[Code of Federal Regulations]

[Title 42, Volume 4]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR438.102]



[Page 222-223]

 

                         TITLE 42--PUBLIC HEALTH

 

  CHAPTER IV--CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF 

                  HEALTH AND HUMAN SERVICES (CONTINUED)

 

PART 438_MANAGED CARE--Table of Contents

 

                Subpart C_Enrollee Rights and Protections

 

Sec.  438.102  Provider-enrollee communications.



    (a) General rules. (1) An MCO, PIHP, or PAHP may not prohibit, or 

otherwise restrict, a health care professional acting within the lawful 

scope of practice, from advising or advocating on behalf of an enrollee 

who is his or her patient, for the following:

    (i) The enrollee's health status, medical care, or treatment 

options, including any alternative treatment that may be self-

administered.

    (ii) Any information the enrollee needs in order to decide among all 

relevant treatment options.

    (iii) The risks, benefits, and consequences of treatment or 

nontreatment.

    (iv) The enrollee's right to participate in decisions regarding his 

or her health care, including the right to refuse treatment, and to 

express preferences about future treatment decisions.

    (2) Subject to the information requirements of paragraph (b) of this 

section, an MCO, PIHP, or PAHP that would otherwise be required to 

provide, reimburse for, or provide coverage of, a counseling or referral 

service because of the requirement in paragraph (a)(1) of this section 

is not required to do so if the MCO, PIHP, or PAHP objects to the 

service on moral or religious grounds.

    (b) Information requirements: MCO, PIHP, and PAHP responsibility. 

(1) An MCO, PIHP, or PAHP that elects the option provided in paragraph 

(a)(2) of this section must furnish information about the services it 

does not cover as follows:

    (i) To the State--

    (A) With its application for a Medicaid contract; and

    (B) Whenever it adopts the policy during the term of the contract.

    (ii) Consistent with the provisions of Sec.  438.10--

    (A) To potential enrollees, before and during enrollment; and

    (B) To enrollees, within 90 days after adopting the policy with 

respect to any particular service. (Although this timeframe would be 

sufficient to entitle the MCO, PIHP, or PAHP to the option provided in 

paragraph (a)(2) of this section, the overriding rule in Sec.  

438.10(f)(4)



[[Page 223]]



requires the State, its contracted representative, or MCO, PIHP, or PAHP 

to furnish the information at least 30 days before the effective date of 

the policy.)

    (2) As specified in Sec.  438.10, paragraphs (e) and (f), the 

information that MCOs, PIHPs, and PAHPs must furnish to enrollees and 

potential enrollees does not include how and where to obtain the service 

excluded under paragraph (a)(2) of this section.

    (c) Information requirements: State responsibility. For each service 

excluded by an MCO, PIHP, or PAHP under paragraph (a)(2) of this 

section, the State must provide information on how and where to obtain 

the service, as specified in Sec.  438.10, paragraphs (e)(2)(ii)(E) and 

(f)(6)(xii).

    (d) Sanction. An MCO that violates the prohibition of paragraph 

(a)(1) of this section is subject to intermediate sanctions under 

subpart I of this part.



[67 FR 41095, June 14, 2002; 67 FR 65505, Oct. 25, 2002]