Individual Eligibility Appeals Process: Federal ... · Applicants or enrollees may appeal initial...

Individual Eligibility Appeals Process: Federal Requirements and Key Considerations for States

Academy Health

September 23, 2013 1:00 – 2:30 p.m. EST

2 Agenda

State Discussion and Q&A

Appeals Overview

State Approaches to Appeals Process Design • Rhode Island • Illinois

Appeals Process: Regulatory Requirements and Key Considerations for States

Next Steps

3

Appeals Overview

4 Types of Eligibility Appeals

INDIVIDUAL ELIGIBILITY

DETERMINATIONS

INDIVIDUAL RESPONSIBILITY

EXEMPTIONS

EMPLOYER RESPONSIBILITY

SHOP ELIGIBILITY

Applicants or enrollees may appeal initial or redeterminations of eligibility for:

• Enrollment in a Qualified Health Plan (QHP) • QHP Enrollment Periods (including initial, annual and special enrollment periods) • Medicaid/CHIP • Basic Health Plan • APTC/CSRs, including amount • Enrollment in a catastrophic plan

Focus of Today’s

Discussion

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5 Eligibility Appeals: Legal Authority

Medicaid: Social Security Act §1902(a); 42 C.F.R.§431.200 et seq. and §435.1200 et seq. (NPRM, Final Rule and Existing Regulations); Goldberg v. Kelly

CHIP: Federal Law 42 C.F.R.§457.1100 – 457.1190 (NPRM and Existing Regulations)

Marketplace: ACA§1411(f)(1) – Federal Appeal

Marketplace: 45 CFR§155.500 et seq.; §155.740 (NPRM and Final Rule)

6 Federal Appeals Regulations Overview

Rules modernize Medicaid requirements and promote coordination of MAGI Medicaid/CHIP and QHP/APTC/CSR eligibility notices and appeals

Provide state option to delegate State Medicaid Agency (SMA) MAGI appeals authority to the Marketplace

Establish Marketplace appeals processes, including HHS appeals, and provide State-based Marketplaces option to delegate appeals authority to HHS, SMA, 3rd Party State Agency, or non-governmental entity

7 Final Regulations on Appeals

Medicaid Final Rule – July 2013 Marketplace Final Rule – Aug 2013

Finalized:

Future Guidance Expected On:

Finalized:

Future Guidance Expected On:

Delegation of MAGI Medicaid/CHIP appeals authority to Marketplace

Reinstatement of a Medicaid application following withdrawal

Modernizing process of providing notices about fair hearing rights and decisions

Scope of appeals Coordination across the Marketplace,

Medicaid, and CHIP Expedited appeals Process features, such as modalities to

request a hearing, hearing scheduling, hearing modality and adjudicators

Fair Hearing Trigger Evidence packet Judicial review

Delegation of Marketplace appeals to eligible entities

Scope of appeals Coordination across the Marketplace,

Medicaid, and CHIP Expedited appeals Process features, such as modalities to

request a hearing, hearing scheduling, hearing modality and adjudicators

Judicial review

Operational specifics of HHS appeals process

Operational specifics of cross-entity coordination and information sharing

“Marketplace appeals entities may lack the system functionality for

secure electronic data exchange in current system builds for the first year

of operations[…] these entities may utilize a secure, paper-based process

for exchanging data and information that conforms to information

privacy and security standards incorporated in §155.510(c)(1) for the first

year of operation.” Preamble 45097

8

Appeals Process: Regulatory Requirements and Key Considerations for States

9 Key Features of the Appeals Process

DELEGATION AUTHORITY

REQUEST FOR AN APPEAL

AUTHORIZED REPRESENTATIVE

INFORMAL RESOLUTION

CROSS AGENCY COORDINATION

DISMISSALS/WITHDRAWALS

DECISIONS

HHS APPEALS ENTITY

EXPEDITED APPEALS

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10 Delegation Authority

SBM may delegate to: (1) HHS Appeals Entity; (2) State Medicaid Agency; (3) 3rd Party Agency; or (4) non-Governmental Agency. (Exchange Final: Regulation and Preamble)

Medicaid Agency may delegate to: (1) SBM; (2) HHS Appeals Entity; or (3) 3rd Party Agency, (Medicaid Final: Regulation and Preamble)

Medicaid Agency may delegate to a State Based Marketplace under:

Medicaid regulation

ICA Waiver if a state agency

All individual appeals delegation must be decided as a group in a menu—delegate all appeals or no appeals. (Exception: personal exemption)(Exchange Final)

Delegations require written agreements specifying roles and Medicaid oversight responsibilities. (Exchange and Medicaid Final)

States do not have a deadline by which they must choose to delegate; regulation permits delegation any time after October 1, 2013. (Medicaid Preamble Final)

Regulatory Requirements Most SBMs are looking to delegate appeals to their Medicaid Agency or a third party agency.

