10 Colo. Code Regs. § 2505-10-8.209

Current through Register Vol. 47, No. 16, August 25, 2024

Section 10 CCR 2505-10-8.209 - MEDICAID MANAGED CARE GRIEVANCE AND APPEAL PROCESSES

8.209.1GENERAL PROVISIONS

Medicaid members or their Designated Client Representatives enrolled in Managed Care Organizations (MCOs), Prepaid Inpatient Health Plans (PIHPs), or Prepaid Ambulatory Health Plans (PAHPs) may access and utilize the Medicaid Managed Care Grievance and Appeal Systems. The Grievance and Appeal Systems shall include a Grievance process and an Appeal process for handling Grievances and Appeals at the MCO, PIHP, or PAHP level and access to the State Fair Hearing process for Appeals.

8.209.2DEFINITIONS

8.209.2.A. Adverse Benefit Determination shall mean:

1. The 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 covered benefit;

2. The reduction, suspension or termination of a previously authorized service;

3. The denial, in whole or in part, of payment for a service;

4. The failure to provide services in a timely manner;

5. The failure to act within the timeframes provided in § 8.209.4 below;

6. The denial of a Medicaid member's request to exercise his or her right to obtain services outside the network for members in rural areas with only one MCO; or

7. The denial of a member's request to dispute a financial liability, including cost sharing, copayments, premiums, deductibles, coinsurance, and other member financial liabilities.

8.209.2.B. Appeal shall mean, for the purposes of this Section 8.209 only, a request for review by an MCO, PIHP, or PAHP of an Adverse Benefit Determination.

8.209.2.C. Designated Client Representative shall mean any person, including a treating health care professional, authorized in writing by the member or the member's legal guardian to represent his or her interests related to complaints or Appeals about health care benefits and services.

8.209.2.D. Grievance shall mean an oral or written expression of dissatisfaction about any matter other than an Adverse Benefit Determination, including but not limited to quality of care or services provided and aspects of interpersonal relationships such as rudeness of provider or employee, or failure to respect the member's rights.

8.209.2.E. Managed Care Organization (MCO) shall mean an entity that has, or is seeking to qualify for, a comprehensive risk contract under 42 CFR 438.2, and that is:

1. A Federally qualified HMO that meets the advance directives requirements of subpart I of 42 CFR 489; or

2. Any public or private entity that meets the advance directives requirements and is determined by the Secretary of the U.S. Department of Health and Human Services to also make the services it provides to its Medicaid members as accessible (in terms of timelines, amount, duration, and scope) as those services are to other Medicaid beneficiaries within the area served by the entity; and meets the solvency standards of 42 CFR 438.116.

8.209.2.F. Prepaid Inpatient Health Plan (PIHP) shall mean an entity that provides medical services to members under contract with the State agency, and on the basis of prepaid capitation payments, or other payment arrangements that do not use State plan payment rates; provides, arranges for, or otherwise has responsibility for the provision of any inpatient hospital or institutional services for its members; and does not have a comprehensive risk contract.

8.209.2.G. Prepaid Ambulatory Health Plan (PAHP) shall mean an entity that provides medical services to members under contract with the State agency, and on the basis of prepaid capitation payments, or other payment arrangements that do not use State plan payment rates; does not provide, arrange for, or otherwise has a responsibility for the provision of any inpatient hospital or institutional services for its members; and does not have a comprehensive risk contract.

8.209.2.H. State Fair Hearing shall mean the formal adjudication process for Appeals described at 10 CCR 2505-10, §8.057.

8.209.3GRIEVANCE AND APPEAL SYSTEM

8.209.3.A. The Grievance and Appeal System means the processes the MCO, PIHP, and PAHP implement to handle appeals of an adverse benefit determination and grievances, as well as the processes to collect and track information about them.

