SubPart 360-10 - Medicaid Managed Care Programs

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Section 360-10.1 - Introduction

Section 360-10.1 Introduction.

(a) Most Medicaid recipients are required and some recipients may elect to receive health services from a Medicaid managed care organization (MMCO). Individuals eligible for Family Health Plus, except for those who participate in the Family Health Plus Premium Assistance Program, are required to receive health care services from a MMCO.

(b) An MMCO must provide or arrange for the provision of all services set forth in its benefit package to its enrollees. The commissioner shall assure that Medicaid recipients in managed care have access to all services to which they are entitled under the Medicaid program, including services, if any, that are not included in their MMCO's benefit package and provided through the Medicaid Fee for Service Program. Family Health Plus enrollees are eligible for the services specified in section 369-ee of the Social Services Law.

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Section 360-10.2 - Scope

Section 360-10.2 Scope.

This Subpart describes:

(a) individuals required to enroll in an MMCO;

(b) individuals exempt or excluded from enrollment in an MMCO;

(c) good cause reasons for permitting an enrollee to change or disenroll from an MMCO;

(d) good cause reasons for permitting an enrollee to change primary care providers (PCPs);

(e) the fair hearing rights for managed care enrollees;

(f) marketing/outreach requirements for MMCOs;

(g) MMCO unacceptable practices;

(h) MMCO sanctions and due process.

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Section 360-10.3 - Definitions

Section 360-10.3 Definitions. As used in this Subpart, unless expressly stated otherwise or unless the context of the subject matter requires different interpretation:

(a) "Action" means, in the case of an MMCO or its management contractor:

(1) the denial or limited authorization of a requested service, including type or level of service; or

(2) the reduction, suspension, or termination of a previously authorized service; or

(3) the denial, in whole or in part, of payment for a service; or

(4) the failure to provide services in a timely manner, as set forth in the guidelines established by the commissioner; or

(5) the failure to act to resolve service authorization requests, complaints, grievances, and appeals with reasonable promptness. Reasonable promptness shall mean compliance with the timeframes established by public health law and applicable federal regulations, as set forth in the guidelines established by the commissioner;

(6) the denial of a request for out of network services for a managed care enrollee who is required to receive medical assistance services from an MMCO and who resides in a social services district where there is only one MMCO participating in the Medicaid managed care program; or

(7) the restriction of an enrollee to certain providers under the MMCO's recipient restriction program.

The decision of a primary care practitioner participating in a primary care partial capitation provider (PCPCP) exercising his or her professional judgment is not an action.

(b) "Disenrollment" means the process by which a Medicaid recipient's enrollment in an MMCO is terminated.

(c) "Enrollee" (Participant) means a Medicaid recipient who receives, is required to receive, or elects to receive his or her health care services from an MMCO, or an FHP eligible individual who is required to receive health care services from an MMCO.

(d) "Enrollment" means the process by which an enrollee's membership in an MMCO begins.

(e) "Grace period" means the period prescribed by federal or State statute during which an enrollee may elect to change MMCOs for any reason.

(f) "Lock-in period" means the period of time during which the enrollee may not disenroll from the MMCO unless the enrollee can demonstrate that he/she has good cause as defined in section 360-10.6 of this Subpart. The lock-in period shall begin on the effective date of enrollment and end after the first twelve months of enrollment, provided however, an enrollee may disenroll from an MMCO without cause during the grace period.

(g) "Management contractor," means any company, organization, or other entity that has entered into a management agreement with an MMCO, pursuant to section 98-1.11(j) of Title 10, to take an action on behalf of an MMCO. If so provided under the terms of such management agreement, the management contractor may, on behalf of the MMCO, accept appeals regarding the action and make appeal determinations.

(h) "Medicaid managed care organization (MMCO)," means one of the following entities that meets the requirements of section 364-j of the Social Services Law and is authorized to participate in the Medicaid managed care and/or Family Health Plus Programs: health maintenance organizations (HMOs), prepaid health services plans (PHSPs), comprehensive HIV special needs plans (HIV SNPs), and primary care partial capitation providers (PCPCPs). An MMCO is required to enter into a contract with the State; such contract must specify the services provided under the MMCO's benefit package, subject to any exclusions or limitations imposed by federal or State law.

(i) "Notice of action" means a notice issued by an MMCO or its management contractor when an action is taken. Also known as the "notice of intent to restrict" in the case of an MMCO's determination to restrict an enrollee under the MMCO's recipient restriction program.

(j) "Participating provider" means a provider of medical care and/or services that has a provider agreement with an MMCO.

(k) "Primary care practitioner (provider)" or "PCP" means a physician or nurse practitioner providing primary care to and management of medical and health care services of an enrollee.

(l) "Prospective Enrollee" means any individual residing in the MMCO's service area that has not yet enrolled in a MMCO's Medicaid managed care or FHP product.

