---
kind: "section"
citation: "42 C.F.R. § 438.102"
title: "42"
number: "438.102"
heading: "Provider-enrollee communications."
url: "https://uscodex.org/cfr/42/438.102"
---

# §438.102. Provider-enrollee communications.

- (a) **General rules.**
  - (1) An MCO, PIHP, or PAHP may not prohibit, or otherwise restrict, a provider 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 to decide among all relevant treatment options.**
    - (iii) **The risks, benefits, and consequences of treatment or non-treatment.**
    - (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)](#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)](#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)
    - (i) An MCO, PIHP, or PAHP that elects the option provided in [paragraph (a)(2)](#a-2) of this section must furnish information about the services it does not cover as follows:
      - (A) **To the State—** (1) With its application for a Medicaid contract.

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

      - (B) Consistent with the provisions of [§ 438.10](/cfr/42/438.10.md), to enrollees, within 90 days after adopting the policy for any particular service.
    - (ii) Although this timeframe would be sufficient to entitle the MCO, PIHP, or PAHP to the option provided in [paragraph (a)(2)](#a-2) of this section, the overriding rule in [§ 438.10(g)(4)](/cfr/42/438.10.md?p=g-4) 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 § [438.10(g)(2)(ii)(A)](/cfr/42/438.10.md?p=g-2-ii-A) and [(B)](/cfr/42/438.10.md?p=g-2-ii-B), the MCOs, PIHPs, and PAHPs must inform enrollees how they can obtain information from the State about how to access the service excluded under [paragraph (a)(2)](#a-2) of this section.
- (c) **Information requirements: State responsibility.** For each service excluded by an MCO, PIHP, or PAHP under [paragraph (a)(2)](#a-2) of this section, the State must provide information on how and where to obtain the service, as specified in [§ 438.10](/cfr/42/438.10.md).
- (d) **Sanction.** An MCO that violates the prohibition of [paragraph (a)(1)](#a-1) of this section is subject to intermediate sanctions under [subpart I](/cfr/42/subpartI.md) of this part.

## Notes

### Source

Source: 81 FR 27853, May 6, 2016, unless otherwise noted.

### Authority

Authority: 42 U.S.C. 1302.

### Source

Source: 67 FR 41095, June 14, 2002, unless otherwise noted.