By: Patrice Gillotti, Staff Attorney Arizona Center for Disability Law Southern Arizona Disability Rights and Resources Conference April 4, 2009

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PUBLIC MENTAL HEALTH SERVICES IN ARIZONA: CONSUMERS’ RIGHTS. By: Patrice Gillotti, Staff Attorney Arizona Center for Disability Law Southern Arizona Disability Rights and Resources Conference April 4, 2009. GOALS OF TRAINING.
By: Patrice Gillotti, Staff Attorney Arizona Center for Disability Law Southern Arizona Disability Rights and Resources Conference April 4, 2009

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By: Patrice Gillotti, Staff Attorney Arizona Center for Disability LawSouthern Arizona Disability Rights and Resources ConferenceApril 4, 2009

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  • To provide an overview of the public behavioral health system in Arizona.

  • To provide information on a consumer’s civil rights, the right to services, and the development of the individual service plan or inpatient treatment and discharge plan.

  • To provide information on the formal processes to resolve problems for consumers of mental health services.

  • To provide information about notice and due process requirements when services are denied, suspended, discontinued, or changed.

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  • The Arizona Department of Health Services/ Division of Behavioral Health Services (ADHS/DBHS), primarily through a contract with the Arizona Health Care Cost Containment System (AHCCCS), is responsible for implementing the State’s public mental health care system. ADHS/DBHS contracts with Regional Behavioral Health Authorities (RBHAs) to provide behavioral health services. The RBHAs contract with individual provider entities to provide direct services.

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  • ADHS/DBHS also has intergovernmental agreements (IGAs) with several Arizona Indian Tribes - Gila River Regional Behavioral Health Authority, Navajo Nation, Pascua Yaqui Tribe, the White Mountain Apache Regional Health Authority, and the Colorado River Indian Tribe - to provide covered behavioral health services to persons living on the reservations. Other Native American tribes are covered by the RBHA in the county where located.

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  • State divided into 6 geographical service areas (GSAs); 4 RBHAs provide services within specific GSAs

  • Magellan Health Services - Maricopa (GSA 6)

  • Community Partnership of Southern Arizona (CPSA) - Pima, Cochise, Greenlee, Graham, & Santa Cruz counties (GSAs 3 & 5)

  • Cenpatico - Pinal, Gila, La Paz, & Yuma counties (GSAs 2 & 4)

  • Northern Arizona Regional Behavioral Health Authority (NARBHA) - Apache, Coconino, Mohave, Navajo, & Yavapai counties (GSA 1)

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Partial Exception to the RBHA System:

The Arizona Long Term Care System (ALTCS)

Serves 2 populations:

- Elderly and Physically Disabled (EPD)

- Developmentally Disabled (DD)

EPD/ALTCS members get behavioral health and acute care services from the ALTCS health plan

DDD/ALTCS members get behavioral health services from the RBHA system

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  • SMI (serious mental illness) SYSTEM




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  • Applies only to persons over 18

  • State of Arizona required to provide community mental health services under A.R.S. §§ 36-550.01(A) & 36-3403(B)

  • Arnold v. Sarn, 160 Ariz. 593 (1989), a class action lawsuit alleging state failure to provide mental health services; enforced State statute for persons with SMI in Maricopa county

  • SMI regulations are result of lawsuit and apply statewide (A.A.C. R9-21-101 to 513)

  • Medicaid/AHCCCS money can be used to provide mental health services for those enrolled in SMI system

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SMI System Eligibility

  • Depends on disability NOT income

  • To be eligible for SMI mental health services, must have an appropriate mental health diagnosis and functional limitations related to that diagnosis

  • Statute: A.R.S. §§36-550(4) and 36-501(22)

  • Regulations: A.A.C. R9-21-302 to 305

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Medicaid and SMI Covered Behavioral Health Services

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Case management

Psychotropic medication & monitoring

Outpatient Therapy/Counseling

Behavioral Management

Psychosocial rehabilitation (living skills, health promotion, job coaching and employment support)



Crisis Stabilization

In-patient treatment

Day treatment

Residential Services

In patient psychiatric facility


Therapeutic foster care

SMI and Title 19 (Medicaid)Behavioral Health Services

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SMI Only Mental Health Services

  • Housing Assistance

  • Flex Funds (also available for children under 21 enrolled with a RHBA & eligible for AHCCCS); are discretionary and may, if approved by DBHS, be limited to cover certain expenses (back rent to avoid eviction; utility bills to avoid shutoff; for items specifically identified in the individual service plan (ISP) and amount may be less than maximum permitted by DBHS

  • Advocacy from Office of Human Rights

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Non-Title 19 & Non-SMI Services

