Current through Register Vol. 49, No. 9, September, 2024
190.001
The Medicaid Fairness Act
The Medicaid Fairness Act, Ark. Code Ann. §§
20-77-1601
- 20-77-1615, requires that the Department of Health and Human Services and its
outside contractors treat providers with fairness and due process.
190.002
Definitions
A.
Adverse decision/adverse action
means any decision or action by the Department of Health and Human
Services or its reviewers or contractors that adversely affects a Medicaid
provider or beneficiary in regard to receipt of and payment for Medicaid claims
and services including but not limited to decisions as to:
1. Appropriate level of care or
coding,
2. Medical
necessity,
3. Prior
authorization,
4. Concurrent
reviews,
5. Retrospective
reviews,
6. Least restrictive
setting,
7. Desk audits,
8. Field audits and onsite audits,
and
9. Inspections.
B.
Appeal means
an appeal under the Arkansas Administrative Procedure Act, Ark. Code Ann.
§§
25-15-201 -
25-15-218.
C.
Claim means a request for
payment of services.
D.
Concurrent review or concurrent authorization
means a review to determine whether a specified beneficiary currently
receiving specific services may continue to receive services.
E.
Denial means denial or
partial denial of a claim or authorization of services.
F.
Department means:
1. The Arkansas Department of Health and
Human Services,
2. All of the
divisions and programs of the Arkansas Department of Health and Human Services,
including the state Medicaid Program, and
3. All of the Arkansas Department of Health
and Human Services' contractors, fiscal agents, and other designees and
agents.
G.
Medicaid means the medical assistance program under Title XIX
of the Social Security Act that is operated by the Arkansas Department of
Health and Human Services and its contractors, fiscal agents, and all other
designees and agents.
H.
Person means any individual, company, firm, organization,
association, corporation, or other legal entity.
I.
Primary care physician
means a physician whom the department has designated as responsible
for the referral or management, or both, of a Medicaid beneficiary's health
care.
J.
Prior
authorization means the approval by the state Medicaid Program for
specified services for a specified Medicaid beneficiary before the requested
services may be performed and before payment will be made by the state Medicaid
Program.
K.
Provider
means a person enrolled to provide health or medical care services or
goods authorized under the state Medicaid Program.
L.
Recoupment means any
action or attempt by the Department of Health and Human Services to recover or
collect Medicaid payments already made to a provider with respect to a claim
by:
1. Reducing, withholding or affecting in
any other manner current or future payments to a provider or
2. Demanding payment back from a provider for
a claim already paid.
M.
Retrospective review means the review of services or practice
patterns after payment, including, but not limited to:
1. Utilization reviews,
2. Medical necessity reviews,
3. Professional reviews,
4. Field audits and onsite audits,
and
5. Desk audits.
N.
Reviewer means
any person, including reviewers, auditors, inspectors, surveyors and others
who, in reviewing a provider or a provider's provision of services and goods,
performs review actions, including, but not limited to:
1. Reviews for quality,
2. Reviews for quantity,
3. Utilization,
4. Practice patterns,
5. Medical necessity,
6. Peer review, and
7. Compliance with Medicaid
standards.
O.
Technical deficiency means an error or omission in
documentation by a provider that does not affect direct patient care of the
beneficiary. Technical deficiency does not include:
1. Lack of medical necessity or failure to
document medical necessity in a manner that meets professionally recognized
applicable standards of care,
2.
Failure to provide care of a quality that meets professionally recognized local
standards of care,
3. Failure to
obtain prior, concurrent or mandatory authorization if required by
regulation,
4. Fraud,
5. A pattern of abusive billing,
6. A pattern of noncompliance, or
7. A gross and flagrant violation.
190.003
Administrative Appeals
A. The
following appeals are available in response to an adverse decision:
1. A beneficiary may appeal on his or her own
behalf
2. A provider of medical
assistance that is the subject of the adverse action may appeal on the
beneficiary's behalf
3. If the
adverse action denies a claim for covered medical assistance that was
previously provided to a Medicaid-eligible beneficiary, the provider of such
medical assistance may appeal on the provider's behalf. The provider does not
have standing to appeal a nonpayment decision if the provider has not furnished
any service for which payment has been denied.
B. All appeals shall conform to the Arkansas
Administrative Procedure Act, Ark. Code Ann. §§
25-15-201 -
25-15-218.
C. Providers may appear in person, through a
corporate representative or, with prior notice to the department, through legal
counsel.
D. Beneficiaries may
represent themselves or they may be represented by a friend, by any other
spokesperson except a corporation, or by legal counsel.
E. A Medicaid beneficiary may attend any
hearing related to his or her care, but the department may not make his or her
participation a requirement for provider appeals. The department may compel the
beneficiary's presence via subpoena, but failure of the beneficiary to appear
shall not preclude the provider's appeal.
F. If an administrative appeal is filed by
both a provider and beneficiary concerning the same subject matter, the
department may consolidate the appeals.
