By: Patrice Gillotti, Staff Attorney Arizona Center for Disability Law Southern Arizona Disability...

By: Patrice Gillotti, Staff Attorney Arizona Center for Disability Law

Southern Arizona Disability Rights and Resources Conference

April 4, 2009

PUBLIC MENTAL HEALTH SERVICES IN ARIZONA: CONSUMERS’ RIGHTS

GOALS OF TRAINING

1. To provide an overview of the public behavioral health system in Arizona.

2. To provide information on a consumer’s civil rights, the right to services, and the development of the individual service plan or inpatient treatment and discharge plan.

3. To provide information on the formal processes to resolve problems for consumers of mental health services.

4. To provide information about notice and due process requirements when services are denied, suspended, discontinued, or changed.

THE PUBLIC MENTAL HEALTH CARE SYSTEM IN ARIZONA

The Arizona Department of Health Services/ Division of Behavioral Health Services (ADHS/DBHS), primarily through a contract with the Arizona Health Care Cost Containment System (AHCCCS), is responsible for implementing the State’s public mental health care system. ADHS/DBHS contracts with Regional Behavioral Health Authorities (RBHAs) to provide behavioral health services. The RBHAs contract with individual provider entities to provide direct services.

THE PUBLIC MENTAL HEALTH CARE SYSTEM IN ARIZONA

ADHS/DBHS also has intergovernmental agreements (IGAs) with several Arizona Indian Tribes - Gila River Regional Behavioral Health Authority, Navajo Nation, Pascua Yaqui Tribe, the White Mountain Apache Regional Health Authority, and the Colorado River Indian Tribe - to provide covered behavioral health services to persons living on the reservations. Other Native American tribes are covered by the RBHA in the county where located.

ARIZONA RBHAs

State divided into 6 geographical service areas (GSAs); 4 RBHAs provide services within specific GSAs

Magellan Health Services - Maricopa (GSA 6) Community Partnership of Southern Arizona

(CPSA) - Pima, Cochise, Greenlee, Graham, & Santa Cruz counties (GSAs 3 & 5)

Cenpatico - Pinal, Gila, La Paz, & Yuma counties (GSAs 2 & 4)

Northern Arizona Regional Behavioral Health Authority (NARBHA) - Apache, Coconino, Mohave, Navajo, & Yavapai counties (GSA 1)

Partial Exception to the RBHA System:

The Arizona Long Term Care System (ALTCS)Serves 2 populations:

- Elderly and Physically Disabled (EPD)- Developmentally Disabled (DD)

EPD/ALTCS members get behavioral health and acute care services from the ALTCS health plan

DDD/ALTCS members get behavioral health services from the RBHA system

RBHA PROGRAMS

SMI (serious mental illness) SYSTEM

CHILDREN’S SYSTEM

GENERAL MENTAL HEALTH

SUBSTANCE ABUSE SYSTEM

THE SMI SYSTEM

Applies only to persons over 18 State of Arizona required to provide community mental

health services under A.R.S. §§ 36-550.01(A) & 36-3403(B)

Arnold v. Sarn, 160 Ariz. 593 (1989), a class action lawsuit alleging state failure to provide mental health services; enforced State statute for persons with SMI in Maricopa county

SMI regulations are result of lawsuit and apply statewide (A.A.C. R9-21-101 to 513)

Medicaid/AHCCCS money can be used to provide mental health services for those enrolled in SMI system

SMI System Eligibility

Depends on disability NOT income

To be eligible for SMI mental health services, must have an appropriate mental health diagnosis and functional limitations related to that diagnosis

Statute: A.R.S. §§36-550(4) and 36-501(22)

Regulations: A.A.C. R9-21-302 to 305

Medicaid and SMI Covered Behavioral Health Services

SMI and Title 19 (Medicaid)Behavioral Health Services

Case management Psychotropic

medication & monitoring Outpatient

Therapy/Counseling Behavioral

Management Psychosocial

rehabilitation (living skills, health promotion, job coaching and employment support)

Respite Transportation Crisis Stabilization In-patient treatment Day treatment Residential Services In patient psychiatric

facility Respite Therapeutic foster care

SMI Only Mental Health Services

Housing Assistance Flex Funds (also available for children under 21

enrolled with a RHBA & eligible for AHCCCS); are discretionary and may, if approved by DBHS, be limited to cover certain expenses (back rent to avoid eviction; utility bills to avoid shutoff; for items specifically identified in the individual service plan (ISP) and amount may be less than maximum permitted by DBHS

Advocacy from Office of Human Rights

Non-Title 19 & Non-SMI Services

Services available

depending on state funds:

Emergency Services Individual therapy Group therapy Family therapy

Children’s Behavioral Health System

JK v. Eden (settlement March 20, 2001) Class action lawsuit under EPSDT (Early Periodic

Screening, Diagnosis, & Treatment) provisions of Medicaid (Title 19) that challenged state’s failure to provide adequate mental health services to children under 21