SMAs seeking to delegate appeals have two options

Delegation agreements will need to be negotiated to establish operational protocols, specified roles and oversight responsibilities.

Key Considerations for States

State Medicaid Agency Delegation Considerations

Regulation ICA Waiver

Delegable entity Marketplace or

Marketplace Appeals

Entity Only

Any State Agency

Consumer Choice Required Not Required

SMA Review of Legal Findings Optional Not Contemplated

HHS Review Available Not Available

Oversight Required Required

Implementation SPA SPA

Delegated Entity is a

Government Agency with

Merit Protections

Required Required

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11 Request for an Appeal

Will request for appeals in year one be paper-based or through multiple modalities

Medicaid and Marketplace may align request for appeals timeframes.

Entities may need to coordinate communication when appeal requests are submitted to two separate entities.

Medicaid Trigger: coordination of information transfer and Medicaid appeal request is required when appellant selects APTC/CSR appeal request. Coordination points include:

Secure electronic interface of electronic account (or paper based in Year One)

Confirmation of receipt of request across entities


Regulatory Requirements Modalities: by telephone, mail, in-person,

online or through other available means. (Exchange Final/Medicaid Proposed):

Paper-based process acceptable for first year (Exchange Final Preamble)

Timeframe:

Medicaid: Reasonable time, not to exceed 90 days (Medicaid Existing)

Marketplace:

Within 90 days; or

A time frame that is consistent with Medicaid but no less than 30 days. (Exchange Final)

Medicaid Trigger: If individual has been determined Medicaid ineligible, appeal request for APTC/CSR = Medicaid Appeal Request. (Medicaid Proposed)


12 Authorized Representative

Designated authorized representative for application is not required to be (but may be) designated authorized representative for appeal.

Medicaid and Marketplace may require coordination and information sharing of authorized appeals designation:

Designated at application

Designated for appeals

States to consider operational systems issues related to authorized representative designation (e.g., ability to assign more than one representative in the system or uncoordinated eligibility and appeal systems that track authorized representative).


Right to designate an authorized representative in any stage of the appeal. (Medicaid Existing/ Exchange Final)

Legal Requirements


13 Informal Resolution

Medicaid Agency/SBM to decide whether to implement Informal Resolution Process

Informal Resolution may resolve many appeals requests and minimize number of hearings

Need to build in Informal Resolution within 90 day decision time frame

Coordination between Medicaid and Marketplace required for sharing evidence and resolution

Outcome of Informal Resolution may trigger redetermination of eligibility


Required for HHS Appeals Entity. (Exchange Final)

Optional for State Medicaid Agency and SBM. (Exchange Final)

Marketplace/Medicaid Agency may not request duplicative information already provided to minimize burden on appellant. (Exchange Final/Medicaid Proposed)

Legal Requirements


14 Withdrawals

If an appeal is resolved prior to a hearing, states may want to facilitate withdrawal to minimize administrative burden

It is an open question whether states may permit telephone withdrawals

Reinstatement of Medicaid Application in FFM Assessment:

Requires coordination and information transfer of electronic account, evidence packet, appeal request and appeal decision


A request for a hearing may be dismissed if appellant submits withdrawal in writing. (Exchange Final/Medicaid Existing)

Written request may be in electronic or hard copy (Exchange Final)

Withdrawal request may be submitted online, by telephone, by mail, in-person or other electronic means (Medicaid Proposed)

Reinstatement of Medicaid application under FFM Assessment Model (Medicaid Final):

Individual assessed Medicaid ineligible and withdraws application

Individual files APTC/CSR appeal with Marketplace

Appeal decision finds individual potentially eligible for Medicaid

Medicaid application must be reinstated

Legal Requirements


15 Decisions

In a bifurcated appeals process, a Medicaid decision could be issued 135 days after an appeals request.

If appeals run sequentially: 90 days for Marketplace + 45 days for Medicaid.

Coordination of electronic account, evidence packet and appeal decision required for appeals that are bifurcated.

