Research · 12 min read
What a Plan Has to Put in Writing, and How to Get It
Every guide tells you to check your plan documents. Almost none of them tell you that a federal statute makes the administrator hand them over on written request, or what the clock on that request is.
Key takeaways
- A plan's summary must state the circumstances that may result in denial or loss of benefits, which is where a medication category exclusion belongs.
- Where the summary gives only a general description, it must point at detailed schedules of benefits available without cost to any participant who asks.
- On written request, a covered plan's administrator must furnish the summary plan description and the other instruments under which the plan is operated.
- Missing that request by more than 30 days can expose the administrator to a discretionary daily liability, unless the failure was beyond its control.
- After an adverse decision, the claims regulation entitles you free of charge to all documents relevant to the claim, and it defines relevant to include policy statements about the denied benefit for your diagnosis.
- None of it is universal: the claims regulation names its own scope, governmental and most church plans sit outside the statute, and the parallel rule generally exempts grandfathered plans.
Answer first: the exclusion has to be written down, and you can demand the writing
If your employer plan will not pay for a medication, the reason sits in a document. Federal law says which document, what it has to contain, and how you get a copy.
The summary plan description is the first one. It must be written in a manner calculated to be understood by the average plan participant. It must also be sufficiently accurate and comprehensive to reasonably apprise participants of their rights and obligations under the plan.
Its required contents include the item that decides most medication questions. The description must state the circumstances which may result in disqualification, ineligibility, or denial or loss of benefits.
A category the plan will not pay for is such a circumstance. It belongs in that document, and it is usually not on the drug list.
The second right is the one people never use. On written request, the administrator must furnish a copy of the latest updated summary plan description and the other instruments under which the plan is established or operated.
There is a clock attached, and a consequence for missing it. Both are described further down.
What the summary plan description has to contain
The statute lists the contents, and the implementing regulation expands the list considerably. Three entries matter for a medication question.
The first is the loss-of-benefits clause. The regulation requires a statement of the circumstances which may result in disqualification, ineligibility, or denial, loss, forfeiture, suspension, offset, reduction, or recovery. It covers any benefit a participant might otherwise reasonably expect the plan to provide.
The second is the escape hatch that tells you where the real detail lives. For a plan with extensive schedules of benefits, only a general description is required, provided the document refers to detailed schedules which are available without cost to any participant or beneficiary who so requests.
Read that as an instruction. If your summary is vague about drug coverage, the detailed schedule it points at is a document you can ask for at no charge.
The third is the claims entry. The description must cover the procedures governing claims for benefits, including procedures for obtaining preauthorizations, approvals, or utilization review decisions, the applicable time limits, and the remedies available for the redress of denied claims.
That entry is why a prior authorization requirement is not supposed to be a surprise. It is a plan procedure, and the plan is supposed to have described it to you.
The document is allowed to be older than you think
One line in the regulation explains a mismatch people run into constantly.
The summary plan description must accurately reflect the contents of the plan as of a date not earlier than 120 days prior to the date it is disclosed.
So the document in your hands can lawfully describe the plan as it stood some months before you received it. It is a summary with a built-in lag.
That is one reason a summary and a current drug list can disagree without either being wrong. They are answering as of different dates.
When the difference matters, ask for the current schedule of benefits rather than relying on the summary. The summary itself points you there.
Separately, a summary of any material modification must be furnished when the plan changes, in the same understandable style.
The written request, and the clock on it
The furnishing duty is short and specific. On written request of any participant or beneficiary, the administrator shall furnish a copy of the latest updated summary plan description. The same duty covers the latest annual report, any terminal report, and the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.
The last phrase is the useful one. Other instruments under which the plan is operated is broader than a summary, and it is the language to use in the request.
The administrator may make a reasonable charge to cover the cost of furnishing complete copies, and the statute lets the Secretary cap what counts as reasonable.
