The managed care contracts between the state Medicaid agency and managed care organizations have become a new and significant legal document. In business law, the period during which the parties review a contract and investigate characteristics of the other party is known as "due diligence." Advocates need to exercise due diligence on behalf of their clients as managed care contracts are being drafted, negotiated, and renegotiated.
The first step is to obtain a copy of the draft model contract or request for proposal. The state Medicaid agency should make this available to you upon request. Although not yet common, some states are posting these documents on their home pages on the World Wide Web, which you can access through: http://www.state.__ (insert two letter state abbreviation).us.
Skim the contract for a sense of what it covers. Then compare the specific provisions in the document against the Advocacy Checklist, which includes questions that Protection & Advocacy programs should ask when reviewing Medicaid contacts. In answering these questions, you should look for a "yes" answer. You can prepare written comments and suggestions to the state Medicaid agency based on the answers to the checklist. If at all possible meet in person with key personnel regarding your comments and suggestions. These key personnel include not only state Medicaid administrators, but depending on the services and populations affected by the contract, can include maternal and child health and mental health/substance abuse personnel as well.
The following are provisions that advocates should look for when they review Medicaid managed care contracts. In answering these questions, advocates should look for a "yes" answer.
Threshold Issues
1. Does the implementation schedule allow adequate time for consumers and advocates to review, investigate, and comment on the draft contract? _________
2. Are the RFP and/or draft contract readily available for consumers and advocates? _________
3. Does the implementation schedule allow adequate time for the MCOs that are awarded contracts to implement the contract provisions? _________
4. Does the implementation schedule allow adequate time for the provisions of the health benefits/enrollment manager contract to be implemented? _________
5. Are consumers involved in "readiness" reviews of MCOs? _________
6. Are the provisions of the contract mandatory for all subcontracts? _________
Marketing
7. Does the contract prohibit direct (e.g. door-to-door) marketing? _________
8. Is the MCO prohibited from offering financial incentives to induce members to enroll? ________
9. Is the MCO prohibited from engaging in misleading or confusing marketing practices? ________
10. Is the MCO prohibited from discriminating against individuals based on disability or need for health care services in their marketing? _________
11. Does the contract describe clear sanctions for violations of marketing guidelines? _________
Education, Enrollment, and Disenrollment
12. Does the contract describe the MCO's responsibility and the state's responsibility for education and outreach? _________
13. Does the contract provide that the state Medicaid agency (or an independent enrollment manager or broker) will be responsible for enrollment and/or automatic assignment and prohibit discrimination based on health status or actual or perceived need for services? _________
14. Is the MCO required to supply members with an enrollee handbook that contains descriptions of available providers and member rights and responsibilities? _________
15. Is the state required to review and authorize written materials distributed by the MCO and to monitor educational activities undertaken by the MCO? _________
16. Is the MCO required to provide member material orally and in writing, at a reading level set by the state, and in the recipient's primary language and in alternative formats, including (teletypewriter) TTY and telecommunication devices, braille, large print, and cassette? _________
17. Does the contract describe how members who do not select an MCO will be assigned to one? Does the process maintain existing relationships, to the extent possible, and take into consideration geographic access and the ability of the MCO to meet language, cultural, and health care needs? (See question 100). Does the process favor MCOs that provide high quality care? _________
18. Does the contract provide that the state Medicaid agency will be responsible for disenrollment and prohibit disenrollment by the MCO based on a missed appointment or copayment or an adverse change in health status, diagnosis or perceived diagnosis, expected or actual treatment costs, or the enrollee's attempt to exercise his/her rights under a grievance or complaint system? _________
Selection of Primary Care Provider (PCP)
19. Does each family member have the option to choose her or his own PCP from among the MCO's participating providers? _________
20. Does the MCO allow members with disabilities, chronic conditions or complex conditions to choose a specialist as their PCP? Are members informed that they may select a specialist as their PCP? If the MCO network does not include the appropriate specialist, may the member receive care from an out-of-network provider? _________
21. Does the contract ensure that children and adolescent are able to see a pediatrician or adolescent medicine specialist as their PCP? _________
22. Does the contract specify time frames for the recipient to select a PCP? Are members with disabilities given extra time to select a PCP? _________
