14- 197 C.M.R. ch. 8, § 03

Current through 2024-51, December 18, 2024

Section 197-8-03 - PROCEDURES

1.Right of Review: Persons Receiving Services and/or their Representatives have the right to submit a Grievance to the Department for review and resolution. The Person Receiving Services or their guardian, if applicable, must consent to any Grievance submitted to the Department.

2.Notice of Right: On all notices or decisions made or issued, including notices relating to the personal planning process or under a personal plan of the Person Receiving Services, the Department shall plainly state that the Person Receiving Services has a right to bring a Grievance and the deadline for doing so. This right shall be stated in language that is easily understood and in bold print and shall include the address and telephone number of the Protection and Advocacy Agency.

3.Deadline: The Grievant must submit their Grievance for Level I review one hundred eighty (180) days when the subject of the Grievance is an action or an inaction. Action means something that is done. Inaction means the failure to act. In the event that the Grievant does not become aware of an inaction within the above deadline, the Grievant must file their Grievance within one hundred eighty (180) days of when they first learn about the inaction complained of.

4.Savings Clause: Grievances based on an action or inaction prior to the effective date of this rule must be submitted within six (6) months of the effective date of this rule.

5.Mediation: The Grievant may elect mediation at any point, which election suspends applicable deadlines. A Grievant may submit a request for mediation by emailing the OADS designated email account.

6.Grievance Resolution by Providers: Persons Receiving Services and Providers are encouraged to resolve disputes informally whenever possible. When a Provider is made aware that a Person Receiving Services has a Grievance, the Provider must document the Grievance. Providers must make reasonable efforts to resolve Grievances and disputes as they arise and shall have up to ten (10) calendar days to resolve any Grievance or dispute. The Department may require Providers to maintain written policies and procedures for Grievance resolution.

If the Grievance has not been resolved within ten (10) calendar days, the Provider shall notify the person's Case Manager in writing, who shall in turn document the Grievance in the person's record and commence the Department's Level I Grievance resolution process described below.

Nothing in this rule requires a Person Receiving Services to attempt to resolve their Grievance with the Provider. If they so desire, a Person Receiving Services may directly invoke the Department's Grievance resolution procedure described below.

7.Grievance Resolution by the Department

A. Informal Review

(1) Informal Review is offered to provide Persons Receiving Services with supportive and non-confrontational mechanisms for resolving their Grievances. Providers, Case Managers, and the Department shall seek, whenever possible, to resolve Grievances in a supportive and non-confrontational manner. Consistent with informal review, deadlines stated in this subsection may be extended as needed, except for the deadline in paragraph (A)(2)(e) for submitting a Level II Grievance.

(2) Level I Resolution - Case Manager Responsibilities

(a) Case Managers must make reasonable efforts to ensure that Persons Receiving Services and their Representatives, if any, are aware of their Grievance and appeal rights. A Grievance made by a Person Receiving Services and/or their Representative need not be in writing.

(b) When a Person Receiving Services has a Grievance, the Case Manager shall immediately document the Grievance in the person's record and notify the Protection and Advocacy Agency. If the person's Grievance is related to their Case Manager, the Persons Receiving Services shall notify the Case Manager's supervisor of the Grievance, who shall immediately document the Grievance in the person's record and notify the Protection and Advocacy Agency.

(c) The Grievant and/or their Representative may engage the services of the Protection and Advocacy Agency at any time during the Grievance process without attempting to resolve the Grievance with the Case Manager.

(d) It is the obligation of the Case Manager to work expeditiously toward resolving the Grievance. If the Grievance is resolved, the resolution will be noted in the Grievant's record. If the Grievance cannot be resolved within sixteen (16) calendar days, the Case Manager shall immediately notify the Office of Aging and Disability Services (OADS) with an email sent to the designated email account. The Grievance will be referred to a designated OADS staff member for review and resolution. The Case Manager shall also notify the Grievant, the Grievant's Representative and the Protection and Advocacy Agency in writing that the matter has been referred to Level II.

(e) If the Case Manager fails to respond to a Grievance within eight (8) calendar days, the Grievant may proceed to the Department's Level II. Notwithstanding anything to the contrary in this rule, the Grievant must submit their Grievance to OADS for Level II Resolution no later than sixty (60) calendar days after submitting the Grievance for Level I Review.

