SCHIP: Due Process Rights
(Prepared by the Health Assistance Partnership, March 2004)
The following outline pertains to states that have SCHIP programs that are separate from their Medicaid programs
I. Matters Subject to Review
A. Eligibility issues
B. Enrollment matters, including disenrollment for failure to pay cost sharing
C. Health services determinations that is, external review of
1. Delays
2. Denials
3. Reductions
4. Suspensions
5. Terminations
6. Timely payment
…of health care services.
42 CFR § 457.1130 a-b
(a) Eligibility or enrollment matter. A State must ensure that an applicant or enrollee has an opportunity for review, consistent with §§457.1140 and 457.1150, of a— (1) Denial of eligibility; (2) Failure to make a timely determination of eligibility; and (3) Suspension or termination of enrollment, including disenrollment for failure to pay cost sharing. (b) Health services matter. A State must ensure that an enrollee has an opportunity for external review of a— (1) Delay, denial, reduction, suspension, or termination of health services, in whole or in part, including a determination about the type or level of services; and (2) Failure to approve, furnish, or provide payment for health services in a timely manner. (c) Exception. A State is not required to provide an opportunity for review of a matter described in paragraph (a) or (b) of this section if the sole basis for the decision is a provision in the State plan or in Federal or State law requiring an automatic change in eligibility, enrollment, or a change in coverage under the health benefits package that affects all applicants or enrollees or a group of applicants or enrollees without regard to their individual circumstances.
II. Written Notice of a Matter Subject to Review
A. Written notice:
1. Must give reasons for the determination and must explain the following:
a. The right to review
b. The timeframes for regular and expedited reviews
c. How to request a review
d. How enrollment can continue pending the review
2. The state must provide the notice ONLY for determinations that are subject to review and ONLY the particular types of determinations listed under I. Above have this right
42 CFR § 457.1180
A State must provide enrollees and applicants timely written notice of any determinations required to be subject to review under §457.1130 that includes the reasons for the determination, an explanation of applicable rights to review of that determination, the standard and expedited time frames for review, the manner in which a review can be requested, and the circumstances under which enrollment may continue pending review.
III. Elements of the Review Process
A. Impartiality
1. Reviews of eligibility or enrollment issues must be conducted by a person or entity not directly involved in the matter under review
2. An enrollee must be allowed an opportunity for an independent, external review for health services decision by a contractor other than the contractor responsible for the matter subject to review
42 CFR § 457.1150 a-b
(a) Eligibility or enrollment matter. The review of a matter described in §457.1130(a) must be conducted by a person or entity who has not been directly involved in the matter under review. (b) Health services matter. The State must ensure that an enrollee has an opportunity for an independent external review of a matter described in §457.1130(b). External review must be conducted by the State or a contractor other than the contractor responsible for the matter subject to external review.
B. Representation
Applicants and Enrollees must have the following opportunities:
1. To represent themselves or have a representative of their choosing
2. To review information in their files that is pertinent to the review
3. To participate fully in the review and may receive continued enrollment pending resolution of a decision to suspend or terminate enrollment
42 CFR § 457.1140
In adopting the procedures for review of matters described in §457.1130, a State must ensure that— (a) Reviews are conducted by an impartial person or entity in accordance with §457.1150; (b) Review decisions are timely in accordance with §457.1160; (c) Review decisions are written; and (d) Applicants and enrollees have an opportunity to—(1) Represent themselves or have representatives of their choosing in the review process;(2) Timely review their files and other applicable information relevant to the review of the decision; (3) Fully participate in the review process, whether the review is conducted in person or in writing, including by presenting supplemental information during the review process; and (4) Receive continued enrollment in accordance with §457.1170.
IV. Timeframe
Regulations require the following:
A. Reviews of eligibility or enrollment matters be completed within a “reasonable amount of time”
Note: There is no definition of what constitutes “a reasonable amount of time.”
B. Reviews of health services must be set in accordance with medical needs. Generally this time is within 90 calendar days
C. If an applicant or enrollee needs immediate assistance, a state must consider the need for an expedited review. Generally this time is within 72 hours of the time an enrollee requests a review.
42 CFR § 457.1180
(a) Eligibility or enrollment matter. A State must complete the review of a matter described in §457.1130(a) within a reasonable amount of time. In setting time frames, the State must consider the need for expedited review when there is an immediate need for health services. (b) Health services matter. The State must ensure that reviews are completed in accordance with the medical needs of the patient. If the medical needs of the patient do not dictate a shorter time frame, the review must be completed within the following time frames: (1) Standard timeframe. A State must ensure that external review, as described in §457.1150(b), is completed within 90 calendar days of the date an enrollee requests internal (if available) or external review. If both internal and external review are available to the enrollee, both types of review must be completed within the 90 calendar day period. (2) Expedited timeframe. A State must ensure that external review, as described in §457.1150(b), is completed within 72 hours of the time an enrollee requests external review, if the enrollee's physician or health plan determines that operating under the standard time frame could seriously jeopardize the enrollee's life or health or ability to attain, maintain or regain maximum function. If the enrollee has access to internal and external review, then each level of review may take no more than 72 hours. The State may extend the 72-hour time frame by up to 14 calendar days, if the enrollee requests an extension.
V. Limitations of the Review Process
According to Federal law:
A. The review process can consist only of a formal or informal paper review.
B. There are no provisions for the following:
1. Creating a record
2. Providing accessibility to people with special needs
3. Ensuring accessibility to interpreters for individuals with limited English proficiency (although separate federal civil rights laws should still apply)
C. Regulations do not mandate that the reviewers final decision contain the reasoning or legal authority for the review decision
These may be addressed in a particular state’s law or regulations.
SOURCES:
“Due Process Rights in the State Children’s Health Insurance Program,” Health Advocate No. 213 (Los Angeles: National Health Law Program, Summer 2003).
42 C.F.R. § 1130-1180
