Appealing Medical Assistance or Waiver Denials (or Don t t take no for an answer) David Gates PA Health Law Project

Transcription

1 Appealing Medical Assistance or Waiver Denials (or Don t t take no for an answer) David Gates PA Health Law Project 1 Who can appeal? Individual in whose name benefits are sought Parent of child under 18 Legal guardian At age 18, parent no longer legal guardian unless guardianship obtained through court Agents under a Power of attorney Even persons with ID can grant POA if they can indicate intent to have a specific person make certain decisions on their behalf Provider with written authorization from patient 2

2 Who can appeal- Power of Attorney Power of Attorney can be limited: "To receive government benefits" and/or "To pursue claims and litigation Legal wording 20 Pa.C.S Allows parent to handle appeal without depriving young adult of their legal rights 3 Right to appeal- MA eligibility denial Right to appeal denial of Medical Assistance if application has been made 55 Pa Code 275.1(a)(4)(i)(C) However, County Assistance Office has 90 days to process MA application if disability determination needed Right to appeal if no decision made within 90 days 55 Pa Code 275.1(a)(4)(i)(E) 4

3 Right to appeal- MA service denials For Medical Assistance- right to appeal denial of coverage of treatment, therapy, drug, equipment or supplies by MA fee for service or MA Managed Care Organization (PH or BH) provided the treatment etc. is prescribed by medical professional within their scope of practice 5 Right to appeal- MA service denials For certain services (such as in-home nursing/aides & TSS) prescriber & service provider must submit a request with certain documentation before a decision will be made- prior authorization 6

4 Right to appeal- MA service denials Can appeal if MA or MA MCO denies or fails to decide prior auth request within: 24 hours for prescription meds 48 hours for home health requests 21 days for all other services 7 Right to appeal- ID eligibility denial Denial of Consolidated or PFDS waiver based on finding the person does not meet the definition of MR (IQ & impairments of adaptive behavior) can be appealed to County MH/MR ODP takes position that there is no right to a DPW fair hearing in this circumstance- but BHA has ruled otherwise. Jonathan A. Case#

5 Waiver eligibility denials Right to a DPW fair hearing for denial of any waiver & ACAP on grounds that person does not meet functional eligibility (level of care) Right to a DPW fair hearing for denial of any Waiver on grounds that individual s income or assets are above the limits 9 Right to appeal- Waiver service denials Right to DPW fair hearing if The individual or surrogate [guardian or POA] is denied Waiver-funded service(s) of the individual s choice, including the amount, duration, and scope of service(s). Developmental Programs Bulletin Best practice is to request service as revision to ISP Non-medical services do not need a prescription 10

6 Right to appeal- Waiver service denials Right to DPW fair hearing if the individual or surrogate [guardian or POA] is denied the individual s choice of willing and qualified Waiver provider(s). Developmental Programs Bulletin No right to appeal For MA & Waiver: prescriber prescribes or recommends a reduced amount or a different type of service- examples: The individual s physician prescribes fewer hours of nursing The individual s physician changes order from nursing to nurses aides Wrap provider s psychologist recommends fewer hours of TSS 12

7 No right to appeal- Waiver Individual found eligible for Waiver but put on waiting list due to lack of open slots 13 DPW fair hearing Administrative Law Judge presides over hearing- may be a lawyer Hearing can be in-person at certain locations across state or over the phone Agency whose decision is being appealed will present their reasons for their decision- often with a lawyer You present witnesses & documents 14

8 DPW Fair Hearing- time limits For a DPW fair hearing- must appeal within 30 days from written denial notice for applications & new service requests For appeal from agency failure to act, appeal within 60 days If DPW, MA MCO or County MH/MR decides to terminate or reduce coverage of ongoing services, those services continue at their current level if appeal is filed within 10 days of termination/reduction notice. 15 DPW Fair Hearing- ongoing benefits Appeal within 10 days will also continue coverage of services that are up for renewal (i.e. home health & wraparound) if a request for renewal of those services has been timely submitted by the provider 16

9 DPW fair hearing Can cross examine agency s witnesses & agency can cross examine you & your witnesses Some rules of evidence apply- notably hearsay May keep new doctor s letters from being considered ALJ renders written decision several weeks after hearing 17 Interim relief If no decision within 90 days of date appeal was filed, entitled to interim relief 55 Pa. Code 275.4(d) for services & supplies other than 1 time items like DME. Request interim relief by writing to entity that denied the service with cc: to BHA 18

10 Dealing with an MCO Denial Denials by MA-MCOs (Physical Health Plans and Behavioral Health Plans) are governed by Act 68 and by the Balanced Budget Act Act 68 DOH Regulations are at 28 PA Code Ch 9. BBA regs are at 42 C.F.R. Ch , et al MA MCOs must also abide by RFPs (available for viewing online on DPW Website) Search HealthChoices RFP 19 Dispute Options with an MA MCO Complaint: a dispute or objection regarding a participating provider, or about the coverage, operations or management policies of the plan. Grievance: a request to reconsider a decision regarding the medical necessity of a service. 20

