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Appeals & Grievances in Managed Long Term Care - Consumer Rights

Views: 10259
Posted: 25 Jan, 2013
by Valerie Bogart (New York Legal Assistance Group)
Updated: 17 Mar, 2016
by Valerie Bogart (New York Legal Assistance Group)

Procedures to appeal decisions by Managed Long Term Care plans are different than those they are used to from the longtime system of requesting hearings to appeal decisions by the CASA/Medicaid offices. 

In March 2015 State Dept. of Health issued new Notice Templates to the MLTC plans, described further below and posted here.

Difference between GRIEVANCE and APPEAL

GRIEVANCE vs. APPEAL- Consumers need to learn when to file a “GRIEVANCE” and when to file an “APPEAL.”  See more about GRIEVANCES here.

  • A grievance is a complaint you make directly with the MLTC plan about the quality of care, services or treatment you received or about communications with the plan.   A grievance is not about the scope, amount or type of service that was approved by the plan. EXAMPLES include the aide or transportation is late or doesn’t show, aide  isn’t trained well, you can’t reach your care coordinator by phone, you were treated rudely, or if you disagree with the plan's decision to extend its time frame to decide your request for new or increased services.  42 CFR 438.404(c).  See more about the time frames for plan to approve or deny your request for new or increased services here.  

  • An Appeal is a request to review an action taken by a plan.  If your MLTC plan denies a new service or an increase in an existing service, or reduces or stops services that you already had, you have the right to appeal.   For example, the plan reduces your personal care services from 12 to 8 hours/day, or denies your request to participate in the Consumer-Directed Personal Assistance Program (CDPAP).  

Three Ways to Appeal Decision by MLTC Plan

  • THREE ways to appeal:
    1. Fair Hearing
    2. Internal Appeal
    3. External Appeal
  1. FAIR HEARING -

Since July 1, 2015, members may request a fair hearing right away, without having first requested an internal appeal.  While you may still request an internal appeal first, this is not recommended where the action you are appealing is REDUCTION or TERMINATION of a service.   In such cases, you will only get AID CONTINUING if you request the fair hearing before the effective date of the notice, which is a short time period. 

  • The State announced these changes to plans in a webinar conducted on April 29, 2015.  View the MLTC Model Notice Webinar April 29, 2015.  Download the MLTC Model Notice Webinar Slides.  State gave plans Model Notices which are not yet posted online, but an example is available here.

  •  If plan is REDUCING or STOPPING a service --   Plan should provide a written NOTICE 10 days before the EFFECTIVE date of the change.  

    • MLTC Plans must  use New NOTICE 4687 "MLTC Action Taken - Denial, Reduction or Termination of Benefits" ("Action Taken Notice")  (The template and a sample notice are posted in pp.  4-11 this PDF).

    • If plan only gives VERBAL notice, and no written notice, you can still request a Fair Hearing and ask for Aid Continuing. 

  • Request a FAIR HEARING immediately.  You must request a Fair Hearing before the “effective date” on the notice – in order to continue  your same hours or services while the appeal is pending (called “aid continuing”). 

    • HOW - See this link to OTDA website.   Fax requests are recommended since you can keep proof of fax.  IF there is an Aid Continuing deadline, phone call is recommended.

    • You may still request the appeal within 60 days of the date of the notice, but you will not receive aid continuing  if you do not appeal within the first 10 days or before the effective date. 

  • AID CONTINUING rights apply even if plan reduces services:

    • After the 90-day Transition Period.  This is the first 90 days you are enrolled in an MLTC plan if you transitioned to MLTC from a different fee-for-service Medicaid long term care service in NYC or a county with mandatory MLTC. These include personal care, Consumer-Directed Personal Assistance, Lombardi, Certified Home Health Agency (CHHA), Adult Day Health Care, or Private Duty Nursing.  See Note 1

    • At the end of an "Authorization Period."   In 2014, the State budget enacted an important change in the Social Services Law that guarantees the right to receive AID CONTINUING if the plan reduces services, "without regard to expiration of a prior service authorization."   Soc. Services Law Sec 365-a, subd. 8.  See NYLAG Statement in Support of A4996. Before this change, the Department of Health had authorized MLTC plans to reduce or terminate hours of home care services, with no right to Aid Continuing, if the plan’s service reduction coincided with the end of the plan’s “authorization period” for the services.  That policy allowed disruption and even termination of these services without these crucial hearing rights.  Implemented in --

MLTC Policy 14.05: Aid-continuing

MLTC Policy 14.05(a): Proper Handling of Enrollees´ Request for Fair Hearing 

  • YOU HAVE THE RIGHT TO REQUEST  AND RECEIVE COPIES OF YOUR CASE FILE for your appeal and your Fair Hearing.
  • See new website on NY Fair Hearings
  1. INTERNAL APPEAL -

Before July 1, 2015, members were REQUIRED to request an INTERNAL APPEAL first, before they could request a  FAIR HEARING.   This is an appeal within the plan, which must be decided by different personnel than those who decided the initial determination. 