Statewide Class: children under 21 eligible for AHCCCS Entire stipulation extended to 2010

Vision and 12 Principles Delivery Method: Child & Family Team Process ACDL’s Title 19 Appeal Guide

EPSDT Services

Early Periodic Screening, Diagnosis, & Treatment (EPSDT); 42 U.S.C. §1396d(r)

Mandatory service for children and youth under 21

Established by Congress in 1967 with intent to be the “nation’s largest preventative health program for children;” amended in 1989 to broaden scope of services

EPSDT Services (cont’d)

Intended to be a comprehensive package of screening, diagnostic, and treatment services

All necessary health care to “correct or ameliorate” physical or mental problems or conditions

Covers all medically necessary services, even if service is not in the state plan and/or is not provided to adults under the State Medicaid plan

CIVIL RIGHTS

CIVIL RIGHTS

A.A.C. R9-21-201 to R9-21-209 set out the legal and civil rights of clients, including:

all civil rights within A.R.S. § 36-506, including the right to acquire and dispose of property, sue and be sued, vote, enter into contractual relationships, and the right to hold professional, occupational, or vehicle operator’s licenses;

the right to be free from unlawful discrimination by ADHS/DBHS or any mental health provider based on sex, race, age, sexual preference, or physical or mental handicap;

CIVIL RIGHTS, cont’d

equal access to all existing behavioral health, community, and generic services provided by or through the State of Arizona;

religious freedom and practice according to consumer’s preferences;

to privacy, including the right to not be fingerprinted or photographed (except when admitted to a mental health facility for identification purpose)

to be informed, in appropriate language and terms, of all rights;


to communicate, which includes the right to reasonable access to a telephone, the right to make and receive confidential calls, and to receive assistance as desired and necessary to implement this right;

to send and receive uncensored and unopened mail, to be provided with stationery and postage in reasonable amounts, and to receive assistance as desired and necessary to implement this right;


to be visited by and visit with others and to associate and/or assemble with others, as long as these activities do not cause serious disruptions in the normal functioning of the mental health agency/facility;

to assert grievances, without retaliation, regarding violations of these rights;

to assistance from an attorney, a designated representative, or a human rights office advocate to assert grievance(s);


to adequate, appropriate, flexible, and humane support and treatment consistent with the consumer’s needs, desires, and choices and which are the least restrictive of the consumer’s freedom;

to receive treatment and services that are culturally sensitive in structure, process, and content;

to receive services on a voluntary basis entirely or to maximum extent possible;

to live in one’s own home;


to ongoing participation in the planning, development, and revision of services;

to be provided with a reasonable explanation of one’s condition and treatment;

to give informed consent to all behavioral health services, including medication, and to refuse services, including medication, except in emergencies or where ordered by a court (A.R.S. §§ 36-512 and 513 and A.R.S. §§ 36-520 through 544);


before providing psychotropic medications, services by telemedicine, or electro-convulsive therapy, the mental health agency must obtain written informed consent from the consumer

consumer must be advised of all known risks and side effects of the proposed treatment and must be given information about the diagnosis, the nature of the treatment proposed, the intended outcome, and any alternatives to the proposed treatment


to enjoy basic goods and services without threat of denial or delay

for residential service providers, these include a nutritionally sound diet, clothing, prompt and adequate medical care, social contact, personal possessions, storage, and opportunities for physical exercise and recreation


to a continuum of care that includes case management, outreach, housing and residential services, crisis intervention and resolution, mobile crisis teams, vocational training and opportunities, peer support, social and recreational services, advocacy, family support services, medication evaluation and maintenance, outpatient counseling and treatment, and transportation, among others;


to a continuum of care with programs and services based on individual and/or unique needs and to community services provided in the most normal and least restrictive setting;

to participate in treatment decisions and in developing and implementing the individual service plan (ISP);

to prompt consideration of discharge from an inpatient facility and identification of steps needed to secure discharge.

PROTECTION FROM ABUSE & NEGLECT

PROTECTION FROM ABUSE, NEGLECT, EXPLOITATION, AND MISTREATMENT

no mental health agency may mistreat a consumer or permit mistreatment by any staff;

includes any intentional, reckless, or negligent act or omission that exposes a client to a serious risk of physical or emotional harm;

PROTECTION FROM ABUSE, NEGLECT, EXPLOITATION, AND MISTREATMENT (cont’d)

mistreatment includes abuse, neglect, or exploitation; corporal punishment; unreasonable use or threat of use of force; infliction of mental or oral abuse such as screaming, ridicule, or name calling; incitement or encouragement of others to mistreat a client; transfer or threat of transfer as punishment; restraint or seclusion as a means of coercion, discipline, convenience, or retaliation; any act in retaliation for reporting any violation; and commercial exploitation


abuse means the infliction of physical pain or injury, impairment of bodily function, disfigurement, or serious emotional damage which may be shown by severe anxiety, depression, withdrawal, or untoward aggressive behavior

may be caused by either acts or omissions; may occur if incite another to act

includes sexual misconduct, assault, molestation, incest, or prostitution of or with a client


neglect means a negligent act or omission by a person responsible for providing services, care, or treatment which caused or may have caused injury or death, includes a failure to establish or carry out an appropriate program plan or treatment, failure to provide adequate nutrition, clothing, or medical care, and the failure to provide a safe environment which includes the failure to maintain adequate numbers of appropriately trained staff


exploitation means the illegal use of a consumer’s resources for another individual’s profit or advantage

special sanctions are available for violations, including suspension or revocation of the license of the mental health agency and/or discipline, including dismissal, of any employee

