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Maryland Health Benefit Exchange: Individual Appeals of Eligibility Determinations

Maryland Health Benefit Exchange: Individual Appeals of Eligibility Determinations Karen Rohrbaugh, AAG October 29, 2013. Reasonable Compatibility. Reasonable Compatibility Methods, 42 C.F.R. § 435.952.

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Maryland Health Benefit Exchange: Individual Appeals of Eligibility Determinations

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  1. Maryland Health Benefit Exchange:Individual Appeals of Eligibility Determinations Karen Rohrbaugh, AAG October 29, 2013

  2. Reasonable Compatibility

  3. Reasonable Compatibility Methods, 42 C.F.R. § 435.952 There are three ways to determine whether what an applicant attests to is reasonably compatible with the data from electronic data sources: • simple income comparison • detailed income comparison • reasonable explanation • Medicaid only

  4. Simple Income Comparison • If both the attested and electronic income are above the applicable income standard, the individual is income ineligible • If both the attested and electronic income are at or below the applicable income standard, then the individual is determined to be eligible • If the attestation is above the Medicaid standard and the electronic income is below the Medicaid standard, the applicant is ineligible for Medicaid but may still be eligible for an APTC/CSR

  5. Detailed Income Comparison

  6. Reasonable Explanation • For Medicaid only, there are times when the attested information will be accepted, without additional verification, if the applicant provides a reasonable explanation, such as: • employment was seasonal • recent unemployment • The Medicaid Verification Plan is located at: http://www.medicaid.gov/AffordableCareAct/Medicaid-Moving-Forward-2014/Eligibility-Verification-Policies/Downloads/Maryland-Verification-Plan-Template-FINAL.pdf

  7. Inconsistencies, 45 C.F.R. § 155.315(f) • If the information on the application – e.g., residency, income, citizenship status – is still not reasonably compatible with the data from the electronic data sources, or the electronic data is not available, the applicant is notified that the information cannot be verified • MHBE will then contact the applicant to confirm the accuracy of the information submitted and attempt to identify and resolve the cause of the inconsistency

  8. Inconsistency Period,45 C.F.R. § 155.315(f) • If those efforts to resolve the inconsistency are unsuccessful, MHBE will provide notice to the applicant of the inconsistency • The applicant has 90 days to either present satisfactory documentation or otherwise resolve the inconsistency • The 90 day period may be extended if the applicant demonstrates that a good faith effort has been made to obtain the required documentation

  9. Inconsistency Period, 45 C.F.R. § 155.315(f) • During this Inconsistency Period, MHBE gives the applicant the benefit of the doubt and determines eligibility based on the information provided by the applicant • An APTC will only be provided if the applicant attests that he or she understands that the APTC is subject to reconciliation. • Upon the expiration of the Inconsistency Period, if the applicant’s information cannot be verified, MHBE must: • determine the applicant’s eligibility based on the info from the data sources • send the applicant an eligibility determination indicating that MHBE is unable to verify the attestation.

  10. Reasonable Compatibility Flow

  11. Eligibility Determinations

  12. Eligibility Determinations, 45 C.F.R. § 155.515 and Interim Procedure .04(A) • All eligibility determinations include: • a statement of the action MHBE intends to take • the specific laws or regulations that support the action • an explanation of the applicant’s appeal rights, and a description of the procedures to request an appeal • information on the applicant’s right to be represented by legal counsel or to designate an authorized representative • an explanation of the circumstances under which the appellant's eligibility may be maintained or reinstated pending the appeal decision • an explanation that an appeal decision for one household member may result in a change in eligibility for other household members, resulting in a redetermination of eligibility for the affected members

  13. Medicaid Eligibility Determinations,Interim Procedure .04(B) • Pursuant to Medicaid rules, determinations involving Medicaid must also: • include an explanation of the circumstances under which assistance is continued if a fair hearing is requested • to the extent required by law, state that expenses incurred in connection with a fair hearing, such as transportation and baby-sitting costs, shall be paid by DHMH when incurred by the appellant and may be paid when incurred by the appellant's witnesses

