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Old 01-17-2018, 08:27 AM
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Default Changes Coming in Fair Hearing Rights for MLTC and Managed Care Members - March 2018

What is Changing? New York State is preparing to implement massive changes
in appeal rights for members of Medicaid managed care plans, including
members of Managed Long Term Care plans. These are changes in federal
Medicaid regulations governing Medicaid managed care plans, which were made
by the Obama Administration. The managed care regulations are at 42 C.F.R.
Part 438, Subpart F -- The Grievance and Appeal System for Medicaid
managed care. The regulations are effective in New York State on April 1,
2018, but NYS Dept.of Health intends to put them in effect on March 1,
2018. This article explains the appeal procedures as they exist now,
before these changes go into effect. Here are the key changes that will go
into effect March 1, 2018:Members Must Request Internal Appeals within
their Plan, and Plan must Deny the Appeal, Before Requesting a Fair
Hearing("Exhaustion" requirement)The biggest change for New York managed
care members is the "Exhaustion"requirement. Members must "exhaust"
theplan's internal appeal procedure, and receive an adverse
appeal decision by the plan, BEFORE requesting a fair hearing.
Under 42C.F.R. 438.402(c), "...An enrollee may request a State fair
hearing after receiving notice under §438.408 that the adverse benefit
determination is upheld." Section438.408 refers to the plan's decision
resolving a request for an internal appeal. There is a narrow exception to
this requirement, allowing a member to request a Fair hearing directly,
without receiving the plan's appeal decision. This is called
"deemed exhaustion." This new exhaustion requirement is a huge change in
New York. In the nearly twenty years that enrollment in managed
care has gradually become mandatory for most Medicaid recipients who do
not have Medicare, members always have had the right to request a fair
hearing without first requesting an internal plan appeal. When Managed
Long Term Care first became mandatory in 2012, "exhaustion" of internal
appeals was required, but since July 1, 2015, the State dropped that
requirement, entitling MLTC members to request a fair hearing right away to
contest an adverse determination by the plan. See this article about
current appeal system in MLTC and this news article describing the
elimination of the "exhaustion" requirement for MLTC in July
2015. To prepare for implementation of this massive change, the State Dept.
of Health has convened a Workgroup composed of both plan and
consumer representatives. NYLAG Evelyn Frank Legal Resources Program,
along with the ICAN Ombudsprogram, the Legal Aid Society, the Empire
JusticeCenter and other organizations are representing consumer interests
in this workgroup. NEW MODEL NOTICES - New York State has finalized the
notice templates by which managed care and MLTC plans must give written
NOTICE to members of adverse actions. 1. ""INITIAL ADVERSE DETERMINATION -
REDUCTION" Click here for the template fora notice of proposed
reduction in services and click here for an unofficial sample of a completed
notice based on hypothetical facts -- completed by
NYLAG. 2. Final Adverse Determination - Internal Appeal decision by plan
wholly or partially affirming an Initial Adverse Determination that reduces
services..
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Old 01-17-2018, 08:28 AM
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Laura Laura is offline
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Default Changes Coming To Fair Hearing Rights for MLTC and Managed Care Members 3/2018

Among the concerns expressed by consumers are the
following:1. AID CONTINUING RIGHTS WHEN PLAN IS REDUCING OR STOPPING
SERVICES If a managed care or MLTC plan sends notice that it intends to
reduce hours of home care services, or reduce or stop any other service,
the member will now have to request an INTERNAL PLAN APPEAL within the
short 10-daywindow needed to secure AID CONTINUING -- continuation of
services at the original current amount, without the proposed reduction
going into effect. The plan only has to mail the notice 10 days before
the effective date of the intended action. The member must request
the internal appeal before the effective date of the action The 10
days includes the time it takes to mail the notice and includes weekends
and holidays. This may leave only a workday or two to request the appeal.
