Rhode Island Executive Office of Health and Human Services Appeals Office, 74 West Road, Hazard Bldg., 2nd floor, Cranston, RI 02920 phone: 401.462.2132 fax: 401.462.0458

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66 March 27, 2017 Docket # 17-35 Hearing Date: March 9, 2017 xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx ADMINISTRATIVE HEARING DECISION The Administrative Hearing that you requested has been decided in your favor. During the course of the proceeding, the following issue(s) and Agency regulation(s) were the matters before the hearing: RULES AND REGULATIONS PERTAINING TO THE RHODE ISLAND HEALTH BENEFITS EXCHANGE (RIHBE) SECTION 4.0-Initial Open Enrollment, Annual Open Enrollment, and Special Enrollment RHODE ISLAND Policy Manual Chapter 9: Individual Eligibility and Shop Appeals C. Appeals Process Rules, 17) Decisions CHAPTER 3: Open Enrollment Periods, Special Enrollment Periods & Enrollment Effective Dates C. Special Enrollment Periods The facts of your case, the Agency regulations, and the complete administrative decision made in this matter follow. Your rights to judicial review of this decision are found on the last page of this decision. Copies of this decision have been sent to the following: You (the Appellant), and Health Source RI (HSRI) Agency representatives: Lindsay Lang Esq., Ben Gagliardi Esq., and Derek Tevyaw. Present at the hearing were: You (the Appellant), and Health Source RI (HSRI) Agency representative: Ben Gagliardi, Esq. ISSUE: Should the appellant be allowed enrollment in health coverage through HSRI after closure of the 2017 open enrollment period?

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RIHBE RULES AND REGULATIONS/AND RI POLICY MANUAL: Please see the attached APPENDIX for pertinent excerpts from the Rules and Regulations Pertaining to the Rhode Island Health Benefits Exchange and from the RI Policy Manual. APPEAL RIGHTS: Please see attached NOTICE OF APPELLATE RIGHTS at the end of this decision. DISCUSSION OF THE EVIDENCE: The Health Source Rhode Island (HSRI) representative testified:

Appellant was eligible for Medicaid during 2016 and was terminated during the month of December 2016.

She did contact HSRI on 12.29 and her eligibility was run at that time and it was determined that she was eligible for $497.95 in tax credits based upon her reported income

A benefits decision notice was generated on 12.29 with the information which allowed her to enroll in coverage up to January 31, 2017.

No plan was selected, and no payment was received and accordingly coverage was not effectuated and remains inactive because no plan or selection was ever made.

The coverage begin date on the notice indicates a January 1 date but no plan was selected.

A summary of a December 12th call indicates the appellant called to verify income, and she believes she has Medicaid.

There is a December 29th call which indicates that customer thought she was Medicaid eligible

For Aid pending she would have had to have chosen a plan and been already enrolled.

The appeal we are specifically here for today is that the client states she cannot afford coverage and wants more tax credits.

We checked the numbers again based upon the income reported, and it is our position that the initial numbers were correct and that we did not make a mistake and the appellant could and should have signed up for coverage based upon the information and during the allotted window.

There is no open enrollment period or special enrollment period allowed at that

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time.

There is a January 3rd call in which the client states she cannot afford coverage and would like more tax credits to help her pay for her plan.

There is no indication based upon his review that the Agency was misleading and that there would be a change in tax credits or that plan selection was indefinite.

All the same rules apply to all Rhode Islanders with respect to plan costs and how much tax credits you are entitled to.

The appellant testified:

She was told she had Neighborhood Health, and she called and called, and was told they would find out if she could lower the payment from $71.00 and that she would have to go through an appeal to do so.

She did receive multiple calls, and they continued to tell her they were working on it.

She tried to explain her circumstances, and they said they couldn’t do anymore and that is why I would have to go to appeal.

She believes they told her they were working on it, and she is still waiting.

