MEDICAID RECIPIENT DUE PROCESS RIGHTS IN THE MANAGED CARE ENVIRONMENT PREPARED by: Special deputy attorney general Tracy

1. MEDICAID RECIPIENT DUE PROCESS RIGHTS IN THE MANAGED CARE ENVIRONMENT PREPARED by: Special deputy attorney general Tracy Hayes N.C. Dept. of justice

2. BACKGROUND – THE MEDICAID ACT “The Medicaid statute (as is true of other parts of the Social Security Act) is an aggravated assault on the English language, resistant to attempts to understand it. The statute is complicated and murky, not only difficult to administer and to interpret but a poor example to those who would like to use plain and simple expressions.” Friedman v. Berger, 409 F. Supp. 1225, 1226 (S.D.N.Y. 1976).

3. What is Due Process and Why is it Required? • Procedural Due Process consists of NOTICE and the OPPORTUNITY TO BE HEARD when a Medicaid service is denied, reduced, terminated, or suspended or when Medicaid fails to act with “reasonable promptness” on a request for services. • Medicaid beneficiaries have a constitutional right to due process because Medicaid is an entitlement program. Goldberg v. Kelly, 397 U.S. 254 (1970) . This applies regardless of whether Medicaid is operated under fee-for-service (FFS) or managed care. Medicaid beneficiaries enrolled in the 1915(b)/(c) Waivers are generally called “enrollees.” • Individuals who accept an Innovations Waiver slot are entitled to waiver services and are sometimes called “participants.” Individuals on the Registry of Unmet Needs are not entitled to waiver services. • Section 1902(a)(3) of the Social Security Act requires that a State plan provide an opportunity for a fair hearing to any person whose claim for assistance is denied or not acted upon promptly. • Section 1932(b)(4) requires Medicaid managed care organizations to establish internal grievance procedures under which enrollees, or providers acting on their behalf, may challenge the denial of coverage of, or payment for, medical assistance.

4. First Steps Enrollee must request services to start the process – there is nothing to appeal if you haven’t requested services / signed a plan of care. Cannot appeal if still on Registry of Unmet Needs.** Cannot appeal your transition to managed care. LME-MCO only required to process a complete valid request. FFS Medicaid requires minimum of: beneficiary's name and address, MID number, date of birth, identification of service/ frequency requested or procedure code, Provider name/NPI/Provider number who is to perform service or procedure, all signatures on forms required by statute, date the service is requested to begin or be performed, documents/forms required by state or federal statute.

5. Coverage and Authorization of Services • Request cannot be denied solely because of diagnosis, type of illness, or condition. • LME-MCO may place appropriate limits on services: • based on established criteria, medical necessity (but not budget or cost-cutting goals). • for the purposes of utilization control, provided services are sufficient to reasonably achieve purpose for which service furnished. • Medical necessity criteria can be no more restrictive than DMA policy, NC State Plan, and the terms of the applicable Waiver. • Amount, duration, and scope can be no less than the amount, duration, and scope for the same services furnished to beneficiaries under FFS Medicaid. • Requests for MH/DD/SA services under the 1915(b) waiver for children under the age of 21 should be reviewed under EPSDT. • Requests for Innovations Waiver services should be reviewed under EPSDT if the request is both a waiver and an EPSDT service.

6. EPSDT • Early and Periodic Screening, Diagnosis and Treatment (EPSDT) entitles Medicaid beneficiaries under the age of 21 to medically necessary screening, diagnostic and treatment services within the scope of Social Security Act that are needed to “correct or ameliorate defects and physical and mental illnesses and conditions,” regardless of whether the requested service is covered in the N.C. State Plan for Medical Assistance. • “Ameliorate” means to: • improve or maintain the beneficiary's health in the best condition possible, • compensate for a health problem, • prevent it from worsening, or • prevent the development of additional health problems. • More information available at: http://www.ncdhhs.gov/dma/epsdt/ • Basic criteria include: • Must be covered under 1905(a) of the Social Security Act. Not all waiver services covered! • Must be medical in nature. • Must be an accepted method of medical practice or treatment – no voodoo. • Must not be experimental or investigational – probably no clinical trials. • Must be safe and effective.

