NDRN Medicaid Webcast part V
Elizabeth:Thank you everyone for being here. The last of our five part Medicaid web cast. I did appreciate everyone coming back and the big turnout we’ve had. I just want to say that we will not be having question and answers at the end in order to save costs, but if you do have questions and answers after hearing this call, you can call either myself directly. I’m Elizabeth Priaulx at the National Disability Rights Network or Jane Perkins and Sarah Summers at the National Health Law Program, North Carolina office and NHELP has for years had a legal backup conference….contract through NDRN to provide legal technical assistance for the P&A’s and hopefully many of you have availed yourself of that. I’m going to let them go ahead and just let you all know that if you’ve been looking for the parts II, III, IV of this there has been a delay getting them up on the web site, but I will get them all up on the web site and contact everyone when all five parts are up and I apologize for that delay. It has nothing to do with Jane and Sarah. So take it away.
Jane:But it easily could Elizabeth. Well thank you so much Elizabeth and Sarah and I just wanted to start out this last webcast by saying that we have very much enjoyed doing this. We had not participated in something like this before, so it was new for us and we really had a good time….have had a good time doing it. Talking about the law is something anyone could consider a good time. But thank you so much Elizabeth for having the idea and to those of you who have attended some of these are who are attending today, thank you all so much for attending.
In this last session that we’re having today is, obviously, we’re covering Medicaid due process and court access. So we’re moving away from kind of a nitty gritty of how things work in terms of eligibility and services and administration and into the nitty gritty of what do you do when things go wrong as they inevitably will at some point in…at some point in time. Nothing’s perfect. So to the next slide…we’re going to be covering today really three major topics. Due process. And that’s just our short hand way of talking about administrative processes. Section 1983, which is the legal handle for getting into court in many cases and preemption. Which is a growing legal handle for getting into court and we’ll be talking about that last. There are numerous places where the due process requirements of Medicaid law are set forth. The first and the most important one is the United States Constitution, the 14th amendment, requires due process. And the Supreme Court in this case that you see cited here, Goldberg versus Kelly, held that it violates the due process clause of the 14th amendment to terminate public benefits without adequate notice and opportunity to be heard. The court decision noted the brutal need that public assistance recipients have, for the benefits that they are receiving, and held that to terminate them without this notice and opportunity to be heard did violate the Constitution. Significant to Goldberg is that in instances where you’re talking about individuals who are receiving services and those services are being terminated or who are being counted as eligible and are then being told you’re not eligible, Goldberg is significant because it is requiring under the Constitution a pre-termination hearing for the opportunity for a pre-termination hearing. And those of you who have worked with due process and other contacts know that under other tests of the Supreme Court, Mathews versus Eldridge being another, that at times that hearing in terms of what process is due, might not need to be before the termination.
There are other due process citations that are important as well. The Medicaid Act requires due process. This provision is cited section 1396-AA3 and what it says is that the state plan must provide for an opportunity for a hearing. And in all instances where….in all cases where claims are denied or not acted upon with reasonable promptness. So interestingly you can see that the statute itself does not discuss the concept of notice. It’s fairly brief and to the point. But as we were saying in court the other day, sometimes things can be brief and still be powerful. The regulations that implement this statute are found at 42CFR section 431.200. And the thing that’s important about that is that they do provide in depth information to states on how they are to provide due process to Medicaid recipients. One of the first things that these regulations do, interestingly, is to incorporate Goldberg versus Kelly. In other words, when you turn to those regulations you’ll see that there’s a regulation there and it says these regulations are being implemented in order to be consistent with Goldberg versus Kelly. So it’s a little twist there. Something that I don’t think exists in any other Medicaid regulation, that is, or the statute for that matter. That is an explicit citation to a case. Actually there is another exception to that in the statute which we’re actually going to be talking about later on when we talk about section 1983. The third citation that is of importance is the sections 438.400 and for 438.210. They are important because that…those are fairly recent requirements in the Medicaid regulations that apply to individuals who are enrolled either by choice or by mandate in managed care plans or with managed care entities. These are important because to us today, because not only are