Implementing Online Dispute Resolution in MO HealthNet Appeals: Increasing Access to Remedies While Decreasing State Spending.

AuthorRose, Jane
  1. INTRODUCTION

    The distress associated with filing a civil lawsuit can leave an individual with a range of emotions, including despondency, humiliation, frustration, loss of self-confidence, and anxiety. (1) Generally, an individual will only file suit if they (2) suffer a serious harm. Subsequently, the individual must relive the injury at each step of the litigation. Repeatedly revisiting the injury disrupts the individual's life and often leaves them feeling isolated and helpless. (3) Now, picture an individual having to go through the entire process without the guidance of a lawyer, which is called pro se representation. (4) This only adds to the individual's stress levels. Representing one's self in a traditional court system is similar to playing chess without ever learning the rules. Both games are governed by precise, complex procedures that make it very difficult for any novice to win against an expert. Consequently, pro se individuals often fail to obtain the relief they seek, rendering all of their stress and physical suffering moot. (5)

    Indigent individuals may be able to utilize legal aid services instead of resorting to pro se representation. However, accessibility to these services is declining. (6) Budget cuts at the state and federal levels are reducing funding to these services. (7) This restricts access to civil remedies for many potential litigants, including recipients of Missouri's Medicaid system, MO HealthNet ("MOHN"). MOHN recipients must not only overcome procedural hurdles, but they often face accessibility hurdles--such as transportation--to recover remedies. (8)

    A possible way to offset the negative impacts of these cuts and hurdles is to implement an online dispute resolution ("ODR") system in a sub-department of the Missouri Department of Social Services' ("DSS") appeals process, such as the MO Healthnet Division's ("MHD") MOHN appeals. ODR utilizes technology to create flexible systems that can be tailored to facilitate a wide variety of resolution methods. (9) Because ODR is highly customizable, it could be optimized to inexpensively improve system efficiency while reducing pressure on charitable legal aid services. Should these benefits materialize, legal aid services in Missouri would be able to allocate their resources to other clients. ODR could also relieve financial stress on MOHN, which currently faces pressure to reduce expenditures. Adopting ODR could directly increase access to remedies for MOHN recipients by creating a wider variety of ways for individuals to recover remedies while simultaneously decreasing the emotional toll associated with litigation.

    This Note proceeds in four parts. Part II discusses the background of MOHN as well as the additional hardships individuals with disabilities encounter during the current appeals process and concludes with an analysis of ODR and its recent developments. Part III examines ODR systems currently in use in comparable public-sector applications. Finally, Part IV suggests that both the procedural and additional hurdles individuals with disabilities face in the traditional appeals system can be mitigated by implementing an ODR system while simultaneously decreasing state spending.

  2. LEGAL BACKGROUND

    MOHN recipients must be impoverished to qualify for benefits. (10) Correspondingly, indigent individuals are more likely to represent themselves pro se than individuals within other economic brackets. (11) Thus, MOHN recipients are more likely to represent themselves pro se if they have an issue with coverage. Unfortunately, the current DSS appeals process requires a level of evidentiary sophistication that many pro se individuals do not possess. (12)

    Many MOHN recipients must overcome procedural hurdles to access legal remedies. In addition, multiple subsets of MOHN patients, including individuals with disabilities, must conquer other hurdles unique to their situations. Section A examines MOHN's origins, eligibility requirements, and current appeals process. Section B reviews barriers individuals with disabilities encounter in the current system. Finally, this Part concludes with a summary of ODR in Section C.

    1. An Introduction to MOHN

      During almost every political campaign speech and platform, Medicaid is at the forefront of the discussion. The Federal Medicaid program and corresponding state programs directly cover over seventy-four million Americans. (13) Medicaid requires enormous expenditures to achieve this level of coverage, and without the program, millions of Americans would not be able to afford simple medical procedures.

