Original Notice.

     Preproposal statement of inquiry was filed as WSR 09-05-061.

     Title of Rule and Other Identifying Information: WAC 388-865-0255 Resolving consumer dissatisfaction -- Grievances, appeals, and administrative hearings; and new WAC 388-865-0256 Consumer grievance process, 388-865-0257 Appeal process for medicaid consumers, and 388-865-0258 Notice of action.

     Hearing Location(s): Office Building 2, Auditorium, DSHS Headquarters, 1115 Washington, Olympia, WA 98504 (public parking at 11th and Jefferson. A map is available at http://www1.dshs.wa.gov/msa/rpau/RPAU-OB-2directions.html

or by calling (360) 664-6094), on December 7, 2010, at 10:00 a.m.

     Date of Intended Adoption: Not sooner than December 8, 2010.

     Submit Written Comments to: DSHS Rules Coordinator, P.O. Box 45850, Olympia, WA 98504-5850, delivery 1115 Washington Street S.E., Olympia, WA 98504, e-mail DSHSRPAURulesCoordinator@dshs.wa.gov, fax (360) 664-6185, by 5 p.m. on December 7, 2010.

     Assistance for Persons with Disabilities: Contact Jennisha Johnson, DSHS rules consultant, by November 23, 2010, TTY (360) 664-6178 or (360) 664-6094 or by e-mail at jennisha.johnson@dshs.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The division of behavioral health and recovery is updating and clarifying consumer grievance and appeal policy, as well as making the language clearer and easier to understand.

     Reasons Supporting Proposal: See Purpose above.

     Statutory Authority for Adoption: RCW 71.05.560, 71.24,035 [71.24.035] (5)(c), and 71.34.380.

     Statute Being Implemented: 42 C.F.R. § 438.400.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of social and health services, governmental.

     Name of Agency Personnel Responsible for Drafting: Kevin Sullivan, P.O. Box 45504, Olympia, WA 98504-5504, (360) 725-1344; Implementation: David Weston, P.O. Box 45320, Olympia, WA 98504-5320, (360) 725-1133; and Enforcement: Pete Marburger, P.O. Box 45320, Olympia, WA 98504-5320, (360) 725-1513.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule change does not impose new costs on small businesses.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Kevin Sullivan, P.O. Box 45504, Olympia, WA 98504-5504, phone (360) 725-1344, fax (360) 586-9727, e-mail kevin.sullivan@dshs.wa.gov.

November 1, 2010

Katherine I. Vasquez

Rules Coordinator

     (c) The regional support network, mental health prepaid health plan, the department of social and health services, or a provider denies services)) The regional support network/prepaid inpatient health plan (RSN/PIHP) must develop and implement written procedures for resolving consumer dissatisfaction.

     (1) For the purposes of this section and WAC 388-865-0256, 388-865-0257 and 388-865-0258, the following definitions apply:

     (a) "Action" - A decision by the RSN/PIHP regarding medicaid consumers for any of the following circumstances:

     (i) Denial or limited authorization of a requested service, including the type and level of service;

     (ii) Reduction, suspension, or termination of a previously authorized service;

     (iii) Denial in whole or in part, of payment for a service;

     (iv) Failure to provide services in a timely manner, as defined by the state; or

     (v) Failure of a prepaid inpatient health plan to act within the timeframes provided in section 42 CFR 438.408(b).

     (b) "Appeal" - A request by a medicaid consumer or someone acting on the consumer's behalf with their written permission, for review of an action. See WAC 388-865-0257 for specific requirements.

     (c) "Currently authorized services" - Services authorized for the period of eligibility currently in effect.

     (d) "Grievance" - An expression of dissatisfaction about any matter, other than an action, that has been formally filed by a consumer with the RSN/PIHP. A grievance may be submitted orally or in writing. See WAC 388-865-0256 for specific requirements.

     (e) "Notice of action" - The written notice the RSN/PIHP sends to a consumer to communicate an action as defined in subsection (1)(a). See WAC 388-865-0258 for specific requirements.

