Section R9-21-401. Appeals

A.       A client or an applicant may file an appeal concerning deci- sions regarding eligibility for behavioral health services, including Title XIX services, fees and waivers; assessments and further evaluations; service and treatment plans and plan- ning decisions; and the implementation of those decisions. Appeals regarding a determination of categorical ineligibility for Title XIX shall be directed to the agency that made the determination.

1.        Disagreements among employees of the Department, the regional authority, clinical teams, and service providers concerning services, placement, or other issues are to be resolved using Departmental guidelines, rather than this Article.

2.        The case manager shall attempt to resolve disagreements prior to utilizing this appeal procedure; however, the cli- ent’s right to file an appeal shall not be interfered with by any mental health agency or the Department.

3.        The Office of Human Rights shall assist clients in resolv- ing appeals according to R9-21-104.

4.        If a client or, if applicable, an individual on behalf of the client, files an appeal of a modification to or termination of a behavioral health service according to this Section, the client’s service shall continue  while the appeal is pending unless:

a.        A qualified clinician determines that the modifica- tion or termination is necessary to avoid a serious or immediate threat to the health or safety of the client or another individual; or

b.        The client or, if applicable, the  client’s guardian agrees in writing to the modification or termination.

B.       Applicants and clients shall be informed of their right  to appeal at the time an application for services is made, when an eligibility determination is made, when a decision regarding fees or the waiver of fees is made, upon receipt of the assess- ment report, during the ISP, ITDP, and review meetings, at the time an ISP, ITDP, and any modification to the ISP or ITDP is distributed, when any service is suspended or terminated, and at any other time provided by this Chapter. The notice shall be in writing in English and Spanish and shall include:

1.        The client’s right to appeal and to an administrative hear- ing according to A.R.S. § 41-1092.03;

2.        The method by which an appeal and an administrative hearing may be obtained;

3.        That the client may represent himself or use legal counsel or other appropriate representative;

4.        The services available to assist the client from the Office of Human Rights, Human Rights Committees, State Pro- tection and Advocacy System, and other peer support and advocacy services;

5.        What action the mental health agency or Department intends to take;

6.        The reasons for the intended action;

7.        The specific rules or laws that support such action; and

8.        An explanation of the circumstances under which ser- vices will continue if an appeal or an administrative hear- ing is requested.

C.       The right to appeal in this Section does not include the right to appeal a court order entered according to A.R.S. Title 36, Chapter 5, Articles 4 and 5. The following issues may be appealed:

1.        Decisions regarding the individual’s eligibility for behav- ioral health services;

2.        The sufficiency or appropriateness of the assessment or any further evaluation;

3.        The long-term view, service goals, objectives, or time- lines stated in the ISP or ITDP;

4.        The recommended services identified in the assessment report, ISP, or ITDP;

5.        The actual services to be provided, as described in the ISP, plan for interim services, or ITDP;

6.        The access to or prompt provision of services provided under Title XIX;

7.        The findings of the clinical team with regard to the cli- ent’s competency, capacity to make decisions, need for guardianship or other protective services, or need for spe- cial assistance;

8.        A denial of a request for a review of, the outcome of a review of, a modification to or failure to modify, or a ter- mination of an ISP, ITDP, or portion of an ISP or ITDP;

9.        The application of the procedures and timetables as set forth in this Chapter for developing the ISP or ITDP;

10.     The implementation of the ISP or ITDP;

11.     The decision to provide service planning, including the provision of assessment or case management services, to

a client who is refusing such services, or a decision not to provide such services to such a client; or

12.     Decisions regarding a client’s fee assessment or the denial of a request for a waiver of fees;

13.     Denial of payment for a client; and

14.     Failure of the regional authority or the Division to act within the time frames for appeal established in this Chapter.

D.       Initiation of the appeal.

1.        An appeal may be initiated by the client or by any of the following persons on behalf of a client or applicant requesting behavioral health services or community ser- vices:

a.        The client’s or applicant’s guardian,

b.        The client’s or applicant’s designated representative, or

c.        A service provider of the client, if the client or, if applicable, the client’s guardian gives permission to the service provider;

2.        An appeal is initiated by notifying the director of the regional authority or the director’s designee orally or in writing of the decision, report, plan or action being appealed, including a brief statement of the reasons for the appeal and the current address and telephone number, if available, of the applicant or client and designated rep- resentative.