11 Grievances: First Level Review Request can be filed in writing or orally. Grievance request must be filed within 45 days of the date of the occurrence or notice received. If MCO is trying to stop, reduce or change services person must file within 10 days of date of notice to get continued benefits pending appeal. Should receive written confirmation from MCO acknowledging receipt of dispute and how it is labeled (complaint or grievance) 21 First Level Grievance (con t) Consumer/advocate can review (or request a copy of) all information plan looked at to make decision upon request, and can submit additional information or documentation. Members can attend (in person, by phone, or videoconference, if available). Consumer should attend, must notify plan staff that they want to attend, otherwise review occurs w/o them. Review done by committee of 1 or more MCO staff not involved in initial decision. 22

12 First Level Grievance (con t) Summary of issues presented and decisions made must be created and made part of record. Review completed and decision made within 30 days of review request (unless Member requests up to a 14 day extension); written decision sent within 5 business days Decision must include: issue; decision; reasons and any authority in policy, guidelines, etc.; and how to appeal. 23 First Level Grievance (con t) Grievance review committee must include (or receive second opinion from) licensed physician, psychiatrist or dentist in same or similar specialty as typically manages or consults on service/item in question. 24

13 Second Level Grievance First level grievance decision can be appealed by requesting a Fair Hearing and/or a second level grievance Request for second level grievance must be filed orally or in writing within 45 days of the date member receives written notice of first level decision. (File within 10 days of date of written notice to receive continued benefits pending appeal) Upon receipt, plan must respond with written acknowledgement letter. 25 Second Level Grievance (con t) Scheduling second level review Member must be provided 15 days advance notice Plan shall be flexible when scheduling to facilitate member s attendance Member has right to appear in person/by phone/by videoconference if available Member has right to be accommodated re: transportation considerations/disabilities 26

14 Second Level Grievance (con t) Second level Grievance proceeding: Committee of at least 3 people not involved in previous decisions Committee must include (or get second opinion from) doctor of same or similar specialty to prescriber. At least one-third cannot be employee of plan. Committee must be impartial-can t discuss ahead of time; must base decision solely on information presented at review Less formal than DPW Fair Hearing process-it s the Plan s process and there is conflict between Plan wanting an informal discussion and advocate s interest in creating a clear record for further appeal 27 Second Level Grievance (con t) Consumer/witnesses can appear in person or by phone No right to cross examine Plan witnesses (there are none in attendance) Rules of evidence do not apply Panel renders written decision shortly after grievance meeting 28

15 Second Level Grievance (con t) Testimony must be tape-recorded and a summary prepared or transcribed verbatim and a summary prepared. Decision must be made within 30 days of date Grievance was filed for BH cases, and within 45 days for PH cases. Decision must provide reason(s); reference to the policy, criteria, guideline, etc. being relied on; scientific or clinical judgment behind decision (if grievance); and appeal information. 29 Appeal Review outside MCO Consumer can appeal a second level grievance decision by requesting an External Review and/or Fair Hearing Request for an External Review- must be filed with plan within 15 days of receipt of 2nd level decision for an external review by a Certified Review Entity (CRE). File appeal within 10 days of date of written notice to receive continued benefits pending appeal 30

16 External Review Process Plan must notify member within 5 business days of receipt of request that they have filed the member s request for external grievance with the appeal entity. MCO sends file and all documentation from earlier reviews (including transcript/tape recording/notes) to CRE. Each party can (should) submit additional information and argument to the CRE. must do so within 15 days of plan s receipt of request (because plans must do so by then.) CRE must review and issue a decision within 60 days If unsatisfied, appeal to Common Pleas Court. 31 Expedited Grievance Process Available (at any review stage) if provider certifies that: member s life, health or ability to attain, maintain or regain maximum function would be placed in jeopardy by following normal appeal process. May be requested orally or in writing to MCO. Provider must provide certification within 3 business days of member request. 32

17 Expedited Grievance Process (con t) If provider statement received, member has right to decision within 48 hours of when statement submitted, or within 3 business days of request, whichever is shorter. If provider statement not received, member notified that decision will be made within normal 30 day process. 33 Expedited Grievance Process (con t) Member can appear in person at review or submit information in writing. Decision must be mailed within 2 business days of being made. Consumer can request appeal of expedited grievance decision (at first or second level) through expedited External Review and/or expedited Fair Hearing. 34

18 Expedited Fair Hearing Process Only available in MA-MCO (not DPW) denials Same harm standard and certification required by provider. Request must be put into writing. Provider must submit statement within 3 business days of member s request: If received, member has right to a decision within 48 hours of when provider letter received, or within 3 business days of member s request, whichever is shorter. If not received, member gets decision within normal 90 day process. 35 Types of appeals- county reviews For decisions by County MH/MRs that individual does not meet MR definition Also for denials of base funded (nonwaiver) MR services County MH/MR appoints impartial reviewer [not involved in the denial under appeal] to conduct hearing and render written decision within 30 days of hearing 36