Final decisions could have implications across entities.

To the extent appeals are bifurcated, there will be some circumstances (not all) where decisions need to be shared across entities (e.g., when a decision triggers a change in eligibility for another program).


Marketplace must issue standard appeal decision within 90 days of request. (Exchange Final)

Medicaid must issue standard appeal decision within 90 days of appeal request or within 45 days of Marketplace appeals decision if appeals processes are bifurcated. (Medicaid Proposed)

Individuals determined ineligible for Medicaid as a result of a fair hearing must assess potential eligibility for other IAPs and transfer electronic account via secure interface (Medicaid Proposed)

If Medicaid agency delegates appeals authority to the Marketplace or Marketplace appeals authority (through regulation), Medicaid agency may review conclusions of law not findings of fact. (Medicaid Proposed)

In an FFM Assessment Model: FFM must adhere to appeals decisions made by Medicaid/CHIP Agency. (Exchange Final)

Legal Requirements


16 Cross-Agency Appeals Coordination


Medicaid and Marketplace (SBM or FFM) will need to develop protocols for when and how information will be shared.

Awaiting guidance on information exchange with HHS Appeals Entity.

Medicaid/Marketplace must establish secure electronic interface to notify across entities:

Appeal requests;

Electronic account;

Appeal decision. (Exchange Final/Medicaid Proposed)

Marketplace appeals entities may utilize paper-based process for exchanging data in Year One (Exchange Preamble: Final)

Legal Requirements


17 Expedited Appeals

Final Medicaid guidance on expedited appeals forthcoming.

Medicaid and Marketplace will need to operationalize expedited appeals review and determine:

How the individual will demonstrate meeting the expedited standard

What is a “reasonable timeframe”

How to communicate to the individual his or her right to an expedited appeal without inviting unmerited requests

Whether the state can leverage an existing expedited review process (either informal or through managed care)


Expedited review process when standard process timeframe could jeopardize the individual’s life, health or ability to attain, maintain or regain maximum function. (Exchange Final/Medicaid Proposed).

Decision Time Frames:

Medicaid: within 3 working days of expedited appeal request (Medicaid Proposed)

Marketplace: as expeditiously as reasonably possible, consistent with the timeframe established by the Secretary (Exchange Final)

Legal Requirements


18 HHS Appeal Upon Exhaustion of State-Based Process

Medicaid Agency/Marketplaces will need to operationalize cross-entity coordination to facilitate HHS appeal upon exhaustion of state-based process.

Further guidance is forthcoming on:

Protocols for how and when appeal record will be transferred to and from HHS

Modalities and process for making appeal request to HHS Appeals Entity

Transfer and eligibility coordination of decision resulting from HHS Appeals entity

Upon exhaustion of the SBM appeals process, consumer may request an appeal before HHS. (Exchange Final)

Consumer must make appeal request to HHS within 30 days of Marketplace appeal decision via phone, mail, in-person (as applicable) or internet (Exchange Final); will be a paper-based process in Year 1. (Exchange Final Preamble)

If a consumer submits a valid appeal request:

HHS appeals entity must send timely notice via secure electronic interface to SBM appeal entity

Upon receipt of notice, the SBM appeal entity must transmit via secure electronic interface the appellant’s appeal record to HHS

Upon receipt of the appeal record, HHS must promptly confirm receipt of the records transferred

It appears that information sharing and coordination requirements between the SBM and Medicaid apply to the HHS appeal entity


Legal Requirements


19

State Approaches to Appeals

20

Rhode Island’s Approach to Appeals Process Design

21

Illinois’ Approach to Appeals Process Design

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Question and Answer

23

Thank you!

Melinda Dutton

[email protected] 212.790.4522

Kinda Serafi

[email protected] 212.790.4625

Lindsay McAllister

[email protected]

Ryan Lipinski [email protected]

mailto:[email protected]




24

Appendix A:

Appeals Process Flows

25 FFE Integrated IAP Appeals Process

FFE STANDARD APPEALS

Consumer

Receives eligibility determination

Appeal Before HHS

Exchange

HHS Issues Decision

Notice consumer within 15 days of hearing

15

Timeframe

90

Applicant must request appeal: • Within 90 days of determination; or • Timeframe consistent w/ state Medicaid requirement, but no

less than 30 days*

90

180

90

Max. Timeframe*

Exchange must issue decision 90 days from appeals request**

Medicaid Legal Review?