     (2) A consumer who is dissatisfied with anything involving the community mental health agency (CMHA), the RSN/PIHP, or the department:

     (a) Has the right to have concerns about their mental health services resolved at the lowest possible level. Consumers may request assistance from the RSN/PIHP ombuds services (see WAC 388-865-0250) in resolving concerns, including help with grievances, appeals, and the state administrative (fair) hearing process;

     (b) May decide to pursue concerns or dissatisfactions at the CMHA level or informally through the RSN/PIHP or the department without formally filing a grievance;

     (c) May file a grievance at RSN/PIHP level at any time, and without first requesting other remedies;

     (d) Has a right, if a medicaid consumer, to appeal an action. All consumers have a right to other grievance resolution and administrative hearing processes;

     (e) May request a state administrative hearing to resolve possible violations of WAC or an unfavorable outcome of a grievance or an appeal of a notice of action at the RSN/PIHP level. Consumers who wish to request a state administrative hearing must first have exhausted grievance or appeal remedies through the RSN/PIHP;

     (f) May locate further information about the grievance process in WAC 388-865-0256 and the appeal process in WAC 388-865-0257.

[Statutory Authority: RCW 71.05.560, 71.24.035 (5)(c), 71.34.800, 9.41.047, 43.20B.020, and 43.20B.335. 01-12-047, § 388-865-0255, filed 5/31/01, effective 7/1/01.]

     (1) Reflect age, cultural and linguistic competence and ensure assistance to consumers in completing forms and taking other procedural steps. This includes, but is not limited to, providing interpreter services, and toll-free numbers that have adequate TTY/TTD and interpreter capability.

     (2) Allow the consumer to file a grievance orally or in writing. If orally, it must be followed up in writing within ten days. The RSN/PIHP must ensure acknowledgment of receipt of the grievance the following working day. This acknowledgment may be by telephone, with written acknowledgment mailed within five working days of the oral request (not dependent upon receipt of written request).

     (3) Ensure that grievances are investigated and resolved at the RSN/PIHP level within thirty calendar days of receipt. This timeframe can be extended by mutual written agreement, not to exceed ninety days.

     (4) Be published and made available to all current or potential users of publicly funded mental health services and advocates in language that is clear and understandable to the individual.

     (5) Ensure that grievances are resolved at the lowest local level possible.

     (6) Allow the participation of other people at the consumer's choice.

     (7) Ensure that the consumer is mailed a written notice of resolution that includes the reason for the decision within ninety days from the date a written grievance is received by the RSN/PIHP. This timeframe can be extended up to fourteen days:

     (a) If requested by the consumer; or

     (b) By the RSN when it shows additional information is needed and how the delay is in the consumer's interest.

     (8) Ensure that grievances are resolved even if the consumer is no longer receiving services.

     (9) Ensure the consumer's right to have currently authorized services continued pending resolution of the grievance.

     (10) Ensure that the individuals who make decisions on grievances:

     (a) Were not involved in any previous level of review or decision making; and

     (b) Are mental health professionals who have appropriate clinical expertise, if the grievance is regarding a denial based on lack of medical necessity or a denial of expedited resolution of appeal or involves clinical issues.

     (11) Ensure that full records of all grievances are kept for six years after the completion of the grievance process and make them available to the department upon request as part of the state quality strategy. Records must be kept in confidential files separate from the consumer's clinical record. These records must not be disclosed without the consumer's written permission, except to the department or as necessary to resolve the grievance.

     (12) Provide for follow up by the RSN/PIHP to assure that there is no retaliation against consumers who have filed a grievance.

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     (1) A medicaid consumer can appeal any action (as defined in WAC 388-865-0255).

     (2) An appeal can be requested by:

     (a) A medicaid consumer;

     (b) A medicaid consumer's representative (requires written authorization from consumer); or

     (c) A community mental health agency (CMHA) on behalf of the medicaid consumer (requires written authorization from consumer).

     (3) The appeal procedures must:

     (a) Reflect age, cultural and linguistic competence and ensure medicaid consumers receive assistance in completing forms and taking other procedural steps. This includes, but is not limited to, providing interpreter services, and toll-free telephone numbers that have adequate TTY/TTD and interpreter capability; and

     (b) Be published and made available to all current or potential medicaid users of publicly funded mental health services and advocates in language that is clear and understandable to the individual.

