Lawriter - OAC - 5160-26-08.4 Managed health care programs: managed care plan appeal and grievance system.

5160-26-08.4 Managed health care programs: managed care plan appeal and grievance system.

This rule does not apply to MyCare Ohio plans as defined in rule 5160-58-01 of the Administrative Code. Provisions regarding appeals and grievances for MyCare Ohio are described in Chapter 5160-58 of the Administrative Code.

(A) Definitions.

(1) "Adverse benefit determination" is a managed care plan (MCP)'s:

(a) Denial or limited authorization of a requested service, including determinations based on the type or level of service, requirements for medical necessity, appropriateness, setting, or effectiveness of a covered benefit;

(b) Reduction, suspension, or termination of services prior to the member receiving the services previously authorized by the MCP;

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

(d) Failure to provide services in a timely manner as specified in rule 5160-26-03.1 of the Administrative Code;

(e) Failure to act within the resolution time frames specified in this rule; or

(f) Denial of a member's request to dispute a financial liability, including cost sharing, copayments, premiums, deductibles, coinsurance and other member financial liabilities, if applicable.

(2) "Appeal" is the member's request for an MCP's review of an adverse benefit determination.

(3) "Grievance" is the member's expression of dissatisfaction about any matter other than an adverse benefit determination. Grievances may include, but are not limited to, the quality of care or services provided, and aspects of interpersonal relationships such as rudeness of a provider or employee, or failure to respect the member's rights regardless of whether remedial action is requested. Grievance includes a member's right to dispute an extension of time proposed by the MCP to make an authorization decision.

(4) "Notice of action (NOA)" is the written notice an MCP must provide to members when an MCP adverse benefit determination has occurred or will occur.

(B) NOA by an MCP.

(1) When an MCP adverse benefit determination has occurred or will occur, the MCP shall provide the affected member with a NOA.

(2) The language and format of the NOA shall comply with the requirements listed in 42 CFR 438.10 (October 1, 2017), and the NOA shall explain:

(a) The adverse benefit determination the MCP has taken or intends to take;

(b) The reasons for the adverse benefit determination, including the right of the member to be provided, upon request and free of charge, reasonable access to copies of all documents, records, and other relevant determination information;

(c) The member's right to file an appeal to the MCP;

(d) Information related to exhausting the MCP appeal;

(e) The member's right to request a state hearing through the state's hearing system upon exhausting the MCP appeal;

(f) Procedures for exercising the member's rights to appeal the adverse benefit determination;

(g) Circumstances under which expedited resolution is available and how to request it;

(h) If applicable, the member's right to have benefits continue pending the resolution of the appeal, how to request that benefits be continued, and the circumstances under which the member may be required to pay for the cost of these services; and

(i) The date the notice is issued.

(3) An MCP shall issue each NOA within the following time frames:

(a) For a decision to deny or limit authorization of a requested service the MCP shall issue a NOA simultaneously with the MCP's decision.

(b) For reduction, suspension, or termination of services prior to the member receiving the services previously authorized by the MCP, the MCP shall give notice at least fifteen calendar days before the effective date of the adverse benefit determination except:

(i) If probable recipient fraud has been verified, the MCP shall give notice five calendar days before the effective date of the adverse benefit determination.

(ii) Under the circumstances set forth in 42 CFR 431.213 (October 1, 2017), the MCP shall give notice on or before the effective date of the adverse benefit determination.

(c) For denial of payment for a non-covered service, the MCP shall give notice simultaneously with the MCP's determination to deny the claim, in whole or part, for a service not covered by medicaid, including a service determined through the MCP's prior authorization process as not medically necessary.

(d) For untimely prior authorization, appeal, or grievance resolution, the MCP shall give notice simultaneously with the MCP becoming aware of the untimely resolution. Service authorization decisions not reached within the time frames specified in rule 5160-26-03.1 of the Administrative Code constitutes a denial and is thus considered to be an adverse benefit determination. Notice shall be given on the date the authorization decision time frame expires.

(C) Grievances to an MCP.

(1) A member may file a grievance with an MCP orally or in writing at any time. An authorized representative must have the member's written consent to file a grievance on the member's behalf.

(2) An MCP shall acknowledge the receipt of each grievance to the member filing the grievance. Oral acknowledgment by an MCP is acceptable. If the grievance is filed in writing, written acknowledgment shall be made within three business days of receipt of the grievance.

