SB 553: Read the Plain Language of the Statute….Or…”Do You Understand the Words That Are Coming Out of My Mouth?”

One of my pet peeves is when people park in handicapped parking spots (especially at the grocery store…because, of course, they are just running in for one thing) without a handicapped sticker or any physical ailment. The handicapped spot is meant to be used by a person with a handicap, not the person in a hurry.  Or when the person in the grocery store has 14 items, yet still stands in the “10 items or less line.”  “10 items or less” means “10 items or less!!”  There is a reason for the theory behind “10 items or less.”  When people exploit the “10 items or less” aisle that were not intended to benefit from “10 items or less,” the very purpose of the “10 items or less line” is thwarted.

“Do you understand the words that are coming out of my mouth?”

Similarly, in law school, you learn to read statutes with what is called “The Plain Meaning Rule.”  The Plain Meaning Rule means that if the statutory language is clear on its face (prima facie) and there is no reasonable doubt as to its meaning, then the judge will simply apply the language of the statute to the case at hand.

As in, if the sign says “10 items or less,” do not stand in line with 14 items.

This week I have 5 hearings.  (I know…ugh, right?! Good thing I love my job and believe in my cause).  Well, it is Tuesday.  So far in two of my hearings, opposing counsel representing the managed care organizations (MCOs) have argued that SB 553 applies to providers and holds that providers cannot appeal grievances to the Office of Administrative Hearings (OAH).  And that OAH has no jurisdiction over the MCOs for these appeals.

What?

Ok, seriously, you are probably reading this thinking…what the heck is Knicole talking about….usually I understand her rants…but what is SB 553 and why is she arguing that it does not apply to providers….

SB 553, or Session Law 2013-397 states, in pertinent part, “Right to LME/MCO Level Appeal. – There is no right to appeal the resolution of a grievance to OAH or any other forum.”

No right to appeal to OAH?? Or any other forum?? Basically, you must appeal within the MCO…you must exhaust all administrative remedies prior to appealing to OAH.

What venue does “no-OAH-or-any-other-forum” leave? Reading the plain language of SB 553, you have a right to an MCO level appeal…nothing else (until you exhaust the appeal at the MCO).  Yet, per common  sense, if an MCO makes a decision with which you do not agree, and you appeal to the very people who made the adverse decision, the “reconsidered decision,” more times than not, will be identical to the original adverse decision. 

So for SB 553 to mandate that no right to appeal a grievance at OAH is HUGE!! And I would argue that SB 553 takes away a right to appeal at OAH that is (a) embedded with the OAH Mission Statement; and (b) found with NC General Statutes 150B.

But to whom does SB 553 apply?

Everyone?

The MCOs in the last 2 days have argued that SB 553 applies to Medicaid provider.  So to whom does SB 553 apply???

Remember the “Plain Meaning Rule?”  Let’s look at the plain language of the Session Law. Let’s start with the title.  The title of Part 1of SB 553 (the part at issue) is:

PART I. ESTABLISH GRIEVANCE AND APPEAL PROCEDURES FOR LOCAL MANAGEMENT ENTITY/MANAGED CARE ORGANIZATION MEDICAID ENROLLEES.

Medicaid enrollees.

The title does NOT say “Medicaid enrollees and Medicaid providers.”  Nope.  Enrollees.  Period.

Further, enrollee is defined as:

Enrollee. – A Medicaid beneficiary who is currently enrolled with a local management entity/managed care organization.

If the title states that it applies to “Medicaid enrollees,” then, per the title, the Session Law does NOT apply to Medicaid providers (unless they are appealing on behalf of a Medicaid recipient…standing in the shoes of the Medicaid recipient).

If the sign says “10 items or less,” it means “10 items or less.”  Simply count the number of items in your grocery cart.  If the items equal to less than or equal to 10, go to the “10 items or less line.”  If the items in your cart equal greater than 10, do not stand in the “10 items or less line.”

THE….PLAIN….LANGUAGE…..PREVAILS.

Do you understand the words coming out of my mouth???!!!

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on September 24, 2013, in DHHS, Division of Medical Assistance, Health Care Providers and Services, Legal Analysis, Legislation, MCO, Medicaid, Medicaid Appeals, North Carolina, OAH, Office of Administrative Hearings, Petitions for Contested Cases, Session Law 2013-397 and tagged , , , , , , , , , , , , , . Bookmark the permalink. 3 Comments.

  1. I attended a SMC Board of Directors meeting in August and their attorney handed out a document, “Summary of OAH Appeals Legislation (SB 553),” to their Board which states “Provider Appeals: This law clarifies that OAH has no authority over provider appeals. This means that providers may now appeal adverse decisions to the Superior Courts directly, without the interim OAH appeal process. Providers still may file notices of grievance or appeal on behalf of a Medicaid beneficiary.” It then goes on to describe the interpretation of the Medicaid Beneficiary Appeals. There was no discussion. I suspect this document has been circulated to all of the MCO’s. I suspect it originated from their Council of Community Programs. I will be attending the SMC Board of Directors meeting in September (9/26, new location) and will bring this up at Public Comment. Thank you so much. (FYI, the SMC Board of Directors, Executive Committee, and Finance meetings are videotaped by a community advocate and posted to You Tube.)

  2. I’ve read that insurers are intending to continue medical underwriting in spite of the ACA’s bar against it. They say that it only bars medical underwriting for individuals or small employer groups.

    I fail to see how this can be understood from the plain text of the law.

    (a) In general
    A group health plan and a health insurance issuer offering group or individual health insurance coverage may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan or coverage based on any of the following health status-related factors in relation to the individual or a dependent of the individual:
    (1) Health status.
    (2) Medical condition (including both physical and mental illnesses).
    (3) Claims experience.
    (4) Receipt of health care.
    (5) Medical history.
    (6) Genetic information.
    (7) Evidence of insurability (including conditions arising out of acts of domestic violence).
    (8) Disability.
    (9) Any other health status-related factor determined appropriate by the Secretary.

    (b) In premium contributions
    (1) In general
    A group health plan, and a health insurance issuer offering group or individual health insurance coverage, may not require any individual (as a condition of enrollment or continued enrollment under the plan) to pay a premium or contribution which is greater than such premium or contribution for a similarly situated individual enrolled in the plan on the basis of any health status-related factor in relation to the individual or to an individual enrolled under the plan as a dependent of the individual.

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