Summer 2015: What your clients need to know about health insurance

By Jenifer Bosco, Esq.

While there are many contenders for the title of “most complicated legal scheme,” health insurance might be near the top.  But knowing about a few basic health insurance protections and pitfalls could make life a bit easier for you and your clients.

The Office of Patient Protection, or OPP, is available as a resource for the public. OPP operates within the Massachusetts Health Policy Commission (HPC), an independent state agency that develops policy to reduce health care cost growth, improve the quality of patient care and protect access to care. OPP handles two types of health insurance consumer protections – open enrollment waivers, and commercial health insurance appeals.

Getting covered and staying covered:  health insurance enrollment rules

Many of us have health insurance which is offered by our employers. Others have insurance from various “public payers” such as Medicare, TRICARE, or MassHealth. Those who do not have insurance through these sources may instead buy their own health insurance from the Massachusetts Health Connector, an insurance company, or an insurance broker. This type of insurance purchased directly by an individual or family may be called “individual” or “non-group” insurance.

When buying insurance directly from the Health Connector or an insurance company, open enrollment rules and other eligibility rules apply. Under Massachusetts and federal laws,1 our open enrollment period during 2014-2015 began during November 2014, and ended during Feburary 2015. Enrollment is currently closed. The next open enrollment period will run from November 1, 2015 through January 31, 2016. Remember, this open enrollment period only applies to those who want to buy their own non-group insurance coverage, not to employer-sponsored health insurance, MassHealth, insurance being purchased for certain small businesses, or other types of insurance.

Most Massachusetts consumers must buy and enroll in insurance during the open enrollment periods, within 60 days of losing their prior health insurance, or within 60 days of being found newly eligible for subsidized ConnectorCare health insurance.2  If a client is losing health insurance as the result of a job change or a divorce, he or she will need to apply to buy new insurance within 60 days of the termination date of their former insurance. This 60-day window is a “special enrollment period.”3

In some instances, applicants who missed the open enrollment period or missed the 60-day special enrollment window might qualify for a waiver of the open enrollment period if they meet certain criteria.  The applicant would first need to apply to buy insurance, and receive a denial from the Health Connector, broker or insurer which states that the applicant has missed the open enrollment period and does not have a special enrollment period.  The Office of Patient Protection reviews waiver requests and typically grants open enrollment waivers to individuals and families who:

  • Are uninsured and did not intentionally forgo enrollment in health insurance, or
  • Lost insurance coverage but did not find out until more than 60 days had passed
If the applicant is eligible for a waiver, The Office of Patient Protection will send a waiver approval letter within 30 days.4  More information and the waiver application are available at www.mass.gov/hpc/opp.

Making the most of your insurance coverage:  health insurance appeal rights

Under Massachusetts law,5 health care consumers have the right to appeal certain decisions by their health plans. These consumer protection laws apply to individuals with “fully-insured” commercial Massachusetts health plans.6 Consumers with other types of health plans, including self-funded7 plans, MassHealth, or Medicare, have different appeal rights under other state or federal laws. The following discussion applies to Massachusetts fully-insured commercial health plans.

Step 1: Internal Review

When an insurer informs a consumer that the health plan will not pay for or cover the consumer’s medical or behavioral health treatment, the consumer may appeal that decision by first contacting the health plan. This first appeal, often called a member grievance, triggers an internal review by the health plan. The consumer may seek an expedited internal review for urgent matters. Otherwise, the health plan will respond to the consumer within 30 days unless both parties agree, in writing, to an extension.8  The health plan may uphold the original decision, or it may change its decision and cover all or part of the insured’s treatment. In more than one-third of recent cases reported to OPP, the health insurance company resolved the internal review either fully or partially in favor of the consumer.9

Step 2: External Review

If a consumer pursues an internal review and the health plan upholds its initial decision, the consumer may have the right to a second appeal known as external review. External review is available when the health plan decided that the treatment or service at issue was not “medically necessary10.” Under Massachusetts law, a health plan is required to pay for treatments or services that are both covered benefits under the plan and are medically necessary.11

The request for an external review must be filed with OPP within four months of the date when the patient or the patient’s representative received the final adverse determination letter.  If the case is eligible for review, OPP will assign the matter to an independent medical expert who has been screened to avoid any conflict of interest.  The patient may ask for an expedited review or a standard review. An expedited review is available when a patient’s doctor or health care provider certifies that there is an urgent medical need.  OPP’s medical reviewers must issue a decision in an expedited case within 72 hours. Otherwise, the decision will be issued on the standard review timeline, within 45 days.12

