TennCare Discrimination Complaint Procedures

A complainant has six (6) months (180 calendar days) from the date of the alleged act of discrimination to file a written complaint with OCRC. A discrimination complaint is not considered filed until it is received by OCRC; the U.S. Department of Health and Human Services, Office of Civil Rights (“OCR”); the U.S. Department of Justice (“DOJ”); the U.S. Equal Employment Opportunity Commission; or other referral entity.

The following methods are the most common ways for reporting discrimination complaints to OCRC. The first reporting method consists of a complainant filing a complaint in real-time on TennCare OCRC’s webpage, emailing or mailing a complaint to OCRC, calling TennCare Connect, or working with his/her managed care organization (“MCO”) or another subrecipient or covered entity (collectively “subrecipient”) to complete a complaint form and send it to OCRC. The second method consists of a complainant mailing or emailing a complaint to a TennCare subrecipient. In such a case, the subrecipient has two (2) business days to send that discrimination complaint to OCRC.

TennCare’s subrecipients of federal financial assistance are required to accept complaints and help TennCare members and other individuals report acts that could be discriminatory. This help may include assisting the person with obtaining and/or completing the complaint form. TennCare’s discrimination complaint forms are located on:

• OCRC’s webpage (Real-time and PDF forms are available),
• The TennCare and CoverKids Member Handbook,
• The TennCare and CoverKids Provider Manual,
• Certain subrecipient’s websites (like a MCO), and
• TennCare Connect (can assist with completing forms over the phone) 855-259-0701.

The procedure below describes the TennCare discrimination complaint review and resolution process.

When OCRC receives a complaint, OCRC determines whether it is a complaint involving TennCare, including any services, benefits, or activities provided by a subrecipient. In addition, OCRC reviews the complaint for several issues including:

• Was the complaint filed within the six (6) month (180 calendar days) deadline?
• Is the required information present on the form (i.e. is the complaint complete)?
• Is the complainant’s issue within OCRC’s authority for review?
• Is the complaint a civil rights claim that involves a quality of care/service issue?
• Did the complainant submit an Agreement to Release Information form? and
• Is the complaint frivolous?

Should the complaint involve one of TennCare’s programs or activities, OCRC logs the complaint and assigns it a case number. Pursuant to 28 C.F.R. § 42.408, OCRC maintains a log of the filed discrimination complaints. In addition to the items set forth in the initial investigation report, the log includes a summary of the complainant’s claim including the legal status, such as, race, disability, or age; the date the case was closed or resolved; the outcome of the complaint; and any other important information, such as, evidence due dates. The federal agency responsible for enforcement of a particular complaint, such as, OCR may request a report of that log and retains review responsibility over the investigation and disposition of each complaint under its jurisdiction.

Within ten (10) calendar days of OCRC’s receipt of a complaint, an acceptance letter is typically sent to the complainant, unless special circumstances exist. The acceptance letter informs the complainant that they must submit any evidence that supports their claims or other information that they would like OCRC to review for their complaint, within thirty- two (32) calendar days from the date on the acceptance letter.

If the complainant did not sign the complaint agreement to release information form (“release”), the acceptance letter will include a copy of the release. Should the complainant decide to sign the release, the complainant has thirty-two (32) calendar days from the date on the acceptance letter to mail the signed release to OCRC. The release informs the complainant that not signing the release may hinder the investigation of the complaint and may cause their complaint to be closed.

The release allows OCRC and the person’s health plan to look at or ask others about protected health information (PHI). PHI includes any information used to identify you, your health, and medical history. OCRC only looks at or asks for PHI if it is needed to investigate a discrimination report.

Although a signed release is not always needed to investigate a complaint, some complaints cannot be fully investigated without a signed release. However, before the case is closed for this reason, OCRC will contact the complainant to find out if they would like to sign the release.