Yes, she is not appealing Medicaid eligibility after the discussions, but she does believe that HSRI stopped her from applying for coverage.

She attempted to go through the automated on-line thing initially in early January, and she kept hitting a wall and finally she called HSRI.

They told her she could not stay in the Medicaid and she was told she had to go on the health insurance, but because of the amount she thought she had to go through the appeal to get a different amount.

She never picked a plan because she thought she had to wait for the appeal, and she is still waiting to see what the price of the plan is.

SUMMARY OF PHONE CALLS (UNKNOWN AMOUNT OF TIME ON HOLD PRIOR TO RECORDING/DATE OF CALL UNKNOWN-NEAR Jan. deadline…) 1st phone call: About 1 hr. 25minutes 1st representative-The appellant contacts HSRI and informs them she is going from Anchor (Medicaid coverage) to regular medical (QHP) and she does not know what to pay, or how much to pay. She states she has called about 8 times already and

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someone begins to speak to her and she gets disconnected. She has at least 4 disconnects. She states she is concerned about the imminent loss of coverage on Saturday (Dec.31). She reports continued automated calls which tell her to call back, and when she does she hears voices in the background, and then is disconnected again. The representative suggests putting the appellant through to billing because perhaps they have her in a plan. The appellant states she does not “even know what insurance she is getting.” The appellant is placed on hold for one hour, and a second representative comes on the line. 2nd representative-The appellant informs the representative she is going from Anchor to regular insurance, and does not yet have insurance. She repeatedly throughout the conversation requests that she not be put on hold due to the numerous disconnects. The appellant is put on mute for a brief period, and the representative tells the appellant she should not have to pay insurance because she is on Medicaid. The appellant informs her she was told that she is no longer Medicaid eligible and she had to go through HSRI. The representative investigates and states yes the appellant is eligible for a QHP. The representative informs the appellant she will be getting either Blue Cross or Neighborhood. She asks about income and eligibility, and runs an application. She informs the appellant of the amount of tax credits to assist, and then informs her of the lowest cost plan. The appellant states she cannot afford a plan that is that high. The representative verifies the information again, and speaks to herself about the high cost of plan. She then informs the appellant that if nothing has changed financially since last year’s coverage, she should still be eligible for Medicaid. The appellant informs her she doesn’t mind paying something for her plan. The representative verbally informs the appellant while she is writing a ticket, “nothing has changed on her account. It’s telling me she’s on QHP but she should be on Medicaid.” The representative informs the appellant she will be placed in an escalation to get her into Medicaid. The appellant will be contacted almost immediately. 2nd phone call: About 1 hour. 1st representative-The appellant contacts HSRI and informs she is calling because HSRI is trying to put her on Medicaid. She has called back because she received an automated call telling her to call back. She is put on hold for 30’. 2nd representative-The appellant tells the representative HSRI is trying to figure out whether she can stay on Medicaid or whether she can pay a different amount of money. The representative puts her on mute for 10’ and then tells her she is not eligible for Medicaid, and she is qualified for the insurance at the lowest cost of $71.36. The appellant repeatedly informs the representative she will not be able to afford the plan. The representative tells her that is the bottom price and cannot be changed. The appellant asks what she should do because she is stuck. The representative then asks to put her on hold. After 10’ she returns and tells the appellant she can appeal the decision and possibly the Agency could give her a “little more tax credits to help you pay.” The appellant asks how to complete an appeal, and she is put on hold, and then is asked to wait for a call back from a Supervisor to assist with the appeal. FINDINGS OF FACT:

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In a December 29, 2016 telephone call between HSRI and the appellant, the appellant informs the Agency that although she is told to pay a bill, she does not know what insurance she is getting or what the cost is. She believes she is no longer eligible for Medicaid. The Agency runs her application for eligibility and she is determined QHP eligible. After discussing the high cost of the plan, the representative informs the appellant she will put in for an immediate escalation as the appellant should be in Medicaid if her finances have not changed. The appellant agrees to wait for a response.

