Mo. Code Regs. tit. 9 § 45-2.020

Current through Register Vol. 49, No. 24, December 16, 2024

Section 9 CSR 45-2.020 - Appeals Procedures for Service Eligibility Through the Division of Developmental Disabilities

PURPOSE: This amendment updates terminology.

(1) As used in this rule, the following terms mean:

(A) Appeals referee-shall be an impartial, neutral, trained decision maker not employed with the Division of Developmental Disabilities;

(B) Applicant-a person suspected to have an intellectual developmental disorder or developmental disability and for whom application has been made for regional office services or the person's representative;

(C) Client-a person who receives services of the Division of Developmental Disabilities or their representative. Clients will be referred to as individuals hereafter in this rule;

(D) Representative-shall include but not necessarily be limited to the applicant's/individual's legal guardian, parent of a minor applicant, or individual and protector (as defined by 9 CSR 45-3.040); and

(E) Supervisor-a supervisor of service coordinators in a regional office or a unit director in a developmental disability facility.

(2) Any person who is suspected to have an intellectual developmental disorder or developmental disability shall be eligible for initial diagnostic and counseling services through the regional office.

(A) These rules are to be liberally construed in order to assure that all claims are decided on the merits of the individual's claims and in the individual's best interests. The rules regarding the time and manner in which a person may appeal shall be liberally interpreted to decide claims on the merits.

(B) Decisions as to an applicant's eligibility for services, or an individual's eligibility for continued services, shall be based on an assessment of the applicant's/individual's eligibility as determined by Missouri statutes. In making their determinations, staff (for example, members of the assessment team, service coordinators, regional director or their designee, appeals referees, and the director of the Missouri Department of Mental Health (DMH)) shall consider but need not be limited to each of the following factors and the appeals referee shall include in his/her written decision findings of fact and conclusions of law on each criterion considered:

1. The best interest of the individual/applicant;

2. The person's level of adaptive behavior and functioning, including the effect upon the individual's ability to function at either the same or an improved level of interpersonal and functional skills if support from the DMH and contracting private providers is withdrawn or denied; and

3. Whether the individual is eligible for services under the laws of Missouri.

(3) If the applicant, based upon the initial diagnostic evaluation or comprehensive evaluation, or if a individual, based upon a reevaluation, has been determined ineligible for regional office services, the applicant or individual may appeal the decision on eligibility.

(A) Appropriate, effective notice of the eligibility determination shall be given to the applicant/individual. This notice shall be given in writing, and verbally, when possible, on a standard DMH form within ten (10) business days of the ineligibility decision. The written notice shall include a specific statement of the factual and legal reasons for ineligibility, a statement that the applicant/individual has the right to appeal that decision and the name, address, and telephone number of the regional office staff person to contact for further information about the decision, the appeals process, or both. In addition to the notice, the applicant/individual shall receive a brochure which explains the appeals process and the appeals procedures open to the applicant/individual. If there is any question about the applicant's/individual's ability to understand either the form or the brochure after s/he receives his/her notice in person or by telephone, the Missouri Division of Developmental Disabilities staff person shall verbally explain the basis for the denial of eligibility and the appeals process to the applicant/individual and shall assist the applicant/individual in initiating an appeal and contacting Missouri Protection and Advocacy Services. Notice shall be hand-delivered or shall be sent by registered or certified United States mail, return receipt requested, and given verbally, where appropriate, at least thirty (30) calendar days prior to the effective date of the proposed action.

(B) The applicant or individual may appeal the decision, in writing or verbally, to the regional office staff within thirty (30) calendar days from the date of receiving the written notice.

1. If necessary, appropriate staff shall assist the applicant/individual in making the appeal.

2. The applicant or individual may present any information relevant to the appeal. The regional director or their designee shall meet with the applicant/individual and any staff to attempt to resolve differences and receive information on the matter.

3. Within ten (10) business days after receiving the appeal, the regional director or their designee shall notify the applicant verbally, when possible, and in writing of his/her findings and decision and of the right to appeal, including notice of where and how to direct appeal.

(C) If the applicant/individual disagrees with the decision of the regional director or their designee, the applicant/individual, verbally or in writing, may notify the regional office staff within thirty (30) calendar days of the date of receipt of the decision that the applicant/individual wishes to present the case to an appeals referee. If the applicant/individual verbally requests an appeal to the appeals referee, regional office staff shall send the person a notice via registered or certified mail, return receipt requested, verifying that the applicant/individual has verbally requested an appeal. The regional office staff also shall forward the verification notice to the appeals referee.

1. The referee shall be an employee of the department. The referee shall hear all appeals.

2. The appeals referee shall notify the applicant or individual in writing of the date, time, and location of the hearing before the referee. Effective notice of the hearing shall be given at least thirty (30) calendar days prior to the date of the hearing and shall contain a statement of the issues to be determined at the hearing. If any party has good cause for postponement or rescheduling, the request shall be granted. Absent good cause, the hearing shall be held no later than sixty (60) calendar days from the date of the claimant's request for a hearing. The hearing shall be held at a location convenient for the individual/applicant, usually the regional office identified in the appeal.

