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With the increase in enrollment by many Florida individuals, families, and employer groups in a health maintenance organization (HMO) health plan, there have been increases in subscriber grievances. As part of its public awareness function, the Managed Care Division of The Florida Bar Health Law Section has prepared the following information.

DEFINITION OF AN HMO

HMOs are prohibited from transacting any health insurance business other than that of HMO-type health insurance.

Q. What does this mean?

A. The HMO must provide for all non-emergency services through "participating providers," also referred to as "plan providers," or through a pre-approved non-participating provider. The provision of services is usually coordinated through a primary care physician.

Florida statutes require that an HMO provide, directly or indirectly through arrangements with health care providers, emergency care, inpatient hospital services, physician care, ambulatory diagnostic treatment, and preventive health care services on a prepaid per capita or prepaid aggregate fixed-sum basis.

If offering services through a managed care system, then the managed care system:

1. must be a system in which a primary care licensed physician is designated for each subscriber upon request of a subscriber; and
   
2. is responsible for coordinating the health care of the subscriber.

If a subscriber is female, the subscriber may select as her primary care physician an obstetrician/gynecologist who has agreed to serve as a primary physician and is in the health maintenance organization's provider network.

Q. Who chooses the primary care physician?

A. You (the subscriber) will usually select a primary care physician during the enrollment process. The selection is from a list of participating providers.

Q. How are emergency services covered?

A. Emergency medical care is handled differently because in some cases it would be impossible for you to go to the primary care physician or other participating HMO provider without jeopardizing your health. If transfer to an HMO's participating provider or designated alternative is not possible because of risk to your health or because transfer would be unreasonable, non-participating provider services generally would be covered.

Each health maintenance contract shall state that emergency services and care shall be provided to subscribers in emergency situations not permitting treatment through the health maintenance organization's providers, without prior notification to and approval of the organization.

Q. How much would the HMO pay for these out-of-plan emergencies?

A. In emergency out-of-plan instances, the HMO must cover at least 75% of the reasonable charges for covered services and supplies, subject to any applicable co-payment provisions, not to exceed $100 per claim.

Q. What constitutes an "emergency?"

A. Each HMO contract or member handbook must contain the definitions of "emergency services and care" and "emergency medical condition" as specified in the Florida Statutes, and must describe procedures for determination by the HMO of whether the services qualify for reimbursement as emergency services and care. Furthermore, each HMO contract must contain specific examples of what does constitute an emergency.

Q. What is an "emergency medical condition:"

A. According to the Florida Statutes, an "emergency medical condition" is:

1. A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain or other acute symptoms, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:
   1. Serious jeopardy to the health of a patient, including a pregnant woman or a fetus.
   2. Serious impairment to bodily functions.
   3. Serious dysfunction of any bodily organ or part.
2. With respect to a pregnant woman:
   1. That there is inadequate time to affect safe transfer to another hospital prior to delivery;
   2. That a transfer may pose a threat to the health and safety of the patient or fetus; or
   3. That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes.

Q. What are "emergency services and care?"

A. Emergency services and care means medical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists and, if it does, the care, treatment, or surgery for a covered service by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of a hospital.

DOCUMENTS

Q. What Documents Should I Receive From The HMO?

A. You should be aware of your coverage. Each HMO must provide you with a copy of your policy/subscriber contract, certificate, or member handbook (the "contract").

Every HMO contract must clearly and understandably state the following:

1. All of the services to which a subscriber is entitled under the contract;
2. Any limitations on the services or kinds of services to be provided, including any copayment feature or schedule of benefits required by the contract or by any insurer or entity which is underwriting any of the services offered by the HMO;
3. Where and in what manner the comprehensive health care services may be obtained; and
4. The HMO's method for resolving subscriber grievances.

At the time of initial enrollment and when necessary due to substantial changes to the grievance process, HMOs are required to furnish a separate and additional communication prepared or approved by the Department of Insurance notifying the contract holder of a group contract or subscriber of an individual contract of their rights and responsibilities under the grievance process.

