Ariz. Admin. Code § 9-21-401

Current through Register Vol. 30, No. 45, November 8, 2024

Section R9-21-401 - Appeals

A. A client or an applicant may file an appeal concerning decisions regarding eligibility for behavioral health services, including Title XIX services, fees and waivers; assessments and further evaluations; service and treatment plans and planning decisions; and the implementation of those decisions. Appeals regarding a determination of categorical ineligibility for Title XIX shall be directed to the agency that made the determination.

1. Disagreements among employees of the Administration, the health plan, clinical teams, and service providers concerning services, placement, or other issues are to be resolved using the Administration's guidelines, rather than this Article.

2. The case manager shall attempt to resolve disagreements prior to utilizing this appeal procedure; however, the client's right to file an appeal shall not be interfered with by any mental health agency or the Administration.

3. The Office of Human Rights shall assist clients in resolving appeals according to R9-21-104.

4. If a client or, if applicable, an individual on behalf of the client, files an appeal of a modification to or termination of a behavioral health service according to this Section, the client's non-Title IXX services shall continue while the appeal is pending unless:

a. A qualified clinician, and, if applicable, the Department of Economic Security, determines that the modification or termination is necessary to avoid a serious or immediate threat to the health or safety of the client or another individual; or

b. The client or, if applicable, the client's guardian agrees in writing to the modification or termination.

B. Applicants and clients shall be informed of their right to appeal at the time an application for services is made, when an eligibility determination is made, when a decision regarding fees or the waiver of fees is made, upon receipt of the assessment report, during the ISP, ITDP, and review meetings, at the time an ISP, ITDP, and any modification to the ISP or ITDP is distributed, when any service is suspended or terminated, and at any other time provided by this Chapter. The notice shall be in writing in English and Spanish and shall include:

1. The client's right to appeal and to an administrative hearing according to A.R.S. § 41-1092.03;

2. The method by which an appeal and an administrative hearing may be obtained;

3. That the client may represent himself or use legal counsel or other appropriate representative;

4. The services available to assist the client from the Office of Human Rights, Independent Oversight Committees, State Protection and Advocacy System, and other peer support and advocacy services;

5. What action the mental health agency or health plan intends to take;

6. The reasons for the intended action;

7. The specific rules or laws that support such action; and

8. An explanation of the circumstances under which services will continue if an appeal or an administrative hearing is requested.

C. The right to appeal in this Section does not include the right to appeal a court order entered according to A.R.S. Title 36, Chapter 5, Articles 4 and 5. The following issues may be appealed:

1. Decisions regarding the individual's eligibility for behavioral health services;

2. The sufficiency or appropriateness of the assessment or any further evaluation;

3. The long-term view, service goals, objectives, or timelines stated in the ISP or ITDP;

4. The recommended services identified in the assessment report, ISP, or ITDP;

5. The actual services to be provided, as described in the ISP, plan for interim services, or ITDP;

6. The access to or prompt provision of services provided under Title XIX;

7. The findings of the clinical team with regard to the client's competency, capacity to make decisions, need for guardianship or other protective services, or need for special assistance;

8. A denial of a request for a review of, the outcome of a review of, a modification to or failure to modify, or a termination of an ISP, ITDP, or portion of an ISP or ITDP;

9. The application of the procedures and timetables as set forth in this Chapter for developing the ISP or ITDP;

10. The implementation of the ISP or ITDP;

11. The decision to provide service planning, including the provision of assessment or case management services, to a client who is refusing such services, or a decision not to provide such services to such a client; or

12. Decisions regarding a client's fee assessment or the denial of a request for a waiver of fees;

13. Denial of payment for a client; and

14. Failure of the health plan or the Administration to act within the time frames for appeal established in this Chapter.

D. Initiation of the appeal.

1. An appeal may be initiated by the client or by any of the following persons on behalf of a client or applicant requesting behavioral health services or community services:

a. The client's or applicant's guardian,

b. The client's or applicant's designated representative, or

c. A service provider of the client, if the client or, if applicable, the client's guardian gives permission to the service provider;

2. An appeal is initiated by notifying the health plan of the decision, report, plan or action being appealed, including a brief statement of the reasons for the appeal and the current address and telephone number, if available, of the applicant or client and designated representative if one is provided.