23. Is the MCO required to inform members of the time frames and the consequences for failing to act within that time? _________
24. Will each member be provided with a list of all participating providers, including specialists, who can be selected as PCPs? _________
25. Does the contract describe how the MCO will assign PCPs to members who do not choose one? _________
26. Are enrollees permitted to change their PCP with cause at any time? _________
27. Does the contract describe how the MCO will ensure continuity of care if the member's PCP leaves the MCO's network? _________
28. Are pregnant women allowed to receive primary care from their current provider, regardless of whether their current provider is in the MCO's network, until 60 days postpartum? _________
29. Are there provisions allowing people with disabilities to maintain their current providers for a period of time to ease the transition process? _________
Initial Assessments and Ongoing Care
30. Is the MCO required to honor ongoing plans of care initiated prior to enrollment until the enrollee is evaluated by her or his PCP and a new plan of care is established? Is the PCP required to consult with the appropriate specialists in making these treatment plan evaluations? And if care is reduced or terminated under the new plan of care, does the contract provide for the member to receive a due process notice, including rights to continued benefits? _________
31. Is the MCO required to provide a face-to-face initial health assessment for all new members within the first sixty (60) days of enrollment? _________
32. For members known or appearing to be pregnant, is the MCO required to provide a face-to-face initial health assessment within fifteen (15) days of enrollment? _________
Specialists
33. Does the MCO allow members with disabilities, chronic conditions, or complex conditions to select a specialist as their PCP? _________
34. Does the contract provide for "standing referrals" to specialists (instead of requiring prior authorization for each visit) for individuals with ongoing treatment needs? _________
35. Is the MCO required to provide access to specialists with pediatric/adolescent expertise for every child or adolescent who needs and requests specialty care? _________
36. If the MCO cannot provide a choice of at least two (2) specialists or sub-specialists, including pediatric sub-specialists, qualified to meet the particular needs of the individual, is the MCO required to pay for the service out-of-network if the member requests a non-participating specialist? _____
Essential Community Providers and Coordination with Agencies
37. Is the MCO required to sub-contract with:
School-based health clinics? _________
Federally qualified health clinics? _________
Rural health clinics? _________
Traditional mental health care providers? _________
Title X providers? _________
Local health departments? _________
Homeless clinics? _________
Teen clinics? _________
Migrant health clinics? _________
Adult and children's tertiary care facilities? _________
Presumptive eligibility providers? _________
38. Is the MCO required to contract or develop coordination and referral agreements with:
Women, Infant and Children (WIC) nutrition programs? _________
Early intervention programs? _________
Child welfare programs? _________
State mental health agencies? _________
State substance abuse agencies? _________
Special education programs? _________
Teen pregnancy and parenting programs? _________
Access and Availability Standards
39. Does the contract require the MCO to guarantee 24-hour, seven-day-per-week access to qualified providers? _________
40. Does the contract specify maximum patient-to-full time equivalent (FTE) primary care physician ratio that takes into account the physician's participation in several MCOs and the physician's commercial patients? _________
41. Is the MCO required to make available a pediatrician/adolescent medicine specialist who meets travel standards for every child or adolescent who requests a pediatrician/adolescent medicine specialist as his or her PCP? _________
42. Does the contract specify primary care availability standards no more than 20 minutes for members in urban areas and 30 minutes for members in rural areas? _________
43. Is routine care available within ten days? _________
44. Is specialty care available within three weeks? _________
45. Is emergency care available immediately and at the nearest facility, whether or not that facility participates in the MCO's network and whether or not the care has been approved in advance by the MCO? _________
46. Is urgent care available within 24 hours? _________
47. Does the contract specify maximum in-office waiting times? _________
48. Is the MCO responsible for ensuring that members whose primary language is not English and members with special medical needs have access to primary care providers and specialists qualified to meet their needs? _________
Scope of Services
49. Does the contract clearly delineate which of the services included in 42 U.S.C. § 1396d(a) are the responsibility of the MCO? _________
50. Is the responsibility for transportation clearly specified and does the definition of transportation incorporate 42 C.F.R. § 440.170(a)? _________
51. Does the contract specify that the MCO is responsible for juvenile court-ordered treatment involving covered services? _________
52. Is the responsibility for medical services contained in Individualized Family Service Plans and Individualized Education Plans clearly specified? _________