The clock lives in a different section. Suppose an administrator fails or refuses to comply with a request for information the statute requires it to furnish. If it does not mail the material to the requester within 30 days, a court may in its discretion hold the administrator personally liable to that participant for a daily amount. The court may also order such other relief as it deems proper.
Two details in that sentence are easy to miss. The liability is discretionary rather than automatic, and it does not apply where the failure results from matters reasonably beyond the administrator's control.
Send the request in writing, date it, keep a copy, and say plainly which documents you are asking for. A dated written request is what starts the clock a court would look at.
After a denial, a second and wider right opens
The claims regulation adds a right that reaches further than the plan documents, and it attaches once a decision has gone against you.
A notice of an adverse benefit determination must include a specific statement. The claimant is entitled to receive, on request and free of charge, reasonable access to and copies of all documents, records, and other information relevant to the claim.
The same entitlement is repeated as a condition of a full and fair review on appeal. Free of charge is in the regulation's own words, both times.
The word doing the work is relevant, and the regulation defines it rather than leaving it to the plan. Four categories qualify.
Anything relied upon in making the determination. Anything submitted, considered, or generated in the course of making it, whether or not it was relied upon. Anything demonstrating compliance with the plan's required administrative processes and safeguards.
And the fourth, which is the one worth asking for by name. For a group health plan, a statement of policy or guidance concerning the denied treatment option or benefit for the claimant's diagnosis, whether or not it was relied upon.
That last category is how the written criteria behind a decision become obtainable. They are a statement of policy concerning the denied benefit for your diagnosis, whether or not the reviewer opened them.
What an adverse benefit determination actually covers
The right above only opens if what happened to you counts as an adverse benefit determination, and the definition is wider than a denial letter.
It means a denial, reduction, or termination of a benefit, or a failure to provide or make payment for one, in whole or in part.
It expressly includes a decision based on a determination of eligibility to participate in the plan. For a group health plan it also covers a denial, reduction, termination or failure to pay resulting from the application of any utilization review.
Prior authorization and step requirements are utilization review. A decision produced by one is inside the definition.
The definition also covers a failure to cover an item or service for which benefits are otherwise provided because it is determined to be experimental, investigational, or not medically necessary or appropriate.
A partial payment counts as well, since the words are in whole or in part. A reduction is not a lesser event that falls outside the rules.
Whose plans these rules reach, read to the end
None of this is universal, and a guide that implies otherwise is setting you up for a conversation that goes nowhere.
The claims regulation states its own scope. Its requirements apply to every employee benefit plan described in the statute's coverage section and not exempted under that section's list of exclusions.
That excludes governmental plans and most church plans, for the reasons set out in the companion guide on which rules reach your plan. It also has nothing to say about a policy you bought for yourself outside employment.
A parallel federal rule sets internal claims and appeals and external review requirements for group health plans and health insurance issuers, which is the route by which individually purchased coverage picks up similar protections.
That rule carries its own limit, and it is quoted here because it is the kind of clause people skip. Its provisions generally do not apply to coverage offered by issuers and group health plans that are grandfathered health plans. The external review requirements do reach them, for a narrow set of items and services.
Establish which regime your coverage sits in before you quote any of this at anyone. The answer changes which document you are entitled to and which office has to produce it.
How to write the request
Keep it short, dated, and specific about the documents rather than the argument.
Ask for the latest updated summary plan description, and for the other instruments under which the plan is established or operated, using that phrasing.
Ask separately for the detailed schedule of benefits that the summary refers to, noting that the summary says it is available without cost on request.
If a decision has already gone against you, ask in the same letter for all documents, records, and other information relevant to the claim. Name the statement of policy or guidance concerning the denied benefit for your diagnosis.
Say where to send it and keep proof of what you sent and when. The 30-day period and the daily liability both hang on the date of the request.
None of this is legal advice, and a request letter is not an appeal. Where the money or the medication justifies it, someone qualified to advise on employee benefit plans is the right next call.