RESTRAINT & SECLUSION

RESTRAINT AND SECLUSION

Mental health agency may only use restraint or seclusion:

to ensure safety of patient or others in an emergency situation;

only after less restrictive methods were tried and failed; until the emergency ceases and client’s and others’

safety can be ensured, even if restraint or seclusion order has not expired; and

in a manner that prevents physical injury, minimizes physical discomfort and mental distress, and complies with the mental health agency’s policies and procedures.

RESTRAINT AND SECLUSION (cont’d)

seclusion or restraint may only be used according to a written order from the physician providing treatment or by an oral order from that physician to a nurse.

where physician not on premises or on call, order may be made by another practitioner depending on type of facility - A.A.C. R9-21-204(G)).

an individual who orders restraint or seclusion must be available for consultation throughout the scheduled period and must order the least restrictive restraint or seclusion necessary to the situation;


restraint includes personal restraint, mechanical restraint, and a drug used as a restraint;

personal restraint means the application of physical force without the use of any device for the purpose of restricting the free movement of a consumer’s body;

for Level 1 facilities, does not include holding a client for no more than 5 minutes without undue force to calm or comfort the client or holding a client’s hand to escort from one area to another;


mechanical restraint means any device, article, or garment attached or adjacent to a consumer’s body such that the consumer cannot easily remove and that restricts the consumer’s freedom of movement;

drug used as a restraint means a pharmacological restraint that is not standard treatment for a consumer’s medical or mental health condition administered to manage behavior for safety of consumer or others and temporarily restricts the consumer’s freedom of movement (see also A.R.S. § 36-513)


orders for mechanical restraint or seclusion must be time-limited and cannot exceed 3 hours;

restraint by drugs must be limited to the dosage necessary to reach desired result and must not include a drug with a time release that exceeds 3 hours;

PRN (medication given as needed) orders may not be used for any form of restraint or seclusion;

all instances of seclusion and restraint must be properly recorded in the patient’s medical record.

INDIVIDUAL SERVICE PLANS

INDIVIDUAL SERVICE PLAN (ISP)

An Individual Service Plan (ISP) is the written plan for services; it includes goals and addresses ways to reach those goals

Under the SMI rules, all eligible adults must receive an individual assessment and evaluation to identify their needs and wants, including, but not limited to, all behavioral health, medical, housing, educational, social, and cultural needs and wants

ASSESSMENT FOR ISP MUST EVALUATE:

Presenting concerns Mental health treatment Medical conditions and

treatment Sexual behavior and any

sexual abuse Any substance abuse Living environment Employment Language &

communication capabilities

Educational and vocational training

Interpersonal, social, & cultural skills

Developmental history Criminal justice history Public & private

resources Legal status & apparent

capability Need for special

assistance

ASSESSMENT FOR ISP MUST INCLUDE:

a risk assessment of client

a mental status examination of client

a summary, observa-tions, & impressions

diagnostic impressions of the qualified clinician

recommendations for next steps and

other relevant information

participation from the client, qualified clinician, client’s case manager, and all members of the client’s clinical team, including a behavioral health professional and technicians, family members, para-professionals, & any other person who is necessary to ensure that the assessment is comprehensive

ISP (cont’d)

A qualified clinician must prepare an assessment within 45 days of a request or referral for SMI eligibility

Within 5 days of completing the assessment report, the clinical team and client shall identify the most appropriate service providers

The case manager has the responsibility to contact the identified provider to determine whether that provider can serve the client

To determine the most appropriate service provider, must consider:

The client’s preferences for type, location, & intensity of services;

The capacity & experience of the provider to meet the client’s assessed needs;

The proximity of the provider to the client’s family & home community;

The availability & quality of services offered by the provider; and

Other factors deemed relevant by the client & clinical team

ISP, cont’d

Within 20 days of completion of the assessment, the case manager must convene an ISP meeting

The ISP must contain long-term goals and identify particular services needed to meet those goals

ISP must state whether the client needs providers who are proficient in any language other than English

ISP, cont’d

ISP must include the least restrictive services, consistent with the client’s needs and preferences without regard to the availability of services or resources

Services must maximize the client’s strengths, independence, and integration into the community

Generic services available to the general public may be used if they are accessible and adequate to meet a client’s needs

