA appeal?
29 CFR § 2560.503-1(h)(3)(i) gives claimants at least 180 days from receipt of an adverse benefit determination to file an appeal of a group health plan denial. The plan can give you longer; it cannot give you less. Calendar the deadline immediately and mail the appeal certified.
How fast does the plan have to decide?
Under 29 CFR § 2560.503-1(i): pre-service denials get a decision within 30 days of appeal; post-service denials within 60 days; concurrent care denials before the treatment ends; urgent care appeals within 72 hours. Plans that miss these deadlines lose the deference courts otherwise give them, and you are deemed to have exhausted administrative remedies under 29 CFR § 2560.503-1(l).
What is the 'administrative record' and why does it matter?
In ERISA litigation under 29 USC § 1132(a)(1)(B), federal courts almost always limit review to the documents that were in front of the plan when it made the final decision. That means evidence you forgot to include in your internal appeal can be excluded forever. Front-load every record, statute, study, and physician letter into the internal appeal stage.
Am I entitled to copies of the plan documents and claim file?
Yes. Under 29 CFR § 2560.503-1(h)(2)(iii) and (m)(8), you can request, free of charge, all documents 'relevant' to the claim, including the SPD, the full plan document, internal medical guidelines used to deny the claim, and the names and credentials of every reviewer. Send a written request before you file the appeal.
Can I sue if the appeal is denied?
Yes, after exhausting internal appeals you can sue the plan in federal court under 29 USC § 1132(a)(1)(B) to recover benefits. The standard of review is usually deferential ('arbitrary and capricious') if the plan grants the administrator discretion - so the strength of your internal appeal record is decisive. Most attorneys will require completion of internal appeals before filing.
Does ACA external review apply to ERISA plans?
Yes for non-grandfathered plans. The ACA, codified at 42 USC § 300gg-19 and implemented at 29 CFR § 2590.715-2719, requires non-grandfathered group health plans (including self-funded ERISA plans) to offer either a state-based or federal external review process after internal appeals are exhausted.
What if my appeal involves urgent care?
29 CFR § 2560.503-1(f)(2)(i) defines an urgent care claim as one where the standard timeframe could seriously jeopardize life, health, or the ability to regain maximum function, or where in the opinion of a physician with knowledge of the condition the claimant would be subjected to severe pain. Urgent claims are decided within 72 hours and can be filed orally; back them up in writing the same day.
See also: external review and IRO mechanics, medical necessity letters, medical-necessity denials (CO-50), and your state's appeal rules at /appeal/state/[your state].