Sources
- 29 U.S.C. 1022 — Summary plan descriptionSubsection (a), requiring that the summary plan description be written in a manner calculated to be understood by the average plan participant and be sufficiently accurate and comprehensive to reasonably apprise participants and beneficiaries of their rights and obligations under the plan, and requiring a summary of any material modification to be furnished in the same style. Subsection (b), the statutory contents list, including the entry this article turns on, circumstances which may result in disqualification, ineligibility, or denial or loss of benefits, and the entry covering the procedures to be followed in presenting claims for benefits and the remedies available under the plan for the redress of denied claims. Fetched at the URL cited and verified against a same-run control on the same host: a fabricated title-29 section returned HTTP 200 but resolved to the database's document-not-found page at a small fraction of the size, containing none of the quoted text.
- 29 CFR 2520.102-3 — Contents of summary plan descriptionThe 120-day rule in the introductory paragraph, requiring the summary to accurately reflect the contents of the plan as of a date not earlier than 120 days prior to disclosure. Paragraph (j)(2), permitting only a general description of benefits for a welfare plan with extensive schedules, such as a group health plan, provided reference is made to detailed schedules of benefits which are available without cost to any participant or beneficiary who so requests. Paragraph (l), the expanded loss-of-benefits statement covering disqualification, ineligibility, denial, loss, forfeiture, suspension, offset, reduction, or recovery of any benefits a participant might otherwise reasonably expect the plan to provide. And paragraph (s), covering the procedures governing claims for benefits, including procedures for obtaining preauthorizations, approvals, or utilization review decisions, applicable time limits, and remedies available for redress of denied claims. The URL cited is the EFFECTIVE URL: the short section path was silently repaired by the host into the subtitle, chapter, subchapter, part and subpart path shown. Verified against a same-run control at the same path depth, which returned the host's not-found page and none of the quoted text.
- 29 U.S.C. 1024 — Filing with Secretary and furnishing information to participantsSubsection (b)(4), the furnishing duty this article rests on: on written request of any participant or beneficiary, the administrator shall furnish a copy of the latest updated summary plan description, the latest annual report, any terminal report, and the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated, and may make a reasonable charge to cover the cost of furnishing complete copies. Also subsection (b)(2), the separate duty to make those documents available for examination in the principal office of the administrator. Verified against a same-run control on the same host, which resolved to the document-not-found page.
- 29 U.S.C. 1132 — Civil enforcementSubsection (c)(1)(B), which supplies the clock and the consequence described here: an administrator who fails or refuses to comply with a request for any information the subchapter requires it to furnish to a participant or beneficiary, by mailing the material to the requester's last known address within 30 days after the request, may in the court's discretion be personally liable to that participant or beneficiary in a stated amount per day, and the court may order such other relief as it deems proper. The per-day figure is stated in the statute and is deliberately omitted from this article's prose. The same clause carries the qualification relied on here, that the liability does not attach where the failure or refusal results from matters reasonably beyond the control of the administrator. Verified against a same-run control on the same host, which resolved to the document-not-found page.
- 29 CFR 2560.503-1 — Claims procedureParagraph (a), which states the regulation's own scope and is quoted in the article rather than assumed: except as otherwise specifically provided, its requirements apply to every employee benefit plan described in section 4(a) and not exempted under section 4(b) of the Act. Paragraph (g)(1), requiring an adverse benefit determination notice to state that the claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of all documents, records, and other information relevant to the claim. Paragraph (h)(2)(iii), repeating that entitlement as a condition of a full and fair review. Paragraph (m)(4), defining adverse benefit determination to include a denial, reduction, or termination of, or a failure to provide or make payment for, a benefit in whole or in part, including one based on eligibility to participate and, for a group health plan, one resulting from the application of any utilization review, as well as a failure to cover an item or service determined to be experimental or investigational or not medically necessary or appropriate. And paragraph (m)(8), the four-part definition of relevant, whose fourth category is a statement of policy or guidance with respect to the plan concerning the denied treatment option or benefit for the claimant's diagnosis, without regard to whether it was relied upon. The URL cited is the EFFECTIVE URL after the host repaired the short section path. Verified against a same-run control at the same path depth, which returned the host's not-found page.
