Home and Community Based Services Manual


6.00 Appeal and Hearing Process

INTRODUCTION 

Upon receipt of a verbal or written request to appeal an Adverse Action for a denial, reduction, or closure of Home and Community Based Services (HCBS), the Department of Health and Senior Services (DHSS), Division of Senior and Disability Services (DSDS) staff shall initiate the appeal process. 

PROCESS 

Anyone may make the initial request for a hearing on the participant’s behalf. However, the participant/guardian must be contacted directly to confirm the request. All contacts and attempts to contact must be documented in case notes. 

  • When the request is made by someone other than the participant/guardian, DSDS staff shall begin attempts to contact the participant/guardian within one (1) business day of receipt of a hearing request.
  • DSDS staff shall make a minimum of three (3) attempts on at least three (3) separate business days to contact the participant/guardian
  • If unable to reach the participant/guardian by the third attempt, the request for hearing shall not be processed and the adverse action shall proceed as appropriate 

When contact is made with the current or potential participant/guardian, DSDS staff shall: 

  • Discuss any additional information that would affect the reason for the adverse action
  • Ensure the participant/guardian wishes to continue the appeal process
  • When the appeal has been filed within ten (10) calendar days, notify the participant/guardian that HCBS will continue at the current level unless the participant/guardian chooses not to continue receiving services at that level 

NOTE: If the appeal is ruled in favor of DSDS, the participant/guardian and/or the participant’s estate may be liable for the cost of HCBS delivered during the appeal process. The participant/guardian shall be notified of the possible liability. 

  • Notify the participant/guardian that the proposed action will be implemented on the 11th day, if the participant/guardian does not appeal within ten (10) calendar days from the date the Adverse Action Notice was mailed
  • Notify the participant/guardian whose initial request for HCBS was denied by DSDS that they have ninety (90) calendar days from the date the Adverse Action Notice is mailed to appeal the decision, but they do not have the right to receive HCBS pending the hearing decision
  • Notify participant/guardian placed on the Independent Living Waiver (ILW) Waiting List that they have ninety (90) calendar days from the date the Waiting List Notice for ILW Services is mailed to appeal their number on the list
  • Advise the participant/guardian that a supervisory review will be conducted prior to forwarding the hearing request to the Department of Social Services (DSS), Division of Legal Services (DLS)
  • Advise the participant/guardian that DSS/DLS determines the date of the hearing and DSS/DLS will notify the participant/guardian of that date, along with any other instructions needed
  • Advise the participant/guardian copies of pertinent supporting documentation will be mailed to them

DSDS staff shall complete the Application for State Hearing form using information provided by the participant/guardian. 

DSDS staff shall notify their immediate supervisor that a hearing has been requested and the case record is ready for review in the participant’s electronic case record. 

NOTE: If a participant’s care plan is adjusted at any point during the hearing process, a new Adverse Action Notice may be required. 

If the participant/guardian indicates at any point prior to the hearing that they have obtained legal counsel, staff shall inform their supervisor and the DSDS Hearings Representative. The DSDS Hearings Representative shall submit the case to the Office of General Council (OGC) database as an Attorney General (AG) referral, include the date of the hearing, and indicate the date DSDS staff was contacted by the participant/guardian’s attorney or the date the participant/guardian informed DSDS staff they have legal counsel, whichever happens first. 

  • If DSDS staff is not contacted by the participant/guardian’s attorney by the date of the hearing, the hearing will continue without legal counsel for both DSDS staff and the participant/guardian.
  • If DSDS staff discovers the participant/guardian has an attorney present for the hearing without previous notice, DSDS staff will ask for a continuance and follow the process outlined later in this policy under DSDS Responsibilities. 

SUPERVISOR REVIEW 

The DSDS supervisor shall review all hearing requests prior to submitting the request to the DSDS Hearings Representative. The DSDS supervisor shall review the participant’s case record and all supporting documentation within three (3) business days of the date of the request for hearing. Supervisory review shall be documented in the participant’s electronic case record. 

The DSDS supervisor review shall ensure the following: 

  • Accuracy and validity of the case action
  • Compliance with policy, statutes and regulations
  • Appropriate judgment from DSDS staff

The DSDS supervisor may, at their discretion, request additional collateral contacts be made to further verify validity. This additional contact should not exceed three (3) additional business days. All contacts shall be documented in the participant’s electronic case record. 

If the DSDS supervisor review determines the adverse action is inaccurate, the DSDS supervisor shall contact DSDS staff to discuss the case. 

