(1)
Right to Appeal to DALA. If the individual or their
parent or guardian disputes the determination of the IRT, in whole or in part,
such person may file an appeal with DALA, which conducts an adjudicatory
proceeding in accordance with
801
CMR 1.01: Formal Rules and
orders any necessary relief consistent with state or federal law.
(2)
Timeliness of
Appeal. Any appeal to DALA must be filed within 30 days of receipt
of the IRT's written report, as applicable.
(3)
Grounds for
Appeal. The permissible grounds for an appeal to DALA under
101 CMR
27.00 are
(a) a
dispute about the IRT's determinations issued under
101
CMR 27.07(4)(a), subject to
the limitations in
101
CMR 27.07(3); or
(b) a dispute about the co-chairs'
determinations issued under
101
CMR 27.07(5), if the IRT is
unable to reach consensus and the co-chairs issue a determination for the IRT
review, subject to the limitations in
101
CMR 27.07(3).
(4)
Nonappealable
Actions. The following actions do not constitute grounds for an
appeal to DALA under
101 CMR
27.00:
(a) the
co-chair's decision that a case is ineligible for IRT review;
(b) any decision of the co-chairs, or the
secretary of EOHHS, related to expenditures from the Interagency Services
Reserve Fund;
(c) a determination
by a state agency of
1. ineligibility for
services provided by a state agency;
2. unavailability of any service that the
state agency is not required to provide under its applicable statutes or
regulations; or
3. the
applicability of agency policy and practices relating to eligibility for and
delivery of services, including activities related to the maintenance of
waiting lists;
(d)
appeals related to any MassHealth action. All such appeals must be made to the
Office of Medicaid Board of Hearings pursuant to
130 CMR
610.000: MassHealth: Fair Hearing
Rules. For an individual enrolled in a MassHealth managed care plan,
such appeals must be made to the managed care plan directly, subject to review
at the Office of Medicaid Board of Hearings in accordance with the provisions
of 130 CMR
610.000. A provider's opinion or clinical
determination that a service is not medically necessary does not constitute an
action by the MassHealth agency and is not subject to appeal to the Office of
Medicaid Board of Hearings or DALA; and
(e) appeals related to a dispute concerning
the free appropriate public education or special education services to which an
individual is entitled under the IDEA and M.G.L. c. 71B. All such appeals must
be made to the BSEA as provided in § 1415 of the IDEA, M.G.L. c. 71B, and
603
CMR 28.08(3), or may be
raised with DESE's Problem Resolution System Office in accordance with
34 C.F.R. §§
300.151 through
300.153 and
603
CMR 28.08(2).
