OVERVIEW OF ARIZONA MEDICAID SERVICES, DUE PROCESS RIGHTS, AND THE CHANGING LANDSCAPE

OF AHCCCS

Presenter: Sarah E. KaderStaff Attorney

Arizona Center for Disability Law

Outline of Training

1. Overview of Medicaid & AHCCCS

2. Update on Medicaid Expansion

3. Affordable Care Act Overview

4. Questions

Arizona Center for Disability Law

Non-profit public interest law firm AND Protection and Advocacy (P&A) agency for Arizona

Part of network of agencies ‒ one in every state and territory ‒ providing protection to people with disabilities through legally based advocacy

Funded primarily through federal grants Dedicated to protecting the rights of

individuals with physical, mental, psychiatric, sensory and cognitive disabilities

Types of Services Provided by the Center

Information and advice regarding legal rights Representation of individuals in negotiations,

administrative proceedings, and court Impact litigation to remedy systemic problems Investigation of abuse and neglect allegations Outreach and training on legal rights and self-

advocacy Technical assistance to groups and individuals on

disability-related legal issues Advocacy for policy and legal reforms that benefit

people with disabilities

OVERVIEW OFMEDICAID

Medicaid

A joint federal and state program that provides health care for people with low incomes and limited resources

Enacted in 1965 as part of President Johnson’s War on Poverty

Consists of acute care services, long term care services, and behavioral health services

Medicaid Act = Title 19 of Social Security Act, 42 U.S.C. 1396-1396v

Who Does Medicaid Serve?

Largest public health insurer covers 1 in 10 Americans

As of June 2011: 52.6 million enrolled 13.9 million aged and disabled

enrolled 233,000 aged and disabled enrolled in

Arizona

Kaiser Commission on Medicaid Facts: http://www.kff.org/medicaid/upload/8050-05.pdf

MEDICAIDFRAMEWORK

AND PRINCIPLES

Medicaid Act Principles

Statewide Medical Necessity (but no federal definition) Not experimental Open-ended federal funding of necessary

services Amount, duration, and scope – sufficient to

achieve purpose No discrimination based on condition

Medicaid Act Principles

Comparability of services between and within eligibility groups

Reasonable promptness (i.e. no waiting lists) Freedom of Choice of Provider (but providers

not mandated to participate) – does not apply

in AZ Equal Access to Services - enlist enough

providers so that services are broadly available Due Process Guarantees

Medicaid Eligibility- 4 Requirements

Limited income/resources

Citizenship or proper immigration status State residency Must fit into category of eligibility

Mandatory and Optional categories

MEDICAIDSERVICES

Mandatory Medicaid Services 42 U.S.C. §1396d

Inpatient and outpatient hospital services Physician services Laboratory and x-ray services Home health services for individuals entitled

to receive nursing facility services Early and Periodic Screening, Diagnosis, and

Treatment Services (EPSDT)

EPSDT Services42 U.S.C. §1396d(r)

Mandatory service for children and youthunder 21

Established by Congress in 1967 with intent to be the “nation’s largest preventative health program for children,” amended in 1989 to broaden scope of services

Intended to be a comprehensive package of screening, diagnostic, and treatment services

EPSDT Services

All necessary health care to “correct or ameliorate” physical or mental problems or conditions 42 U.S.C. 1396d(a)

Covers all medically necessary services, even if service is not in the state plan and/or is not provided to adults

Optional Medicaid Services42 U.S.C. §1396d

Clinic services Private duty nursing services Prescription drugs Physical, occupational, speech, hearing,

and language therapy Home health services for individuals not

eligible for nursing facility services

MEDICAID INARIZONA

Medicaid in ArizonaThe Basics Arizona Health Care Cost Containment System

(AHCCCS; pronounced “Access”) ‒ single state Medicaid agency.

Entire AHCCCS program run as statewide managed care system; most states are fee-for-service.

Arizona has a Section 1115 Waiver from the federal government (CMS) which exempts it from key requirements of the Social Security Act (Medicaid Act).

ALTCS: Long Term Care Delivery System

Arizona Long Term Care System (ALTCS) ‒ pronounced “Alltecs”.

Serves two populations: Elderly and Physically Disabled (EPD),

and Developmentally Disabled (DD).

Eight health care plans provide long term care ‒ DDD is one of them.

ALTCS members get behavioral health and acute care services from ALTCS health plan.

DDD Rule Exceptions

Acute Care Services DDD/ALTCS members are assigned to

an AHCCCS acute health plan.