8.209.3.B. The MCO, PIHP, or PAHP shall provide a Department-approved description of the Grievance, Appeal and State Fair Hearing procedures and timeframes to all providers and subcontractors at the time the provider or subcontractor enters into a contract with the MCO, PIHP, or PAHP. The description shall include:

1. The member's right to request a State Fair Hearing after the MCO, PIHP, or PAHP has made a determination on a member's Appeal, which is adverse to the member.

a. The method to obtain a hearing

2. The member's right to file Grievances and Appeals.

3. The requirements and timeframes for filing Grievances and Appeals.

4. The availability of assistance in the filing process.

5. The toll-free numbers that the member can use to file a Grievance or an Appeal by telephone.

6. The fact that, when requested by a member:

a. Benefits will continue if the member files an Appeal or a request for State Fair Hearing within the timeframes specified for filing; and

b. The member may be required to pay the cost of services furnished while the Appeal is pending if the final decision is adverse to the member.

8.209.3.C. The MCO, PIHP, or PAHP shall maintain record of Grievances and Appeals and submit a quarterly report to the Department. The record of each Grievance and Appeal shall include:

1. A general description of the reason for the Grievance or Appeal;

2. The date the Grievance or Appeal was received;

3. The date of each review, or if applicable, review meeting;

4. The resolution at each level of the Grievance or Appeal, if applicable;

5. The date of resolution of the Grievance or Appeal; and

6. The name of the member for whom the Grievance or Appeal was filed.

8.209.4APPEAL PROCESS

8.209.4.A. Notice of Adverse Benefit Determination

1. The MCO, PIHP, or PAHP shall send the member written notice for each Adverse Benefit Determination. The notice shall be in writing and shall be available in English and the prevalent non-English languages spoken by members throughout the State. "Prevalent" means a non-English language spoken by a significant number or percentage of members in the service area as identified by the State.

2. The notice shall state the following:

a. The Adverse Benefit Determination the MCO, PIHP, or PAHP or its contractor 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 and copies of all documents, records, and other information relevant to the member's Adverse Benefit Determination. Such information includes medical necessity criteria and any processes, strategies, or evidentiary standards used in setting coverage limits;

c. The member's or the Designated Client Representative's right to file an MCO, PIHP, or PAHP Appeal;

d. The date the Appeal is due;

e. The member's right to request a State Fair Hearing after receiving notice that the adverse benefit determination is upheld;

f. The procedures for exercising the right to a State Fair Hearing;

g. The circumstances under which expedited resolution is available and how to request it;

h. The member's right to have benefits continue pending resolution of the Appeal, and how to request that benefits be continued; and i. The circumstances under which the member may be required to pay the cost of these services.

3. The MCO, PIHP, or PAHP shall mail the notice of Adverse Benefit Determination within the following timeframes:

a. For termination, suspension or reduction of previously authorized Medicaid covered services, at least ten (10) calendar days before the date of Adverse Benefit Determination, except in the following circumstances:

i) The MCO, PIHP, or PAHP may shorten the period of advance notice to five (5) calendar days for the date of Adverse Benefit Determination if:

1) The MCO, PIHP, or PAHP has facts indicating probable fraud by the member; and

2) The facts have been verified, if possible, through secondary sources.

ii) The MCO, PIHP, or PAHP may mail notice not later than the date of Adverse Benefit Determination if:

1) The MCO, PIHP, or PAHP has factual information confirming the death of the member;

2) The MCO, PIHP, or PAHP receives a clear written statement signed by the member stating that:

a) The member no longer wishes services; or

b) Gives information that requires termination or reduction of services and indicates that the member understands that this is the result of supplying the information;

iii) The member has been admitted to an institution where the member is ineligible under the plan for further services;

iv) The member's whereabouts are unknown and the post office returns mail directed to him or her indicating no forwarding address;

v) The MCO, PIHP, or PAHP establishes the fact that the member has been accepted for Medicaid services by another local jurisdiction, state, territory, or commonwealth;

vi) A change in the level of medical care is prescribed by the member's physician;

vii) The notice involves an Adverse Benefit Determination made with regard to the preadmission screening requirements of 1919(e) (7) of the Social Security Act; or viii) Notice may be made as soon as practicable before transfer or discharge when:

1) The safety of individuals in the facility would be endangered;

2) The health of individuals in the facility would be endangered;

3) The resident's health improves sufficiently to allow a more immediate transfer or discharge;

4) An immediate transfer or discharge is required by the resident's urgent medical needs; or

