In 2016, CMS adopted changes in federal Medicaid managed care regulations requiring "exhaustion" of Plan Appeals prior to requesting a Fair Hearing. These changes became effective in NYS in MAY 2018. The federal changes are in 42 CFR 438 SubPart F.
NYLAG 2018 Trainings on Changes:
I. INTRO - What Changed? Must Requeset Internal Plan Appeal before Fair Hearing
II. Federal and State Regulations, Webpages and Fact Sheets On the New Exhaustion Requirement - and MODEL NOTICES, and other Legal Authorities
III. PLAN APPEALS -
IV. DEEMED EXHAUSTION - when can you request a Fair Hearing without waiting for Plan Appeal decision?
VIII. GET HELP
I. Since May 1, 2018 - Member Must Request Internal "Plan Appeal" before requesting a Fair Hearing
Beginning May 1, 2018, the member MUST first request an Internal Plan Appeal of an Initial Adverse Determination by the plan. Only after a decision on that internal appeal is made by the plan, called a "Final Adverse Determination" or "FAD," may the member request a FAIR HEARING. 42 C.F.R. 438.402(c).
This is true regardless of whether the plan's action is to reduce, terminate, or deny services. And - there are new rules for when a provider or representative may request an appeal or hearing for an individual. Click here.
AID CONTINUING -BEWARE!!!!! If the PLAN'S action is to reduce or terminate services, then the member MUST request the internal appeal within 10 days of the date of the notice, or before the effective date of the notice, in order to be entitled to AID CONTINUING. This is very new. Before, the member had to request a Fair Hearing in order to receive AID CONTINUING.
The rules apply to APPEALS not to GRIEVANCES or COMPLAINTS.
An Appeal is a request to review an action taken or an adverse determination made by a plan. If your MLTC plan denies a new service or an increase in an existing service, or reduces or stops services that you already had, you have the right to appeal. The plan's original determination is called an "Initial Adverse Determination." For example, the plan reduces your personal care services from 12 to 8 hours/day, or denies your request to participate in the Consumer-Directed Personal Assistance Program (CDPAP), or denies your request to increase your hours of personal care services.
A grievance is a complaint you make directly with the MLTC plan about the quality of care, services or treatment you received or about communications with the plan. A grievance is not about the scope, amount or type of service that was approved by the plan. EXAMPLES include the aide or transportation is late or doesn’t show, aide isn’t trained well, you can’t reach your care coordinator by phone, you were treated rudely, or you disagree with the plan's decision to extend its time frame to decide your request for new or increased services. 42 CFR 438.404(c). See more about the time frames for plan to approve or deny your request for new or increased services here. See more about GRIEVANCES here.
II. NYS Dept. of Health Regulations, Webpages and Fact Sheets On the New Exhaustion Requirement - and NEW MODEL NOTICES
III. "PLAN APPEAL" - Must request Internal Appeal First - and Wait for Decision - Before Requesting a Fair Hearing
A. DEADLINE TO REQUEST INTERNAL APPEAL - Warning re Aid Continuing
If the plan's "Initial Adverse Determination" is to REDUCE or STOP services, you must request the appeal within 10 days of the date of the notice, or before the EFFECTIVE DATE of the notice, which must be at least 10 days after the date of the notice. Otherwise you will not receive AID CONTINUING.
NOTE: You are entitled to Aid Continuing even if the authorization period for the service has expired, or after you have transitioned to the plan from fee for service home care.. See this discussion.
If the plan's "initial adverse determination" is not a reduction, but denies a new service, or denies an increase in an existing service, or authorizes a service in less than the amount you requested, after April 1, 2018 the member will have 60 calendar days to request an internal appeal, from the date of the notice. This is an increase from 45 days under the old rules before May 1, 2018.
You MAY request an internal appeal if the plan misses the deadline to decide your request for new services or for increased services. Federal regulations specifically state that this constitutes a denial which can be appealed. 42 CF.R. 438.404(c)(5). These deadlines are explained in this article.