Opportunity for Informal Resolution

• Medicaid agency delegates appeals authority to Exchange; and • Consumer does not choose State Medicaid Agency review

* Because Exchange may align with state Medicaid timeframe, requests may be submitted 30-90 days within date of determination; accordingly, maximum timeframe will vary based on number of days permitted ** As administratively feasible


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26 FFE Bifurcated IAP Appeals Process: APTC/CSR and Medicaid


180

90

Timeframe

Max. Timeframe* if Exchange 1st

Medicaid must issue 90 days from appeals request and no later than 45 days from Exchange appeals decision

225

90

90

45


Appeal Before Medicaid/State

Agency

Medicaid/State Agency Issues Decision

15 Medicaid

FFE APTC/CSR AND Medicaid APPEALS: SEQUENCED

EXCHANGE HEARING 1st

Consumer Notice consumer within 15 days of hearing

Medicaid HEARING 1st

Appeal Before HHS

Exchange Exchange 15

HHS Issues Decision

180 90 Max. Timeframe*

if Medicaid 1st 180 Exchange must issue within 90 days of initial appeals request**


Appeal Before HHS HHS Issues Decision

15 Exchange Notice consumer within 15 days of hearing

Appeal Before Medicaid/State

Agency

Exchange Medicaid 15


Consumer


• Non-delegated; or • Delegated, but consumer chooses option for Medicaid Agency Review

Applicant must request appeal: • Within 90 days of determination; or • Timeframe consistent w/ state Medicaid

requirement, but no less than 30 days*












27 SBE Integrated IAP Appeals Process


SBE STANDARD APPEALS

Consumer


Appeal Before Exchange/State Agency

EXCHANGE

Exchange/State Agency Issues Decision

HHS Appeal Upon Exhaustion of State-based Appeals Process


HHS Issues Decision

HHS

15

Timeframe

90

90

30 Applicant has 30 days to

request an HHS appeal 90

180

210 300

90

Max. Timeframe*


• Medicaid agency delegates appeals authority to Exchange; and • Consumer does not choose or have option for State Medicaid Agency review








28 SBE Bifurcated IAP Process: APTC/CSR and Medicaid

SBE APTC/CSR AND Medicaid: PARALLEL

Consumer


Appeal Before Exchange/State Agency

EXCHANGE

Exchange/State Agency Issues Decision

HHS

HHS Appeals


Appeal Before Medicaid/State Agency

MEDICAID


15

Adequate written notice to consumer prior to hearing

Exchange must issue decision 90 days from appeals request**; Medicaid agency must issue decision 90 days from appeals request (and not more than 45 days from Exchange decision)

180 90

Timeframe

Max. Timeframe*

90

90

270

90


• Non-delegated; or • Delegated, but consumer chooses option for Medicaid Agency Review









29

Appendix B: Appeals Process Legal Requirements

30 Delegation Authority: Legal Requirements

Medicaid Final Rule – July 2013 Marketplace Final Rule – Aug 2013

State Medicaid Agency may delegate to: (1) SBM; (2) HHS Appeals Entity; or (3) 3rd Party Agency

May delegate to an SBM under: (1) ICA Waiver; or (2) Medicaid Regulation

SBM may delegate to: (1) SBM; (2) HHS Appeals Entity; or (3) 3rd Party Agency.

States do not have a deadline by which they must choose to delegate; regulation permits delegation any time after October 1, 2013.

All individual appeals delegation must be decided as a group in a menu—delegate all appeals or no appeals. (Exception: personal exemption)

Medicaid/CHIP Appeals HHS Appeals Entity will make appeals decisions in

accordance with state Medicaid and CHIP eligibility standards and income levels

Delegation Authority:

42 CFR 431.10(c)(d); 42 CFR 431.1200(g); 42 CFR 431.206(d)

Written Agreements: Delegations require written agreements specifying roles and

Medicaid oversight responsibilities.

Delegation Modality/Consumer Choice: SMA may delegate authority to conduct MAGI-based eligibility

appeals either under 410.10(c) under an Intergovernmental Cooperative Act (ICA) waiver. If under ICA waiver, consumer does not have right to fair hearing before Medicaid agency

Applicant must be informed of right to opt for Medicaid fair hearing and the method to make such election.

Existing Medicaid Requirement

Proposed Regulation

Final Regulation KEY

Scope of Delegable Appeals:

Written Requirements

Delegations require written agreements specifying a clear delineation of the responsibilities of each entity to support appeals process.