ISP, cont’d

ISP must include target dates for beginning each service and the anticipated duration of each service

ISP must identify the persons or providers responsible for each long-term and short-term objective in the ISP

ISP must identify any need for alternative housing or residential setting and include a plan for support and monitoring of any housing change

ISP, cont’d

ISP must describe the methods and persons responsible for ensuring that services are provided as described in the ISP, are adequately coordinated, and are regularly monitored for effectiveness

If the services identified in the ISP are not available, the team must develop an alternate plan

If appropriate services for unmet needs cannot be identified by the clinical team, DBHS retains duty to provide them

ISP, cont’d

A client may accept some of the identified services and reject others;

a client’s refusal to accept a service, including case management services, or to refuse a particular mode or course of treatment, cannot bar a client from access to other services

If the client, guardian, or representative does not object to the ISP within 30 days after receiving a completed copy, it is deemed accepted

ISP, cont’d

If a client, guardian, or representative of client rejects all or part of the ISP, the case manager must send a notice about the right to appeal or the client may opt to meet with the clinical team within 7 days of the rejection to discuss the plan and suggest modifications

interim and emergency services for persons with SMI may be provided while the ISP is being developed

ISP, cont’d

If ISP includes residential, vocational or other primary services providers that are not currently providing services, the ISP is reviewed within 30 days of date services are provided; each service provider must bring a detailed description of the objectives and services being provided

If ISP only includes primary service providers, the first ISP review is held within 6 months of when the ISP was accepted or the appeal completed

MODIFICATION OR TERMINATION OF ISP

May be initiated at ISP review meeting or any other time as necessary to more adequately meet the client’s needs, goals, or objectives

May be requested by the client, his or her guardian or representative, or any member of the clinical team

Case manager must give written notice of any request for modification or termination of the ISP to the client, all providers, and team members

MODIFICATION OR TERMINATION OF ISP, cont’d

ISP shall be modified: where the client withdraws consent to all or

part of the ISP or no longer needs a service; where client consents to services that are

more suitable but were previously refused; where the needs of the client have changed

due to progress or lack of progress in meeting goals and objectives;

where client wants to change the long-term view and focus of the ISP;

MODIFICATION OR TERMINATION OF ISP, cont’d

ISP shall also be modified: where the proposed change will permit the

client to receive services that are more consistent with the client’s needs; less restrictive of the client’s freedom; more integrated in the community; or more likely to maximize the client’s ability to live independently

Denials of right to modify the ISP must be put in writing and can be appealed

INPATIENT TREATMENT & DISCHARGE PLANS

INPATIENT TREATMENT AND DISCHARGE PLAN (ITDP)

Every client of an inpatient facility must have an ITDP

ITDP must be developed by the inpatient treatment team, the case manager, and other members of the clinical team as appropriate with the fullest possible participation of the client and any representative or others the client wants at the meeting

ITDP must be written in easily understood language

ITDP, cont’d

ITDP must include the most appropriate and least restrictive services available at the facility

ITDP must also include a plan for the client’s discharge to the community

ITDP must identify treatment interventions and services that maximize the client’s strengths, independence, and integration into the community

ITDP, cont’d

ITDP must contain goals and objectives that are measurable and that facilitate meaningful evaluation of progress made toward reaching those goals and objectives

Delays in the assignment of a case manager or in the development or modification of an ISP or ITDP must not prevent the discharge of a client from an inpatient facility

ITDP MUST ALSO INCLUDE:

Client’s preferences, strengths, and needs

A description of appropriate services to meet client’s needs

For non-acute facilities, long-range goals to assist client to attain most self-fulfilling, age-appropriate, & independent life style

Long-term goals must be stated in terms that the client understands and accepts and that allow objective measuring of progress

Expected dates of completion for each stated objective

Identification of person responsible to ensure services are provided & monitored

TIME FOR CREATION OF ITDP

A preliminary ITDP must be developed within 3 days of admission to an inpatient facility

A full ITDP must be developed with 7 days of admission to an inpatient facility

If the client’s anticipated stay is less than 7 days, an acute inpatient facility must develop a preliminary ITDP within 1 day and a full ITDP within 3 days of admission

ACCEPTANCE OR REJECTION OF ITDP

Within 2 days of distribution of ITDP, case manager must ask client whether it is accepted; if client does not accept or reject ITDP within 10 days, it is deemed accepted

If a client, guardian, or representative of client rejects all or part of the ITDP, the case manager must send a notice about the right to appeal or the client may opt to meet with the treatment team within 5 days of the rejection to discuss the plan and suggest modifications

ACCEPTANCE OR REJECTION OF ITDP, cont’d

If the client and the treatment team agree on modifications to the ITDP, the case manager must arrange for approval of the modifications by all members of the inpatient facility’s treatment team

If the matter remains unresolved, the client may appeal the findings or recommendations within 30 days

ITDP, cont’d

A client may reject an ITDP but still accept some or all of the identified treatment interventions or services pending the outcome of the meeting with the treatment coordinator or an appeal