Behavioral Health Services DDD/ALTCS members receive

behavioral health services from RBHA system.

Impact of Home and Community Based Services

HCBS services have dramatically reduced the numbers of ALTCS members living in nursing homes, as shown below:

19892005

Nursing homes 95+%36%

HCBS 5% 64%

AHCCCS Cost-Containment

Lowest pharmacy rates in country.

Third in the nation for lowest cost per Medicaid enrollee.

Arizona spends $3,035 per member per year, $976 less than the national average.

AHCCCS/ALTCS Eligibility Generally

No disability requirements for acute care AHCCCS.

ALTCS has financial and disability requirements:Must be at risk of institutionalization.Pre-Admission Screening Test (PAS)

measures risk of institutionalization.○ EPD PAS A.A.C. R9-28-304○ DD PAS A.A.C. R9-28-305

AHCCCS Enrollment

AHCCCS provides Medicaid services to more than 1 million Arizonans.

Serves 18% of Arizona population.

11% of AHCCCS population is Native American.

GETTING SERVICESFROM

AHCCCS ANDALTCS

AHCCCS Coverage RequirementsFor AHCCCS/ALTCS to cover a service, it must

be: A covered service Medically necessary Cost-effective Non-Experimental Federally reimbursable (i.e. can get FFP)

A.A.C. R9-22-201(B)

AHCCCS Acute Care Covered Services

Physician services Prescription drugs Hospital Services Transportation to

medical services Physical,

occupational, speech therapies

Durable medical equipment and supplies

EPSDT services

Behavioral health services

Emergency care Pregnancy care Dialysis X-Rays Lab work Surgery Organ Transplants

ALTCS Covered Services All AHCCCS acute care services Behavioral health services EPSDT services Nursing home services ICF/MR (intermediate care facility for the

mentally retarded)

ALTCS HCBS Services

Case management Speech, physical,

and occupational therapies

Personal care Attendant care Respite Habilitation Home modifications

Medical equipment & supplies

Emergency alert system

Transportation Home delivered

meals DD day care Assisted living

facilities Home health Aid and

Nurse

Medically Necessary

No federal definition of medically necessary

“Medically necessary” means a covered service provided by a physician or other licensed practitioner of the healing arts within the scope of practice under state law to prevent disease, disability, or other adverse health condition or their progression, or to prolong life.”

Arizona Definition: A.A.C. R9-22-101(B)

Cost-Effective

Arizona does not define “cost-effective” in statute, regulation or policy.

For ALTCS members:Generally argue that services under the cost

of institutionalized care are cost-effective. Use Cost-Effectiveness Study – measures

cost of nursing home case against cost of services inthe community.

Non-Experimental

For a service to be non-experimental, it must be associated with treatment or diagnostic evaluation and: Generally and widely accepted as a standard of care in

the practice of medicine in the United States; OR Peer-reviewed articles in medical journals published in

the United States that support the safety and effectiveness of the service; OR

If no articles, and for a rare, novel or relatively unknown service, the weight of opinions from specialists who provide the service and attest to the safety and effectiveness of the service.

A.A.C. R9-22-101(B)

Standard of Care

Means a medical procedure or process that is accepted as treatment for a specific illness, or injury, medical condition through custom, peer review, or consensus by the professional medical community.

A.A.C. R9-22-101(B)

MEDICAID DUEPROCESS

REQUIREMENTS

Due Process Guarantees

Right to Medicaid due process protected by the Due Process Clause of Constitution

Holding that when welfare benefits may be terminated, beneficiary has due process rights to an effective notice and pre-termination hearing.

Goldberg v. Kelly, 397 U.S. 254, 266 (1970)

Medicaid Due Process Rights

Written notice of denial/termination/reduction

File appeal, even without written notice

Expedited decision

Fair hearing

Representation at hearing

Review evidence prior to hearing and get copies

Present evidence and cross examine witnesses

Continuation of existing services pending hearing; liable

for costs, if you lose

Timely, written decision ‒ within 90 days of appeal

Reimbursement for costs if services pending appeal if wrongly

denied

AHCCCS ADMINISTRATIVE

APPEALS ANDHEARINGS PROCESS

AHCCCS/ALTCS Service Denial Appeals Process

Step 1: Request ServiceStep 2: Notice of Action Step 3: Notice of Appeal DecisionStep 4: Fair Hearing Step 5: ALJ DecisionStep 6: AHCCCS Director’s DecisionStep 7: Appeal to Superior Court

Requesting a Service:Letter of Medical Necessity

Key to effectively requesting AHCCCS services.

