PROPOSED RULES
SOCIAL AND HEALTH SERVICES
(Medical Assistance Administration)
Original Notice.
Preproposal statement of inquiry was filed as WSR 03-10-086.
Title of Rule: Part 2 of 3, chapter 388-538 WAC, Managed care; amending WAC 388-538-100 Managed care emergency services and 388-538-110 The grievance system for managed care organizations (MCOs); and new sections WAC 388-538-111 Primary care case management (PCCM) grievances and appeals and 388-538-112 The medical assistance administration's (MAA's) fair hearing process for enrollee appeals of managed care organization (MCO) actions.
Purpose: To bring the managed care program into compliance with the federal Balanced Budget Act (BBA) of 1997. The department is also updating and clarifying the criteria for exemptions and ending enrollment in managed care in order to provide a simpler, more flexible decision-making process while preserving clients' rights.
Statutory Authority for Adoption: RCW 74.08.090, 74.09.522.
Statute Being Implemented: RCW 74.09.080, 74.09.510, 74.09.522, 74.09.450, 42 C.F.R. 438.400 through 420.
Summary: See Purpose above.
Reasons Supporting Proposal: See Purpose above.
Name of Agency Personnel Responsible for Drafting: Ann Myers, P.O. Box 45533, Olympia, WA 98504, (360) 725-1345; Implementation and Enforcement: Michael Paulson, P.O. Box 45530, Olympia, WA 98504, (360) 725-1641.
Name of Proponent: Department of Social and Health Services, Medical Assistance Administration, governmental.
Rule is necessary because of federal law, 42 C.F.R. 438.400 through 420.
Explanation of Rule, its Purpose, and Anticipated Effects: See Purpose above.
The purpose is to meet federal requirements, update policies regarding exemption and ending enrollment and clarify existing policy.
The anticipated effect is compliance with federal requirements and easier to understand rules.
Proposal Changes the Following Existing Rules: The rules amend the process whereby clients may voice complaints and grievances and file appeals and fair hearing requests for managed care organization (MCO) actions to bring the process into compliance with the federal Balanced Budget Act. The rules also amend the criteria for exemption and ending enrollment in managed care, as well as the quality of care requirements for MCOs.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has analyzed the proposed rules, and, to the best of the department's knowledge, the businesses affected by the rule employ more than fifty employees. The affected businesses therefore do not meet the definition of a small business in RCW 19.85.020, and a statement is not required.
RCW 34.05.328 applies to this rule adoption. The department has determined that while the proposed rule meets the definition of a "significant legislative rule," amended WAC 388-538-110, 388-538-111, and 388-538-112 are exempt under RCW 34.05.328 (5)(b)(iii) because the amendments to these sections are to comply with federal Balanced Budget Act requirements.
WAC 388-538-100 is amended to clarify policy and does not make significant changes to that policy. The department has analyzed the proposed amendments and concludes that the probable benefits are greater than the probable costs. A copy of the cost/benefit analysis memo is available from the department representative named above.
Hearing Location: Blake Office Park (behind Goodyear Courtesy Tire), 4500 10th Avenue S.E., Rose Room, Lacey, WA 98503, on August 5, 2003, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Fred Swenson, DSHS Rules Consultant, by July 15, 2003, phone (360) 664-6097, TTY (360) 664-6178, e-mail swensFH@dshs.wa.gov.
Submit Written Comments to: Identify WAC Numbers, Department of Social and Health Services, Rules Coordinator, Rules and Policies Assistance Unit, delivered to 4500 10th Avenue S.E., Lacey, WA, mail to P.O. Box 45850, Olympia, WA 98504-5850, fax (360) 664-6185, or e-mail fernaax@dshs.wa.gov, by 5:00 p.m., August 5, 2003.
Date of Intended Adoption: Not sooner than August 6, 2003.
June 23, 2003
Brian H. Lindgren, Manager
Rules and Policies Assistance Unit
3243.4(a) The managed care organization (MCO) covers emergency services for MCO enrollees.
(b) MAA covers emergency services for primary care case management (PCCM) enrollees.