      1. The Origins of Medicaid and the Creation of MOHN

        The federal government enacted the Medicaid program in the Social Security Amendments of 1965. (14) Federal Medicaid pays for a specified percentage of state expenditures in state Medicaid programs and imposes minimal requirements. (15) In essence, Medicaid is a fund-matching program where the federal government matches conforming state Medicaid expenses. All fifty states, the District of Columbia, and five territories receive Medicaid funding. (16) The scope of the Medicaid program varies from state to state because each state establishes its own eligibility requirements for participation. (17) In 2014, the Affordable Care Act ("ACA") expanded Medicaid funding to cover more citizens, but the ACA also mandated that states accepting additional funding must broaden Medicaid eligibility and services. (18) Missouri is one of eighteen states that did not participate in the expansion of the Medicaid program under the ACA. (19)

        Missouri's program, MOHN, is managed by MHD. (20) MHD is a subsidiary of DSS, which oversees all social divisions. (21) MHD's aim is to increase the quality of life for Missouri's vulnerable and low-income citizens through their enrollment in MOHN. (22)

      2. Eligibility Requirements to Qualify for MOHN

        As of 2017, MOHN provides services to over 990,000 Missourians. (23) Although MHD manages MOHN, prospective applicants must apply for Medicaid enrollment through another subsidiary of DSS, the Family Support Division ("FSD"). (24) The applicant must be a Missouri resident, United States Citizen, or other qualified person and may not be a current resident of a non-medical public institution. (25) FSD offers two benefit categories: (1) Family Medical and (2) Benefits. (26) Family Medical provides coverage for children, families, and pregnant women, while Benefits provides coverage for individuals who are elderly, who are blind, or who have other disabilities. (27)

        After an individual applies for one of the two categories, FSD then evaluates an individual's eligibility for MOHN. (28) Missouri maintains some of the most stringent requirements for eligibility in certain categories, including eligibility for working parents, seniors, and individuals with disabilities. (29) Each category requires an individual to satisfy unique requirements to qualify for coverage. For example, for an applicant to receive benefits as a disabled individual, they must first satisfy the Social Security Administration's definition of "disability" before being considered disabled by DSS. (30) Then, DSS requires that such applicants be "permanently and totally disabled." (31) Further, DSS requires that an individual must either make less than $10,260 a year or satisfy the medical expense exception. (32) The individual may not possess cash or other "non-exempt resources" worth more than $2000. (33) As of May 2018, there are 154,294 persons with disabilities in the MOHN program, making individuals with disabilities the largest single category of covered individuals other than children. (34)

        If an individual qualifies, MHD arranges coverage for the individual under MOHN by either a Fee-For-Service arrangement (35) or a Managed Care plan. (36) Under a Fee-For-Service arrangement, MOHN pays the medical fees directly to the physician. (37) Medicaid individuals may still appeal a denial, a limitation, or a termination of services. (38) Under a Managed Care plan, MOHN outsources health coverage to a select Managed Care Organization ("MCO"). (39) If there is a dispute in coverage or payment, it is the recipient's responsibility to appeal. (40)

      3. MOHN Appeals Process

        Many individuals wish to appeal denials, reductions, and/or terminations of service. A Managed Care participant may file an appeal when the MCO denies a requested service or payment for a service, acts to deny, limit, or terminate a pre-approved service or fails to either make or notify the individual of an adverse decision within a specified timeframe. (41) This is an administrative review, and no new evidence is presented. (42) The initial appeal may be filed after the MCO gives a Notice of Action. (43) If the MCO rules against the individual, the individual may exercise their right to a "state fair hearing." (44) Unlike those individuals with a Managed Care plan, Fee-For-Service recipients may request a state fair hearing immediately upon MOHN's denial of a claim. (45) If the hearing is unsuccessful, the individual may contest the result in the traditional court system. (46)

        A state fair hearing is an adjudication of an appeal, which is governed by DSS and processed by the hearing unit. (47) It provides an opportunity for the individual to present evidence, while an MCO appeal does not. (48) The individual, their attorney, or a "friend, relative, or anyone else of [their] choosing" must attend the state fair hearing. (49) The individual is responsible for marshalling and presenting documentary evidence and witness testimony to support their case. (50) The hearing unit permits the individual to utilize subpoenas to compel the disclosure of evidence. (51) Typically, hearings are held by teleconference, but they may be conducted in person upon request. (52) The individual must go to the office specified in the Notice of Hearing and use its telephone for the teleconference. (53) From there, the...

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