Letter from member’s doctor or specialist that outlines

reasons why member needs service.

When requesting LMN, include: signed release, and

“How to Write Effective Letter of Medical Necessity”‒ general

statements that member “will benefit” or that

doctor “supports” treatment are not enough.

Notice of Action (NOA)

Must be issued within 14 days of service request.

Failure to provide NOA within timeframe constitutes a denial.

Time frame may be extended by 14 days. NOA Contents:

Legal and factual reasons for denial, termination or reduction

Where to file appeal

Right to Continuationof Services

Filing deadline: 10 days from NOA Must involve termination, suspension,

or reduction of current services. Original authorization period has not

expired. If beneficiary loses, liable for cost of

services.A.A.C. R9-34-224

Practice Tip: Requesting an Appeal

Filing Deadlines: 60 days after Notice of Action, OR10 days after NOA to request continuing services;Can be filed even if NOA not issued.

Appeal letter can request the following:Expedited resolution of appealContinuing services pending appealCopy of health plan fileRight to give additional info to plan

Notice of Appeal Resolution

Issued by health plan within 30 days of letter of appeal14 day extension available

Must: Advise member how to request fair

hearing. Provide legal and factual reasons

for decision.

Right to Expedited Appeal Resolution

Beneficiary or physician requests after Noticeof Action

Standard: “taking the time for standard resolution could seriously jeopardize the enrollee’s life or health, or ability to attain, maintain, or regain maximum function”

Must resolve within three working days

A.A.C. R9-34-214 and 215

Practice Tip:Requesting Fair Hearing

Filing Deadline: 30 days from date of Notice of Appeal Resolution

Letter should include:Request for hearing; Statement of issue(s) for hearing, including due

process concerns;Request for copy of appeal file;Signed release and designation of representative;

andRestatement of any request for continuing

services, expedited hearing, or reimbursement.

Right to Expedited Hearing

Beneficiary or physician requests after Notice of Expedited Appeal Resolution.

AHCCCS Director makes decision three

working days after receiving ALJ recommended decision.

A.A.C. R9-34-219 and 220

THE FAIR HEARING

Office of Administrative Hearings

Office of Administrative Hearings (OAH)

Independent agency that conducts AHCCCS and ALTCS fair hearings.

Hearing conducted by

Administrative Law Judge (ALJ).

OAH offices in Tucson and

Phoenix.

Medicaid Beneficiary’s Right to Attend Hearing

Beneficiary has right to attend hearing in person or by phone.

If beneficiary does not have transportation and wants to attend in person, health plan must provide transportation to hearing. 42 CFR 431.250(f)(1)

Send request letter to health plan and copy OAH and AHCCCS.

Standard & Burden of Proof

Standard of ProofPreponderance of the evidence – used in civil

cases. More likely to be true than not true. Burden of Proof

Generally on the Complainant;HOWEVER, if health plan terminated or

reduced existing service, should argue that plan should have burden of showing that Complainant had change in health condition that justifies change in services (case law from other states).

Practice Tip:Evidentiary Issues Rules of Evidence do not apply. All relevant evidence is admissible

(A.R.S. 41-1092.07(D) & (F)(1))Some ALJ’s give more weight to in-person

testimony versus letters/declarations;HOWEVER, should argue that in-person

testimony of non-treating doctor should not be entitled to more weight than opinion of treating doctor provided via letter or declaration.

Practice Tip:Good Evidence re: Medical Necessity

Testimony, letter, or declaration of: treating doctors/health professional. Examining doctors/health

professional. client/parent ‒ person with

knowledge of needs of person with disability.

OPTIONAL: Documents used in experimental cases.

Practice Tip:Good Evidence re: Experimental Declaration/testimony from:

treating doctor (should address medical necessity too)

National experts ‒ medical school profs Medical journal articles Treatment guidelines/standard of care

protocols from national organizations FDA guidelines Other health insurance coverage policies

MedicarePrivate health insurance

Practice Tip:Conducting the Fair Hearing All OAH hearings are digitally recorded. Exhibits:

Exchange of exhibits not required until hearing. Provide exhibit list and pre-label exhibits.

If telephonic testimony ‒ have phone numbers.

Can request post-hearing briefing:Raise deference to treating provider.Request payment for services pending appeal.