REQUIREMENTS OF HMOs REGARDING SUBSCRIBER GRIEVANCES

Florida law requires that every subscriber receive a clear and understandable description of the method of the HMO for resolving grievances.

Q. What are the requirements?

A. Your HMOs must have a grievance procedure available to you. Resolution methods and procedures must be set forth in the contract and must notify you that you must submit a grievance within 1 year after the date of occurrence of the action that initiated the grievance, and may submit the grievance for review to the Statewide Provider and Subscriber Assistance Program panel. Your HMO must maintain records of all grievances and must report annually to the agency the total number of grievances handled, a categorization of the cases underlying the grievances, and the final disposition of the grievances.

You have a right to file a written grievance at any time. At the time of receipt of the initial complaint, the HMO must inform you of this right and provide assistance to you in preparing the written grievance.

An HMO's grievance procedure, must include, at a minimum:

1. An explanation of how to pursue redress of a grievance.
2. The names of the appropriate employees or a list of grievance departments that are responsible for implementing the organization's grievance procedure, including a list of the address and toll-free telephone numbers of the grievance department, the Agency for Health Care Administration, and the Statewide Provider and Subscriber Assistance Program.
3. The description of the process through which a subscriber may, at any time, contact the toll-free telephone hotline of the Agency for Health Care Administration ("AHCA") to inform it of the unresolved grievance.
4. A procedure for establishing methods for classifying grievances as urgent and for establishing time limits for an expedited review within which such grievances must be resolved.
5. A notice that a subscriber may voluntarily pursue binding arbitration in accordance with the terms of the contract if offered by the HMO, after completing the organization's grievance procedure and as an alternative to the Statewide Provider and Subscriber Assistance Program. Such notice shall include an explanation that the subscriber may incur some costs if the subscriber pursues binding arbitration, depending upon the terms of the subscriber's contract.
6. A process whereby the grievance manager acknowledges the grievance and investigates the grievance in order to notify the subscriber of a final decision in writing.
7. A procedure for providing individuals who are unable to submit a written grievance with access to the grievance process, which shall include assistance by the organization in preparing the grievance and communicating back to the subscriber.

Q. Can I appeal my HMO's decision?

A. Yes. Upon completion of the full grievance procedure, the HMO must notify you of your right to appeal the decision. The subscriber grievance procedure shall state that you always have the right to appeal to the Department of Insurance ("DOI") or the Department of Children and Families ("DCF"). The HMO shall provide you with written notice of the right to appeal upon completion of the full grievance procedure and supply the DOI with a copy of the final decision letter. The DOI or DCF generally will advise subscribers with grievances to follow the HMO formal grievance process for resolution prior to review by the DOI orDCF. However this does not preclude either Department from investigating any complaint prior to completion of the HMO's formal grievance process.

Q. Is there a time frame for the HMO to resolve the grievance?

A. Yes. Your grievance must be resolved in sixty days or less, unless you agrees to extend the time frame for problem solving. The 60-day period can be extended an additional 30 days if the complaint involves the collection of information outside of the service area. If additional information is necessary in order to resolve the grievance, the clock will stop; when the HMO has obtained the information, the time for completion of the grievance process shall resume.

Q. Can I meet with the grievance coordinator or committee to present my complaint in person?

A. Yes. The HMO must offer to meet with you during the formal grievance process. If you accept the offer to meet, the meeting shall be set at the administrative offices of the HMO within the service area or at a location within the service area which is convenient to you.

Q. Does the federal government also impose requirements on HMOs in Florida concerning subscriber grievances?

A. Many Florida HMOs have been approved by the U.S. Department of Health and Human Services as being "federally qualified" HMOs. Such HMOs must be organized in such a manner that provides meaningful procedures for hearing and resolving grievances between the HMO and the members of the organization.

Those HMOs are required to have grievance procedures, which are to be described by the HMO in writing in such manner that they can be easily understood by the average person who might enroll in the HMO.

Q. Is there a way to expedite the review of my grievance?

A. Yes. Your HMO must establish written procedures for the expedited review of an urgent grievance. A request for an expedited review may be submitted orally or in writing and is subject to the review procedures of relevant Florida statutes if it meets with grievance reporting requirements. However, unless the request is submitted in writing, it will be considered an appeal of a utilization review decision and not a grievance. Expedited review procedures are available to you and to the provider acting on your behalf.

