OAR 410-141-3900: Grievances & Appeals: Contested Case Hearings

(1) A Managed Care Entity (MCE) shall have a system in place to ensure its members and providers acting on behalf of a member can request that the Authority review a final adverse determination by the MCE in a contested case hearing: (a) Contested case hearings are conducted pursuant to ORS 183.411 to 183.497 and the Attorney General’s Uniform and Model Rules of Procedure for the Office of Administrative Hearings, OAR 137-003-0501 to 137-003-0700. Processes for contested case hearings are provided in OAR 410-120-1860 Contested Case Hearing Procedures; (b) If a provider filed an appeal on behalf of a member, as permitted in OAR 410-141-3890, the provider may subsequently request a contested case hearing on behalf of the member in accordance with the procedures in this rule; (c) Appeals brought on the provider’s own behalf are not subject to this rule, but are governed by OAR 410-120-1560. (2) The member may not proceed to a hearing without first completing an appeal with their MCE and receiving written notice that the MCE adverse benefit determination is upheld, subject to the exception under section (3) of this rule, below: (a) The member shall file a hearing request with the Authority using form OHP 3302 or any other Authority-approved hearing request form no later than 120 days from the date of the MCE’s notice of appeal resolution. The Authority shall consider the request timely with the exception as noted for expedited hearing requests in OAR 410-141-3905; (b) If the member sends a contested case hearing request directly to the Authority and the Authority determines that the member qualifies for a contested case hearing, the MCE shall submit the required documentation to the Authority’s Hearings Unit within two (2) business days of the Authority’s request; (c) If the member files a request for an appeal or contested case hearing with the Authority prior to the member filing an appeal with the MCE, and if the request does not satisfy section (3) below, the Authority shall transfer the request to the MCE and provide notice of the transfer to the member. The MCE shall: (A) Review the request immediately as an appeal of the MCE’s notice of adverse benefit determination; (B) Respond to the request for the appeal in accordance with 410-141-3890. (d) If a member sends the contested case hearing request to the MCE after the MCE has already completed the initial plan appeal, the MCE shall: (A) Date-stamp the hearing request with the date of receipt; and (B) Submit the following required documentation to the Authority within two business days: (i) A copy of the hearing request notice of adverse benefit determination, and notice of appeal resolution; (ii) All documents and records the MCE relied upon to take its action, including those used as the basis for the initial action or the notice of appeal resolution, if applicable, and all other relevant documents and records the Authority requests as outlined in detail in OAR 141-410-3890. (3) If, after a member properly files an appeal, the MCE fails to adhere to the notice and timing requirements in 42 CFR § 438.408, the Authority may consider the member to have exhausted the MCE’s appeals process for purposes of requesting a contested case hearing, as provided in OAR 410-141-3890(3). The Authority shall notify the MCE of the Authority’s decision to allow the member access to a contested case hearing. (4) Effective February 1, 2012, the method described in OAR 137-003-0520(8)-(10) is used in computing any period of time prescribed in OAR chapter 410, divisions 120 and 141 applicable to timely filing of requests for hearing. However, due to operational conflicts, the procedures needing revision, and the expense of doing so, the provisions in OAR 137-003-0520(9) and 137-003-0528(2) that allow hearing requests to be treated as timely based on the date of postmark do not apply to MCE member contested case hearing requests. (5) The parties to a contested case hearing include, as applicable: (a) The member and their representative; or (b) The legal representative of a deceased Member’s estate; and (c) The MCE. (6) The Authority shall refer the hearing request along with the notice of adverse benefit determination or notice of appeal resolution to the Office of Administrative Hearings (OAH) for hearing. Contested case hearings are requested using Authority form MSC 443 or other Authority-approved appeal or hearing request forms. (7) The Authority shall issue a final order or otherwise resolve the case ordinarily within ninety (90) days from the date the MCE receives the member’s request for appeal. The ninety (90) day count does not include the days between the date the MCE issued a notice of appeal resolution and the date the member filed a contested case hearing request. The Authority must issue the final order within this time frame except in unusual circumstances, documented in the member’s record, when: (a) The agency cannot reach a decision because the member requests a delay or fails to take a required action; or (b) There is an administrative or other emergency beyond the Authority's control. (8) For reversed hearing resolution services: (a) For services not furnished while the appeal or hearing is pending. If the Administrative Law Judge reverses a decision to deny, limit, or delay services that were not furnished while the appeal was pending, the MCE shall authorize or provide the disputed services promptly and as expeditiously as the member's health condition requires but no later than 72 hours from the date it receives notice reversing the determination. The MCE must take the following steps: (A) notify the Member, the member’s representative (if applicable) both orally and in writing and the member’s provider in writing of the available services and how to access them; (B) Enter the prior authorization into the system or adjust the encounter data claim representing the service. (b) For services furnished while the appeal or hearing is pending. If the Administrative Law Judge reverses a decision to deny authorization of services, and the member received the disputed services while the appeal was pending, the MCE or the State shall pay for those services in accordance with the Authority policy and regulations. (c) Any party to the hearing can file written exceptions or present argument to the Proposed and Final Order within ten working days after the date the Proposed Order is issued by the ALJ (see OAR 410-120-1860). If written exceptions are filed the Order does not become a Final Order on the 11th work day and the services shall not be provided until the Final Order is issued by OHA. Once a Final Order is issued and if the decision remains overturned the services shall be authorized or provided to the member within 72 hours of the MCE receiving the Final Order.