Effective Date of Rule: February 4, 2006.

     Purpose: The department is amending this rule to codify the existing expedited 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).

     This continues the emergency rule that is currently in effect under WSR 05-21-017. The permanent rule has been adopted under WSR 06-03-081 and will supersede this emergency rule when the permanent rule becomes effective February 12, 2006. This emergency rule covers the gap between the expiration (February 4) of the current emergency rule and the effective date of the permanent rule.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.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: January 25, 2006.

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))) requesting a 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)) hearing requests 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)) hearing requests 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 and hearing 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 hearing process:

     (a) The office of administrative hearings (OAH) must establish and maintain an expedited hearing process when the enrollee or the enrollee's representative requests an expedited hearing and OAH indicates that the time taken for a standard resolution of the claim could seriously jeopardize the enrollee's life or health and ability to attain, maintain, or regain maximum function.

     (b) When approving an expedited hearing, OAH must issue a hearing decision as expeditiously as the enrollee's health condition requires, but not later than three business days after receiving the case file and information from the MCO regarding the action and MCO appeal.

     (c) When denying an expedited hearing, OAH gives prompt oral notice to the enrollee followed by written notice within two calendar days of request and transfer the hearing to the timeframe for a standard service.

     (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, any party may request a review by the department of social and health services (DSHS) board of appeals (BOA) within twenty-one days of the IR decision. The department's 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.]