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FAQ 3. What to Do When You Have a Problem: Dispute Resolution and Fair Hearings


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1 Introduction



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2 What Should I Do if I Have a Problem with Services Through the Mental Retardation System?


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If you have a problem, contact your Supports Coordinator (SC) first. Make sure you have clearly identified the problem and thought about how you would like it resolved. Speak frankly about the problem. If it is still not resolved, you can ask to discuss the issue with the Supports Coordinator Supervisor. If that doesn't resolve the issue, you can go up the chain of command to the County Program Supervisor in the Mental Health/Mental Retardation (MH/MR) office.

If you are not sure your SC or Administrative Entity (AE)/County Program are following the rules, you can call the Office of Developmental Programs (ODP) customer service line (1-888-565-9435) for information and answers to questions about state policies and processes.


3 Basic Advocacy Tips

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  • Create and maintain a file of all paperwork related to your MR services.
  • Get copies of all the applications and forms you fill out.
  • Keep a log book to track phone calls and conversations with your Supports Coordinator, provider, or any other person involved in your planning or services.
  • Always take someone (a friend or advocate) to meetings with you.
  • Have someone take notes during meetings.
  • When you discuss an issue, set a timeline for resolution and mark it on your calendar and in your phone log so you will know when to expect an answer. If you don't have a response by that date, call to follow up.
  • Ask for all decisions affecting your services in writing.
  • Be persistent.
  • Know your rights.
  • If you have questions about ANYTHING, ask!

4 WHAT CAN I DO IF MY COUNTY MH/MR PROGRAM SAYS I AM NOT ELIGIBLE FOR MENTAL RETARDATION SERVICES?

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You have the right to appeal under the Local Agency Law (see below) when services through the County Program are denied, reduced or terminated. Each County Program must have a clearly defined, written policy and procedure for this appeals process. The process includes an administrative review procedure and will result in a written decision. You can ask your County for a copy of the policy and procedure.

This means that if you apply for Mental Retardation services in your county and are told you are not eligible, you have the opportunity to disagree with this decision. If you are denied eligibility for MR services, you will get a written notice explaining why you were denied.


5 LOCAL AGENCY LAW

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The appeals process steps are as follows:

  • Each County Program will appoint an impartial reviewer to hear the issues and arguments.
  • A hearing will be scheduled - and can be recorded at no cost to you. You can also request a transcript of the hearing at your expense.
  • You can provide testimony, documentation and new information during the hearing. The reviewer can ask you questions.
  • The County can also present information and facts about the decision.
  • You can ask questions of the County Program.

6 WHAT CAN I DO IF THE COUNTY DECIDES TO REDUCE OR CUT MY FAMILY SUPPORT OR BASE SERVICES?

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If you had been receiving services through Base-funding (Family-Driven Support, Family Support Services, etc.) and they are reduced or terminated, you can have a meeting with the County Program representatives, the Supports Coordination Organization and the provider, if appropriate, to attempt to resolve the issue.

If that doesn't resolve the problem, each County has written procedures that explain how to appeal the denial or termination of services and supports. The local appeals process is the same as outlined in the previous section (LOCAL AGENCY LAW) for denial of services. When you receive written notice from the County that your services will be ending, you should also get information about the appeals process.

If you have been told over the phone or in a meeting that your supports are being reduced or terminated, you should request that in writing. The County is required to give written notice.

Unlike waiver recipients, the County Program and/or provider can discontinue services due to lack of money, and you are not entitled to have the services remain in place while you appeal the decision through the county process. However, you should argue and request that services remain until resolution.

Within 30 days of the hearing date, you will receive written notice of the decision. If you are not happy with the results, you can go on to the Court of Common Pleas.

If you request and are denied Base services, you also have appeal rights through Local Agency Law as described above.


7 WHAT ARE MY RIGHTS TO APPEAL IF I AM IN A WAIVER?

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People receiving supports through the Person/Family Directed Support (P/FDS) and the Consolidated waivers have a right to fair hearing and appeal before the Department of Public Welfare Bureau of Hearing and Appeals (BHA). You will get information about the fair hearing and appeals process when:

  • You are determined likely to require Intermediate Care Facilities for the Mentally Retarded (ICF/MR) level of care and are given information about the Waiver.
  • You are asked to choose between waiver services and ICF/MR (Service Delivery Preference Form)
  • Any decision is made concerning eligibility for services.
  • You are denied a waiver-funded service.
  • You are denied your choice of provider.
  • A decision is made to deny, reduce, suspend or terminate a service that is authorized in your Individual Support Plan (ISP).
  • You ask for information about your rights.

