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Heads Up - Changes Coming in Fair Hearing Rights for MLTC and Managed Care Members - April 2018

30 Jan, 2018

February 8, 2018 update -  The State Dept. of Health has a new webpage on which FAQs, webinars, and guidance for 
    mainstream Medicaid managed care plans is posted on the new requirements that start April 1st.   Here is the webpage   Service Authorization and Appeals for Mainstream Medicaid Managed Care Plans, HARP, and HIV SNP.  While this  webpage is not oriented to MLTC plans, the same guidance should apply.  Note the Model Notices also posted on this webpage. 

January 30, 2018 update - The State has postponed the start date for the new rules from March 1, 2018 to April 1, 2018. 

     NYLAG has revised the full article on MLTC Appeals and Grievances to include the new rules - click here.

December 2017 update - see some State official templates for model notices posted here - with sample of a reduction notice here.  Also, download this Managed Care Appeal Authorization form, developed by NYLAG EFLRP.   Read more about why this form is suggested here.  

What is Changing? 

New York State is preparing to implement massive changes in appeal rights for members of Medicaid managed care plans, including members of Managed Long Term Care plans.  These are changes in federal Medicaid regulations governing Medicaid managed care plans, which were made by the Obama Administration.  The managed care regulations are at 42 C.F.R. Part 438,  Subpart F  -- The Grievance and Appeal System for Medicaid managed care.  The regulations are effective in New York State on April 1, 2018.  NYS Dept.of Health hoped to put them in effect on March 1, 2018, but has reportedly postponed it until April 1, 2018.    This article explains the new appeal procedures, with a comparison to the existing procedures. 

Here are the key changes that will go into effect April 1, 2018:

Members Must Request Internal Appeals within their Plan, and Plan must Deny the Appeal, Before Requesting a Fair Hearing ("Exhaustion" requirement)

The biggest change for New York managed care members is the "Exhaustion" requirement.   Members  must "exhaust" the plan's internal appeal  procedure, and receive an adverse appeal decision by the plan,  BEFORE requesting a fair hearing.  Under 42 C.F.R. 438.402(c)

"...An enrollee may request a State fair hearing after receiving notice under § 438.408 that the adverse benefit determination is upheld."  

Section 438.408 refers to the plan's decision resolving a request for an internal appeal.  

There is a narrow exception to this requirement, allowing a member to request a Fair hearing directly, without receiving the plan's appeal decision.  This is called "deemed exhaustion." 

This new exhaustion requirement  is a huge change in New York.   In the nearly twenty years that enrollment in managed care has gradually become  mandatory for most Medicaid recipients who do not have Medicare, members always have had the right to request a fair hearing without first requesting an internal plan appeal.   When Managed Long Term Care first became mandatory in 2012, "exhaustion" of internal appeals was required, but since July 1, 2015, the State dropped that requirement, entitling MLTC members to request a fair hearing right away to contest an adverse determination by the plan.  See this article about current appeal system in MLTC and this news article describing the elimination of the "exhaustion" requirement for MLTC in July 2015. 

To prepare for implementation of this massive change, the State Dept. of Health has convened a Workgroup composed of both plan and consumer representatives.   NYLAG Evelyn Frank Legal Resources Program, along with the ICAN Ombudsprogram, the Legal Aid Society, the Empire Justice Center and other organizations are representing consumer interests in this workgroup. 

NEW MODEL NOTICES - New York State has finalied the notice templates by which managed care and MLTC plans must give  written NOTICE to members of adverse actions. 
  1. ""INITIAL ADVERSE DETERMINATION - REDUCTION" Click here for  the template for a notice of proposed reduction in services  and click here for an unofficial sample of a completed notice based on hypothetical facts -- completed by NYLAG. 

  2.  Final Adverse Determination - Internal Appeal decision by plan wholly or partially affirming an Initial Adverse Determination that reduces services..

Among the concerns expressed by consumers are the following:


If a managed care or MLTC plan sends notice that it intends to reduce  hours of home care services, or reduce or stop any other service, the member will now have to request an INTERNAL PLAN APPEAL within the short 10-day window needed to secure AID CONTINUING -- continuation of services at the original current amount, without the proposed reduction going into effect.   The plan only has to mail the notice 10 days before the effective date of the intended action.  The member must request the internal appeal before the effective date of the action  The 10 days includes the time it takes to mail the notice and includes weekends and holidays.   This may leave only a workday or two to request the appeal. All of the concerns listed below jeopardize aid continuing rights and appeal rights generally.  

2.   Requesting an internal plan appeal within this 10-day time frame may be more difficult than requesting a Fair Hearing. 

For fair hearings, members have the option of requesting the hearing by phone, fax, or online.  Fair Hearing phone requests are to a line dedicated solely to fair hearing requests.  In contrast. members call an 800 number for the managed care plans that handles ALL managed care issues, not just appeals.  Members may be routed by the call center to their care manager, or to other departments, rather than to the Grievances and Appeals unit.  Time is of the essence to get that internal appeal request logged in, but time may be lost while the call is routed or misrouted, or while the member awaits a call back.  The State Dept. of Health has agreed to consumers' requests that plan notices provide a fax number to fax an internal appeal request.  They are not required, however, to allow filing requests online.