A second phone call between HSRI and the appellant takes place shortly after the first call (date unknown). During this call the representative informs the appellant she is not eligible for Medicaid and the lowest price plan is $71.36. The appellant states she just cannot afford this amount. The representative informs her that is the bottom line and the amount cannot be changed. The appellant asks what her options are-she’s “stuck.” The representative asks the appellant to wait a moment, and upon return, informs the appellant that there is an option available to her which is to appeal the decision (for emphasis) and perhaps the Agency could give her a “little more tax credits to help you pay.” The appellant is transferred to a Supervisor, and after a wait, is asked to wait for a call back from the Supervisor to assist with an appeal.

The Agency recommended the appellant appeal the decision in order to decrease her premiums-which she did on December 29, 2016.

The appellant could not technically appeal a “decision” as recommend by the Agency because the appellant never signed up for coverage and there was never an eligibility decision rendered by the Agency which informed her of the cost of the plan.

A December 29, 2016 Benefit Decision Notice received on or about January 3rd or later, informs the appellant that tax credits will be $497.95, and that plan payment and selection must be implemented by January 31, 2017 in order to ensure health coverage before January 31, 2017.

Upon receipt of the 12.29.16 notification above, the appellant believes she is in a plan as she has already appealed the cost of that plan as recommended by HSRI.

A hearing was held on March 9, 2017.

The record was held open until March 17, 2017 for additional evidence.

Additional telephone conversations were submitted by HSRI; and, the appellant was allowed access to the tapes at HSRI/and or through the appeals office.

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CONCLUSION: The issue to be decided is whether the appellant should be allowed enrollment in health coverage through HSRI after closure of the 2017 open enrollment period? There is no dispute that the appellant did not sign up for 2017 health insurance coverage and did not pay for health coverage prior to completion of the open enrollment period on January 31, 2016. Exploration of RIHBE regulations and policies requires both health plan choice, and payment prior to receipt of initial enrollment in any given coverage year. HSRI establishes the open enrollment period which in this case ended on January 31st. The December 29th Benefit Decision Notification (received on or about January 3rd) informed the appellant she needed to pick and pay for a plan prior to January 31, 2017. The Agency presents that the appellant was Medicaid eligible in 2016 and was terminated in December 2016. They further present that eligibility was run during a 12.29 phone call and the appellant was determined eligible for $497.95 in tax credits. A benefits decision notice was generated on 12.29 informing the appellant that she could enroll in coverage up through January 31st. The Agency notes that the appellant represented in the December 29th phone call that she thought she was Medicaid eligible. They also contend that the appellant stated she could not afford coverage and wanted more tax credits. They further argue that the appeal is specific to the inability of the appellant to afford coverage and the amount of the tax credits. After re-running the numbers the Agency argues the appellant should have signed up for coverage based upon the information given, and the allotted open enrollment period. Because she did not enroll at that time she is no longer eligible for enrollment. The appellant argues that she made many calls to HSRI prior to the December 29th call as well as the calls on that day. She testified that she understood she had Neighborhood Health insurance and that through her appeal she was attempting to determine whether or not HSRI could lower her payment. She received multiple calls and thought that HSRI continued to work on her issues, and she continues to wait. She did attempt to sign up herself in January on line, but finally she contacted HSRI by phone because of the ongoing online difficulties. She believes HSRI stopped her from applying for coverage because she thought she needed to wait to see what the price of the plan was through the appeal, in order to pay for that plan. The appellant gave credible testimony that she had attempted to contact HSRI several times prior to the December 29th conversations. During the two phone calls and four hours of conversations on that day alone, the appellant spoke with a minimum of 5 representatives, and was finally referred to another representative to complete her appeal. The appellant began each phone call informing the representatives she kept getting notices telling her to pay, but she did not know how much the plan was and that she was going from Anchor (Medicaid) to regular medical. During her initial call eligibility

