Know Your Health Reform Rights 101: How to Appeal When Services or Coverage

Are Denied

February 20, 2014

Download the slides & materials at www.HIVHealthReform.org

Malinda Ellwood and Maggie Morgan Center for Health Law & Policy Innovation of

Harvard Law School

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Presentation Outline

Part One: Rights and Protections in Appealing Eligibility Decisions

Part Two: After You’re Enrolled in a QHP. . . 1. What If I Want to Change Health Plans?

2. What Happens If I Don’t Pay My Premiums?3. What If I Am Denied Benefits? Appeal!

4. Health Plans Cannot Discriminate!

Part One: Rights and Protections in Appealing Eligibility Decisions

What Does Discrimination Look Like?

Exclusion from coverage because of pre-existing condition (like HIV) Higher premiums because of a

pre-existing condition (like HIV)

Limits on the amount of coverage Refusal to see someone because of HIV status

No coverage for anti-retroviral or other expensive drugs

Co-pays, co-insurance, and deductibles that make it impossible for someone living with HIV to afford coverage

An unfair appeals process that doesn’t provide a chance to appeal an eligibility or coverage denial

• If you apply for Medicaid or federal premium tax credits or cost-sharing subsidies on the Marketplace, you must receive notice of the decision about your eligibility.

• It can come in the mail or (with your consent) electronically.

• This notice will tell you where to send the appeal.

Keep copies!!!

You Have the Right to Receive Notice of Your Eligibility Decision

You can appeal a decision saying: 1) You are not eligible for Medicaid or CHIP

2) You are not eligible for federal cost-sharing subsidies or premium tax credits on the Marketplace

3) You are eligible for a different amount of subsidy or tax credit than you think you are entitled to receive

4) A decision about your exemption from the individual mandate

5) A decision about whether you can enroll in a Marketplace plan outside the regular open enrollment period

You Have the Right to Appeal an Eligibility Decision

The Appeals Process: Your Procedural Rights

You have the right to:

• Receive notice that your appeals request was received.

• An appeals process that is fully accessible to people with disabilities (through accessible websites/auxiliary aids) or limited English proficiency (through oral interpretations/written translations/ taglines in non-English languages)

Filing a Marketplace Appeal

•OnlineLog into your “My Account” at HealthCare.gov/marketplace/individual

•Over the Phone –Call the Marketplace customer service center at 1-800-318-2596•Through Regular Mail–Write a letter to the Health Insurance Marketplace –Mail in an appeal request form, using the proper form for your state

Forms available at : https://www.healthcare.gov/can-i-appeal-a-marketplace-decision/

Timeline for Filing an Appeal

•For federally facilitated Marketplace appeals, you have 90 days to file an appeals request from the date you receive notice of your eligibility determination •State-based Marketplaces can choose their state’s Medicaid deadline as long as it’s at least 30 days •For appeals by the state Medicaid agency, deadlines vary by state

If you are appealing a Medicaid eligibility decision

Depending on your state, the appeal may be heard by the

1. State Medicaid office

2. The Marketplace

– This is only allowed when the Marketplace is making the initial eligibility determinations for Medicaid.

– You have the right to demand a hearing instead by the state Medicaid office if you desire

3. A third party state agency designated by the Medicaid office.

If you are appealing a Marketplace decision (tax credits, subsidies)

1. Marketplace can handle the appeals process itself.

– For federal marketplaces, the appeals entity is HHS

2. State-based Marketplaces can delegate alltheir appeals to HHS (If handling Medicaid appeals, those would go to HHS too)

3. Marketplace can delegate to 3rd party state or non governmental agency

Step 1. Informal Resolution Process

– Required for Federally facilitated Marketplaces

• If not satisfied with the result, consumers can request a formal hearing.

–Optional for State-based Marketplaces.

–Optional for Medicaid agencies.

• If consumer is not satisfied with the result, proceed to formal hearing.

2. The Appeals Hearing

• Hearings may be conducted in person, or using telephone or video conferencing technology.

• You are allowed to represent yourself or have anyone else of your choosing to represent you.

• You can appoint an authorized representative to act on your behalf.

Expedited Appeals

• Expedited appeals are available when a longer process “could jeopardize” the life of the applicant.

• This decision is made on a case-by-case basis

• If the request is denied, written notice must be sent explaining reasons for denial and the applicant’s rights

• The applicant then will be transferred to the regular appeals process

What Happens While a Marketplace Appeal is Pending?

If the consumer is already receiving benefits, they are allowed to keep the benefits pending resolution of the appeal.

