What Should I Know About Fair Hearing and Appeals

What is a Fair Hearing and Appeal?

A fair hearing and appeal is a formal process that an individual or surrogate may use when a problem arises regarding mental retardation services. This process is an opportunity to present both sides of the issue under appeal to an objective hearing examiner who is independent from the local County Mental Health and Mental Retardation Program (County Program), Administrative Entity (AE), Intermediate Care Facility for Persons with Mental Retardation (ICF/MR), and the Office of Developmental Programs.

There are two appeal paths that may be followed for mental retardation services:

  • Appeal to the County Program through Local Agency Law. Individuals who wish to register for mental retardation services and recipients of base-funded services through the county program have the right to appeal under Local Agency Law 2 Pa.C.S. §§ 551-555 (relating to Local Agency Law) when services through the local County Program are denied, reduced, or terminated.
  • Appeal to Department of Human Services, Bureau of Hearings and Appeals. When issues arise with services provided through the Person/Family Directed Support (P/FDS) or Consolidated Waivers (Waivers) or issues arise with determinations of ICF/MR level of care that cannot be resolved with the local AE or County Program, a fair hearing and appeal process is used to resolve the issue. In the Department of Human Services (Department), a fair hearing and appeal request may be filed with the Bureau of Hearings and Appeals.

Certain actions related to Waiver ineligibility, Intermediate Care Facility for Persons with Mental Retardation level of care, and Medicaid financial ineligibility are also subject to fair hearing and appeal procedures established through the local County Assistance Office (CAO).

When Should I Be Told About Appeals?

Denial of eligibility for mental retardation services through the County Program for any reason is subject to due process. Each County Program shall have clearly-defined, written policies and procedures of this appeal process. Local Agency Law mandates counties to establish an administrative review procedure to examine appeals of service decisions when requested and to provide a written decision regarding this review as well as rights of appeal of the decision. An individual may request a copy of the County Program’s policies and procedures at any time.

An individual’s rights to fair hearing and appeal will be discussed at least annually during the Individual Support Plan (ISP) annual review meeting and at any time the individual or surrogate requests to change services or add new services.

What are an Individual's Rights to Fair Hearing and Appeal with the Department?

When any of the following actions occur, the Administrative Entity, County Program or Intermediate Care Facility for Persons with Mental Retardation is required to provide a copy of the Department’s fair hearing and appeal procedures to the individual or the individual’s surrogate and explain the right to a fair hearing. The Supports Coordination Entity may issue rights to fair hearing and appeal only with the concurrence of the Administrative Entity or County Program around the following circumstances:

  • The individual is determined likely to require an Intermediate Care Facility for Persons with Mental Retardation level of care and is provided information about Waiver-funded services.
  • The individual who is determined likely to meet an Intermediate Care Facility for Persons with Mental Retardation level of care and is enrolled in Medical Assistance or surrogate is asked to sign the service delivery preference form.
  • A decision or an action is taken that affects the individual's claim for eligibility or receipt of services. This applies to the individual's annual planning meeting as well as to any meeting or time that services are discussed with the individual or surrogate.
  • A decision or an action is taken to deny the individual a Waiver or Intermediate Care Facility for Persons with Mental Retardation service or to deny a willing and qualified provider of the individual's choice.
  • A decision or an action is taken to deny, suspend, reduce, or terminate a Waiver or Intermediate Care Facility for Persons with Mental Retardation service that is authorized on the Individual's Support Plan (ISP).
  • The individual or surrogate notifies the Administrative Entity, County Program, or Intermediate Care Facility for Persons with Mental Retardation of the decision to file an appeal, or requests information about the individual's appeal and fair hearing rights

The Administrative Entity, County Program, or Intermediate Care Facility for Persons with Mental Retardation may not limit or interfere with the individual’s or surrogate’s freedom to file a request for a hearing (42 CFR 431.221 [relating to Hearings]). The Administrative Entity, County Program, or Intermediate Care Facility for Persons with Mental Retardation must help the individual file the appeal if assistance is requested.