3.        An appeal shall be initiated within 60 days of the deci- sion, report, plan, or action being appealed. However, the director of the regional authority or the director’s desig- nee shall accept a late appeal for good cause. If the regional authority director or the director’s designee refuses to accept a late appeal, the director or director’s designee shall notify the individual or client in writing, with a statement of reasons for the decision. Within 10 days of the notification, the client or applicant may request review of that decision by the deputy director of the division, who shall act within 15 days of receipt of the request for review. The decision of the deputy director shall be final.

4.        Within five days of receipt of an appeal, the director of the regional authority shall inform the client in writing in English and Spanish that the appeal has been received and of the procedures that shall be followed during the appeal.

E.       Informal conference with the regional authority.

1.        Within seven days of receipt of the notice of appeal, the director of the regional authority or the director’s desig- nee shall hold an informal conference with the client, any designated representative and/or guardian, the case man- ager and representatives of the clinical team, and a repre- sentative of the service provider, if appropriate.

a.        The regional authority director or the director’s des- ignee shall schedule the conference at a convenient time and place and shall inform all participants in writing of the time, date, and location two days before the conference.

b.        Individuals may participate in the conference by telephone.

2.        The director of the regional authority or the director’s designee shall chair the informal conference and shall seek to mediate and resolve the issues in dispute. To the extent that resolution satisfactory to the client or guardian is not achieved, the regional authority director or direc- tor’s designee shall clarify issues for further appeal and shall determine the agreement, if any, of the participants as to the material facts of the case.

3.	Except to the extent that statements of the participants are		shall inform the participants in writing of the time,
	reduced to an agreed statement of facts, all statements		date, and location five days prior to the conference.
	made during the informal conference shall be considered		b.     Individuals  may  participate in the  conference by
	as offers in compromise and shall be inadmissible in any		telephone.
	subsequent hearing or court proceedings under this rule.		c.     If a client is unrepresented at the conference but
4.	If  the  informal   conference  with  the   director  of  the		needs assistance, or if for any other reason the dep-
	regional  authority or  the director’s   designee does not		uty director of the Division determines the appoint-
	resolve the issues in dispute to the satisfaction of the cli-		ment of a representative to be in the client’s best
	ent or if applicable, the client’s guardian, and the issues in		interest, the deputy director may designate a human
	dispute are not related to the client’s eligibility for behav-		rights advocate or other person to assist the client in
	ioral health services, the client or, if applicable, the cli-		the appeal.
	ent’s guardian shall be informed that the matter shall be	3.	To the extent that resolution satisfactory to the client or
	further appealed to the Division, and of the procedure for		guardian is not achieved, the deputy director shall clarify
	requesting a waiver of the informal conference with the		issues for further appeal and shall determine the agree-
	Division.		ment, if any, of the participants as to the material facts of
5.	If a client or, if applicable, the client’s guardian waives		the case.
	the right to  an informal conference with the Division	4.	If  resolution  satisfactory  to  the   client  or  guardian  is
	according to subsection (E)(4) or, if the informal confer-		achieved, the deputy director shall issue a dated written
	ence with the director of the regional authority or the		notice to all parties which shall include a statement of the
	director’s designee does not resolve the issues in dispute		nature of the appeal, the issues involved, the resolution
	to the satisfaction of the client or, if applicable, the cli-		achieved, and the date by which the resolution will be
	ent’s guardian, and the issues in dispute are related to the		implemented.
	client’s  eligibility  for   behavioral  health  services,  the	5.	Except to the extent that statements of the participants are
	regional authority shall, at the informal conference:		reduced to an agreed statement of facts, all statements
	a.     Provide written notice to the client or, if applicable,		made during the informal conference shall be considered
	the  client’s  guardian  according   to  A.R.S.   §  41-		as offers in compromise and shall be inadmissible in any
	1092.03, and		subsequent hearing or court proceedings under this rule.
	b.     Ask the client or, if applicable, the client’s guardian	6.	If all issues in dispute are not resolved to the satisfaction
	whether  the   client  or,  if  applicable,  the   client’s		of the client or guardian at the informal conference with
	guardian would like the regional authority to request		the Division, the Division shall, at the informal confer-
	an administrative hearing according to A.R.S. § 41-		ence:
	1092.03 on behalf of the client.		a.     Provide written notice to the client or, if applicable,
	c.     For a client who needs special assistance, send a		the  client’s  guardian  according   to  A.R.S.   §  41-
	copy of the notice in subsection (5)(a) to the appro-		1092.03, and
	priate human rights committee.		b.     Ask the client or, if applicable, the client’s guardian
6.	If, at the informal conference, a client or, if applicable,		whether  the   client  or,  if  applicable,  the  client’s
	the client’s guardian requests that the regional authority		guardian would like the Division to file a request for
	file a request for an administrative hearing according to		an administrative hearing according to A.R.S. § 41-
	A.R.S. § 41-1092.03 on behalf of the client, the regional		1092.03 on behalf of the client.
	authority shall file the request within three days of the		c.     For all clients including clients who needs special
	informal conference.		assistance, send a copy of the notice in subsection
7.	If  resolution  satisfactory  to  the   client  or  guardian  is		(6)(a) to the Office of Human Rights and the appro-
	achieved, the director of the regional authority or the		priate human rights committee.
	director’s designee shall issue a dated written notice to all	7.	If, at the informal conference, a client or, if applicable,
	parties which shall include a statement of the nature of		the  client’s  guardian  requests  that  the  Division  file a
	the appeal, the issues involved, the resolution achieved		request for an administrative hearing according to A.R.S.
	and the date by which the resolution will be implemented.		§ 41-1092.03 on behalf of the client, the Division shall

