Medicaid Contract Purchasing SpecificationsPart 10Enrolled Child SafeguardsTable of Contents §1001. Protection of Enrolled Child-Provider
Communications
L§1001. Protection of Enrolled Child-Provider Communications1 Contractor shall comply with the provisions of §1932(b)(3)(A) of the Social Security Act, 42 U.S.C. §1396u-2(b)(3)(A), which bar Contractor from prohibiting or restricting any physician or other health care professional (whether or not such provider participates in Contractor's provider network) from advising an enrolled child about the child's health status or medical care or treatment for the child's condition or disease, regardless of whether items and services for such care or treatment are covered under [drafter insert name of purchasing document], if the professional is acting within the lawful scope of practice.
§1002. Confidentiality Protections L(a) In General — Contractor shall comply with the requirements of 42 C.F.R. §§431.300 - 431.307 and [drafter insert reference to applicable State Medicaid Plan provisions or regulations and any generally applicable state confidentiality law]. K(b) Adolescents — Contractor shall ensure that any information relating to an enrolled adolescent in the possession of Contractor or a provider participating in Contractor's provider network shall not be disclosed, except information shall be disclosed if: (1) disclosure is expressly required under [drafter insert reference to any applicable state law]; (2) disclosure is required under subsection (c); or (3) in the opinion of the treating provider, disclosure of the information is necessary to avoid serious, imminent harm to the enrolled adolescent or another individual.2 (c) Public Health (1) STDs [To be supplied upon completion of confidentiality protection provisions in sample purchasing specifications for STD services] (2) HIV [To be supplied upon completion of confidentiality protection provisions in sample purchasing specifications for HIV services] (3) TB [To be supplied upon completion of confidentiality protection provisions in sample purchasing specifications for TB services]
§1003. Protections for Enrolled Children Against Liability for Payment3 L(a) Mandatory Assignment — Contractor and each provider (whether or not the provider participates in Contractor's provider network) through which Contractor furnishes or arranges for the furnishing of items or services covered under Part 1 to an enrolled child shall comply with the requirements of §1128A(a)(2)(B) of the Social Security Act, 42 U.S.C. §1320a-7a(a)(2)(B), and 42 C.F.R. §447.15 relating to acceptance of payment from Contractor for items and services furnished to an enrolled child as payment in full. L(b) Other Protections — Contractor and each provider (whether or not the provider participates in Contractor's provider network) through which Contractor furnishes or arranges for the furnishing of items or services covered under Part 1 to an enrolled child shall comply with the requirements of §1932(b)(6) of the Social Security Act, 42 U.S.C. §1396u-2(b)(6), that an enrolled child or the child's family or caregiver may not be held liable or be subject to collection efforts for: (1) debts or other obligations of Contractor or any provider participating in Contractor's provider network in the event of insolvency; (2) the cost of items and services covered under Part 1 in the event that Contractor fails to receive payment from Purchaser; (3) the cost of items and services covered under Part 1 if a provider participating in Contractor's provider network fails to receive payments from Contractor; or (4) payments to a provider that furnishes items and services covered under Part 1 to an enrolled child under a contractual, referral, or other arrangement with Contractor in excess of the amount that would be owed by the enrolled child if Contractor had furnished such items or services directly. L(c) Cost-Sharing — Contractor and each provider (whether or not the provider participates in Contractor's provider network) through which Contractor furnishes or arranges for the furnishing of items or services covered under Part 1 to an enrolled child shall comply with the requirements of §1916(a)(2)(A) of the Social Security Act, 42 U.S.C. §1396o(a)(2)(A), prohibiting the imposition of cost-sharing or similar charges on enrolled children under [drafter insert name of purchasing document].4 K(d) Third Party Liability — The requirements of this section shall not be construed to prohibit Contractor (to the extent authorized under [drafter insert reference to provision of law or contract authorizing Contractor to recover from liable third parties] ) from seeking reimbursement, consistent with §105A of Part 1A (relating to coordination of benefits), from third parties that are legally liable for the cost of a covered item or service furnished to an enrolled child. §1004. Notice of Right to Request a Fair Hearing — [RESERVED] §1005. Grievance Procedure — [RESERVED] §1006. Complaint Procedure — [RESERVED]
K§1007. Protections for Enrolled Children Against Discrimination (a) In General — Contractor shall comply with the requirements of §1301(b) of Part 13 relating to the protection of an enrolled child (and the child's family or caregiver) against discrimination. (b) Language —Contractor shall comply with the requirements of §506(b) of Part 5 relating to the protection of enrolled children who do not speak English.
K§1008. Written Policies on Enrolled Child Rights (a) Contractor shall: (1) adopt written policies regarding the rights of enrolled children enumerated in this Part and in §302(c)(19) of Part 3; and (2) ensure that Contractor's employees and providers participating in Contractor's provider network respect such rights when furnishing covered items and services to an enrolled child. KCompliance measure: Contractor shall make available to Purchaser on request a copy of the most recent version of each of the following: (1) Contractor's Provider Manual, Operations Manual, and any other directives, guidelines, or protocols transmitted in writing or electronically by Contractor to providers participating in Contractor's provider network relating to: (A) protection of enrolled child-provider communications; (B) confidentiality; (C) liability of enrolled children for payment; and (D) discrimination; (2) the subcontract or any other written agreement between Contractor and each provider participating in Contractor's provider network; and (3) Contractor's enrollee handbook and any other written information made available to enrolled children relating to: (A) protection of enrolled child-provider communications; (B) confidentiality; (C) liability of enrolled children for payment; and (D) discrimination. Endnotes
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If, as a purchaser, you are interested in purchasing pediatric care for Medicaid-eligible children from managed care organizations on a risk basis, the following language on enrolled child safeguards is for your consideration. Purchasers may also find it useful to review Negotiating the New Health System (3rd Ed.) which provides other options relating to grievance procedures used by state agency purchasers in contracting with Medicaid MCOs at Table 6.2, Vol. 2, Part 4, pages 6-110 through 6-232 (www.gwu.edu/~chsrp).
Commentary: These purchasing specifications are designed to address federal law issues in Medicaid managed care contracting. Of course, there are many state law issues that state purchasers may also wish to address. For example, one state law remedy that is sometimes used to enforce contractual guarantees under conventional insurance coverage and could have similar effect in this context is the designation of enrolled children as third party beneficiaries to the purchasing agreement. The legal doctrine of third party beneficiary holds that individuals who are not party to a contract may, under certain circumstances, enforce performance of duties in the contract on the part of the parties to the contract. While varying from state to state, this doctrine is reflected in both state court decisions and state laws, and applies to both private and public contracts. See Calamari and Perillo, Contracts 3rd Ed. 1987, §§17-4, 17-7.