Once the ITDP is approved, it is incorporated into the ISP

the ITDP must be reviewed within the first 30 days and at least once every 60 days during the first year of the inpatient stay

ITDP, cont’d

A facility may review the ITDP more often The clinical team, with the assistance of the

facility’s treatment team, remains responsible for implementing the discharge plan

3 days prior to discharge, the case manager must provide notice to the providers identified in the ISP

Failure to provide the notice must not delay discharge

ITDP, cont’d

Case manager must meet with the client within 5 days of discharge to make sure the ISP is being implemented

The case manager must review the ISP with the clinical team within 30 days of the discharge to determine whether any modifications are appropriate

DUE PROCESS RIGHTS

Medicaid Due Process As It Applies to Mental Health Services

(AHCCCS/ALTCS)

Kids: This appeal/grievance process is the process for children enrolled in the public mental health system.

Adults: Adults in ALTCS. Also, adults in the RBHA system can file an AHCCCS appeal instead of a DBHS appeal if they are enrolled in AHCCCS.

Title 19/Medicaid Due Process Requirements

Written Notice of denial, termination or change in service

Right to a fair hearing Right to be represented at hearing Right to continuation of existing services

pending hearing; liable for costs if lose Right to reimbursement for costs if services

wrongly denied

DUE PROCESS REQUIREMENTS

To satisfy due process requirements, the intent to take adverse action (denial, termination, suspension, or change in services) must be provided in an adequate and timely written notice and the consumer must be given an opportunity to be heard before an impartial decision maker

Consumer must be granted the right to be represented by person of choice (advocate, attorney, guardian, family member, friend, or other person so designated)

DEFINITIONS

REDUCTION: a decision to reduce the frequency or duration of an on-going service; does not include a planned change in service frequency or duration initially identified in the individual service plan (ISP) and agreed to in writing by the person receiving services or the legal guardian.

SUSPENSION: a decision to temporarily stop providing a service

TERMINATION: a decision to stop providing a service; does not include the end of a specific treatment program with an established end date initially identified in the ISP and agreed to in writing by the person receiving services or the legal guardian.

SOURCES OF DUE PROCESS REQUIREMENTS

U.S. Constitution, 14th Amendment Goldberg v. Kelly, 397 U.S. 254 (1970) AZ State Constitution, Article 2, Section 4 Medicaid Laws and Regulations - 42 U.S.C. §

1396a(a)(3); 42 C.F.R. §§ 431.200 et seq., 438.400, et seq., 438.210

State Laws and Regulations

CONTENT OF NOTICE

Written statement, in plain language, of intended action or action taken

Reasons for the action Specific legal authority for the action Explanation of right to appeal Explanation of right to continued benefits pending

appeal (if adverse action involves a suspension, termination, or reduction in benefits not previously agreed to by the recipient) and liability if appeal lost

Services available to assist consumer to pursue appeal

OTHER NOTICE REQUIREMENTS

Under SMI rules, notices must be delivered by hand or certified mail at least 30 days prior to the effective date of the decision to modify, reduce, suspend, or terminate a service.

Notice of decisions regarding eligibility for SMI services and fees or waivers must be sent within 3 days of the determination.

OTHER NOTICE REQUIREMENTS UNDER ARIZONA LAW

Language - notice and written documents related to the appeals process must be available in each prevalent, non-English language spoken within the RBHA’s GSA

Interpretation Services - providers must provide free oral interpreting services for all non-English languages (RBHA may opt to provide this service)

Alternative Formats - notice and written documents related to the appeals process must be available in alternative formats, such as Braille, large font, or enhanced audio, and take into consideration the special communication needs of the person

PROCEDURE FOR HANDLING APPEALS

METHODS TO RESOLVE PROBLEMS WITH THE PROVISION OF MENTAL HEALTH

SERVICES

APPEALS (AHCCCS/Title 19 & SMI)

GRIEVANCES (AHCCCS/Title 19 & SMI)

COMPLAINTS (SMI)

REQUESTS FOR INVESTIGATION (SMI)

DEFINITIONS

Appeal – a request for review of an action

Action – the denial or limited authorization of a requested service, including the type or level of a service; the reduction, suspension, or termination of a previously authorized service; the denial (in whole or part) of payment for service; the failure to provide services in a timely manner; the failure to act within established timeframes to resolve an appeal or complaint; the failure to provide notice to affected party; and the denial to provide services outside the network for Title XIX and Title XXI persons in a rural area.

