Understanding Medicaid Service Denials and Appeals Process

Medicaid Service Denials and Appeals: Presented by: John Cimino, JD

Topics 1. What is due process? 2. Adverse Medicaid decisions 3. Can I get that in writing please? 4. Medicaid Waiver service denials and appeals 1. MCO internal appeals 2. DMAS Fair Hearings 3. Circuit Court review

Due Process The United States Constitution 14thAmendment nor shall any State deprive any person of life, liberty, or property, without due process of law Virginia Constitution, Article 1, Section 11 - That no person shall be deprived of his life, liberty, or property without due process of law Federal Medicaid Laws & Regulations State Medicaid Laws & Regulations Virginia Administrative Process Act (VAPA)

Due Process Requirements Notice, generally in writing Meaningful opportunity to appeal Review evidence Cross examine witnesses Present own witnesses Submit your own evidence Be assisted by person of your choosing

Adverse Medicaid Decisions Adverse actions include: Denial, termination, or suspension of eligibility Denial or change in benefits or services 42 CFR 435.917

Adverse Medicaid Decisions In the case of an MCO, any of the following: Denial or limited authorization of a requested service Reduction, suspension, or termination of previously authorized services Denial, in whole or in part, of payment for a service Failure to provide services in a timely manner 42 CFR 438.400

Notice requirements in Federal Medicaid Law When state agency makes an adverse medicaid decision, it must notify the Medicaid member in writing of: The action it intends to take; Why it wants to take that action; What regulations or laws support the action; Your right to appeal; When and how you can continue your benefits during appeal.

Notice Requirements Notice must: Be written in plain language; Be accessible to people with limited English proficiency; and Be accessible to individuals with disabilities Must be Clear Specific Include legal AND factual basis of decision

Notice Requirements DMAS Guidance to MCOs (January 2022) It is not sufficient to state Services Reduced. Not Medically Necessary with no other explanation provided. The notice must specify the factual basis and applicable authority that supports the action and how it applies to the Member s circumstances. It is not sufficient to use boilerplate language without any meaningful explanation fo why the requested units/hours are not. Or are no longer, medically necessary.

Notice Requirements DMAS Guidance to MCOs (January 2022) Cont. With respect to personal care services that are reduced or denied based on a member s Level of Care, the MCO should explain why the Level of Care guidelines are a more accurate assessment of the member s individual needs than the hours requested for ADL/IADL assistance. The MCO should explain how the Member s needs and/or supports have changed such that the previously approved units/hours are no longer medically necessary.

Timely Notice Notice must generally be sent at least ten (10) days before the date of the action 42 CFR 431.211

Inadequate Notice Remedy DMAS Guidance on State Fair Hearings (April 2021) For notices reducing or terminating existing coverage or services: [the Hearing Officer] Finds in favor of the member by ordering the Agency/contractor to reinstate the existing level of coverage or services at issue for a period of at least 30 calendar days; and Requires the Agency/contractor to issue a new compliant notice prior to the end of the 30 calendar day period by reviewing the same application or service authorization request

K.C. v. Shipman 716 F.3d 107 (4thCir. 2013) Plaintiffs = Medicaid Wavier members in N.C. FACTS MCO reduced Wavier members budgets = reduction in services MCO did not provide notice that met Constitutional or regulatory requirements MCO did not provide opportunity to appeal reduction in services Outome District Court reinstated previously approved services and enjoined Agency from reducing services without notice and hearing (preliminary injunction) Appeals Court dismissed appeal = lower court injunction stands

The Right to Appeal Medicaid members have a right to appeal any decision that adversely affects, reduces, or terminates their benefits or their request for a particular service Examples: You are told that you will no longer be eligible for Medicaid; You requested companion services and were denied; You are told that you will receive less personal care services than you requested; You are told that your transportation for out of state medical care will not be covered; Your request for services is approved, but with a start date that is later than you believe it should be.

Right to Appeal Includes right to: Be represented by person of your choosing; Present your own evidence; Cross examine witnesses against you; Bring your own witnesses to testify for you; Have your case decided by an impartial person who was not involved in the decision.