Note: This is different from most Medicaid programs, where consumers must file a request within 10 days of termination to keep their benefits

If the Marketplace is hearing Medicaid appeals, it has to follow Medicaid rules on this issue.

If the Consumer wants to keep the Marketplace plan during the appeals process, they must keep paying premiums.

What Happens to Your Premium Tax Credits while your Appeal is Pending?

If you are appealing a decision about the amount of premium tax credits you are eligible for, you can keep the tax credits during the appeals process…BUT

•If it is determined that you are eligible for a lower amount of tax credits than you are receiving, you will have to repay the extra benefits on your taxes the following year

•You must be informed of this possible tax issue before you are allowed to receive these benefits while the appeal is pending.

The Decision

•Marketplace eligibility appeals must be decided within 90 days from the date of the appeals request and includes any time spent on the informal resolution process.

•If the applicant disagrees with a state-based marketplace’s appeal decision, they have 30 days to “escalate” the appeal to HHS for a new decision

•State Medicaid agencies that delegate Medicaid appeals to the Marketplace can choose to establish a review process of the Marketplace’s legal conclusions

After a Successful Appeal…

If the Marketplace made a mistake in deciding your eligibility in the first place, you are allowed to receive benefits going back to the date of that mistake

•If choosing to receive retroactive benefits, you will still be required to pay premiums for that time period

•If the appeal is regarding Medicaid eligibility, the rules for retroactive coverage will follow the state’s Medicaid rules

Part Two: After You’re Enrolled in a QHP. . . 1. What If I Want to Change Health Plans?2. What Happens If I Don’t Pay My Premium?3. What If I Am Denied Benefits? Appeal!4. Health Plans Cannot Discriminate!

Once you have insurance, be sure to READ THE FINE PRINT!

• Review all plan documentation sent by the insurer

• Become familiar with your QHP’s process for appeals

• KEEP COPIES of all plan documents (including any documentation related to particular claims) in a place where you can access them again as needed!

1. What Happens After You’ve Already Enrolled in a QHP and Want

to Change Your Plan?

Changing From One QHP to Another

• If your new insurance coverage has not yet become effective, you can still change plans if open enrollment is still ongoing

• In general, you can’t change QHPs once your coverage has started, except:

– Marketplaces run by the federal government (FFMs) or in state-federal partnership marketplaces (SPM), people may change their health plans once coverage has started under certain circumstances if open enrollment is still ongoing

– After open enrollment has ended and your coverage has started, you can change plans if you qualify for a special enrollment period

– Recent guidance from the Center for Consumer Information & Insurance Oversight (CCIIO): https://www.regtap.info/uploads/library/Guidance_for_Issuers_5CR_020714.pdf.

Changing QHPs During Open Enrollment

• If your coverage has not actually started yet, you can still change health plans (including from one carrier to another)

• If your coverage has already started and you’ve paid your first premium, you can still change if ALL of these conditions are met:

– You’re changing to another plan offered by the same carrier (I.e., BlueCross Blue Shield) AND

– You’re changing to another plan in the same metal level (e.g. silver) and AND

– You are changing plans because you want to move to a plan with a more inclusive provider network (other isolated circumstances may also be approved by CMS)

– To initiate this process, contact your QHP issuer

Changing QHPs After Open Enrollment Has Ended: Qualifying Events and Special Enrollment Periods

In order to change plans or enroll in coverage outside the open enrollment period, you must experience a qualifying event

Examples of qualifying events include (but are not limited to):• You have a change in income that changes your eligibility for APTCs• Loss of eligibility for other coverage (like Medicaid, or employer sponsored coverage) • You have a changed in marital status or have a child• You move to another state• Your COBRA ends• Individual states may also create additional qualifying events

These events will qualify you for a “special enrollment period,” which usually will last about 60 days from the event

• You can appeal a Marketplace decision not to give you an SEP

NOTE: Individuals can enroll in Medicaid or CHIP at any time during the year.

A Note About Certain Kinds of Special Enrollment Periods (SEPs)

• CCIIO has recently indicated some kinds of SEPs should be processed directly through the Marketplace Call Center– These include (prior to completing the enrollment process):

• Enrollment errors• Exceptional circumstances• Misrepresentation

– SEPs that allow you to change plans from a prior QHP because of:• Marketplace benefit display errors• Issuer benefit display errors• Misrepresentation

– If you are experiencing these kinds of issues, call the Marketplace Call Center directly

2. What Happens After You’ve Already Enrolled in a QHP and Don’t

Pay Your Premiums?