(2) Emergency services for emergency medical conditions do not require prior authorization by the MCO, primary care provider (PCP), PCCM provider, or MAA.
(3) MCOs must cover all emergency services ((received by
an MCO)) provided to an enrollee ((for nonemergency medical
conditions must be authorized by the plan for enrollee's MCO))
by a provider who is qualified to furnish Medicaid services,
without regard to whether the provider is a participating or
nonparticipating provider.
(4) An enrollee who requests emergency services is entitled to receive an exam to determine if the enrollee has an emergency medical condition. What constitutes an emergency medical condition may not be limited on the basis of diagnosis or symptoms.
(5) The MCO must cover emergency services provided to an enrollee when:
(a) The enrollee had an emergency medical condition, including cases in which the absence of immediate medical attention would not have had the outcomes specified in the definition of an emergency medical condition; and
(b) The plan provider or other MCO representative instructs the enrollee to seek emergency services.
(6) In any disagreement between a hospital and the MCO about whether the enrollee is stable enough for discharge or transfer, or whether the medical benefits of an unstabilized transfer outweigh the risks, the judgment of the attending physician(s) actually caring for the enrollee at the treating facility prevails.
[Statutory Authority: RCW 74.09.080, 74.08.510, [74.08.]522, 74.09.450, 1115 Waiver, 42 U.S.C. 1396. 02-01-075, § 388-538-100, filed 12/14/01, effective 1/14/02. Statutory Authority: RCW 74.08.090, 74.09.510 and [74.09.]522 and 1115 Federal Waiver, 42 U.S.C. 1396 (a), (e), (p), 42 U.S.C. 1396r-6(b), 42 U.S.C. 1396u-2. 00-04-080, § 388-538-100, filed 2/1/00, effective 3/3/00. Statutory Authority: RCW 74.08.090 and 1995 2nd sp.s. c 18. 95-18-046 (Order 3886), § 388-538-100, filed 8/29/95, effective 9/1/95. Statutory Authority: RCW 74.08.090. 95-04-033 (Order 3826), § 388-538-100, filed 1/24/95, effective 2/1/95; 93-17-039 (Order 3621), § 388-538-100, filed 8/11/93, effective 9/11/93.]
(a) For managed care organization (MCO) enrolles [enrollees], the MCO's complaint and appeal processes, and through the department's fair hearing process; or
(b) For primary care case management (PCCM) enrollees, the complaint and appeal processes of the medical assistance administration (MAA), and through the department's fair hearing process (chapter 388-02 WAC).
(2) To ensure the rights of MCO enrollees are protected, MAA approves each MCO's complaint and appeal policies and procedures annually or whenever the plan makes a change to the process.
(3) MAA requires MCOs to inform MCO enrollees in writing within fifteen days of enrollment about their rights and how to use the MCO's complaint and appeal processes. MAA requires MCOs to obtain MAA approval of all written information sent to enrollees.
(4) MAA provides PCCM enrollees with information equivalent to that described in subsection (3) of this section.
(5) MCO enrollees may request assistance from the MCO when using the MCO's complaint and appeals processes. PCCM enrollees may request assistance from MAA when using MAA's complaint and appeal process.
(6) An MCO enrollee who submits a complaint under this section is entitled to a written or verbal response from the MCO or from MAA within the timeline in the MAA-approved complaint process.
(7) When an enrollee is not satisfied with how the complaint is resolved by the MCO or by MAA, or if the complaint is not resolved in a timely fashion, the enrollee may submit an appeal to the MCO or to MAA. An enrollee may also appeal an MAA, MCO, primary care provider (PCP), or provider decision, or reconsideration of any action or inaction. An enrollee who appeals an MAA, MCO, PCP, or provider decision is entitled to all of the following:
(a) A review of the decision being appealed. The review must be conducted by an MCO or MAA representative who was not involved in the decision under appeal;
(b) Continuation of the service already being received and which is under appeal, until a final decision is made;
(c) A written decision from MAA or the MCO, within the timeline(s) in the appeal process standards, in the enrollee's primary language. The decision does not need to be translated if an enrollee with limited English proficiency prefers correspondence in English, and the deciding authority documents the enrollee's preference. The notice must clearly explain all of the following:
(i) The decision and any action MAA or the MCO intends to take;
(ii) The reason for the decision;
(iii) The specific information that supports MAA's or the MCO's decision; and
(iv) Any further appeal or fair hearing rights available to the enrollee, including the enrollee's right to continue receiving the service under appeal until a final decision is made.
(d) An expedited decision when it is necessary to meet an existing or anticipated acute or urgent medical need.
(8) An enrollee may file a fair hearing request without also filing an appeal with MAA or the MCO or exhausting MAA's or the MCO's appeal process.
(9) The MCO's medical director or designee reviews all fair hearings requests, and any related appeals, when the issues involve an MCO's determination of medical necessity.
(10) MAA's medical director or the medical director's designee reviews all fair hearings requests, and any related appeals, when the PCCM enrollee's issues involve an MAA determination of medical necessity)) may be enrolled in a managed care organization (MCO) or with a primary care case management (PCCM) provider. This section contains information about the grievance system for MCO enrollees, which includes grievances and appeals as defined in WAC 388-538-050. See WAC 388-538-111 for information about the grievance system for PCCM enrollees, which includes grievances and appeals. See WAC 388-538-112 for the department's fair hearing process for appeals by MCO enrollees.
(2) An MCO enrollee may voice a grievance or appeal an action by an MCO either orally or in writing.
(3) If an MCO fails to meet the timeframes in this section concerning any appeal, the MCO must provide the services that are the subject of the appeal.
(4) MCOs must maintain records of grievances and appeals and must review the information as part of the MCO's quality strategy.
(5) MCOs must provide information describing the MCO's grievance system to all providers and subcontractors in any contract.
(6) Each MCO must have a grievance system in place for enrollees. The system must comply with the requirements of this section and the regulations of the state office of the insurance commissioner (OIC), insofar as OIC regulations are not in conflict with this chapter. Where such a conflict exists, the requirements of this chapter take precedence. The MCO grievance system must include all of the following:
(a) A grievance process for complaints about any matter other than an action, as defined in WAC 388-538-050. See subsection (7) of this section for this process;
(b) An appeal process for an action, as defined in WAC 388-538-050. See subsection (8) of this section for the standard appeal process and subsection (9) of this section for the expedited appeal process; and
(c) Access to the department's fair hearing process. The department's fair hearing process described in chapter 388-02 WAC applies to this chapter. Where conflicts exists, the requirements in this chapter take precedence. See WAC 388-538-112 for the department's fair hearing process for MCO enrollees.
(7) The MCO grievance process:
(a) Only an enrollee may file a grievance with an MCO; a provider may not file a grievance on behalf of an enrollee.
(b) To ensure the rights of MCO enrollees are protected, MAA approves each MCO's grievance process.
(c) MCOs must inform enrollees in writing within fifteen days of enrollment about enrollees' rights and how to use the MCO's grievance process, including how to use the department's fair hearing process. MAA must approve all written information the MCO sends to enrollees.
(d) The MCO must give enrollees any reasonable assistance in taking procedural steps for grievances (e.g., interpreter services and toll-free numbers).
(e) The MCO must acknowledge receipt of each grievance.
(f) The MCO must ensure that the individuals who make decisions on grievances are individuals who:
(i) Were not involved in any previous level of review or decision-making; and
(ii) If deciding any of the following, are health care professionals who have appropriate clinical expertise in treating the enrollee's condition or disease:
(A) A grievance regarding denial of an expedited resolution of an appeal; or
(B) A grievance involving clinical issues.
(g) The MCO must complete the disposition of a grievance and notice to the affected parties within ninety days of receiving the grievance.
(8) The MCO appeal process:
(a) An MCO enrollee, or a provider acting on behalf of the enrollee and with the enrollee's written consent, may appeal an MCO action. A provider may not request a department fair hearing on behalf of an enrollee.
(b) To ensure the rights of MCO enrollees are protected, MAA approves each MCO's appeal process.
(c) MCOs must inform enrollees in writing within fifteen days of enrollment about enrollees' rights and how to use the MCO's appeal process and the department's fair hearing process. MAA must approve all written information the MCO sends to enrollees.