HHS Appeals entity must transmit eligibility determination and all information provided via secure electronic interface to other entities

Paper-based process is allowed in Year One.

45 CFR 155.510, Preamble 54098

Secure Electronic Interface

Secure Electronic Interface: Appeals entities must establish secure electronic interface

for file transfer and not request documentation provided in electronic account or to Exchange/Exchange appeals entity.

31

Request for Appeals: Legal Requirements

Medicaid Marketplace

Request for Appeal Modality • Request by telephone, mail, in-person, online or through

other available electronic means

Timeframe for Appellant Request • Request “must allow the applicant or beneficiary a

reasonable time, not to exceed 90 days from the date that notice of action is mailed, to request a hearing.”

• Date on which the notice is received is considered 5 days after the date on the notice, unless individual shows that he or she did not receive the notice within the 5-day period.

Medicaid Fair Hearing Trigger • If determined ineligible for Medicaid, agency must treat an

appeal to the Marketplace of a determination of APTC/CSR eligibility as a request for a Medicaid fair hearing.

• Agency must establish a secure electronic interface through which the Marketplace can notify the agency that an APTC/CSR eligibility appeal has been filed.

• Preamble notes intention to avoid need for individual to have to submit two appeal requests (one to Marketplace and one to SMA) and that CMS is considering a later effective date for this provision (e.g., January 1, 2015) to allow states time to operationalize requirement.

45 CFR §155.520 (a )& (b)

Final Rule allows Marketplace appeals entities to utilize a secure, paper-based process for first year of operation. Preamble 54098

Request for Appeal Modality • Request by telephone, mail, in-person, online

or through other available electronic means. • In person required only if Marketplace is

“capable of receiving in-person requests”

Timeframe for Appellant Request • Must allow applicant or enrollee to request an

appeal within: • 90 days of the date of the notice of eligibility

determination • A timeframe consistent with the State

Medicaid agency’s requirement, but no less than the 30 days, from the date on eligibility determination notice

Proposed 42 CFR §431.221(e); Proposed 435.1200(g); Preamble 4598


Proposed Regulation


32 Informal Resolution: Legal Requirements


• Required for HHS Appeals

• Optional for State Medicaid Agency

• Medicaid agency must establish a secure electronic interface with the Marketplace or Marketplace appeals entity through which:

• the Marketplace can notify the Medicaid agency that an APTC/CSR eligibility appeal has been filed; and

• the electronic account, including any information provided by the individual to the Medicaid agency or Marketplace, can be transferred between programs.

• Medicaid agency must ensure that as part of conducting a fair hearing, it does not request information or documentation from the individual already included in her electronic account or provided to the Marketplace or Marketplace appeals entity.

Preamble 4599; Proposed 42 CFR 435.1200(g)

• Required for HHS Appeals

• Optional for State Based Marketplace

• IR process must:

• Consider information used to determine appellant’s eligibility;

• Preserve appellant’s right to hearing if she remains dissatisfied with outcome;

• If appeal advance to a hearing, not request that appellant submit duplicative; information or documentation previously submitted during the application or IR process;

• Be considered binding and final unless consumer retains request for appeal.

45 CFR §155.535(a)


Proposed Regulation


33 Dismissals/Withdrawals: Legal Requirements


Withdrawal of Hearing Request • Appeals entity may deny or dismiss a request for

hearing if applicant withdraws request in writing or fails to appear at scheduled hearing without good cause.

Modality for Submission of Withdrawal • Proposed Medicaid rule preamble contemplates

allowing withdrawal of Medicaid hearing request via all the modalities permitted for application submission (i.e., via web portal, telephone, mail, in-person or through other common electronic means).

Preamble 4651; Preamble 4598

42 CFR§431.223

Withdrawal of Hearing Request • Appeals entity must dismiss an appeal if the

appellant: withdraws the request in writing; fails to appear at a scheduled hearing without good cause; fails to submit a valid appeal request; or dies while the appeal is pending.

• If an appeal is dismissed, appeals entity must provide timely notice to the Marketplace and Medicaid/CHIP agency, as applicable, including instructions regarding eligibility determination to implement and discontinuing pended eligibility, as applicable.