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was run and she was found to be QHP eligible. She expressed concern about the high cost of the plan. Although the representative had run the current numbers herself, she determined that the system was wrong because the appellant should continue to be eligible for Medicaid based upon no changes from last year. She informed the appellant that HSRI would override her date of December 31st loss of coverage as noted in the notices, and they would allow her an extension until January 3rd while they escalated her account and attempted to rectify the mistake. The appellant called HSRI back on the same day, as she had received an automated call from HSRI which was unrelated to her current escalation. The appellant states that HSRI is trying to work on her insurance and that they are trying to decide if she can stay on Medicaid or come up with a different amount. During this second call, after a thirty minute wait, the appellant is informed that she is not Medicaid eligible. She is quoted the price of the lowest cost plan. The appellant repeatedly states she cannot afford that amount. The representative initially informs the appellant that this is the bottom price for the NHP plan and cannot be changed. The appellant informs her she is “stuck”, and asks the representative what she should do. The representative tells the appellant she will put her on hold. When she returns, she tells the appellant, “Ok, you can appeal the decision and see if you can get more tax credits to help you pay.” The appellant appeals and testifies that she is still waiting to see if they can reduce her premium amount. In actuality, she has no premium amount because she never signed up for the insurance. The HSRI recordings in particular show an ongoing confusion for both the appellant and the HSRI representatives with regard to the course of events. Each of the representatives recommends a different plan of action for the appellant although the appellant informs each of them that she is switching from Medicaid to regular insurance and needs to determine what to pay. The first representative suggests a referral to billing, and places the appellant on hold for 60”. The second representative runs the current financial information, determines eligibility for a QHP, but overrides the information before her. She informs the appellant she can disregard the December 31st deadline for loss of coverage and an extension will be allowed until January 3rd while HSRI escalates the account because the appellant should have been found Medicaid eligible. The third representative places the appellant on hold for 30” and the fourth representative re-runs eligibility. She informs the appellant that she is QHP eligible, that the lowest NHP plan cost is $71.36, and that this is the bottom line and cannot be changed. The appellant repeatedly informs the rep. she cannot afford this amount, and she is “stuck.” She asks the representative what she should do. The representative tells her to wait one minute, returns, and offers her the appeals process. The appellant then, does not complete enrollment in a plan, but appeals. The appellant gives credible testimony that the events above influenced her non-enrollment. In fact, the appellant never signed up for a plan, and never receives an eligibility decision, but is offered an appeal of that decision. She gave credible testimony that she believed she had insurance, and that HSRI was working on reducing the amount of the premium. It does not make sense that the appellant could appeal a premium which she did not yet have. Thus, the Agency was wrong in recommending that course of action at that time. The subsequent December 29th notice informs the appellant she must sign up for a plan by

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January 31st. By this time the appellant has already obtained a new option from HSRI-her appeal of her plan price-and she has taken that course of action. Review of the course of events shows that the appellant made numerous calls to obtain QHP coverage. She makes a good faith effort to communicate her situation to HSRI and is given discrepant and erroneous information during several lengthy phone calls and through numerous representatives and through several call backs. It is highly believable that her non-enrollment is unintentional and is the direct result of the ongoing interactions with HSRI. When asked what she should do, the appellant is not told she must enroll at the price given or lose her opportunity for 2017 coverage; but, instead she is told she can accept the option of an appeal. Consequently, the appellant never completed her enrollment and waited for the reduction in the price of a plan which she did not have. In summary, credible testimony and evidence for the appellant showed that she made a good faith attempt to enroll in coverage in 2017. Although she disputed with HSRI the cost of the lowest price plan, her non-enrollment was related to her understanding that her appeal would allow her to formally dispute the amount of her plan. This was an incorrect assumption both on her part and on the part of the HSRI representative who assisted her, as she could not appeal the cost of the plan because she was never in a plan. Confusing recommendations by HSRI while providing enrollment assistance clearly prevented the appellant from making a final decision about enrollment. As a result of the misinformation by HSRI the appellant will now be allowed to enroll in health coverage for the 2017 year. Her request for relief is granted. After a careful review of the Agency’s regulations and the testimony and evidence submitted, the Appeals Officer finds that the appellant’s request for relief is granted. ACTION FOR THE AGENCY: The Agency is to allow the appellant retroactive coverage as of January 1, 2017; or, she may choose to obtain coverage prospectively on the first day of the month following this decision-April 1, 2017. Karen Walsh Appeals Office