(m) "Recipient restriction program" means an MMCO's procedures for review and assessment of an enrollee's misuse or abuse of medical assistance services and subsequent determination to restrict the enrollee to access certain medical assistance services through a designated provider or providers, or the MMCO's implementation of an enrollee restriction as directed by the Office of the Medicaid Inspector General. The MMCO's recipient restriction program is conducted in accordance with section 360-6.4(d) of this Part and the guidelines in the contract between the MMCO and the State.

(n) "Social services district" means the social services district or other designee of the department.

(o) "Service authorization request" means a request by an enrollee, or a provider on the enrollee's behalf, to an MMCO for the provision of a service, including a request for a referral or for a non-covered service.

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Section 360-10.4 - Individuals required to enroll in an MMCO

Section 360-10.4. Individuals required to enroll in an MMCO

(a) All Medicaid recipients, except for those who are eligible for an exemption or an exclusion pursuant to section 360-10.5 of this Subpart, residing in a social services district that has been approved to implement mandatory enrollment must enroll in an MMCO.

(b) Excluded populations may not enroll in an MMCO.

(c) Exempt populations are not required to enroll in an MMCO in a social services district where enrollment is mandatory; however, they may elect to voluntarily enroll.

(d) All FHP eligible individuals, except for those participating in the FHP premium assistance program, must enroll in an MMCO to receive services.

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Section 360-10.5 - Individuals exempt or excluded from enrollment in an MMCO

Section 360-10.5. Individuals exempt or excluded from enrollment in an MMCO.

(a) A Medicaid recipient is exempt from enrollment in an MMCO if the recipient meets one of the criteria for exemption identified in section 364-j (3)(b) of the Social Services Law.

(b) A Medicaid recipient identified in section 364-j (3)(e) of the Social Services Law is exempt from enrollment unless the commissioner has established program features for that population.

(c) A Medicaid recipient shall be excluded from enrollment in an MMCO if the recipient meets one of the criteria identified in section 364-j (3)(c) of the Social Services Law.

(d) Determination of a Medicaid recipient's eligibility for an exemption or exclusion shall be the responsibility of the social services district.

(1) Determinations made prior to enrollment.

(i) If a Medicaid recipient requests an exemption or exclusion from enrollment in an MMCO, the Medicaid recipient or the Medicaid recipient's representative must file a written request with the appropriate social services district. The social services district shall require the Medicaid recipient to provide documentation to support the request for an exemption or exclusion where appropriate.

(ii) The social services district must make a determination within 10 days after receipt of all necessary information and notify the Medicaid recipient in writing whether the request for an exemption or exclusion is granted or denied.

(iii) When a request for an exemption or exclusion is denied, the social services district must provide a written notice that explains the reason for the denial, states the facts upon which the denial is based, cites the relevant statutory or regulatory authority for the denial, and advises the Medicaid recipient of his or her right to a fair hearing. The notice must comply with subdivision (a) of section 358-2.2 of this Title.

(2) Determinations of a Medicaid recipient's eligibility for an exemption or exclusion from enrollment in a managed care program after enrollment has occurred.

(i) When the social services district becomes aware that an enrollee is excluded from participating in accordance with subdivision (c) of this section, the social services district will initiate disenrollment of the enrollee.

(ii) A Medicaid recipient may apply for an exemption or an exclusion by filing a written request with the appropriate social services district. The social services district shall require the Medicaid recipient to provide documentation to support the request for an exemption or exclusion where appropriate.

(a) The social services district must make a determination in sufficient time to ensure that the disenrollment will be effective no later than the first day of the second month following the month in which the social services district received the request, unless the recipient requests expedited disenrollment pursuant to paragraph (iii) of this subdivision.

(b) The social services district must notify the recipient in writing of its determination to approve or deny the request for an exemption or exclusion.

(c) When a request is denied, the social services district must provide a written notice that explains the reason for the denial, states the facts upon which the denial is based, cites the relevant statutory or regulatory authority for the denial, and advises the Medicaid recipient of his or her right to a fair hearing. The notice must comply with subdivision (a) of section 358-2.2 of this Title.

(iii) An enrollee may request an expedited disenrollment or change if: an immediate risk to the enrollee's health exists; the enrollment was non-consensual; or for other reasons as set forth in the contract between the MMCO and the State. The social services district may request documentation to substantiate the request. The effective date of the expedited disenrollment or change must comply with the timeframes found in the contract between the MMCO and the State.

(a) The social services district must notify the recipient in writing of its determination to approve or deny the request for an expedited disenrollment.

(b) When a request is denied, the social services district must provide a written notice that explains the reason for the denial, states the facts upon which the denial is based, cites the relevant statutory or regulatory authority for the denial, and advises the Medicaid recipient of his or her right to a fair hearing. The notice must comply with subdivision (a) of section 358-2.2 of this Title.