45 CFR §155.530


Proposed Regulation


34 Dismissals/Withdrawals: Legal Requirements


Reinstatement of Medicaid Application After Withdrawal • When Marketplace conducts an assessment and

finds an individual potentially ineligible for Medicaid, individual may withdraw Medicaid application or request full Medicaid determination.

• If individual subsequently files an APTC/CSR appeal and Marketplace assesses the individual as potentially Medicaid eligible as result of appeal, the Medicaid application must be reinstated.

• 45-day or 90-day timeliness standards for resulting eligibility determination apply based on the date the application is reinstated.

• Reinstated application must be made effective retroactive to the date it was initially submitted to the Marketplace (not the date of reinstatement) to protect the effective date of coverage.

• Individual’s electronic account must subsequently be transferred to Medicaid agency for final determination to be made; if Medicaid eligibility is denied, individual has right to request a Medicaid fair hearing.

45 CFR 155.302(b)(2) and (4); 42 CFR§435.907(h); 42 CFR§435.912; Proposed 42 CFR§435.1200(d)


Proposed Regulation


35

Cross-Agency Appeals Coordination: Legal Requirements


Secure Electronic Interface • Medicaid agency must establish a secure

electronic interface with the Marketplace or Marketplace appeals entity through which:

• the Marketplace can notify the Medicaid agency that an APTC/CSR eligibility appeal has been filed; and

• the electronic account, including any information provided by the individual to the Medicaid agency or Marketplace, can be transferred between programs.

• Medicaid agency must ensure that as part of conducting a fair hearing, it does not request information or documentation from the individual already included in her electronic account or provided to the Marketplace or Marketplace appeals entity.

• Medicaid proposed rule preamble notes that the secure electronic interface established between the Medicaid agency and Marketplace may be used for these purposes, or a separate secure interface directly between the Medicaid agency and Marketplace appeals entity may be established.

Proposed 42 CFR§431.1200(g)(1) and (2); Preamble 4600

The Aug. 2013 Marketplace Final Rule preamble

acknowledges that “many Marketplace appeals

entities may lack the system functionality for secure

electronic data Marketplaces in current system builds

for the first year of operations. Instead, Marketplace

appeals entities may utilize a secure, paper-based

process for exchanging data and information that

conforms to information privacy and security

standards incorporated in §155.510(c)(1) for the first

year of operation.”

Preamble 54097


Proposed Regulation


36



Transfer from other IAPs to SMA

For individuals who have been assessed potentially Medicaid eligible by an IAP (including as a result of a Marketplace appeal decision), or who request a full Medicaid determination, the SMA must: • Accept via secure electronic interface the electronic

account for the individual and notify the Marketplace of receipt;

• Not request information or documentation from the individual provided in her electronic account or to another IAP/appeals entity;

• Determine individual’s Medicaid eligibility in compliance with timeliness standards; • For individual’s determined Medicaid ineligible,

assess potential eligibility for other IAPs and as appropriate transfer electronic account to other program via secure electronic interface;

• Accept any finding related to criterion of eligibility made by such program or appeals entity, without further verification, if such finding was made in accordance with agency’s policies and procedures; and

• Notify IAP of the final determination of individual’s eligibility or ineligibility for Medicaid.

Proposed 42 CFR§431.1200(d); Emphasis added.


Proposed Regulation


37



Evaluation of Eligibility for Other IAPs

For individuals who have been determined ineligible for Medicaid, including as the result of a Medicaid fair hearing, the agency must: • Assess potential eligibility for other IAPs and as

appropriate transfer electronic account to other program via secure electronic interface

• For individuals who have been determined ineligible for Medicaid on the basis of MAGI but are seeking non-MAGI eligibility determination, the agency must:

• Assess potential eligibility for other IAP in compliance with timeliness standards, and transfer account via secure electronic interface to other program

• Notify IAP and individual of determination of MAGI Medicaid ineligibility and that final determination of non-MAGI eligibility is still pending;

• Notify IAP and individual of final determination of eligibility for Medicaid on basis other than MAGI.

Proposed 42 CFR§431.1200(e); Emphasis added.


Proposed Regulation


38



Transmission of Fair Hearing Decision • Agency must transmit hearing decision to the

Marketplace via secure electronic interface when individual was:

• Initially determined Medicaid ineligible by the Marketplace; or

• Initially determined Medicaid ineligible by the Medicaid agency and had account transferred to Marketplace for evaluation of APTC/CSR eligibility (i.e., individual may be receiving APTC/CSR).