What If I Don’t Pay My QHP Premiums?

If you are not paying your premiums because you are now making less income- you should report these changes immediately as you may qualify for increased amounts of APTCs or Medicaid!

If your income has not changed but you do not pay your premiums (and are receiving APTCs) and have paid at least one premium payment:

• QHPs must provide you with a 90-day grace period to pay your premiums

• For the first month, the plan will continue to pay providers After that, the plan may stop reimbursing providers for services until you pay your premiums (although they cannot drop you from coverage during the grace period)

• If you pay your premiums back in full, plans will cover services during the last two months of the grace period, but if you do not, you may ultimately be responsible for these costs

NOTE: if you are dropped from coverage for failure to pay your premiums, this by itself will not constitute a “qualifying event” and you will need to wait until the next open-enrollment period to re-enroll

3. What Happens After You’ve Already Enrolled in a QHP and You

Are Denied Benefits?

Appealing Decisions Made by QHPs

What kinds of decisions can be appealed?

• Decisions by your health plan to end your coverage

• Decisions by your health plan not to pay for a medical service you received (QHP must notify you of this decision within 30 days of the service)

• Decisions about prior authorizations (QHP must make a decision within 15 days of a request)

• Decisions about coverage of prescription drugs

• Decisions about coverage of prescription drugs that are not on the plan’s formulary (“Exceptions Process”)

• Decisions not to cover “urgent care” (must be made within 72 hours)

1) The member handbook for every Marketplace health plan must tell you how to appeal if the plan won’t cover a health service.

2) If a QHP has chosen not to pay for a claim or service, it must notify you in writing, and this notice must include information about why the claim was denied, how you can appeal, and what the time frame is for that process

1) In every state, insurance plans must have a process to review appeals within the company. If you lose this appeal, you can get review by an independent agency that operates under each state’s law.

BE SURE TO FOLLOW THE QHP’S DIRECTIONS FOR FILING AN APPEAL! (i.e. appropriately complete all the forms, and ensure you have any necessary supporting documentation from your provider or other sources)

If You’re Denied Coverage for Health Services by Your QHP, You Can Appeal!

Appealing a QHP Decision

• You will only have a specified amount of time to file an appeal once the adverse decision has been made (180 days)

• Initially, it is likely that you will have to follow the internal process for your individual QHP– A decision on your appeal must be made within 30 days if the request is for a service

you have not yet received– A decision on your appeal must be made within 60 days if the request is for a service

you have already received

• If you ultimately disagree with the decision reached through the internal QHP process, you have the right to appeal this issue externally (through an independent third-party)– The notice you receive from the QHP process should explain to you how to file an

external appeal and what the timeframe is – The external review must be decided as soon as possible (time frames may vary by state,

but no longer than 60 days)

• You can appoint an authorized representative to assist you

Expedited Appeals of QHP Decisions

• If your plan denies you coverage for a drug or service that your healthcare provider thinks is necessary to avoid severe pain or which seriously jeopardizes your life and/or ability to regain maximum function (“urgent care benefits”), you can request an expedited external appeal

• If you are being denied an urgent care benefit, you do not have to wait for the insurer to complete their internal process and can file for an expedited external review at the same time

• The external review decision must be made as quickly as your medical condition requires, and at least within 4 business days after the request is received– (the decision may be verbal as long as it is followed up by written

notice within 48 hours)

Asking for Coverage of A Drug That is Not on Your QHP’s Formulary (“Exceptions Process”)

Every QHP must have an exceptions process to request coverage of a clinically appropriate drug that’s not on the formulary (each QHP may have a slightly different process)

In general

– Need to show that all other drugs on the formulary have not been or will not be as effective, and/or

– Any alternative drug covered by your plan has caused or is likely to cause harmful side effects

– If there are limits on the number of doses, need to show:

• The allowed dosage doesn’t work for your condition, or

• The drug likely won’t work for you based on your physical or mental health (for example, your body weight requires higher dosages)

• Your plan must provide access to this drug during the exceptions process

• You can appeal an “exceptions process” decision in the same ways you appeal other decisions

Getting Help With An Appeal

From Healthcare.gov:• You can call the Marketplace Call Center at 1-800-318-2596, 24 hours a day, 7 days a week. TTY users

should call 1-855-889-4325. • You also can visit HealthCare.gov to get more information about appeals. • Your state’s Consumer Assistance Program (CAP) or Department of Insurance may be able to help you,

along with other local organizations. Visit LocalHelp.HealthCare.gov to find help in your area. • Your insurance company’s consumer hotline will provide you with information. A list of such hotlines is

available on HealthCare.gov. • If you don’t speak English, you can get help and information about appeals and other Marketplace issues

in your preferred language at no cost. To talk to an interpreter, call 1-800-3182596. TTY users should call 1-855-889-4325.

