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Ann Marie T. Sullivan, M.D., Commissioner
Governor Andrew M. Cuomo

Home and Community Based Services Waiver
Guidance Document
Division of Children and Families

500.9

Fair Hearings Appeal Process

Policy

Right to Appeal

Whenever a child is accepted, denied or terminated from the HCBS Waiver program, written notification of the decision is sent to the child and the child’s parents/guardians. If the family feels that the decision made is wrong, e.g., they believe that the child has been wrongfully denied admission into the HCBS Waiver or has been disenrolled without just cause, they have the right to appeal that decision.

Methods of Appeal

There are two (2) ways to appeal the decision. A family can utilize one or both of these methods:

The Local Conference is a less formal proceeding that provides the opportunity for all parties to discuss the basis for the decision and clear up any misunderstandings and/or misinformation. Sometimes a local conference will produce information that will result in a change in the agency’s decision or the parent/gaurdian’s decision to contest a decision. It is hoped that most HCBS Waiver disputes can be resolved through local conferences with the ICC, LGU or other OMH staff.  However, in the event that the dispute cannot be resolved in this forum, the family is entitled to ask for a Fair Hearing. Requests for a local conference are made through the OMH Operations Support Unit (OSU). Contact information is found on the back of the Notice of Decision.

A Fair Hearing is presided over and decided by an Administrative Law Judge from the NYS Office of Temporary and Disability Assistance. Both sides are entitled to bring representatives (including a lawyer) and/or witnesses who can help explain their position.  The claimant (i.e., family) can obtain information from their HCBS Waiver file if needed to prepare/present their position by contacting the Operations Support Unit (OSU) at OMH.

Time Frames for Filing for Fair Hearing

The family has sixty (60) days from the notice date on the Notice of Decision to request a Fair Hearing. They can do this by telephone or in writing.  The necessary phone numbers and addresses for Fair Hearings offices are listed on the back of the Notice of Decision.

Roles/Responsibilities

Following is a list of all of the parties connected with the HCBS Waiver who play a role in the appeal process, as well as a brief description of the responsibilities for each group:

Procedures

Following are the guidelines for handling a request for a Fair Hearing on a HCBS Waiver case:

Note: As noted above in the Policy section, families can file for Fair Hearings in several ways: by completing the back side of Notice of Decision and mailing or faxing it to State Fair Hearings; by sending a letter to State Fair Hearings; or by calling State Fair Hearings.  If the family uses the Notice of Decision form to request the Hearing, State Fair Hearings should be able to properly identify the case as an OMH/HCBS Waiver case and send the notice to the OMH Fair Hearing contact rather than to a fair hearing contact in a LDSS. However, if the family does not use the form or does not clearly identify the case as an OMH/HCBS Waiver case when they file, it is likely that Fair Hearings will identify the case as belonging to the LDSS and send them the notices of scheduling, etc.  This can cause delays and confusion. Whenever this situation occurs, whoever discovers that a HCBS Waiver Fair Hearing is pending notifies OMH Fair Hearings to facilitate correction of the error.

Comments or questions about the information on this page can be directed to the Home and Community Based Waiver Program.