3. An appeal shall be initiated within 60 days of the decision, report, plan, or action being appealed. However, the health plan shall accept a late appeal for good cause. If the health plan refuses to accept a late appeal or determines that the issue is not appealable under subsection (C) of this article, health plan shall notify the individual or client in writing, with a statement of reasons for the decision. Within 10 days of the notification, the client or applicant may request review of that decision by the Administration, which shall act within 15 days of receipt of the request for review. The decision of the Administration shall be final.

4. Within five days of receipt of an appeal, the health plan shall inform the client in writing that the appeal has been received and of the procedures that shall be followed during the appeal.

E. Informal conference with the health plan.

1. Within seven days of receipt of the notice of appeal, the health plan shall hold an informal conference with the client, any designated representative and/or guardian, the case manager and representatives of the clinical team, and a representative of the service provider, if appropriate.

a. The health plan shall schedule the conference at a convenient time and place and shall inform all participants in writing of the time, date, and location two days before the conference.

b. Individuals may participate in the conference by telephone.

2. The health plan shall chair the informal conference and shall seek to mediate and resolve the issues in dispute. To the extent that resolution satisfactory to the client or guardian is not achieved, the health plan shall clarify issues for further appeal and shall determine the agreement, if any, of the participants as to the material facts of the case.

3. Except to the extent that statements of the participants are reduced to an agreed statement of facts, all statements made during the informal conference shall be considered as offers in compromise and shall be inadmissible in any subsequent hearing or court proceedings under this rule.

4. If the informal conference with the health plan does not resolve the issues in dispute to the satisfaction of the client or, if applicable, the client's guardian, and the issues in dispute are not related to the client's eligibility for behavioral health services, the client or, if applicable, the client's guardian shall be informed that the matter may be further appealed to the Administration, and of the procedure for requesting a waiver of the informal conference with the Administration.

5. If a client or, if applicable, the client's guardian waives the right to an informal conference with the Administration according to subsection (E)(4) or, if the informal conference with the health plan does not resolve the issues in dispute to the satisfaction of the client or, if applicable, the client's guardian, and the issues in dispute are related to the client's eligibility for behavioral health services, the health plan shall, at the informal conference:

a. Provide written notice to the client or, if applicable, the client's guardian according to A.R.S. § 41-1092.03, and

b. Ask the client or, if applicable, the client's guardian whether the client or, if applicable, the client's guardian would like the health plan to request an administrative hearing according to A.R.S. § 41-1092.03 on behalf of the client.

c. For a client who needs special assistance, send a copy of the notice in subsection (5)(a) to the appropriate In-dependent Oversight Committee in the Office of Human Rights.

6. If, at the informal conference, a client or, if applicable, the client's guardian requests that the health plan file a request for an administrative hearing according to A.R.S. § 41-1092.03 on behalf of the client, the health plan shall file the request within three days of the informal conference.

7. If resolution satisfactory to the client or guardian is achieved, the health plan shall issue a dated written notice to all parties which shall include a statement of the nature of the appeal, the issues involved, the resolution achieved and the date by which the resolution will be implemented.

F. Informal conference with the Administration.

1. Within three days of the conclusion of an informal conference with the health plan according to subsection (E)(4), the health plan shall notify the Administration and shall immediately forward the client's notice of appeal, all documents relevant to the resolution of the appeal and any agreed statements of fact.

2. Within 15 days of the notification from the health plan, the Administration shall hold an informal conference with the client, any designated representative and/or guardian, the case manager, and representatives of the clinical team, the service provider, if appropriate, for the purpose of mediating and resolving the issues being appealed.

a. The Administration shall schedule the conference at a convenient time and place and shall inform the participants in writing of the time, date, and location five days prior to the conference.

b. Individuals may participate in the conference by telephone.

c. If a client is unrepresented at the conference but needs /requests assistance, or if for any other reason the Administration determines the appointment of a representative to be in the client's best interest, the Administration may designate a human rights advocate or other person to assist the client in the appeal.

3. To the extent that resolution satisfactory to the client or guardian is not achieved, the Administration shall clarify issues for further appeal and shall determine the agreement, if any, of the participants as to the material facts of the case.

4. If resolution satisfactory to the client or guardian is achieved, the Administration shall issue a dated written notice to all parties which shall include a statement of the nature of the appeal, the issues involved, the resolution achieved, and the date by which the resolution will be implemented.