Medicaid Waiver Service Denials and Appeals in Virginia

CCC Plus Service Denials & Appeals Internal Appeal: If denied in whole or in part, may appeal w/in 60 days (10 days to keep benefits) Circuit Court Appeal: May appeal unfavorable Fair Hearing decision to Circuit Court (VAPA) Fair Hearing: May appeal adverse internal appeal decision to DMAS w/in 120 days (10 days to keep benefits) MCO Decision: MCO approves, partially approves, or denies request SA Request: Provider submits SA request to MCO

MCO Appeals MCO s must provide members an opportunity to obtain an internal appeal of any adverse decision Must be decided by someone who was not involved in initial decision Must result in a written decision that clearly explains the factual and legal basis of the decision MCO members must exhaust the internal appeal process before they can request a DMAS Fair Hearing

DD Waiver Service Denials & Appeals DMAS Fair Hearing: If request is denied, in whole or in part, member has a right to appeal w/in 30 days (10 days to keep benefits) Circuit Court Appeal: Member may appeal unfavorable Fair Hearing to Circuit Court (VAPA) DBHDS Decision: DBHDS SA consultant approves, modifies, pends, rejects, or denies request w/in 10 days SA Request: Support Coordinator submits request via WaMS

CCC Plus Waiver Service Denials Common issues Written notice that does not explain the reason for the decision; Boiler plate explanation of reason for denial; No citation to relevant laws, regulations, or policies; No mechanism for notice and appeal for certain denials Medication denials Out of state travel for Medically necessary services

DD Waiver Service Denials Common issues No written notice; Written notice that does not explain the reason for the decision; No citation to relevant laws, regulations, or policies; Notice received AFTER the effective date of the action (CD Personal Care Services through DD Waiver);

DBHDS Service Authorization - outcomes Modify Approve Pend Reject Deny If additional information is needed from the provider, the service authorization request will be pended No Due Process Rights Triggered b/c not a final decision Yay!! No Due Process Rights triggered May resubmit request, but generally start date cannot be prior to date of resubmissio n May or may not trigger due process rights* Triggers Due Process Rights because partial denial Triggers Due Process Rights May appeal or resubmit request, but resubmitted request generally cannot be approved for date prior to resubmissio n date

The MCO internal appeal Must be requested within 60 days of the adverse decision Within 10 days or before effective date in order to maintain services MCO must decide appeal within 30 days (or sooner if expedited) Must be decided by someone who was not involved in the initial decision

The Fair Hearing Must be requested within 30 days for agency decisions or within 120 days of an internal appeal decision for MCO decisions De Novo Appeal Can submit new evidence up to and including the day of the hearing Almost always by telephone Can be represented by an attorney or anyone of your choosing Can bring any willing witness who can speak to your case

How do you request a Fair Hearing? Easiest way to file an appeal is through the DMAS Fair Hearing Portal https://www.dmas.virginia.gov/appeals/ Attach decision letter to appeal If you have any questions about the process, you can call the DMAS Appeals Division 804-371-8488

The Fair Hearing Burden of Proof The burden of proof shall be assigned to the party that is attempting to make a change . When an already-eligible individual is facing a proposed termination or reduction in Medicaid eligibility or medical services, the burden of proof shall be assigned to the entity that has proposed the change to an individual s coverage.

The Fair Hearing Tips Review the Appeal Summary Carefully Prepare an outline of key points and check them off as you make them Stick to the relevant issues don t make it personal! Remember if it isn t in the record, the hearing officer doesn t know about it

Circuit Court Appeals Authorized by the Virginia Administrative Process Act (VAPA) Much more formal than the fair hearing NOT a De Novo appeal! (court review is much more limited) Requires notice to the Agency head within 30 days of the Fair Hearing decision; followed by a petition in Circuit Court within 30 days of notifying the Agency head May be represented by an attorney, but NOT by a non-attorney

What if you have more questions? Contact dLCV We take a limited number of cases on for representation We can provide information about your rights and options even if we cannot take your case on for representation https://www.dlcv.org/get-help

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