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Section 360-10.6 - Good cause for changing or disenrolling from an MMCO

Section 360-10.6 Good cause for changing or disenrolling from an MMCO

(a) Medicaid recipients

(1) A recipient who is required to enroll in an MMCO and who resides in a social services district with more than one MMCO available has good cause to change his or her MMCO during the lock-in period if:

(i) the MMCO has failed to furnish accessible and appropriate medical care, services or supplies to which the enrollee is entitled under the terms of the contract under which the MMCO has agreed to provide services. This includes, but is not limited to the failure to:

(a) arrange for the provision of primary care services;

(b) arrange for the provision of inpatient care;

(c) arrange for consultation with specialists and other ancillary service providers;

(d) arrange for covered services with qualified licensed or certified providers; or

(ii) the MMCO fails to adhere to the standards prescribed by the commissioner and such failure negatively and specifically impacts the enrollee; or

(iii) it is determined by the social services district, the commissioner, or its agent that the enrollment was not consensual; or

(iv) the enrollee, the MMCO and the social services district agree that a change of MMCOs would be in the best interest of the enrollee; or

(v) the MMCO has elected not to cover the Medicaid managed care benefit package service that the enrollee seeks and the service is offered by one or more other MMCOs in the enrollee's service area; or

(vi) the enrollee's medical condition requires related services to be performed at the same time, but all such related services cannot be arranged by the MMCO because the MMCO has elected not to cover one of the services the enrollee seeks and the enrollee's primary care provider or another provider determines that receiving the services separately would subject the enrollee to unnecessary risk; or

(vii) there exists any other good cause reason or another programmatic requirement for change or disenrollment, as provided for in the contract between the MMCO and the State.

(2) If there are no other MMCOs available in the enrollee's social services district, an enrollee seeking to disenroll from his or her current MMCO will be required to remain enrolled in the MMCO unless the reason for the disenrollment is described in subparagraph (i) or (ii) of paragraph (1) of this subdivision.

(3)(i) If an enrollee wishes to change or disenroll from an MMCO for good cause, the enrollee or the enrollee's representative must file a written or verbal request with the social services district.

(ii) The social services district must make a determination on the request in sufficient time to ensure that a change, if approved, is effective no later than the first day of the second month following the month in which the request was received, unless the enrollee has requested an expedited change pursuant to subparagraph (iii) of paragraph (2) of subdivision (e) of section 360-10.5 of this Subpart. If the social services district fails to make the determination before the first day of such second month, the request is considered approved.

(iii) An enrollee whose request for a change of MMCO has been denied by the social services district shall be provided with a written notice which states the decision, the reasons for the denial, the facts upon which the denial is based, cites the relevant statutory and regulatory authority and advises the enrollee of his or her right to a fair hearing. The notice must comply with the requirements specified in subdivision (a) of section 358-2.2 of this Title.

(b) Family health plus enrollees

(1) If there is another MMCO available in the enrollee's social services district, an enrollee may change his or her MMCO during the lock-in period if:

(i) the MMCO has failed to furnish accessible and appropriate medical care, services or supplies to which the enrollee is entitled under the terms of the contract under which the MMCO has agreed to provide services. This includes, but is not limited to, the failure to:

(a) arrange for the provision of primary care services;

(b) arrange for the provision of inpatient care;

(c) arrange for consultation with specialists and other ancillary service providers;

(d) arrange for covered services with qualified licensed or certified providers; or

(ii) the MMCO fails to adhere to the standards prescribed by the commissioner and such failure negatively and specifically impacts the enrollee; or

(iii) it is determined by the social services district, the commissioner, or its agent that the enrollment was not consensual; or

(iv) the enrollee, the MMCO and the social services district agree that a change of MMCOs would be in the best interest of the enrollee; or

(v) the MMCO has elected not to cover the FHP benefit package service that the enrollee seeks and the service is offered by one or more other MMCOs in the enrollee's service area; or

(vi) the enrollee's medical condition requires related services to be performed at the same time, but all such related services cannot be arranged by the MMCO because the MMCO has elected not to cover one of the services the enrollee seeks and the enrollee's primary care provider or another provider determines that receiving the services separately would subject the enrollee to unnecessary risk; or

(vii) there exists any other good cause reason or another programmatic reason for disenrollment, as provided for in the contract between the MMCO and the State.

(2) If the enrollee resides in a social services district in which there are no other MMCOs available, the enrollee will be required to remain enrolled in the MMCO unless the enrollee chooses to discontinue his or her participation in the FHP program.

(3)(i) If an enrollee wishes to change or disenroll from an MMCO for good cause, the enrollee or the enrollee's representative must file a written or verbal request with the social services district.