• You can appoint an authorized representative to help you. Your representative can be a family member, friend, advocate, attorney, or someone else who will act for you. This can be done several ways, depending on the type of appeal you’re filing.

Many states have legal aid programs which may also be able to assist you!

Fact Sheets on Appeals from healthcare.gov:• https://www.healthcare.gov/how-do-i-appeal-a-health-insurance-companys-decision/#part=1• https://www.healthcare.gov/how-do-i-appeal-a-health-insurance-companys-decision/#part=2• https://www.healthcare.gov/how-do-i-appeal-a-health-insurance-companys-decision/#part=3

If You’re Denied Coverage Under Medicaid…

Process can vary by state, but in general:

• Prior authorization decisions must be made within 24 hours of a request

• Beneficiaries are entitled to 72 hours worth of emergency supply of medication if PA is unavailable

• You’re constitutionally required to notice and a hearing.

• If your state has a Medicaid managed care plan, you may be required to first complete an internal review process before getting a state hearing.

4. Health Plans Cannot Discriminate!

• Plans can no longer exclude people from coverage because of pre-existing conditions (like HIV)

• The ACA (Section 1557) says that health programs cannot discriminate against people based on – Race or Color

– National Origin– Sex – Age– Disability

This law applies to any health program receiving federal funds, including all plans on the Marketplace, as well as call centers and outreach.

QHPs Cannot Discriminate

• The ACA expands protection against discrimination based on sex, sexual orientation or gender identity.

• This means that: – Women cannot be charged more than men for health care (this has

always been a big problem)

– Pregnancy and marital status cannot be a source of unequal treatment

– Plans cannot discriminate based on sexual orientation or transgendered status • However, HHS has said that plans are not required to cover gender

reassignment surgery

Sex Discrimination

1. Plans cannot be designed to discourage enrollment by people with significant health needs.

2. Plans can’t make coverage decisions based on health status.

Example: Plans cannot decide to withhold coverage for HIV drugs, or design their plans so that HIV coverage is inferior to coverage of other conditions

– But definition of discrimination on basis of health status is not clearly defined: we need to identify what works and doesn’t work for individuals living with HIV!!!

QHPs Cannot Discriminate in Plan Design

Potentially Discriminatory Plan Design and Systemic Issues with Access to Benefits

• Examples of issues:– Inadequate formulary coverage (for example, plans not covering

single-regiment tablets (STRs) (Atripla, Complera, Stribild)– Placing all HIV/AIDS drugs on the highest cost-sharing tiers– Lack of transparency– QHPs refusing to accept third-party payments from Ryan White

Programs/ADAPs

• Examples of some advocacy successes:– Press coverage highlighting the inequities in many of these issues– The HIV Health Care Access Working Group (HHCAWG) successfully

convinced several QHPs to add STRs to their formularies– Discussions are ongoing regarding a federal response to the third-

party payment issue

• If you think you are being discriminated against on one of the grounds protected by §1557, you may file a complaint with the Office of Civil Rights

• Information for how to file a complaint can be found at http://www.hhs.gov/ocr/civilrights/complaints/index.html

Discrimination Complaints

It Will Be Critical To Document Barriers to Care!

WHAT:

• We are currently setting up a monitoring project to document barriers to care (affordability, access to benefits, inadequate formularies or provider networks)

• This national project will monitor, catalogue, and analyze the problems experienced by people with HIV in new health care systems.

WHY?

• To identify issues that need to be addressed, tell state and federal officials about them, advocate for change, and report back to the community.

• To help educate state and federal officials about the needs of people living with HIV as they work to improve the ACA in coming years.

• HIV Health Reform, http://www.hivhealthreform.org/

• Kaiser Family Foundation and Together We Are > Than AIDS: Health Care Reform and You: http://greaterthan.org/campaign/obamacare/

• National Alliance of State & Territorial AIDS Directors (NASTAD), www.NASTAD.org

• Treatment Access Expansion Project, www.taepusa.org

• HIV Medicine Association, www.hivma.org

• Health Care Reform Resources – State Refo(ru)m, www.statereforum.org– Kaiser Family Foundation, www.kff.org – Healthcare.gov, www.healthcare.gov

Resources