  • Should the adverse action need to be withdrawn, DSDS staff shall notify the participant/guardian verbally, explaining the decision to reverse the proposed adverse action.
  • Written notification shall be made by completing the Reversal of the Adverse Action Notice. HCBS shall be (re)authorized, increased, or continued as authorized.
  • If services are not restored to the previous level, a new Adverse Action Notice shall be completed and the Application for State Hearing Form shall be revised to reflect the updated information.
  • Upon completion of the case review, the DSDS supervisor shall review and sign the Application for State Hearing Form and ensure the legal reference included in the Application for a State Hearing Form matches the reference included in the Adverse Action Notice. 

When a decision is made to move forward with the hearing, the DSDS supervisor shall ensure the Adverse Action Notice, Application for State Hearing, and Agency Witness List are completed and forwarded to the DSDS Hearings Representative. Once the documents have been reviewed by the DSDS Hearing Representative, they will be forwarded to the DLS. A copy of the Application for State Hearing will be sent to the participant/guardian, or any authorized representative(s). A copy of the Application for State Hearing will be uploaded to the participant’s electronic case record. 

HEARING EXIHIBITS

Information used in making the determination for adverse action shall be provided to the participant/guardian and presented as evidence at the hearing. The DSDS Hearings Representative shall complete and forward a Cover Letter for Hearing Request listing all exhibits to the appropriate DLS office with case documentation. Each document shall be marked with the appropriate exhibit number. 

All packets shall include the following: 

Additional information used to make the determination could include, but is not limited to: 

  • HCBS Care Plan and Participant Choice Statement
  • HCBS Assessment (InterRAI HC), to include the LOC score
  • In-Home Services Worksheet
  • Consumer-Directed Services Worksheet
  • Printed Prior Authorization – Care Plan; Letter from the Department of Health & Human Services (DHHS), Centers for Medicare & Medicaid Services (CMS) regarding the reduction of any State Plan services (i.e.,Basic Personal Care, Advanced Personal Care, or Authorized Nurse Visits) for individuals residing in a Residential Care Facility (RCF) or Assisted Living Facility (ALF)
  • Any other supporting documentation (e.g., General Health Evaluation and Level of Care Recommendation from a provider nurse, letter from a physician, etc.) used to make the determination for the adverse action. 

Additional documentation shall be required when the participant’s ability to self-direct his/her own care with regard to the Consumer Directed Services/Independent Living Waiver (CDS/ILW) program is questioned. Documentation shall include: 

  • All documentation in Case Notes within the participant’s electronic case record as to why a potential participant does not have the capacity to direct his/her own care or can no longer fulfill the program responsibilities as a current CDS/ILW participant
  • Any additional information to support this determination, such as:

Additional documentation shall also be required when a decision regarding services was made based on information received from the Office of Special Investigation (OSI). For hearings alleging CDS/ILW participant fraud, the following guidelines shall be followed: 

  • The DSDS Hearings Representative shall notify the OSI investigator of the appeal, obtain their contact information and availability and DLS will notify them of the hearing date
  • OSI staff shall work with the DSDS Hearings Representative by redacting the investigative case file and providing it to the DSDS Hearings Representative for the hearing packet
  • OSI staff shall testify for DSDS regarding their findings in the investigation 

SCHEDULING A HEARING 

Upon receipt of the hearing request, DLS will register the request and schedule the hearing. 

  • A Notice of State Hearing will be sent by DLS to the participant/guardian, any authorized representative, participant’s attorney, if applicable, DHSS/Office of General Counsel (OGC), and DSDS staff listed on the Agency Witness List. The Notice of State Hearing includes the time and place of the hearing and information regarding procedures for rescheduling.
  • If DSDS staff will not be present at the FSD office for the hearing and the participant plans to appear in person, the DSDS Hearings Representative shall contact the appropriate FSD office to ensure FSD staff are available to assist the participant in gaining access to the room and connecting to the hearing conference call.
  • DSDS staff shall not contact a DLS Hearings Officer directly. If DSDS staff have questions concerning hearing logistics or scheduling, contact the DSDS Hearings Representative. The DSDS Hearings Representative shall coordinate with support staff at the appropriate DLS Regional Office for clarification.

