104 CMR 29.16 - Appeals of Denials of DMH Services and Services Planning

(1) General Provisions.

(a)104 CMR 29.16(3) contains the standards and procedures for appeals of determinations relative to clinical criteria pursuant to 104 CMR 29.04(3).

(b)104 CMR 29.16(4) contains the standards and procedures for appeals of a determination that an individual is not domiciled within Massachusetts pursuant to 104 CMR 29.04(2), a determination of need pursuant to 104 CMR 29.04(4), of major individual and community service planning and implementation decisions, and of discharges from DMH services pursuant 104 CMR 29.14.

(c) To the maximum extent possible, disagreements should be informally resolved prior to utilizing this appeal mechanism.

(d) An appeal may be initiated by any of the following individuals:

1. an individual whose application for DMH services has been denied, or his or her legally authorized representative;

2. a client or his or her legally authorized representative;

3. a person designated by the individual or client to act as his or her representative, if there is no legally authorized representative.

(2) Subject Matter of an Appeal.

(a) The following issues may be appealed pursuant to 104 CMR 29.16:

1. whether denial of an application for DMH services, based on domicile pursuant to 104 CMR 29.03, clinical criteria pursuant to 104 CMR 29.04(3), or the determination that an individual no longer meets clinical criteria pursuant to 104 CMR 29.04(4), has a reasonable basis;

2. whether the result of a determination of need pursuant to 104 CMR 29.04(4) has a reasonable basis;

3. whether the comprehensive assessment of service needs and the individual service plan, or any modifications thereof, have a reasonable basis and were developed and reviewed and implemented in accordance with the requirements of 104 CMR 29.06 through 104 CMR 29.10;

4. whether assessments and the community service plan, or any modifications thereof, have a reasonable basis and were developed, reviewed and implemented in accordance with the requirements of 104 CMR 29.06 and 104 CMR 29.11 through 104 CMR 29.13;

5. whether discharge from DMH services pursuant to 104 CMR 29.14 has a reasonable basis.

(b) The following issues are not subject to appeal pursuant to 104 CMR 29.16:

1. Decisions regarding the available capacity of DMH services;

2. Decisions regarding provision of services pursuant to 104 CMR 29.04(1)(h) and (i);

3. Decisions regarding whether DMH will offer a service outside of its customary operated or contracted service system (e.g., specialized residential services);

4. Decisions based on whether DMH has available resources to pay for or provide a particular service; and

5. Decisions regarding the provider available to provide a particular service.

(3) Appeal of Denial of an Application for DMH Services Based on Clinical Criteria. Denial of an individual's application, or a redetermination, for DMH services based on clinical criteria may be appealed as follows:

(a) Request for Resolution Conference. Within ten days of receipt of the notice of the denial of application based on clinical criteria, the individual or his or her legally authorized representative may request a resolution conference with the Area Director or designee.

1. The Area Director may accept a request for a resolution conference received after ten days for good cause shown.

2. The resolution conference may be waived by agreement between the individual or his or her legally authorized representative and the Area Director or designee, in which case the individual or his or her legally authorized representative may submit a request for reconsideration pursuant to 104 CMR 29.16(3)(c).

(b) Within ten business days of receipt of the request for a resolution conference, or at such later date as the individual or the client's legally authorized representative and the Area Director may agree, the Area Director or designee shall hold a resolution conference with the individual and his or her legally authorized representative.

1. The individual or his or her legally authorized representative may include other persons to this conference, if he or she wishes.

2. After such meeting, if the issues are not resolved, the individual or his or her legally authorized representative shall be notified that a written notice of appeal may be submitted to the Area Medical Director.

(c) Area Clinical Appeal. The individual or his or her legally authorized representative may submit a written notice of appeal to the Area Medical Director within ten days after conclusion of the informal conference or the agreement to waive such conference. The Area Medical Director may accept a notice of appeal received after ten days for good cause shown.

1. The notice of appeal must state the basis of the request for appeal of the denial of the application, and shall include any additional information which might support a reversal of the denial of the application.