Proposed 42 CFR§431.1200(g)(3)

The Aug. 2013 Marketplace Final Rule preamble

acknowledges that “many Marketplace appeals

entities may lack the system functionality for secure

electronic data Marketplaces in current system builds

for the first year of operations. Instead, Marketplace

appeals entities may utilize a secure, paper-based

process for exchanging data and information that

conforms to information privacy and security

standards incorporated in §155.510(c)(1) for the first

year of operation.”

Preamble 54097


Proposed Regulation


39

Expedited Appeals: Legal Requirements


• Must establish an “expedited review process for hearings when an individual requests or a provider requests, or supports the individual’s request, that the time otherwise permitted for a hearing could jeopardize the individual’s life or health or ability to attain, maintain, or regain maximum function.”

• If request for expedited appeal is denied, appeals

entity must handle appeal request under standard process/timelines and notify consumer of denial either orally or through electronic means; if notified orally, must follow up with consumer by written notice within 2 calendar days of the denial.

• If request for an expedited appeal deemed valid,

decision must be issued within 3 working days of receipt of expedited request.

Proposed 42 CFR §431.224

• Must establish “an expedited appeals process” for instances in which “there is an immediate need for health services because a standard appeal could seriously jeopardize the appellant’s life or health or ability to attain, maintain, or regain maximum function.”

• If request for expedited appeal is denied, appeals entity must handle appeal request under standard process/timelines and notify consumer of denial either orally or through electronic means; if notified orally, must follow up with consumer by written notice within the timeframe established by the Secretary.

• Decision must be issued “as expeditiously as reasonably possible, consistent with timeframe established by the Secretary.”

45 CFR §155.540;§155.545


Proposed Regulation


40

Post-Hearing: Legal Requirements


Judicial Review • Consumer may seek judicial review to the extent it

is available by law.

HHS Appeals • Upon exhaustion of the State-Based Marketplace’s

appeals process, a consumer may request an appeal before HHS.

• Consumer must make appeal request to HHS within 30 days of Marketplace appeal decision via phone, mail, in-person (as applicable) or internet.

42 CFR §431.245

45 CFR §155.505(c) and (g); 155.520(c)

Judicial Review • Consumer may seek judicial review to the extent

it is available by law.


Proposed Regulation


41

Scope of Appeals: Legal Requirements


• Denial of eligibility at determination or redetermination

• Termination, suspension or reduction of covered benefits and services

• Determination of the amount of medical expenses which must be incurred to establish income eligibility

• Determination of income for cost-sharing obligations

• Determination by nursing facilities and adverse determinations by state related to preadmission screening and annual resident review

• Eligibility for enrollment in QHP, Basic Health Plan or catastrophic coverage, QHP enrollment periods, receipt or level of APTC/CSRs and related renewal decisions

• Exemption determination for individual mandate

• Failure of the Exchange to provide timely notice of an eligibility determination or redetermination

• Denial of request to vacate a dismissal made by a SBM appeals entity

Proposed 42 CFR§431.201 ; 42 CFR §431.220; §431.241 45 CFR §155.505(b)


Proposed Regulation


42

Evidence Packet/Case Record: Legal Requirements


Evidence Packet • Right to examine case file and electronic account, as

well as any evidence to be used by the state at the hearing, at a reasonable time before the date of hearing and during hearing.

• Right to refute evidence at hearing.

Proposed 42 CFR 431.242

Case Record • Record must be made available to appellant. • Record consists only of: transcript or recording of

testimony and exhibits, or an official report containing the substance of what happened at the hearing; all papers and requests filed in the proceeding; the decision of the hearing officer.

• Public must have access to all agency hearing decisions (subject to privacy and confidentiality safeguards).

42 CFR § 431.244

Evidence Packet • Right to examine case file and evidence at a reasonable

time before the date of hearing and during hearing • Right to refute evidence at hearing

45 CFR 155.535(d)

Case Record • Appeal record must be made available to appellant at

convenient time and place. • Appeals entity must provide public access to all appeal

decisions (subject to privacy and confidentiality safeguards).

• Appeal record means: the appeal decision, all papers and requests filed in the proceeding, the transcript or recording of hearing testimony or an official report containing the substance of what happened at the hearing (if hearing was held), and any exhibits introduced at the hearing.

