ADMINISTRATIVE HEARINGS 101

Transcription

1 ADMINISTRATIVE HEARINGS 101 Hilary Johns Fair Hearings Section Chief November 2014 Objectives 2 Become familiar with the Administrative Rule requirements for Notices of Involuntary Discharge Learn about the Administrative Hearing process Learn to prepare for hearings Discuss what information is considered by Hearing Officers when reviewing an appeal 1

2 Basic Right to Appeal 3 The U.S. Supreme Court recognizes the fundamental right to appeal in Goldberg v. Kelly: State must give public aid recipients the opportunity for an evidentiary hearing before they deprive them of benefits Clients interest in procedural due process outweighs the states administrative cost interests Recipients must get notice, be able to present evidence, be heard orally, and cross-examine adverse witnesses The Illinois Public Aid Code and Administrative Code grants the right to appeal when a SLF Resident is given a Notice of Involuntary Discharge. Rules that Govern SLF Hearings 4 89 Illinois Administrative Code Sections 102 and104 (General Procedures) Section 146 (SLF Specific Rules) SLF Appeals are different than most HFS appeals Other appeals: HFS employee testifies for Department SLF Appeals: SLF testifies as the Department The hearing process can only determine if the discharge was right or wrong (89 Ill. Admin. Code ) If the Resident does not want to stay/return to SLF, there is no point of holding the hearing 2

3 Terms used in Appeals 5 Fair Hearing=Appeal=Administrative Hearing Client=Resident=Appellant Hearing Officer=Administrative Law Judge = ALJ HFS-FHS: Fair Hearings Section 6 Notice of Involuntary Discharge 3

4 Reasons for Involuntary Discharge 7 Resident poses immediate threat to self/others Resident has breached the Resident Contract SLF cannot meet the Resident s needs with available support services Resident has failed to pay their rent/fees Resident has been away from SLF for a time that exceeds a temporary absence Before Notice is Served 8 SLF must discuss reasons for discharge with Resident + Rep before Notice is served [ (a)] Document, document, document Discussions with Resident + Rep Police, Incident and Clinical Reports Any statement is helpful Staff members Other residents Witnesses 4

5 Types of Involuntary Discharges 9 All discharges must give Notice and Appeal Rights!! 30 Day Notice: (b) Non-emergency situations Written; copy to Resident + Rep, and copy in Resident s file Form available from HFS Bureau of Long Term Care Immediate Discharge: (e) Emergency situations Best practice: give written Notice (with reasons for discharge) and Appeal Rights to Resident + Rep; keep a copy in Resident s file 30 Day Notice Day Notice must contain [ (b)]: Reason for discharge Effective date of discharge Name, address and phone number of person conducting the discharge (usually the Executive Director) Standard language from Admin Code outlining the Resident s rights/responsibilities during the discharge and appeal process Attach an Appeal Form with postage paid, pre-addressed envelope to the FHS 5

6 Immediate Discharge 11 Immediate Discharge: (e) When 30 day wait may jeopardize health, safety and well-being of resident or others Required by mental or physical health needs as documented in the resident record Required to ensure physical safety of resident and other residents as documented in the resident record 30 Day Notice emergency situation? 12 You have already served a 30 day Notice, but the situation deteriorates and an Immediate Discharge is necessary. What do you do? You will have to serve an Immediate Discharge, in addition to the previously served 30 day Notice. 6

7 13 Appeal Process 14 DHS vs. HFS Appeals Which Agency Handles Which Appeal? DHS 26,000 appeals last year Medicaid eligibility Long Term Care CAU disability Determinations ACA appeals (non-lo 180) SNAP (Food Stamps) Administrative Disqualification Hearing (ADH) Mental Health (MH)/Division of Alcoholism and Substance Abuse (DASA) Child care HFS 2,260 appeals last year Child Support (1,740 per year) Administrative Paternity Orders Administrative Child Support Orders Enforcement of Past Due Support Medicaid Hearings (520 per year) Medical Programs All Kids (LO 180 only) Breast and Cervical Cancer Illinois Healthy Women Health Benefits for Workers with Disabilities Veteran s Care NEW: ACA cases decided by Bureau of All Kids 7

8 Which Agency Handles Which Appeal? 15 DHS Home Services Waivers Persons with Disabilities, Persons with HIV/AIDS Traumatic Brain Injury (TBI) Temporary Aid to Needy Families (TANF) Vocational Rehabilitation Blind Vendor HFS Medicaid Hearings, con t Medical Items + Services: Dental Pharmacy Transportation Supplies + Equipment Including Managed Care denials Waivers Developmental Disability (DD) Medically Fragile Technologically Dependent Children (MFTD) Supportive Living Facilities (SLF) Dept of Aging (DOA) Timeframe for Filing an Appeal 16 Resident has 60 days to appeal from the date on the Notice. (89 Ill. Admin. Code ) 30 day Notice Involuntary Discharges will be stayed if the Resident appeals within 10 days of the date on the Notice. [ (b)] Immediate discharges are not stayed, regardless of when the Appeal is filed [ (f)] 8