2. The Area Medical Director may request a face-to-face assessment and/or such additional assessments or information as may be necessary to supplement the service authorization file.

3. The Area Medical Director shall render a written decision within 20 business days of receipt of the notice of appeal, face-to-face assessment, or receipt of such additional assessment or information as Area Medical Director may have requested, unless the time is extended by mutual consent of the Area Medical Director and the person filing the notice of appeal. If the individual declines to participate in a requested face-to-face assessment, or to provide such additional information or assessment within a reasonable period of time, then the appeal shall be considered withdrawn.

4. If the denial of the application is sustained by the Area Medical Director, a written decision letter shall be sent to the individual and his or her legally authorized representative. The decision letter shall include notice of the right to request a fair hearing pursuant to 104 CMR 29.16(5).

5. If the denial of the application is reversed by the Area Medical Director, a written decision letter shall be sent to the individual and his or her legally authorized representative, and the Area Director or designee shall proceed with a determination of need for DMH services pursuant to 104 CMR 29.04. A decision by the Area Medical Director to reverse the denial of an application is not subject to appeal.

6. In appropriate cases, the Area Medical Director may designate another psychiatrist, including the Area Child, Youth and Family Division Psychiatrist to act as Area Medical Director pursuant to 104 CMR 29.16.

(4) Appeal on All Other Appealable Matters.

(a) An appeal on matters listed in 104 CMR 29.16(2)(a) is initiated by submitting a written statement to the Area Director, indicating what is being appealed and the basis for the appeal.

(b) An appeal must be initiated within ten days after the occurrence of the action or inaction which forms the basis for the appeal. The Area Director may, however, accept an appeal after ten days for good cause.

(c) Resolution Conference.

1. The Area Director or designee shall hold a resolution conference with the client and his or her legally authorized representative within ten business days of notification of the appeal for the purpose of resolving the matter being appealed.

2. Participants in the resolution conference may also include, as applicable and appropriate, the client's case manager, the program director, and other invited persons.

3. The individual or his or her legally authorized representative may include other persons to this conference, if he or she wishes.

4. If resolution of the appeal is not achieved, the Area Director or designee shall clarify issues for appeal and shall determine the agreement, if any, of the parties as to the material facts of the case.

5. Except to the extent that statements of the parties are reduced to an agreed statement of facts, all statements of the parties made during the resolution conference shall be considered as offers in compromise, and shall be inadmissible in any subsequent hearing or court proceedings pursuant to the provisions of 104 CMR 29.16.

6. The Area Director and the appealing party may agree to waive the resolution conference; in which case, the appeal shall be forwarded to the Commissioner as a petition for a fair hearing pursuant to 104 CMR 29.16(5).

7. The results of any resolution conference in which the Area Director does not personally participate shall be subject to the Area Director's review and approval.

(5) Fair Hearing.

(a) An appealing party may petition the Commissioner for a fair hearing regarding any appealable issue not resolved pursuant to 104 CMR 29.16(3) or 104 CMR 29.16(4).

(b) A petition for fair hearing must be submitted to the Commissioner within 20 days after receipt of the Area Medical Director's decision with regard to clinical criteria pursuant to 104 CMR 29.16(3), or the completion or the waiver of the resolution conference pursuant to 104 CMR 29.16(4).

1. Within ten business days of such petition, the Commissioner or designee shall appoint a hearing officer, who shall schedule a hearing date which is agreeable to both parties. Said fair hearing shall be conducted in a manner consistent with M.G.L. c. 30A and 104 CMR 29.16(5) and shall be governed by the informal fair hearing rules of the standard adjudicatory rules of practice and procedure at 801 CMR 1.02: Informal/Fair Hearing Rules.

2. While the appeal is pending, the parties may agree to implement any part of the individual service plan or community service plan, or other matter under appeal without prejudice.

3. The fair hearing shall be conducted by an impartial hearing officer designated by the Commissioner or designee. The hearing officer may be an employee of the Department; provided however, that no person shall be designated as a hearing officer in a particular appeal who is subject to the supervision of any facility or office within the service area in which the individual applying for services is currently served or is proposed to be served.