- 45 CFR 147.136 — Internal claims and appeals and external review processesParagraph (a)(1)(i), establishing that this is the rule setting internal claims and appeals and external review requirements for group health plans and health insurance issuers, which is how individually purchased coverage picks up comparable protections. And paragraph (a)(1)(ii), the limiting clause quoted in the article: the provisions of the section generally do not apply to coverage offered by health insurance issuers and group health plans that are grandfathered health plans, although the external review requirements and their related notice requirements do apply to grandfathered coverage for adverse benefit determinations involving a narrow set of out-of-network emergency, nonparticipating-provider and air ambulance items and services. That exception is stated here because the article would otherwise imply a broader right than the rule gives. The URL cited is the EFFECTIVE URL after path repair; verified against a same-run control at the same path depth, which returned the host's not-found page.
Frequently asked questions
Where is a plan's exclusion of a medication category actually written down?
In the plan's own governing documents, and the summary plan description is required to describe it. The statute lists the circumstances which may result in disqualification, ineligibility, or denial or loss of benefits among the summary's required contents. The implementing regulation expands that to disqualification, ineligibility, denial, loss, forfeiture, suspension, offset, reduction, or recovery of any benefit a participant might reasonably expect. A category exclusion is such a circumstance. It is often not on the drug list at all, which is why the list can look inconclusive.
Can I make my plan give me the documents, or do I have to ask nicely?
For a covered employee benefit plan, the administrator must furnish them on written request. The statute names the latest updated summary plan description, the latest annual report, any terminal report, and the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may charge a reasonable copying cost. Where the administrator fails to mail the requested material within 30 days, a court may in its discretion hold it personally liable to the requester for a daily amount. That liability does not attach where the failure resulted from matters reasonably beyond its control.
Can I get the actual criteria my request was judged against?
After a decision goes against you, yes, in the ordinary case. The claims regulation entitles a claimant, on request and free of charge, to reasonable access to and copies of all documents, records, and other information relevant to the claim. It then defines relevant. One of the four categories is a statement of policy or guidance concerning the denied treatment option or benefit for the claimant's diagnosis, whether or not it was relied upon. Written criteria fit that description. Ask for them using that language rather than asking for the criteria in general terms.
The pharmacy rejected my fill but no letter came. Does any of this apply yet?
It depends on whether a benefit determination was actually made. The regulation defines an adverse benefit determination as a denial, reduction, or termination of a benefit, or a failure to provide or make payment for one, in whole or in part. It expressly includes decisions produced by utilization review, such as prior authorization. A rejection at the counter is often a message about a requirement rather than a completed decision, which is covered in the companion guide on reading a denial. Establishing which one happened tells you whether the document rights above are open to you yet.
Does the summary plan description have to be current?
It has to be accurate as of a date not earlier than 120 days before it is disclosed, which is not the same as current. The regulation permits that lag on purpose. A summary and a live drug list can therefore disagree without either being incorrect, because they are describing the plan as of different dates. When the difference matters, ask for the detailed schedule of benefits the summary refers to, which the regulation says must be available without cost to any participant who requests it.
Do these rights apply to a policy I bought myself?
Not through the employee benefit statute, which reaches employer and employee-organization plans. The claims regulation says so in its own scope paragraph: it applies to plans described in the statute's coverage section and not exempted under that section. A separate federal rule sets internal claims and appeals and external review requirements for group health plans and health insurance issuers, and that is the route by which individually purchased coverage picks up comparable protections. That rule states that its provisions generally do not apply to grandfathered health plans, with a narrow exception for external review of certain items and services.