  14. Redeterminations,45 C.F.R. §§ 155.330 and 155.335 • In addition to initial eligibility determinations, MHBE will also issue redeterminations • Redeterminations will be done: • annually • during the year for changes in circumstances • Enrollees are required to report changes in eligibility factors to MHBE within 30 days • This is particularly important for individuals who are receiving APTC (due to the IRS reconciliation) • Periodic data searches are conducted to confirm continued eligibility • Inconsistency Period applies to redeterminations as well

  15. Appeals

  16. Right to Appeal • Section 1411(f) of the ACA guarantees individuals the right to appeal an eligibility determination • 45 C.F.R. § 155.535(c) and the Interim Procedures require MHBE to give an appellant an evidentiary hearing • MHBE is delegating these appeals of individual eligibility determinations to OAH pursuant to: • 45 C.F.R. §§ 155.505(c)(1) and 155.110(a) • Ins. § 31-106(a) and (b) • State Govt. § 10-205(a)(1)(ii) • Intergovernmental Cooperation Act of 1968

  17. Bases of Appeal, 45 C.F.R. §§ 155.505(b) and155.520(b) and Interim Procedures .03(A) and .05(D) An appellant has 90 days to appeal on the basis that: • there has been an incorrect determination or redetermination of eligibility e.g.: • enrollment in a QHP • eligibility for Medicaid/MCHP Premium • eligibility for APTC/CSR • MHBE failed to provide timely notice of an eligibility determination or redetermination

  18. Bases of Appeal, 45 C.F.R. § 155.505(b)(cont.) • Other bases of appeals are being designated to HHS: • Individual exemptions from the minimum essential coverage requirement • Appeals from an employer as to whether it provides its employee with minimum essential coverage that is affordable

  19. Acknowledgement of Appeal, 45 C.F.R. § 155.520(d)(1) and Interim Procedures .05(B) and .11(A) • MHBE will send a daily report to OAH notifying it of new (valid) appeals • OAH will send an acknowledgement to appellant that also includes: • information regarding the appellant’s eligibility while the appeal is pending • that any APTCs are subject to reconciliation • an FTI Release form

  20. Federal Tax Information (“FTI”) • One of the items accessed by HIX in making eligibility determinations is FTI • The IRS has very strict guidelines about access to and disclosure of FTI • IRS Publication 1075 • Under the IRS’ policy, even saying that information was verified with FTI or through the IRS constitutes a disclosure of FTI • No FTI will be viewed by a human being unless an appeal is filed, and then only if a release is signed by all adult members of the household

  21. FTI Release • Along with the acknowledgement notice, an FTI Release will be sent to the appellant • The IRS prohibits anyone from seeing FTI unless: • an appeal is filed • an FTI release is signed by each adult member of the household • Effects of a signed release: • A member of MHBE’s Appeals & Grievances Unit will be able to access the FTI used by HIX solely for the purpose of attempting to resolve the appeal • The FTI can be shared with the appellant • The information can be disclosed to OAH • If the appellant and/or any adult household member(s) refuse to sign the release(s), the FTI used by HIX cannot be viewed by MHBE staff, the appellant, or OAH, and it will not be introduced at the hearing

  22. Eligibility Pending Appeal, 45 C.F.R. § 155.525 and Interim Procedures .11 and .12 • There is no eligibility pending appeal for initial determinations • On redetermination: • Enrollment in a QHP: eligible pending appeal • Medicaid/MCHP Premium: eligible pending appeal • APTC/CSR: the appellant can accept eligibility pending appeal at the level of eligibility immediately prior to the redetermination

  23. Postponements, Interim Procedure .05(C) • If the time or location of a hearing is inconvenient, an ALJ shall designate another time or place convenient to the parties if the moving party has sufficient reason for requesting the change • If the appellant is employed during the periods when fair hearings are normally held, the ALJ shall attempt to schedule the hearing so that the appellant will not be required to miss employment