3.  Plan notices must clearly explain the new requirement to file an internal appeal.  

The State has solicited comments on draft model notices, which NYLAG and other consumer representatives have submitted proposed edits.   One of the model notices - the notice that services will be reduced - is posted here, along with an unnofficial sample of how it will look when completed.   Advocates should read it carefully to familiarize themselves with the changes.     Note that an Appeal Request Form is included as part of the notice.  Since oral requests must be confirmed in writing, it is recommended to use the Appeal Request Form.

4.  Oral Appeals Must be Followed up by a Written Signed appeal request, unless the enrollee requests an expedited resolution  

The regulations require this extra step for requests made orally, presumably by phone.  42 § 438.402(c)(3)(ii).  The exception is if expedited resolution is requested.   As an advocacy tip,  any oral request should request expedited resolution.    Expedited resolution is required if the plan determines or medical provider indicates that "...taking the time for a standard resolution could seriously jeopardize the enrollee's life, physical or mental health, or ability to attain, maintain, or regain maximum function."  42 C.F.R. 438.410.  Expedited determinations must be made within 72 hours rather 30 days for standard appeals.   42 C.F.R. 438.408.  

Consumers have urged DOH to require plans to assist members with providing the written appeal confirmation.  

5.  Who May Request The Internal Appeal On Behalf of the Member - TIP to Pre-Designate Someone who may request appeal or hearing.

The federal regulation arguably requires the member to give written consent for a representative to file an appeal request, which could delay filing a request with disastrous consequences -- client could miss the deadline to request Aid Continuing.   The regulation says,  "If State law permits and with the written consent of the enrollee, a provider or an authorized representative may request an appeal or file a grievance, or request a State fair hearing, on behalf of an enrollee."    § 438.402(c)(1)(ii).     To prevent problems, we recommend having a member pre-designate a person or organization to request appeals when needed.  See this suggested form and read tips about using it

In  the preamble to the regulations, CMS states,   “…we defer to state determinations regarding the design of their grievance and appeal system; state law could vary regarding who the state recognizes as an authorized representative.”  81 Fed. Reg. at 27510.  New York has always been expansive in permitting family or representatives to request the appeal, thus ensuring that the right to appeal is not unduly restricted.  For example, the OTDA  fair hearing request form allows a person requesting the hearing to  indicate whether  they are the “requester” or the “representative.”  NYS DOH's templates for model MLTC notices issued  In March 2015  state, “You can have someone you trust ask for an Internal Appeal for you.”  

ADVOCACY TIP:  Have Member Sign Form To Designate a Family Member or Representative to Request an Appeal - and Submit Form to Plan Now, BEFORE the plan takes adverse action.   

In the Model Appeal and Hearing Request Forms that the State is requiring all plans to use (Requests forms are attached in the same PDF after the model notices), the form allows someone to request the appeal on the member's behalf, without requiring the member to sign the request form,  if the member has authorized the person with the plan before.  Here is a suggested authorization form, developed by NYLAG EFLRP, by which a member may pre-designate a family member, lawyer, social worker, or ICAN to act on her behalf - or to authorize someone to act.  We suggest that these be completed, signed and provided to the care manager for the client's file, so that in the event the plan later takes an adverse action, the designated person, attorney, etc. may request the appeal without being delayed by the need to get the client's signature.  

TIPS on completing the managed care authorization form:

  • The member may designate more than one person/organization in this form to request an appeal.  Check all that apply.  Note that the form has an additional checkbox for the member to indicate that the individual may also act on their behalf for the entire appeal.  Member should check that too.  

  • Send it certified to the plan with a cover letter so you have proof that it was provided.  Or give it to the care manager in person, and have the care manager sign your copy as received.  Attach that proof of delivery when you request an appeal later.  

6.  "DEEMED EXHAUSTION" - Member May Request a Fair Hearing if Plan Failed to Meet Notice and Timing Requirements

The regulations provide for an exception to the "exhaustion" requirement.  Where the managed care plan “fails to adhere to the notice and timing requirements of sec. 438.408, the enrollee is deemed to have exhausted the [managed care plan'] … appeals process.  The enrollee may initiate a State fair hearing.”  42 CFR 438.402(c)(1)(A).

This regulation requires state policies for defining where deemed exhaustion applies.  Both state agencies -- OTDA and DOH  - must revise their procedures and forms elicit facts that demonstrate whether deemed exhaustion applies. 

Consumers contend that deemed exhaustion should be defined to apply in cases including but not limited to:

  • No written notice of initial adverse determination (IAD) was provided by the plan, or
  • The IAD does not include the requisite information re the right to Aid Continuing, how to request an appeal, etc.
  • The IAD did not incorporate necessary translation or alternative formats, was not on the required template, or did not offer auxiliary aids and services, free of cost, during the appeal, thus impeding the enrollee’s time to appeal or request Aid Continuing.
  • The IAD  does not comply with other applicable requirements, ie. MLTC Policy 16.06;
  • Plan did not decide the appeal  within 30 days from member’s appeal request, or if an expedited appeal was requested, within 72 hours after the MCO receives the appeal, unless extended pursuant to the regulations by up to 14 calendar days.  § 438.408

Stay turned for more information about these changes.   See full article on MLTC Appeal rights -

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