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

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:

• Local Conference, i.e., informal meeting with OMH staff;
• or State Fair Hearing before an Administrative Law Judge.

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:

• ICC Agency (ICC and/or Director) - ensures OSU is notified as soon as the Agency becomes aware that the Fair Hearing (FH) has been/will be filed; furnishes any required documentation; participates as directed in local conference or Fair Hearing; carries out provisions of Fair Hearing Decision;
• LGU (HCBS Waiver Contact) - same as ICC Agency;
• NYS Department of Health - Office of Medicaid Management - acts as the technical consultants and liaison with State Fair Hearings and LDSS, if necessary;
• OMH Children and Families - arranges and/or conducts local conferences; participates in Fair Hearings, if necessary; ensures that the terms of the decision are carried out;
• OMH Finance - Central Office - acts as the primary OMH Fair Hearing contact for State Fair Hearings staff; identifies who should be involved in the Hearing; ensures that all appropriate parties are made aware of all Hearing activity (e.g., receipt of Request, scheduling/rescheduling of Hearing dates, etc.);  follows up on receipt of decision and ensures all appropriate parties receive copies;
• OMH Counsel’s Office - arranges and/or conducts local conferences; determines who needs to attend Hearings; briefs and advises all participants; prepares Fair Hearing Summary and forwards copies to OMH Finance-CO and OMH Children and Families, as well as any persons participating in the Hearing; attends Hearings, if necessary.

Procedures

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

• Whenever an ICC Agency or the LGU becomes aware that a family intends to request, or has already filed a request for a Fair Hearing, they notify OMH Finance- OSU immediately and provide as much information as possible regarding the reason for the request.
• OSU immediately transfers the information to the OMH Counsel’s Office and the Division of Children and Families.
• As soon as a Fair Hearing request is received from the family, the State Fair Hearings in Albany contacts OMH Fair Hearings and forwards a copy of the Notice of Hearing Request. OMH Fair Hearings sends copies of this form when received to: OSU, OMH Counsel’s Office and OMH Children and Families.
• OMH Fair Hearings reviews the basis for the Hearing request and determines what OMH/ICC/LGU’s roles will be. If the Hearing request requires OMH/ICC/LGU involvement and the issue can be resolved by some action other than a Fair Hearing (e.g., local conference, submittal of additional documentation to the LDSS, etc.), OMH Fair Hearings consults with the appropriate parties and determines which actions are advisable. Hearings involving Medicaid eligibility issues unrelated to HCBS Waiver clinical status may not require OMH participation in the Hearing.
• If the issue is resolved without a Fair Hearing, OMH Fair Hearings ensures that a request for withdrawal of the Hearing request is submitted to State Fair Hearings.
• State Fair Hearings (DOH) in Albany e-mails copies of all notices regarding the scheduling of the Hearing to OMH.
• State Fair Hearings (DOH) sends a copy of the final Fair Hearing Decision to all parties involved in the Hearing and to OMH Fair Hearings  who ensures that all appropriate parties (including OMH Counsel’s Office, OMH Children and Families and OSU) receive a copy.
• OMH Children and Families ensures that the terms of the Hearing decision are carried out as prescribed and advises OMH Counsel’s Office and OMH Fair Hearings of their completion.

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.