Due Process Rights under AHCCCS and the Affordable Health Care

Presenter: Sarah E. Kader
Staff Attorney
Arizona Center for Disability Law
Outline of Training
Overview of Medicaid & AHCCCS
Update on Medicaid Expansion
Affordable Care Act Overview
Arizona Center for Disability Law
Non-profit public interest law firm AND
Protection and Advocacy (P&A) agency for
 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
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 selfadvocacy
 Technical assistance to groups and individuals on
disability-related legal issues
 Advocacy for policy and legal reforms that benefit
people with disabilities
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
 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
Kaiser Commission on Medicaid Facts:
Medicaid Act Principles
 Medical Necessity (but no federal definition)
 Not experimental
 Open-ended federal funding of necessary
 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
Due Process Guarantees
Medicaid Eligibility- 4
Limited income/resources
Citizenship or proper immigration status
State residency
Must fit into category of eligibility
 Mandatory and Optional categories
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 Services
42 U.S.C. §1396d(r)
Mandatory service for children and youth
under 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 Services
42 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 in Arizona
The 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-forservice.
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),
 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
Impact of Home and
Community Based Services
HCBS services have dramatically reduced
the numbers of ALTCS members living in
nursing homes, as shown below:
Nursing homes
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
 ALTCS has financial and disability
 Must be at risk of institutionalization.
 Pre-Admission Screening Test (PAS)
measures risk of institutionalization.
A.A.C. R9-28-304
A.A.C. R9-28-305
AHCCCS Enrollment
provides Medicaid services
to more than 1 million Arizonans.
 Serves
 11%
18% of Arizona population.
of AHCCCS population is Native
AHCCCS Coverage Requirements
For AHCCCS/ALTCS to cover a service, it
must be:
 A covered service
 Medically necessary
 Cost-effective
 Non-Experimental
 Federally reimbursable (i.e. can get
A.A.C. R9-22-201(B)
AHCCCS Acute Care Covered
Physician services
Prescription drugs
Hospital Services
Transportation to
medical services
occupational, speech
Durable medical
equipment and
EPSDT services
Behavioral health
 Emergency care
 Pregnancy care
 Dialysis
 X-Rays
 Lab work
 Surgery
 Organ Transplants
ALTCS Covered Services
acute care services
 Behavioral health services
 EPSDT services
 Nursing home services
 ICF/MR (intermediate care facility for the
mentally retarded)
Case management
Speech, physical,
and occupational
Personal care
Attendant care
Medical equipment
& supplies
Emergency alert
Home delivered
DD day care
Assisted living
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)
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 in
the community.
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)
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 pretermination 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
AHCCCS/ALTCS Service Denial
Appeals Process
Step 1:
Step 2:
Step 3:
Step 4:
Step 5:
Step 6:
Step 7:
Request Service
Notice of Action
Notice of Appeal Decision
Fair Hearing
ALJ Decision
AHCCCS Director’s Decision
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
 Failure to provide NOA within timeframe
constitutes a denial.
 Time frame may be extended by 14
 NOA Contents:
 Legal and factual reasons for denial,
termination or reduction
 Where to file appeal
Right to Continuation
of Services
 Filing
deadline: 10 days from NOA
 Must involve termination, suspension,
or reduction of current services.
 Original authorization period has not
 If beneficiary loses, liable for cost of
A.A.C. R9-34-224
Practice Tip:
Requesting an Appeal
Filing Deadlines:
 60 days after Notice of Action, OR
 10 days after NOA to request continuing services;
 Can be filed even if NOA not issued.
Appeal letter can request the following:
 Expedited resolution of appeal
 Continuing services pending appeal
 Copy of health plan file
 Right to give additional info to plan
Notice of Appeal Resolution
 Issued
by health plan within 30 days
of letter of appeal
 14 day extension available
 Must:
 Advise member how to request fair
 Provide legal and factual reasons
for decision.
Right to Expedited Appeal
Beneficiary or physician requests after Notice
of 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
 Restatement 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
Office of Administrative Hearings
Office of Administrative Hearings
 Independent
agency that conducts
AHCCCS and ALTCS fair hearings.
 Hearing
conducted by
Administrative Law Judge (ALJ).
offices in Tucson and
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
Standard & Burden of Proof
Standard of Proof
 Preponderance 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
Practice Tip:
Good Evidence re: Medical Necessity
Testimony, letter, or declaration of:
 treating doctors/health professional.
 Examining doctors/health
 client/parent ‒ person with
knowledge of needs of person with
OPTIONAL: Documents used in
experimental cases.
Practice Tip:
Good Evidence re: Experimental
Declaration/testimony from:
 treating doctor (should address medical necessity
 National experts ‒ medical school profs
Medical journal articles
Treatment guidelines/standard of care
protocols from national organizations
FDA guidelines
Other health insurance coverage policies
 Medicare
 Private 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
 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
AHCCCS Director Decision:
 Issued 30 days after ALJ Decision.
 Director may accept, reject, or modify decision.
Motion for Reconsideration
and/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; or
Decision 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
 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
Overview of Appeal to Superior
Pursuant to A.R.S. §12-901 et seq.
Can Request De Novo Hearing ‒ 30 days from
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
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.
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
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
 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
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.
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:

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