(3) Level II Resolution - OADS Responsibilities

(a) It is the responsibility of OADS to attempt to resolve Grievances which have not been responded to or resolved at Level I. Upon request, the Case Manager shall supply OADS' designated staff member, the Grievant and/or the Grievant's Representative with documents or information which may be necessary to a fair understanding of the Grievance.

(b) OADS shall have thirty (30) calendar days to review, attempt to resolve, if appropriate, and issue a Level II Decision on the Grievance. The Grievant and the Department may agree to extend this deadline. The agreement must be made in writing. In conducting this review, OADS' designated staff member may consult with the Department's Program Manager for Developmental Disabilities and Brain Injury Services and may, in their sole discretion, speak to the Grievant and/or their Representative in order to clarify the nature of the problem or to seek out other information which may be necessary to a fair understanding of the issue presented. The OADS designated staff member may review any reportable events, Adult Protective Services (APS) records, and available, recent electronic medical records and services of the Grievant. If the Grievant has designated any Representative(s), OADS must include the Representative(s) in all discussions. Although alternative dispute resolution, such as mediation, is not mandatory, OADS may recommend such procedures to the parties.

(c) If OADS identifies a possible resolution of the Grievance, OADS will propose such resolution in writing to the Grievant and, as applicable, to their Representative and Case Manager. OADS shall ask that the Grievant respond within twelve (12) calendar days. If the Grievant fails to respond within twelve (12) calendar days, OADS shall issue a decision stating the Department's position on the Grievance within twelve (12) calendar days from the date the response was due by.

(d) OADS' written decision stating the Department's position on the Grievance must be written in language that is easily understood and shall state:

i. The nature of the Grievance;

ii. OADS' understanding of the issue;

iii. OADS''s position on the Grievance; and

iv. The reason(s) for OADS' decision.

(e) The written proposal or decision shall also state in bold print and in easily understood language that the Grievant and/or their Representative has the right to appeal the decision by requesting a Level III administrative hearing. If there is no written decision within the mandated time period, the Grievant may proceed to Level III. To proceed to Level III, the Grievant, their Representative, or their Case Manager requests a hearing.

B. Formal Administrative Hearing- Level III Resolution

(1) If a Grievant and/or their Representative decide to appeal OADS' Level II decision or desire to proceed to Level III upon the failure of OADS to comply with the applicable procedures, including time deadlines, the appeal must be:

(a) In writing;

(b) Addressed to an OADS designated email account; and

(c) Made within twelve (12) calendar days of receipt of the decision or OADS' failure to issue a decision as required by §§ 8.03(5)(A)(3)(b) or (c). When the appeal is based upon OADS' failure to issue a decision as required by §§ 8.03-5(A)(3)(b) or (c), the Grievant and OADS' designated staff member can agree to extend this deadline.

The appeal may explain the basis for the objection to OADS' decision or OADS' failure to abide by applicable procedures. The failure to explain the basis for an objection shall not be grounds for dismissal of the appeal.

(2) A designated OADS staff member monitoring the OADS designated email account will forward the appeal within five (5) calendar days to the OADS' Central Office. The Central Office shall forward the appeal to the Hearings Unit within ten (10) calendar days of receipt of a completed appeal.

(3) Except as otherwise provided in this rule, the hearing shall be held in accordance with 10-144 C.M.R. ch. 1, Administrative Hearings Regulations. The Commissioner of the Department shall have the discretion whether to reserve the final decision on the Grievance and shall give notice of that decision to the Grievant and Department representative through the Chief Administrative Hearings Officer.

(4) When the hearing officer issues a recommended decision, the parties may submit to the Commissioner written memoranda, responses, and exceptions pursuant to 10-144 C.M.R. ch. 1. The Commissioner shall issue a final decision either adopting, modifying, or rejecting the hearing officer's recommended decision within thirty (30) calendar days of the date of the recommended decision. In the event the final decision of the Commissioner results in the modification or rejection of the recommended decision, the Commissioner shall state in writing the basis for their decision. In the event the Commissioner should fail to issue a written final decision within thirty (30) calendar days of the date of the recommended decision, the recommended decision of the hearing officer shall be deemed the final decision of the Commissioner.

(5) The Department's final decision after a hearing constitutes final agency action regarding the Grievance for judicial review purposes pursuant to the Maine Administrative Procedure Act, 5 M.R.S. § 11001(1). All final decisions must include notice of the aggrieved party's right to judicial review, including the requisite time frame for filing an appeal.

14- 197 C.M.R. ch. 8, § 03