(3) An MCP shall review and resolve all grievances as expeditiously as the member's health condition requires. Grievance resolutions, including member notification, shall meet the following time frames:

(a) Within two business days of receipt if the grievance is regarding access to services.

(b) Within thirty calendar days of receipt for non claims-related grievances except as specified in paragraph (C)(3)(a) of this rule.

(c) Within sixty calendar days of receipt for claims-related grievances.

(4) At a minimum, an MCP shall provide oral notification to the member of a grievance resolution. If an MCP is unable to speak directly with the member, or the resolution includes information that must be confirmed in writing, the resolution shall be provided in writing simultaneously with the MCP's resolution.

(5) If an MCP's resolution to a grievance is to uphold the denial, reduction, suspension, or termination of a service or billing of a member due to the MCP's denial of payment for that service, the MCP shall notify the member of his or her right to request a state hearing as specified in paragraph (G) of this rule, if the member has not previously been notified.

(D) Standard appeal to an MCP.

(1) A member, a member's authorized representative, or a provider may file an appeal orally or in writing within sixty calendar days from the date that the NOA was issued. An oral appeal filing must be followed with a written appeal. An MCP shall:

(a) Immediately convert an oral appeal filing to a written appeal on behalf of the member; and

(b) Consider the date of the oral appeal filing as the filing date.

(2) Any provider acting on the member's behalf shall have the member's written consent to file an appeal. An MCP shall begin processing the appeal upon receipt of the written consent.

(3) An MCP shall acknowledge receipt of each appeal to the member filing the appeal. At a minimum, acknowledgment shall be made in the same manner the appeal was filed. If an appeal is filed in writing, written acknowledgment shall be made by an MCP within three business days of receipt of the appeal.

(4) An MCP shall provide the member reasonable opportunity to present evidence and allegations of fact or law, in person as well as in writing, and inform the member of this opportunity sufficiently in advance of the resolution time frame. Upon request, the member and/or member's authorized representative shall be provided, free of charge and sufficiently in advance of the resolution time frame, the case file, including medical records, other documents and records, and any new or additional evidence considered, relied upon or generated by the MCP, or at the direction of the MCP, in connection with the appeal of the adverse benefit determination.

(5) An MCP shall consider the member, the member's authorized representative, or an estate representative of a deceased member as parties to the appeal.

(6) An MCP shall review and resolve each appeal as expeditiously as the member's health condition requires, but the resolution time frame shall not exceed fifteen calendar days from the receipt of the appeal unless the resolution time frame is extended as outlined in paragraph (F) of this rule.

(7) An MCP shall provide written notice of the appeal's resolution to the member, and to the member's authorized representative if applicable. At a minimum, the written notice shall include the resolution decision and date of the resolution.

(8) For appeal resolutions not resolved wholly in the member's favor, the written notice to the member shall also include the following information:

(a) The right to request a state hearing through the state's hearing system;

(b) How to request a state hearing; and if applicable:

(i) The right to continue to receive benefits pending a state hearing;

(ii) How to request the continuation of benefits; and

(iii) If the MCP's adverse benefit determination is upheld at the state hearing, the member may be liable for the cost of any continued benefit.

(c) Oral interpretation is available for any language;

(d) Written translation is available in prevalent non-English languages as applicable;

(e) Written alternative formats may be available as needed; and

(f) How to access the MCP's interpretation and translation services as well as alternative formats that can be provided by the MCP.

(9) For appeal resolutions decided in favor of the member, an MCP shall:

(a) Authorize or provide the disputed services promptly and as expeditiously as the member's health condition requires, but no later than seventy-two hours from the appeal resolution date, if the services were not furnished while the appeal was pending.

(b) Pay for the disputed services if the member received the services while the appeal was pending.

(E) Expedited appeals to an MCP.

(1) An MCP shall establish and maintain an expedited review process to resolve appeals when the member requests and the MCP determines, or the provider indicates in making the request on the member's behalf or supporting the member's request, that the standard resolution time frame could seriously jeopardize the member's life, physical or mental health or ability to attain, maintain, or regain maximum function.