5) A resident has not resided in the facility for 30 days.

b. For denial of payment, at the time of any Adverse Benefit Determination affecting the claim.

c. For standard service authorization decisions that deny or limit services, within ten (10) calendar days. For expedited service authorizations, within seventy-two (72) hours.

i) If the MCO, PIHP, or PAHP extends the timeframe for making a service authorization decision, it must give the member written notice of the reason for extending the timeframe and inform the member of the right to file a Grievance to disagree with the timeframe extension.

ii) The MCO, PIHP, or PAHP must carry out its determination as expeditiously as the member's health condition requires, and no later than the date the extension expires.

d. For service authorization decisions not reached within the timeframes specified (which constitutes a denial and is thus an adverse benefit determination), on the date the timeframes expire.

8.209.4.B. The member of an MCO, PIHP, or PAHP shall file an Appeal within sixty(60) calendar days from the date of the MCO's, PIHP's, or PAHP's notice of Adverse Benefit Determination.

8.209.4.C. The MCO, PIHP, or PAHP shall give members reasonable assistance in completing any forms required by the MCO, PIHP, or PAHP, putting oral requests for a State Fair Hearing into writing and taking other procedural steps, including, but not limited to, providing interpretive services and toll-free numbers that have adequate TTY/TTD and interpreter capability.

8.209.4.D. The MCO, PIHP, or PAHP shall send the member written acknowledgement of each Appeal within two (2) working days of receipt, unless the member or designated client representative requests an expedited resolution.

8.209.4.E. The MCO, PIHP, or PAHP shall ensure that the individuals who make decisions on Appeals are individuals who:

1. Were not involved in any previous level of review or decision-making, nor a subordinate of any such individual,

2. Who have the appropriate clinical expertise, as determined by the Department, in treating the member's condition or disease if deciding any of the following: an Appeal of a denial that is based on lack of medical necessity, a Grievance regarding denial of expedited resolution of an Appeal, or a Grievance or Appeal that involves clinical issues, and

3. Who take into account all comments, documents, records, and other information submitted by the member or their representative without regard to whether such information was submitted or considered in the initial adverse benefit determination.

8.209.4.F. The MCO, PIHP, or PAHP shall accept Appeals orally or in writing.

8.209.4.G. The MCO, PIHP, or PAHP shall provide the member a reasonable opportunity to present evidence, and legal or factual arguments, in person as well as in writing. The MCO, PIHP, or PAHP shall inform the member of the limited time available in the case of expedited resolution.

8.209.4.H. The MCO, PIHP, or PAHP shall provide the member and the Designated Client Representative opportunity, before and during the Appeal process, to examine the member's case file, including medical records and any other documents and records considered during the Appeal process.

8.209.4.I. The MCO, PIHP, or PAHP shall include as parties to the Appeal, the member and the Designated Client Representative or the legal representative of a deceased member's estate.

8.209.4.J. The MCO, PIHP, or PAHP shall resolve each Appeal, and provide notice as expeditiously as the member's health condition requires, not to exceed the following:

1. For standard resolution of an Appeal and notice to the affected parties, ten (10) working days from the day the MCO, PIHP, or PAHP receives the Appeal.

2. For expedited resolution of an Appeal and notice to affected parties, seventy-two (72) hours after the MCO, PIHP, or PAHP receives the Appeal.

8.209.4.K. The MCO, PIHP, or PAHP may extend timeframes for the resolution of Appeals by up to fourteen (14) calendar days:

1. If the member requests the extension; or

2. The MCO, PIHP, or PAHP shows that there is a need for additional information and that the delay is in the member's best interest. The MCO, PIHP, or PAHP shall:

a. Make reasonable efforts to give the member prompt oral notice of the delay.

b. Within 2 calendar days, give the member prior written notice of the reason for delay if the timeframe is extended and informs the member of their right to file a grievance if the member disagrees with the extension.

8.209.4.L. The MCO, PIHP, or PAHP shall notify the member in writing of the resolution of an Appeal. For notice of an expedited resolution, the MCO, PIHP, or PAHP shall also make reasonable efforts to provide oral notice.

8.209.4.M. The written notice shall include the results of the disposition/resolution process and the date it was completed.