(ii) The social services district must make a determination on the request in sufficient time to ensure that a change, if approved, is effective no later than the first day of the second month following the month in which the request was received, unless the enrollee has requested an expedited change pursuant to subparagraph (iv) of this paragraph. If the social services district fails to make the determination before the first day of such second month, the request is considered approved.

(iii) An enrollee whose request for a change of MMCO has been denied by the social services district shall be provided with a written notice which states the decision, the reasons for the denial, the facts upon which the denial is based, cites the relevant statutory and regulatory authority and advises the enrollee of his or her right to a fair hearing. The notice must comply with the requirements specified in subdivision (a) of section 358-2.2 of this Title.

(iv) An enrollee may request an expedited disenrollment or change if: an immediate risk to the enrollee's health exists; the enrollment was non-consensual; or for other reasons as set forth in the contract between the MMCO and the State. The social services district may request documentation to substantiate the request. The effective date of the expedited disenrollment or change must comply with the timeframes found in the contract between the MMCO and the State.

(a) The social services district must notify the recipient in writing of its determination to approve or deny the request for an expedited disenrollment.

(b) When a request is denied, the social services district must provide a written notice that explains the reason for the denial, states the facts upon which the denial is based, cites the relevant statutory or regulatory authority for the denial, and advises the Medicaid recipient of his or her right to a fair hearing. The notice must comply with subdivision (a) of section 358-2.2 of this Title.

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Section 360-10.7 - Good cause for changing primary care practitioners

Section 360-10.7 Good cause for changing primary care practitioners.

(a) An MMCO must allow enrollees to change PCPs without cause within 30 days of the enrollee's first appointment with the PCP. After the first 30 days, the MMCO may elect to limit enrollees to changing PCPs every six months without cause. This subdivision does not apply to enrollees restricted pursuant to section 360-6.4 of this Part or the MMCO’s recipient restriction program.

(b) If the MMCO has elected to restrict PCP changes, or an enrollee has been restricted pursuant to section 360-6.4 of this Part or the MMCO's recipient restriction program, an enrollee nevertheless has good cause to change PCPs at any time if:

(1) the provider has failed to furnish accessible and appropriate medical care, services or supplies to which the enrollee is entitled under the terms of the contract under which the MMCO has agreed to provide services. This includes, but is not limited to, the failure to:

(i) provide primary care services;

(ii) arrange for inpatient care, consultations with specialists, or laboratory or radiological services when reasonably necessary;

(iii) arrange for consultation appointments;

(iv) coordinate and interpret any consultation findings with an emphasis on continuity of medical care;

(v) arrange for services with qualified licensed or certified providers;

(vi) coordinate the enrollee's overall medical care such as periodic immunizations and diagnosis and treatment of any illness or injury; or

(2) the enrollee disagrees with a treatment plan; or

(3) the enrollee and provider are not able to communicate due to a language barrier or other impediment to communication; or

(4) the provider is not able to reasonably accommodate the enrollee's special needs; or

(5) there is a change in the provider's practice, including but not limited to the following:

(i) the provider moves to a location that is not convenient for the enrollee; or

(ii) there is a significant change in the hours the provider is available and the enrollee cannot reasonably make appointments during the new hours; or

(iii) the provider no longer has hospital privileges; or

(6) the provider fails to adhere to the standards prescribed by the commissioner and such failure negatively and specifically impacts the enrollee; or

(7) the enrollee and the provider agree that a change would be in the best interest of the enrollee; or

(8) the provider leaves the MMCO's network.

(c) Requests to change PCPs.

(1) An enrollee must submit a request to change PCPs to the MMCO according to the procedures established by the MMCO.

(2) The MMCO must provide the enrollee with a decision on the enrollee's request within 30 days of receipt of the request.

(3) If approved, the change must be effective no later than the first day of the second month following the month in which the request is received.

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Effective Date: 
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Section 360-10.8 - Fair hearings

Section 360-10.8 Fair hearings

(a) Part 358 of this Title is incorporated by reference as if set forth fully herein and is applicable to enrollees, MMCOs, and management contractors, except that, where a provision in this section is inconsistent with Part 358 of this Title, the provision in this section will apply.

(b) In addition to the fair hearing rights in Part 358 of this Title, enrollees have a right to a fair hearing if:

(1) a social services district denies a request for an exemption or exclusion from Medicaid managed care;

(2) a social services district denies a request to enroll in, disenroll from, or change an MMCO;

(3) the social services district requires the enrollee to disenroll from an MMCO;

(4) a PCPCP has upheld the decision of a PCP to: deny a request for a referral; deny or reduce a benefit or service; or authorize a service in an amount less than requested; or

(5) an MMCO, or its management contractor, has taken an action, as defined in section 360-10.3 of this Subpart.

