DUE PROCESS for Medicaid Managed CARE 42 CFR § 438 et seq.

1. DUE PROCESS for Medicaid Managed CARE 42 CFR § 438 et seq.

2. Utilization Management under Managed Care • Coverage and Authorization of Services. 42 CFR 438.210 • PIHP may place appropriate limits on services: • based on established criteria, medical necessity • for the purposes of utilization control • No more restrictive than DMA policy & NC State Plan • Written Policies and Procedures • Consistent Application • Notice Requirements (DMA standardized letters)

3. Service Requests in Managed Care • Managed care does not utilize different types of service requests • Fee-for-service utilizes initial and concurrent prior approval requests, each with different implications and requirements • Each service request must be approved or denied • Denials must be appropriately noticed, including appeal (“reconsideration”) instructions • Any “action,” can be appealed • Approvals must be noticed and a service authorization issued • Upon expiration of the service authorization, a new service request must be submitted and the process starts over

4. Timeframes for Responding to Service Requests • Standard. Within 14 calendar days following receipt of the service request • Can be extended 14 additional calendar days if additional information is required to make the decision or if recipient/provider request • Expedited. Within 3 working days following receipt of the service request • Required when the standard timeframe seriously jeopardizes the enrollee's life or health or ability to attain, maintain, or regain maximum function • Can be extended 14 additional calendar days if additional information is required to make the decision 42 CFR 438.210

5. Managed Care Due Process System Overview • Grievance System. 42 CFR 438.402 • 3 Levels: • Grievance Process • Conducted by PIHP • Called “Grievance” in North Carolina • Appeal Process • Conducted by PIHP • Called “Reconsideration” in North Carolina • State Fair Hearing • Hearing is conducted by the Office of Administrative Hearing • Called “Appeal” in North Carolina

6. Grievance Process (“Grievance”) • Grievance means an expression of dissatisfaction about any matter other than an “action” • Conducted by the PIHP • Possible subjects for grievances include: • quality of care or services provided • rudeness of a provider or employee • failure to respect a recipient’s rights • Monitored by DMA 42 CFR 438.400

7. Appeal Process (“Reconsideration”) • Only “actions” can be appealed: • denial of a service request • limited authorization of a service request • reduction, suspension, or termination of a previously authorized service – i.e., changes to a current, unexpired service authorization • Denial of payment for a service • Failure to authorize or deny a service request in a timely manner • Failure to timely resolve a grievance 42 CFR 438.400

8. Appeal Process (“Reconsideration”) cont’d • Appeal means a request for review of an action (42 CFR 438.400) • Called “Reconsideration” in NC • Conducted by the PIHP • Must be decided by somebody other than the individual(s) who made the decision to take the action being appealed • Independent reviewers • “Reconsideration” over clinical actions must be decided by appropriate clinicians • Can be filed in writing or orally • Must allow the recipient a reasonable opportunity to present evidence and allegations of fact or law • Must allow the recipient to examine his/her medical records and the documents considered during the appeal42 CFR 438.406

9. State Fair Hearing (“Appeal”) • Recipients must exhaust the Appeal Process (“Reconsideration”) before accessing State Fair Hearing • In North Carolina, the State Fair Hearing is called an “Appeal” and utilizes the Administrative Hearings procedure pursuant to G.S. § 150B & 108A-70.9A • Applies to any appeal (“reconsideration”) not decided wholly in favor of the recipient • State Fair Hearing process controlled by state law and rules • PIHP is a party to the State Fair Hearing 42 CFR 438.408

10. Timeframes for Grievance System Decisions • Grievances: 90 days • Appeals • Recipient has 30 days to request an appeal (“reconsideration”) of a PIHP action • Standard: 45 days • Expedited: 3 working days • Timeframes to decide both grievances and appeals (both standard and expedited) may be extended up to 14 calendar days if additional information is required. • State Fair Hearing • Any appeal (“reconsideration”) not decided wholly in favor of the recipient, must include notice of State Fair Hearing (“appeal”) rights • Recipient has 30 days to request State Fair Hearing from the date of the appeal (“reconsideration”) decision • After 30 days, the PIHP appeal (“reconsideration”) decision becomes final 42 CFR 438.408

11. State Fair Hearing (“Appeal”) • Three Phases: • Mediation • Office of Administrative Hearings (OAH) Proceeding • Final Agency Decision**

12. Informal Telephonic Recipient, his/her representative, sometimes attorney PIHP clinical team Confidential Voluntary If no resolution is reached, appeal moves forward Conducted by the Mediation Network of North Carolina, although OAH will initiate and monitor process Mediation

13. Conducted by an administrative law judge (ALJ) Pretrial motions, discovery, etc. Telephonic or in person hearing Recipient, witnesses, and attorney PIHP attorney and witnesses Testimony, cross examination, evidence, etc. Within 20 days of the hearing, the ALJ must make a decision and forward his/her decision and record to DMA OAH

14. (Prior to January 1, 2012) DMA makes the Final Agency Decision within 20 days of receipt of the ALJ’s decision Recipient, PIHP, and DHHS all provide written explanations as to why they agree or disagree with the ALJ’s decision and provide DMA with draft decisions DMA will uphold or reverse the ALJ’s decision and issue a written Final Agency Decision The Final Agency Decision may then be appealed to Superior Court, which will decide the case based on the record established in OAH Final Agency Decision

15. Continuation of Benefits • Maintenance of Service (MOS) does NOT apply to managed care • *** CFR 438.420 Continuation of benefits while the MCO or PIHP appeal and the State fair hearing are pending • Does not apply when there is no service authorization or a previously issued service authorization has expired • Applies when the PIHP makes changes to a current, unexpired service authorization (i.e., a reduction, suspension, or termination) • Applies during the Appeal Process (“reconsideration”) and State Fair Hearing (“appeal”).

16. Continuation of Benefits cont’d • The PIHP must continue the service if all of the following are met: • The appeal (“reconsideration”) is timely requested • The appeal (“reconsideration”) involves the termination, suspension, or reduction of a currently authorized service • The service was ordered by an authorized provider • The current service authorization has not expired • The enrollee requests a continuation of the service • So long as all the criteria continue to be met, service continued during the Appeal Process (“reconsideration”) must also be continued during the State Fair Hearing (“appeal”) 42 CFR 438.420

17. Continuation of Benefits cont’d • The service must continue until: • The recipient withdraws the appeal (“reconsideration”) • Ten days after the appeal (“reconsideration”) decision is made, unless the recipient requests a State Fair Hearing within those 10 days. • A State Fair Hearing decision is made against the recipient • The service authorization expires • If the final appeal (“reconsideration”) and/or State Fair Hearing decision is against the recipient, the recipient is responsible for the cost of the services furnished to the enrollee during the appeal process (“reconsideration”) and/or State Fair Hearing.

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