1. For Appeals not resolved wholly in favor of the member, the written notice shall include:

a. The right to request a State Fair Hearing and how to do so;

b. The right to request and to receive benefits while the hearing is pending, and how to make the request; and

c. That the member may be held liable for the cost of those benefits if the hearing decision upholds the MCO's, PIHP's, or PAHP's Appeal determination.

8.209.4.N. The member of an MCO, PIHP, or PAHP shall exhaust the MCO, PIHP, or PAHP level Appeal process before requesting a State Fair Hearing. The member shall request a State Fair Hearing within one hundred and twenty (120) calendar days from the date of the MCO's, PIHP's, or PAHP's notice of Appeal determination.

8.209.4.O. If the MCO, PIHP, or PAHP fails to adhere to the notice and timing requirements regarding resolution and notification of an Appeal, the member is deemed to have exhausted the Appeals process and may request a State Fair Hearing.

8.209.4.P. In cases where the parent or guardian of a member submits a request for a third-party review to the Department of Human Services under 27-67-104 C.R.S. of the Child Mental Health Treatment Act, the member, parent or guardian and the MCO or PIHP shall have the right to request a State Fair Hearing. The request for the State Fair Hearing shall be submitted to the Division of Administrative Hearings within thirty (30) calendar days from the date of the determination. The State Fair Hearing shall be considered a member Appeal.

8.209.4.Q. The MCO, PIHP, or PAHP shall establish and maintain an expedited review process for Appeals when the MCO, PIHP, or PAHP determines, or the provider indicates, that taking the time for a standard resolution could seriously jeopardize the member's life or health or ability to attain, maintain or regain maximum function.

8.209.4.R. The MCO, PIHP, or PAHP shall ensure that punitive action is not taken against a provider who requests an expedited resolution or supports a member's Appeal.

8.209.4.S. If the MCO, PIHP, or PAHP denies a request for expedited resolution, it shall transfer the Appeal in the timeframe for standard resolution, make reasonable effort to give the member prompt oral notice of the denial and send a written notice of the denial for an expedited resolution within two (2) calendar days and inform the member of the right to file a grievance if the member disagrees with the decision to deny the expedited review.

8.209.4.T. The MCO, PIHP, or PAHP shall, consistent with federal law, provide for the continuation of benefits while the MCO, PIHP, or PAHP level Appeal and the State Fair Hearing are pending if:

1. The member:

a. Files for continuation of services (a) within ten (10) calendar days of the MCO, PIHP, or PAHP sending the notice of Adverse Benefit Determination, or (b) on or before the intended date of the MCO's, PIHP's, or PAHP's proposed Adverse Benefit Determination, whichever is later;

b. Files the request for the appeal within 60 calendar days following the notice of adverse benefit determination.

2. The Appeal involves the termination, suspension or reduction of a previously authorized course of treatment;

3. The services were ordered by an authorized provider;

4. The original period covered by the original authorization has not expired; and

5. The member requests extension of benefits.

8.209.4.U. If at the member's request, the MCO, PIHP, or PAHP continues or reinstates the member's benefits while the Appeal is pending, the benefits shall be continued until one of the following:

1. The member withdraws the Appeal.

2. The member fails to request a State fair hearing and continuation of benefits (services) within 10 calendar days after the MCO, PIHP, or PAHP sends the notice of an adverse appeal resolution.

3. A State Fair Hearing office issues a final agency decision adverse to the member.

8.209.4.V. If the final resolution of the Appeal upholds the MCO's, PIHP's, or PAHP's Adverse Benefit Determination, the MCO, PIHP, or PAHP may recover the cost of the services furnished to the member while the Appeal is pending to the extent that the services were furnished solely because of the requirements of this rule.

8.209.4.W. If the final resolution of the Appeal reverses the MCO's, PIHP's, or PAHP's Adverse Benefit Determination to deny, limit or delay services that were not furnished while the Appeal was pending, the MCO, PIHP, or PAHP shall authorize or provide the disputed services promptly and as expeditiously as the member's health condition requires, but no later than 72 hours from the date it receives notice reversing the determination.