F.       Informal conference with the Division.

1.        Within three days of the conclusion of an informal con- ference with the regional authority according to subsec- tion (E)(4), the director of the regional authority or the director’s designee shall notify the deputy director of the Division and shall immediately forward the client’s notice of appeal, all documents relevant to the resolution of the appeal and any agreed statements of fact.

2.        Within 15 days of the notification from the regional authority director or the director’s designee, the deputy director of the Division shall hold an informal conference with the client, any designated representative and/or guardian, the case manager, and representatives of the clinical team, the service provider, if appropriate, for the purpose of mediating and resolving the issues being appealed.

a.        The deputy director of the Division shall schedule the conference at a convenient time and place and

file the request within three days of the informal confer- ence according to subsection (G).

G.      The fair hearing.

1.        Within three days of the informal conference with the Division, if the conference failed to resolve the appeal, or within five days of the date the conference was waived, the deputy director of the Division shall notify the direc- tor to schedule a fair hearing.

2.        Within five days of the notification, the director shall send a written notice of fair hearing to all parties, inform- ing them of the time and place of the hearing, the name, address, and telephone number of the hearing officer, and the issues to be resolved. The notice shall also be sent to the appropriate human rights committee and the Office of Human Rights for all clients, including clients who need of special assistance.

3.        Not less than 20 nor more than 30 days from such notice, the Department shall hold a fair hearing on the appeal in a manner consistent with A.R.S. §§ 36-111 and 36-112, and

41-1061 et seq. (the Administrative Procedure Act), and those portions of R9-1-101 through R9-1-126 which are not inconsistent with this Article. The client or any desig- nated representative and/or guardian may request that the hearing be scheduled in a shorter or longer time. The Department shall make reasonable efforts to accommo- date such request.

4.        During the pendency of the appeal, the client, any desig- nated representative and/or guardian, the clinical team, and representatives of any service providers may agree to implement any part of the ISP or ITDP or other matter under appeal without prejudice to the appeal.

5.        The hearing shall be conducted by an impartial hearing officer appointed by the Department. The hearing officer may not be an employee of the Department, a regional authority or of a service provider under contract or sub- contract with the Department. The Department may con- tract with a qualified individual to serve as a hearing officer under this rule.

6.        The client or applicant shall have the right to be repre- sented at the hearing by a person chosen by the client or applicant at the client’s or applicant’s own expense, in accordance with Rule 31(a)(3), Rules of the Supreme Court.

7.        The client, any designated representative and/or guardian, and the opposing party shall have the right to present any evidence relevant to the issues under appeal and to call and examine witnesses. The Division shall have the right to appear to present legal argument.

8.        The client and any designated representative and/or guardian shall have the right to examine and copy at a reasonable time prior to the hearing all records held by the Department, regional authority, or service provider pertaining to the client and the issues under appeal, including all records upon which the ISP or ITDP deci- sions were based.

9.        Any portion of the hearing may be closed to the public if the client requests or if the hearing officer determines that it is necessary to prevent the unwarranted invasion of a client’s privacy or that public disclosure would pose a substantial risk of harm to a client.