  24. Hearing Logistics • At least initially, MHBE’s hearings will be added to existing Medicaid dockets • Hearings will be held at local DSS offices (existing Medicaid hearing locations) • In the future, hearings are also expected to be held at the six regional Connector Entity locations • Central: HealthCare Access Maryland • 201 N. Charles Street, 7th Floor, Baltimore • Capital: Montgomery County Department of Health • 401 Hungerford Drive, 5th Floor, Rockville • Southern: Calvert Healthcare Solutions • 234 Merrimac Court, Prince Frederick

  25. Hearing Logistics • Lower Eastern Shore: Worcester County Health Department in Snow Hill • 424 West Market Street, Snow Hill • 6040 Public Landing Road, Snow Hill • Upper Eastern Shore: Seedco, Inc., in Elkton • 216 E. Pulaski Highway, Elkton • Western: The Door to Healthcare Western Maryland in Columbia • 7178 Columbia Gateway Drive, Columbia • 8930 Stanford Boulevard, Columbia

  26. Six Connector Entity Regions

  27. MHBE’s Appeal Representatives • Initially, each appeal hearing will be attended by two State representatives: • A caseworker from a local office of either the Health Department or the Department of Social Services • A member of MHBE’s Appeals & Grievances Unit • Tamara Cannida-Gunter, Manager of the Appeals & Grievances Unit • Nicole Edge, Appeals & Grievances Coordinator • Wonda Oliver, Appeals & Grievances Coordinator • Lashona Rahman, Appeals & Grievances Coordinator

  28. Authorized Representatives, 45 C.F.R. § 155.227 and Interim Procedure .14 Authorized representatives: • are allowed to act on an individual’s behalf during the application, redetermination, and/or appeal, or in carrying out other on-going communications with MHBE • can be authorized to handle all matters with MHBE, or just certain designated functions • must be designated in a signed written document or recorded electronically through the CSC • Other forms of legally binding documentation, such as a power of attorney, are also valid • must maintain the confidentiality of any information provided by MHBE

  29. Authorized Representatives, 45 C.F.R. § 155.227 and Interim Procedure .14 • are responsible for fulfilling all of the functions for which he or she is authorized, to the same extent as the applicant • must comply with applicable State and federal laws concerning conflicts of interest and confidentiality of information • An authorization remains valid until MHBE is notified of its termination

  30. Informal Resolution, 45 C.F.R. § 155.535(a) • MHBE or its partner agencies will contact the appellant in an attempt to resolve the matters that are on appeal • This is in addition to the efforts during the inconsistency period • MHBE’s Appeals & Grievances Unit will monitor the status of informal resolution attempts • The appellant’s right to a hearing is preserved if the appellant remains dissatisfied after the informal resolution process • If the appeal does proceed to hearing, the appellant will not be asked to provide any duplicative information or documentation that he or she previously provided during the application or inconsistency process

  31. Dismissals, 45 C.F.R. § 155.530 An appeal must be dismissed by OAH if the appellant: • Withdraws the appeal request in writing • Fails to appear at a scheduling hearing without good cause • Fails to submit a valid appeal request • Dies while the appeal is pending • Except for Medicaid, when retroactive benefits are available

  32. Dismissals, 45 C.F.R. § 155.530 (cont.) • Timely written notice of a dismissal must be sent by OAH to the appellant, including: • the reason for the dismissal • an explanation of the dismissal's effect on the appellant's eligibility • an explanation of how the appellant may show good cause why the dismissal should be vacated • A dismissal mustbe vacated by OAH, and the appeal allowed to proceed, when the appellant makes a written request within 30 days of the notice of dismissal showing good cause why the dismissal should be vacated • If the request is denied, timely written notice of the denial of the request to vacate must be sent to the appellant

  33. Appeal Record, 45 C.F.R. §§ 155.500 and 155.550 • “Appeal record” means: • the appeal decision • all papers filed in the proceeding • if a hearing was held, the transcript or recording of the hearing testimony • any exhibits introduced at the hearing • If requested, an appellant must have access to the appeal record at a convenient place and time, subject to the requirements of all applicable Federal and State laws regarding privacy, confidentiality, disclosure, and personally identifiable information