8.209.4.X. If the final resolution of the Appeal reverses the MCO's, PIHP's, or PAHP's Adverse Benefit Determination to deny authorization of services and the member received the services while the Appeal was pending, the MCO, PIHP, or PAHP must pay for those services.

8.209.5GRIEVANCE PROCESS

8.209.5.A. The member of the MCO, PIHP, or PAHP can file a Grievance expressing his/her dissatisfaction with any matter other than an Adverse Benefit Determination at any time.

8.209.5.B. The MCO, PIHP, or PAHP shall send the member written acknowledgement of each Grievance within two (2) working days of receipt.

8.209.5.C. The MCO, PIHP, or PAHP shall ensure that the individuals who make decisions on Grievances are individuals who were not involved in any previous level of review or decision-making, nor a subordinate of any such individual, and who have the appropriate clinical expertise, as determined by the Department, in treating the member's condition or disease if deciding a Grievance that involves clinical issues.

8.209.5.D. The MCO, PIHP, or PAHP shall accept Grievances orally or in writing.

1. The MCO, PIHP, or PAHP shall dispose of each Grievance and provide notice as expeditiously as the member's health condition requires, not to exceed fifteen (15) working days from the day the MCO, PIHP, or PAHP receives the Grievance.

8.209.5.E. The MCO, PIHP, or PAHP may extend timeframes for the disposition of Grievances by up to fourteen (14) calendar days:

1. If the member requests the extension; or

2. The MCO, PIHP, or PAHP shows that there is a need for additional information and that the delay is in the member's best interest. The MCO, PIHP, or PAHP shall:

a. Make reasonable efforts to give the member prompt oral notice of the delay.

b. Give the member prior written notice of the reason for delay if the timeframe is extended and inform the Member of the right to file a grievance if the member disagrees with the decision.

8.209.5.F. The MCO, PIHP, or PAHP shall notify the member in writing of the disposition of a Grievance in the format established by the Department.

8.209.5.G. The written notice shall include the results of the disposition/resolution process and the date it was completed.

8.209.5.H. If the member is dissatisfied with the disposition of a Grievance provided by the MCO, PHIP, or PAHP, the member may bring the unresolved Grievance to the Department.

1. The Department will acknowledge receipt of the Grievance and dispose of the issue.

2. The disposition offered by the Department will be final.

8.209.6OMBUDSMAN ASSISTANCE CONCERNING SERVICES FOR MEMBERS ENROLLED IN MCOS, PIHPS, and PAHPS

8.209.6.A. An Ombudsman under contract with the Department of Health Care Policy and Financing shall provide Ombudsman assistance concerning services for members enrolled in Medicaid MCOs, PIHPS, and PAHPs.

8.209.6.B. Upon request, the Ombudsman shall respond to and analyze a Grievance from a member enrolled in a Medicaid MCO, PIHP, or PAHP, or that member's Designated Client Representative, by:

1. Assisting the member or Designated Client Representative to articulate the Grievance, to understand the options available to resolve the Grievance and his/her rights and responsibilities, and to negotiate the appropriate Grievance process for his/her MCO, PIHP, or PAHP;

2. Acting as the member's Designated Client Representative if the member requests except that the Ombudsman shall not act as the Designated Client Representative in any State Fair Hearing as described at 10 CCR 2505-10, §8.057;

3. Facilitating problem resolution with the MCO, PIHP, or PAHP, or its network providers;

4. Referring members to other agencies as appropriate, including agencies that can directly assist members in a State Fair Hearing;

5. Conducting and reporting member satisfaction studies and/or quality assessment surveys authorized by the Department to measure member experience and satisfaction with Ombudsman staff and services;

6. Providing members with information on the exclusions and limitations that may be imposed on care, services, equipment and supplies under the Medicaid benefits structure;

7. Having a practical understanding of all applicable provisions of Title X, Article 16, C.R.S. and Medicaid Volume 8 rules; and

8. Avoiding any relationship or circumstance which creates or gives the appearance of a conflict of interest.

8.209.7COMPLIANCE REQUIREMENTS FOR ALL MCOS, PIHPS, PAHPS AND THE OMBUDSMAN

8.209.7.A. MCOs, PIHPs, PAHPs, and the Ombudsman shall recognize and ensure members' rights to make and file Grievances and to Appeal Adverse Benefit Determinations through the Grievance and Appeal process for any reason.