(d) For standard service authorization decisions, an enrollee must file an appeal, either orally or in writing, within ninety calendar days of the date on the MCO's notice of action. This also applies to an enrollee's request for an expedited appeal.
(e) For appeals for termination, suspension, or reduction of previously authorized services, if the enrollee is requesting continuation of services, the enrollee must file an appeal within ten calendar days of the date of the MCO mailing the notice of action. Otherwise, the timeframes in subsection (8)(d) of this section apply.
(f) The MCO's notice of action must:
(i) Be in writing;
(ii) Be in the enrollee's primary language and be easily understood as required in 42 C.F.R. 438.10(c) and (d);
(iii) Explain the action the MCO or its contractor has taken or intends to take;
(iv) Explain the reasons for the action;
(v) Explain the enrollee's or the provider's right to file an MCO appeal;
(vi) Explain the procedures for exercising the enrollee's rights;
(vii) Explain the circumstances under which expedited resolution is available and how to request it (also see subsection (9) of this section);
(vii) Explain the enrollee's right to have benefits continue pending resolution of an appeal, how to request that benefits be continued, and the circumstances under which the enrollee may be required to pay the costs of these services (also see subsection
(10) of this section); and
(viii) Be mailed as expeditiously as the enrollee's health condition requires, and as follows:
(A) For denial of payment, at the time of any action affecting the claim. This applies only when the client can be held liable for the costs associated with the action.
(B) For standard service authorization decisions that deny or limit services, not to exceed fourteen calendar days following receipt of the request for service, with a possible extension of up to fourteen additional calendar days if the enrollee or provider requests extension.
(C) For termination, suspension, or reduction of previously authorized services, ten days prior to such termination, suspension, or reduction, except if the criteria stated in 42 C.F.R. 431.213 and 431.214 are met. The notice must be mailed by a method which certifies receipt and assures delivery within three calendar days.
(D) For expedited authorization decisions, in cases where the provider indicates or the MCO determines that following the standard timeframe could seriously jeopardize the enrollee's life or health or ability to attain, maintain, or regain maximum function, no later than three calendar days after receipt of the request for service.
(f) The MCO must give enrollees any reasonable assistance in taking procedural steps for an appeal (e.g., interpreter services and toll-free numbers).
(g) The MCO must acknowledge receipt of each appeal.
(h) The MCO must ensure that the individuals who make decisions on appeals are individuals who:
(i) Were not involved in any previous level of review or decision-making; and
(ii) If deciding any of the following, are health care professionals who have appropriate clinical expertise in treating the enrollee's condition or disease:
(A) An appeal of a denial that is based on lack of medical necessity; or
(B) An appeal that involves clinical issues.
(i) The process for appeals must:
(i) Provide that oral inquiries seeking to appeal an action are treated as appeals (to establish the earliest possible filing date for the appeal), and must be confirmed in writing, unless the enrollee or provider requests an expedited resolution. Also see subsection (9) for information on expedited resolutions;
(ii) Provide the enrollee a reasonable opportunity to present evidence, and allegations of fact or law, in person as well as in writing. The MCO must inform the enrollee of the limited time available for this in the case of expedited resolution;
(iii) Provide the enrollee and the enrollee's representative opportunity, before and during the appeals process, to examine the enrollee's case file, including medical records, and any other documents and records considered during the appeal process; and
(iv) Include as parties to the appeal, the enrollee and the enrollee's representative, or the legal representative of the deceased enrollee's estate.
(j) MCOs must resolve each appeal and provide notice, as expeditiously as the enrollee's health condition requires, within the following timeframes:
(i) For standard resolution of appeals, including independent review under RCW 48.43.535 and notice to the affected parties, no longer than forty-five calendar days from the day the MCO receives the appeal. This timeframe may not be extended.
(ii) For expedited resolution of appeals, including notice to the affected parties, no longer than three calendar days after the MCO receives the appeal.
(iii) For appeals for termination, suspension, or reduction of previously authorized services, no longer than forty-five calendar days from the day the MCO receives the appeal.