Expedited reviews are evaluated by an appropriate clinical peer or peers that have not been involved in the initial adverse determination. The HMO must provide reasonable access to a clinical peer who can perform the expedited review within 24 hours after receiving a request for an expedited review. All necessary information, including the HMO's decision, shall be transmitted by the most expeditious method available. An HMO must make a decision and notify the subscriber as expeditiously as the subscriber's medical condition requires, but in no event more than 72 hours after receipt of the request for review. If the final decision is not in writing, the HMO must provide written confirmation of its decision concerning an expedited review within two working days after providing notification of that decision.

If the expedited review process does not resolve a difference of opinion between you and the HMO, you may submit a written grievance to the Statewide Provider and Subscriber Assistance Program.

Q. What about grievances that involve medical issues?

A. There must be physician involvement in reviewing medically-related grievances which should not be limited to your primary care physician, but may include at least one other physician.

HOW SUBSCRIBER GRIEVANCES CAN BE AVOIDED

A substantial portion of subscriber grievances are due to the subscriber not being familiar with the HMO's policies, procedures, type of coverage, and subscriber reliance on prior experiences with traditional health insurance. Many grievances and problems between HMOs and their subscribers could be avoided if the subscriber would read and become familiar with the contract and if communication between potential subscribers and HMO representatives (licensed insurance agents) would be more thorough in discussing benefits and coverage issues during the enrollment process.

THE DEPARTMENT OF INSURANCE STATEWIDE SUBSCRIBER ASSISTANCE PROGRAM

The DOI has adopted and implemented a program to provide assistance to subscribers. Unfavorable grievance results may be appealed to the Statewide Subscriber Assistance Program (the "Program").

The Program consists of a review panel which may periodically review, consider and recommend to the Agency for Health Care Administration ("AHCA") any actions AHCA should take concerning the types of formal subscriber grievances which have not been satisfactorily resolved after the subscriber has followed the HMO's full grievance procedure. The review panel is composed of three members from AHCA and three members from the DOI, each of which shall be appointed by their respective agencies.

The panel reviews grievances which have not been satisfied by the HMO and have been referred by AHCA and/or the DOI. The HMO and the subscriber shall have the right to present their respective cases to the panel. For purposes of the Program, a subscriber is deemed to have completed the full formal grievance procedures if the HMO has failed to process the subscriber's grievance.

Practices and Procedures of the Statewide Subscriber Assistance Panel

As part of the procedure, AHCA notifies the subscriber and the HMO of the review by written notice at least 30 days prior to the panel meeting. The parties must, no later than 14 days prior to the meeting, notify the panel as to whether they will appear in person and as to any evidence they wish to present to the panel. The panel shall notify the parties within 30 days after the meeting that it has transmitted its recommendations to AHCA. AHCA will send a written response to the parties concerning any action which it has deemed appropriate within 30 days of receipt of the panel's recommendation.

AHCA shall issue a form to the subscriber for the presentation of a grievance and a form to the HMO to respond to the subscriber grievance. AHCA reviews the completed forms and determines which cases to refer to the panel. The panel then hears the case unless the panel receives a request from the subscriber to withdraw his or her case from consideration.

The panel provides AHCA with:

1. Specific recommendations as to the types of problems concerning the HMO, and
2. An annual report concerning a summary of the types of subscriber grievances which are not satisfactorily handled by HMO grievance procedures.

As a general rule, panel meetings are open to the public. However, either the HMO or the subscriber may request a closed meeting by filing a written request with AHCA detailing the reasons for the request within 14 days of notification of the meeting. The determination as to whether the meeting should be closed is within the discretion of the panel.

CIVIL REMEDIES

In general, you must attempt to resolve your grievance or complaint through the HMO's grievance procedure process (described in your subscriber contract or member handbook). However, in emergencies, when it would be impossible to wait for the formal grievance procedure to resolve your problems, it may be necessary for you to obtain appropriate relief from a court. An attorney may be able to assist you in such situations.