DEFINITIONS, cont’d

Grievance – under SMI code, a complaint filed by or on behalf of a person with a SMI regarding violation of civil rights by an act or failure to act

Grievance – under AHCCCS rules, an expression of dissatisfaction about any matter other than an action; includes the quality of care or services provided, failure to respect the rights of an enrollee, and rudeness of a provider or employee

DEFINITIONS, cont’d

Complaint – under SMI rules, an expression of dissatisfaction about any matter other than an action

Request for Investigation – under SMI rules, an allegation that a condition or incident appears to be dangerous, illegal, or inhumane

AHCCCS/ALTCS Appeals Process

Step 1: Request Service

Step 2: Notice of Action

Step 3: Notice of Appeal Decision

Step 4: Fair Hearing

Step 5: ALJ Decision

Step 6: AHCCCS Director’s Decision

Step 7: Appeal to Superior Court

Right to File Appeal

An AHCCCS/ALTCS member has the right to file an appeal if the contractor/health plan takes any of the following actions:

1. denies or limits authorization for a requested service, including type or level of service

2. reduces, suspends or terminates a previously authorized service

3. denies, in whole or part, payment for a service

Right to File Appeal (cont’d)

4. Fails to provide a service in a timely

manner, as set forth in contract 5. Fails to act within the appeal timeframes 6. For enrollee living in a rural area with only

one contractor, the denial of enrollee’s request to exercise right to obtain services outside of contractor’s network

A.A.C. R9-34-202

Notice and Time for Filing

A.A.C. R9-34-205 governs content of the notice and must describe the action taken, reason for the action, appeal rights, appeal procedures, expedited appeal process, and the right to continued service

Appeals must be filed within 60 days of the date of the Notice of Action. A.A.C. R9-34-209

Right to Expedited Appeal Resolution

Beneficiary or physician requests after Notice of Action

Standard: “taking the time for standard resolution could seriously jeopardize the enrollee’s life or health, or ability to attain, maintain, or regain maximum function”

Must resolve within 3 working days A.A.C. R9-34-214 and 215

Right to Expedited Hearing

Beneficiary or physician requests on Notice of Expedited Appeal Resolution

AHCCCS Director makes decision 3 working days after receiving ALJ recommended decision

A.A.C. R9-34-219 and 220

Right to Continuation of Services

Must file within 10 days of Notice of Action Must involve termination, suspension, or

reduction of current services Original authorization period has not

expired If beneficiary loses, liable for cost of

services A.A.C. R9-34-224

Right to Reimbursement

AHCCCS wrongly denied services, beneficiary has right to reimbursement for services privately paid

AHCCCS regulation mandates payment to “provider” A.A.C. R9-34-225 HOWEVER

Medicaid regulations permit payment directly to beneficiary 42 C.F.R.431.246 and 42 C.F.R. 438.424

AHCCCS GRIEVANCE PROCESS

a grievance is an expression of dissatisfaction about any matter other than an action, such as the quality of care or services provided or aspects of interpersonal relationships (rudeness of provider or employee or failure to respect an enrollee’s rights)

Grievance must be filed with the contractor within 60 days of event

AHCCCS GRIEVANCE PROCESS, cont’d

Grievance may be filed orally or in writing Contractor must complete disposition of the

grievance and mail the written decision to the enrollee within 90 days after the day the contractor receives the grievance

The contractor’s decision is final Enrollee is not entitled to a State Fair Hearing

on a grievance

APPEALS UNDER SMI RULES

SMI CODE Appeals Process

Step 1: Request Service/Action/PaymentStep 2: Notice of Decision Step 3: File Request for Appeal of DecisionStep 4: Informal Conference with RBHAStep 5: Second Level Conference with DBHSStep 6: Fair Hearing Before ALJStep 7: ALJ’s Recommended DecisionStep 8: ADHS Director’s DecisionStep 9: Motion for Rehearing/ReviewStep 10:Appeal to Superior Court

MAY FILE APPEAL OF DECISIONS REGARDING:

eligibility for mental health services;

the sufficiency or appropriateness of assessments and further evaluations;

service and treatment plans, including the view, service goals, objectives, or timeliness, as stated in ISP or ITDP

the recommended or actual services in the ISP, interim plan, or ITDP;

denial of payment for services;

fee assessments or denial of a fee waiver;

service planning decisions; and

implementation of planning decisions

SMI APPEALS

Persons enrolled in both SMI system and AHCCCS have right to file appeal

under SMI rules and/or

AHCCCS rules

SMI Appeal Procedures

applicants and consumers must be informed of the right to file an appeal at the time the application for services is made;

when an eligibility determination is made;

when a decision regarding fees or a waiver of fees is made;

SMI Appeal Procedures (cont’d)

upon receipt of an assessment report;

during the ISP, ITDP, and review meetings;

when an ISP, ITDP, or any modification to an ISP or ITDP is distributed; and

when any service is suspended or terminated.

INITIATION OF AN APPEAL

Appeals may be initiated:

by the consumer, applicant, or the guardian of a consumer or applicant;

by the consumer’s or applicant’s designated representative; or

by a service provider, with permission of consumer, applicant, or guardian.