The Administrative Decisions ALJ Recommended Decision:

Findings of Fact and Conclusions of Law. Issued to AHCCCS within 20 days of the close

of the record, either after hearing or after briefing.

OAH does not send copy to Complainant.Complainant may request copy for $.25 per

page. AHCCCS Director Decision:

Issued 30 days after ALJ Decision.Director may accept, reject, or modify decision.

Motion for Reconsiderationand/or Rehearing

Filing Deadline: 30 days after service Basis for Reconsideration/Rehearing:

Procedural irregularities or misconduct by party, witness, or OAH;

Good reason for non-appearance;Newly discovered evidence;Decision result of passion/prejudice; orDecision not justified by evidence or law.

Open Question ‒ Whether health plan can file for reconsideration/re-hearing.

Motion for Reconsideration and/or Rehearing

Stays timeframes for filing Complaint for Judicial Review in Superior Court.

Not required to exhaust administrative remedies.

Health plan has right to file response. Director must issue final decision within:

15 days after response.If no response filed, five days after response

period.

JUDICIAL REVIEW OFADMINISTRATIVE

DECISION

Overview of Appeal to Superior Court

Pursuant to A.R.S. §12-901 et seq.

Can Request De Novo Hearing ‒ 30 days from

Complaint.

Can Submit Additional Evidence ‒ before opening

brief.

Can get attorneys’ fees and costs.

Standard of Review

The court shall affirm the agency action unless after reviewing the administrative record . . ., the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious, or is an abuse of discretion.

Section 12-910(E)

Complaint for Judicial Review Filing Deadline: 35 days from date of Final

Director’s Decision. Defendants are now health plan, AHCCCS,

and AHCCCS Director. Venue: in county where beneficiary lives OR

county where appeal held. A.R.S. 12-905(B) Civil filing fees apply; waiver possible. Regular service rules apply; AHCCCS will

accept, but you may want to consider regular service to avoid delaying answer.

CURRENT STATEOF AFFAIRS

Medicaid Expansion

Under the Affordable Care Act, Arizona had the opportunity to expand the Arizona Health Care Cost Containment System (AHCCCS), our Medicaid program, to thousands of uninsured, low-income residents.

Arizona expanded Medicaid and so: all low-income individuals and families earning less than 138% of the federal poverty level (FPL) will be eligible for health insurance coverage through Medicaid. That includes individuals who make less than $15,000 per year; families of two who make less than $21,000 per year; and families of four who make less than $32,000 per year.

Medicaid Expansion

We will get health coverage for over 25% more people. Approximately, 300,000 additional persons will have health care coverage as a result of the expansion. Approximately 225,000 adults without minor children in the home with incomes up to 100% of the federal poverty level will be covered because the freeze on enrollment for childless adults will end and another 65,000 adults (parents and childless adults) with incomes between 100-138% of the federal poverty level will be added to the AHCCCS program.

Medicaid Expansion Because Arizona expanded its AHCCCS program, the

federal government will pay Arizona a higher reimbursement rate for childless adults costs. The health care costs for childless adults up to 100% of poverty will cost the state $702 million over 4 years (2013-2016) and the federal government will pay almost $4.8 billion for the coverage. http://www.azahcccs.gov/shared/Downloads/News/aca_ahcccs_costsummary.pdf.

For adults between 100-138% of poverty, for the first 3 years, there are no costs to the state because the federal government will reimburse the state 100% of the health care costs. In the fourth year the reimbursement rate will be 95%. The federal government is expected pay Arizona over $1.4 billion for these health care costs.

Current State of Affairs

Remember that the National and Local debates and changes are both important because Medicaid is a joint federal and state program.

In regard to certain actions, what our State can do depends on what the Federal Government approves.

What You Can Do

Write your Federal and State Legislators asking them to maintain Medicaid funding.

Vote in local and national elections – make sure the people you vote for will fund the programs you care about.

Don’t lose your current AHCCCS coverage, stay up to date with AHCCCS requests.

Check mailings from your providers/AHCCCS. Check AHCCCS website for updates. Call ACDL if you are negatively affected by

changes to AHCCCS eligibility.

AFFORDABLE CARE ACT

Due process rights under the ACA, too Different process but somewhat similar Difference – if you appeal through your

health plan and disagree with decision, there is an external review process.

You can also file a complaint with the Office of Civil Rights here: http://www.hhs.gov/ocr/civilrights/complaint

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THANK YOU!

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