Individual Eligibility Appeals Process: Federal Requirements and Key Considerations for States. Academy Health September 23, :00 2:30 p.m.

Transcription

1 Individual Eligibility Appeals Process: Federal Requirements and Key Considerations for States Academy Health September 23, :00 2:30 p.m. EST

2 Agenda 2 Appeals Overview Appeals Process: Regulatory Requirements and Key Considerations for States State Approaches to Appeals Process Design Rhode Island Illinois State Discussion and Q&A Next Steps

3 Appeals Overview 3

4 Types of Eligibility Appeals 4 INDIVIDUAL ELIGIBILITY DETERMINATIONS INDIVIDUAL RESPONSIBILITY EXEMPTIONS EMPLOYER RESPONSIBILITY SHOP ELIGIBILITY Focus of Today s Discussion 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

5 Eligibility Appeals: Legal Authority 5 Medicaid: Social Security Act 1902(a); 42 C.F.R et seq. and et seq. (NPRM, Final Rule and Existing Regulations); Goldberg v. Kelly CHIP: Federal Law 42 C.F.R (NPRM and Existing Regulations) Marketplace: ACA 1411(f)(1) Federal Appeal Marketplace: 45 CFR et seq.; (NPRM and Final Rule)

6 Federal Appeals Regulations Overview 6 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, 3 rd Party State Agency, or non-governmental entity

7 Final Regulations on Appeals 7 Medicaid Final Rule July 2013 Marketplace Final Rule Aug 2013 Finalized: 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 Future Guidance Expected On: 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 Finalized: 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 Future Guidance Expected On: 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 (c)(1) for the first year of operation. Preamble 45097

8 Appeals Process: Regulatory Requirements and Key Considerations for States 8

9 Key Features of the Appeals Process 9 DELEGATION AUTHORITY DISMISSALS/WITHDRAWALS DECISIONS REQUEST FOR AN APPEAL CROSS AGENCY COORDINATION AUTHORIZED REPRESENTATIVE EXPEDITED APPEALS INFORMAL RESOLUTION HHS APPEALS ENTITY

10 Delegation Authority 10 Key Considerations for States Regulatory Requirements SBM may delegate to: (1) HHS Appeals Entity; (2) State Medicaid Agency; (3) 3 rd 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) 3 rd 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, (Medicaid Preamble Final) Most SBMs are looking to delegate appeals to their Medicaid Agency or a third party agency. SMAs seeking to delegate appeals have two options State Medicaid Agency Delegation Considerations Regulation ICA Waiver Delegable entity Marketplace or Any State Agency Marketplace Appeals Entity Only 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 Delegation agreements will need to be negotiated to establish operational protocols, specified roles and oversight responsibilities.

11 Request for an Appeal 11 Key Considerations for States Regulatory Requirements Modalities: by telephone, mail, in-person, online or through other available means. (Exchange Final/Medicaid Proposed): Timeframe: Paper-based process acceptable for first year (Exchange Final Preamble) 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) 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

12 Authorized Representative 12 Key Considerations for States Legal Requirements Right to designate an authorized representative in any stage of the appeal. (Medicaid Existing/ Exchange Final) 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).

13 Informal Resolution 13 Key Considerations for States Legal Requirements 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) 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

14 Withdrawals 14 Key Considerations for States Legal Requirements 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 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

15 Decisions 15 Key Considerations for States Legal Requirements 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) 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).

16 Cross-Agency Appeals Coordination 16 Legal Requirements 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 paperbased process for exchanging data in Year One (Exchange Preamble: Final) Key Considerations for States 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.