B. HOW TO REQUEST THE INTERNAL APPEAL:
You may either:
Call the member services phone number of your plan. The federal regulations require you to confirm an ORAL request in WRITING unless you request that your appeal be "expedited" (Fast Track). See more about Fast Track appeals in #3 below. 42 C.F.R. 438.406(b)(3) The date of the oral appeal must be considered the filing date of the appeal for purposes of Aid Continuing and the statute of limitations. Id.
FAX the request - fax number should be on the NOTICE received from the plan. Use the Appeal Request Form that should be part of the NOTICE from the plan (part of this PDF).
E-mail the request -- the e-mail address should be on the NOTICE received from the plan. Attach the Appeal Request Form form that should be part of the NOTICE from the plan (part of this PDF).
Write to your plan. Write to Member Services return receipt requested and write APPEAL REQUEST on the envelope and on the letter. Make sure you include your Member ID number, name, address, Medicaid number, phone number, and the reasons for your appeal. The Appeal Request Form that should be attached to the plan's notice contains all of this information.
We will post fax numbers, e-mails, telephone numbers, and addresses as soon as they are available for each plan in this article. They are not available as of January 30, 2018. State DOH is requiring plans to provide fax and phone numbers and mailing address. They suggest but are not requiring plans to provide email addresses or an online portal.
IF YOU NEED HELP REQUESTING APPEAL - The plan must give enrollees "any reasonable assistance in completing forms and taking other procedural steps relating to a grievance or appeal. This includes, but is not limited to, auxiliary aids and services upon request, such as providing interpreter services and toll-free numbers that have TTY/TTD and interpreter capability. 42 CFR 438.406(a).
C. Who May Request the Internal Appeal for the Member?
The federal 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). Arguably, this language requires the member to give written consent for a representative to file an appeal request, which could delay filing a request with disastrous consequences -- the client could miss the deadline to request Aid Continuing.
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.
TIPS on completing the managed care authorization form:
NYS DOH has issued two helpful FAQ’s regarding the requirement that a member sign the appeal or give written consent for a representative to request an appeal. In the original FAQ issued by DOH to managed care plans, Question V. 7 provides:
FAQ V. 7. If a request is made for an appeal and the plan has not received written authorization for a representative, does the plan dismiss the request or process it and only responded to the enrollee?
Plans must process the request and respond to the enrollee. Plans may use existing procedures to confirm a representative has been authorized by the enrollee, including procedures for enrollees who cannot provide written authorization due to an impairment. The plan should have a process to recognize and include an enrollee´s representative when an enrollee has authorized the representative for services authorization and appeal activities prior the decision under dispute and such authorization has not expired.
This FAQ is important for several reasons. First, the plan must process the appeal request – and presumably comply with Aid Continuing – even if it has not received the member’s written authorization of the representative. Second, for members who, because of disability, cannot sign a written appeal request or an authorization of a representative, NYS DOH acknowledges the plans’ duty to provide reasonable accommodation of such disabilities. These must include policies and procedures to recognize “previously designated representatives, and establishing designation of a representative where the enrollee cannot provide written authorization due to an impairment.” Id. The model Appeal Request Form incorporates this policy by stating, “If this form cannot be signed, the plan will follow up with the enrollee to confirm intent to appeal.”
A Supplemental Final Rule FAQs (2/7/18), issued by the DOH division that oversees “mainstream” Medicaid managed care plans, states that Aid Continuing will not be provided if the appeal is requested by a health care provider, unless the enrollee has authorized the provider as their representative.
FAQ IV. 2. Is written consent from the member or an Appointment of Representative form (AOR) required for standard appeals? Should the plan provide Aid Continuing upon receipt of a Plan Appeal from a provider?
