Coshocton County Board of
Mental Retardation and Developmental Disabilities 

Policy: A dministrative Resolution of Complaints and Due Process Rights Policy
Policy Number: 13.0
Ohio Revised Code Reference: 1.59, 5101:6-1, 5123:043, 5123: 2-1-02, 4723:21-28
Ohio Administrative Code Reference: 5123: 2-1-12 , 5123: 2-17-01
Adopted: 3- 13-2003
Amended: 04-10-2003 , 8-11-2003

I. PURPOSE

A.  It is the policy of the Board to provide due process protections to individuals, families guardians or complainants in the resolution of complaints involving programs, services, policies or administrative practices of the Board of any entities acting under contract with the Board. Areas subject to administrative resolution may include, but not be limited to, eligibility determination, arranging appropriate services for eligible individuals, or any denial, reduction or termination of services to individuals provided.

B.  The Board shall adhere to the administrative resolution of complaints process as outlined in the section OAC 5123: 2-1-12 .

II. APPLICATION

A.  This policy shall apply to any person, other than an employee of the Board. Any person may file a complaint and use this policy prior to commencing a civil action regarding said complaint.

B.  Medicaid related procedures or other processes for appeal, specific to the service or support, may be utilized independent of, or in addition to, the Board administrative resolution of complaints and informal grievance procedures for resolving disputes of individuals, families, guardians, or complainants.

III. DEFINITIONS

A.  Adverse Actions-Denial, reduction, termination of services is an adverse action.

B.  Denial-to refuse an initial request to receive a Medicaid service; to refuse to increase the frequency and/or duration of delivery of an existing Medicaid service.

C.  Reduction-to decrease frequency and/or duration of the current delivery level of a Medicaid service.

D.  Termination-to stop delivery of Medicaid service.

E.  "Case Conference or County Conference " means discussion and attempt to achieve resolution of a complaint or issue at the local level. The process for case or county conferences is outlined in the Board's informal hearing grievance process.

F. "Complainant" means a person as defined in ORC 1.59 and shall include any person other than an individual as defined in this Rule, a corporation, business trust, estate, trust, partnership and association when such person has an interest with the Board through a contract or in relation to an Administrative practice of the Board.

G.  "Board" means the Coshocton County Board of MR/DD, including Board members as an entity, the Superintendent and any person employed by or under contract with the board who has authority for Administrative or service implementation on behalf of the Board.

H.  "Department" means the Ohio Department of Mental Retardation and Developmental Disabilities.

I.  "Employee" means any person employed by the Board.

J. "Good Cause" means circumstances which may justify delay in making a timely request for state hearing, including: death in immediate family; sudden illness or injury of the individual or a member of the individual's immediate family; other circumstances which reasonably prevented requesting the hearing within the 15 day period.

K.  "Individual" means a person applying for, determined eligible for, denied eligibility, or enrolled in the programs, services, an supports provided or arranged in accordance with ORC 5126 and includes the parents of an individual who is a minor, any guardian, or any other legally appointed representative acting in a legal capacity on the individual's behalf.

L.  "Prior Notice" means written notice that must be given to the individual no later than 15 calendar days prior to the effective date of the proposed action.

M.  "Reinstatement" means reinitiating a service that was reduced or terminated.

IV. NOTIFICATION OF POLICY AND DUE PROCESS RIGHTS

A.  On an annual basis the Board shall provide notification of the availability of the policy for administrative resolution of complaints and due process rights to individuals, families, guardians, and any entity in the county that serves persons or provides or desires to provide services and/or supports under contract with the Board. The notice shall be incorporated into the individual or family planning process. Notifications may occur upon request or receipt of any complaint. The policy is also available on the board website at www.coshmrdd.org.

B.  When an individual applies for Medicaid services the applicant is notified of their right to a state hearing as part of the comprehensive notification process of the Board.

C.  If the Board believes the individual may have difficulty understanding the Board procedures the Board will assist the individual in identifying an authorized representative.