53. Does the contract require case management services to facilitate needed medical, educational, social and other services? _________
54. Does it require coverage of interdisciplinary team treatment? _________
55. Does it require coverage of access to clinical studies? _________
56. Does the contract define the following terms consistent with federal/state statutes and regulations: medical necessity, family planning, EPSDT, case management, and transportation? _________
57. Does the contract define emergency according to the prudent lay person standard and 42 U.S.C. § 1395dd at the time care is sought? _________
58. Are members able to self-refer for family planning, obstetrical, gynecological, mental health, and substance abuse services? _________
59. Is the MCO prohibited from imposing prior authorization restrictions beyond those allowed under fee-for-service? _________
60. If a drug formulary is allowed, does the contract require a simple process for obtaining prescription drugs not on the formulary? _________
Early and Periodic Screening, Diagnosis and Treatment (EPSDT)
61. Does the contract incorporate federal and state statutes and regulations concerning EPSDT? ________
62. Does it incorporate Part 5 of the HCFA State Medicaid Manual (which delineates requirements for screens, e.g. lead testing, health education, and age-appropriate laboratory tests)? _________
63. Does the contract clearly delineate whether the state or the MCO is responsible for EPSDT outreach and informing? _________
64. Does the contract prohibit the MCO from placing caps and other quantitative limits on the number of services a child can receive? _________
65. Is the MCO required to report encounter data so as to allow accurate completion of the HCFA Form 416? _________
66. Is the MCO prohibited from requiring prior authorization for EPSDT screens? _________
67. Is the MCO required to meet and exceed 80 percent EPSDT participation?1 _________
68. Does the contract require the MCO to meet national professional standards of care as articulated by the American Academy of Pediatrics, Advisory Committee on Immunization Practices, American College of Obstetricians and Gynecologists, American Medical Association Guidelines for Adolescent Preventive Screening, and American Academy of Child and Adolescent Psychiatry's Work Group on Quality Issues? _________
Medical Necessity
69. Is the definition of medical necessity clear in all contracts and subcontracts? _________
70. Is it clear that the MCO will be responsible for providing medically necessary covered services as required by law? _________
71. Does the definition of medical necessity provide that the treating physician will determine whether the care is medically necessary? _________
72. Does the contract recognize and incorporate EPSDT and Medicaid definitions of medical necessity (42 U.S.C. § 1396d(r)(5) and 42 C.F.R. § 440.230(b))? _________
73. Does the contract include a separate definition of medical necessity for behavioral health care that is consistent with federal and state law and that recognizes the role of member/family, least restrictive treatment settings, and wraparound services? _________
74. Does the contract require the MCO to pay for an independent second opinion when the MCO or the MCO physician determines that a service, treatment, or equipment is not medically necessary for a person with a chronic or disabling condition or disease? _________
Family Planning Services
75. Does the contract allow members to obtain family planning services from any provider, in or out of the network, without a referral? _________
76. Is the MCO required to inform members, including adolescents, of access to family planning services, in or out of network, without a referral? _________
77. Is the MCO required to keep family planning services confidential, even if the patient is a minor? _________
Special Needs
78. Does the contract explicitly require the MCO to comply with the Americans with Disabilities Act, the Rehabilitation Act, and Title VI of the Civil Rights Act? Is compliance required of all subcontractors? _________
79. Does the contract require the MCO to provide information both orally and in writing in the recipient's primary language and in alternative formats, including TTY and telecommunication devices, braille, large print and cassette? _________
80. Does the contract require the MCO to employ multicultural and multilingual staff, representative of the racial and ethnic diversity of its members? _________
81. Does the contract prevent discrimination on the basis of health status, illness, or perceived needs? _________
82. Is the MCO required to make special accommodations for children in foster care, children in state custody, adopted children, and homeless individuals? _________
83. Does the contract address the ability of minors to consent to medical treatment without parental consent? _________
Due Process
84. Are the MCO and its participating providers required to post a description of due process rights in a conspicuous location in the reception area of each provider's office? _________
85. Is the MCO required to inform members how to obtain assistance in filing a grievance and of the potential availability of free legal services? _________
86. Is the MCO required to notify members of timeframes for plan grievance procedures, state fair hearings, and expedited reviews? _________
87. Is the MCO required to inform members of their right to a state fair hearing without exhausting MCO grievance procedures? _________
