Filing a grievance after health care services have been denied by your health care service plan (“Plan”) starts with your Plan’s internal grievance process. Further review is afforded by the California Department of Managed Health Care, or in certain cases, by Independent Medical Review Organizations. Finally, there is a limited right to sue your Plan in Court. Your rights in each of these three successive stages are dependent, to some extent, on your full participation in the preceding stage, so it is important that you review all of the following information.
Step 1: Your Plan’s Grievance Procedure:
Before you are entitled to further review of your dispute with your health care service plan (“plan”), you must complete the plan’s internal grievance review process or participate in that process for 30 days. (But see Exception to 30 Day Plan Review Requirement). Although this might seem like a waste of time, you must do it to preserve your right to review by the Department of Managed Health Care (“Department”), your right to Independent Medical Review, and your limited right to sue the plan in court.
The Plan Grievance System:Your plan must maintain a grievance system and provide forms for enrollees who wish to register grievances. The plan must respond to your grievance in writing, clearly stating the reasons for their response. For grievances involving the denial, delay, or modification of health care services, the response must describe the criteria and clinical reasons for the decision, including those concerning medical necessity. If the plan’s decision is based on a finding that the proposed health care services are not covered, the decision must identify the exact contract provision under which those services are excluded from coverage.
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Generally, the plan must resolve your grievance within 30 days of receipt. If your grievance involves an imminent and serious threat to your health, such as severe pain, potential loss of life, limb, or major bodily function, or other similar serious conditions, you are entitled to expedited review. In such cases, you have the right to notify the Department of your grievance, and the plan must notify both you and the Department of the disposition, or pending status, of your grievance within 3 days of receipt.
Getting the Disputed Treatment Now: You do not necessarily need to wait for the plan review process, Department review, or Independent Medical Review before seeking the disputed services outside of your plan network. Subject to certain limitations described in Step 2A: Corrective Orders and Step 2B: Corrective Orders, if your plan refuses to reimburse you for the reasonable expense of such services in resolving your grievance, and you prevail on review by the Department of Managed Health Care or Independent Medical Review (see Steps 2A, 2B), the Department must order the reimbursement of such costs.
Exception to 30 Day Plan Review Requirement: In cases where your grievance involves an imminent and serious threat to your health, such as severe pain, potential loss of life, limb, or major bodily function, or other similar serious conditions, you have a right to submit the grievance to the Department for review without completing the Plan review process. See Steps 2A, 2B. If you believe that you are entitled to early Department review under this exception, you should submit the grievance to the Department with a request for early review on this basis at the same time as your submit your grievance to the Plan.
Experimental or Investigational Therapies: Your plan must maintain an external review process to examine coverage decisions regarding experimental or investigational therapies for you if you meet all of five criteria: (1) you have a life threatening or seriously debilitating condition; (2) your physician certifies that standard therapies have been ineffective, would be medically inappropriate, or are not as beneficial as proposed therapies; (3) a physician contracted with your plan has recommended a drug, device, or procedure and certified it is more beneficial than standard therapies OR a qualified physician not contracted with your plan has requested such a therapy, and certified it is likely to be more beneficial, supported by medical and scientific documentary evidence; (4) you have been denied coverage by your plan for the recommended therapy; AND (5) you would be covered for the therapy under your plan except for the plan’s determination that said therapy is experimental or investigational. Your plan’s decision to delay, deny, or modify such therapies is subject to the Independent Medical Review process. See Step 2B.
Step 2A: Review by California’s Department of Managed Health Care:
After your plan’s grievance process has been completed, or your grievance has been pending for 30 days, whichever is sooner, you are entitled to submit your grievance to the Department for review. If your grievance involves an imminent and serious threat to your health such as severe pain, potential loss of life, limb, or major bodily function, or other similar serious conditions, you do not need to wait for completion of the plan’s grievance process, or for the 30 day period, but may submit the grievance to the Department with a request for early review at the same time as your submit your grievance to the Plan. Department review and resolution of your grievance is available prior to any arbitration under your plan provisions. With few exceptions, you must participate in this Department Review process to preserve your limited right to sue your plan in court. (see Step 3).
The Department Review Process: The Department will review the written documents which you submit with your request for review, and may request additional information or hold an informal meeting with the parties involved. If the Department determines from the record that your grievance is eligible for review under the Independent Medical Review system (See Step 2B), you will be immediately notified, and if you request, the Department will assist you in participating in that review system.
Timing and Contents of Notice of Decision: The Department must send you written notice of their disposition of your grievance within 30 calendar days, unless additional time is reasonably necessary to fully and fairly evaluate your grievance. The notice must include the reasons for the decision; a discussion of contacts with any medical provider or other expert, their views, and qualifications; and if your grievance is sustained, even only in part, any corrective orders.
Corrective Orders: If the Department finds that your Plan denied, delayed, or modified health care services that are both medically necessary and covered under your plan, the Department must either (a) order the Plan to “promptly” offer and provide those health care services to you or (b) order the plan to reimburse you for the reasonable costs for urgent care, emergency services, or other “extraordinary and compelling” health care services, where your decision to secure those services outside the Plan network was reasonable under the circumstances.
Voluntary Mediation: In addition to your right of review by the Department, if both you and the Plan agree, you may mediate your grievance. Mediation expenses are shared equally by you and the plan.