D.  Providing Notice upon Receipt of Complaint:

1.  Upon receipt of any complaint subject to this policy, the Board shall provide written notice of the right to use the Board administrative resolution of complaints and due process rights policy, to the individuals, families, guardians, or complainants. The Board shall inform the individual that a representative of the Board is available to assist the individual with utilization of the grievance or administrative resolution of complaint processes outlined in the policy.

2.  Where circumstances permit, due process rights shall be given at least ten days prior to any action being taken. Such noticed shall be written in terms and easily understood by the individual, families, guardians, or complainants and shall include the following:

a. A written detailed description of the proposed action;

b. A clear statement of the reasons for the proposed actions, including the specification of any evaluative instruments or reports upon which such action is proposed;

c. A statement that the complainant or individual has the right to seek administrative resolution regarding complaints about such decision; and

d.  A copy of the administrative resolution of complaints and due process policy.

E.  Upon notice of an individual, family, guardian or complainant's intent to evoke their due process rights all proposed actions shall halt until the issue is fully resolved to the satisfaction of all parties involved.

V. RESOLVING COMPLAINTS USING THE INFORMAL GRIEVANCE PROCESS

A. Informal Grievance Process:

1. The informal grievance process represents the initial effort to resolve concerns of individuals, families, guardians, or complainants. Concerns not satisfactorily addressed may result in utilization of the administrative resolution of complaints process defined in this policy.

2. The individual or authorized representative has ninety calendar days from the notice of a change in services in which to file an appeal. No reduction or termination of service shall occur without giving notice to the individual or representative not less than fifteen days prior to the effective date of the proposed action. Services shall continue if an appeal is received within fifteen days. If there no appeal, services will be terminated and payment will stop. Services will not be reinstated if the appeal is received within ninety days, but after fifteen days, unless there is a good cause for failing to request a hearing within the fifteen day period.

3. The informal grievance procedure is an informal method of resolving disputes.

4. Upon notice of a potential dispute the Superintendent shall appoint 1 or more persons to conduct an informal hearing to resolve the issue within a time frame of not more than 30 days. The Superintendent or designee shall inform the individual, family, guardian, or complainant of their right to utilization of the informal grievance process. Notice of a potential dispute may result from correspondence, memos, meetings, or phone contact with the individual, family, guardian or complainant. The filing of such grievances under this policy shall not affect the rights of the individual, family, guardian or complainant to file an appeal through the administrative resolution of complaint process within this policy

B. A Program Manager will serve as the Board's representative to conduct an informal hearing of the complaint.

1. An informal hearing may be requested by the individual or complainant to discuss the complaint within five days of the complaint.

2. The individual shall contact the Program Manager of the applicable Board program from which the complaint originated.

3. Upon receipt of the request for an informal hearing, the Program Manager shall at a mutually agreeable time to all parties, schedule an informal hearing to be held within ten calendar days of the request.

4. The informal hearing shall include all persons requested to attend by the individual or complainant.

5. During the informal hearing, the Program Manager shall respond to questions, review circumstances related to the decision and provide the party initiating the request, the opportunity to present reasons as to why any decision(s) should be reconsidered.

6. The Program Manager shall issue a written decision to the individual or complainant regarding the complaint within ten days of the informal hearing.

7. Prior to the conclusion of the informal hearing, the Board representative shall provide the party initiating the request a copy of the Board administrative resolution of complaint policy.

VI. RESOLVING COMPLAINTS USING THE ADMINISTRATIVE RESOLUTION OF COMPLAINTS PROCESS

A. Subject to the limitations of ORC 5123:043, any request for administrative resolution of a complaint filed in accordance with this policy will not nullify any other rights to services.

B. If the complaint relates to the Board requesting a termination, reduction, or changes of services for an individual, current services shall continue to be provided pending final resolution. Individual protections afforded by ODJFS for Medicaid funded services may be used in lieu of, or in addition to, the Board administrative resolution of complaints policy.

