CMS issued related Final and Proposed rules addressing eligibility notices and fair hearing and appeal processes for Medicaid and other provisions related to eligibility and enrollment for Medicaid and Children’s Health Insurance Program (CHIP), implementing provisions of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) and the Health Care and Education Reconciliation Act (HCERA) (P.L. 111-152). The Final rule finalizes most remaining provisions of a January 22, 2013, Proposed rule that were not previously finalized, with the notable exception of provisions relating to the coverage of lawfully present non-citizens, who will no longer be referred to as "aliens" (see CMS proposed rule addresses enrollment, eligibility, appeals, premiums, and cost-sharing of health insurance affordability programs, January 21, 2013). The provisions of the Final rule are effective January 20, 2017. The Proposed rule discusses alternatives suggested by commenters to the January 2013 Proposed rule, in addition to other suggestions, including some alignment of CHIP policies with Medicaid policies (Final rule, 81 FR 86382, November 30, 2016; Proposed rule, 81 FR 86467, November 30, 2016).
Final rule. Rather than finalizing an "auto-appeal" provision that would automatically consider an exchange-related appeal to trigger a Medicaid fair hearing request, the Final rule allows applicants and beneficiaries pursuing an exchange-related appeal to also appeal a Medicaid denial by making a single joint fair hearing request, when an exchange has provided a combined eligibility notice. Expedited fair hearing requests of an eligibility-related matter must be adjudicated within seven working days from the date of receipt of the request, while expedited fair hearing of a fee-for-service coverage-related matter must be adjudicated within three working days. The rule requires the agency conducting the hearing to minimize requests for information or documentation already included in the individual’s electronic account or otherwise provide to the agency. If a Medicaid or CHIP appeals entity upholds a denial, it must the applicant’s eligibility for other insurance affordability programs and notify the exchange or exchange appeals entity of the outcome of the appeal. The Final rule generally provides that notices must contain a clear statement of the specific reasons for an adverse finding. Eligibility notices must be written in plain language and basic information regarding the level of benefits coverage and cost-sharing obligations available.
The rule also addresses Medicaid eligibility changes under the ACA, including those affecting former foster care children, individuals excepted from modified adjusted gross income (MAGI), and non-pregnant individuals engaged in family planning. It finalized provisions regarding accessibility for limited English proficient (LEP) individuals as proposed. It provides pregnant women with eligibility for pregnancy-related services until the end of the month of the post-partum period and provides eligibility for hospitalized children through the end of the inpatient stay if the child would otherwise lose eligibility due to age.
The Final rule also eliminates or makes changes to unnecessary and obsolete regulations, provides for the electronic submissions of Medicaid and CHIP state plan, and addresses changes to the MAGI and medical support and payments.
Proposed rule. The Proposed rule discusses alternatives suggested by commenters to the January 2013 Proposed rule, in addition to other suggestions. The Proposal would require states to allow applicants and beneficiaries seeking review of CHIP determinations online, by phone, or through other commonly-available electronic means, as is permitted in Medicaid fair hearing requests. It would require the agency to issue written confirmation of a Medicaid or CHIP fair hearing request within five business days of receipt. It would require that Medicaid agencies accept as timely filed a Medicaid or CHIP appeal filed using a joint fair hearing request that is timely submitted to an exchange or exchange appeals entity. Medicaid agencies would be required to allow at least 30 days but no more than 90 days for the filing of fair hearing requests.
The Proposed rule would reduce the amount of time permitted to adjudicate expedited fair hearing requests of eligibility-related matters from seven to five working days. CMS is also considering further reducing that time to three working days. It would also revise expedited fair hearing request denial notice requirements to ensure transparency to the individual about why the denial was issued and require information related to the standard appeals process and makes other suggestions for improving expedited fair hearing timeliness and performance standards; it seeks comments as to whether further alignment of Medicaid and CHIP policies would be beneficial.
The Proposed rule would also are provide a limited expansion of the entities to which states may delegate eligibility determination and fair hearing authority to include other state and local agencies and tribes, as well as revise regulations to further strengthen beneficiary protections and the Medicaid agency’s authority in delegated situations, to more clearly reflect current policy and to align policy and oversight in situations in which the Medicaid agency is supervising another state or local agency in administering certain state plan functions with current requirements for oversight over agencies to which authority has been formally delegated.
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