  34. Pre-Hearing Procedures, 45 C.F.R.§ 155.535(d) and Interim Procedure .06 • MHBE will monitor the appeal to ensure that a case summary is prepared and sent to OAH and the appellant at least six days before the hearing • The appellant and MHBE may request the names of all witnesses that the other party intends to call at the fair hearing • The appellant may seek to subpoena any employee of MHBE whose action is being contested or whose testimony may be relevant

  35. Hearing Procedures, 45 C.F.R. § 155.535(d)and Interim Procedure .07 The appellant must be given the opportunity to: • present documentary evidence • introduce witnesses • establish all relevant facts and circumstances • present an argument without undue interference • question or refute any testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses

  36. Attendance at the Hearing, Interim Procedure .10 • The ALJ shall permit members of the public to attend the hearing if the appellant waives, in writing, his or her privilege of confidentiality • The ALJ may order the removal of any member of the public whose conduct impedes the orderly progress of the hearing, or recess the hearing until it may proceed in an orderly fashion • If the size of the hearing room is too small to accommodate them, the ALJ may exclude from the hearing any individuals who have not given advance notice of their intention to attend

  37. Appeals Decisions, 45 C.F.R. §§ 155.535 and 155.545 and Interim Procedure .09(B) All appeal decisions must: • be issued within 90 days of the date of the appeal request • If the date of the hearing was postponed at the appellant's request, the 90 day period is tolled by the length of the postponement • be based solely on a de novo review of: • the information used to determine the appellant's eligibility • any additional relevant facts and evidence presented during the course of the appeals process, including at the hearing • the eligibility requirements under 45 C.F.R. § 155.300 et seq. • the Medicaid and MCHP Premium eligibility requirements

  38. Appeals Decisions, 45 C.F.R. § 155.545 and Interim Procedure .09(A) • Summarize the facts relevant to the appeal • Identify the legal basis, including the regulations that support the decision • State the decision, including a plain language description of the effect of the decision on the appellant's eligibility • State the effective date of the decision • Indicate that the decision is final unless additional review is sought, and provide an explanation of those rights • Can be based on circumstances as of the date of the hearing, even if different than how they were at the time of determination

  39. Implementation of Appeals Decisions, 45 C.F.R. § 155.545(c) and Interim Procedure .09(C) Appeals decisions are generally effective: • prospectively, on the first day of the month following the date of the notice of appeal decision • at the option of the appellant, retroactively to the date the incorrect eligibility determination was made • however, if the appeals decision is based on facts that occurred subsequent to the determination date, then the decision can only be implemented prospectively • for Medicaid, if the decision is adverse to the appellant, it is implemented immediately • An appeal decision triggers a redetermination of the eligibility of household members whose eligibility may be affected by the decision, even if they did not file their own appeal

  40. Subsequent Appeals, 45 C.F.R § 155.505and Interim Procedure .09(C) An appellant may seek further review as follows: • Petition for judicial review by the Circuit Court within 30 days of the decision, State Govt. § 10-222 • Appeal to HHS within 30 days of the decision, 45 C.F.R. § 155.505(c)(2) • For Medicaid appeals, the Board of Review appeal rights remain the same for the present time, Health-Gen. § 2-206(c)

  41. The Future The Appeals Module • Expected in November, 2013 • ALJs will have access to HIX at all of the hearing sites • Phone lines • Data connection • Evidence will be downloaded from HIX • Except FTI • Evidence brought to the hearing by the appellant will be scanned into HIX • Decisions will be uploaded into HIX, which will automatically notify MHBE and its partners of the decision

  42. Scenarios

  43. Scenario One • Lauren is a divorced mother who lives with her two children, Mitchell and Patrick. Her ex-husband, Chris, claims Mitchell on his taxes while Lauren claims Patrick. Lauren makes $38,000 per year. • What coverage is each member of the household eligible for?

