By Jerri Lynn Ward, J.D., Garlo Ward P.C.
www.garloward.com
Posted September 29, 2004
This is for HCS and ICFMR programs.
It is now, more than ever, important to understand the Level of Need (LON) process. Perhaps due to tightening budgets and increased scrutiny, more LON requests and renewals are being rejected. The information that you put in your packet for consideration is becoming increasingly important.
Preparing Your Packets for Consideration and Reconsideration:
As you all know, you are required to submit particular types of information providing the proof that the consumer is entitled to a certain level of need. If the Texas Department of Aging and Disability Services (DADS) rejects the recommended LON, you are entitled to Reconsideration. You must request Reconsideration within 10 calendar days or you will waive your rights to one. DADS will then electronically approve the recommended LON, or send written notification that they denied the recommended LON within 21 days.
If the LON is again denied, you have the right to request an administrative hearing. You must request the hearing within 15 days. At this juncture, the success or failure of your case will hinge on what you have put in your packet.
I recently participated in a pre-hearing conference with Administrative Law Judge Bob Brown regarding the pending LON cases because of the implementation of DADS. Judge Brown made it clear during that conference that he will be considering only evidence that is already contained in the original and reconsideration packets and arguments by providers and their legal counsel about how the evidence supports the requested LON.
There are steps that you can take in preparing your packets to increase your chances of achieving the requested LON at the review and appeals level:
- Obtain physician, psychologist statements or letters that directly address how the consumer’s behavior fits the requested LON. If you are requesting or renewing a LON9, such statements should use the words “extremely dangerous” and “life-threatening behavior” and a clear explanation of why the consumer’s behavior is so.
- Research the internet to find medical articles that support your position. For instance, if the consumer is a biter (biting himself and others), get information regarding the impact of infections on that consumer and his victims.
- In your submittal letter, clearly lay out the case tying the behavior to the potential consequences. For example, use the above-mentioned medical article to lay out the deadly consequences of infection in this population. Do not make the reviewer connect all the dots on her own.
- Prior to preparing the reconsideration packet, call and talk to the reviewer about how your original packet fell short so that you will know what to beef up.
- In short, prepare your packet with the thought of proving your case before an Administrative Law Judge. (read lawyer)
- If you intend to hire an attorney for an appeal, hire the attorney prior to submitting the Reconsideration packet. An attorney can help you gather the kind of evidence that you will need to persuade an ALJ that you are entitled to the requested LON.
What is Your Recourse Upon Losing an Administrative Appeal?
It was the Texas Department of Mental Health and Mental Retardation’s (TDMHMR) position (and doubtless will be DADS position) that LON ALJ decisions cannot be reviewed by District Courts. In fact, Judge Scott Jenkins of Travis County recently granted a Plea to the Jurisdiction filed by TDMHMR in a LON case. This resulted in dismissal of the provider’s request for judicial review. All that remained of the case was a portion based on allegations of a violation of constitutional rights. Thus, unless it can be established that the denial of LON is unconstitutional, at least one Court is taking the position that District Courts have no jurisdiction to review the decision of an Administrative Law Judge that the denial of a LON is correct. This decision demonstrates why it is so important to develop a persuasive body of evidence before the matter even goes to Administrative Appeal.
Conclusion:
- Focus your attention and resources on the initial and Reconsideration packet.
- Consider hiring an attorney to help put together the Reconsideration packet.
- Understand that recourse past an Administrative Appeal is non-existent at worst and uncertain at best
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved
Lakeway, Texas 78734 USA
Telephone: 512-302-1103
Facsimilie: 512-302-3256
Email: Info@Garloward.com