17 Expedited Appeals 17 Key Considerations for States Legal Requirements 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) 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)

18 HHS Appeal Upon Exhaustion of State-Based Process 18 Key Considerations for States Legal Requirements 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 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

19 State Approaches to Appeals 19

20 Rhode Island s Approach to Appeals Process Design 20

21 Illinois Approach to Appeals Process Design 21

22 Question and Answer 22

23 23 Thank you! Melinda Dutton Kinda Serafi Lindsay McAllister Ryan Lipinski

24 Appendix A: Appeals Process Flows 24

25 Opportunity for Informal Resolution FFE Integrated IAP Appeals Process 25 Medicaid agency delegates appeals authority to Exchange; and Consumer does not choose State Medicaid Agency review FFE STANDARD APPEALS Receives eligibility determination Appeal Before HHS HHS Issues Decision Consumer Notice consumer within 15 days 15 of hearing Exchange Medicaid Legal Review? 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 Exchange must issue decision 90 days from appeals request** Max. Timeframe* * Because Exchange may align with state Medicaid timeframe, requests may be submitted days within date of determination; accordingly, maximum timeframe will vary based on number of days permitted ** As administratively feasible

26 Opportunity for Informal Resolution FFE Bifurcated IAP Appeals Process: APTC/CSR and Medicaid Non-delegated; or Delegated, but consumer chooses option for Medicaid Agency Review 26 EXCHANGE HEARING 1 st Receives eligibility determination FFE APTC/CSR AND Medicaid APPEALS: SEQUENCED Appeal Before HHS HHS Issues Decision Appeal Before Medicaid/State Agency Medicaid/State Agency Issues Decision Consumer 15 Notice consumer within 15 days of hearing 15 Exchange Exchange Medicaid Medicaid HEARING 1 st Receives eligibility determination Appeal Before Medicaid/State Agency Medicaid/State Agency Issues Decision Appeal Before HHS HHS Issues Decision Consumer 15 Notice consumer within 15 days of hearing 15 Medicaid Exchange Exchange Timeframe Max. Timeframe* if Exchange 1st Max. Timeframe* if Medicaid 1st Applicant must request appeal: Exchange must issue Within 90 days of determination; or Timeframe consistent w/ state Medicaid decision 90 days from requirement, but no less than 30 days* appeals request** Medicaid must issue 90 days from appeals request and no later than 45 days from Exchange appeals decision Exchange must issue within 90 days of initial appeals request** * Because Exchange may align with state Medicaid timeframe, requests may be submitted days within date of determination; accordingly, maximum timeframe will vary based on number of days permitted ** As administratively feasible

27 SBE Integrated IAP Appeals Process Opportunity for Informal Resolution 27 Medicaid agency delegates appeals authority to Exchange; and Consumer does not choose or have option for State Medicaid Agency review SBE STANDARD APPEALS Receives eligibility determination Appeal Before Exchange/State Agency Exchange/State Agency Issues Decision HHS Appeal Upon Exhaustion of State-based Appeals Process HHS Issues Decision Consumer Notice consumer within 15 days of hearing EXCHANGE 15 HHS Applicant must request appeal: Exchange must issue Timeframe decision 90 days from Within 90 days of determination; or Timeframe consistent w/ state Medicaid requirement, but no less than 30 days* appeals request** Applicant has 30 days to request an HHS appeal 90 Max. Timeframe* * Because Exchange may align with state Medicaid timeframe, requests may be submitted days within date of determination; accordingly, maximum timeframe will vary based on number of days permitted ** As administratively feasible

28 SBE Bifurcated IAP Process: APTC/CSR and Medicaid Non-delegated; or Delegated, but consumer chooses option for Medicaid Agency Review SBE APTC/CSR AND Medicaid: PARALLEL Opportunity for Informal Resolution 28 Receives eligibility determination Notice consumer within 15 days of hearing 15 Appeal Before Exchange/State Agency Exchange/State Agency Issues Decision HHS Appeals EXCHANGE HHS Consumer Adequate written notice to consumer prior to hearing Appeal Before Medicaid/State Agency Medicaid/State Agency Issues Decision MEDICAID Timeframe Applicant must request appeal: Within 90 days of determination; or Timeframe consistent w/ state Medicaid requirement, but no less than 30 days* 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) 90 Max. Timeframe* * Because Exchange may align with state Medicaid timeframe, requests may be submitted days within date of determination; accordingly, maximum timeframe will vary based on number of days permitted ** As administratively feasible