4. The appealing party shall have the right to be represented by an individual designated by him or her, at his or her own expense.

5. The appealing party and the Department shall have the right to present any evidence relevant to the issues under appeal, and shall have the right to call and examine witnesses.

6. The appealing party shall have the right to examine all records held by the Department pertaining to the individual or client and all records that form the basis of an individual service plan or community service plan that is under appeal.

7. The fair hearing shall not be open to the public. The appealing party may invite persons of his or her choosing to attend. Invited persons may attend the hearing, as long as they do not disturb the hearing.

8. Within 20 days of the close of the hearing, the hearing officer shall prepare and submit to the Commissioner a recommended decision which shall include a summary of the evidence presented, findings of fact, proposed conclusions of law, the recommended decision and the reasons for the decision.

9. The findings of fact in the recommended decision shall be binding on the Commissioner. The Commissioner may modify the conclusions of law and recommended decision where the conclusions or decision are: in excess of the agency's statutory authority or jurisdiction; based on an error of law; arbitrary, capricious, an abuse of discretion; or otherwise not in accordance with law.

10. Within 15 business days after receipt of the hearing officer's recommended decision, the Commissioner shall issue a decision.

a. The Commissioner's decision shall include a summary of the evidence presented, findings of fact, a decision on each of the issues appealed, the reasons for such decision, and a notice of the individual's right to appeal the decision to the Superior Court pursuant to M.G.L. c. 30A.

b. The Commissioner's decision shall be mailed to the appealing party and his or her legally authorized representative.

c. Unless the Commissioner or designee orders a rehearing pursuant to 104 CMR 29.16(6), the decision of the Commissioner is the final decision of the Department on all issues.

(6) Rehearing.

(a) Within ten days of receipt of the decision of the Commissioner by the client or his or her legally authorized representative, a party aggrieved by the decision may petition the Commissioner to order a rehearing on one or more of the following grounds:

1. that new evidence was discovered by the appealing party subsequent to the hearing; and that the new evidence is such that it would be likely to materially affect the issues being appealed;

2. that the hearing was conducted in a manner which was inconsistent with 104 CMR 29.16(5) or was prejudicially unfair to the client or other appealing party;

3. that the decision is based on inappropriate standards or contains other errors of law; and

4. that the decision is unsupported by any substantial evidence.

(b) The failure of the Commissioner to grant or deny a petition for rehearing within ten business days of the submission of the petition shall be considered a denial of the petition.

(c) Upon order for a rehearing by the Commissioner, a hearing shall be conducted and a decision rendered anew, pursuant to 104 CMR 29.16(5).

(7) Standard and Burden of Proof.

(a) The standard of proof on all issues shall be a preponderance of the evidence.

(b) Burden of Proof.

1. The burden of proof on the issue of denial of an application for DMH services shall be on the individual whose application has been denied.

2. The burden of proof on the issues of whether the provisions of 104 CMR 29.06 through 104 CMR 29.11 have been complied with, and whether the comprehensive assessment of service needs, individual service plan, and community service plans are reasonable and consistent with the service needs of the client, shall be on the Department or on the DMH community service provider responsible for developing the community service plan.

3. The burden of proof on issues relating to a discharge from DMH Services, pursuant to 104 CMR 29.14, shall be on the Department.

4. The burden of proof may be met only by evidence known to the Department at the time the Department's decision was made. Evidence, whether verbal or written, not known to the Department at the time the Department's decision was made, may be admitted only upon leave of the Hearing Officer and must be provided to the other party no later than five business days prior to the date of hearing.

(8) Judicial Review. A client or his or her legally authorized representative aggrieved by a final decision of the Department pursuant to 104 CMR 29.16 may, within 30 days of receipt of the decision or a decision after a rehearing, seek judicial review of the decision, in accordance with the standards and procedures contained in M.G.L. c. 30A, § 14.

Notes

104 CMR 29.16

Amended by Mass Register Issue 1368, eff. 7/1/2018.