42 C.F.R. § 438.402(c)(1)(ii) requires the enrollee´s written consent for the provider or authorized representative to file a Plan Appeal on the enrollee´s behalf. Aid Continuing may not be provided when a provider fails to demonstrate an enrollee has authorized the provider as their representative for the Plan Appeal and the Aid Continuing request, as the enrollee may be held responsible for the cost of services provided during the Plan Appeal. Plans should have policies and procedures for processing expedited requests, ensuring recognition of previously designated representatives, and establishing designation of a representative where the enrollee cannot provide written authorization due to an impairment.
The prohibition on a health care provider requesting Aid Continuing, unless specifically authorized by the plan member, reflects a suspicion that providers are acting in their own interests in receiving payment for services and not in the interests of the member.
D. Right to Request Expedited or "Fast Track" Appeal
You or your provider have the right to request an expedited or "Fast Track" appeal. The plan must expedite its appeal decision if it determines (for an appeal request made by the member) or if the provider indicates (if the provider is requesting the appeal on the enrollee's behalf or supporting the enrollee's appeal) 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." 42 CFR 438.410.
The Appeal Request Form that plans should send with adverse notices has a check-off for requesting a Fast Track Appeal.
E. RIGHTS in the INTERNAL APPEAL PROCESS
F. WHEN and with what NOTICE Must Plan Decide INTERNAL APPEAL?
If the plan has extended the time for it to decide an appeal, -- see Extension Notice - (Web) - (PDF) - 11.4.2021 -- it must make reasonable efforts to give the enrollee prompt oral notice of the delay, and within 2 calendar delays give the enrollee writeen notice of the reason for the delay and of the right to file a grievance about the delay. The plan must resolve the appeal "as expeditiously as the enrollee's health condition requires and no later than the date the extension expires." 42 CFR 438.408(c)(2).
IV. "DEEMED EXHAUSTION" - Member May Request a Fair Hearing without Internal Appeal if Plan Failed to Meet Notice and Timing Requirements
The federal regulations allow ONE exception to the "exhaustion" requirement - if the member requested the plan appeal, and the plan failed to decide the appeal within the time limits in 42 C.F.R. Sec. 438.408. In other words, where the managed care plan “fails to adhere to the notice and timing requirements of this section, the enrollee is deemed to have exhausted the [managed care plan'] … appeals process. The enrollee may initiate a State fair hearing.” 42 CFR 438.408(c)(3); 438.402(c)(1)(i)(A). The referenced regulation specifies the TIME LIMITs for the plan to decide a Plan Appeal, both standard and expedited appeals, and the circumstances for when the plan may extend the time to decide by up to 14 days.
when CMS published this federal regulation, its response to comments said that States may define deemed exhaustion more broadly. New York State has not done so. Deemed exhaustion applies -- allowing a fair hearing request despite no Final Adverse Decision -- only if the appeal was requested, and the plan did not decide it on time or with the right notices. Consumers have asked the State to define deemed exhaustion to apply in other situations as well, such as the following. However, the State has not expanded the definition to include situations where:
V. RIGHT TO REQUEST FAIR HEARING after Adverse Internal Appeal Decision ("Final Adverse Determination").
AID CONTINUING ALERT - If the plan's Initial Adverse Determination was a proposed reduction of services, and the plan denied the appeal - in whole or in part - the Final Adverse Determination notice should again give the member the right to request a Fair Hearing with Aid Continuing. See Model notices above. Again, the member must meet the short deadline to request the Fair hearing within 10 days of the date of the Final Adverse Determination notice or before the effective date of that notice. Otherwise the member will not receive AID CONTINUING - even if the member obtained aid continuing on the internal appeal requested with the plan.
