Health Law Alert: Pennsylvania Department of Health Issues Patient

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
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
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://
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:
R. Bruce Allensworth [email protected] 617.261.3119
Edward J. Brennan, Jr. [email protected]
Harrisburg Ruth E. Granfors
[email protected]
Raymond P. Pepe
[email protected]
Marc H. Auerbach
[email protected] 305.539.3304
William J. Spratt, Jr. [email protected]
Stephen A. Timoni
[email protected]
Pittsburgh Edward V. Weisgerber [email protected] 412.355.8980
Washington Alan J. Berkeley
[email protected]
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.
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.
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Kirkpatrick & Lockhart LLP
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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.