5. Except to the extent that statements of the participants are reduced to an agreed statement of facts, all statements made during the informal conference shall be considered as offers in compromise and shall be inadmissible in any subsequent hearing or court proceedings under this rule.

6. If all issues in dispute are not resolved to the satisfaction of the client or guardian at the informal conference with the Administration, the Administration shall, at the informal conference:

a. Provide written notice to the client or, if applicable, the client's guardian according to A.R.S. § 41-1092.03, and

b. Ask the client or, if applicable, the client's guardian whether the client or, if applicable, the client's guardian would like the Administration to file a request for an administrative hearing according to A.R.S. § 41-1092.03 on behalf of the client.

c. For all clients including clients who needs special assistance, send a copy of the notice in subsection (6)(a) to the Office of Human Rights and make the notice available to the appropriate Independent Oversight Committee.

7. If, at the informal conference, a client or, if applicable, the client's guardian requests that the Administration file a request for an administrative hearing according to A.R.S. § 41-1092.03 on behalf of the client, the Administration shall file the request within three days of the informal conference according to subsection (G).

G. The state fair hearing.

1. Within three days of the informal conference with the Administration, if the conference failed to resolve the appeal, or within five days of the date the conference was waived, the Administration shall forward a request to schedule a state fair hearing.

2. Within five days of the notification, the Administration shall send a written notice of state fair hearing to all parties, informing them of the time and place of the hearing, the name, address, and telephone number of the Administrative Law Judge, and the issues to be resolved. The notice shall also be sent to the appropriate Independent Oversight Committee in the Office of Human Rights for all clients who need special assistance.

3. A state fair hearing shall be held on the appeal in a manner consistent with A.R.S. § 41-1092 et seq., and those portions of 9 A.A.C. 1 which are consistent with this Article.

4. During the pendency of the appeal, the client, any designated representative and/or guardian, the clinical team, and representatives of any service providers may agree to implement any part of the ISP or ITDP or other matter under appeal without prejudice to the appeal.

5. The client or applicant shall have the right to be represented at the hearing by a person chosen by the client or applicant at the client's or applicant's own expense, in accordance with Rule 31, Rules of the Supreme Court.

6. The client, any designated representative and/or guardian, and the opposing party shall have the right to present any evidence relevant to the issues under appeal and to call and examine witnesses. The Administration shall have the right to appear to present legal argument.

7. The client and any designated representative and/or guardian shall have the right to examine and copy at a reasonable time prior to the hearing all records held by the Administration, health plan, or service provider pertaining to the client and the issues under appeal, including all records upon which the ISP or ITDP decisions were based.

8. Any portion of the hearing may be closed to the public if the client requests or if the Administrative Law Judge determines that it is necessary to prevent the unwarranted invasion of a client's privacy or that public disclosure would pose a substantial risk of harm to a client.

H. Expedited appeal.

1. At the time an appeal is initiated, the applicant, client, or mental health agency may request orally or in writing an expedited appeal on issues related to crisis or emergency services or for good cause. Any appeal from a decision denying admission to or continued stay at an inpatient psychiatric facility due to lack of medical necessity shall be accompanied by all medical information necessary to resolution of the appeal and shall be expedited.

2. An expedited appeal shall be conducted in accordance with the provisions of this Section, except as provided for in this subsection.

3. Within one day of receipt of an expedited appeal, the health plan shall inform the client in writing that the appeal has been received.

4. The health plan shall accept an expedited appeal on issues related to crisis or emergency services. The health plan shall also accept an expedited appeal for good cause. If the regional authority refuses to expedite the appeal based on a determination that good cause does not exist, the health plan shall notify the applicant or client in writing within one day of the initiation of the appeal, with a statement of reasons for the decision, and shall proceed with the appeal in accordance with the provisions of this Section. Within three days of the notification of refusal to expedite the appeal for good cause, the client or applicant may request review of the decision by the Administration, who shall act within one day. The decision of the Administration shall be final.

5. If the health plan accepts the appeal for expedited consideration, the health plan shall hold the informal conference according to R9-21-401(E) within two days of the initiation of the appeal. The health plan shall schedule the conference at a convenient time and place and shall inform all participants of the time, date and location prior to the conference.