8 UNDER WAIVER RULES, WHAT TYPE OF DECISIONS CAN I APPEAL?

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There are several basic reasons or decisions that you can appeal.

  • You were not given the choice between waiver and ICF/MR services.
  • You were denied your choice of waiver or ICF/MR services.
  • The AE/County Program determined that you are not eligible for Waiver funded services.
  • You are denied the service(s) you need, including the amount, duration or scope of service.
  • You are not allowed to use the provider you chose.
  • A decision is made to reduce, suspend, deny or terminate the services authorized in your Individual Support Plan (ISP).

9 HOW DO I FILE FOR FAIR HEARING?

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Complete the Fair Hearing Request Form, DP 458, and submit it to your AE/County. Because there are timelines for filing an appeal, the postmark on your form is important. You can also submit the form to your Supports Coordinator, who will submit the form to the AE/County on your behalf. You can ask for a form from your Supports Coordinator or get one on the Office of Developmental Programs website. If you need help completing the form, your Supports Coordinator can assist you with filing a Fair Hearing Request.


10 IS THERE A TIME LIMIT ON APPEALING A DECISION?

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Yes. In order for your services to remain in place while you are waiting for your appeal to be heard, you must file within 10 days of the written notice. The 10-day clock starts as soon as the AE/County mails the letter to you. If you file the appeal within the 10-day window, services that are on-going will continue. One-time services or services that have not started do not need to be provided during the appeal process.

If you miss the 10-day window, the change will take effect, but you can still appeal any decision within 30 days.


11 WHAT HAPPENS AFTER I FILE AN OFFICIAL APPEAL?

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Your AE/County will forward your appeal to the Bureau of Hearings and Appeals and will send a copy to the Office of Developmental Programs Regional Office for review. If your appeal is eligible for a Service Review, the Regional Office will review your case and make a recommendation to the AE/County.


12 WHAT IS SERVICE REVIEW?

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Service Review is a quick process in which the Regional Office reviews your appeal and makes a decision as to whether the AE/County acted in accordance with ODP policies. Immediately after you submit your Request for Fair Hearing, the AE/County will forward your paperwork to the Regional Office for review. Within 15 days, the Regional Office will make a decision regarding the disputed issue. During this time, you may be contacted by the Regional Office for additional information or clarification.


13 WHAT IF THE SERVICE REVIEW DETERMINES THAT THE AE/COUNTY WAS RIGHT?

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If the result of the Service Review is not in your favor, you still have the right to a fair hearing. The Hearing Officer at the Bureau of Hearings and Appeals (BHA), also called an Administrative Law Judge, will have a copy of the Service Review decision to review when judging your case.


14 HOW LONG WILL THE ENTIRE APPEAL PROCESS TAKE?

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The Appeal Hearing should take place within 90 days of the date you filed your Request for Fair Hearing. The decision will be sent in writing to you within this 90-day period.


15 IF I AM GETTING SERVICES AND I AM TOLD THAT THE SERVICES WILL BE REDUCED OR STOPPED, WHAT HAPPENS TO MY SERVICES WHILE I AM WAITING FOR MY CASE TO BE HEARD?

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If you appeal within 10 days of the notice to reduce or terminate services, your service will remain in place until the Hearing Officer decides your case. It is very important to appeal any reduction or termination quickly to ensure you keep your services while you are waiting for the hearing.


16 WHAT HAPPENS AT THE HEARING?

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An impartial Hearing Officer (also called an Administrative Law Judge) will have written information from the AE/County and from you regarding the issue at hand. You can offer testimony on your behalf and have experts testify on your behalf. You can also have someone represent you (for example, a family member or surrogate). The AE/County will have the opportunity to present evidence and testimony as well. The Hearing Officer may ask questions of both parties. It is recommended that you consult or use an advocate during the process. Advocates should be knowledgeable about the MR system, the rules that govern Waiver participation and administration and state policy.