(c) Enrollees do not have a right to a fair hearing if:

(1) the sole issue is a federal or State law requiring a change adversely affecting some or all enrollees; or

(2) the sole issue is a result of a change in the contract between the MMCO and the State, that has been approved by the federal government; or

(3) the sole issue is an act of an MMCO that does not constitute an action; or

(4) the sole issue is a participating provider denied or reduced a service, denied access to a referral, or authorized a service or benefit in an amount less than requested, unless the enrollee has received a determination or notice of action from the MMCO,or its management contractor, confirming the decision of the provider.

(d) Requests for a fair hearing.

(1) Except as provided in paragraph (2) of this subdivision, an enrollee must request a fair hearing in accordance with section 358-3.5 of this Title.

(2) a request for fair hearing regarding an MMCO's or its management contractor's action must be requested by the enrollee within 60 days of:

(i) the date of the MMCO's or its management contractor's notice of action; or

(ii) the MMCO's or its management contractor's failure to act on service authorization requests, complaints, grievances, or appeals within the timeframes established by the public health law and applicable federal regulations, as set forth in guidelines established by the commissioner.

(e) Notices

(1) A social services district shall notify an enrollee in writing of their right to a fair hearing and how to request a fair, pursuant to section 358-2.2 of this Title, hearing whenever the social services district:

(i) denies a request for exemption or exclusion from enrollment in an MMCO; or

(ii) determines to disenroll an enrollee from an MMCO; or

(iii) denies a request to enroll in, disenroll from, or change an MMCO.

(2) An MMCO or its management contractor shall notify an enrollee in writing of their right to a fair hearing and how to request a fair hearing in a manner and form determined by the department whenever a notice of action is issued. For the purposes of this paragraph, "MMCO" means an HMO, PHSP or HIV SNP. A notice of action that sets forth all of the information required by subparagraph (i) of this paragraph will be considered an adequate notice for the purposes of section 358-2.2 of this Title.

(i) The notice of action shall include:

(a) the action the MMCO has taken or intends to take and the effective date of the action;

(b) the specific reason for the action, including clinical rationale, if any;

(c) the name of the MMCO and, if the action is being taken by its management contractor on behalf of an MMCO, the name of the management contractor;

(d) a toll-free phone number and address by which the enrollee may request general assistance from the MMCO to understand the notice of action and their rights as described in this paragraph;

(e) the enrollee's right to file an appeal with the MMCO, or with its management contractor, if applicable, and the procedures for exercising these rights, including:

(1) the timeframe in which to request an appeal;

(2) the circumstances under which an expedited resolution is available and how to request it;

(3) the enrollee's right to designate a representative to request an appeal on their behalf and how to do so;

(4) the address and toll-free phone number to request an appeal;

(5) the timeframe for resolution of standard and expedited appeals and how the enrollee will be notified of the appeal determination;

(f) the enrollee's right to a fair hearing and the procedures for exercising this right, including:

(1) the timeframe in which to request a fair hearing;

(2) the address and toll-free phone number to request a fair hearing;

(3) the enrollee's right to designate a representative to request a fair hearing on their behalf;

(4) an explanation that a request for an appeal with the MMCO or its management contractor is not a fair hearing and that a separate request for a fair hearing must be made;

(5) the specific laws and/or regulations upon which the action is based;

(6) the enrollee's right to present written and oral evidence at the fair hearing;

(7) the enrollee's right to see their case file and to request evidence prepared by the MMCO for the enrollee's fair hearing and how to make such request;

(8) the enrollee’s right to representation by legal counsel or other person; information concerning the availability of community legal services to assist the enrollee with their MMCO appeal or at the fair hearing; and the enrollee’s right to bring witnesses to the fair hearing and to question witnesses at the fair hearing;

(9) if the action or sole issue in dispute is one of those described in subdivision (c) of this section or in section 358-3.1(f) of this Title, an explanation that although the enrollee has the right to have a hearing scheduled, the hearing officer at the hearing may determine that the enrollee does not have the right to a hearing or continuation of benefits; and

(10) if the action is a restriction under the MMCO's recipient restriction program:

(i) a recipient information packet, which provides a summary of the specific reason(s) for the restriction, including, but not limited to, a summary of any review conducted of the enrollee's pattern of service utilization and evidence confirming that the enrollee's use of services meets a condition for restriction, as defined in section 360-6.4(d) of this Part or in the guidelines in the contract between the MMCO and the State.