7. EPSDT and Innovations Waiver Services • Waiver services are available only to participants in the Innovations Waiver program and are not a part of the EPSDT benefit unless the waiver service is ALSO a service that is coverable under EPSDT. • Any request for services for an Innovations participant under age 21 must be evaluated under both the waiver and EPSDT if the requested service is coverable under EPSDT. Examples of services that are NOT coverable under EPSDT include respite, home modifications and habilitative services. • A child financially eligible for Medicaid outside of the waiver is entitled to select EPSDT or State Plan services without any monetary cap instead of participation in the Innovations Waiver. • A child enrolled in the Innovations Waiver can receive waiver services in excess of hard limits IF the service is coverable under EPSDT. However, the total cost of care must not exceed the waiver cost limit. • A Medicaid-eligible beneficiary under 21 years of age on the Registry of Unmet Needs is eligible for necessary EPSDT services without any Medicaid-imposed waiting list.

8. Service Requests in Managed Care • Provider has responsibility to show medical necessity. • Additional documentation could include recent evaluation reports from clinicians, recent treatment records, and letters signed by treating clinicians explaining why the service is medically necessary. • For children under 21, the request may include documentation to show how the service will correct or ameliorate a medical condition and meet all other EPSDT criteria. This includes: • documentation to support that all EPSDT criteria are met; and • evidence-based literature to support the request, if available. • LME may ask for additional information – not required to do so! • Upon expiration of the service authorization, a new service request must be submitted and the process starts over.

9. DISCOURAGEMENT • LME representatives should not engage in activity that could be perceived as discouraging enrollee from requesting a service or proceeding with an appeal. • This should not prevent clinical or treatment discussions.

10. 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. • Expedited. Within three 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

11. NOTICE OF ADVERSE ACTION • Must explain each of the following: • Action LME intends to take • Reasons for action specific to individual • Right to file request for PIHP reconsideration • Procedures for filing request for PIHP reconsideration • Circumstances under which expedited resolution available • Continuation of benefits • Must include FORM necessary to file appeal • 42 CFR § 438.306 PIHP must provide “reasonable assistance in completing forms and taking other procedural steps. This includes, but is not limited to, providing interpreter services and toll-free numbers that have adequate TTY/TTD and interpreter capability.”

12. Managed Care Due Process System Overview“Grievance System” 42 CFR 438.402 • Grievance Process • Conducted by LME-MCO, not DMA! • Only applies to things that are NOT actions – see next slide The grievance process is separate from the appeal/ state fair hearing process. Enrollees do not have to file a grievance before requesting reconsideration of an action. • Appeal Process • Conducted by LME-MCO, not DMA! • Only applies to an “action” – see next slide • State Fair Hearing • Enrollee must exhaust PIHP reconsideration first • Hearing is conducted by the Office of Administrative Hearings • Review of the PIHP reconsideration decision

13. Grievance Process (“Grievance”) • Grievance means an expression of dissatisfaction about any matter other than an “action.” • Can be filed in writing or orally by enrollee or provider (with written consent). • LME-MCO must acknowledge receipt of each grievance. • Individual making decision should not have been involved in any previous level of review or decision-making. • If grievance involves denial of expedited resolution of an appeal, individual making decision must be appropriate clinician. • Possible subjects for grievances include: • quality of care or services provided; • rudeness of a provider or employee; or • failure to respect an enrollee’s rights. • Enrollee does not have to file a grievance before requesting reconsideration of an action (see next slide). • Must be decided within 90 calendar days.

14. Appeal Process (“Reconsideration”) cont’d • Appeal means a request for review of an action. • Called “Reconsideration” in North Carolina. • Must be decided by someone at LME-MCO who was not involved in any previous level of review or decision-making. • Must be decided by appropriate clinicians if issue is clinical. • Can be filed in writing or orally by enrollee or provider, with written consent. • Must allow enrollee a reasonable opportunity to present evidence and allegations of fact or law. • Right to examine the case file, including medical records, and any other documents and records considered during the appeals process.

15. Appeal Process (“Reconsideration”) Only the “actions” listed below 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., any 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, i.e. within 90 calendar days

16. State Fair Hearing (“Appeal”) • In North Carolina, enrollees MUST exhaust the LME-MCO Appeal Process (“Reconsideration”) before accessing the State Fair Hearing. • Medicaid state fair hearings are governed by 42 CFR Part 431. • In North Carolina, the State Fair Hearing is called an “Appeal” and utilizes the Administrative Hearings procedure pursuant to N.C.G.S. § 150B and § 108A-70.9A. • Applies to any appeal (“reconsideration”) not decided wholly in favor of the enrollee. • State Fair Hearing process controlled by federal and state law and rules. • LME-MCO has right to be a party to the State Fair Hearing.