(k) The notice of the resolution of the appeal must:
(i) Be in writing. For notice of an expedited resolution, the MCO must also make reasonable efforts to provide oral notice (also see subsection (9) of this section).
(ii) Include the results of the resolution process and the date it was completed.
(iii) For appeals not resolved wholly in favor of the enrollee:
(A) Include information on the enrollee's right to request a department fair hearing and how to do so (also see WAC 388-538-112);
(B) Include information on the enrollee's right to receive services while the hearing is pending and how to make the request (also see subsection (10) of this section); and
(C) Inform the enrollee that the enrollee may be held liable for the cost of services received while the hearing is pending, if the hearing decision upholds the MCO's action (also see subsection (11) of this section).
(l) If an MCO enrollee does not agree with the MCO's resolution of the appeal, the enrollee may file a request for a department fair hearing within the following timeframes (see WAC 388-538-112 for the MAA fair hearing process for MCO enrollees):
(i) For appeals regarding a standard service, within twenty days of the date of the MCO's notice of the resolution of the appeal.
(ii) For appeals regarding termination, suspension, or reduction of a previously authorized service, within ten (10) days of the date on the MCO's notice of the resolution of the appeal.
(m) The MCO enrollee must exhaust all levels of resolution and appeal within the MCO's grievance system prior to filing an appeal (a request for a department fair hearing) with MAA.
(9) The MCO expedited appeal process:
(a) Each MCO must establish and maintain an expedited appeal review process for appeals when the MCO determines (for a request from the enrollee) or the provider indicates (in making the request on the enrollee's behalf or supporting the enrollee's request), that taking the time for a standard resolution could seriously jeopardize the enrollee's life or health or ability to attain, maintain, or regain maximum function.
(b) The MCO must make a decision on the enrollee's request for expedited appeal and provide notice, as expeditiously as the enrollee's health condition requires, within three calendar days after the MCO receives the appeal. The MCO must also make reasonable efforts to provide oral notice.
(c) The MCO must ensure that punitive action is neither taken against a provider who requests an expedited resolution or supports an enrollee's appeal.
(d) If the MCO denies a request for expedited resolution of an appeal, it must:
(i) Transfer the appeal to the timeframe for standard resolution; and
(ii) Make reasonable efforts to give the enrollee prompt oral notice of the denial, and follow up within two (2) calendar days with a written notice.
(10) Continuation of previously authorized services:
(a) The MCO must continue the enrollee's services if all of the following apply:
(i) The enrollee or the provider files the appeal on or before the later of the following:
(A) Unless the criteria in 42 C.F.R. 431.213 and 431.214 are met, within ten calendar days of the MCO mailing the notice of action, which for actions involving services previously authorized, must be delivered by a method which certifies receipt and assures delivery within three calendar days; or
(B) The intended effective date of the MCO's proposed action.
(ii) The appeal involves the termination, suspension, or reduction of a previously authorized course of treatment;
(iii) The services were ordered by an authorized provider;
(iv) The original period covered by the original authorization has not expired; and
(v) The enrollee requests an extension of services.
(b) If, at the enrollee's request, the MCO continues or reinstates the enrollee's services while the appeal is pending, the services must be continued until one of the following occurs:
(i) The enrollee withdraws the appeal;
(ii) Ten calendar days pass after the MCO mails the notice of the resolution of the appeal and the enrollee has not requested a department fair hearing (with continuation of services until the department fair hearing decision is reached) within the ten days;
(iii) The state Office of Administrative Hearings (OAH) issues a fair hearing decision adverse to the enrollee; or
(iv) The time period or service limits of a previously authorized service has been met.
(c) If the final resolution of the appeal upholds the MCO's action, the MCO may recover the amount paid for the services provided to the enrollee while the appeal was pending, to the extent that they were provided solely because of the requirement for continuation of services.
(11) Effect of reversed resolutions of appeals:
(a) If the MCO or OAH reverses a decision to deny, limit, or delay services that were not provided while the appeal was pending, the MCO must authorize or provide the disputed services promptly, and as expeditiously as the enrollee's health condition requires.