AID CONTINUING rights apply even if plan reduces services:
MLTC Policy 14.05: Aid-continuing
MLTC Policy 14.05(a): Proper Handling of Enrollees´ Request for Fair Hearing
NEW 120-DAY TIME LIMIT TO REQUEST FAIR HEARING - the new federal regulations allow 120 calendar days to request a fair hearing., from the date of the Final Adverse Determination (the plan's internal appeal decision). This is longer than the previous limit of 60 days. 42 CFR 438.408
How to request a Fair Hearing - See this link to OTDA website. Fax requests are recommended since you can keep proof of fax. IF there is an Aid Continuing deadline, phone call or fax is recommended.
See WNYLC website on NY Fair Hearings
VI. EXTERNAL APPEALS -- Option to File After Internal Appeal - Instead of or in Addition to Fair Hearing
The plan’s Final Adverse Determination notice denying your Internal Plan Appeal will explain your right to request an External Appeal, if the reason for the denial is because they determine the service is not medically necessary or is experimental or investigational.
You may request an External Appeal even if you also request a Fair Hearing. The Fair Hearing decision supersedes the decision after the External Appeal. NY Public Health Law 4910.
External Appeals are administered by the NYS Department of Financial Services (DFS), which is the NYS insurance department that regulates all health insurance, long term care insurance, etc. It is a different State agency than OTDA that administers Medicaid Fair Hearings. They have a good website with all the required forms and instructions -- https://www.dfs.ny.gov/complaints/file_external_appeal, The appeal is entirely on paper so your submission must be complete.
External Appeals are available to any NYS resident who is a member of a health plan -- a group health plan offered by their employer, a privately purchased plan, and others -- not just Medicaid. So you need to educate the Hearing officer about the Medicaid standards.
Expedited (Fast-Tracked) External Appeals
Expedited external appeals are decided within 72 hours of being filed, but require extra work by the appellant or representative. For an external appeal to be expedited, the denial must concern an admission, availability of care, continued stay, or health care service for which the patient received emergency services and remains hospitalized; or -- most common in MLTC appeals -- the patient's physician must attest that the patient has not received the treatment and a 30-day timeframe would seriously jeopardize the patient's life, health, or ability to regain maximum function, or a delay will pose an imminent or serious threat to the patient's health. Or the patient is suffering from a health condition that may seriously jeopardize his or her life, health, or ability to regain maximum function, or is undergoing a current course of treatment using a non-formulary drug. A patient may request an expedited internal and external appeal at the same time.
If you request both an External Appeal and a Fair Hearing, the decision from your Fair Hearing will be the one that is followed by your plan. NY Public Health Law 4910.
TIP: If the issue is a REDUCTION of home care, an External Appeal is not recommended. The procedural rights placing the burden of proof on the plan to prove a change in consumer's medical condition or other circumstances are well known to ALJs and may be less familiar to DFS reviewers. See MLTC Policy 16.06: Guidance on Notices Proposing to Reduce or Discontinue Personal Care Services or Consumer Directed Personal Assistance Services and discussion of Mayer v. Wing here Plus consumer should be receiving Aid Continuing so there is no urgency to expedite the process.
DFS has recently created a searchable database to search external appeal decisions like the OTDA fair hearing decision archive. https://www.dfs.ny.gov/public-appeal/search --You can search by "home health care" or "personal care services"
VII. MORE ON GRIEVANCES - NOW CALLED "COMPLAINTS"
How to Request a Grievance or Complaint
You or someone you have authorized on your behalf can file a complaint with the plan in writing, over the phone or in person. Your member handbook or member services representative should explain how to file the complaint.
For most plans, one requests a complaint or appeal by calling the member services telephone line. A consumer must be assertive in requesting that they be referred to file a Grievance or Appeal, and know the difference. Otherwise, the call may never be routed correctly.
TIMING: The plan must decide your grievance within 90 days after receiving the grievance. 42 CFR 438.408(b). .
If you are not satisfied with how your grievance is handled, or it is an emergency, you can also call the State Department of Health MLTC Complaint Hotline at 1-866-712-7197.
VIII. WHERE TO GO FOR HELP - CLICK HERE for List of Organizations