45 CFR § 155.550; 45 CFR 155.500


Proposed Regulation


43

Notice of Appeal Rights: Legal Requirements


• Agency must issue and publicize hearing procedures

• Notice must be provided at application and determinations

• Notice must include: • Right to a hearing; • Procedures to request hearing; • Right to be represented; • Circumstances under which aid may be

continued pending an appeal • Right to opt for fair hearing before

Medicaid Agency (in states that have delegated to Marketplace)

• Notice must also include: • Statement of action • Reasons supporting action • Source of law • Right to request a local evidentiary hearing

if available, or State agency hearing • Must be sent at least 10 days before date of action • All notices must be accessible to individuals who

are limited in English and/or with disabilities, and may be provided electronically at individual’s option

• Notice must be provided at application and determinations

• Notice must include: • Explanation of an appellant’s appeal

rights • Procedures to request hearing • Right to representation • Circumstances under which eligibility

may be maintained/reinstated pending appeal

• Explanation that appeal decision may result in change in eligibility for other household members

42 CFR §431.206(d); Proposed 42 CFR§431.210 ; 42 CFR §431.211 45 CFR §155.515


Proposed Regulation


44

Notice of Decision: Legal Requirements


Content Requirements • Must be written; • Based exclusively on relevant evidence introduced at

the hearing; • In an evidentiary hearing, must summarize facts and

identify regulations supporting the decision; • In a de novo hearing, specify reasons for decision and

identify supporting evidence and regulations; • Provide notice of right to request a state agency

hearing (if the decision was a local evidentiary hearing) or seek judicial review (if available).

42 CFR §431.244; 42 CFR §431.245

Timeline Requirements • Agency must take final administrative action within:

• 90 days of the date that the individual files a request with the state for a fair hearing or with the MCO, whichever is earlier;

• No later than 3 working days from request receipt for expedited appeal; or

• 45 days of Marketplace appeals decision if bifurcated hearing process (at state option).

Proposed 42 CFR §431.244;

Content Requirements • Must be written; • Based exclusively on relevant evidence presented

during course of appeal process or introduced at the hearing;

• State the decision, including explanation of impact on appellant’s eligibility;

• Summarize relevant facts; • Identify legal basis, including regulations supporting

decision; • State effective date of decision; • If an SBM appeals entity, provide explanation of

right to seek HHS appeal.

Timeline Requirements • Must issue written notice of the appeal decision to

the appellant: • Within 90 days of the date an appeal request

is received, “as administratively feasible” • For expedited appeals, “as expeditiously as

reasonably possible, consistent with the timeframe established by the Secretary.”

• Must provide notice of decision and instructions to cease pended eligibility, as applicable, via secure electronic interface to SMA or Marketplace, as applicable

Proposed 45 CFR § 155.545 (a) &(b).


Proposed Regulation


45

Notice of Receipt/Notice of Hearing: Legal Requirements


Notice of Receipt of Appeals Request • Medicaid regulations do not specify

requirements regarding Notice of Receipt of Appeal Request.

• Upon receipt of a valid appeal request, must: • send “timely acknowledgement” of receipt of

request to appellant; notice must include information on eligibility pending appeal and explanation that any APTC paid pending appeal is subject to reconciliation.

• Send via secure electronic interface timely notice of appeal request and instructions for eligibility pending appeal to SMA & Marketplace, as applicable.

Notice of Hearing • Hearing must be conducted only after adequate

written notice of the hearing.

42 CFR §431.240(a)(2)

45 CFR § 155.520(d); 45 CFR § 155.535(b).

Notice of Receipt of Valid Appeals Request

• When a hearing is scheduled, must send written notice of date, time and location or format of hearing no later than 15 days prior to the hearing date.

Notice of Hearing

• Upon receipt of an invalid appeal request, must: • “promptly and without undue delay” send

written notice to applicant or enrollee that request was not accepted and must note the nature of the defect in the request.

• Treat as valid an amended appeal request revised to meet requirements.

Notice of Receipt of Invalid Appeals Request


Proposed Regulation


46

Hearing Modality and Adjudicators: Legal Requirements


• Hearing must be heard orally • Hearing must be adjudicated by an impartial

officer • Hearing officer must have access to agency

information necessary to issue a proper hearing decision, including information concerning State policies and regulations.

42 CFR §431.205(d); 42 CFR §431.240

• Hearing must be adjudicated by an impartial officer

45 CFR §155.535(c).


Proposed Regulation


Individual Eligibility Appeals Process: Federal ... · Applicants or enrollees may appeal initial...

Documents

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