During the investigation and resolution of the complaint, documents and other information may be shared only when such information is necessary to further the investigation of the complaint. Disclosures of information may hinder or compromise an investigation and may violate certain laws (i.e. privacy, security, or confidentiality) and attorney-client privilege. OCRC’s policy and practice is not to reveal information about complaints, active or closed.

When OCRC receives a complaint that is not complete, OCRC sends the person a missing information letter. This letter asks the person to provide OCRC with the missing information that is needed to complete the complaint. This information must be provided to OCRC within thirty-two (32) calendar days from the date of the letter or the complaint is closed. For example, the letter may request that the person explain who allegedly discriminated against them. If the missing information is provided to OCRC within the timeframe, OCRC will continue the completion of its initial review.

For a complaint to be considered complete it will include the following information:

1) A signed, written explanation of what has happened,

2) A way to contact the complainant,

3) The basis of the complaint, such as. race, disability, age and the identification of the person or group injured by the alleged discrimination,

4) Identification of the person or entity alleged to have discriminated, and

5) Sufficient information to understand the facts that led the complainant to believe discrimination occurred and when it happened.

For complaints filed with OCRC under Tenn. Code Ann. T. C. A. § 4-3-1707, the Tennessee Department of Human Resources (“DOHR”) may review the case for applicability under Title VI of the Civil Rights Act of 1964. Should a person file a complaint under Tenn. Code Ann. T. C. A. § 4-3-1707 with DOHR, DOHR shall refer the complaint to the Tennessee Attorney General for further action. For state complaints in which another state entity has established jurisdiction over that complaint and requested assistance from OCRC, OCRC will submit a brief summary of the investigation that contains the basis for the allegation, pertinent facts from the investigation, and an explanation of the conclusion(s) reached.

Should OCRC receive a complaint that it does not have jurisdiction to decide, OCRC will make reasonable attempts to refer the complaint to the entity with jurisdiction over the complaint.

When OCRC receives a complaint, it will first seek to informally resolve the issue. Should OCRC determine that the complaint warrants further investigation, OCRC will decide whether to investigate the complaint by itself or if a subrecipient will assist in the initial investigation. In most cases, OCRC is the only investigator.

In cases where OCRC is the only investigator, it will issue a Request for Information (“RFI”) to the named respondent (the party who the complaint is against/or who committed the alleged discriminatory act), which contains a deadline for submitting the response. The RFI gathers information about the issues in the complaint, lets the respondent tell their side of the story, and collects compliance information.

Once OCRC finishes reviewing the information and evidence submitted by parties and witnesses, it may request follow-up information from the parties or witnesses and conduct interviews. These interviews are typically conducted virtually. Virtual options might include phone or video calls, online chat, email, or web conferencing platforms like Webex or Teams. Interviews may be recorded. Not all complaints need interviews and can be resolved based on submitted evidence or voluntary agreements (section c below explains this process).

If OCRC requests that a subrecipient collaborate with OCRC on an investigation, the subrecipient normally has five (5) business days from the date of the request to begin working with OCRC on the investigation. This deadline can be extended.

As part of its duties for resolving and remedying discrimination in TennCare’s programs, OCRC will review the evidence and determine whether discrimination occurred. The complaint determination shall utilize the “preponderance of the evidence standard.” This means that enough evidence exists to create a reasonable belief that it is more likely true than not true.

Except for cases involving sexual harassment, OCRC may exercise its discretion to contact the parties and implement a voluntarily resolution agreement (“VRA”) to resolve a complaint. With the VRA process, OCRC will work with the party to implement the corrective action and resolve the complaint. Many VRAs consist of staff trainings and policy creation and implementation. The complainant is notified that the respondent agreed to resolve the issue.

In cases where a VRA is not needed or appropriate, the complaint determination is provided to both parties in a Letter of Findings. The Letter of Findings informs both parties of their review rights and that the complainant has a right to file a complaint with U.S. Department of Health and Human Services’, Office of Civil Rights and as appropriate any other oversight entity.