6. If the informal conference with the health plan does not resolve the issues in dispute to the satisfaction of the client or, if applicable, the client's guardian, and the issues in dispute are not related to the client's eligibility for behavioral health services, the client or, if applicable, the client's guardian shall be informed that the matter may be further appealed to the Administration, and of the procedure for requesting waiver of the informal conference with the Administration.

7. If a client or, if applicable, the client's guardian waives the right to an informal conference with the Administration or, if the informal conference with the health plan does not resolve the issues in dispute to the satisfaction of the client or, if applicable, the client's guardian, and the issues in dispute are related to the client's eligibility for behavioral health services, the health plan shall, at the informal conference:

a. Provide written notice to the client or, if applicable, the client's guardian according to A.R.S. § 41-1092.03, and

c. Send a copy of the notice in subsection (H)(7)(a) to the Office of Human Rights.

8. If, at the informal conference, a client or, if applicable, the client's guardian requests that the health plan file a request for an administrative hearing according to A.R.S. § 41-1092.03 on behalf of the client, the Administration shall file the request within one day of the informal conference.

9. Within one day of the conclusion of an informal conference with the health plan, the health plan shall notify the Administration if the informal conference failed to resolve the appeal and shall immediately forward the client's notice of appeal and any agreed statements of fact unless the client or, if applicable, the client's guardian waived the client's right to an informal conference with the Administration or the issues in dispute are related to the client's eligibility for behavioral health services.

10. Within two days of the notification from the health plan, the Administration shall hold the informal conference pursuant to subsection (F).

11. If all issues in dispute are not resolved to the satisfaction of the client or if applicable, the client's guardian at the informal conference with the Administration, the Administration shall, at the informal conference:

a. Provide written notice to the client or, if applicable, the client's guardian according to A.R.S. § 41-1092.03, and

c. For a client who needs special assistance, send a copy of the notice in subsection (H)(11)(a) to the Office of Human Rights.

12. If, at the informal conference, a client or, if applicable, the client's guardian requests that the Administration file a request for an administrative hearing according to A.R.S. § 41-1092.03 on behalf of the client, the Administration shall file the request within one day of the informal conference.

13. Within one day of the informal conference with the Administration, if the conference failed to resolve the appeal, or within two days of the date the conference was waived, the Administration shall forward a request to schedule a state fair hearing.

14. Within one day of notification, the Administration shall send a written notice of an expedited state fair hearing in accordance with subsection (G)(2) and A.R.S. 41-1092, et seq.

15. An expedited state fair hearing shall be held on the appeal in accordance with subsection (G)(3) and A.R.S. 41-1092, et seq.

I. Standard and burden of proof.

1. The standard of proof on all issues shall be by a preponderance of the evidence.

2. The burden of proof on the issue of the need for or appropriateness of behavioral health services or community services shall be on the person appealing.

3. The burden of proof on the issue of the sufficiency of the assessment and further evaluation, and the need for guardianship, conservatorship, or special assistance shall be on the agency which made the decision.

4. The burden of proof on issues relating to services or placements shall be on the party advocating the more restrictive alternative.

J. Implementation of final decision. Within five days after a satisfactory resolution is achieved at an informal conference or after the expiration of an appeal period when no appeal is taken, or after the exhaustion of all appeals and subject to the final decision thereon, the health plan shall implement the final decision and shall notify the client, any designated representative and/or guardian, and Administration of such action.

K. Appeal log.

1. The Administration and health plan shall maintain logs of appeals filed under this Section.

2. The log maintained by the Administration shall not include personally identifiable information and shall be a public record, available for inspection and copying by any person.

3. With respect to each entry, the logs shall contain:

a. A unique docket number or matter number;

b. A substantive but concise description of the appeal including whether the appeal related to the provision of Title XIX services;

c. The date of the filing of appeal;

d. The date of the initial decision appealed from;

e. The date, nature and outcome of all subsequent decisions, appeals, or other relevant events; and

f. A substantive but concise description of the final decision and the action taken by the agency director and the date the action was taken.

Ariz. Admin. Code § R9-21-401

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Former Section R9-21-401 renumbered to R9-21-402; new Section R9-21-401 renumbered from R9-21-315and amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2). Amended by final rulemaking at 22 A.A.R. 2019, effective 7/12/2016. Amended by final rulemaking at 29 A.A.R. 898, effective 5/30/2023.