29 Appendix B: Appeals Process Legal Requirements 29

30 KEY Delegation Authority: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 30 Medicaid Final Rule July 2013 Marketplace Final Rule Aug 2013 Delegation Authority: State Medicaid Agency may delegate to: (1) SBM; (2) HHS Appeals Entity; or (3) 3 rd 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) 3 rd Party Agency. States do not have a deadline by which they must choose to delegate; regulation permits delegation any time after October 1, Written Agreements: Delegations require written agreements specifying roles and Medicaid oversight responsibilities. 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. Delegation Modality/Consumer Choice: SMA may delegate authority to conduct MAGI-based eligibility appeals either under (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. 42 CFR (c)(d); 42 CFR (g); 42 CFR (d) Scope of Delegable Appeals: 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 Written Requirements Delegations require written agreements specifying a clear delineation of the responsibilities of each entity to support appeals process. Secure Electronic Interface 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 , Preamble 54098

31 KEY Request for Appeals: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 31 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. Proposed 42 CFR (e); Proposed (g); Preamble 4598 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 Final Rule allows Marketplace appeals entities to utilize a secure, paperbased process for first year of operation. Preamble CFR (a )& (b)

32 KEY Informal Resolution: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 32 Medicaid Marketplace 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. 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. Preamble 4599; Proposed 42 CFR (g) 45 CFR (a)

33 KEY Dismissals/Withdrawals: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 33 Medicaid Marketplace 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. 42 CFR 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). 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. Preamble 4651; Preamble CFR

34 KEY Dismissals/Withdrawals: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 34 Medicaid Marketplace 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 (b)(2) and (4); 42 CFR (h); 42 CFR ; Proposed 42 CFR (d)

35 KEY Cross-Agency Appeals Coordination: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 35 Medicaid Marketplace 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 (g)(1) and (2); Preamble 4600 The Aug 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 (c)(1) for the first year of operation. Preamble 54097

36 KEY Cross-Agency Appeals Coordination: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 36 Medicaid Marketplace 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 (d); Emphasis added.

37 KEY Cross-Agency Appeals Coordination: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 37 Medicaid Marketplace 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 (e); Emphasis added.

38 KEY Cross-Agency Appeals Coordination: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 38 Medicaid Marketplace 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). The Aug 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 (c)(1) for the first year of operation. Proposed 42 CFR (g)(3) Preamble 54097

39 KEY Expedited Appeals: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 39 Medicaid Marketplace 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. 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. Proposed 42 CFR CFR ;

40 KEY Post-Hearing: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 40 Medicaid Marketplace Judicial Review Consumer may seek judicial review to the extent it is available by law. 42 CFR 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. 45 CFR (c) and (g); (c)

41 KEY Scope of Appeals: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 41 Medicaid Marketplace 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 ; 42 CFR ; CFR (b)

42 KEY Evidence Packet/Case Record: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 42 Medicaid Marketplace 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 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 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 (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 ; 45 CFR

43 KEY Notice of Appeal Rights: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 43 Medicaid Marketplace 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 (d); Proposed 42 CFR ; 42 CFR CFR

44 KEY Notice of Decision: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 44 Medicaid Marketplace 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 ; 42 CFR 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 ; 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 (a) &(b).

45 KEY Notice of Receipt/Notice of Hearing: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 45 Medicaid Marketplace Notice of Receipt of Appeals Request Medicaid regulations do not specify requirements regarding Notice of Receipt of Appeal Request. Notice of Hearing Hearing must be conducted only after adequate written notice of the hearing. 42 CFR (a)(2) Notice of Receipt of Valid Appeals 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 Receipt of Invalid Appeals Request 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 Hearing 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. 45 CFR (d); 45 CFR (b).

46 KEY Hearing Modality and Adjudicators: Legal Requirements Existing Medicaid Requirement Proposed Regulation Final Regulation 46 Medicaid Marketplace 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. Hearing must be adjudicated by an impartial officer 42 CFR (d); 42 CFR CFR (c).