Services available

depending on state funds:

  • Emergency Services

  • Individual therapy

  • Group therapy

  • Family therapy

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Children’s Behavioral Health System

  • JK v. Eden (settlement March 20, 2001)

    • Class action lawsuit under EPSDT (Early Periodic Screening, Diagnosis, & Treatment) provisions of Medicaid (Title 19) that challenged state’s failure to provide adequate mental health services to children under 21

    • Statewide Class: children under 21 eligible for AHCCCS

    • Entire stipulation extended to 2010

  • Vision and 12 Principles

  • Delivery Method: Child & Family Team Process

  • ACDL’s Title 19 Appeal Guide

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EPSDT Services

  • Early Periodic Screening, Diagnosis, & Treatment (EPSDT); 42 U.S.C. §1396d(r)

  • Mandatory service for children and youth under 21

  • Established by Congress in 1967 with intent to be the “nation’s largest preventative health program for children;” amended in 1989 to broaden scope of services

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EPSDT Services (cont’d)

  • Intended to be a comprehensive package of screening, diagnostic, and treatment services

  • All necessary health care to “correct or ameliorate” physical or mental problems or conditions

  • Covers all medically necessary services, even if service is not in the state plan and/or is not provided to adults under the State Medicaid plan

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  • A.A.C. R9-21-201 to R9-21-209 set out the legal and civil rights of clients, including:

  • all civil rights within A.R.S. § 36-506, including the right to acquire and dispose of property, sue and be sued, vote, enter into contractual relationships, and the right to hold professional, occupational, or vehicle operator’s licenses;

  • the right to be free from unlawful discrimination by ADHS/DBHS or any mental health provider based on sex, race, age, sexual preference, or physical or mental handicap;

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  • equal access to all existing behavioral health, community, and generic services provided by or through the State of Arizona;

  • religious freedom and practice according to consumer’s preferences;

  • to privacy, including the right to not be fingerprinted or photographed (except when admitted to a mental health facility for identification purpose)

  • to be informed, in appropriate language and terms, of all rights;

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  • to communicate, which includes the right to reasonable access to a telephone, the right to make and receive confidential calls, and to receive assistance as desired and necessary to implement this right;

  • to send and receive uncensored and unopened mail, to be provided with stationery and postage in reasonable amounts, and to receive assistance as desired and necessary to implement this right;

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  • to be visited by and visit with others and to associate and/or assemble with others, as long as these activities do not cause serious disruptions in the normal functioning of the mental health agency/facility;

  • to assert grievances, without retaliation, regarding violations of these rights;

  • to assistance from an attorney, a designated representative, or a human rights office advocate to assert grievance(s);

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  • to adequate, appropriate, flexible, and humane support and treatment consistent with the consumer’s needs, desires, and choices and which are the least restrictive of the consumer’s freedom;

  • to receive treatment and services that are culturally sensitive in structure, process, and content;

  • to receive services on a voluntary basis entirely or to maximum extent possible;

  • to live in one’s own home;

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  • to ongoing participation in the planning, development, and revision of services;

  • to be provided with a reasonable explanation of one’s condition and treatment;

  • to give informed consent to all behavioral health services, including medication, and to refuse services, including medication, except in emergencies or where ordered by a court (A.R.S. §§ 36-512 and 513 and A.R.S. §§ 36-520 through 544);

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  • before providing psychotropic medications, services by telemedicine, or electro-convulsive therapy, the mental health agency must obtain written informed consent from the consumer

  • consumer must be advised of all known risks and side effects of the proposed treatment and must be given information about the diagnosis, the nature of the treatment proposed, the intended outcome, and any alternatives to the proposed treatment

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  • to enjoy basic goods and services without threat of denial or delay

  • for residential service providers, these include a nutritionally sound diet, clothing, prompt and adequate medical care, social contact, personal possessions, storage, and opportunities for physical exercise and recreation

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  • to a continuum of care that includes case management, outreach, housing and residential services, crisis intervention and resolution, mobile crisis teams, vocational training and opportunities, peer support, social and recreational services, advocacy, family support services, medication evaluation and maintenance, outpatient counseling and treatment, and transportation, among others;

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  • to a continuum of care with programs and services based on individual and/or unique needs and to community services provided in the most normal and least restrictive setting;

  • to participate in treatment decisions and in developing and implementing the individual service plan (ISP);

  • to prompt consideration of discharge from an inpatient facility and identification of steps needed to secure discharge.