Florida statutes provide that the rights afforded to HMO subscribers by statute are cumulative to those rights under general civil and common law; this means that no action of the DOI or the AHCA shall cause you to lose any right to damages, if any, or other relief in any court, if any.

Florida statutes also provide that should it be necessary to bring a legal action to enforce the terms and conditions of an HMO contract, the prevailing party is entitled to recover reasonable attorneys' fees and court costs. Except as otherwise ordered by the court or mutually agreed upon by the parties, every judgment or decree entered in any Florida court against any HMO for the recovery of money shall be fully satisfied within 60 days from and after the entry thereof or, in the case of an appeal from such judgment or decree, within 60 days from and after the affirmance of the same by the appellate court.

MEDICARE HMO MEMBERS

HMOs that have contracts with the federal government to enroll Medicare beneficiaries must comply with federal laws and regulations in addition to the state requirements explained above.

If you are a Medicare beneficiary who has enrolled in an HMO, you have certain rights and obligations under federal law. You should consider consulting your local Medicare Social Security office or attorney for advice on how best to proceed to protect your interests in the event of an adverse determination by such an HMO.

MEDICAID HMO OR PLAN MEMBERS

HMOs that have contracts with the state government to enroll Medicaid beneficiaries must comply with certain federal laws and regulations in addition to the state requirements.

If you are a Medicaid beneficiary who has enrolled in an HMO or Plan and have a grievance, you have certain rights and obligations under federal and state law. You should consider consulting your local Medicaid office or attorney for advice on how best to proceed to protect your interests.

OBTAINING DATA ON HMO GRIEVANCES BEFORE SELECTING AN HMO

A potential HMO subscriber may obtain grievance information from AHCA and DOI as a result of reporting requirements.

Q. What are the reporting requirements?

A. Florida law requires that health maintenance organizations maintain records of all grievances and that they report a description of the total number of grievances handled, a categorization of the cases underlying the grievances, and the resolution of the grievances.

EXAMPLES OF COMMON GRIEVANCES

The subscriber grievance experience of many HMOs has shown that misunderstandings are particularly likely to lead to grievances in certain areas, which are set forth below. Many of them can be avoided through mutual effort by the HMO and the subscriber to communicate effectively.

• MATERNITY COVERAGE. Most individual contracts contain a waiting period for maternity coverage. If the child is born during the waiting period, the claim will be denied. If you are planning to have children, please read and become familiar with the coverage. You should note, however, that if you were in compliance and you have a premature baby, or if there are complications with the pregnancy, coverage should be the same as with any other emergency.

  If your HMO contract provides coverage, benefits, or services for maternity or newborn care, it may not limit coverage for the length of a maternity or newborn stay in a hospital or for follow-up care outside of a hospital to any time period that is less than that determined to be medically necessary, in accordance with prevailing medical standards and consistent with guidelines for perinatal care of the American Academy of Pediatrics or the American College of Obstetricians and Gynecologists, by the treating obstetrical care provider or the pediatric care provider.

  Such HMO contracts must also provide, as an option to you, the services of nurse-midwives and midwives licensed pursuant to Florida statutes, and the services of licensed birth centers, if such services are available within the service area.

• COVERAGE FOR THE NEWBORN. You should become familiar with any pre-enrollment requirements for newborns. Many HMOs will require that there be enrollment prior to birth in order to provide coverage to the baby. By pre-enrolling you avoid the possibility of having benefits denied based on eligibility.

  If your HMO contract provides coverage, benefits, or services for maternity or newborn care, it must provide coverage for postdelivery care for a mother and her newborn infant.

  The postdelivery care must include a postpartum assessment and newborn assessment and may be provided at the hospital, at the attending physician's office, at an outpatient maternity center, or in the home by a qualified licensed health care professional trained in mother and baby care. The services must include physical assessment of the newborn and mother, and the performance of any medically necessary clinical tests and immunizations in keeping with prevailing medical standards.

• PRE-EXISTING CONDITIONS. HMOs may deny coverage, under certain circumstances, for conditions that existed prior to the moment of enrollment. These restrictions may not apply to group contracts providing coverage to employees, and are most common with individual coverage. The pre-existing condition cannot be excluded for more than 12 months after the enrollment date, or 18 months after the enrollment date if the subscriber enrolls under the contract other than during the first period in which the individual is eligible to enroll under the plan or during a special enrollment period as provided under Florida statutes.

• EMERGENCY SERVICES. Emergency services are defined by the Florida Statutes and the contract. If more information as to emergency services are needed, it would be advisable to contact your HMO's subscriber assistance representative or the DOI consumer assistance office. Most problems occur when the Subscriber or a dependent go to out-of-plan-providers and then want emergency coverage for the services. If the condition does not meet the contract's definition of "emergency," coverage may be denied.

• CO-PAYMENTS. HMOs usually have a set of co-payments for certain services. The co-payments should be listed in your contract. These may apply to prescription drugs, office visits, maternity care, and emergencies, to name a few.

• NON-PARTICIPATING PROVIDERS. When you join an HMO you agree to only obtain non-emergency (sometimes called "elective") services only from providers who have agreed to be part of the HMO's network, unless you receive specific authorization from the HMO or its agent to use a non-participating health care provider. In other words, you may not be entitled to have payment made by the HMO if you go outside of the network without a proper referral, except during an emergency where the circumstances do not allow the use of a network provider. Again, you should examine the provisions of your contract and other information provided to you by the HMO, and ask the HMO to clarify any questions you may have.

• COBRA BENEFITS. When you are covered pursuant to a group contract between an employer and an HMO (employee or dependent) you may be entitled, under a federal statute popularly known as "COBRA", to purchase coverage after termination of employment or of eligibility for previous coverage. This is a complex area, and misunderstandings may arise. You should obtain complete information from your employer's benefits department or, if appropriate, from your attorney.

• UNPAID CLAIMS. An HMO must pay a claim or any portion of a claim that the HMO does not contest or deny within 35 days after the receipt of the claim. If the HMO denies or contests your claim, it must notify you in writing within 35 days after receipt of the claim. A notice that the claim is denied or contested must identify the contested portion of the claim and the specific reason for contesting or denying the claim, and may include a request for additional information. If the HMO requests additional information, you will have 35 days after receipt of such request to provide the HMO with the requested information. The HMO must thereafter pay or deny the claim or portion of the claim within 45 days after receipt of the information. In any event, the HMO must pay or deny any claim no later than 120 days after receiving the original claim.

• DEPENDENT COVERAGE. You should consult your contract for the HMO's definition of a dependent. In many cases the IRS definition of "dependent" is used. Examples of "dependent" frequently include a spouse, an unemancipated minor child, or full time students under a certain age. You should refer to your contract for eligibility and other requirements concerning coverage of dependents (such as the payment of required premiums).

• WAITING PERIODS. There may be waiting periods for hospitalization benefits, maternity benefits, or pre-existing conditions. You should read your contract and become familiar with these.

• QUALITY OF SERVICE. These are issues that should be brought to the administrative office of the HMO. If they can't be resolved with the HMO, they may be able to be resolved with assistance from AHCA or DOI.

• AVAILABILITY OF SERVICE. These are issues that should be brought to the administrative office of the HMO. If they can't be resolved with the HMO, they may be able to be resolved with assistance from DOI or AHCA.

• OUT OF SERVICE AREA COVERAGE. Ordinarily, there is no coverage by the HMO for services received outside the geographical service area of the HMO, except for emergency services. If the Subscriber moves out of the HMO's geographical service area, the Subscriber should consult the HMO and his or her employer about the possible need to disenroll from the HMO and find an alternative health care plan.

This pamphlet is intended to provide you with general information concerning HMO subscriber grievances. Since laws, policies, and issues change over time, it is advisable for you to check with your HMO, the consumer affairs representative of the Florida Department of Insurance, the Agency For Health Care Administration, or your attorney, if you have specific questions or need additional information or assistance.

The material in this pamphlet represents general legal advice. Since the law is continually changing, some provisions in this pamphlet may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.

Revised 12/98

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