10.     Within five days of the conclusion of the hearing, the hearing officer shall prepare and send a written, proposed decision to the director of the Department, together with the appeal record. The proposed decision shall be based exclusively on the evidence introduced at the hearing, shall designate these issues which relate to Title XIX ser- vices, and shall include findings of fact, conclusions, and a recommendation for appropriate action.

11.     Within 15 days of the conclusion of the hearing, the director shall render a final written decision, based upon the findings, conclusions, and recommendations of the hearing officer.

a.        The decision shall include a concise statement of the facts found, a summary of the evidence relied upon, the decision and the reasons for so deciding and a notice of the right to seek rehearing under R9-1-120 and judicial review under A.R.S. § 36-113.

b.        The decision shall also include a notice to the parties of their right to appeal to AHCCCSA for review of decisions related to Title XIX services.

c.        The decision shall be mailed by certified mail to the parties to the hearing, their designated representa- tives, and the Division.

d.        The Department shall arrange to have the director’s decision explained to the client, together with the

right to seek rehearing, judicial review, or appeal to AHCCCSA, in a manner that is understandable to the client or the client’s designated representative.

H.      Expedited appeal.

1.        At the time an appeal is initiated, the applicant, client, or mental health agency may request orally or in writing an expedited appeal on issues related to crisis or emergency services or for good cause. Any appeal from a decision denying admission to or continued stay at an inpatient psychiatric facility due to lack of medical necessity shall be accompanied by all medical information necessary to resolution of the appeal and shall be expedited.

2.        An expedited appeal shall be conducted in accordance with the provisions of this Section, except as provided for in this subsection.

3.        Within one day of receipt of an expedited appeal, the director of the regional authority shall inform the client in writing in English and Spanish that the appeal has been received.

4.        The director of the  regional authority shall accept an expedited appeal on issues related to crisis or emergency services. The regional authority director shall also accept an expedited appeal for good cause. If the regional authority director refuses to expedite the appeal based on a determination that good cause does not exist, the direc- tor shall notify the applicant or client in writing within one day of the initiation of the appeal, with a statement of reasons for the decision, and shall proceed with the appeal in accordance with the provisions of this Section. Within three days of the notification of refusal to expedite the appeal for good cause, the client or applicant may request review of the decision by the deputy director of the Division, who shall act within one day. The decision of the deputy director shall be final.

5.        If the regional authority director accepts the appeal for expedited consideration, the director shall hold the infor- mal conference according to R9-21-401(E) within two days of the initiation of the appeal. The regional director shall schedule the conference at a convenient time and place and shall inform all participants of the time, date and location prior to the conference.

6.        If the informal conference with the director of the regional authority  or the director’s designee does not resolve the issues in dispute to the satisfaction of the cli- ent or, if applicable, the client’s guardian, and the issues in dispute are not related to the client’s eligibility for behavioral health services, the client or, if applicable, the client’s guardian shall be informed that the matter shall be further appealed to the Division, and of the procedure for requesting waiver of the informal conference with the Division.

7.        If a client or, if applicable, the client’s guardian waives the right to an informal conference with the Division or, if the informal conference with the director of the regional authority or the director’s designee does not resolve the issues in dispute to the satisfaction of the client or, if applicable, the client’s guardian, and the issues in dispute are related to the client’s eligibility for behavioral health services, the regional authority shall, at the informal con- ference:

a.        Provide written notice to the client or, if applicable, the client’s guardian according to A.R.S. § 41- 1092.03, and

b.        Ask the client or, if applicable, the client’s guardian whether the client or, if applicable, the client’s guardian would like the regional authority to request

an administrative hearing according to A.R.S. § 41-

1092.03 on behalf of the client.

c.        Send a copy of the notice in subsection (H)(7)(a) to the Office of Human  Rights and  the  appropriate human rights committee.

8.        If, at the informal conference, a client or, if applicable, the client’s guardian requests that the regional authority file a request for an administrative hearing according to

A.R.S. § 41-1092.03 on behalf of the client, the Division shall file the request within one day of the informal con- ference.

9.        Within one day of the conclusion of an informal confer- ence with the regional authority, the director of the regional authority shall notify the deputy director of the Division if the informal conference failed to resolve the appeal and shall immediately forward the client’s notice of appeal and any agreed statements of fact unless the cli- ent or, if applicable, the client’s guardian waived the cli- ent’s right to an informal conference with the Division or the issues in dispute are related to the client’s eligibility for behavioral health services.