  44. Scenario One • Lauren is a divorced mother who lives with her two children, Mitchell and Patrick. Her ex-husband, Chris, claims Mitchell on his taxes while Lauren claims Patrick. Lauren is a salaried employee making $38,000 per year. • STEP 1: Determine Medicaid/MCHP Premium eligibility • For purposes of Medicaid/MCHP Premium eligibility, there are three people in the household; the fact that Lauren does not claim Mitchell as a deduction on her taxes does not affect the household size for Medicaid/MCHP Premium purposes. The applicable monthly FPL is $1,627.50, so the monthly household income of $3,166.67 is at 195% of the FPL, making both Mitchell and Patrick eligible for MCHP. Lauren, however, is not eligible for Medicaid because her income is above the 138% income threshold.

  45. Scenario One • Lauren is a divorced mother who lives with her two children, Mitchell and Patrick. Her ex-husband, Chris, claims Mitchell on his taxes while Lauren claims Patrick. Lauren makes $38,000 per year. • STEP 2: Determine APTC/CSR eligibility • For purposes of APTC eligibility, Lauren’s household size is two (since she does not claim Mitchell on her taxes). Therefore, the applicable annual FPL is $15,510. Lauren’s annual income is 245% of the FPL, which qualifies her for an APTC. • Since her income is below 250% of the FPL, Lauren is also eligible for a CSR if she enrolls in a silver level plan.

  46. Scenario Two • Deepak is from India. He was lawfully admitted to the U.S. for permanent residence in 2010. He lives alone and works part-time while he goes to school, earning $9,000 year. • What coverage is Deepak eligible for?

  47. Scenario Two • Deepak is from India. He was lawfully admitted to the U.S. for permanent residence in 2010. He lives alone and works part-time while he goes to school, earning $9,000 year. • STEP1: Determine Medicaid/MCHP Premium eligibility • Even though Deepak’s income is only at 78% of the FPL, he is not eligible for Medicaid because of the five year bar.

  48. Scenario Two • Deepak is from India. He was lawfully admitted to the U.S. for permanent residence in 2010. He lives alone and works part-time while he goes to school, earning $9,000 year. • STEP2: Determine APTC/CSR eligibility • Even though APTCs are usually not available for someone earning less than 100% of the FPL, because Deepak is a lawfully-present alien ineligible for Medicaid because of his citizenship status, the special exception applies. Therefore, he is eligible for an APTC, as well as a CSR if he enrolls in a silver level plan.

  49. Scenario Three • Kurt worked at an ice cream stand on the boardwalk in Ocean City from April through September. He was previously unemployed for over a year and did not file taxes during that time. In December, Kurt applies online through Maryland Health Connection and attests to an annual income of $14,000. HIX checks the federal hub but there is no FTI available. HIX then checks the State data sources, and MABS shows that Kurt earned $7,000 in each of the last two quarters; HIX annualizes that information and therefore calculates that Kurt’s annual income is $28,000 year. Given that the difference between Kurt’s attested income and the income annualized from MABS is more than 10%, Kurt is asked to explain the discrepancy. He indicates that he is a seasonal employee. • What coverage is Kurt eligible for?

  50. Scenario Three • Kurt worked at an ice cream stand on the boardwalk in Ocean City from April through September. He was previously unemployed for over a year and did not file taxes during that time. In December, Kurt applies online through Maryland Health Connection and attests to an annual income of $14,000. HIX checks the federal hub but there is no FTI available. HIX then checks the State data sources, and MABS shows that Kurt earned $7,000 in each of the last two quarters; HIX annualizes that information and therefore calculates that Kurt’s annual income is $28,000 year. Given that the difference between Kurt’s attested income and the income annualized from MABS is more than 10%, Kurt is asked to explain the discrepancy. He indicates that he is a seasonal employee. • STEP 1: Determine Medicaid eligibility • Because Kurt’s employment is seasonal, HIX’s calculations were not correct. The issue was resolved during the Inconsistency Period and Kurt was determined to be eligible for Medicaid.

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