Code of Massachusetts Regulations
104 CMR - DEPARTMENT OF MENTAL HEALTH
Title 104 CMR 29.00 - Application for DMH services, referral, service planning and appeals
Section 29.16 - Appeals of Denials of DMH Services and Services Planning
Universal Citation: 104 MA Code of Regs 104.29
Current through Register 1531, September 27, 2024
(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 the individual's legally authorized
representative;
2. a client or the
client's legally authorized representative;
3. a person designated by the individual or
client to act as the individual's or client's 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;
6. whether the determination regarding
provision of services made pursuant to
104
CMR 29.04(6)(a)4. 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 the individual's
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 the
individual's legally authorized representative and the Area Director or
designee, in which case the individual or the individual's 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 the individual's legally authorized
representative.
1. The individual or the
individual's legally authorized representative may include other persons to
this conference, if the individual wishes.
2. After such meeting, if the issues are not
resolved, the individual or the individual's 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 the
individual's 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 the individual's 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 the individual's 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 the client's 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 the individual's legally
authorized representative may include other persons to this conference, if the
individual 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 the individual, at the
individual's 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 the
party's 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 the appealing party's 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 the client's 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 the client's 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.
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