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APPENDIX

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RULES AND REGULATIONS PERTAINING TO THE RHODE ISLAND HEALTH

BENEFITS EXCHANGE Section 4.0 Initial Open Enrollment, Annual Open Enrollment, and Special Enrollment Periods

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RHODE ISLAND POLICY MANUAL CHAPTER 9: INDIVIDUAL ELIGIBILITY AND SHOP APPEALS C. Appeals Process Rules 17) Decisions The appeal decisions must be written and based exclusively on relevant evidence provided during the course of the appeal, including during the hearing, and applicable law. Decisions must:

State the decision, including a plain language description of its effect on an appellant’s eligibility;

Summarize the facts relevant to the appeal;

Identify the legal basis for the decision, including the regulations that support it and any and all conclusions of law;

State the effective date of the decision; and

Explain the customer’s right to pursue an appeal with HHS if he or she remains dissatisfied with the APTC/CSR eligibility determination.54 EOHHS will issue the written notice of the appeal decision to the customer within 30 days,55 but in no case shall exceed 90 days of the appeal request “as administratively feasible.”56 EOHSS must make the appeal record or decisions, as relevant, accessible to the customer at a convenient place and time, and must also provide public access to all appeal records or decisions subject to applicable federal and state privacy and confidentiality laws, which will require redactions of personal information where appropriate.57 EOHHS will ensure that appeal records or decisions, as relevant, are made available to the appellant or the public upon request and in hard copy or electronically.58

______________________________ 50 OHHS Code of Rules § 0110.55. 51 45 CFR 155.540(a); 42 CFR 431.244. 52 45 CFR 155.540(b); 42 CFR 431.244(f)(3) 53 Appeals Operations Manual, Rhode Island Unified Health Infrastructure Project, Draft v 1.0 (July 26, 2013) at 12. 54 45 CFR S. 155.545(a), also OHHS 0110.60 55 OHHS Code of Rules § 0110.45.

In the SHOP Exchange, the appeal record must be accessible to employers for an employer appeal. The appeal record must be accessible to both employers and employees for employee appeals.59 Confidential information will be redacted and SHOP appeals will not be publicly available.60 Decisions will be disseminated in writing to the following people and agencies, dependent upon the program eligibility of the customer:

Appellant

Authorized Representative, if assigned

DHS Field Worker

DHS Casework Supervisor

DHS Regional Manager

EOHHS Policy Office

Associate Director, Division of Medical Services (only in cases when the Medicaid decision was in favor of the appellant)

HealthSource RI Legal Counsel and Appeals Team61

Employer in the case of an employee appeal in the SHOP Exchange.62 Any decision in favor of the individual shall apply:63

Prospectively, on the first day of the month following the date of the notice of appeal decision, or consistent with §155.330(f)(2), (3), (4), or (5); or

Retroactively, to the date of the incorrect eligibility determination was made, at the option of the appellant. Additionally, if a decision is entered in favor of an individual, HealthSource RI will redetermine the eligibility of household members who have not appealed their own eligibility determinations but whose eligibility may

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be affected by the appeal decision, in accordance with the standards specified in§ 155.305.

