Health Law JULY 2004 Pennsylvania Department of Health Issues Patient Consent Form for Provider-Initiated Grievances On June 26, 2004, the Pennsylvania Department of Health (“Department”) published a model consent form in the Pennsylvania Bulletin in an effort to end the squabbling between managed care plans and health care providers regarding the form and content of enrollee/patient consents for grievances that providers pursue on behalf of their patients. Act 68, which became effective in 1999 to provide certain protections to enrollees of managed care plans,1 permits an enrollee to file a grievance with the enrollee’s plan after a partial or full denial of coverage of a health care service for reasons relating to the medical necessity or appropriateness of the health care service. Act 68 allows a health care provider recommending or rendering the denied service to file a grievance on the patient’s behalf, with the patient’s consent. Providers have an interest in acting on the enrollee’s behalf to assure that the treatment and services they are recommending to their patients are provided and paid for by the patient’s managed care plan. Because of procedural disputes which continue to arise between managed care plans and health care providers based on “the size, shape, color and language” of the enrollee consent forms, the Department expressed concern that enrollee rights, granted under Act 68, are being lost in the shuffle. These consent 1 2 form disputes also cause a disadvantage to health care providers because of the additional delay resulting from the managed care plan’s objection to the grievance on the basis of invalid enrollee consent. A technical advisory, published in the June 19, 2004 Pennsylvania Bulletin, explains the model form. The Department published the actual form a week later in the June 26 Pennsylvania Bulletin. Both the technical advisory and the patient consent form can be found after scrolling through the “What’s Hot?” section of the Department’s home page at http:// www.dsf.health.state.pa.us/health/site/ default.asp. A provider is not required to use the model form, but if it does so, a managed care plan should not contest the validity of the form. In addition to announcing the model form, the technical advisory clarifies a potential conflict in existing grievance regulations promulgated under Act 68 by the Department. Department regulations allow a health care provider, prior to rendering a service, to obtain a patient/enrollee’s agreement to file a grievance on the enrollee’s behalf as long as the provider does not condition the delivery of the service on such permission. However, the regulations require the written consent form to explain to the enrollee “the specific service for which coverage was provided or denied” that is the subject of the consent.2 40 P.S. §§ 991.2101-991.2193 28 Pa. Code § 9.706(e)(5) Kirkpatrick & Lockhart LLP Some confusion has arisen on how to interpret these regulations, particularly for hospital admissions. If the patient consent is routinely executed upon admission, the specific services for which coverage has been denied are not yet known (because they have not been rendered yet) and may involve multiple services during the admission. In the technical advisory, the Department clarifies that an enrollee’s consent to authorize the provider to file a grievance is valid for a hospital admission if it states that it covers all services related to that admission and the date of the admission, without explicitly listing every service associated with the admission. The model form, along with the clarification in the technical advisory, should put an end to disputes by managed care plans involving the enrollee’s consent to authorize the provider to file a grievance. If the form is adopted by health care providers, it should eliminate a FOR MORE INFORMATION, please contact one of the following K&L lawyers: Boston R. Bruce Allensworth [email protected] 617.261.3119 Edward J. Brennan, Jr. [email protected] 617.951.9143 Harrisburg Ruth E. Granfors [email protected] 717.231.5835 Raymond P. Pepe [email protected] 717.231.5988 Miami Marc H. Auerbach [email protected] 305.539.3304 William J. Spratt, Jr. [email protected] 305.539.3320 Newark Stephen A. Timoni [email protected] 973.848.4020 Pittsburgh Edward V. Weisgerber [email protected] 412.355.8980 Washington Alan J. Berkeley [email protected] 202.778.9050 hurdle that providers may have been experiencing when they initiate a grievance on the patient/enrollee’s behalf. In addition, the clarification substantially simplifies how services covered by the patient’s consent may be described in a hospital consent form. COMPLAINT VS. GRIEVANCE The grievance process should not be confused with the complaint process under Act 68, even though a complaint may relate to payment for a service. As distinguished from a grievance, Act 68 permits enrollees of managed care plans to file a complaint regarding a participating provider or the coverage, operations or management policies of the managed care plan. Act 68 does not permit a health care provider to file a complaint on the enrollee’s behalf, even when it relates to coverage or payment by the managed care plan, if the substance of the dispute does not relate to medical necessity. For example, an administrative denial of payment would be the subject of a complaint under Act 68 and not a grievance. In these administrative denials, the provider must determine whether other rights exist in contract or elsewhere to give the provider a process for seeking review of the denial because the provider may not file a complaint on behalf of the enrollee. Thus, before a provider pursues a grievance on a patient’s behalf, it should confirm that the denial relates to medical necessity or appropriateness of the service. RUTH E. GRANFORS [email protected] 717.231.5835 ® Kirkpatrick & Lockhart LLP Challenge us. ® www.kl.com BOSTON ■ DALLAS ■ HARRISBURG ■ LOS ANGELES ■ MIAMI ■ NEWARK ■ NEW YORK ■ PITTSBURGH ■ SAN FRANCISCO ■ WASHINGTON ......................................................................................................................................................... This bulletin is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. © 2004 KIRKPATRICK & LOCKHART LLP. ALL RIGHTS RESERVED.
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