If a complaint is not a valid case of discrimination, the complaint is closed. When a complaint is determined to be a valid act of discrimination, a corrective action plan (“CAP”) is provided to the responsible party.

A discrimination complaint resolution CAP may include items like an approved nondiscrimination training on relevant discrimination topics, mandatory appointment of a civil rights coordinator, periodic reporting to OCRC, or hiring nondiscrimination consultants to review the subrecipient’s practices. If the respondent submits deliverables like a nondiscrimination training material for use with a CAP, OCRC must review and approve the deliverable prior to implementation. Once a discrimination complaint resolution CAP has been approved and given to the respondent for implementation, the respondent will submit evidence that the CAP was completed. Upon the successful implementation of the CAP, OCRC shall close the case and notify the respondent of the closure.

The complainant or the respondent has sixty (60) days from the date of the Letter of Findings to request that OCRC review its decision, ask that an agency employee outside of OCRC review the Letter of Findings, or appeal to HHS. If the complainant or the respondent requests OCRC to review its own decision, this process includes asking OCRC to look at information that they did not originally submit to OCRC. However, if such a request for additional review is made, OCRC can only review the information provided as it relates to the original report of discrimination. Neither a complainant nor respondent can add new claims to the review request. The reasons for a review request must originate from:

• The report or
• The investigation made into that report.

The Requestor must set forth the mistakes OCRC made during the review of the discrimination complaint (i.e. failing to interview a key witness) or that OCRC misapplied the civil rights laws to the facts of the case (i.e. an exception to the law or wrong evidence standard used). The Requestor must allege that the correction of these mistakes would change OCRC’s decision. A party that is only conveying that he/she is unhappy with or disagrees with the findings is not considered to be making a request for a review.

The Requestor must provide the following information as part of the review request:

• The part of OCRC’s decision you disagree with and why this decision goes against the facts found in the discrimination complaint or the laws,
• The fact(s) in the discrimination complaint investigation that OCRC did not review or misinterpreted that led to the decision and how the correction of these mistakes would change OCRC’s decision,
• The names and contact information of any important witnesses that the Requestor informed OCRC about who were not contacted. The Requestor must explain why the witness information would have changed OCRC’s decision, and
• Tell OCRC the law that you think was not reviewed or wrongly applied by OCRC.

During a request for review, OCRC will analyze the laws and any evidence submitted by the parties. This decision shall be issued in a Letter of Reconsideration and mailed to the parties.

The TennCare Program does not discriminate against people because of their race, color, national origin including limited English proficiency and primary language, age, disability, religion, or sex. If you need reasonable modifications or think you were treated differently, or discriminated against you can file a grievance (complaint) with TennCare’s Office of Civil Rights Compliance at HCFA.fairtreatment@tn.gov, 310 Great Circle Road Floor 3W, Nashville, TN 37243, or calling 615-507-6474 (TRS 711). Need help filing a grievance? Call TennCare Connect at 855-259-0701.

Records Disposition Authorization (“RDA”) 11497 Division of TennCare’s Federal Administrative Discrimination Grievance and Reasonable Accommodation Records sets out the criteria for the retention and destruction of complaint records. Complaint records are kept in an electronic format. The five (5) year retention period begins when the complaint is closed by OCRC. After 5 years, OCRC shall review the respective electronic record and determine whether the record completed its retention period and can be destroyed using state-approved methods.

OCRC’s investigation procedures are based on federal law and the following federal guidance:

• U.S. Department of Justice’s Title VI and Title IX Legal Manuals
• U.S. Department of Justice’s Investigation Procedures Manual for the Investigation and Resolution of Complaints Alleging Violations of Title VI and other Nondiscrimination Statutes
• U.S. Department of Health and Human Services, Office of Civil Rights’ Case Resolution Manual for Civil Rights Investigations, and
• TennCare’s Methods of Administration with HHS