C.  Notwithstanding any other provisions of this procedure, the appeal of any action of the Board of its employees shall begin at the level in which the decision or action was made. If there is an appeal of a decision taken by a contractor of the Board, the appeal shall begin with the contractor in place of the supervisor.

D.  The request for administrative resolution shall be in writing and shall be filed with the supervisor/designee of the applicable service component of the Board. If an individual has difficulty reading or writing, an oral report may be accepted and documented by the Board supervisor receiving the report. An advocate who may speak on behalf of the individual may assist an individual who wishes to seek administrative resolution in accordance with this policy.

1. The Board supervisor/designee will conduct an investigation of the complaint within ten calendar days of receipt of the request for administrative resolution of the complaint.

2. Within ten calendar days of the completion of the investigation, a written report and decision will be completed and discussed with the complainant or individual. Such report shall include a description of next step in the administrative resolution or complaint process.

3. Within ten calendar days or receipt of Board supervisor's/designee's written decision, the complainant or individual may request administrative review of the supervisor's/designee's written decision.

4. Timelines may be extended if mutually agreeable to all involved parties.

E.  If the complainant or individual desires an administrative review of the supervisor's/designee's decision, the following shall occur:

1. A request for an administrative review shall be made in writing by the complainant or individual within ten calendar days of the receipt of the supervisor's/designee's written decision. The request for administrative review shall be made to the Superintendent/designee of the Board.

2. Upon receipt of a request for administrative review of the supervisor's written decision, the Superintendent/designee shall, within ten calendar days, meet with the party initiating the request and conduct an administrative review.

a. During the administrative review, the Superintendent/designee may ask questions to clarify the circumstances and facts related to the decision, and provide the party initiating the request the opportunity to present reasons as to why the decision should be reconsidered.

b. Within five working days of the administrative review, the Superintendent/designee's decision shall be made known, in writing, to the complainant or individual and include a rationale for such decision, and a written description of the next step in the administrative resolution of complaints process.

c.  Timelines may be extended if mutually agreed upon by all involved parties.

E.  If the complainant or individual is not satisfied with the decision of the Superintendent/designee, a written appeal may be filed with the Board. The written appeal shall be filed with the Board President within ten calendar days of receipt of the Superintendent/designee's decision.

1. Upon receipt of a written request to the appeal, the Board President or designee shall conduct a hearing no sooner than seven calendar days, nor later than the next regularly scheduled Board meeting, at a time and place convenient to all parties. The Board may hear the case as a full Board or the President of the Board, with the concurrence of the Board, may establish a committee of two or more Board Members to hear such appeals. The committee shall be vested with full rights and authorities as the County Board in handling the appeal.

2. No less than seven days prior to the hearing, the complainant, or individual shall be provided access to the Board records pertaining to the specifics of the appeal.

3. The hearing shall be a closed meeting unless the complainant or individual request an open meeting.

4. During the hearing, evidence shall be presented by both parties to support their positions.

5. The complainant or individual shall be afforded the right to be represented by legal counsel or by such other representative of the party's choice and at the expense of the individual or complainant.

6. The complainant or individual shall be afforded the right to have in attendance and question any official, employee, or agent of the Board who may have evidence upon which the appeal is based.

7. The decision of the Board shall be solely based upon evidence presented at the hearing. Evidence presented at the hearing shall be recorded by stenographic and/or use of audio-electronic recording devices as the Board determines at the time of the hearing. Such record shall be made at the expense of the Board and, upon request, one copy of the verbatim transcript and/or recording shall be provided to the complainant or individual at no cost.