17. Timeframes for Reconsideration/ Appeal and State Fair Hearing • Appeals • Enrollee has 30 days to request an appeal (“reconsideration”) of action orally or in writing. If requested orally, enrollee must submit a written request within 30 days of the date of the adverse notice. • Standard: Decision must be issued within 45 days from the date the individual first requested the service. • Expedited: Three 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 enrollee, must include notice of State Fair Hearing (“appeal”) rights. • Enrollee has 30 days to request State Fair Hearing from the date of the appeal (“reconsideration”) decision. • After 30 days, the LME appeal (“reconsideration”) decision becomes final.

18. State Fair Hearing (“Appeal”) • Currently Has Three Phases: • Mediation • Office of Administrative Hearings (OAH) Proceeding • Final Agency Decision** -- this phase will end on February 1, 2013 or whenever CMS approves pending waiver to allow OAH to make final decisions in Medicaid cases.

19. Informal Telephonic Enrollee, his/her representative, sometimes attorney LME-MCO clinical team Confidential Voluntary Legally binding If no resolution is reached, appeal moves forward unless the enrollee or his/her guardian withdraws the appeal request. Conducted by the Mediation Network of North Carolina, although OAH will initiate and monitor process Mediation

20. Conducted by an administrative law judge (ALJ). Telephonic, in person hearing, or by video conference. Enrollee, witnesses, and representative/ attorney. LME-MCO attorney and witnesses. Assistant AG may attend if DHHS named as party. Both sides have right to present testimony and cross-examine witnesses. Enrollee can present NEW evidence. Under current law, within 20 days of the hearing, the ALJ must make a decision and forward his/her decision and record to DMA. When OAH begins making final decisions for Medicaid, the ALJ will have 120 days from close of hearing. OAH Proceeding

21. **For appeals filed before February 1, 2013 or whenever CMS approves the single state agency waiver, whichever occurs first** DHHS makes the Final Agency Decision w/in 20 days of receipt of the ALJ’s decision and complete record. All parties have opportunity to provide written explanation as to why they agree or disagree with the ALJ’s decision and provide DHHS with draft decisions. DHHS will uphold or reverse ALJ decision and issue a written Final Agency Decision. **For appeals filed on or after February 1, 2013 or whenever CMS approves the single state agency waiver, whichever occurs first** ALJ decision is the final decision. Final decision or order must be made within 120 days of hearing and contain findings of fact and conclusions of law. OAH will prepare the official record that includes notices, pleadings, motions, questions and offers of proof, objections, and rulings; evidence presented; matters officially noticed; and the ALJ’s final decision or order. Appeal to Superior Court Appeal of final agency decision must be filed in the Superior Court of Wake County or the county where the party resides within 30 days after service of the written decision. Superior Court judge will decide the case based on the decision and official record. Final Agency Decision

22. Continuation of Benefits • Maintenance of Service (MOS) does NOT apply to managed care under federal law. Called continuation of benefits (COB). • No concurrent requests in managed care. • LME-MCO must only continue to pay for the service if all requirements specified below 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; and • The enrollee requests a continuation of the service. • The service must continue until: • The enrollee withdraws the appeal (“reconsideration”); or • Ten days after the appeal (“reconsideration”) decision is made, unless the enrollee requests a State Fair Hearing within those 10 days; or • A State Fair Hearing decision is made against the enrollee; or • The service authorization expires.

23. Continuation of Benefits • If the final appeal (“reconsideration”) and/or State Fair Hearing decision is against the enrollee, the enrollee (or parent/ legal guardian if enrollee under 18) may be held responsible for the cost of the services furnished to the enrollee during the appeal process (“reconsideration”) and/or State Fair Hearing. • Providers and parents/ legal guardians of adult enrollees cannot be held responsible for the cost of services furnished during the appeal process and/or State Fair Hearing.

24. Hold your questions until the end – Thanks! Additional Information: http://www.ncdhhs.gov/dma/ http://www.ncdhhs.gov/mhddsas/ Relevant Law: 42 C.F.R. Part 438 – Managed Care 42 C.F.R. Part 431, Subpart E – State Fair Hearings N.C.G.S. § 108A-70.9 N.C.G.S. Chapter 122C – Mental Health N.C.G.S. Chapter 150B – Administrative Procedures Act N.C. Session Law 2011-264, HB 916 – Statewide Expansion of the 1915(B)/(C) Medicaid Waiver