PURPOSE: This rule prescribes procedures for appealing decisions on service eligibility.

1. (1) As used in this rule, the following terms mean:

   1. (A) Appeals referee, shall be an impartial, neutral, trained decision maker not employed with the Division of Mental Retardation and Developmental Disabilities;
   2. (B) Applicant, a person suspected to be mentally retarded or developmentally disabled and for whom application has been made for regional center services or the person’s representative;
   3. (C) Client, a person who receives services of the Division of Mental Retardation and Developmental Disabilities or the client’s representative;
   4. (D) Representative, shall include, but not necessarily be limited to, the applicant/ client’s legal guardian, parent of a minor applicant, or client and protector (as defined by 9 CSR 45-3.040); and
   5. (E) Supervisor, a case management supervisor in a regional center or a unit director in a mental retardation facility.

2. (2) Any person who is suspected to be mentally retarded or developmentally disabled shall be eligible for initial diagnostic and counseling services through the regional center.

   1. (A) These rules are to be liberally construed in order to assure that all claims are decided on the merits of the individual’s claims and in the individual’s best interests. The rules regarding the time and manner in which a person may appeal shall be liberally interpreted to decide claims on the merits.

   2. (B) Decisions as to an applicant’s eligibility for services, or a client’s eligibility for continued services, shall be based on an assessment of the applicant’s/client’s eligibility as determined by Missouri statutes. In making their determinations, staff (for example, members of the assessment team, case managers, heads of the facilities, appeals referees and the director of the Missouri Department of Mental Health (DMH)) shall consider, but need not be limited to, each of the following factors and the appeals referee shall include in his/her written decision findings of fact and conclusions of law on each criterion considered:

      1. 1. The best interest of the client/appli-

cant;

1. 2. The person’s level of adaptive behav-

ior and functioning, including the effect upon the individual’s ability to function at either the same or an improved level of interpersonal and functional skills if support from the DMH and contracting private providers is withdrawn or denied; and

1. 3. Whether the client is eligible for ser-

vices under the laws of Missouri.

1. (3) If the applicant, based upon the initial diagnostic evaluation or comprehensive evaluation, or if a client, based upon a re-evaluation, has been determined ineligible for regional center services, the applicant or client may appeal the decision on eligibility.

   1. (A) Appropriate, effective notice of the eligibility determination shall be given to the applicant/client. This notice shall be given in writing, and verbally, when possible, on a standard DMH form within ten (10) working days of the ineligibility decision. The written notice shall include a specific statement of the factual and legal reasons for ineligibility, a statement that the applicant/client has the right to appeal that decision and the name, address and telephone number of the facility staff person to contact for further information about the decision, the appeals process, or both. In addition to the notice, the applicant/client shall receive a brochure which explains the appeals process and the appeals procedures open to the applicant/client. If there is any question about the applicant’s/client’s ability to understand either the form or the brochure after s/he receives his/her notice in person or by telephone, the Missouri Division of Mental Retardation and Developmental Disabilities staff person shall verbally explain the basis for the denial of eligibility and the appeals process to the applicant/client and shall assist the applicant/client in initiating an appeal and contacting Missouri Protection and Advocacy Services. Notice shall be hand-delivered or shall be sent by registered or certified United States mail, return receipt requested, and given verbally, where appropriate, at least thirty (30) days prior to the effective date of the proposed action.

   2. (B) The applicant or client may appeal the decision, in writing or verbally, to the facility staff within thirty (30) days from the date of receiving the written notice. and Developmental Disabilities

      1. 1. If necessary, appropriate staff shall

assist the applicant/client in making the appeal.

1. 2. The applicant or client may present

any information relevant to the appeal. The head of the facility or his/her designee shall meet with the applicant/client and any staff to attempt to resolve differences and receive information on the matter.

1. 3. Within ten (10) working days after

receiving the appeal, the head of the facility shall notify the applicant verbally, when possible, and in writing of his/her findings and decision and of the right to appeal, including notice of where and how to direct appeal.

1. (C) If the applicant/client disagrees with the decision of the head of the facility, the applicant/client, verbally or in writing, may notify the facility staff within thirty (30) days of the date of receipt of the decision that the applicant/client wishes to present the case to an appeals referee. If the applicant/client verbally requests an appeal to the appeals referee, facility staff shall send the person a notice via registered or certified mail, return receipt requested, verifying that the applicant/client has verbally requested an appeal. The facility staff also shall forward the verification notice to the appeals referee.

   1. 1. The referee shall be an employee of

the department. The referee shall hear all appeals.

1. 2. The appeals referee shall notify the

applicant or client verbally, when possible, and in writing of the date, time and location of the hearing before the referee. Effective notice of the hearing shall be given at least thirty (30) days prior to the date of the hearing and shall contain a statement of the issues to be determined at the hearing. If any party has good cause for postponement or rescheduling, the request shall be granted. Absent good cause, the hearing shall be held no later than sixty (60) days from the date of the claimant’s request for a hearing. The hearing shall be held at a location convenient for the client/applicant, usually the facility identified in the appeal.

1. 3. The applicant/client shall have the

right to representation either by an attorney or another advocate. Upon written notice that an individual is represented by an attorney/advocate, the attorney/advocate shall be provided with copies of notices, and the like. Upon request of the client/applicant or his/her attorney/advocate, copies of all documents relevant to the appeal shall be made available without charge within five (5) working days of the date of the request. An individual or his/her attorney/advocate shall have the right to inspect and copy all relevant Missouri DMH documents, including, but not necessarily limited to, department rules and applicant/client records if release is authorized in writing by the applicant/client, including third-party client records in the custody of the department that were utilized in making the decision on eligibility.