Step 2B: The Department’s Independent Medical Review System:
The Independent Medical Review System is available anytime your Plan denies, delays, or modifies health care services that are eligible for coverage and payment under your Plan contract, based in whole or in part on a finding that the services are not medically necessary. With few exceptions, you must participate in the Independent Medical Review process to preserve your limited right to sue your Plan in court. (see Step 3 below).
Independent Medical Review (“IMR”) is not available until you have completed, or participated for 30 days in your Plan’s grievance procedure (See Step 1). In the case of an “imminent and serious threat to health”, such as severe pain, potential loss of life, limb, or major bodily function, or other similar serious conditions, you are not required to participate in the Plan’s grievance process for more than 3 days. Only in “extraordinary and compelling” cases, the Department may waive the requirement of plan review if it finds you have acted reasonably in not participating in that review.
What is Independent Medical Review?: IMR is conducted by an in-state medical review organization that is independent of any health care service plan doing business in this State. That organization, and all of its officers, directors, employees, and contracted experts must have no professional, familial, or financial affiliation with your Plan; your Plan’s officers, directors, employees; or any physician, physician’s medical group, or independent practice association involved in the dispute. IMR is limited to consideration of medical necessity issues and does not consider coverage decisions or other contractual issues. Coverage/contract aspects are reviewed by the Department. (Step 2A).
Criteria for Independent Medical Review:In addition to mandatory participation in the Plan grievance review process, you may apply for Independent Medical Review only if:
- Your health care provider has recommended a health care service as medically necessary OR; you have received urgent or emergency care that your provider determined was medically necessary OR; you have been seen by an in-plan provider for the diagnosis or treatment of the medical condition for which you seek independent medical review (without the requirement that the in-plan provider recommend the disputed health care service); AND,
- The disputed health care service has been denied, delayed, or modified by your Plan or one of its contracting providers, based on whole or in part on a decision that the services were not medically necessary.
Time to Apply for Review: You must apply for independent medical review within 6 months of when the disputed service was recommended, when you saw the in-plan provider, when the service was denied, delayed, or modified, the date the disputed decision was upheld by Plan grievance review, or the last date of participation in the Plan grievance process, whichever is latest. The 6 month period can be extended by the director of the Department if the circumstances warrant it.
The Application Process: When your Plan provides a notice of decision after a grievance review that denies, modifies, or delays health care services, the Plan must provide you with an approved application form for Independent Medical Review, and a consent form for you to sign that allows the Plan to obtain the medical records necessary for the review (including from out-of-plan providers). There are no application or processing fees.
The Department shall review your request for Independent Medical Review expeditiously and immediately notify you if your request has been approved, or if not, the reasons for that decision. If your request is not approved, your request will be treated as an immediate request for Department review. (Step 2A above).
After the Plan receives notice from the Department of your application for IMR, the Plan must provide within 3 days (or within 1 day in the case of an “imminent and serious” threat to health) all relevant medical records, documents, and information in its possession or its contracting providers’ possession. The plan must send you an annotated list of documents submitted and offer you the opportunity to request copies.
You also have the right to supplement your application, directly or through your provider, with information or documentation that the disputed health care service is or was necessary.
The Notice of Decision: To the “maximum extent practicable”, the review organization must make a written determination, in lay-person’s language, within 30 days of receipt of the application and supporting documentation. If the disputed service has not been provided and your provider or the Department certifies there is an “imminent and serious threat to health”, including serious pain, potential loss of life, limb, or major bodily function, or immediate and serious deterioration of your health, the organization must expedite review and render a decision within 3 days. These deadlines may be extended by the director of the Department for good cause.
Corrective Orders: The director of the Department must adopt the IMR organization’s decision, and promptly issue a written decision. Your plan must immediately contact you and offer promptly to implement that decision. If the disputed services were determined medically necessary and you have already secured those services outside the plan network, the Director of the Department shall order the plan to reimburse you for the reasonable costs of those services, where the services were covered under your plan and your decision to secure those services outside the plan network before completing the review was reasonable under the circumstances.
Are Medi-Cal and Medicare Beneficiaries Entitled to IMR?: Medi-Cal beneficiaries are expressly entitled to participate in the IMR process. Medicare beneficiaries are also entitled to participate, unless or until federal law expressly preempts their participation.
Step 3: Your Limited Right to Sue
For health care services rendered on or after January 1, 2001, your plan has a duty of ordinary care to arrange for the provision of all medically necessary health care services covered under your plan and your plan is liable for all harm legally caused by the failure to exercise that ordinary care when both:
- The failure to exercise ordinary care resulted in the denial, delay, or modification of the health care service recommended for, or furnished to you, AND;
- You suffered substantial harm, meaning loss of life, loss or significant impairment of limb or bodily function, significant disfigurement, severe and chronic physical pain, or significant financial loss.
With few exceptions, you must exhaust your rights to review by the Department (Step 2A) and by an Independent Medical Review organization (Step 2B) before you can exercise this limited right to sue.
Department Review and Independent Medical Review as Pre-Requisites: You cannot exercise this right to sue with a personal injury lawyer without first exhausting your rights to Department Review or Independent Medical Review, as described in Steps 2A and 2B, EXCEPT where substantial harm has occurred, or will imminently occur, prior to the completion of the applicable review process(es). Substantial harm is defined as loss of life, loss or significant impairment of limb or bodily function, significant disfigurement, severe and chronic physical pain, or significant financial loss.
Industry Challenges to this Right to Sue: It is unclear whether this limited right to sue will be upheld and enforced by the Courts.