130 Mass. Reg. 610.032

Current through Register 1522, May 24, 2024

Section 610.032 - Grounds for Appeal

(A) Applicants and members have a right to request a fair hearing for any of the following reasons:

(1) denial of an application or request for assistance, or the right to apply or reapply for such assistance;

(2) the failure of the MassHealth agency to give timely notice of action on an application for assistance in accordance with the requirements of M.G.L. c. 118E, § 21;

(3) any MassHealth agency action to suspend, reduce, terminate, or restrict a member's assistance;

(4) MassHealth agency actions to recover payments for benefits to which the member was not entitled at the time the benefit was received;

(5) individual MassHealth agency determinations regarding scope and amount of assistance (including, but not limited to, level-of-care determinations);

(6) coercive or otherwise improper conduct as defined in 130 CMR 610.033 on the part of any MassHealth agency employee directly involved in the applicant's or member's case;

(7) any condition of eligibility imposed by the MassHealth agency for assistance or receipt of assistance that is not authorized by federal or state law or regulations;

(8) the failure of the MassHealth agency to act upon a request for assistance within the time limits required by MassHealth regulations;

(9) the MassHealth agency's determination that the member is subject to the provisions of 130 CMR 508.000: MassHealth: Managed Care Requirements;

(10) the MassHealth agency's denial of an out-of-area provider under 130 CMR 508.003(A)(2);

(11) the MassHealth agency's disenrollment of a member from a managed care provider under 130 CMR 508.003: Enrollment with a MassHealth Managed Care Provider;

(12) the MassHealth agency's denial of a member's request to transfer out of the member's MCO, ACPP, or Primary Care ACO under 130 CMR 508.003: Enrollment with a MassHealth Managed Care Provider;

(13) the MassHealth agency's determination to enroll a member in the Controlled Substance Management Program under the provisions of 130 CMR 406.442: Controlled Substance Management Program; and

(14) the MassHealth agency's determination of eligibility for low-income subsidies under Medicare Part D, as set forth in the Medicare Prescription Drug and Improvement and Modernization Act of 2003 as described in federal regulations at 42 CFR Part 423, Subpart P.

(B) Members enrolled in a managed care contractor have a right to request a fair hearing for any of the following actions or inactions by the managed care contractor, provided the member has exhausted all remedies available through the managed care contractor's internal appeals process (except where a member is notified by the managed care contractor that exhaustion is unnecessary):

(1) failure to provide services in a timely manner, as defined in the information on access standards provided to members enrolled with the managed care contractor;

(2) a decision to deny or provide limited authorization of a requested service, including the type or level of service, including determinations based on the type or level of service, requirements for medically necessity, appropriateness, setting, or effectiveness of a covered benefit;

(3) a decision to reduce, suspend, or terminate a previous authorization for a service;

(4) a denial, in whole or in part, of payment for a service where coverage of the requested service is at issue, provided that procedural denials for services do not constitute appealable actions. Notwithstanding the foregoing, members have the right to request a fair hearing where there is a factual dispute over whether a procedural error occurred. Procedural denials include, but are not limited to, denials based on the following:

(a) failure to follow prior-authorization procedures;

(b) failure to follow referral rules; and

(c) failure to file a timely claim;

(5) failure to act within the time frames for resolution of an internal appeal as described in 130 CMR 508.010: Time Limits for Resolving Internal Appeals;

(6) a decision by an managed care contractor to deny a request by a member who resides in a rural service area served by only one managed care contractor to exercise his or her right to obtain services outside the managed care contractor's network under the following circumstances, pursuant to 42 CFR 438.52(b)(2)(ii):

(a) the member is unable to obtain the same service or to access a provider with the same type of training, experience, and specialization within the managed care contractor's network;

(b) the provider, from whom the member seeks service, is the main source of service to the member, except that member will have no right to obtain services from a provider outside the managed care contractor's network if the managed care contractor gave the provider the opportunity to participate in the managed care contractor's network under the same requirements for participation applicable to other providers and the provider chose not to join the network or did not meet the necessary requirements to join the network;

(c) the only provider available to the member in the managed care contractor's network does not, because of moral or religious objections, provide the service the member seeks; or

(d) the member's primary care provider or other provider determines that the member needs related services and that the member would be subjected to unnecessary risk if he or she received those services separately and not all of the related services are available within the managed care contractor's network; or

(7) failure to act within the time frames for making service authorization decisions, as described in the information on service authorization decisions provided to members enrolled with the managed care contractor.

(C) Nursing facility residents have the right to request an appeal of any nursing facility-initiated transfer or discharge.

(D) Hospital-determined presumptive eligibility as defined in 130 CMR 502.003(H): Hospital Determined Presumptive Eligibility is appealable. See130 CMR 502.008(C).

(E) Individuals have the right to request an appeal of their PASRR determination.

(F) Waiver applicants applying to one of the following HCBS Waiver Programs have a right to request a fair hearing for any of the following actions by the MassHealth agency:

(1) denial of an application due to financial ineligibility for any HCBS Waiver Program;

(2) denial of an application due to clinical ineligibility for the following HCBS Waiver Programs:

(a) Acquired Brain Injury - Nonresidential Habilitation (ABI-N);

(b) Acquired Brain Injury - Residential Habilitation (ABI-RH);

(c) Frail Elder Waiver (FEW);

(d) Moving Forward Plan - Community Living (MFP-CL);

(e) Money Follows the Person - Residential Supports (MFP-RS); and

(f) Traumatic Brain Injury (TBI).

(G) Waiver participants enrolled in one of the following HCBS Waiver Programs have the right to request a fair hearing for any of the following actions or inactions by the acting entity:

(1) disenrollment from an HBCS Waiver Program due to financial ineligibility for any HCBS Waiver Program:

(2) disenrollment from an HBCS Waiver Program due to clinical ineligibility for the following HCBS Waiver Programs:

(a) Acquired Brain Injury - Nonresidential Habilitation (ABI-N);

(b) Acquired Brain Injury - Residential Habilitation (ABI-RH);

(c) Frail Elder Waiver (FEW);

(d) Moving Forward Plan - Community Living (MFP-CL);

(e) Moving Forward Plan - Residential Supports (ABI-RS); and

(f) Traumatic Brain Injury (TBI);

(3) denial, suspension, reduction, modification, or termination of services, including failure to provide choice of available provider, for waiver participants enrolled in the following HCBS Waiver Programs:

(a) Acquired Brain Injury - Nonresidential Habilitation (ABI-N);

(b) Acquired Brain Injury - Residential Habilitation (ABI-RH);

(c) Moving Forward Plan - Community Living (MFP-CL);

(d) Moving Forward Plan - Residential Supports (MFP-RS); and

(e) Traumatic Brain Injury (TBI); and

(4) failure to act on a waiver participant's request for a HCBS Waiver Program service within 30 days of receiving such request for waiver participants enrolled in the following HCBS Waiver Programs: