Courts have recognized MCOs as state actors that are subject to this requirement.
Because of these Constitutional protections, a woman who is denied reproductive health services must be provided with a written notice and an opportunity to challenge the denial at a fair hearing. For example, a religious MCO that denies a request for family planning services or a tubal ligation at the time of labor and delivery must provide the patient with a timely written notice. The notice must contain an explanation of:
In addition, the right to notice and fair hearing should be triggered when the health plan denies a prior authorization request or refuses to pay for a service. Arguably, this right also should be triggered when a provider fails to furnish a needed service when the denial is not based on the provider?s determination of whether a service is medically necessary, but based on known or assumed health plan policies (which may be an incorrect assumption) or on the provider?s individual religious or moral beliefs.
Women should receive written notices about the services that they are being denied so that they can challenge illegal rules, access needed services out-of-plan, or switch to health plans or providers that do provide the full scope of reproductive health services.
1 Diane Rowland, et al., The Key to the Door: Medicaid?s Role in Improving Health Care for Women and Children, 20 Ann. Rev. Pub. Health 403, 404 (1999), citing J. Horton, Jacobs Inst. Women?s Health, State Profiles on Women?s Health (1998).
2 Id., citing National Gov.?s Ass?n, MCH Update: State Medicaid Coverage of Pregnant Women and Children (1997).
3 Rachel Benson Gold, Key Policies Emerging to Govern delivery of Family Planning in Medicaid Managed Care, 2 The Guttmacher Report on Public Policy 3 (Feb. 1999).
4 Health Care Financing Administration, U.S. Dep?t Health & Human Services, Medicaid Recipients and Vendor Payments By Sex (Table 7)(last modified Feb. 6, 1998) (reporting on the years 1994-1996).
5 Health Care Financing Administration, U.S. Dep?t Health & Human Services, Medicaid Recipients as a Percentage of Population by Age (Table 9)(last modified Feb. 6, 1998) (reporting on the years 1994-1996) (out of a total of 36.1 million Medicaid beneficiaries in 1996, 11.4 million (over 31 percent) are between the ages of 15 and 44.
6 Health Care Financing Administration, U.S. Dep?t Health & Human Services, Medicaid Managed Care Enrollment ? June 30, 1998 (last modified April 8, 1999) (Nationwide, 53.6 percent of Medicaid beneficiaries are enrolled in managed care plans and over 50 percent of the
Medicaid population in 31 states is enrolled in Medicaid managed care).
7 See, e.g., Calfornia Department of Health Servs., 1998 Managed Care Annual Statistical Report (March 1998), Table 2.3 (showing that most individuals between the ages of 15 and 45 who are in the mandatory enrollment Medi-Cal aid categories are female.).
8 Alan Guttmacher Institute, Support for Family Planning Improves Women?s Lives, (visited Jul. 11, 1999) .
9 See National Conf. Of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services (Rev. 1996).
10 42 U.S.C. § 1396u-2(b)(3)(B).
11 This language is a rule of construction within ?anti-gag? language which prohibits health plans from limiting the information that health care providers can share with their patients. 42 U.S.C. § 1396u-2(b)(3). Because MCOs cannot ?gag? providers, religious MCOs cannot
prevent health providers from disclosing information about all the services that their patients might need, either by prohibiting the provider from discussing the information or by financially punishing a provider who otherwise includes that information in an office visit.
12 Benson Gold, supra note 3 at 3-4.
13 42 U.S.C. § 1396a(a)(23)(B).
14 For a discussion on the scope of services covered by Medicaid, see Fact Sheet: Medicaid Coverage of Reproductive Health Services, Health Advocate (National Health Law Program, Los Angeles, CA), Summer 1998, at 8.
15 Goldberg v. Kelly, 397 U.S. 254, 262 (1970).
16 Id.; Moffit v. Austin, 600 F. Supp. 295, 297 (W.D. Ky. 1984); 42 C.F.R. §§ 431.200 et seq.
17 See e.g., Perry v. Chen, 985 F. Supp. 1197, 1202 (D. Ariz. 1996) (holding that Medicaid MCOs are state actors). This analysis may change, depending on the outcome of Grijalva v. Shalala, 152 F. 3d 1115 (9th Cir. Ariz.), cert. granted, judgement vacated by Shalala v. Grijalva, 119 S. Ct. 1573 (while the 9th circuit held that Medicare MCOs are state actors, the Supreme Court, upon granting a petition for writ of certiorari, remanded the case to the 9th Circuit for further consideration in light of the Court?s decision in American Manufacturers Mutual Insurance Company v. Shalala, 119 S.Ct. 977 (1999) which held that actions by the Pennsylvania State Workers? Insurance Fund could not be attributed to the state).
18 42 C.F.R. § 431.210. Additional information that must be included is: the right to request a hearing; the circumstances in which a hearing will be granted (in cases in changes of law); and the circumstances the benefits will be continued if a hearing is requested. Id.
19 Under federal Medicaid, no cost-sharing can be imposed on family planning services. 42 U.S.C. §§ 1396o(a)(2)(D), 1396o(b)(2)(D).
20 See, supra note 13 and accompanying text.
* with the assistance of Sareena Jareth, a second-year student at Boston College School of Law.