(ii) the date the restriction will begin;

(iii) the effect and scope of the restriction;

(iv) the right of the enrollee to select a provider for the restricted service within two weeks of date of the notice of intent to restrict if the MMCO provides a choice of providers to the enrollee;

(v) the right of the MMCO to select a provider for the restricted service if a choice is not provided to the enrollee or if the enrollee does not select such provider within two weeks of being given a choice;

(vi) the right of the enrollee to change providers as provided by section 360-6.4(e) of this Part and section 360-10.7(b) of this Subpart;

(vii) the right of the enrollee to explain and present documentation upon appeal to the MMCO showing the medical necessity of the services cited in the recipient information packet;

(viii) the right of the enrollee to examine all records maintained by the MMCO or the state which identify medical assistance services paid for on behalf of the enrollee;

(ix) a statement that filing an appeal with the MMCO does not suspend the effective date of the restriction and that filing an appeal with the MMCO does not take the place of or abridge the enrollee's right to a fair hearing;

(x) the right of the enrollee to request that benefits be continued unchanged pending resolution of the fair hearing, how to request that benefits be continued and the circumstances under which the enrollee may be required to pay the costs of those services; and

(11) if an MMCO or its management contractor has determined to reduce, suspend, or terminate a service or benefit currently authorized: thecircumstances under which the enrollee's benefits will be continued unchanged; how to request that benefits be continued; explanation that a request for an MMCO appeal is not a request for the enrollee to have benefits continue; and the circumstances under which the enrollee may be required to pay the costs of continued services. Such notice shall be issued within the timeframes required by federal regulations at 42 CFR 438.404(c)(1) and sections 358-2.23, 358-3.3(a)(1), and 358-3.3(d)(1) of this Title.

(ii) The notice of action shall include other information as may be required by federal or State law or regulation, or by guidelines issued by the commissioner for MMCO actions and grievance systems.

(iii) The notices shall be issued by the MMCO within the timeframes specified in the guidelines for MMCO actions and grievance systems, issued by the commissioner, subject to all applicable requirements of State and federal statutes and regulations.

(3) A PCPCP shall notify an enrollee in writing of their right to a fair hearing and how to request a fair hearing in a manner and form determined by the department whenever a grievance determination notice is issued upholding a participating provider's decision to deny a request for a referral, or to deny or reduce a benefit or service, or to authorize a service in an amount less than requested. The grievance determination notice shall include information, and be issued within the timeframes specified in the contract between the PCPCP and the State.

(f) Responsibilities of social services districts and MMCOs

(1) For fair hearings about enrollment, disenrollment, or Medicaid eligibility, a representative of the social services district must appear at the hearing or obtain a waiver of personal appearance, and the district must comply with the other requirements of sections 358-4.2 and 358-4.3 of this Title.

(2) For fair hearings challenging MMCO determinations concerning services or treatment, the social services district may, but is not required to, appear at the fair hearing.

(3) The MMCO must prepare evidence to justify its challenged determinations. Upon request, the MMCO must provide to the enrollee or the enrollee's authorized representative copies of the documents the MMCO will present at the fair hearing. Upon request, the MMCO must also provide the enrollee or the enrollee's authorized representative access to the enrollee's MMCO case file, and provide copies of documents contained in the file. Such copies must be provided at a reasonable time before the date of the hearing. If the request for copies of documents is made less than five business days before the hearing, the social services district and the MMCO must provide the enrollee and the enrollee's authorized representative such copies no later than at the time of the hearing. Such documents must be provided without charge and must be provided to the enrollee and the enrollee's authorized representative by mail within a reasonable time from the date of the request if the enrollee or the enrollee's authorized representative request that such documents be mailed; provided however, if there is insufficient time for such documents to be mailed and received before the scheduled date of the hearing such documents may be presented at the hearing instead of being mailed.

(4) The MMCO may present the evidence at the hearing or request a waiver of personal appearance and submit written evidence. If the MMCO will not be making a personal appearance at the fair hearing, the written material must be submitted at least three business days prior to the scheduled hearing: to the office of administrative hearings (OAH); and to the enrollee or enrollee's representative, unless the material was previously provided to the enrollee or the enrollee's authorized representative in accordance with paragraph (3) of this subdivision. If the hearing is scheduled fewer than three business days after the request, the MMCO must deliver the evidence to the hearing site no later than one business day prior to the hearing; otherwise it must appear in person. If the MMCO has reversed its initial determination and provided the service to the enrollee, the MMCO may request a waiver of personal appearance and submit papers explaining that it has withdrawn the initial determination and is providing the services or treatment. Only the enrollee or the enrollee's authorized representative may withdraw his or her request for a fair hearing.

(5) The MMCO must comply with all fair hearing decisions and directives, pursuant to section 22 of the Social Services Law.

(g) Enrollees have a right to have their benefits continue unchanged ("aid continuing") under the circumstances described in section 358-3.6 of this Title and in this subdivision.

(1) Fair hearings about enrollment issues

(i) When an individual files a request for a fair hearing about an enrollment decision made by the social services district before the effective date specified in the notice from the social services district, the individual's enrollment status may remain the same pending the fair hearing.