 

PARTICIPANT/GUARDIAN AND/OR AUTHORIZED REPRESENTATIVE RIGHTS 

Pursuant to the Code of Federal Regulations (CFR), specifically 42 CFR 431.242, the participant/guardian must be given an opportunity to do the following: 

  • Examine, before the date of the hearing and during the hearing, all documents to be used by DSDS at the hearing. In addition, upon request, they have the right to examine the entire content of their case record
    • Exhibits are mailed to the participant ten (10) business days prior to the scheduled hearing. If there is a delay due to the need of additional information, the DSDS Hearings Representative will coordinate with the participant and DLS.
  • Bring witnesses to the hearing
  • Establish all pertinent facts and circumstances
  • Present an argument without undue interference
  • Question or refute any testimony or evidence, including the opportunity to confront and cross-examine any adverse witness 

The participant/guardian may withdraw the appeal request at any time prior to the hearing. This request must be received in writing and shall be forwarded to the DSDS Hearings Representative. If this occurs and a hearing request has already been forwarded to DLS, the withdrawal request shall be forwarded to the DSDS Hearings Representative. A copy shall also be uploaded to the participant’s electronic case record. 

DSDS RESPONSIBILITIES 

DSDS staff attending the hearing shall ensure they understand the process and review the documentation to be presented. They may also request assistance from the DSDS Hearing Representative if needed. The DSDS Hearing Representative can help them understand both the process and the documentation. 

  • When provider staff have completed the assessment and recommended the care plan, DSDS staff are responsible for presenting testimony to defend the case action taken based on that information.
  • DSDS shall request that provider staff with pertinent knowledge of the participant’s circumstances attend the hearing.
  • Staff must be prepared to address how that information impacted the decision. 

When DSDS is informed an attorney (or other staff from an attorney’s office) is representing the participant/guardian for their appeal, the DSDS Hearings Representative shall:

  • Notify DHSS/OGC immediately at 573/751-6005 for appropriate action
  • On the day of the hearing, if it is discovered that the participant/guardian is represented by an attorney or other staff from an attorney’s office, request a continuance of the hearing to secure legal representation.
  • Document the information in the participant’s electronic case record 

When there is a care plan change that impacts the adverse action after the hearing request information has been sent to DLS, a copy of the Reversal of Adverse Action Notice must be forwarded to the DSDS Hearings Representative.

  • If the participant/guardian is in agreement with the revised care plan and no longer wishes to appeal the original decision, DSDS staff shall inform the participant/guardian they must notify DLS in writing.
  • If the participant/guardian is not in agreement with the revised care plan, copies of the new Adverse Action Notice or Waiting List Notice for ILW Services, and Application for State Hearing form must be forwarded to DLS. 

HEARING PROTOCOL 

The burden of proof lies with the party seeking the change in status quo. DSDS has the burden of proof where there is a proposed change that adversely affects the participant’s current care plan. When a request for has been denied, the participant/guardian has the burden of proof. 

During the hearing, DSDS staff and the DSDS Hearings Representative shall testify to qualify themselves and their position, establish the case, and state other facts relevant to the proceeding. The DSDS Hearings Representative is also responsible for presenting evidence (exhibits) to support the decision.

 HEARING DECISION ISSUANCE 

The DLS Hearing Officer will issue a Decision and Order containing the Introduction and Appearances, Findings of Fact, Conclusions of Law, Decision, and Order. 

  • The law provides additional appeal rights for the participant/guardian if they are still aggrieved.
  • Instructions for these appeal rights are outlined in the Decision and Order and can be initiated by the participant/guardian through DLS. 

HEARING DECISION RECEIPT 

Once the Decision and Order is received, DSDS staff shall take appropriate action, as outlined below. 

When DSDS action is affirmed: 

  • All affected HCB services the participant received during the hearing process shall be reduced or closed as appropriate
  • DSDS staff shall notify the provider of the action taken
  • The hearing decision receipt date, or the date action is entered into the participant’s electronic case record, shall be the date of the change
  • When the hearing involves participant fraud or falsification and DSDS is affirmed, only the supervisor or higher shall check the CDS Restricted Checkbox in the participant’s electronic case record to prevent the participant from receiving CDS
    • Document CDS restriction in case notes.
    • The participant/guardian shall be informed of agency-option HCBS available to the participant and complete necessary care planning or close the case, as appropriate.
  • The participant’s number on the ILW Waiting List shall remain the same

If DSDS action is reversed: 

  • The HCB services shall continue, be increased, be reassessed, or be immediately authorized as required by the Decision and Order
  • Participant’s number on the ILW Waiting List shall be reevaluated and adjusted, as necessary
  • DSDS staff shall notify the HCBS provider of the action taken
  • The effective date shall be the date the adverse action was taken 

When the Hearing Officer includes in the Decision and Order a statement that DSDS must complete another assessment, the assessment shall be completed within fifteen (15) business days of receipt of the Decision and Order. 

The Decision and Order shall be retained in the participant’s electronic case record.

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