§ 438.408 Resolution and notification: Grievances and appeals. ( a ) *Basic rule.* Each MCO, PIHP, or PAHP must resolve each grievance and appeal, and provide notice, as expeditiously as the enrollee's health condition requires, within State-established timeframes that may not exceed the timeframes specified in this section.
( b ) *Specific timeframes* — ( 1 ) *Standard resolution of grievances.* For standard resolution of a grievance and notice to the affected parties, the timeframe is established by the State but may not exceed 90 calendar days from the day the MCO, PIHP, or PAHP receives the grievance.
( 2 ) *Standard resolution of appeals.* For standard resolution of an appeal and notice to the affected parties, the State must establish a timeframe that is no longer than 30 calendar days from the day the MCO, PIHP, or PAHP receives the appeal. This timeframe may be extended under paragraph (c) of this section.
( 3 ) *Expedited resolution of appeals.* For expedited resolution of an appeal and notice to affected parties, the State must establish a timeframe that is no longer than 72 hours after the MCO, PIHP, or PAHP receives the appeal. This timeframe may be extended under paragraph (c) of this section.
( c ) *Extension of timeframes.* ( 1 ) The MCO, PIHP, or PAHP may extend the timeframes from paragraph (b) of this section by up to 14 calendar days if— ( i ) The enrollee requests the extension; or
( ii ) The MCO, PIHP, or PAHP shows (to the satisfaction of the State agency, upon its request) that there is need for additional information and how the delay is in the enrollee's interest.
( 2 ) *Requirements following extension.* If the MCO, PIHP, or PAHP extends the timeframes not at the request of the enrollee, it must complete all of the following: ( i ) Make reasonable efforts to give the enrollee prompt oral notice of the delay.
( ii ) Within 2 calendar days give the enrollee written notice of the reason for the decision to extend the timeframe and inform the enrollee of the right to file a grievance if he or she disagrees with that decision.
( iii ) Resolve the appeal as expeditiously as the enrollee's health condition requires and no later than the date the extension expires.
( 3 ) *Deemed exhaustion of appeals processes.* In the case of an MCO, PIHP, or PAHP that fails to adhere to the notice and timing requirements in this section, the enrollee is deemed to have exhausted the MCO's, PIHP's, or PAHP's appeals process. The enrollee may initiate a State fair hearing.
( d ) *Format of notice* — ( 1 ) *Grievances.* The State must establish the method that an MCO, PIHP, and PAHP will use to notify an enrollee of the resolution of a grievance and ensure that such methods meet, at a minimum, the standards described at § 438.10.
( 2 ) *Appeals.* ( i ) For all appeals, the MCO, PIHP, or PAHP must provide written notice of resolution in a format and language that, at a minimum, meet the standards described at § 438.10.
( ii ) For notice of an expedited resolution, the MCO, PIHP, or PAHP must also make reasonable efforts to provide oral notice.
( e ) *Content of notice of appeal resolution.* The written notice of the resolution must include the following: ( 1 ) The results of the resolution process and the date it was completed.
( 2 ) For appeals not resolved wholly in favor of the enrollees— ( i ) The right to request a State fair hearing, and how to do so.
( ii ) The right to request and receive benefits while the hearing is pending, and how to make the request.
( iii ) That the enrollee may, consistent with state policy, be held liable for the cost of those benefits if the hearing decision upholds the MCO's, PIHP's, or PAHP's adverse benefit determination.
( f ) *Requirements for State fair hearings* — ( 1 ) *Availability.* An enrollee may request a State fair hearing only after receiving notice that the MCO, PIHP, or PAHP is upholding the adverse benefit determination. ( i ) *Deemed exhaustion of appeals processes.* In the case of an MCO, PIHP, or PAHP that fails to adhere to the notice and timing requirements in § 438.408, the enrollee is deemed to have exhausted the MCO's, PIHP's, or PAHP's appeals process. The enrollee may initiate a State fair hearing.
( ii ) *External medical review.* The State may offer and arrange for an external medical review if the following conditions are met. ( A ) The review must be at the enrollee's option and must not be required before or used as a deterrent to proceeding to the State fair hearing.
( B ) The review must be independent of both the State and MCO, PIHP, or PAHP.
( C ) The review must be offered without any cost to the enrollee.
( D ) The review must not extend any of the timeframes specified in § 438.408 and must not disrupt the continuation of benefits in § 438.420.
( 2 ) *State fair hearing.* The enrollee must have no less than 90 calendar days and no more than 120 calendar days from the date of the MCO's, PIHP's, or PAHP's notice of resolution to request a State fair hearing.
( 3 ) *Parties.* The parties to the State fair hearing include the MCO, PIHP, or PAHP, as well as the enrollee and his or her representative or the representative of a deceased enrollee's estate.
[81 FR 27853, May 6, 2016, as amended at 85 FR 72842, Nov. 13, 2020]