INITIATION OF AN APPEAL (cont’d)

appeal may be made orally or in writing appeal directed to the director of the RBHA or

director’s designee should include a brief statement of the reasons

for the appeal and the name, address, and telephone number of the applicant, consumer, or designated representative

appeal request should be filed within 60 days of receiving written notice of the decision, report, plan, or action being appealed; late appeals may be accepted for good cause


at time appeal is initiated, consumer may request an expedited appeal; all time frames will be shortened A.A.C. R9-21-401 (H)

RBHA director shall accept expedited appeal on issues related to crisis or emergency services and others for good cause.

if accepted for expedited appeal, informal conference held within 2 days.

may appeal to division or go directly to a State administrative hearing.


within 5 days of receipt of appeal, RBHA must notify consumer/representative of receipt

director of the RBHA or director’s designee may accept a late appeal for good cause; if not accepted for good cause, written notice with the reason(s) must be sent; within 10 days of that denial, may appeal to Deputy Director of DBHS who must act within 15 days; deputy director’s decision is final.

Step 1: Informal conference with the RBHA

within 7 days of receipt of appeal request, RBHA director/designee holds an informal conference

consumer, designated representative and/or guardian, case manager, representatives of clinical team, and representative of provider, as appropriate, attend

date, time, & place arranged by RBHA director/designee

may attend by telephone

Step 1: Informal conference with the RBHA, cont’d RBHA director/designee chairs conference and

acts as mediator

if resolution not reached, issues for further appeal are clarified, any material facts all can agree upon are determined

only statements of participants that are agreed upon and reduced to writing will be admissible in subsequent proceedings

Step 2: Informal conference with the Division (DBHS) if informal conference with the RBHA does

not resolve the appeal, the matter may proceed to an informal conference with the division (DBHS)

this is sometimes called a “second level conference”

informal conference with the division may be waived in order to directly proceed to a state administrative hearing

Step 2: Informal conference with DBHS, cont’d

within 3 days of the conclusion of the informal conference with the RBHA, all materials are forwarded to DBHS and the parties

the Informal Conference Decision/Packet, must accurately reflect what happened at the conference; must clearly set out the issue(s); and include all necessary/relevant information

within 15 days of receipt of notification, the DBHS deputy director/designee holds an informal conference (second level)


consumer, designated representative and/or guardian, case manager, representatives of clinical team, and representative of provider, as appropriate attends

date, time, & place arranged by RBHA director/designee


may attend by telephone

if consumer does not have representation, the deputy director may designate a human rights advocate or other person to assist the consumer

DBHS deputy director/designee acts as mediator

Step 3: State Administrative Hearing (fair hearing)

if resolution not reached, issues for further appeal are clarified, any material facts all can agree upon are determined, and the consumer is given written notice of appeal rights under A.R.S. §41.1092.03

consumer has 30 days from date of notice to file a request for a fair hearing. A.R.S. §41.1092.03 (B)

Step 3: State Administrative Hearing, cont’d

if requested, division will file the request for an administrative hearing on consumer’s behalf within 3 days of completion of the conference

only statements of participants that are agreed upon and reduced to writing will be admissible in subsequent proceedings

ALJ may hold a prehearing conference to outline issues and determine whether any agreements can be reached between the parties

Step 3: State Administrative Hearing, cont’d

parties may present oral testimony of witnesses, written documentary evidence, written or oral legal argument, and copies of rules and other documents that may govern issues at the administrative hearing

ALJ issues a recommended decision that may be accepted, rejected, or modified by the Director of ADHS

The decision from the ADHS Director is final

Step 4: Appeal of ADHS Director’s Decision

Upon motion, a party may seek a rehearing or review of the final decision

Request must be filed within 30 days after service of the Director’s decision (A.R.S. 41-1092.09; A.A.C. R9-1-103)

Step 4: Appeal of ADHS Director’s Decision, cont’d

AHCCCS Standard: motion may be granted where party can show:

Irregularity in the proceedings of the hearing that deprived an enrollee of a fair hearing;

Misconduct of a party or an agency; Newly discovered material evidence that

could not, with reasonable diligence, have been discovered and produced at the hearing;


The decision is the result of passion or prejudice;

The decision is not justified by the evidence or is contrary to law; or

Good cause is established for the nonappearance of the enrollee at the hearing.


SMI Code Standard: ADHS Director may grant a rehearing or review of a final agency decision for any of the following reasons materially affecting the requesting party’s rights (A.A.C. R9-1-103):

Irregularity in the proceedings of the hearing or an abuse of discretion that deprived a party of a fair hearing;

Misconduct by the ALJ or the prevailing party;

Step 4: Appeal of ADHS Director’s Decision, cont’d Accident or surprise that could not have been

prevented by ordinary prudence; Newly discovered evidence that could not

with reasonable diligence have been discovered & produced at the hearing;

Excessive or insufficient penalties; Error in the rejection or admission of evidence

or other errors of law at hearing; or Decision not supported by evidence or

contrary to law.