people with disabilities enrolled in managed care plans governed by section 438 by choice, but also because one area of intense interest by the managed care industry and by state Medicaid programs is to expand mandatory enrollment in managed care plans to people with disabilities. So if you’re not familiar or haven’t had the need to be familiar with the section 438 regulations so far, you may need to in the not too distant future. Due process is also described in the state Medicaid manual. Now this isn’t a regulation, but it is a manual that the HHS, the Department of Health and Human Services publishes that states must…that set forth guidelines for states. And interestingly in the state Medicaid plans that each state submits, typically, one of the very first pages of those state plans will be a page where the state says that it will adhere to the federal law, the federal regulations, and the guidelines set forth in the state Medicaid manual. I’m saying that because for purposes of resolving a complaint, that may be something that you might want to remember and use carefully because it hasn’t really been tested in the future. And that is that in the state Medicaid plan, which is really a contract between the federal government and the state made for the Medicaid beneficiaries benefit, the state has bound itself to these manual provision to compliance with these manual provisions and these regulatory and statutory provisions and you may have be able to argue that your client is a third party beneficiary of that promise, which you are now seeking to enforce. State constitution laws and regulations also deal with Medicaid due process, as do state manuals, particularly of case worker manuals, provider manuals, and the like.
So on the next slide you see that we now, in terms of Medicaid, due process and with the growth and existence of managed care have a number of confusing terms to deal with and one of the disappointments with the most recent round of federal regulations, which were some extensive regulations on due process in managed care that were issued in the early 2000’s was we had tried very hard and...to get terms boiled down so that they weren’t…there weren’t so many terms and they weren’t so confusing to beneficiaries and had really made a lot of progress in that respect with the Clinton people, but the final regs that came out under the Bush administration have a number of terms in them that can be confusing. These terms all have meanings when they’re used by…in the federal rules and thus supposedly by federal and state authorities. Due process is written notice and an opportunity to be heard before an impartial decision maker. The fair hearing is complaints that occur at the state level. Usually before an ALJ, an administrative law judge, where oftentimes the final…the appeal then goes….or the recommended decision comes from the ALJ with the final decision being made by the agency head. There is…there are two terms that are used in the managed care context, which obviously have also been used outside of it. But, they have particular meaning in managed care. The first is appeal. Complaints in managed care that are regarding actions to deny, delay services, or payments, are appeals. They’re the more serious concern or are the label for more serious concerns. Whereas as grievances are dissatisfaction regarding other managed care activities that aren’t actions. Let me give an example though of how these can get confusing. Because this is an actual case that we worked on here. The person was not satisfied with their assigned provider in managed care and they were having trouble getting out from having that person be their primary care provider. The managed care plan said that that was a grievance. But because the situation was so unbearable to the client, the client didn’t want to go to that provider at all. And so was not going in to get healthcare. And nevertheless the health plan or the managed care entity labeled it as a grievance. That’s significant because what a plan does in response to a grievance is different from and less than and timed differently than what a plan must do in response to an appeal. There are indeed significant differences between due process in the fee for service context as opposed to managed care. And this next slide just steps through some of those. If you move from one side of the page to another. Your legal portfolio in the fee for service context is a complaint that involves statutes and rules. In the managed care context it is also involving that managed care contract. Typically in the fee for service context it’s not unusual for the service to have already been provided. So you really have a more established or a more known set of facts. Facts that cannot really be played with a lot. Whereas in the managed care context oftentimes the service is still needed and for those of you who have done managed care complaint advocacy, you know, that sometimes it can be like shooting at a moving target in the dark. Because the reasons get changed based on what you’re saying is the problem. That can’t happen in the fee for service context because the…or it can happen less because the facts are much more established because the service has been provided typically. In the fee for service context also you may find that the provider, the healthcare provider, is a great advocate for your client because she wants to get paid. The treatment, as I said, may already have been provided as opposed to the