8.209.7.B. For members with a disability, if the medical necessity of a requested procedure has not been established by the MCO, PIHP, or PAHP, the requesting physician must be consulted in person or by telephone before a final determination is made. If the requesting physician is not available, another network provider of the member/Designated Client Representative's choice shall be consulted. Such consultation shall be referenced in the notice. If the requesting physician is not available and the member/Designated Client Representative does not choose another network provider within two working days of the MCO's, PIHP's, or PAHP's request to make such a choice, the MCO, PIHP, or PAHP may proceed without consultation.

8.209.7.C. MCOs, PIHPs, PAHPs, and the Ombudsman shall develop written procedures for accepting, processing, and responding to all Grievances and Appeals from Medicaid members. For MCOs, PIHPs, and PAHPs, summaries of these procedures shall be disseminated to all participating providers and shall include summaries in the Member Handbook as described in Department contract requirements. The MCO, PIHP, or PAHP shall provide its complete Grievance and Appeal procedures to subcontractors and ensure subcontractor compliance with these rules and the MCO's, PIHP's, or PAHP's procedures. MCOs, PIHPs, PAHPs, and the Ombudsman shall obtain written approval from the Department for their internal Grievance and Appeals procedures.

8.209.7.D. MCOs, PIHPs, PAHPs, and the Ombudsman shall establish and maintain a timely and organized system(s) for recording, tracking, and resolving Medicaid members' Grievances and Appeals as specified in contract.

8.209.7.E. MCOs, PIHPs, PAHPS, and the Ombudsman shall confidentially maintain original records of all Grievances and Appeals from Medicaid members, including the original Grievance or Appeal, Adverse Benefit Determination, or resolution taken by the entity, and evidence of review activities. All such information shall be archived for ten (10) years from the date of the initial Grievance or Appeal.

8.209.7.F. MCOs, PIHPs, and PAHPs shall ensure that neither cultural, expressive, or receptive communication differences negatively impact the Grievance and Appeals process. MCOs, PIHPs, and PAHPs shall provide services to facilitate members' and Designated Client Representatives' effective use of the Grievance and Appeals process, inclusive of qualified interpreters for (1) persons with communication disabilities or differences and (2) non-English-speaking members. The MCO, PIHPs, or PAHP shall consult with the member or the Designated Client Representative about the individual or medium that will assist, and such assistance shall be at the cost of the MCO, PIHP, or PAHP.

8.209.7.G. MCOs, PIHPs, and PAHPs shall provide the member, Designated Client Representative, or any other person, upon written release from the member or the member's legal guardian, access to or a copy of medical records, at no cost to the member, for dates of service occurring during enrollment in the MCO, PIHP, or PAHP. Such records shall be provided within a time frame that provides members copies of their records prior to any decision on a Grievance or Appeal, or in two weeks or less, if required by C.R.S. § § 25-1-801 and 25-1-802. The MCO, PIHP, or PAHP is only obligated to provide one copy of the member's medical records free of charge for each of the Medicaid member's Grievances or Appeals.

8.209.7.H. MCOs, PIHPs, and PAHPs shall monitor participating network subcontractors or providers to ensure compliance with all Grievance and Appeals rules and contract requirements.

8.209.7.I. MCOs, PIHPs, PAHPs, and the Ombudsman shall handle specific Medicaid member Grievance and Appeals information in the same way that medical record information is handled confidentially under State and Federal law and regulations.

8.209.7.J. Upon request by a member, the member's Designated Client Representative, or the member's provider, the MCO, PIHP, or PAHP shall disclose its standards for denial of treatments or other benefits on the grounds that such treatment or other covered benefit is not medically necessary, appropriate, effective, or efficient free of charge.

8.209.7.K. To assist members in making inquiries and filing Grievances and Appeals, MCOs, PIHPs, PAHPs, and the Ombudsman shall ensure that members and Designated Client Representatives can contact them during routine business hours through a toll-free telephone number.

10 CCR 2505-10-8.209