If a patient is in the midst of a hospitalization or other ongoing medical treatment, then the patient may also request continuation of coverage.  OPP’s medical reviewers consider these requests for continuation of coverage, and if granted then the insurance company will continue to pay for treatment during the course of the external review, regardless of the outcome.  Any patient who wants to request continuation of coverage through OPP must do so right away, within two business days of receiving the final adverse determination.13

The medical reviewer will decide whether treatment is medically necessary, and issues a written decision to all parties.  If the reviewer determines that treatment is in fact medically necessary, then the insurance company must pay for the treatment. This decision is final and binding,14  though other legal rights outside of OPP’s external review process may be available.

OPP staff is often asked if it is worthwhile to appeal.  While each case is different, as noted above more than one-third of all internal review requests generally have been decided fully or partly in favor of the patient.  Similarly, nearly half of external review cases have been resolved either fully or partially in favor of the patient.15

Information and Assistance

OPP serves as a resource for members of the public with questions about health insurance appeals and enrollment waivers. While OPP does not represent individual consumers, consumer education and assistance are available through our hotline, at 800-436-7757. Telephone translation services are provided for callers who speak non-English languages. OPP also provides information about health insurance appeals, enrollment waivers, and other health-related resources on our website at www.mass.gov/hpc/opp, where consumers can find relevant forms in English and Spanish, instructions for pursuing an external review or requesting an enrollment waiver, and a list of government and other resources to assist with matters related to health care.

1
  See  45 C.F.R. § 147.104(b); M.G.L. c. 176J.
2
  For more information about ConnectorCare eligibility or other qualifying events, visit the Health Connector website at MAhealthconnector.org. See also 956 CMR 12.00.
3
  See, 45 CFR 155.420; Massachusetts Division of Insurance Bulletin 2014-11 (Nov. 25, 2014).
4
  See 958 CMR 4.000.
5
  M.G.L. c. 176O, §§13-14
6  
A fully-insured health insurance plan is a plan purchased by an individual, a family, an employer, or another entity. The purchaser of the health insurance plan pays premiums to the insurance company, and the insurance company then pays the claims for health care services. Fully-insured plans can be regulated by the state government.
7
  Under a self-funded or self-insured health insurance plan, the employer or other plan sponsor pays the costs for the members’ health care directly instead of paying premiums to buy a traditional health insurance plan.  Usually, an insurance company is hired to act as a third-party administrator to administer benefits and handle claims paperwork.  Most self-funded plans which are sponsored by private employers cannot be regulated by the state, due to federal ERISA pre-emption.  See 29 U.S.C. §1144(b)(2)(B).
8
  See 958 CMR 3.300-3.314.
9 
See Office of Patient Protection 2013 Annual Report (Nov. 2014), available at www.mass.gov/hpc/opp.
10 
Under Massachusetts regulations at 958 CMR 3.020, medical necessity is defined as follows:
Medical Necessity or Medically Necessary means health care services that are consistent with generally accepted principles of professional medical practice as determined by whether the service:
(a) is the most appropriate available supply or level of service for the insured in question
considering potential benefits and harms to the individual;
(b) is known to be effective, based on scientific evidence, professional standards and expert
opinion, in improving health outcomes; or
(c) for services and interventions not in widespread use, is based on scientific evidence.
11  M.G.L. c. 176O, §16(b).
12  M.G.L. c. 176O, §14.
13 
958 CMR 3.414.
14
  M.G.L. c. 176O, §14(c)&(e).
15 
See Office of Patient Protection 2013 Annual Report (Nov. 2014), available at www.mass.gov/hpc/opp.


Jenifer Bosco is the HPC’s Director of the Office of Patient Protection. The Office of Patient Protection (OPP) safeguards the rights of health insurance consumers by regulating the internal grievance process and administering external reviews for consumers with fully-insured Massachusetts health plans, administering health insurance enrollment waivers, and providing information and education about health insurance concerns to the public. Prior to joining HPC, Ms. Bosco worked on behalf of individuals in non-profit organizations and in government. As an attorney at Health Law Advocates, she directed the organization's Mental Health Parity Initiative. Ms. Bosco represented economically disadvantaged clients as a legal aid attorney with the Massachusetts Law Reform Institute and Merrimack Valley Legal Services, and she previously served as an Assistant Attorney General in the Fair Labor Division.  She received her undergraduate degree from Boston College and a juris doctorate from the Georgetown University Law Center.