The Challenges of Hearings and Grievances

Anytime a government agency won’t let you have a something, or reduces the amount and scope of what you had, then you are entitled to appeal that decision.  However, given the current budget woes of the public mental health service system in Oakland County and the State of Michigan, seeking legal redress for such perceived wrongful actions may sound better in theory than reality.

Pennies are being pinched, big time!

Extreme fiscal constraints imposed by the Oakland County Community Mental Health Authority (CMHA) over the last two years on its “core provider” agencies (e.g., MORC, Inc., Easter Seals, Training Treatment Innovations, Common Ground Sanctuary, and Community Network Services) have resulted in severe service cutbacks to children and adults with developmental disabilities.  Specifically, the ongoing “utilization reviews” by the MORC, Inc. have created a groundswell of intake calls to The Arc over the past nine months asking for help in appealing these oftentimes devastating cuts.  Make no mistake about it; public pennies are being pinched, big time!  Traditional community-based services are being scrutinized for not only individual use, but also personal need.  Administrators without the benefit of a truly appropriate Person-Centered Planning meeting are making arbitrary, and oftentimes head-scratching decisions.

Appeal Time Limits

The general rule for any appeal is that one must be filed within 90 days of the notification of a negative action by an administrative agency.  However, if you do so in writing within 10 days after receiving such a notice from a mental health agency, then the status quo will be maintained until there is a formal decision.  This is the point at which most consumers or families must decide upon an appropriate avenue of appeal, and there are several from which to choose.

Most parents and consumers think first of filing a Recipient Rights Complaint. Although not really an “appeal” in the truest sense of the word, this legal right would be invoked if there were an actual violation of some provision of the Michigan Mental Health Code (e.g., there was no Person-Centered Plan).  Generally speaking, cutbacks in the level of services alone are usually not enough to prevail with this option.

Ability-to-Pay for families of minor children

Many families, who because of a minor child with a disability in the home, are now being forced to pay for mental health services according to their level of income.  In the past, this law was not routinely enforced by the CMHA when it operated direct services.  The law (Chapter 8 of the Michigan Mental Health Code) has been pretty clear and straightforward about this issue for about thirty years.  If you even have a few bucks in a §401(k) retirement fund, you will more than likely lose an “Ability-to-Pay” hearing.  The best you can hope for is a reduction in the monthly liability amount. 

Not Disabled Enough?

Other people are being denied admission to MORC, Inc. because they are simply “not disabled enough.”  For example, if one has only a mild mental impairment, the application for admission will more than likely be denied, which will then necessitate a request for a “Second Opinion” appeal to the CMHA.  Typically, the result will be a strict interpretation of the Michigan Mental Health Code that denies access to services since public policy directs assistance first to those with the most severe needs.

Local Grievance Appeals

A Local Grievance is probably the most common option for appeal and in most cases a quite useful procedure. The CMHA essentially takes another look at the negative action that has been taken by the core provider agency.  Normally, this review will uphold the cuts, but sometimes you may get lucky and obtain some degree of service restoration, or on rare occasions perhaps even all of it.

Administrative Tribunal Hearing for deciding Medicaid-related issues

Another in the possible realm of appeal options includes requesting a Michigan Department of Community Health Administrative Tribunal Hearing.  Don’t even think of going to such a hearing if you are not Medicaid eligible!  The Administrative Law Judge’s (ALJ’s) will tell you that they have no jurisdiction since they can only decide Medicaid-related issues.  Unless you have a Habilitation Waiver (a.k.a., “Hab Waiver”) don’t even think of appealing a reduction of what are known as “Community Living Supports (CLS)” hours.  The ALJ’s will tell you that they do not have jurisdiction to decide this matter because Chapter III of the state’s Medicaid rules no longer allows for coverage of an “alternative service.”  And, finally, don’t even think that you can talk about the chores involved with Adult Home Help Services at a CMHA hearing.  You must appeal those issues separately through the local Family Independence Agency (FIA) office!

Alternative Dispute Resolutions

Consumers without Medicaid eligibility who are denied mental health services or who have been reduced in the amount and scope of services, may seek an appeal through what is known as Alternative Dispute Resolution (ADR).”  There is both a local ADR and one at the state level.

Circuit or Probate Court, and the costs

Once you have exhausted your administrative remedies, there is always Circuit or Probate Court.  This of course stops most folks dead in their tracks because of the enormous cost to retain an attorney to fight the case.  Professional legal fees and costs can approach $20,000 or more for such an appeal --- at just this initial stage!

The cutbacks in budgets and services will continue

Pardon my sarcasm, but, there, wasn’t that simple and consumer friendly?  I believe that our system for the delivery of public mental health services is in the midst of tremendous change.  Further, it is becoming increasingly more difficult to access the necessary assistance promised by the past two generations of parent-based legislative advocacy.  The cutbacks in budgets and services will continue. Asking for an appeal may become an exercise in futility.

By Thomas F. Kendziorski, Esq.

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