17 HOW CAN I PREPARE FOR A HEARING?

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Keep accurate records of the supports and services you receive through the Office of Developmental Programs (ODP). Also collect and organize your phone log and correspondence related to the issue you are disputing. You should contact advocacy organizations in your area for advice and assistance.


18 WHAT IF I LOSE MY APPEAL?

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The consequence of the AE/County's action will take effect. This means that if the AE/County said your services would be terminated, the services will stop. If they said your services needed to be reduced, then your services will be reduced.

You have two options for further appeal:

  1. Reconsideration Request
    You can formally request Reconsideration with the Secretary of the Department of Public Welfare. You must submit this request in writing within 15 calendar days of the date of the Bureau of Hearings and Appeals decision.
  2. Petition the Commonwealth Court
    You can also petition the Commonwealth Court within 30 days of the Hearing Officer's decision or within 30 days of a Reconsideration decision by the Secretary of the Department of Public Welfare.

19 WHAT IF I WIN MY APPEAL?

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The Hearing Officer's decision will instruct the AE/County as to the appropriate restoration or action that must be taken by the AE/County Program. The AE/County Program can also request a Reconsideration by the Secretary of the Department of Public Welfare.


20 REFERENCES

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ODP Bulletin 00-08-05: Due Process and Fair Hearing Procedures for Individuals with Mental Retardation, www.temple.edu/thetrainingpartnership/resources/mrBulletins/gd/00-08-05.pdf


21 LINKS TO RESOURCES

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  • Service Definition Bulletin
    www.TheTrainingPartnership.org/resources/waiver
  • Current Consolidated Waiver and PFDS Waiver
    www.TheTrainingPartnership.org/resources/waiver
  • Home and Community Services Information System (HCSIS)
    www.dpw.state.pa.us/ServicesPrograms/MentalRetardation/003676369.htm
  • Link to Green Book - Understanding the MR System in Pennsylvania
    www.TheTrainingPartnership.org/resources
  • Disability Rights Network of Pennsylvania
    www.drnpa.org

22

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THE STATE OFFICE OF DEVELOPMENTAL PROGRAMS HAS A TOLL FREE PHONE NUMBER FOR YOU TO CALL IF YOU HAVE QUESTIONS. Additionally, The Partnership and its participating agencies can answer questions and offer assistance to individuals or their families.

Office of Developmental Programs
1-888-565-9435
ODP Regional Point People:
(as of April 2009)

Central
Rita Zimmerman
Phone: 717-772- 6507
Email: ritzimmerm@state.pa.us

Northeast
Robert Conklin
Phone: 570-963-4749
Email: rconklin@state.pa.us

Southeast
Vicki Stillman-Toomey
Phone: 215-560-2245
Email: vstillmant@state.pa.us

Western
Sandy Schalcosky
Phone: 412-565-5144
Email: cschalcosk@state.pa.us

The Partnership
Phone: 1-866-865-6170
Web: www.TheTrainingPartnership.org

The Partners:

Achieva
Phone: 412-995-5000
Toll free: 1-888-272-7229
Web: www.achieva.info

Mentors for Self Determination
Phone: 814-547-1577
Phone: 724-813-5702
Web: www.mentors4sd.org

Self-Advocates United as 1
Phone:
Eastern 215-923-3349 x132
Western 724-813-5702

Vision for Equality
Phone: Philadelphia 215-923-3349
Phone: Harrisburg 717-233-2424
Web: www.visionforequality.org

Institute on Disabilities at Temple University
Phone: 215-204-3031
Toll free: 1-866-865-6170
Web: http://disabilities.temple.edu


THE PARTNERSHIP—The Pennsylvania Training Partnership for People with Disabilities and Families

  • Achieva
  • Institute on Disabilities
  • Mentors for Self Determination
  • Self-Advocates United as 1
  • Vision for Equality

The Partnership is funded by the Office of Developmental Programs, Department of Public Welfare.

Phone: 1-866-865-6170
Web: www.TheTrainingPartnership.org

This information is available in alternate formats, upon request.

Para información en español: 215-204-9348 o por correo electrónico al: latino@temple.edu.