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June 10, 2005
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2005-16A
ERISA Sec. 503
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Dr. Gary W. Conant, D.C.
Conant Chiropractic Clinic
15364 S. Telegraph Road 503
Monroe, MI 48161-4070
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Dear Dr. Conant:
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This is in response to your request for an advisory
opinion from the Department of Labor (Department) regarding the claims
procedure regulation under Title I of the Employee Retirement Income
Security Act of 1974 (ERISA). Your inquiry concerned the requirement in 29
C.F.R. § 2560.503-1(h)(3)(iii) that a named fiduciary deciding an appeal
of a health benefits claim that was denied, in whole or in part, based on
medical judgment must consult with a “health care professional” who
has appropriate training and experience in the field of medicine involved
in the medical judgment. You asked in particular for the view of the
Department on whether the definition of “health care professional” in
29 C.F.R. § 2560.503-1(m)(7) requires the physician or other health care
professional to be licensed either in the State where the claimant
received the health benefit services or in the State where the claimant
resides in order to perform the consultation.
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Your correspondence includes the following facts and representations. You
are a chiropractor whose practice is in Michigan. Several of your patients
are participants in a self-funded group health plan sponsored by their
employer in Michigan. Post-service claims for the chiropractic services were
submitted to the plan’s third-party claims administrator (TPA) located in
Texas. The claims were denied in whole or in part by the plan. The adverse
benefit determinations were appealed in accordance with the plan’s claims
procedures and the denials of the claims were upheld on appeal. You
requested, and the plan’s TPA provided, the names of the chiropractors
that were consulted as part of the appeals process. You represent that the
chiropractors that performed the medical reviews were not licensed in the
State of Michigan.
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Pursuant to section 503 of ERISA, employee benefit plans
covered by Title I must establish and maintain reasonable procedures
governing the filing of benefit claims, notification of benefit
determinations, and appeal of adverse benefit determinations. The Department
issued a final regulation on November 21, 2000, that amended and updated the
minimum requirements for employee benefit plan claims procedures under
section 503 of ERISA.(1) The final
regulation established special rules for group health plans and plans
providing disability benefits. Of particular relevance to your inquiry,
subsection 2560.503-1 (h)(3)(iii) of the regulation establishes a special
rule for appeals of adverse benefit determinations involving medical issues.
Specifically, in the case of group health plans, the appropriate named
fiduciary deciding an appeal of an adverse benefit determination based in
whole or in part on a medical judgment, including determinations with regard
to whether a particular treatment, drug, or other item is experimental,
investigational, or not medically necessary or appropriate, must consult
with a “health care professional” who has appropriate training and
experience in the field of medicine involved in the medical judgment.
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“Health care professionals” that may be engaged to provide the required
medical consultation are defined in subsection 2560.503-1(m)(7) of the
claims procedure regulation as a “physician or other health care
professional licensed, accredited, or certified to perform specified health
services consistent with State law.” Subsection 2560.503-1(h)(3)(v)
further provides that the health care professional engaged for purposes of
such consultation shall be an individual who is neither an individual who
was consulted in connection with the adverse benefit determination that is
the subject of the appeal, nor the subordinate of any such individual.(2)
This requirement of consultation is intended to ensure that the
fiduciary deciding a claim involving medical issues is adequately informed
as to those issues.
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You indicated that the chiropractors consulted by the
plan were not licensed, accredited, or certified to perform chiropractic
services in Michigan. We will assume for purposes of this opinion that
each chiropractor was licensed, accredited, or certified to perform
chiropractic services in another State.(3)
We will also assume that the plan in question is an “employee
welfare benefit plan” covered by ERISA and that the adverse benefit
determinations in issue are group health claims.
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As a general matter, Title I of ERISA affords plans substantial discretion
in structuring and administering their benefit plans so long as ERISA’s
statutory and regulatory requirements are met. It is the view of the
Department that nothing in 29 C.F.R. § 2560.503-1(h)(3)(iii) requires that
the health care professional consulted by the plan’s named fiduciary in
deciding an appeal of a health claim that was denied based on a medical
judgment be licensed, accredited, or certified in the State where the
services were rendered or in the State where the claimant resides. Rather,
in the Department's view, the regulation's condition is satisfied if the
person so consulted by the named fiduciary is a physician or other health
care professional with appropriate training and experience in the field of
medicine involved in the medical judgment, and that person is licensed,
accredited or certified to perform specified health services in any State.
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We note that 29 C.F.R. § 2560.503-1 establishes minimum
requirements for benefit claims procedures of employee benefit plans covered
under Title I of ERISA. This letter should not be read as expressing any
view on any issues that might arise from state law requirements applicable
to an insurance company or other organization providing benefits under an
ERISA-covered plan pursuant to an insurance contract or policy. In that
regard, subsection (k) of 29 C.F.R. § 2560.503-1 states that “[n]othing
in [the claims procedure regulation] shall be construed to supersede any
provision of State law that regulates insurance, except to the extent that
such law prevents the application of a requirement of this section.”
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This letter constitutes an advisory opinion under ERISA Procedure 76-1 and,
accordingly, it is issued subject to the provisions of that procedure,
including section 10 thereof relating to the effect of advisory opinions.
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Sincerely,
John J. Canary
Chief, Division of Coverage, Reporting and Disclosure
Office of Regulations and Interpretations
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The final rule is effective with
respect to benefit claims filed on or after January 1, 2002, under all
plans other than group health plans. For claims filed under a group
health plan, the final rule is effective beginning on the first day of
the first plan year that begins on or after July 1, 2002, but in no
event later than January 1, 2003.
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The regulation also requires that
the claims procedures for group health plans must provide for the
identification, when requested by a claimant in connection with an
adverse benefit determination, of any medical or vocational experts
whose advice was obtained on behalf of the plan in connection with an
adverse benefit determination, without regard to whether the advice
was relied upon in making the determination. See 29 C.F.R. §
2560.503-1(h)(3) (iv).
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Section 3(10) of ERISA defines the
term “State” for purposes of Title I to include the fifty States,
the District of Columbia, and certain territories of the United
States.
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