(b) If the MCO or OAH reverses a decision to deny authorization of services, and the enrollee received the disputed services while the appeal was pending, the MCO must pay for those services.
[Statutory Authority: RCW 74.09.080, 74.08.510, [74.08.]522, 74.09.450, 1115 Waiver, 42 U.S.C. 1396. 02-01-075, § 388-538-110, filed 12/14/01, effective 1/14/02. Statutory Authority: RCW 74.08.090, 74.09.510 and [74.09.]522 and 1115 Federal Waiver, 42 U.S.C. 1396 (a), (e), (p), 42 U.S.C. 1396r-6(b), 42 U.S.C. 1396u-2. 00-04-080, § 388-538-110, filed 2/1/00, effective 3/3/00. Statutory Authority: RCW 74.08.090. 97-04-004, § 388-538-110, filed 1/24/97, effective 2/24/97. Statutory Authority: RCW 74.08.090 and 1995 2nd sp.s. c 18. 95-18-046 (Order 3886), § 388-538-110, filed 8/29/95, effective 9/1/95. Statutory Authority: RCW 74.08.090. 94-04-038 (Order 3701), § 388-538-110, filed 1/26/94, effective 2/26/94; 93-17-039 (Order 3621), § 388-538-110, filed 8/11/93, effective 9/11/93.]
Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 388-538-111
Primary care case management (PCCM)
grievances and appeals.
(1) A managed care enrollee may be
enrolled in a managed care organization (MCO) or with a
primary care case management (PCCM) provider. This section
contains information about the grievance system for PCCM
enrollees, which includes grievances and appeals. See WAC 388-538-110 for information about the grievance system for MCO
enrollees, which includes grievances and appeals. See WAC 388-538-112 for the fair hearing process for appeals by MCO
enrollees.
(2) A PCCM enrollee may voice a grievance or appeal an MAA action, either orally or in writing. PCCM enrollees use the medical assistance administration's (MAA's) grievance and appeal processes.
(3) The grievance process for PCCM enrollees;
(a) A PCCM enrollee may file a grievance with MAA. A provider may not file a grievance on behalf of a PCCM enrollee.
(b) MAA provides PCCM enrollees with information equivalent to that described in WAC 388-538-110 (7)(c).
(c) When a PCCM enrollee files a grievance with MAA, the enrollee is entitled to:
(i) Any reasonable assistance in taking procedural steps for grievances (e.g., interpreter services and toll-free numbers);
(ii) Acknowledgment of MAA's receipt of the grievance;
(iii) A review of the grievance. The review must be conducted by an MAA representative who was not involved in the grievance issue; and
(iv) Disposition of a grievance and notice to the affected parties within ninety days of MAA receiving the grievance.
(4) The appeal process for PCCM enrollees:
(a) A PCCM enrollee may file an appeal of an MAA action with MAA. A provider may not file an appeal on behalf of a PCCM enrollee.
(b) MAA provides PCCM enrollees with information equivalent to that described in WAC 388-538-110 (8)(c).
(c) The appeal process for PCCM enrollees follows that described in chapter 388-02 WAC. Where a conflict exists, the requirements in this chapter take precedence.
[]
(2) An MCO enrollee must exhaust all levels of resolution and appeal within the MCO's grievance system prior to filing an appeal (a request for a department fair hearing) with MAA. See WAC 388-538-110 for the MCO grievance system.
(3) If an MCO enrollee does not agree with the MCO's resolution of the enrollee's appeal, the enrollee may file a request for a department fair hearing within the following time frames:
(a) For appeals regarding a standard service, within twenty days of the date of the MCO's notice of the resolution of the appeal.
(b) For appeals regarding termination, suspension, or reduction of a previously authorized service, ir the enrollee is requesting continuation of services, within ten days of the date on the MCO's notice of the resolution of the appeal.
(4) The entire appeal process, including the MCO appeal process, must be completed within ninety calendar days of the date the MCO enrollee filed the appeal with the MCO, not including the number of days the enrollee took to subsequently file for a department fair hearing.
(5) Parties to the MAA fair hearing include the MCO, the enrollee, and the enrollee's representative or the representative of a deceased enrollee's estate.
[]