What to do
Ask whether your plan is subject to ERISA, in writing
Your benefits office or plan administrator can answer this in one line, and the answer changes which of these pages applies to you. Ask for it in writing rather than on a call, because you may need to show it later.
Look at who sponsors the plan
A private employer, generally yes. A state or local government, a public university, a school district, generally no. A church or church-affiliated employer, usually not unless they elected in. Something you bought yourself on the marketplace, no.
Check what your plan documents call themselves
A summary plan description is an ERISA term of art, and a booklet that describes itself that way and lists ERISA rights is a strong signal. So is a statement of ERISA rights near the back.
Note that fully insured and self-funded are a different question
Both can be ERISA plans. Self-funded versus insured decides whether state insurance law reaches your plan; ERISA decides your remedies and your process. People conflate them constantly.
What it is not
It is not a list of covered benefits. There is no ERISA rule saying a plan must cover gender-affirming surgery, or anything else. It does not define medical necessity, it does not set clinical criteria, and it will not tell you whether your denial was right.
It is not a protection you can invoke against a bad decision on the merits. What it gives you is process, and process is genuinely useful, but people arrive expecting a coverage rule and leave disappointed.
It is also not the reason your care was denied, even when a plan says the word at you. ERISA governs how the decision is made and reviewed, not what it may be.
What it actually gives you
The federal claims-procedure regulation at 29 CFR 2560.503-1 requires every covered plan to establish and maintain reasonable claims procedures. That is where the parts you can use come from.
- A written decision that gives the specific reason and references the plan provisions it relies on.
- At least 180 days to file an internal appeal, counted from when you received the notice.
- The right to request, free of charge, the documents, records, internal rules, guidelines and clinical criteria used in your case.
- A review that is not conducted by the person who made the first decision, or by their subordinate.
- Consultation with an appropriate health professional where the denial turned on medical judgment.
- Deemed exhaustion when the plan does not follow its own required process, which lets you move on rather than waiting.
The trade it makes
Where ERISA applies, it generally displaces state law claims about your benefits. That sounds neutral and is not: state law is where the larger remedies live.
Under ERISA the recovery is usually the value of the denied benefit and not much more. Typically no damages for what the delay did to you, often no jury, review frequently limited to the record the plan already assembled, and a standard of review that can require you to show the decision was unreasonable rather than merely wrong.
Outside it, state insurance law can offer wider remedies, a jury, full discovery, and a court that reads the plan language fresh. This is why plan type is the first question on this site and not a technicality.
The exemption almost nobody knows about
The claims regulation applies to every employee benefit plan described in section 4(a) of the Act and not exempted under section 4(b). Governmental plans are in that exemption. If your employer is a state or local government, a public university, or a school district, your plan is generally outside ERISA entirely.
People read that as having fewer protections. It is usually the opposite. Federal health-insurance requirements still reach these plans through the Public Health Service Act, so the appeal framework, parity and surprise-billing protections generally still apply. What changes is that ERISA is not preempting your state's law, so state remedies are available and a state court reading the plan afresh becomes possible.
There is a real catch, and it is on the separate page about these plans: self-funded government employer plans have historically been able to opt out of certain federal requirements, and an external review process is the one most likely to be missing. Find out early which is true of yours.
How to tell, quickly
Private employer, either self-funded or insured: ERISA applies. Government employer: generally not. Church employer: usually not unless they elected in. Bought it yourself on the marketplace or direct from an insurer: not an employer plan at all, so state insurance law governs. Medicaid or Medicare: different systems with their own appeal routes.
If you are not sure, the plan-type page for each of these says what changes, and the answer from your benefits office settles it.
Common questions
- Does ERISA mean my plan has to cover gender-affirming care?
- No. ERISA does not define covered benefits at all. Whether your care is covered comes from your plan document, from any state mandate that reaches your plan, and from federal nondiscrimination law where it applies. ERISA governs the process, not the coverage.
- My plan says it is not subject to ERISA. Is that bad?
- Usually not, and often better. It generally means a government or church employer, and for a government employer it means state law is not preempted, which widens the remedies available. Check whether your plan has a working external review process, because that is the piece most likely to be missing.
- Does ERISA give me the right to see the criteria they used?
- Yes. The claims-procedure regulation requires plans to provide, free of charge, the documents and records relevant to your claim, including internal rules, guidelines and clinical criteria relied on. Ask for them in writing and specifically by name.
- Is self-funded the same as ERISA?
- No, and this is the most common confusion here. Self-funded means your employer pays claims from its own money rather than buying insurance, which decides whether state insurance law reaches the plan. ERISA is about who the sponsor is. A fully insured private employer plan is an ERISA plan; a self-funded county plan is not.
Better covered elsewhere
- 29 CFR 2560.503-1, the ERISA claims procedure regulation
The actual text, read directly for this page. The 180-day appeal window and the right to the plan's own criteria are both here.
Where to go next
Sources for the legal points on this page
- The ACA appeal framework: internal appeal, then binding external review
Federal — non-grandfathered group health plans and issuers · effective in force
29 CFR 2590.715-2719 — (b)(2)(ii)(B) urgent-care 72 hours, (b)(2)(ii)(F)(1) deemed exhaustion, (c)(2)(xi) state external review binding, (d)(2)(i) four-month federal external review window, (d)(2)(iv) immediate coverage on reversal; 29 CFR 2560.503-1 — (c)(2) no more than two appeals before civil action, (h)(3)(i) 180 days from receipt, (h)(3)(ii) independent reviewer, (h)(3)(iii) health professional on medical judgment
Status: settled · source-checked 2026-08-06 · primary source verified: 2026-08-06
- Self-funded state and local government plans may opt out of some federal requirements
Federal — self-funded non-Federal governmental plans (state, county, city, school district) · effective in force; parity opt-out sunset 2022-12-29
45 CFR 146.180 — (a)(1) requirements subject to exemption, (a)(2) general rule, (a)(3) parity opt-out sunset, (a)(7)(ii) stop-loss regulated as insurance means no opt-out, (b) election must be filed with CMS with an enrollee notice
Status: settled · source-checked 2026-08-06 · primary source verified: 2026-08-06
Also on this page, without a citation yet
- The statutory definitions. The definition of a governmental plan and the exemption itself live in the Act rather than in the regulations, and this page describes them without having read that statutory text directly. The regulation quoted below WAS read directly, and it carries the exemption hook. If the answer matters to your case, confirm your plan's status with your benefits office in writing.
- That church plans are exempt unless they elect otherwise. This is the general rule and the election makes it plan-specific, so it is a question for your plan administrator rather than something this page can answer for you.
These are specific and checkable and we have not yet checked them against a primary source. Treat them as a starting point rather than as settled, and do not put them in an appeal without confirming them.