3. The applicant/individual shall have the right to representation either by an attorney or another advocate. Upon written notice that an individual is represented by an attorney/advocate, the attorney/advocate shall be provided with copies of notices, and the like. Upon request of the individual/applicant or his/her attorney/advocate, copies of all documents relevant to the appeal shall be made available without charge within five (5) business days of the date of the request. An individual or his/her attorney/advocate shall have the right to inspect and copy all relevant Missouri DMH documents, including but not necessarily limited to department rules and applicant/individual records if release is authorized in writing by the applicant/individual, including third-party individual records in the custody of the department that were utilized in making the decision on eligibility.

4. The appeals referee shall rest his/her decision solely on the evidence presented at the hearing. The referee shall not review any documents concerning the applicant's/individual's eligibility that are not properly submitted on the record during the hearing. The appeals referee, in addition, shall not discuss the applicant's/individual's appeal with any party other than in the context of the hearing, questioning witnesses on the record, or both. The referee shall assure that the claimant receives a full and fair hearing. After the conclusion of the hearing, the referee shall issue a written decision, including findings of fact and conclusions of law, within thirty (30) calendar days of the close of the hearing. The decision shall be mailed to the regional office and to the claimant and his/her attorney/advocate, if any, by registered or certified mail, return receipt requested. Upon request of the claimant, regional office staff may be consulted by the claimant for an explanation of the decision and its implications. The decision also shall contain a brief description of further appeal rights provided by this rule. Within thirty (30) calendar days of the decision, the referee shall have the authority to vacate or amend his/her decision at the request of the claimant or his/her attorney/advocate or the head of the regional office with notice to the others for good cause shown.

5. The head of the regional office shall have the burden of proof and burden of going forward to either establish that the applicant does not meet the state's statutory criteria for services eligibility or that the individual has so improved that s/he no longer would benefit from the level of services which had been previously provided.

6. During the hearing, the applicant/individual or the head of the regional office shall have the right to speak on behalf of self, to present witnesses, to be represented by an attorney or other advocate, to submit any additional information, and to cross examine witnesses who have appeared on behalf of the regional office.

A. If the applicant or individual is represented by legal counsel, the claimant or his/her counsel shall notify the head of the regional office within ten (10) calendar days from the date that counsel is retained for the hearing.

B. If the applicant or individual is represented by legal counsel at the hearing, the head of the regional office shall request representation from the attorney general's office. The request for representation should be made to the attorney general's office as soon as practicable. Notice to the applicant/individual and attorney that the attorney general's office will appear in the case should be made at least five (5) calendar days before the hearing.

7. Unless otherwise provided in this rule, the hearing shall be conducted by the provisions of Chapter 536, RSMo.

8. The referee shall electronically record the hearing. The recording of the hearing shall be kept for one (1) year after the date of the hearing. The recording shall be available to the individual/applicant or his/her attorney/advocate or the regional office director for purposes of review for further appeal.

(D) Either party may appeal the decision of the appeals referee to circuit court as provided by Chapter 536, RSMo. For purposes of appeal, the recording of the hearing before the appeals referee shall be transcribed at the expense of the party appealing but shall be without cost to the applicant/individual who is indigent as determined by the department or the circuit court.

(E) Pending an administrative appeal or appeal before circuit court if the appeals referee's decision is appealed, the department shall not reduce or terminate the applicant's or individual's services or benefits. No applicant's or individual's benefits or services shall be reduced or terminated until appeal procedures are exhausted.

(4) If an individual disagrees with the decision made by regional office staff regarding eligibility for a specified service through the division, except referral for community placement from a department developmental disability facility, the individual may appeal the decision.

(A) The appeal may be presented orally or in writing to the appropriate supervisor within thirty (30) calendar days from receipt of the oral or written notice, whichever is earlier.

1. If necessary, the appropriate staff shall assist the individual in making the appeal.

2. The individual may present, and the supervisor shall accept and consider, any information relevant to the appeal. The supervisor may meet with the individual and any staff to discuss and resolve differences.

3. Within ten (10) business days after receiving the information presented by the individual, the supervisor shall notify the individual in writing and verbally of the supervisor's finding and decision and the right of the individual to appeal to the regional office director or their designee.

(B) If the individual disagrees with the decision of the supervisor, the individual shall be entitled to utilize the same appeal procedures to the regional office director or their designee, the appeals referee, and the circuit court as provided in section (3) of this rule.

9 CSR 45-2.020

AUTHORITY: section 630.050, RSMo Supp. 2011.* This rule was previously filed as 9 CSR 50-3.705. Original rule filed April 17, 1987, effective Oct. 1, 1987. Amended: Filed Jan. 15, 1993, effective Aug. 8, 1993. Amended: Filed May 25, 1995, effective Dec. 30, 1995. Amended: Filed Feb. 1, 2012, effective Sept. 30, 2012.

Amended by Missouri Register March 1, 2023/Volume 48, Number 5, effective 4/30/2023

*Original authority: 630.050, RSMo 1980, amended 1993, 1995, 2008.