     (4) The RSN/PIHP must:

     (a) Acknowledge receipt of each appeal; and

     (b) Maintain records of appeals.

     (5) Upon a request from the medicaid consumer, the RSN/PIHP must continue to provide currently authorized services during the appeal process and until a decision is reached, as outlined in subsection (14) of this section.

     (6) For all actions related to standard service authorizations, an appeal must be filed either orally or in writing, within thirty calendar days of the date on the RSN/PIHP's notice of action. This also applies to a medicaid consumer's request for an expedited appeal. For appeals other than those for which expedited resolution is requested, an oral filing must be followed by a signed, written appeal within seven days.

     (7) The RSN/PIHP must ensure that the individuals who make decisions on appeals are persons who:

     (a) Were not involved in any previous level of review or decision making; and

     (b) Are mental health professionals who have appropriate clinical expertise if the appeal is regarding a denial based on lack of medical necessity, or a denial of an expedited resolution of appeal, or involves clinical issues.

     (8) The process for appeals must:

     (a) 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 medicaid consumer or CMHA requests an expedited resolution (see subsection (12) of this section for expedited resolution process);

     (b) Provide the medicaid consumer a reasonable opportunity to present evidence, and allegation of fact or law, in person as well as in writing;

     (c) Provide the medicaid consumer and the medicaid consumer's representative the opportunity, before and during the appeals process, to examine the medicaid consumer's case file, including medical records, and any other documents and records considered during the appeal process; and

     (d) Include as parties to the appeal, the medicaid consumer and the medicaid consumer's representative, or the legal representative of the deceased medicaid consumer's estate.

     (9) RSN/PIHP must resolve each appeal and provide notice of the resolution, as expeditiously as the medicaid consumer's mental health condition requires, within the following timeframes:

     (a) The standard resolution of an appeal, including notice to the affected parties, cannot exceed forty-five calendar days from the day the RSN/PIHP receives the appeal.

     (b) For expedited resolution of appeals, the written notice must be provided no later than three working days after the RSN/PIHP receives the appeal.

     (c) The timeframes is subsections (a) and (b) may be extended for up to an additional fourteen days at the medicaid consumer's request or if the RSN/PIHP shows to the satisfaction of the department, upon request, that there is need for additional information and how the delay is in the medicaid consumer's interest. If the RSN/PIHP extends the timeframes, it must, for any extension not requested by the medicaid consumer, give the medicaid consumer written notice for the reason for the delay.

     (10) The notice of the resolution of the appeal must:

     (a) Be in writing. For notice of an expedited resolution, the RSN/PIHP must also make reasonable efforts to provide oral notice (see subsection (12) of this section);

     (b) Include the results of the resolution process and the date it was completed; and

     (c) For appeals not resolved wholly in favor of the medicaid consumer:

     (i) Include information on the consumer's right to request an administrative hearing through the office of administrative hearings (OAH) and how to do so (see WAC 388-865-0257);

     (ii) Include information on the medicaid consumer's right to receive currently authorized services while the hearing is pending and how to make the request (see subsection (14) of this section); and

     (iii) Inform the medicaid consumer that the medicaid consumer may be held liable for the cost of services received while the hearing is pending if the hearing decision upholds the RSN/PIHP's action (see subsection (13) of this section).

     (11) If a medicaid consumer does not agree with the RSN/PIHP's resolution of the appeal, the medicaid consumer may file a request for an administrative hearing with OAH within ninety days of the receipt of the notice of the resolution of the appeal.

     (12) The RSN/PIHP must maintain an expedited review process for appeals.

     (a) The process applies when the RSN/PIHP determines (for a request from a medicaid consumer) or the CMHA indicates (in making the request on the medicaid consumer's behalf or supporting the medicaid consumer's request), that taking the time for a standard resolution could seriously jeopardize the medicaid consumer's life or mental health or ability to attain, maintain, or regain maximum function;

     (b) The process must result in a decision on the appeal within three working days after the RSN/PIHP receives the appeal, except as provided in subsection (9)(c) of this section. The RSN/PIHP must also make reasonable efforts to provide oral notice.