managed care context where the provider may not be able to be depended on to such a great degree. The service may not have been provided. The provider may be concerned that the service is going to…providing that service is going to cause him or her to be some sort of standard deviation away from what he or she needs to be to be contracted with again. So the incentives for providers can be very different in managed care. In the fee for service context as well, there is the final distinction, which is that Medicaid beneficiaries have direct access to a fair hearing by an impartial decision maker. That is the state ALJ decision process. Whereas in managed care, beneficiaries are often told to first pursue the plan level grievance or appeal and in some instances…in some states indeed must exhaust that level of appeal before going forward despite the bias that is in the managed care system. And that’s what the next slide shows you, which is a great quote from this case Daniels versus Wadley, a Tennessee case from 1996 that said that because of the pecuniary interest incentives that managed care organizations have for denying, suspending, or terminating care under the ten care system, and because of other differences between tendencies pre 1994 Medicaid program and ten care, ten care enrollees need strong due process protections to protect themselves from inappropriate denials of care. Remember in the managed care context, at least at the macro level, we’ll talking about the state paying a preset amount of money ahead of time per member per month. For which the managed care company is agreeing to provide all medically necessary services when the individual needs them. However, the pecuniary incentive is that the less you do, the more you keep.
Elizabeth:Jane this is Elizabeth……for a second….is…could you just give us a brief overview for folks on the phone who might be new to this. The best way to keep up to date on their ever changing managed care plans or state Medicaid manuals, I mean…you know, at the federal level. It’s things like CCH, the Medicare and Medicaid guide. Is there a good place for P&A’s to start when they want to collect state….
Jane:Yes. That’s a terrific question and that’s just a great question. The critical thing that you have to get your hands on is the managed care contract. The problem is that in most states where we work, they…the states are loathe to provide you copies of actual managed care contracts because the managed care companies say that there are business secrets in them. So what you….if you can’t get the actual managed care contract, what you can and should try to get is the…what’s called either the model contract or the RFP. Request For Proposals. Typically what we see in the managed care context is contracting every two or three years. Of course, there are provisions in the contracts that allow them to be modified or terminated over the course of that, but in terms of major renegotiation, generally happens every two to three years as we’ve seen. So get a copy of the RFP or the model contract, whatever the state is calling it and that is going to give you a pretty good sense of what it is the providers participating in this system are dealing with and what the managed care and state have agreed to. Now some states have that posted on their web sites. We’re doing some in depth consulting in Ohio now and I know just from working there that they have printed all of their RFP’s and model contracts on their web sites and you can just download them from there. There is a section in there that will talk about grievance and appeal. Your state may also have state regulations that deal specifically with due process and the managed care contacts. Quite frankly I haven’t seen as much of that because a lot of…one reason is because so much of what happens on the ground is…is really dictated by these contracts. Okay so….
Female:Jane. You had mentioned something. I wanted to touch on. When you talk about the idea that managed care and companies aren’t going to want to let their contracts get out because they have business secrets. That’s something that pervades the managed care and just the privatization of healthcare in general. The idea that things that…the crucial pieces of information, the identity of a provider, a provider’s opinion, the context of the….the contents of a contract, all nature of things, they may…a private entity may say well that’s…that’s secret. That’s our business secret and that’s not…and that’s a battle that a lot of people are fighting in different states.
Jane:Yeah. That’s a great point. That is very true and we have dealt with it here. We have responses for that and just one thing to keep an eye out for it’s something that you might not initially put together with this issue, but there is a case in Connecticut right now that’s under way that is dealing with the freedom of information act and the ability to get information from managed care plans through the freedom of information act. Our argument has been all along that these managed care plans are really an extension of the state. They’re an agent of the state. They are controlled by the state contract, by the state regulations. They’re doing what they’re doing entirely because of a state statute or regulation and thus are a state act or a state agent and that has great implications for not only the ability to get information from them once you have filed a compliant, but also who you may decide to sue if you file a court action.