88. Is the timeframe for a plan grievance procedure no more than 30 days? _________
89. Is there an expedited review process for urgent health matters, and does the process provide for a state decision within 48 hours? _________
90. Is the MCO required to provide notice to the member and the member's representative, if applicable, any time a service is denied, reduced or terminated? _________
91. Does the required notice explain why the service was denied, reduced, or terminated and give the specific legal support for that action? _________
92. Does the required notice explain the right to continued services pending a final decision? ______
93. Does the required notice explain the right to seek a second opinion at the MCO's cost? ______
94. Does the required notice explain the due process rights, including the right to a state fair hearing without exhausting MCO grievance procedures? _________
95. If a service is denied, reduced, terminated, or delayed and the MCO fails to give adequate and timely notice, is the MCO required to provide the complete service (unless the member's primary care provider or specialist, as appropriate, indicates that the service would not be in the member's best interest)? _________
Financial and Organizational Requirements
96. Does the contract prohibit financial arrangements between the MCO and its providers that may inappropriately limit care? _________
97. Does the contract prohibit gag clauses in MCO sub-contracts? _________
98. Does the contract require the MCO to report administrative costs and profits as separate line items? Does the contract place a cap on MCO profits? A cap on administrative costs? _________
99. Does the contract have higher capitation rates for members with more extensive needs? _____
100. Are payment methodologies structured to reward MCOs that develop expertise in caring for individuals who need enabling services (e.g., transportation, translation) or who have expensive health care needs? _________
101. Does the contract incorporate state insurance department solvency requirements and federal solvency requirements, 42 C.F.R. § 434? _________
102. Is cost sharing proscribed? _________
103. Does the contract require the MCO to meet state insurance/licensing certification standards? _________
104. Does the contract require NCQA accreditation for MCOs? _________
105. Does the contract incorporate and implement federal physician incentive plan rules, 42 C.F.R. § 434.67? Does the contract require the MCO and its sub-contractors to notify members of the incentive plans that are being used? _________
106. Are specific conditions and services defined legally and clinically and grouped into actuarially manageable service packages for which prices can be set? _________
107. Will participating plans be required to show that they are investing capital in improvement of services, treatment protocols, and development of best practices? _________
108. Is the MCO required to disclose compensation arrangements to the public? _________
109. Is the MCO required to disclose the disenrollment rate from the MCO? _________
110. Is the MCO required to disclose its profit level? _________
111. Is the MCO informed that the results of state consumer satisfaction surveys and external medical and financial audits will be publicly disclosed? _________
112. Is the MCO informed that the number, type, and resolution of complaints and formal legal actions will be publicly disclosed? _________
113. Is the MCO informed that data regarding compliance with performance measures will be publicly disclosed? _________
Reporting Requirements
114. Is data stratified for gender, race, disability, and age? Do the sampling techniques account for the cultural and linguistic populations served by the MCO? (For example, if 20 percent of the MCO enrollment is African American and the MCO is measuring mammography screening, then 20 percent of the mammography percentage should be African American as well).2 _________
115. Does the contract require focused studies and 100 percent chart reviews of persons with special health care needs? _________
116. Is the MCO required to adhere to the reporting requirements specified in the Health Plan Employer Data and Information Set (HEDIS) 3.0? _________
Quality and Performance Improvement Goals
117. Does the contract include outcome measures and performance goals for EPSDT, emergency room utilization, cultural competence, and coordination of non-capitated/out-of-MCO services? Do outcomes improvements anticipate closing the disparity in health status between white and minority members? _________
118. If mental health and substance abuse services are included, does the contract anticipate improvement in the penetration and duration of these services? _________
119. Does the state withhold a percentage of the capitation rate until the MCO demonstrates that minimum performance standards have been met? _________
120. Is the MCO required to implement a quality assurance and improvement plan? _________
121. Is the MCO's contracting status measured against reported HEDIS 3.0 data? _________
122. Does the contract incorporate the quality assurance measures contained in HCFA's Quality Assurance Reform Initiative (QARI)?3 _________
123. Is the MCO required to review the performance of its contracting providers and to ensure the correction of any deficiencies? _________
Consumer Involvement
124. Does the contract notify the MCO that the state will conduct an annual consumer satisfaction survey? _________