CHAPTER 3: Open Enrollment Periods, Special Enrollment Periods & Enrollment Effective Dates C. Special Enrollment Periods Individuals and families may be eligible to enroll in a QHP through Health Source RI outside of annual open enrollment as a result of a qualifying event. There are nine categories of acceptable qualifying events, including: 1) Loss of coverage. The qualified individual or his or her dependent: a. Loses minimum essential coverage;

b. Loses pregnancy-related coverage; or c. Loses medically-needy coverage. In each of the circumstances described above, the individual or his or her dependent has 60 days after the loss of coverage to select a QHP.11 Loss of coverage does not include voluntary termination, rescissions or failure to pay premiums on a timely basis (including COBRA premiums prior to exhausting COBRA coverage). 11 45 CFR 155.420(c). A special enrollment period under this category may not begin prior to the date of the qualifying event. Coverage will be backdated to the first of the month following the loss of coverage. 12 In such cases, Health Source RI may take such action to correct or limit the effects of the error, misrepresentation or inaction. 13 In this circumstance, the individual or dependent has 60 days after the loss of eligibility in ESI coverage to select a QHP, retroactive to the first of the month after month in which coverage ended under an eligible employer-sponsored plan 2) Addition of a household member or dependent. The qualified individual gains a dependent or becomes a dependent through marriage, birth, adoption, placement for adoption, placement in foster care or as the result of a child support order or other court order.

3) Change in Lawful Status. The qualified individual, or his or her dependent, gains status as a citizen, national, or lawfully present individual.

4) Enrollment Error by Health Source RI’s Determination. The qualified individual's or his or her dependent's, enrollment or non-enrollment in a QHP is unintentional, inadvertent, or erroneous and is the result of the error, misrepresentation, misconduct, or inaction of an officer, employee, or agent of Health Source RI, its instrumentalities, or a non-Exchange entity providing enrollment assistance or conducting enrollment activities.12

5) Substantial Violation. The enrollee or, his or her dependent adequately demonstrates to HealthSource RI that the QHP in which he or she is enrolled substantially violated a material provision of its contract with the enrollee.

6) IAP Eligibility. The individual or dependent enrolled in a QHP or an eligible employer-sponsored plan becomes newly eligible or ineligible for advance payments of the premium tax credit (APTC), or experiences a change in eligibility for cost-sharing reductions.13

7) Permanent Move. The qualified individual or enrollee, or his or her dependent, gains access to new QHPs following a permanent move.

8) American Indian Status. The qualified individual who is an Indian, as defined by Section 4 of the Indian Health Care Improvement Act, may enroll in a QHP or change from one QHP to another one time per month;

9) Exceptional Circumstances. The qualified individual or enrollee, or his or her dependent, demonstrates to Health Source RI, in accordance with guidelines issued by HHS, that the individual meets other exceptional circumstances as Health Source RI may provide.

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NOTICE OF APPELLATE RIGHTS This Final Order constitutes a final order of the Department of Human Services pursuant to RI General Laws §42-35-12. Pursuant to RI General Laws §42-35-15, a final order may be appealed to the Superior Court sitting in and for the County of Providence within thirty (30) days of the mailing date of this decision. Such appeal, if taken, must be completed by filing a petition for review in Superior Court. The filing of the complaint does not itself stay enforcement of this order. The agency may grant, or the reviewing court may order, a stay upon the appropriate terms. This hearing decision constitutes a final order pursuant to RI General Laws §42-35-12. An appellant may seek judicial review to the extent it is available by law. 45 CFR 155.520 grants appellants who disagree with the decision of a State Exchange appeals entity, the ability to appeal to the U.S. Department of Health And Human Services (HHS) appeals entity within thirty (30) days of the mailing date of this decision. The act of filing an appeal with HHS does not prevent or delay the enforcement of this final order. You can file an appeal with HHS at https://www.healthcare.gov/downloads/marketplace-appeal-request-form-a.pdf or by calling 1-800-318-2596.

https://www.healthcare.gov/downloads/marketplace-appeal-request-form-a.pdfhttps://www.healthcare.gov/downloads/marketplace-appeal-request-form-a.pdf