(a) If the recipient is not enrolled and has a request for an exemption or exclusion denied, the Medicaid recipient will remain in fee-for-service Medicaid until the fair hearing decision is issued if the recipient alleges a basis for exemption or exclusion that is described in subdivision (3) of section 364-j of the Social Services Law. Otherwise, the Medicaid recipient will be required to enroll in an MMCO until the fair hearing decision is issued.

(b) If a recipient's request to enroll in an MMCO is denied, the Medicaid recipient will remain in fee-for-service Medicaid until the fair hearing decision is issued.

(c) If a recipient is enrolled and has a request for disenrollment, including a request for an exemption or exclusion, denied, the Medicaid recipient will remain enrolled in the MMCO until the fair hearing decision is issued.

(d) If an enrollee is required to disenroll from an MMCO, the enrollee will remain enrolled until the fair hearing decision is made.

(2) Fair hearings about MMCO determinations.

(i) Pursuant to 42 CFR 438.420, an enrollee may continue to receive services or treatment unchanged when an MMCO or its management contractor has terminated, suspended, or reduced a previously authorized service or treatment, or proposes to do so, if:

(a) the enrollee has filed a request for a fair hearing within 10 days of the notice of action or grievance determination notice, or by the intended date of the action, whichever is later; and

(b) there is a valid order for the treatment or service from a participating provider or from the provider originally authorized by the MMCO to provide the treatment or service; and

(c) the enrollee requests that benefits continue.

(ii) If aid continuing is granted pursuant to subparagraph (i) of this paragraph, benefits will be reinstated by the MMCO, or its management contractor, until:

(a) the enrollee or the enrollee's authorized representative withdraws the fair hearing request; or

(b) the provider order expires; or

(c) a fair hearing decision is issued that is adverse to the enrollee.

(iii) Pursuant to section 358-3.6 of this Title, an enrollee may continue to receive services or treatments unchanged, pending the fair hearing, when an MMCO has determined to restrict the recipient under the MMCO's recipient restriction program and the enrollee requests a fair hearing prior to the effective date of the restriction.

(iv) If a fair hearing decision is not in favor of the enrollee, the enrollee may be required to reimburse the MMCO for the cost of any health care services received while waiting for the fair hearing determination.

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Section 360-10.9 - Marketing/Outreach

Section 360-10.9 Marketing/Outreach

(a) An MMCO may only engage in marketing/outreach activities to the extent and in a manner approved by the department, in accordance with marketing/outreach and enrollment guidelines issued by the commissioner.

(b) MMCOs shall comply with marketing/outreach and enrollment guidelines issued by the commissioner.

(c) MMCOs shall comply with State and federal laws and implementing regulations regarding marketing/outreach.

(d) Marketing/outreach shall include but not be limited to activities of the MMCO, a subcontractor, or individuals or entities affiliated with the MMCO, during which information and material regarding Medicaid managed care or the FHP program and information about a particular MMCO's affiliated products are presented. Such information may be presented through verbal exchanges, the distribution of written materials and/or the giving away of nominal gifts, as per guidelines issued by the commissioner.

(e) MMCOs shall comply with State and federal laws and implementing regulations regarding confidentiality, including adherence to HIV, mental health, and substance abuse confidentiality requirements established under state law and implementing regulations; and ensure marketing/outreach representatives' compliance with such requirements through annual training, employee newsletters, and inclusion in the MMCO's policies and procedure manual.

(f) MMCOs shall prepare a marketing/outreach plan. Marketing/outreach plans shall not be implemented without the prior written consent of the commissioner.

(g) Each marketing/outreach plan shall include, but not be limited to:

(1) goals and general marketing/outreach strategy;

(2) a description of marketing/outreach activities;

(3) a staffing plan related to marketing/outreach including training and compensation methodology and levels;

(4) a description of how the MMCO will meet the informational needs of eligible persons including those who speak a language other than English as a first language and/or who have a hearing, visual, physical or cognitive impairment, in order to enable such persons to make a voluntary and informed choice;

(5) a description of the activities the MMCO will implement to monitor compliance with this section, including how the MMCO will ensure compliance with State and federal laws and implementing regulations regarding confidentiality; and

(6) identification of the primary marketing/outreach locations at which marketing/outreach will be conducted.

(h) Marketing/outreach materials include materials that are produced in any medium by or on behalf of an MMCO and can be reasonably interpreted as intended to market or outreach to prospective enrollees. Marketing/outreach materials are to be made available in other languages and in formats for those who have a hearing, visual, or cognitive impairment. Marketing/outreach materials may not be used by an MMCO without the prior written consent of the commissioner or his or her designee, and shall include:

(1) advertising, public service announcements, printed publications, and other broadcast or electronic messages designed to increase awareness and interest in Medicaid managed care or the FHP program and/or an MMCO's Medicaid or FHP managed care product; and

(2) any information that references the Medicaid managed care or the Family Health Plus program, is intended for general distribution, and is produced in a variety of print, broadcast, and other media types. This includes but shall not be limited to: scripts or outlines of presentations, radio advertisements, television advertisements, billboards, newspapers, leaflets, informational brochures, videos and broadcast materials, telephone book yellow page advertisements, letters, posters and the member handbook.