  • The internal appeal must be requested within 45 calendar days of the date of the notice.  Partial Capitation Contract App. K Sec. I.B (p. 127 of the PDF)  If you win the internal appeal, you can withdraw your Fair Hearing request.   If you do not win, you go to the hearing when scheduled.  But if you request an internal appeal first, you will not get Aid Continuing.

  • See more on requesting Internal Appeals here.

  1. OPTIONAL THIRD WAY TO APPEAL -- External Appeal  --The plan’s notice denying your Internal Appeal will explain your right to request an External Appeal, if the reason for the denial is because they determine the service is not medically necessary or is experimental or investigational.   You may request an External Appeal even if you also request a Fair Hearing.   External Appeals are reviewed by a different State agency than Fair Hearings.  If you request both an External Appeal and a Fair Hearing, the decision from your Fair Hearing will be the one that is followed by your plan.  NY Public Health Law 4910

MORE ON GRIEVANCES AND APPEALS 

How to Request a Grievance

You or someone on your behalf can file a grievance with the plan in writing, over the phone or in person.   Your member handbook or member services representative should explain how to file the grievance.

For most plans, one requests a grievance or appeal by calling the member services telephone line.  A consumer must be assertive in requesting that they be referred to file a Grievance or Appeal, and know the difference.  Otherwise, the call may never be routed correctly.

TIMING:  The plan must decide your grievance within 45 days after receiving the information they need to decide and no later than 60 days.  If you or your provider think that a delay in deciding the grievance would result in serious harm to your health or ability to function, you can request an expedited grievance.  The plan must decide expedited grievances within 48 hours of receiving information needed, and within no more than 7 calendar days. 

If you are not satisfied with how your grievance is handled, or it is an emergency, you can also call the State Department of Health MLTC Complaint Hotline at 1-866-712-7197.

If you do not agree with the grievance decision you can file a grievance appeal. You must do so within 60 days of receipt of the grievance decision. Grievance appeals can also be expedited.

How and When to Request an Internal Appeal

​If the plan denied a new service, denied an increase in a service, or did not approve enough services -

  1. ​Plan should provide NOTICE using  Model Initial Adverse Determination (IAD)(pp 12 -22 of this PDF) includes a sample of how notice is used),

  2. You are not entitled to Aid Continuing on these kinds of appeals.  For that reason, it may be worth requesting an INTERNAL APPEAL first, to give the plan a chance to change its mind.  If you lose the internal appeal, you can then request a Fair Hearing.  

  3. You are not required to request an internal appeal, however, and may go directly to a Fair Hearing.   If you do request an internal appeal,  it must be requested within 45 calendar days of the date of the notice. Partial Capitation Contract App. K Sec. I.B (p. 127 of the PDF)

  4. You can appeal if the plan misses the deadline to decide your request for new services or for increased services.   Federal regulations specifically state that this constitutes a denial which can be appealed.  42 CF.R. 438.404(c)(5). These deadlines are explained in this article. 

HOW TO REQUEST THE INTERNAL APPEAL:

You may either -

1.       Call the member services phone number of your plan.  Ask if you need to confirm your request in writing and ask for the address, fax number, and/or email, OR

2.       Write to your plan.  Write to Member Services return receipt requested and write APPEAL REQUEST on the envelope and on the letter.  Make sure you include your Member ID number, name, address, Medicaid number, phone number, and the reasons for your appeal. 

WHEN TO REQUEST THE INTERNAL APPEAL:  If the plan denied an increase or a new service, request it with in 45 days of the postmark date of the notice.   Partial Capitation Contract App. K Sec. I.B (p. 127 of the PDF). IF plan is reducing or terminating a service, request it BEFORE THE EFFECTIVE date of the reduction but also request a FAIR HEARING before the effective date of the reduction.

WHEN MUST PLAN DECIDE INTERNAL APPEAL and RIGHT TO REQUEST AN EXPEDITED APPEAL:  

  1. The plan must decide a standard appeal within 30 days of receipt of the appeal request.

  2. You have the right to request an expedited appeal.   The plan must agree that a "delay would seriously jeopardize the Enrollee’s life or health or ability to attain, maintain or regain maximum function."  Partial Capitation Contract App. K Sec. I.B (p. 127 of the PDF). 

The Plan must decide an expedited appeal within 2 business days of receipt of necessary information, but no later than 3 business days of receipt of appeal request.   Partial Capitation Contract App. K Sec. I.B (p. 127 of the PDF).  Plan must make a reasonable effort to give oral notice for expedited appeals and must send written notice within 2 business days of decision for all appeals

  • Up to 14 calendar day extension. Extension may be requested by member or provider on member’s behalf (written or verbal). Plan may also initiate extension if it can justify need for additional information and if extension is in the member’s interest. In all cases, extension reason must be well-documented. Partial Capitation Contract App. K Sec. I.B (p. 127 of the PDF).