1. 4. The appeals referee shall rest his/her

decision solely on the evidence presented at the hearing. The referee shall not review any documents concerning the applicant’s/client’s eligibility that are not properly submitted on the record during the hearing. The appeals referee, in addition, shall not discuss the applicant’s/client’s appeal with any party other than in the context of the hearing, questioning witnesses on the record, or both. The referee shall assure that the claimant receives a full and fair hearing. After the conclusion of the hearing, the referee shall issue a written decision, including findings of fact and conclusions of law, within thirty (30) days of the close of the hearing. The decision shall be mailed to the facility and to the claimant and his/her attorney/advocate, if any, by registered or certified mail, return receipt requested. Upon request of the claimant, facility staff may be consulted by the claimant for an explanation of the decision and its implications. The decision also shall contain a brief description of further appeal rights provided by this rule. Within thirty (30) days of the decision, the referee shall have the authority to vacate or amend his/her decision at the request of the claimant or his/her attorney/advocate or the head of the facility with notice to the others for good cause shown. Any additional evidence shall be considered in the request.

1. 5. The head of the facility shall have the

burden of proof and burden of going forward to either establish that either the applicant does not meet the state’s statutory criteria for services eligibility or that the client has so improved that s/he no longer would benefit from the level of services which had been previously provided.

1. 6. During the hearing, the applicant/

client or the head of the facility shall have the right to speak on behalf of self, to present witnesses, to be represented by an attorney or other advocate, to submit any additional information and to cross-examine witnesses who have appeared on behalf of the facility.

1. A. If the applicant or client is repre-

sented by legal counsel, the claimant or his/her counsel shall notify the head of the facility within ten (10) days from the date that counsel is retained for the hearing.

1. B. If the applicant or client is repre-

sented by legal counsel at the hearing, the head of the facility shall request representation from the attorney general’s office. The request for representation should be made to the attorney general’s office as soon as practicable. Notice to the applicant/client and attorney that the attorney general’s office will appear in the case should be made at least five (5) days before the hearing.

1. 7. Unless otherwise provided in this

rule, the hearing shall be conducted by the provisions of Chapter 536, RSMo.

1. 8. The referee shall electronically record

the hearing. The tape of the hearing shall be kept for one (1) year after the date of the hearing. The tape, or a copy of the tape, shall be available to the client/applicant or his/her attorney/advocate or the regional center director for purposes of review for further appeal to the director of the DMH.

1. (D) If an applicant or client disagrees with the decision of the referee, the applicant/client, his/her attorney or advocate may move to vacate or amend the decision or appeal the decision to the director of the department within thirty (30) days from the receipt of the decision by mailing an intent to appeal to the director or by giving written notice to the facility. If the claimant gives verbal notice to the facility and needs assistance with an appeal, designated facility staff shall assist.

   1. 1. The evidence which was before the

referee and the recording of the hearing shall be submitted to the department director. The applicant/client or his/her attorney/advocate and the head of the facility may submit newly discovered evidence to the department director and comments on and objections to the decision of the referee within ten (10) working days of the notice of appeal to the director.

1. 2. The department director shall consid-

er the evidence in paragraph (3)(D)1. and make the decision based solely on this evidence.

1. 3. The department director, within twen-

ty (20) working days of the notice of appeal, shall notify, in writing, the applicant/client and his/her attorney/advocate, if any, and the head of the facility, of the decision. The decision of the director is final. The decision shall be mailed to the head of the facility and to the claimant and his/her attorney/advocate, if any, by registered or certified mail, return receipt requested. Upon the request of the claimant, facility staff may be consulted by the claimant for an explanation of the decision and the mechanism for further appeal. The decision also shall contain a brief written description of further appeal rights provided by this rule.

1. (E) Pending an administrative appeal or appeal before circuit court if the director’s 9 CSR 45-2

decision is appealed, the department shall not reduce or terminate the applicant’s or client’s services or benefits. No applicant’s or client’s benefits or services shall be reduced or terminated until appeal procedures are exhausted.

1. (4) If a client disagrees with the decision made by facility staff regarding eligibility for a specified service through the division, except referral for community placement from a department mental retardation facility, the client may appeal the decision.

   1. (A) The appeal may be presented orally or in writing to the appropriate supervisor within thirty (30) days from receipt of the oral or written notice, whichever is earlier.

      1. 1. If necessary, the appropriate staff

shall assist the client in making the appeal.

1. 2. The client may present, and the

supervisor shall accept and consider, any information relevant to the appeal. The supervisor may meet with the client and any staff to discuss and resolve differences.

1. 3. Within ten (10) working days after

receiving the information presented by the client, the supervisor shall notify the client in writing and verbally of the supervisor’s finding and decision and the right of the client to appeal to the head of the facility.

1. (B) If the client disagrees with the decision of the supervisor, the client shall be entitled to utilize the same appeal procedures to the head of the facility, the appeals referee and the department director as provided in section

1. (3) of this rule.

( 5 ) A c l i e n t / a p p l i c a n t o r h i s / h e r attorney/advocate may appeal the decision of the department director to circuit court as provided by Chapter 536, RSMo. For purposes of appeal, the tape of the hearing before the appeals referee shall be transcribed at the expense of the applicant/client but shall be without cost to the applicant/client who is indigent as determined by the department or the circuit court.

AUTHORITY: section 630.050, RSMo (1994).* This rule was previously filed as 9 CSR 50-3.705. Original rule filed April 17, 1987, effective Oct. 1, 1987. Amended: Filed Jan. 15, 1993, effective Aug. 8, 1993. Amended: Filed May 25, 1995, effective Dec. 30, 1995.

*Original authority: 630.050, RSMo 1980.