G. Any person who considers himself or
herself injured in his or her person, business, or property by the decision
rendered in the administrative appeal is entitled to judicial review of the
decision under the Arkansas Administrative Procedure Act, Ark. Code Ann.
§§
25-15-201 -
25-15-218.
H. This rule shall apply to all
pending and subsequent appeals that have not been finally resolved at the
administrative or judicial level as of April 5, 2005.
190.004
Records
When the Department of Health and Human Services makes an
adverse decision in a Medicaid case and a provider then lodges an
administrative appeal, the department shall deliver its file on the matter to
the provider well in advance of the appeal so that the provider will have time
to prepare for the appeal. The file shall include the records of any
utilization review contractor or other agent, subject to any other federal or
state law regarding confidentiality restrictions.
190.005
Technical Deficiencies
The Department of Health and Human Services may not recoup from
providers for technical deficiencies if the provider can substantiate through
other documentation that the services or goods were provided and that the
technical deficiency did not adversely affect the direct patient care of the
beneficiary.
A technical deficiency in complying with a requirement in
federal statutes or regulations shall not result in a recoupment unless:
A. The recoupment is specifically mandated by
federal statute or regulation, or
B. The state can show that failure to recoup
will result in a loss of federal matching funds or in another penalty against
the state.
The Department of Health and Human Services may initiate a
corrective action plan or other nonmonetary measure in response to technical
deficiencies. If a provider fails to comply with a corrective action plan for a
pattern of non-compliance with technical requirements, then appropriate
monetary penalties may be imposed if permitted by law. However, the department
first must be clear as to what the technical requirements are by providing
clear communication in writing or a promulgated rule where required.
190.006
Explanations of Adverse Decisions Required
Each denial or other deficiency that the Department of Health
and Human Services makes against a Medicaid provider shall be prepared in
writing and shall specify:
A. The
exact nature of the adverse decision,
B. The statutory provision or specific rule
alleged to have been violated, and
C. The specific facts and grounds
constituting the elements of the violation.
190.007
Rebilling at an Alternate
Level Instead of Complete Denial
The denial notice from the department shall explain the reason
for the denial in accordance with rule 190.006 above and shall specify the
level of care that the Department deems appropriate based on the documentation
submitted by the provider.
If a legally qualified and authorized provider's claim is
denied, the provider shall be entitled to rebill at the level that would have
been appropriate according to the Department's basis for denial, absent fraud
or a pattern of abuse by the provider. A referral from a primary care physician
or other condition met prior to the denial shall not be reimposed.
A provider's decision to rebill at the alternate level does not
waive the provider's or beneficiary's right to appeal the denial of the
original claim.
Nothing prevents the department from reviewing the claim for
reasons unrelated to the level of care and taking action that may be warranted
by the review, subject to other provisions of law.
190.008
Prior Authorizations -
Retrospective Reviews
The Department of Health and Human Services may not
retrospectively recoup or deny a claim from a provider if the department
previously authorized the care unless the retrospective review establishes
that:
A. The previous authorization
was based upon misrepresentation by act or omission, and
B. If the true facts had been known the
specific level of care would not have been authorized, or
C. The previous authorization was based upon
conditions that later changed, thereby rendering the care medically
unnecessary.
Recoupments based upon lack of medical necessity shall not
include payments for any care that was delivered before the change of
circumstances that rendered the care medically unnecessary.
190.009
Medical Necessity
There is a presumption in favor of the medical judgment of the
attending physician in determining medical necessity of treatment.
190.010
Promulgation Before
Enforcement
The Department of Health and Human Services may not use state
policies, guidelines, manuals, or other such criteria in enforcement actions
against providers unless the criteria have been promulgated.
Nothing in this rule requires or authorizes the department to
attempt to promulgate standards of care that physicians use in determining
medical necessity or rendering medical decisions, diagnoses, or
treatment.
Medicaid contractors shall use Medicaid provider manuals
promulgated pursuant to the Arkansas Administrative Procedure Act, Ark. Code
Ann. §§
25-15-201 -
25-15-218.
190.011
Copies
If the Department or its contractor requires a provider to
supply duplicates of documents already furnished to the department or its
contractors, the Department division or contractor making the request shall pay
the actual cost of photocopies, not to exceed 15 cents per page, for duplicates
produced and supplied by providers in response to such requests.
190.012
Notices
When the Department of Health and Human Services sends letters
or other forms of notices with deadlines to providers or beneficiaries, the
deadline shall not begin to run before the next business day following the date
of the postmark on the envelope, the facsimile transmission confirmation sheet,
or the electronic record confirmation unless otherwise required by federal
statute or regulation.
190.013
Deadlines
The Department of Health and Human Services may not issue a
denial or demand for recoupment to providers for missing a deadline if the
department or its contractor contributed to the delay or if the delay was
reasonable under the circumstances, including, but not limited to:
A. Intervening weekends or
holidays,
B. Lack of cooperation by
third parties,
C. Natural
disasters, or
D. Other extenuating
circumstances.This rule is subject to good faith on the part of the provider.
