(a) The grievance and appeal system. Each MCO, PIHP, and PAHP must have a grievance and appeal system in place for enrollees. Non-emergency medical transportation PAHPs, as defined in § 438.9, are not subject to this subpart F. For grievances and appeals at the plan level, an applicable integrated plan as defined in § 422.561 of this chapter is not subject to this subpart F, and is instead subject to the requirements of §§ 422.629 through 422.634 of this chapter. For appeals of integrated reconsiderations, applicable integrated plans are subject to § 438.408(f).
(b) Level of appeals. Each MCO, PIHP, and PAHP may have only one level of appeal for enrollees.
(c) Filing requirements—(1) Authority to file. (i) An enrollee may file a grievance and request an appeal with the MCO, PIHP, or PAHP. An enrollee may request a State fair hearing after receiving notice under § 438.408 that the adverse benefit determination is upheld.
(A) Deemed exhaustion of appeals processes. In the case of an MCO, PIHP, or PAHP that fails to adhere to the notice and timing requirements in § 438.408, the enrollee is deemed to have exhausted the MCO's, PIHP's, or PAHP's appeals process. The enrollee may initiate a State fair hearing.
(B) External medical review. The State may offer and arrange for an external medical review if the following conditions are met.
(1) The review must be at the enrollee's option and must not be required before or used as a deterrent to proceeding to the State fair hearing.
(2) The review must be independent of both the State and MCO, PIHP, or PAHP.
(3) The review must be offered without any cost to the enrollee.
(4) The review must not extend any of the timeframes specified in § 438.408 and must not disrupt the continuation of benefits in § 438.420.
(ii) If State law permits and with the written consent of the enrollee, a provider or an authorized representative may request an appeal or file a grievance, or request a State fair hearing, on behalf of an enrollee. When the term “enrollee” is used throughout subpart F of this part, it includes providers and authorized representatives consistent with this paragraph, with the exception that providers cannot request continuation of benefits as specified in § 438.420(b)(5).
(2) Timing—(i) Grievance. An enrollee may file a grievance with the MCO, PIHP, or PAHP at any time.
(ii) Appeal. Following receipt of a notification of an adverse benefit determination by an MCO, PIHP, or PAHP, an enrollee has 60 calendar days from the date on the adverse benefit determination notice in which to file a request for an appeal to the managed care plan.
(3) Procedures—(i) Grievance. The enrollee may file a grievance either orally or in writing and, as determined by the State, either with the State or with the MCO, PIHP, or PAHP.
(ii) Appeal. The enrollee may request an appeal either orally or in writing.
[81 FR 27853, May 6, 2016, as amended at 84 FR 15844, Apr. 16, 2019; 85 FR 72842, Nov. 13, 2020]
Notes of Decisions
Shakhnes Ex Rel. Shakhnes v. Eggleston, 740 F. Supp. 2d 602 (S.D.N.Y. 2010).
“See 42 C.F.R. § 438.402 (requiring that MCOs have "a system in place for enrollees that includes a grievance process, an appeal process, and access to the State's fair hearing system”).”
Kasten v. Saint-Gobain Performance Plastics Corp., 585 F.3d 310 (7th Cir. 2009).
· cites it 2× “402(b)(3) (specifying that certain managed care entities and insurance plans must have grievance procedures that permit enrollee to "file a grievance either orally or in writing" and to "file an appeal either orally or in writing"); cf.”
Bellin v. Zucker (S.D.N.Y. 2020).
· cites it 2× “” 42 C.F.R. § 438.402 (c) (emphasis added).”
IHC Health Servs. v. Eureka Casino Hotel Health Plan (D. Utah 2020).
“2 Less relevant to this motion, the provision also provides that the consent is intended to meet the requirements of 42 CFR § 438.402 (c)(ii), which addresses a healthcare provider’s authority to file a grievance or appeal on behalf of an enrollee after an adverse benefit…”
Forloine v. Persily (S.D.W. Va 2023).
“Plaintiff appealed within Aetna’s appeals system (pursuant to 42 C.F.R. § 438.402 (a)) and was denied again on January 17, 2023.”
Forloine v. Persily (S.D.W. Va 2023).
“Plaintiff appealed within Aetna’s appeals system (pursuant to 42 C.F.R. § 438.402 (a)) and was denied again on January 17, 2023.”
G.R., Etc. v. Molina Healthcare of Florida, Inc. (Fla. 3d DCA 2026).
“See 42 C.F.R. § 438.402 (c)(2)(ii) (“Following receipt of a notification of an adverse benefit determination by an MCO, PIHP, or PAHP, an enrollee has 60 calendar days from the date on the adverse benefit determination notice in which to file a request for an appeal to the…”
Kevin Kasten v. Saint-Gobain Performance Plast (7th Cir. 2009).
“402(b)(3) (specifying that certain managed care entities and insurance plans must have grievance procedures that permit enrollee to “file a griev- ance either orally or in writing” and to “file an appeal either orally or in writing”); cf.”
— 42 C.F.R. § 438.402(b)(3) — 2 cases
Kasten v. Saint-Gobain Performance Plastics Corp., 585 F.3d 310 (7th Cir. 2009).
“402(b)(3) (specifying that certain managed care entities and insurance plans must have grievance procedures that permit enrollee to "file a grievance either orally or in writing" and to "file an appeal either orally or in writing"); cf.”
Kevin Kasten v. Saint-Gobain Performance Plast (7th Cir. 2009).
“402(b)(3) (specifying that certain managed care entities and insurance plans must have grievance procedures that permit enrollee to “file a griev- ance either orally or in writing” and to “file an appeal either orally or in writing”); cf.”
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