NOTE 1.

MLTC Policy 13.01 REVISED: Transition of Care for Fee for Services Participants in Mandatory Counties dated Feb. 6, 2013 --  further clarifies a previous  Jan. 17, 2013 Directive  -

Both the Jan. 17th and Feb. 6th directives remind MLTC plans that they are required to continue previously authorized long-term care services unchanged for 60 days when a consumer initially transfers into MLTC plans. This is called the Transition Period, required in the CMS Special Terms and Conditions approving the MLTC Waiver. p. 17 par. 28(d).  These directives remind plans of their obligation to provide notice before reducing services at the end of the 60-day transition period.  They must continue services unchanged during the internal appeal and until a hearing is decided, known as “Aid Continuing,” when a member appeals the plan's proposed reduction e or terminate a service.  

The directive states: 

This means that, for any individual receiving fee for service Medicaid community based long term
services and supports and enrolling under any circumstance, the plan must provide 60 days of continuity
of care. Further, if there is an appeal or fair hearing as a result of any proposed Plan reduction,
suspension, denial or termination of previously authorized services, the Plan must comply with the aid
to continue requirement identified above. In particular, if the enrollee requests a State fair hearing to
review a Plan adverse determination, aid-to-continue is to be provided until the fair hearing decision is
issued.
The revised directive of Feb. 6th clarifies that the requirement to continue past services unchanged for the first 60 days of MLTC enrollment applies to these services: 
  • The revised directive of Feb. 6th also clarifies that the initial appeal of a proposed reduction in services is an INTERNAL APPEAL within the plan.  Only if that decision is adverse, in whole or in part, does the consumer have the right to request a FAIR HEARING.   

LEGAL AUTHORITIES:

NYS DOH Model Contract -Partial Capitation Plans - Appendix K

N.Y. STATE DEP’T OF INSURANCE, EXTERNAL APPEALS

NYS Public Health Law § 4403, 4403-f

CMS Special Terms and Conditions approving the MLTC Waiver (amended Sept. 2012) 

NYS DOH MLTC Policy 13.01 REVISED: Transition of Care for Fee for Services Participants in Mandatory Counties dated Feb. 6, 2013

WHERE TO GO FOR HELP 

Government Hotlines

NYS Department of Health MLTC Complaint Hotline      
(866) 712-7197
New York Medicaid Choice (for enrollment problems)                 
(888) 401-6582
Fair Hearing Requests (must wait until after internal appeal decision)
(800) 342-3334

STATEWIDE ADVOCATES

 ICAN - Statewide Ombudsprogram for MLTC and Managed Care
(844) 614-8800 
 Legal Aid Society Health Law Helpline NYC                                   
(212) 577-3575
      Outside NYC   
(888) 500-2544
Empire Justice Center
(585) 454-6500
Find other organizations throughout NYS (by zip code or population)

ADVOCATES for New York City Only

New York Legal Assistance Group                                                                          
(212) 613-7310  eflrp@nylag.org 
Cardozo Bet Tzedek Legal Services                                                                         
(212) 790-0240
CIDNY - Center for Independence of the Disabled NY                            
(212) 674-1300
Services for people Age 60+ by Borough:
                Legal Aid Society Brooklyn Office for the Aging   
(718) 645-3111
                JASA/ Queens Legal Services for the Elderly            
(718) 286-1500
                Bronx Legal Services
(718) 928-3700
                Manhattan Legal Aid for Seniors Project - Above 110th Street
(212) 822-8300
                                                        Senior Intake Line -  Below 110th Street            
(212) 417-3880
                Staten Island                                                                                                          
(718) 233-6480


NOTE:  Some of the organizations listed above give only advice, not legal representation.

NON-LEGAL ADVOCACY ORGANIZATIONS

There are other organizations who can provide non-legal advocacy assistance, such as independent living centers.  For a list of local centers, visit http://www.nysilc.org/directory.htm.

Attached files
file MLTC Policy 2013 01 17 Aid Continuing.pdf (66 kb)
file ElderServe exhaustion of internal appeals eliminated 7-1-15_Redacted.pdf (296 kb)
file New MLTC Notices of Adverse Action - June 2015.pdf (1.2 mb)

Also read
document SDOH Transitional Care Policy
document Managed Long Term Care
document Tools for Choosing a Medicaid Managed Long Term Care Plan
document Applying for Medicaid Personal Care or CDPAP Services in New York City - 2016 Changes
document Grievance and Appeal Contacts for Managed Long Term Care Plans
document Statistics on Medicare and Medicaid Managed Care -- Enrollment Numbers and other Data -- New York State
document New Permanent Nursing Home Residents in NYS Required to Enroll in Medicaid Managed Care Plans or MLTC Plans - Effective since October 2015 Statewide

Also listed in
folder Medicaid -> Home Care
folder Medicaid -> Medicaid Managed Care

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