All of the concerns listed below jeopardize aid continuing rights and
appeal rights generally. 2. Requesting an internal plan appeal within
this 10-day time frame may be more difficult than requesting a Fair
Hearing. For fair hearings, members have the option of requesting the
hearing by phone,fax, or online. Fair Hearing phone requests are to a
line dedicated solely to fair hearing requests. In contrast. members call
an 800number for the managed care plans that handles ALL managed care
issues, not just appeals. Members may be routed by the call center to
their care manager, or to other departments, rather than to the Grievances
and Appeals unit. Time is of the essence to get that internal appeal
request logged in, but time may be lost while the call is routed or
misrouted, or while the member awaits a call back. The State Dept. of
Health has agreed to consumers' requests that plan notices provide a fax
number to fax an internal appeal request. They are not required, however,
to allow filing requests online. 3. Plan notices must clearly explain the
new requirement to file an internal appeal. The State has solicited
comments on draft model notices, which NYLAG and other consumer
representatives have submitted proposed edits. One of the model notices
- the notice that services will be reduced - is posted here, along with
an unnofficial sample of how it will look when completed. Advocates should
read it carefully to familiarize themselves with the changes. Note that
an Appeal Request Form is included as part of the notice. Since
oral requests must be confirmed in writing, it is recommended to use the
Appeal Request Form.4. Oral Appeals Must be Followed up by a Written Signed
appeal request, unless the enrollee requests an expedited
resolution. The regulations require this extra step for requests made
orally, presumably by phone. 42 § 438.402(c)(3)(ii). The exception is
ifexpedited resolution is requested. As an advocacy tip, any oral
request should request expedited resolution. Expedited resolution is
required if the plan determines or medical provider indicates that
"...taking the time for a standard resolution could seriously jeopardize
the enrollee's life, physical or mental health, or ability to attain,
maintain, or regain maximum function." 42C.F.R. 438.410. Expedited
determinations must be made within 72 hours rather 30 days for standard
appeals.. 42 C.F.R.438.408. Consumers have urged DOH to require plans to
assist members with providing the written appeal confirmation. 5. Who May
Request The Internal Appeal On Behalf of the Member - TIP to Pre-Designate
Someone who may request appealor hearing.The federal regulation
arguably requires the member to give written consent for a representative
to file an appeal request, which could delay filing a request with
disastrous consequences -- client could miss the deadline to request Aid
Continuing. The regulation says, "If State law permits and with the
written consent of the enrollee, a provider or an authorized representative
may request an appeal or file a grievance, or request a State fair hearing,
on behalf of an enrollee." § 438.402(c)(1)(ii). To prevent
problems,we recommend having a member pre-designate a person or
organization to request appeals when needed. See this suggested form and
read tips about using it. In the preamble to the regulations, CMS states,
“…we defer to state determinations regarding the design of their grievance
and appeal system; state law could vary regarding who the state recognizes
as an authorized representative.” 81 Fed. Reg. at 27510. New York has
always been expansive in permitting family or representatives to request
the appeal,thus ensuring that the right to appeal is not unduly
restricted. For example, the OTDA fair hearing request form allows
a person requesting the hearing to indicate whether they are the
“requester” or the“representative.” NYS DOH's templates for model MLTC
notices issued In March 2015 state, “You can have someone you trust ask
for an Internal Appeal for you.” ADVOCACY TIP: Have Member Sign Form
To Designate a Family Member or Representative to Request an Appeal -
and Submit Form to Plan Now, BEFORE the plan takes adverse action.
In the Model Appeal and Hearing Request Forms that the State is requiring
all plans to use (Requests forms are attached in the same PDF after the
model notices),the form allows someone to request the appeal on the
member's behalf,without requiring the member to sign the request form, if
the member has authorized the person with the plan before. Here
is a suggested authorization form, developed by NYLAG EFLRP, by which a
member may pre-designate a family member, lawyer, social worker, or ICAN to
act on her behalf - or to authorize someone to act. We suggest that these
be completed, signed and provided to the care manager for the client's
file, so that in the event the plan later takes an adverse action, the
designated person, attorney, etc. may request the appeal without being
delayed by the need to get the client's signature. TIPSon completing
the managed care authorization form:
- The member may designate more than one person/organization in this
form to request an appeal. Check all that apply. Note that the form
has an additional checkbox for the member to indicate that the
individual may also act on their behalf for the entire appeal. Member
should check that too.
- Send it certified to the plan with a cover letter so you have proof
that it was provided. Or give it to the care manager in person, and
have the care manager sign your copy as received. Attach that proof of
delivery when you request an appeal later.
6. "DEEMED EXHAUSTION" - Member May Request a Fair Hearing if Plan Failed
to Meet Notice and Timing Requirements The regulations provide for an
exception to the "exhaustion"requirement. Where the managed care
plan “fails to adhere to the notice and timing requirements of sec.
438.408, the enrollee is deemed to have exhausted the [managed care plan']
… appeals process. The enrollee may initiate a State fair hearing..” 42
CFR 438.402(c)(1)(A).This regulation requires state policies for defining
where deemed exhaustion applies. Both state agencies -- OTDA and DOH -
must revise their procedures and forms elicit facts that demonstrate
whether deemed exhaustion applies. Consumers contend that deemed exhaustion
should be defined to apply in cases including but not limited to:
- No written notice of initial adverse determination (IAD) was provided
by the plan, or
- The IAD does not include the requisite information re the right to
Aid Continuing, how to request an appeal, etc.
- The IAD did not incorporate necessary translation or alternative
formats, was not on the required template, or did not offer auxiliary
aids and services, free of cost, during the appeal, thus impeding the
enrollee’s time to appeal or request Aid Continuing.
- The IAD does not comply with other applicable requirements, ie. MLTC
Policy 16.06;
- Plan did not decide the appeal within 30 days from member’s appeal
request, or if an expedited appeal was requested, within 72 hours after
the MCO receives the appeal, unless extended pursuant to the
regulations by up to 14 calendar days. § 438.408​
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