(2) In utilizing an expedited appeal process, an MCP shall comply with the standard appeal process specified in paragraph (D) of this rule, except the MCP shall:

(a) Determine within one business day of the appeal request whether to expedite the appeal resolution;

(b) Make reasonable efforts to provide prompt oral notification to the member of the decision to expedite or not expedite the appeal resolution;

(c) Inform the member of the limited time available for the member to present evidence and allegations of fact or law in person or in writing;

(d) Resolve the appeal as expeditiously as the member's health condition requires, but the resolution time frame shall not exceed seventy-two hours from the date the MCP received the appeal unless the resolution time frame is extended as outlined in paragraph (F) of this rule;

(e) Make reasonable efforts to provide oral notice of the appeal resolution in addition to the required written notification;

(f) Ensure punitive action is not taken against a provider who requests an expedited resolution or supports a member's appeal; and

(g) Notify ODM within one business day of any appeal that meets the criteria for expedited resolution as specified by ODM.

(3) If an MCP denies a member's request for expedited resolution of an appeal, the MCP shall:

(a) Transfer the appeal to the standard resolution time frame of fifteen calendar days from the date the appeal was received unless the resolution time frame is extended as outlined in paragraph (F) of this rule;

(b) Make reasonable efforts to provide the member prompt oral notification of the decision not to expedite, and within two calendar days of the receipt of the appeal, provide the member written notice of the reason for the denial, including information that the member can grieve the decision.

(F) Grievance and appeal resolution extensions.

(1) A member may request the time frame for an MCP to resolve a grievance or a standard or expedited appeal be extended up to fourteen calendar days.

(2) An MCP may request the time frame to resolve a grievance or a standard or expedited appeal be extended up to fourteen calendar days. The following requirements apply:

(a) The MCP shall seek such an extension from ODM prior to the expiration of the standard or expedited appeal or grievance resolution time frame;

(b) The MCP request shall be supported by documentation of the need for additional information and that the extension is in the member's best interest; and

(c) If ODM approves the extension, the MCP shall make reasonable efforts to provide the member prompt oral notification of the extension and, within two calendar days, provide the member written notice of the reason for the extension and the date by which a decision shall be made.

(3) An MCP shall maintain documentation of any extension request.

(G) Access to state's hearing system.

(1) Except as set forth in paragraph (G)(2) of this rule, and in accordance with 42 CFR 438.402 (October 1, 2017), members may request a state hearing only after exhausting the MCP's appeal process. If an MCP fails to adhere to the notice and timing requirements for appeals set forth in this rule, the member is deemed to have exhausted the MCP appeal process and may request a state hearing.

(2) In accordance with rule 5160-20-01 of the Administrative Code, members proposed for enrollment or currently enrolled in the coordinated services program (CSP) are afforded state hearing rights in accordance with division 5101:6 of the Administrative Code and are not subject to the requirement of first appealing to the MCP.

(3) When required by paragraph (D)(8) of this rule, and in accordance with division 5101:6 of the Administrative Code, an MCP shall notify members, and any authorized representatives on file with the MCP, of the right to a state hearing subject to the following requirements:

(a) If an MCP appeal resolution upholds the denial of a request for the authorization of a service, in whole or in part, the MCP shall simultaneously issue the "Notice of Denial of Medical Services By Your Managed Care Plan" (ODM 04043, 1/2018).

(b) If an MCP appeal resolution upholds the decision to reduce, suspend, or terminate services prior to the member receiving the services as previously authorized by the MCP, the MCP shall issue the "Notice of Reduction, Suspension or Termination of Medical Services By Your Managed Care Plan" (ODM 04066, 1/2018).

(c) If an MCP learns a member has been billed for services received by the member due to the MCP's denial of payment, and the MCP upholds the denial of payment, the MCP shall immediately issue the "Notice of Denial of Payment for Medical Services By Your Managed Care Plan" (ODM 04046, 1/2018).

(4) The member or member's authorized representative may request a state hearing within one hundred twenty days from the date of an adverse appeal resolution by contacting the ODJFS bureau of state hearings or local county department of job and family services (CDJFS).

(5) There are no state hearing rights for a member terminated from an MCP pursuant to an MCP-initiated membership termination as permitted in rule 5160-26-02.1 of the Administrative Code.