     (c) If the RSN/PIHP 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 medicaid consumer prompt oral notice of the denial, and follow up within two calendar days with a written notice.

     (d) The RSN/PIHP must ensure that no punitive action is taken against a medicaid consumer or a CMHA who requests an expedited resolution or supports a medicaid consumer's appeal.

     (13) Continuation of services:

     (a) The RSN/PIHP must ensure the continuation of the medicaid consumer's services if all of the following apply:

     (i) The medicaid consumer or the CMHA files the appeal on or before the later of the following:

     (A) Within ten calendar days of the RSN/PIHP mailing the notice of action; or

     (B) The intended effective date of the RSN/PIHP's proposed action.

     (ii) The appeal involves the termination, suspension, or reduction of currently authorized services;

     (iii) The services were ordered by an authorized provider;

     (iv) The original period covered by the original authorization has not expired; and

     (v) The medicaid consumer requests an extension of services.

     (b) If, at the medicaid consumer's request the RSN/PIHP continues or reinstates the medicaid consumer's services while the appeal is pending, the currently authorized services must be continued until one of the following occurs:

     (i) The medicaid consumer withdraws the appeal;

     (ii) Ten calendar days pass after the RSN/PIHP mails the notice of an unfavorable resolution of the appeal, unless the medicaid consumer has requested an administrative hearing. If the medicaid consumer has requested an administrative hearing, then previously authorized services continue until the department administrative hearing decision is reached;

     (iii) OAH issues an administrative hearing decision adverse to the medicaid consumer; 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 RSN/PIHP's action, the RSN/PIHP may recover the amount paid for the services provided to the medicaid consumer while the appeal was pending, to the extent that they were provided solely because of the requirement for continuation of services.

     (14) Effect of reversed resolutions of appeals:

     (a) If the RSN/PIHP or OAH reverses a decision related to services that were not provided while the appeal was pending, the RSN/PIHP must authorize or provide the disputed services promptly, and as expeditiously as the medicaid consumer's mental health condition requires; or

     (b) If the RSN/PIHP or OAH reverses a decision to deny authorization of services, and the medicaid consumer received the disputed services while the appeal was pending, the RSN/PIHP must pay for those services.

     (15) A medicaid consumer appealing an action must exhaust all levels of resolution within the RSN/PIHP prior to filing a request for an administrative hearing.

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     (1) Be in writing;

     (2) Be in the consumer's primary language and be easily understood as required by 42 CFR 438.10 (c) and (d);

     (3) Explain the action the RSN/PIHP or its contractor has taken or intends to take;

     (4) Explain the reasons for the action;

     (5) Explain the consumer's or the CMHA's right to file an appeal of notice of action to the RSN/PIHP;

     (6) Explain the procedures for exercising the consumer's rights;

     (7) Explain the circumstances under which an expedited appeal may be requested and how to request it;

     (8) Explain the consumer's right to have currently authorized services continue pending resolution of an appeal, how to request that services be continued, and the circumstances under which the consumer may be required to pay the costs of these services;

     (9) Be mailed no later than ten days prior to the effective date of the action, for the termination, suspension, or reduction of previously authorized medicaid covered services;

     (10) Be mailed at the time of any action affecting the claim, for the denial of payment;

     (11) Be provided as expeditiously as the consumer's mental health condition requires;

     (12) For standard service authorization decisions that deny or limit services, must be mailed within fourteen calendar days following receipt of the request for service, with a possible extension of up to fourteen additional days if the consumer or CMHA requests extension or the RSN/PIHP justifies a need for an extension which is in the consumer's best interest; and

     (13) For expedited authorization decisions, in cases where the CMHA indicates or the RSN/PIHP determines that following the standard timeframe could seriously jeopardize the consumer's life or mental health or ability to attain, maintain, or regain maximum functioning, must be provided within three working days after receipt of the request for service, with a possible extension of up to fourteen additional calendar days if the consumer requests an extension or the RSN/PIHP justifies a need for an extension which is in the consumer's best interest.

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