125. Does the contract notify the MCO of the availability of an independent hotline for members to call with problems, questions, and complaints? _________
126. Is the MCO required to provide a consumer relations office for member questions, problems, and complaints? _________
127. Is the MCO required to report complaints to an independent ombudsprogram? _________
128. Is the MCO required to hire member advocates to assist members? _________
129. Is the MCO required to include consumers in work groups, advisory boards, or other "accountability" loops? _________
130. Does the contract require the MCO's written information and materials to be pretested by consumers to ensure that the material is appropriate? _________
131. Is the MCO required to employ Medicaid recipients?4 _________
Enforcement
132. Does the contract explicitly recognize Medicaid recipients as the intended third party beneficiaries of the contract? _________
133. Does the contract explicitly recognize Medicaid recipients as the intended third party beneficiaries of subcontracts and provider agreements entered into by the MCO? _________
134. Does the contract broadly specify the state's right to recoup or withhold payments, impose corrective action plans, suspend further enrollment, exact damages, or terminate the contract for noncompliance with the terms of the contract and other legal documents? _________
Contracts with Health Benefit Managers (HBMs)
135. Does the HBM contract emphasize face-to-face counseling? _________
136. Does the contract require the HBM to maintain and communicate accurate information regarding the participating and available primary and specialty care providers and their locations and business hours? _________
137. Are benefit counselors required and/or given incentives to have a low default/automatic assignment rate? _________
138. Are timeframes communicated to the recipient for selection of an MCO? _________
139. Are individuals with disabilities given extra time to select an MCO? _________
140. Does the HBM contract describe the default assignment process? Does the process maintain existing provider relationships to the extent possible and take into account geographic access and the ability of the MCO to meet the language, cultural, and health care needs of the individual? _______
141. Does each family member have the option to choose his or her own MCO, particularly where different MCOs are necessary to ensure that family members with disabilities or special needs can continue existing provider relationships? _________
142. Are recipients whose membership in an MCO is terminated due to ineligibility automatically re-enrolled in the same MCO upon resumption of eligibility within ninety days, unless the recipient selects a new MCO? _________
143. Is the HBM required to provide information written and orally in the recipient's primary language, at a state-set reading level, and in alternative formats, including TTY and telecommunication devices, braille, large print, and cassette?5 _________
144. Does the contract specify whether the state or the HBM is responsible for outreach and education to Medicaid-eligible individuals who have not enrolled in Medicaid, especially children and adolescents? _________
145. Does the contract specify the responsibility of the state and the HBM for EPSDT outreach and informing? _________
146. Does hiring of health benefits counselors reflect the cultural and linguistic population begin served? _________
147. Does the contract exclude the health benefits counselor from complaint and dispute resolution activities? _________
Notes
1. Eighty percent was the performance target for 1995. U.S. Dep't of Health and Human Services Health Care Financing Administration, State Medicaid Manual § 5360 (November 1993).
2. Statistics regarding health status show a wide disparity between whites and minorities. For discussion of research on racial disparities in the delivery of health care, see, e.g., National Health Law Program, Racial Discrimination in America's Health Care System, 27 Clearinghouse Rev. 371 (Special 1993). Public disclosure of data, by race, will encourage MCOs to narrow racial disparities. These reporting requirements will also allow for more effective enforcement of Title VI of the Civil Rights Act, which prohibits federal fund recipients (such as Medicaid-participating MCOs and providers) from engaging in activities that have the effect of discriminating on the basis of race, color, or national origin. 42 U.S.C. § 2000d; 45 C.F.R. § 80 et seq.
3. U.S. Dep't of Health and Human Services, Health Care Quality Improvement System for Medicaid Managed Care: A Guide for States (July 6, 1993) (includes measures related to internal quality assurance, physician credentialing, clinical and health service indicators, and external quality review).
4. See 42 U.S.C. § 1396a(a)(4)(B) (requiring state Medicaid agencies to provide for the training and effective use of staff, "with particular emphasis on the full-time or part-time employment of recipients and other persons of low income, as community service aids in the administration of the plan, and for the use of nonpaid or partially paid volunteers in a social service volunteer program in providing services to applicants and recipients.")
5. For a checklist of questions that the health benefits manager's educational materials should address, see National Health Law Program, Questions that Patient Educational Materials Need to Answer (1996)(available from National Health Law Program, Los Angeles, Ca.).