What Actions may be Appealed?

Denial of eligibility for mental retardation services through the County Program for any reason is subject to due process and appeal through Local Agency Law.

The individual or the individual’s surrogate has the right to request a fair hearing before the Department, Bureau of Hearings and Appeals, for any of the following adverse actions:

The individual with mental retardation who is determined likely to meet an Intermediate Care Facility for Persons with Mental Retardation of care and is enrolled in Medical Assistance or surrogate is not given the opportunity to express a service delivery preference for either Waiver-funded or Intermediate Care Facility for Persons with Mental Retardation services.

  • The individual with mental retardation whi is determined likely to meet an Intermediate Care Facility for Persons with Mental Retardation level of care and is enrolled in Medical Assistance or surrogate is not given the opportunity to express a service delivery preference for either Waiver-funded or Intermediate Care Facility for Persons with Mental Retardation services.
  • The individual or surrogate is denied the individual’s preference of Waiver-funded or Intermediate Care Facility for Persons with Mental Retardation services.
  • Based on a referral from the Administrative Entity or County Program, a Qualified Mental Retardation Professional (QMRP) determines that the individual does not require an Intermediate Care Facility for Persons with Mental Retardation level of care as a result of the level of care determination or re-determination process and eligibility for services is denied or terminated.
  • The individual or surrogate is denied Waiver-funded service(s) of the individual’s choice, including the amount, duration, and scope of service(s).
  • The individual or surrogate is denied the individual’s choice of willing and qualified Waiver provider(s).
  • A decision or an action is taken to deny, suspend, reduce, or terminate a service authorized on the Individual Supports Plan. An individual or surrogate may sign the Individual Supports Plan signature page; however, the individual or surrogate may file a request for a fair hearing regarding those services if any services were reduced, suspended, changed, or terminated.

How do I file an Appeal?

Each County Program shall have clearly-defined, written policies and procedures of the appeal process for services provided through the County Program. Local Agency Law mandates counties to establish an administrative review procedure to examine appeals of service decisions when requested and to provide a written decision regarding this review as well as rights of appeal of the decision. To file an appeal regarding mental retardation services provided through the County Program, please contact the local County Program Office directly.

It is the responsibility of the Administrative Entity, County Program, or Intermediate Care Facility for Persons with Mental Retardation and the Supports Coordination Entity as appropriate to provide any help or guidance the individual or surrogate needs in the fair hearing request process with the Department. This help and guidance may include the following:

  • Clearly explaining all factors and reasons for the questioned decisions or actions.
  • Explaining appeal rights and fair hearing proceedings to the individual or surrogate, including appeal timeframes.
  • For Waiver service appeals or Intermediate Care Facility for Persons with Mental Retardation level of care appeals, providing the appropriate Fair Hearing Request Form, explaining how to file the appeal, and, if necessary, explaining how to fill out the form. If the individual or surrogate requests help to complete the form, the Administrative Entity, County Program, Intermediate Care Facility for Persons with Mental Retardation, or Supports Coordination Organization may provide assistance in completing the form.
  • Advising the individual that the individual may be represented by an attorney, family, friend, or other person. The Administrative Entity, County Program, Intermediate Care Facility for Persons with Mental Retardation or Supports Coordination ORganization should explain that the individual may contact his local bar association to locate legal services available to the individual and supply the individual with the agency contact information. Providing the individual or surrogate with contact information for local advocacy organizations that may help the individual or surrogate with the appeal process and assure that the individual’s rights are protected.

What is the Process to file an Appeal With the Department?

Please refer to Bulletin 00-08-05, Due Process and Fair Hearing Procedures for Individuals with Mental Retardation, for the process of appeal for mental retardation services.

When a hearing date is scheduled, the Bureau of Hearings and Appeals will send of copy of the "Notice of Hearing Date and Time" form to the individual and the County Program, Administrative Entity or Intermediate Care Facility for Persons with Mental Retardation.

What is a Pre-Hearing Conference?