9 How to File an Appeal 17 Resident can call the HFS-FHS toll free line Mail/Fax/ appeal request Tips: Resident should fill out the Appeal Form provided by SLF Include the Notice of Involuntary Discharge Resident will receive appeal acknowledgement letter from HFS-FHS. Client Representatives 18 Resident may appoint an Authorized Representative for appeals process. (89 Ill. Admin. Code ) Must be in writing; Appeal Form has a space for Rep Authorized Rep can be anyone the Resident chooses (Spouse, child, friend, attorney, etc ) Powers of Attorney do not need the Resident s authorization. Attach POA documents to appeal Exception: Health care Power of Attorney 9

10 Hearing Timeframes 19 Federal and State Law require that we issue our decision within 90 days from the date the client filed an appeal, less any continuances requested by the client. (Federal Rule 42 CFR Ill. Admin. Code ) SLF continuances impair our ability to issue appeals in a timely fashion. Pre-Hearing Review 20 Pre-Hearing Review/Informal Review (89 Ill. Admin. Code ) SLF must review the Notice of Involuntary Discharge and determine if the decision was proper Prepare a Statement of Facts and send to FHS Be aware of Appellant s current living arrangements and their contact information If Appellant has left the SLF and does not wish to return or does not wish to stay, encourage them to withdraw appeal 10

11 Hearing Procedures 21 Appellant and SLF will receive scheduling letter explaining the procedure of the hearing. Hearings are by telephone unless client requests inperson hearing. In-person hearings are held in DHS FCRCs and will delay the disposition of the appeal. Hearings are scheduled in one hour increments. Documents for Hearing 22 All parties must send documents to FHS at least three (3) days before the hearing SLF must send the Statement of Facts and any documents supporting the Involuntary Discharge 3 days before hearing Resident Contract, additional SLF policies/rules Documentation of discussion with Resident + Rep Police, Incident and Clinical Reports Statements from witnesses (staff, other residents, etc ) Please all documents to the Fair Hearings Section HFS.FairHearings@illinois.gov 11

12 Day of the Hearing 23 The Hearing Officer/ALJ will call the parties If you are not contacted, either the Resident requested a continuance or could not be reached for the hearing. During a hearing the client and/or their representative has the right to ( ): A reasonable opportunity to testify and submit evidence Have witnesses testify on their behalf Refute testimony or evidence and cross examine witnesses An opportunity, before and during the appeal, to review their case file What happens at the Hearing? 24 The Hearing is recorded. The Hearing Officer/ALJ swears everyone in. Do not assume the Hearing Officer knows anything about the appeal or the reason for the discharge. SLF must demonstrate by preponderance of evidence that the discharge is justified in accordance with law/rules/policy. [ (g)] 12

13 What the Hearing Officer wants to know 25 From the SLF: reason for discharge + documentation What rule/policy/contract did the Resident break? How do the documents support the discharge? Discussions with Resident and outcome Non-payment cases: what is the balance, last payment Health/Safety cases: examples when Resident created an unsafe environment Breach of Resident contract: what rule, how was it broken From the Appellant: why discharge isn t proper After the Hearing 26 Either party may request that the record be left open for additional documents to be submitted. The Hearing Officer will rule by balancing the fairness to both parties. Final Administrative Decision (FAD) signed by the Director will be sent to all parties. FAD will say whether the discharge is proper or not. ( ) We cannot reconsider decision after FAD issued. ( ) FAD gives judicial appeal rights for Resident; must be filed within 35 days in Circuit Court. 13

14 FAD Outcomes 27 If the FAD supports the Involuntary Discharge, the SLF may require the Resident to leave no earlier than the tenth day after receipt of the FAD. [ (h) + (i)] SLF must offer relocation assistance to Resident, including information on available alternative placements. Resident + Rep must be involved in planning the discharge and choose among the placements. Immediate discharge: if Resident involvement is impossible, SLF may arrange temporary placement until final placement can be arranged. If the FAD does not support the Involuntary Discharge, the Resident gets to stay. This doesn t preclude you from another Involuntary Discharge, using additional evidence. Resolved Cases 28 What if the issue is resolved before the hearing or client does not wish to pursue? ( ) Client does not want to stay/return to SLF Client must withdraw their appeal in writing or on the record (during a recorded call/hearing) with FHS We accept any letter stating they do not wish to have a hearing. We do have a standard withdrawal form, but it is not required. Otherwise, a date is set for a hearing If withdrawn, all parties will receive a letter confirming withdrawal 14

15 Dismissed Cases 29 What if client doesn t appear for the hearing? ( ) The appeal is dismissed. Clients have 10 days from the date of the Dismissal Notice to request a new hearing date showing good cause for their non-appearance. If Client s request is granted, all parties will receive a letter stating that a new hearing date will be set. Dos 30 DO Document evidence leading up to serving the Notice Send all documents three (3) days prior to hearing In the hearing, refer to evidence and how it supports the discharge Expect the Appellant to raise extraneous topics. If Appellant does not want to stay/return to the SLF, encourage them to withdraw their appeal 15

16 Don ts 31 DON T Request continuances that could be avoided Worry about testifying. This is an informal process. We just want to get enough information to make a good decision. Be afraid to ask questions during the hearing Additional Resources Illinois Administrative Code: 102, 104, 146 Public Aid Code: 305 ILCS 5 42 CFR

17 Contact Us! 33 Fax: (312) Client Reference Number: (855)