8. In any hearing held under the authority of the Board pursuant to the OAC 5123: 2-1-12 , the Board may appoint a hearing examiner, to conduct said hearing. The hearing examiner shall have the same powers and authority in conducting the hearing as granted to the Board, but shall not be a Board employee. The hearing examiner need not be admitted to the practice of law, but shall be possessed of such qualification as to be able to render neutral and informed decisions on matters presented in the complaint. The Director or his/her designee shall maintain a list of approved hearing examiners, which a Board may request in order to select a qualified examiner. The Board may also request the Department to certify a qualified hearing examiner.

a.  Within five calendar days of the date the hearing is deemed closed, the hearing examiner shall issue a written report and a recommendation, setting forth findings of fact, conclusions of law, and recommendations for the disposition of the complaint. The report and recommendation shall be served upon the parties to the hearing by certified mail.

b.  The parties to the hearing may file with the Board written objections to the report and recommendations within ten days of receipt of the report and recommendation

c.  Within five calendar days of the hearing or within five calendar days following the Board action upon Receipt of the hearing examiner's report and any objections thereto, written notification of the Board's decision shall be sent by certified mail to the complainant or individual. Such notification shall include a rational for the Board decision and description of the next step in the process.

d.  Timelines may be extended if it is mutually agreed upon by all parties.

G.  In the event the complainant or individual wishes to appeal the decision of the Board, the individual/complainant shall have the right to appeal the decision of the Board to the Director of the Department. For any complaints file with the Director, the individual will be assisted by the Board to access the Department. The County Board would assist in any manner that the family requested.

H. After exhausting the administrative remedies in OAC 5123:2-1-12, if the complaint is not settled to their satisfaction, a complainant or individual may either file a complaint with the Department as permitted by OAC 5123:2-17-01 or commence a civil action against the Board.

I. Subject to the limitations of ORC 5123:043, the Administrative Resolution Process provided by OAC 5123:2-1-12, are in addition to any other rights an individual or the parent of minor or guardian may otherwise have pursuant to the Ohio Revised Code or any other applicable State or Federal Law.

VII. RESOLVING COMPLAINTS RELATED TO MEDICAID SERVICES

A. When Medicaid-funded services are denied, reduced, or terminated, the affected Medicaid-eligible individual has the right to a state hearing if they wish to appeal the decision. The Board shall be the provider agency ( HAB Center ) and the Superintendent or their designee shall be responsible for implementation of due process.

B. When an individual applies for initial Medicaid services or they are denied a request to increase frequency/duration of an existing service, the applicant is notified of their right to a state hearing as part of the comprehensive notification process of the Board.

C. The individual or their representative shall be given notice of the denial for initial service or increased frequency/duration of an existing service by the Board through distribution of the Ohio Department of Jobs and Family Services (ODJFS) Form 7334 ("Notice of Denial of your Application for Assistance").

D. When a decision has been made to terminate a service received or to reduce the frequency and/or duration of the Service, ODJFS Form 4065 ("Important notice about your Welfare Benefits") shall be provided to the individual.

E. If the individual or their authorized representative believes the adverse action is a mistake, only the individual or their authorized representative can request the state hearing. The right to a state hearing is guaranteed in the federal statutes that govern all Medicaid-funded services.

F. If a state hearing is requested by the individual or their authorized representative for a decision made by the Board, the Board shall prepare the Ohio Department of Jobs and Family Services ODJFS 4067 Form ("Appeals Summary") and defend the decision in the hearing.

G. The request for a state hearing may be in writing or verbally indicated. If a verbal request is indicated, the request shall be transcribed in a written format by the Board. The written format for the request shall contain written signatures.

H.  In order to avoid unnecessary state hearings, an individual or authorized representative may use a county conference (Board informal grievance process) to resolve the dispute if they so chose. Utilization of the county conference does not disqualify the individual or their representative to pursue the state hearing.

I.  When an individual requests a county conference, the local agency shall convene a conference within five days presided over by the Superintendent or their designee. Both the agency and the individual may bring whoever each reasonably wants to be at the conference. The issue to be decided by the presiding person shall be whether the agency can show, by preponderance of the evidence, that its action or inaction was in accordance with ODJFS rules. If not, the presiding person shall retract the notice of adverse action and/or decide the question of the individual's entitlement to benefits, or arrange to make the determination as quickly as possible. The outcome of the county conference shall be recorded within ten days of the conference.