(i) The sites at which MMCOs may distribute marketing/outreach materials, subject to the approval of the commissioner or his or her designee, may include, but shall not be limited to: community centers; resource centers; markets; pharmacies; shopping malls; any social services district office, subject to the approval of the social services district; primary care provider offices; health centers; approved areas in hospitals and other provider sites; schools; health fairs; and other non-prohibited sites authorized by the commissioner or his or her designee where prospective enrollees are likely to gather.

(j) Prohibited marketing/outreach and enrollment practices shall include but not be limited to:

(1) marketing/outreach without the permission of the commissioner;

(2) using deceptive or coercive marketing/outreach materials and practices such as:

(i) making false statements;

(ii) deceiving, misleading, or threatening an eligible person to influence or induce selection of a particular plan;

(iii) discouraging enrollment on the basis of health status or need for health care services;

(iv) signing a person's name on the enrollment agreement without consent;

(3) making any unsolicited personal contact;

(4) conducting door-to-door solicitation or making inquiries at the home of a prospective enrollee without the prospective enrollee having requested or assented to that contact;

(5) marketing/outreach in patient rooms or at treatment sites (other than waiting areas) unless requested by the prospective enrollee;

(6) marketing/outreach in emergency rooms, including waiting areas;

(7) seeking to induce selection of an MMCO by offering gifts to prospective enrollees which exceed the value specified in the marketing/outreach guidelines;

(8) distributing new or revised marketing/outreach materials that have not been approved by the department;

(9) violating State or federal confidentiality laws and implementing regulations;

(10) providing misleading or false information to the department or the department's designee to substantiate a prospective enrollee's eligibility for enrollment; or

(11) accepting the enrollment of a person when the MMCO had access to information indicating the MMCO was not authorized to enroll the person.

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Section 360-10.10 - MMCO unacceptable practices

Section 360-10.10 MMCO unacceptable practices

(a) In addition to the unacceptable practices set forth in Part 515 of this title, it is an unacceptable practice for an MMCO or any of its subcontractors to:

(1) fail to provide or arrange for medically necessary services that the MMCO is required to provide under its contract with the State;

(2) impose premiums or charges on enrollees that are in excess of the premiums or charges allowed under the Medicaid managed care program or the Family Health Plus program;

(3) discriminate among enrollees on the basis of their health status or need for health care services. This includes requests for termination of enrollment by the MMCO, refusal by the MMCO to re-enroll an enrollee, or any practice to discourage enrollment, except when an enrollee has been disenrolled at the request of the MMCO in accordance with the guidelines in the contract between the MMCO and the State;

(4) provide false or misleading information to a prospective enrollee, health care provider, social services district, the State, or the federal government;

(5) commit one of the prohibited marketing/outreach or enrollment practices defined in subdivision (j) of section 360-10.9 of this Part;

(6) violate any other applicable requirements of section 1903 or 1932 of the federal social security act and implementing regulations; or

(7) fail to comply with the material terms of the contract with the State.

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Section 360-10.11 - MMCO sanctions and due process

Section 360-10.11 MMCO sanctions and due process

(a) Upon a determination that an MMCO has committed an unacceptable practice, the department may impose one or more of the following sanctions:

(1) civil monetary penalties;

(2) suspension of new enrollment, including auto assignments, after the effective date of the sanction; or

(3) termination of the contract between the MMCO and the State.

(b) Before imposing a sanction pursuant to this section, the department shall provide the MMCO with a notice of proposed agency action. The written notice shall specify the proposed action and the reason for such action, and shall provide the MMCO with a reasonable opportunity to submit documentation or written arguments objecting to the sanction which the department shall give due consideration.

(c) The department shall provide the social services district with notice of its intent to impose a sanction.

(d) When the department imposes one of the sanctions described in subdivision (a) of this section, the MMCO will be afforded due process in accordance with 18 NYCRR Parts 515, 516, and 519, and 42 CFR 438.710.

(e) Nothing in this section shall be deemed to prevent the commissioner from appointing temporary management of an MMCO pursuant to subdivision 23 of section 364-j of the social services law upon a determination that an MMCO has repeatedly failed to meet the substantive requirements of sections 1903(m) and 1932 of the federal social security act.

(f) Nothing in this section limits other remedies available to the State under the contract.

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Section 360-10.12 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.13 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.14 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.15 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.16 REPEALED

Effective Date: 
Wednesday, May 7, 2014

Section 360-10.17 REPEALED

Effective Date: 
Wednesday, May 7, 2014