Whenever an individual or the individual’s surrogate files a request for fair hearing with the Department, the individual or surrogate have the right to request a pre-hearing conference with the Administrative Entity, County Program, or Intermediate Care Facility for Persons with Mental Retardation (Title 55 Pa.Code § 275.4(a)(3)(ii) [relating to Procedures]). The pre-hearing conference is optional for the individual or surrogate. The pre-hearing conference gives both parties the opportunity to discuss and attempt to resolve the matter prior to the hearing. Neither party is required to change its position. The pre-hearing conference does not replace or delay the fair hearing and appeal process. However, if during the pre-hearing conference a resolution of the issue under appeal is agreed upon by all parties, the individual or surrogate must notify the Administrative Law Judge that the issue has been resolved and the withdraw the appeal request.

During the Appeal Process with the Department, will the Services Under Appeal Continue?

If the appeal is about a change to Waiver or Intermediate Care Facility for Persons with Mental Retardation services that are already being provided to the individual, and if the appeal to the Department is received within 10 days of the written notice of the decision to reduce, suspend, or terminate the services, the services will generally continue without change until the Administrative Law Judge makes a decision on the appeal.

When a new service is requested and denied, there will be no delivery of that service until the Administrative Law Judge makes a decision on the appeal. If the decision is in the individual’s favor, efforts will be taken by the Administrative Entity, County Program, or Intermediate Care Facility for Persons with Mental Retardation to begin the services in a timely manner.

Services will not continue if the action under appeal is based only on a change in federal or state requirements or a change to the approved Waiver.

Are there Different Types of Appeal Hearings Available to the Individual or Surrogate for Appeal Requests Filed with the Department?

Two types of appeal hearings are available to the Individual or Surrogate. The type of hearing desired by the individual or surrogate should be chosen when the Fair Hearing Request Form is completed.

  • Telephone hearing. Telephone hearings are conducted between the Administrative Law Judge, the Administrative Entity or County Program or Intermediate Care Facility for Persons with Mental Retardation, and the individual or surrogate over the telephone. If the individual or surrogate does not have a telephone, a telephone at the County Program, Administrative Entity, or Intermediate Care Facility for Persons with Mental Retardation office or a phone of a neighbor, relative, or friend may be used to participate in the hearing.
  • Face-to-face hearing. There are two types of face-to-face hearings available: o The individual or surrogate and the County Program, Administrative Entity, or Intermediate Care Facility for Persons with Mental Retardation all travel to one of the following Bureau of Hearings and Appeals site locations: Erie, Harrisburg, Philadelphia, Pittsburgh, Plymouth (Luzerne County), or Reading. o The individual or surrogate and the Administrative Law Judge will be at the Bureau of Hearings and Appeals site location (mentioned above) and the Administrative Entity, County Program, or Intermediate Care Facility for Persons with Mental Retardation participate via telephone.

What Rights do I have if I do not agree with the Department's Decision?

When the Bureau of Hearings and Appeals renders a decision on the appeal, the individual or surrogate and the AE, County Program, or ICF/MR have the right to request Reconsideration of the decision by the Secretary of the Department. The Request for Reconsideration must be filed in writing within 15 calendar days of the date of the Bureau of Hearings and Appeals’ decision (55 Pa.Code § 275.4(h)(4)(ii) [relating to Procedures]). Requests for Reconsideration that are received by the Department within the specified timeframe will halt any proposed action outlined in the written appeal decision.

The Secretary may affirm, amend, or reverse the decision of the Director of Hearings and Appeals, or remand the case to the Bureau of Hearings and Appeals for further investigation. Further information regarding the Reconsideration process may be found in 55 Pa.Code § 275.4(h)(4) (relating to Procedures).

In addition, when an adverse decision to the appellant is rendered by the Director of the Bureau of Hearings and Appeals, the individual or surrogate has 30 calendar days to appeal the decision by petitioning the Commonwealth Court (55 Pa.Code § 275.4(h)(3)(i)). The individual or surrogate may consider hiring legal counsel to assist with this process.