J.  A state hearing will be held unless resolution is reached at the county conference and the individual withdraws the request for the state hearing in writing. Any such withdraw shall be signed and dated by both the individual and the local habilitation center representative shall clearly set forth resolution upon which the withdraw is based and shall be forwarded to the district hearings section within two working days. One copy shall be forwarded to the individual and one copy will be retained in the case file.

K.  The individual or authorized representative has ninety calendar days from the mailing or delivery of the notice (form) in which to file an appeal. No reduction or termination of service shall occur without giving notice to the individual or representative not less than fifteen days prior to the effective date of the proposed action. Services shall continue if an appeal is received within fifteen days. If there is no appeal, services will be terminated and payment will stop. Services will not be reinstated if the appeal is received within ninety days, but after fifteen days, unless there is a good cause for failing to request a hearing within the fifteen-day period.

L. If the individual or the authorized representative fails to request the hearing within the fifteen day prior notice period, but requests a hearing within ten days following the effective date of the proposed action AND has good cause for failing to request the hearing within the prior notice period, services shall be reinstated to the previous level and continued until the hearing is decided.

1. Determination of "good cause" is the responsibility of the ODJFS hearing authority, which is the hearing supervisor in the ODJFS district office with jurisdiction over the county in which the individual lives.

2. If good cause is found, the hearing authority will issue an order that services be reinstated.

3. It is the responsibility of the Department to assure that the service is reinstated and continued until the hearing decision is made. Service invoice should be submitted by the Board to the Office of Medicaid Payment and Support to recover costs related to the provision of reinstated services.

4. If there is no appeal, services will be terminated and payment will stop.

M. A request for a state hearing on disagreements with the decisions of the Board shall be made to the Ohio Department of Job and Family Service in accordance with the Rules for Appeals promulgated by ODJFS under OAC 5101:6-1 to 5101:6-9. If a state hearing appeal is initiated, the following will occur:

1.  Both the individual and the agency have the right to be represented by legal counsel at the state hearing. The Board shall provide the individual with information related to free legal services in the community. The Board may provide legal services through a social services contract.

2.  The individual and authorized representative shall be provided reasonable time before the date of the hearing, as well as during the hearing to examine the contents of case files, as well as other records and documents to be used by the Board at the hearing except for confidential information protected from release.

3.  If the individual or authorized representative requests case record documents that are relevant to the issue under appeal, the Board shall provide one copy of such documents at no cost. The authorized representative must provide the individuals signed authorization prior to obtaining a copy of case record material. Current program manuals shall be made available to the individual or authorized representative for review at the local Board.

4.  The Board failure to provide or allow access to the above information shall not be the basis for postponing or continuing the hearing.

5.  Confidential material protected from release, and other documents or records that the individual will not have an opportunity to contest or challenge, shall not be presented at the hearing nor affect the hearing officer's decision.

6.  When the hearing involves work registration or employment and training, the individual shall also be allowed to examine employment and training component case files, except for confidential information (which may include test results) that the Board determines should be protected from release.

7.  The Department's Community Medicaid Services unit is responsible for coordinating all aspects of the hearing process for CAFS eligible individuals. Incases where the Board decision is being appealed, the Board shall be responsible for preparing the ODJFS 4067 form and defending the decision in the hearing. A copy of the summary shall be kept on file at the Board for its defense at the requested hearing.

8.  The appeals summary form 4067 is forwarded to the Department before the scheduled hearing date.

9.  The actual hearing is usually held via telephone conference call.

10.  The designated representative or individual is generally present with the hearing officer and the other relevant parties participate in the conference call.

11.  The individual's representative will present the basis of the appeal during the hearing and the Board will present its justification or defense of the adverse action.

12.  The hearing decision is typically not made during the hearing. The decision is made known in a written document to all relevant parties at a later date.