Step 5: Complaint for Judicial Review

A party who is dissatisfied with the ADHS Director’s decision or with the denial of a motion for rehearing or review, may file a complaint with Superior Court

Complaint must be filed within 35 days from the date of service of the decision being appealed, plus 5 days if the decision was mailed (A.R.S. § 12-904(A))

PROCEDURE FOR HANDLING GRIEVANCES,

COMPLAINTS & INVESTIGATIONS UNDER

SMI CODE

GRIEVANCES, COMPLAINTS, & INVESTIGATIONS

A.A.C. R9-21-402 to R9-21-410 - governs grievances, complaints, & requests for investigations for persons with SMI

may be filed by consumer, guardian, human rights advocate, human rights committee, state protection & advocacy program, designated representative, or other concerned person

may be submitted orally or in writing to director or any employee of provider agency or with the RBHA

if requested orally, should follow up with written request, citing reason(s) for request (see PM Form 5.3.1)

GRIEVANCES, COMPLAINTS, & INVESTIGATIONS, cont’d

All grievance requests must be filed within one year from the act that forms the basis of the grievance

Grievance procedure is used to redress rights violations, including any allegations of physical or sexual abuse, sexual misconduct, physical neglect, discrimination, and mistreatment

NOTE: claims concerning the need for or appropriateness of behavioral health services or community services should generally be filed as appeals according to the ISP rules


Persons responsible for resolving grievances:

Allegations regarding physical abuse, sexual abuse, or sexual misconduct in a mental health facility or agency or by an employee of such facilities or agencies must be addressed to and decided by the DBHS Deputy Director

All other allegations of rights violations are addressed to and initially decided by the RBHA director or, if the mental health agency is operated by a governmental agency, the director of that agency


Persons responsible for resolving allegations involving conditions that require investigations:

Death of a consumer which occurred in a mental health facility or by an action of an employee of such facilities or agencies must be addressed to and decided by the DBHS Deputy Director

All other allegations are addressed to and initially decided by the RBHA director or, if the mental health agency is operated by a governmental agency, the director of that agency


DBHS policy: to conduct investigations and resolve matters in 4 situations1. death of a client/consumer;2. allegation of rights violation;3. a dangerous, illegal, or inhumane condition exists; and4. where an investigation would be in the public interest, as determined by ADHS director or DBHS deputy director.

once the grievance or request for investigation has been filed, action must be taken to reasonably protect the health, safety, and security of any consumer, witness, or person filing the grievance or investigation request


Disposition of grievances and requests for investigation:

Summary disposition made be made where alleged rights violation occurred more than one year prior to date when grievance or investigation request was made

If grievance or investigation request primarily concerns the level or type of mental health treatment provided and does not involve allegations of a rights violation, resolution may be referred through the ISP process or the appeals process


Disposition without investigation:

Agency director or DBHS Deputy Director may, within 7 days of receiving the request, resolve a matter without investigation if the matter involves no factual disputes, is patently frivolous (i.e, issue not within scope of R9-21 SMI rules, could not possibly have occurred as alleged, is substantially similar to conduct alleged in 2 previous grievances or investigation requests within past 2 years that were determined to be unsubstantiated, or within 7 days person filing grievance or investigation request agrees that matter can be resolved without a formal investigation), or is resolved fairly and efficiently within 7 days without a formal investigation


Written decision must explain the essential facts and describe why the matter can be resolved without the appointment of an investigator

Where investigation is required, must follow procedures in A.A.C. R9-21-405 (D) & (E) and R9-21-406

See ADHS/DBHS Policy GA 3.1 “Conduct of Investigations Concerning Persons with Serious Mental Illness”


Remedies available: ADHS/DBHS deputy director, RBHA director,

or Chief Executive Officer of the Arizona State Hospital may:

Identify training or supervision for or disciplinary action against a person found to be responsible for a rights violation or condition requiring investigation;

Develop or modify a mental health agency’s practices or protocols;


Remedies, continued: Notify the regulatory entity that licensed or

certified an individual of the findings of the investigation; or

Impose sanctions, which may include monetary penalties, according to the terms of a contract, if applicable.


If dissatisfied with final decision of the grievance or investigation request, individual may, within 30 days of receipt of decision, file a notice of appeal with the DBHS deputy director

Must send copies of notice of appeal to all other parties and agency director

DBHS deputy director assembles case record and may discuss with any person involved or hold an informal conference


Within 15 days of filing appeal, the DBHS deputy director prepares a written, dated decision that accepts the investigator’s report, in whole or part, at least with respect to the facts as found, and affirm, modify, or reject the decision with a statement of the reasons, or

Rejects the report for insufficiency of facts and return the matter with instructions for further investigation and decision

Further investigation and revised report completed within 10 days


Designated representative must be given opportunity to be present at any meeting or conference convened by the DBHS deputy director regarding resolution of the grievance or investigation request

If dissatisfied with the final decision reached, may file a request for an administrative hearing before an ALJ within 30 days of the date of the decision

By: Patrice Gillotti, Staff Attorney Arizona Center for Disability Law Southern Arizona Disability...

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