190.014
Federal
Law
If any provision of these policies and procedures are found to
conflict with current federal law, including promulgated federal regulations,
the federal law shall override that provision.
191.001
Definitions
A.
Adverse decision/adverse action
means any decision or action by the Department of Health and Human
Services or its reviewers or contractors that adversely affects a Medicaid
provider or beneficiary in regard to receipt of and payment for Medicaid claims
and services by limiting, terminating, suspending, or reducing Medicaid
eligibility or covered services in connection with, but not limited to:
1. Appropriate level or care or
coding,
2. Medical
necessity,
3. Prior
authorization,
4. Concurrent
reviews,
5. Retrospective
reviews,
6. Least restrictive
setting,
7. Desk audits,
8. Field audits and onsite audits,
and
9. Inspections.
B.
Beneficiary
means:
1. A person who has applied
for medical assistance under the Arkansas Medicaid Program or
2. A person who is a recipient of medical
assistance under the Arkansas Medicaid Program.
C.
Department means the
Department of Health and Human Services.
191.002
Notice
A. If an application or claim for medical
assistance is denied in whole or in part or is not acted upon with reasonable
promptness, the department shall provide written notice:
1. Of the beneficiary's right and opportunity
for a fair hearing under the Arkansas Administrative Procedure Act, Ark. Code
Ann. §§
25-15-201 -
25-15-218,
2. Of the method by which the beneficiary may
obtain a fair hearing, and
3. Of
the beneficiary's right to:
a. Represent
himself or herself, or
b. Be
represented by legal counsel, a friend, or any other spokesperson except a
corporation.
B. A notice required under this rule shall
include but not be limited to:
1. A statement
detailing the type and amount of medical assistance that the beneficiary has
requested,
2. A statement of the
adverse action that the department has taken or proposes to take,
3. The reasons for the adverse action which
shall include but not be limited to:
a. The
specific facts regarding the individual beneficiary that support the action and
b. The sources from which the facts
were derived,
4. An
explanation of the beneficiary's right to request a fair hearing, if available;
or in cases of an adverse action based on a change in law:
a. The circumstances under which a fair
hearing will be granted and
b. An
explanation of the circumstances under which medical assistance is provided or
continued if a fair hearing is requested.
191.003
Determination of
Medical Necessity - Content of Notice
If the adverse action that the department has taken or proposes
to take is based on a determination of medical necessity or other clinical
decision, the notice required under Rule 191.002 shall include all of the
following:
A. Specification of the
medical records upon which the physician or clinician relied in making the
determination,
B. Specification of
any portion of the criteria for medical necessity or coverage that is not met
by the beneficiary,
C. The specific
regulation(s) that support the adverse action, or the change in federal or
state law that has occurred since the application was filed that requires
adverse action, and
D. A brief
statement of the reasons for the adverse action based upon the individual
beneficiary's circumstances.
The department and others acting on behalf of the department
may not cite or rely on policies that are inconsistent with federal or state
laws and regulations or that were not properly promulgated. Generic rationales
or explanations shall not suffice to meet the requirements of this rule.
191.004
Administrative Appeals
When notice of an adverse decision is received from the
Division of Medical Services, the beneficiary may appeal. The appeal request
must be in writing and submitted to the Department of Health and Human
Services, Appeals and Hearings Section. View or print the
Department of Health and Human Services, Appeals and Hearings Section contact
information.
The appeal request must be received by the
Appeals and Hearings Section no later than thirty (30) days from the next
business day following the date of the postmark on the envelope containing the
written notice of an adverse decision.
All appeals shall conform to the Arkansas Administrative
Procedure Act, Ark. Code Ann. §§
25-15-201 -
25-15-218.
Beneficiaries may represent themselves or they may be represented by a friend,
by any other spokesperson except a corporation, or by legal counsel.
If an administrative appeal is filed by both a provider and
beneficiary concerning the same subject matter, the department may consolidate
the appeals.
Any person who considers himself or herself injured in his or
her person, business, or property by the decision rendered in the
administrative appeal is entitled to judicial review of the decision under the
Arkansas Administrative Procedure Act, Ark. Code Ann. §§
25-15-201 --
25-15-218.
191.005
Conducting the Hearing
If a beneficiary appeals an adverse action under the Arkansas
Administrative Procedure Act, Ark. Code Ann. §§
25-15-201 -
25-15-218,
the reviewing authority shall consider only those adverse actions that were
included in the written notice to the beneficiary as required under Rules
191.002 and 191.003.
All determinations of the medical necessity of any request for
medical assistance shall be based on the individual needs of the beneficiary
and on his or her medical history.
191.006
Records
When the department receives an appeal from a beneficiary
regarding an adverse action, the department shall provide the beneficiary all
records or documents pertaining to the department's or its contractor's
decision to take the adverse action.
If the adverse action is based upon a determination that the
requested medical assistance is, or was, not medically necessary, the records
and documents required to be provided under this rule shall include all
material that contains relevant information concerning the medical necessity
determination produced by the department or its contractor.