10.     Within two days of the notification from the regional authority director, the deputy  director of the Division shall hold the informal conference pursuant to subsection (F).

11.     If all issues in dispute are not resolved to the satisfaction of the client or if applicable, the client’s guardian at the informal conference with the Division, the Division shall, at the informal conference:

a.        Provide written notice to the client or, if applicable, the client’s guardian according to A.R.S. § 41- 1092.03, and

b.        Ask the client or, if applicable, the client’s guardian whether the client or, if applicable, the client’s guardian would like the Division to file a request for an administrative hearing according to A.R.S. § 41-

1092.03 on behalf of the client.

c.        For a client who needs special assistance, send a copy of the notice in subsection (H)(11)(a) to the Office of Human Rights and the appropriate human rights committee.

12.     If, at the informal conference, a client or, if applicable, the client’s guardian requests that the Division file a request for an administrative hearing according to A.R.S.

§ 41-1092.03 on behalf of the client, the Division shall file the request within one day of the informal confer- ence.

13.     Within one day of the informal conference with the Divi- sion, if the conference failed to resolve the appeal, or within two days of the date the conference was waived, the deputy director shall notify the director to schedule a fair hearing.

14.     Within one day of notification, the director shall send a written notice of fair hearing in accordance with subsec- tion (G)(2).

15.     Within five days of such notice, the Department shall hold a fair hearing on the appeal in accordance with (G)(3).

16.     Within one day of the conclusion of the hearing, the hear- ing officer shall prepare and send a written, proposed decision to the director of the Department in accordance with (G)(10).

17.     Within two days of the conclusion of the hearing, the director shall render a final written decision in accor- dance with (G)(11). The decision of the director is the

final decision of the Department on all issues and there shall be no right to a rehearing before the director.

I.         Appeal of Title XIX services.

1.        Within 15 days of the decision of the director, the client may appeal the decisions relating to Title XIX services to AHCCCSA by filing a written notice of appeal with the Department. The client may request a de novo hearing or a record review with oral argument before AHCCCSA.

2.        An appeal to AHCCCSA does not preclude a client or individual from also seeking rehearing and judicial review subsection (J), if appropriate.

J.        Rehearing or review of decision. A client or applicant aggrieved by the director’s decision on issues not related to Title XIX services must file for rehearing within 30 days of service of the decision. The decision of the director on rehear- ing is the final decision of the Department on all decisions not related to Title XIX services.

K.       Standard and burden of proof.

1.        The standard of proof on all issues shall be by a prepon- derance of the evidence.

2.        The burden of proof on the issue of the need for or appro- priateness of behavioral health services or community services shall be on the person appealing.

3.        The burden of proof on the issue of the sufficiency of the assessment and further evaluation, and the need for guardianship, conservatorship, or special assistance shall be on the agency which made the decision.

4.        The burden of proof on issues relating to services or placements shall be on the party advocating the more restrictive alternative.

L.       Implementation of final decision. Within five days after a sat- isfactory resolution is achieved at an informal conference or after the expiration of an appeal period when no appeal is taken, or after the exhaustion of all appeals and subject to the final decision thereon, the director shall implement the final decision and shall notify the client, any designated representa- tive and/or guardian, and Division of such action.

M.      Appeal log.

1.        The Department shall maintain a public log of all appeals filed under this rule. The director of the regional authority shall forward to the Department all information necessary for the accurate and timely maintenance of the public log.

2.        The public log shall not include personally identifiable information but shall be a public record, available for inspection and copying by any person.

3.        With respect to each entry, the Department’s public logs shall contain:

a.        A unique docket number assigned by the Depart- ment;

b.        A substantive but concise description of the appeal including whether the appeal related to the provision of Title XIX services;

c.        The date of the filing of appeal;

d.        The date of the initial decision appealed from;

e.        The date, nature and outcome of all subsequent deci- sions, appeals, or other relevant events; and

f.         A substantive but concise description of the final decision and the action taken by the agency director and deputy director of the Division and the date the action was taken.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chap- ter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Former Section R9-21-401 renumbered to R9-21-402; new Section R9-

21-401 renumbered from R9-21-315 and amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30,

2003 (Supp. 03-2).