(6) Following the bureau of state hearing's notification to an MCP that a member has requested a state hearing, the MCP shall:

(a) Complete the "Appeal Summary for Managed Care Plans" (ODM 01959, 7/2014) with appropriate supporting attachments, and file it with the bureau of state hearings at least three business days prior to the scheduled hearing date. The appeal summary shall include all facts and documents relevant to the issue, in accordance with rule 5160-26-03.1 of the Administrative Code, and be sufficient to demonstrate the basis for the MCP's adverse benefit determination;

(b) Send a copy of the completed ODM 01959 to the member and the member's authorized representative, if applicable, the CDJFS, and the designated ODM contact; and

(c) If benefits were continued through the appeal process in accordance with paragraph (H)(1) of this rule, continue or reinstate the benefit(s) if the MCP is notified that the member's state hearing request was received within fifteen days from the date of the appeal resolution.

(7) An MCP shall participate in the state hearing, in person or by telephone, on the date indicated on the "Notice to Appear for a Scheduled Hearing" (JFS 04002, 01/2015) sent to the MCP by the bureau of state hearings.

(8) An MCP shall comply with the state hearing decision provided to the MCP via the "State Hearing Decision" (JFS 04005, 01/2015). If the state hearing decision sustains the member's appeal, the MCP shall submit the information required by the "Order of Compliance" (JFS 04068, 01/2015) to the bureau of state hearings. The information, including applicable supporting documentation, is due to the bureau of state hearings and the designated ODM contact by no later than the compliance date specified in the hearing decision. If applicable, the MCP shall:

(a) Authorize or provide the disputed services promptly and as expeditiously as the member's health condition requires, but no later than seventy-two hours from the date it receives notice reversing the adverse benefit determination if services were not furnished while the appeal was pending.

(b) Pay for the disputed services if the member received the services while the appeal was pending.

(H) Continuation of benefits while the appeal to an MCP or state hearing are pending.

(1) Unless a member requests that previously authorized benefits not be continued, an MCP shall continue a member's benefits when all the following conditions are met:

(a) The member requests an appeal within fifteen days of the MCP issuing the NOA;

(b) The appeal involves the termination, suspension, or reduction of services prior to the member receiving the previously authorized services;

(c) The services were ordered by an authorized provider; and

(d) The authorization period has not expired.

(2) If an MCP continues or reinstates the member's benefits while the appeal or state hearing are pending, the benefits shall be continued until one of the following occurs:

(a) The member withdraws the appeal or the state hearing request;

(b) The member fails to request a state hearing within fifteen days after the MCP issues an adverse appeal resolution; or

(c) The bureau of state hearings issues a state hearing decision upholding the reduction, suspension or termination of services.

(3) If the final resolution of the appeal or state hearing upholds an MCP's original adverse benefit determination, at the discretion of ODM, the MCP may recover the cost of the services furnished to the member while the appeal and/or state hearing was pending.

(I) Other duties of an MCP regarding appeals and grievances.

(1) An MCP shall give members all reasonable assistance filing a grievance, an appeal, or a state hearing request including but not limited to:

(a) Explaining the MCP's process to be followed in resolving the member's appeal or grievance;

(b) Completing forms and taking other procedural steps as outlined in this rule; and

(c) Providing oral interpretation and oral translation services, sign language assistance, and access to the appeals and grievance system through a toll-free number with text telephone yoke (TTY) and interpreter capability.

(2) An MCP shall ensure the individuals who make decisions on appeals and grievances are individuals who:

(a) Were neither involved in any previous level of review or decision-making nor a subordinate of any such individual; and

(b) Are health care professionals who have the appropriate clinical expertise in treating the member's condition or disease if deciding any of the following:

(i) An appeal of a denial based on lack of medical necessity;

(ii) A grievance regarding the denial of an expedited resolution of an appeal; or

(iii) An appeal or grievance involving clinical issues.

(3) In reaching an appeal resolution, an MCP shall take into account all comments, documents, records, and other information submitted by the member or their authorized representative without regard to whether such information was submitted or considered in the initial adverse benefit determination.

Replaces: 5160-26- 08.4

Effective: 1/1/2018
Five Year Review (FYR) Dates: 01/01/2023
Promulgated Under: 119.03
Statutory Authority: 5167.02
Rule Amplifies: 5164.02, 5167.13, 5167.03, 5167.10
Prior Effective Dates: 7/1/03, 6/1/06, 9/15/08, 7/1/09, 8/1/10, 1/1/12, 3/6/15, 8/1/16