Purpose: Codify the existing expedited fair hearings process for managed care clients as required by federal regulations.

     Citation of Existing Rules Affected by this Order: Amending WAC 388-538-112.

     Statutory Authority for Adoption: RCW 74.08.090, 74.09.520.

     Other Authority: 42 C.F.R. 431.244 (f)(2).

     Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

     Reasons for this Finding: This emergency rule adoption is necessary while the permanent rule-making process is being completed because current WAC does not reflect existing policy for an expedited fair hearing process for managed care clients as required by 42 C.F.R. 431-244 (f)(2).

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.

     Date Adopted: February 8, 2005.

Andy Fernando, Manager

Rules and Policies Assistance Unit

     (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 ninety calendar 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, ((or)) and the enrollee is requesting continuation of services, within ten calendar 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) Expedited fair hearing process:

     (a) If the enrollee or the enrollee's representative indicates in their request for a fair hearing that taking the time for a standard resolution could seriously jeopardize the enrollee's life or health and ability to attain, maintain, or regain maximum function.

     (b) The office of administrative hearings (OAH) 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 business days after OAH receives the fair hearing request.

     (c) If OAH denies a request for expedited resolution of an appeal, it must:

     (i) Transfer the appeal to the time frame for standard resolution; and

     (ii) Make reasonable efforts to give the enrollee prompt oral notice of the denial, and follow up within two calendar days with a written notice.

     (6) Parties to the fair hearing include the department, the MCO, the enrollee, and the enrollee's representative or the representative of a deceased enrollee's estate.

     (((6))) (7) If an enrollee disagrees with the fair hearing decision, then the enrollee may request an independent review (IR) in accordance with RCW 48.43.535.

     (((7))) (8) If there is disagreement with the IR decision, the department of social and health services (DSHS) board of appeals (BOA) issues the final administrative decision.

[Statutory Authority: RCW 74.08.090, 74.09.522, 2003 E1 c 25 § 201(4), 2004 c 276 § 201(4), 42 USC 1396N (section 1915 (b) and (c) of the Social Security Act of 1924). 05-01-066, § 388-538-112, filed 12/8/04, effective 1/8/05. Statutory Authority: RCW 74.08.090, 74.09.522, and 74.09.450. 04-13-002, § 388-538-112, filed 6/2/04, effective 7/3/04. Statutory Authority: RCW 74.08.090, 74.09.522. 03-18-110, § 388-538-112, filed 9/2/03, effective 10/3/03.]

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