19 Which type of appeal? For disputes involving MA MCOs, choice of DPW fair hearing or grievance If continuing benefits are available may choose grievance because you can ask for DPW fair hearing later if you lose grievance If treating doctor won t testify at hearing, consider grievance as new letter from doctor can be submitted without hearsay objection Consider that agency is likely to have attorney at DPW fair hearing 37 Appeal timelines- continuing benefits If DPW, MA MCO or County MH/MR decides to terminate or reduce coverage of ongoing services, those services continue at their current level if appeal (DPW or grievance) is filed within 10 days of termination/reduction notice. Appeal within 10 days will also continue coverage of services that are up for renewal (i.e. home health & wraparound) if a request for renewal of those services has been timely submitted by the provider 38

20 How to appeal Appeals are made to the agency that made the decision being appealed- even if that agency will not be deciding the appeal Appeals should be made in writing & mailed certified or hand delivered getting a receipt However, in cases where appeal within 10 days provides continuing benefits, should start with appeal by phone to ensure appeal is received within 10 days then follow up in writing 39 How to appeal 2 No special wording required- I disagree with the decision is sufficient Supporting documents not needed at time of appeal (although important before hearing or grievance) Appeals must be signed (or mark with witnesses) by consumer or guardian or PoA 40

21 How to appeal 3 Medical Assistance denial/termination notices are required to provide info on how & where to appeal- Read the notice carefully Often, the denial/termination notices have space on the back to fill in & sign for appeal Waivers have their own appeal form- DP 458 for ID waivers 41 Right to documents- DPW appeal Right to examine prior to the hearing any document the agency intends to introduce at the DPW fair hearing 55 Pa Code 275.3(a)(3) Right to examine & copy agency case file on the Appellant except medical records (unless the agency plans to use them at the hearing) & allegations about the Appellant that disclose the identity of the person making the allegations 42

22 Right to documents- grievances Right to all relevant documentation pertaining to the subject of the Complaint or Grievance. HealthChoices agreements 43 Pre-hearing conference For DPW fair hearing appeal- right to a Pre-hearing conference with agency whose decision is being appealed. 55 Pa Code 275.4(a)(3)(ii) Provides an opportunity to present additional documentation & discuss appeal with supervisor 44

23 Preparing your case 1 First, determine the grounds for the denial Read the denial notice carefully If grounds not apparent from notice, request notes & documents from agency upon which decision was based- see slides Review existing documentation to determine what additional proof will be needed to refute grounds for denial Try to obtain that additional proof 45 Preparing your case 2 Ask treating doctor or other relevant professional to testify at hearing or grievance- can do it by phone This is critical! Work with treating doctor or other relevant professional on new letter of medical necessity that specifically addresses the grounds for the denial 46

24 Preparing your case 3 Where non-medical issues are involved (e.g. availability of parent to provide care or availability of natural supports ) seek documentation from 3 rd parties to support your position (parent s doctor, employer etc.) Call the Health Law Project for more advice Letters of medical necessity Materials at 48

25 Presenting your case Submit your documents to ALJ or grievance panel before the proceeding Write down notes of the relevant points you want to raise & the documents that support them State the issues on appeal in 2 or 3 sentences- stay focused on those issues Ask your witnesses questions that direct their testimony to the relevant issues 49 Presenting your case 2 Briefly point out portions of documents & records that support your position Don t get into arguments with agency staff- focus on persuading the ALJ or grievance panel Keep your presentation short- you probably won t get more than 30 minutes (even less for grievances) 50

26 If you win grievance For grievance- the MA MCO is bound by the decision of their own grievance panel If MA-MCO fails to promptly implement grievance decision, contact DPW and PA Dept of Health (call Health Law for applicable name & phone #) 51 If you win DPW fair hearing Agency may appeal the fair hearing decision by filing for Reconsideration Agency has only 15 days from date of fair hearing decision to file for Reconsideration However, you won t get notice until Secretary of Public Welfare issues preliminary Order Granting Reconsideration 52

27 If you win DPW fair hearing 2 If Secretary accepts Reconsideration, you have 15 days to respond. Call the Health Law Project for more advice If appeal was for ongoing services & you won, agency must provide those services while final Order on Reconsideration is pending- Moseley v. DPW, 598 A.2d 317 (1971) 53 If you lose DPW fair hearing Have 15 days from date of hearing decision to file Application/Petition for Reconsideration Form is included with hearing decision 54

28 Recon form 1 st page 55 Recon form 2 nd page 56

29 For more information Contact the PA Health Law Project (statewide) Thank you for your attendance! 57