Will a Medicaid MCO Violate Federal Laws and State Regulations to Gag Providers?

Here are the rules.  The question now is, will the Pennsylvania Medicaid Managed Care Organization that proposes to prevent its treatment providers from being advocates for their clients actually put their proposal into effect?  They claim that advocacy “is not the provider’s responsibility” but that flies in the face of the law.  Will they violate two Federal laws and State Regulations to gag providers who want to be (and could be) effective advocates for their clients, especially in Grievance hearings (when the MMCO denies necessary funding and the parent of a disabled child needs all the help they can get to thwart those misguided intentions).  Here are the laws; judge for yourself if providers of treatment can be punished, sanctioned, or thrown out of a Medicaid Managed Care Organization’s provider network for providing advocacy for their clients.


42 CFR 438.102(a)(1) states an MCO, PIHP, or PAHP may not prohibit, or otherwise restrict, a health care professional acting within the lawful scope of practice, from advising or advocating on behalf of an enrollee who is his or her patient [emphasis added], for the following:

  • The enrollee’s health status, medical care, or treatment options, including any alternative treatment that may be self-administered.
  • Any information the enrollee needs in order to decide among all relevant treatment options.
  • The risks, benefits, and consequences of treatment or nontreatment.
  • The enrollee’s right to participate in decisions regarding his or her health care, including the right to refuse treatment, and to express preferences about future treatment decisions.

Further, 42 CFR 438.402(b)(ii) states a provider, acting on behalf of the enrollee and with the enrollee’s written consent, may file an appeal. A provider may file a grievance or request a State fair hearing on behalf of an enrollee, if the State permits the provider to act as the enrollee’s authorized representative in doing so.

Please note:  The State does permit it.

PA’s Program Standards and Requirements states, in order for the provider to represent the member in the filing of a grievance, the provider must obtain the written consent of the member.   A provider may obtain the member’s written permission at the time of treatment.  A provider may NOT require a member to sign a document authorizing the provider to file a grievance as a condition of treatment.  The written consent must include:

  • The name and address of the member, the member’s date of birth and identification number
  • If the member is a minor, or is legally incompetent, the name, address and relationship to the member of the person who signed the consent
  • The name, address and plan identification number of the provider to whom the member is providing consent
  • The name and address of the plan to which the grievance will be submitted,
  • An explanation of the specific service for which coverage was provided or denied to the enrollee to which the consent will apply
  • The following statement: “The member or the member’s representative may not submit a grievance concerning the services listed in this consent form unless the member or the member’s representative rescinds consent in writing.  The member or member’s representative has the right to rescind consent at any time during the grievance process.”

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