N.  Individuals may use the Board's informal grievance and administrative resolution of complaints process unrelated to denial, termination, and reduction of service.

VIII. RESOLVING COMPLAINTS RELATED TO DELEGATED NURSING

A. The Ohio Board of Nursing (OBN) and/or the Department shall accept complaints regarding alleged violation of ORC 4723:21-01 through 4723:21-28 and/or OAC 5123:2-1-07.

B. Investigations resulting from complaints related to Board workers performance of delegated nursing tasks, inclusive of qualifications of board workers to give and/or apply prescribed medications, shall be conducted by the Department utilizing the complaint resolution process as outlined OAC 5123:2-17-01. Department investigations may be conducted in conjunction with the OBN.

C. Complaints related to delegated nursing practices shall be refereed to the OBN. The procedures outlined in OAC 4723:21-28 shall be used by ODN to investigate allegations. A report of the findings of the OBN Investigation shall be submitted to the Department Director. The Department Director shall notify the Superintendent of the Board in writing of the outcome of the investigation.

D. If a complaint alleges circumstances, which would jeopardize health, safety or welfare of the individual, an investigation shall commence immediately. If the complaint does not allege circumstance, which would pose imminent harm to the health, safety or welfare of the individual, the investigation shall proceed within seven working days.

E. Any complaints related to the scope of nursing practices shall be referred to the OBN, which regulated nursing practices in accordance to ORC 4723.

IX. RESOLVING COMPLAINTS RELATED TO EARLY INTERVENTION SERVICES

A. Families have a right to a state hearing with the Ohio Department of Health to resolve complaints pertaining to Early Intervention Services provided by the Board. Upon receipt of a complaint the Board shall make families aware of their right to at state hearing. Families may file a complaint when they disagree with any of the following:

•  Eligibility determination for services;

•  An evaluation or assessment for their child;

•  Provision of services provided in the Early Intervention program;

•  Payment for Early Intervention Services.

B. Families may also utilize the board informal grievance and administrative resolution of complaints processes contained in this policy if they so choose.

X. RESOLVING COMPLAINTS RELATED TO PRE-SCHOOL/SCHOOL AGE SERVICES

Individuals receiving pre-school services shall utilize the rules governing the Local Education Agency (LEA) Contained in IDEA and rules promulgated by the Ohio Department of Education to resolve disputes and complaints.

XI. RESOLVING COMPLAINTS RELATED TO SUPPORTED LIVING SERVICES

A. Individuals, guardians, complainants receiving or providing supported living services under contracts with the Board or MEORC shall utilize grievance procedures contained in the contract for resolving disputes. Use of these procedures shall be specific to complaints related to the contracts for supported living services and supports.

B. In the case of disputes related to the termination, reduction, or change of supported living services or supports an individual shall utilize the Board due processes contained in this policy. The individual or authorized representative has ninety calendar days from the notice in which to file an appeal. No reduction or termination of service shall occur without giving notice to the individual or representative not less than fifteen days prior to the effective date of the proposed action. Services shall continue if an appeal is received within fifteen days. If there is no appeal, services will be terminated and payment will stop. Services will not be reinstated if the appeal is received within ninety days, but after fifteen days, unless there is a good cause for failing to request a hearing within the fifteen-day period.

C. Services shall continue to be provided pending the final resolution of complaint, unless an entity under contract with a county board for the provision of supported living terminates the services it is providing that individual in accordance with the terms of the contract with the county board.

XII. CONFIDENTIALITY

The Board shall at all times maintain confidentiality concerning the identities of individuals, families, guardians, complainants, witnesses or other involved parties who provide information unless an authorized release of information is obtained.

XIII. UPDATING AND DEVELOPING POLICIES SPECIFIC TO DUE PROCESS

A. The Board shall annually review policies of the Board to ensure they are current and reflect current practice.

B. The Board authorizes the Superintendent to develop and implement written procedures consistent with Board policy and applicable rules, regulations and statues that apply.