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  • no mental health agency may mistreat a consumer or permit mistreatment by any staff;

  • includes any intentional, reckless, or negligent act or omission that exposes a client to a serious risk of physical or emotional harm;

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  • mistreatment includes abuse, neglect, or exploitation; corporal punishment; unreasonable use or threat of use of force; infliction of mental or oral abuse such as screaming, ridicule, or name calling; incitement or encouragement of others to mistreat a client; transfer or threat of transfer as punishment; restraint or seclusion as a means of coercion, discipline, convenience, or retaliation; any act in retaliation for reporting any violation; and commercial exploitation

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  • abuse means the infliction of physical pain or injury, impairment of bodily function, disfigurement, or serious emotional damage which may be shown by severe anxiety, depression, withdrawal, or untoward aggressive behavior

  • may be caused by either acts or omissions; may occur if incite another to act

  • includes sexual misconduct, assault, molestation, incest, or prostitution of or with a client

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  • neglect means a negligent act or omission by a person responsible for providing services, care, or treatment which caused or may have caused injury or death, includes a failure to establish or carry out an appropriate program plan or treatment, failure to provide adequate nutrition, clothing, or medical care, and the failure to provide a safe environment which includes the failure to maintain adequate numbers of appropriately trained staff

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  • exploitation means the illegal use of a consumer’s resources for another individual’s profit or advantage

  • special sanctions are available for violations, including suspension or revocation of the license of the mental health agency and/or discipline, including dismissal, of any employee

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Mental health agency may only use restraint or seclusion:

  • to ensure safety of patient or others in an emergency situation;

  • only after less restrictive methods were tried and failed;

  • until the emergency ceases and client’s and others’ safety can be ensured, even if restraint or seclusion order has not expired; and

  • in a manner that prevents physical injury, minimizes physical discomfort and mental distress, and complies with the mental health agency’s policies and procedures.

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  • seclusion or restraint may only be used according to a written order from the physician providing treatment or by an oral order from that physician to a nurse.

  • where physician not on premises or on call, order may be made by another practitioner depending on type of facility - A.A.C. R9-21-204(G)).

  • an individual who orders restraint or seclusion must be available for consultation throughout the scheduled period and must order the least restrictive restraint or seclusion necessary to the situation;

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  • restraint includes personal restraint, mechanical restraint, and a drug used as a restraint;

  • personal restraint means the application of physical force without the use of any device for the purpose of restricting the free movement of a consumer’s body;

  • for Level 1 facilities, does not include holding a client for no more than 5 minutes without undue force to calm or comfort the client or holding a client’s hand to escort from one area to another;

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  • mechanical restraint means any device, article, or garment attached or adjacent to a consumer’s body such that the consumer cannot easily remove and that restricts the consumer’s freedom of movement;

  • drug used as a restraint means a pharmacological restraint that is not standard treatment for a consumer’s medical or mental health condition administered to manage behavior for safety of consumer or others and temporarily restricts the consumer’s freedom of movement (see also A.R.S. § 36-513)

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  • orders for mechanical restraint or seclusion must be time-limited and cannot exceed 3 hours;

  • restraint by drugs must be limited to the dosage necessary to reach desired result and must not include a drug with a time release that exceeds 3 hours;

  • PRN (medication given as needed) orders may not be used for any form of restraint or seclusion;

  • all instances of seclusion and restraint must be properly recorded in the patient’s medical record.

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  • An Individual Service Plan (ISP) is the written plan for services; it includes goals and addresses ways to reach those goals

  • Under the SMI rules, all eligible adults must receive an individual assessment and evaluation to identify their needs and wants, including, but not limited to, all behavioral health, medical, housing, educational, social, and cultural needs and wants

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Presenting concerns

Mental health treatment

Medical conditions and treatment

Sexual behavior and any sexual abuse

Any substance abuse

Living environment


Language & communication capabilities

Educational and vocational training

Interpersonal, social, & cultural skills

Developmental history

Criminal justice history

Public & private resources

Legal status & apparent capability

Need for special assistance


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a risk assessment of client

a mental status examination of client

a summary, observa-tions, & impressions

diagnostic impressions of the qualified clinician

recommendations for next steps and

other relevant information

participation from the client, qualified clinician, client’s case manager, and all members of the client’s clinical team, including a behavioral health professional and technicians, family members, para-professionals, & any other person who is necessary to ensure that the assessment is comprehensive


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ISP (cont’d)

  • A qualified clinician must prepare an assessment within 45 days of a request or referral for SMI eligibility

  • Within 5 days of completing the assessment report, the clinical team and client shall identify the most appropriate service providers

  • The case manager has the responsibility to contact the identified provider to determine whether that provider can serve the client

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To determine the most appropriate service provider, must consider:

  • The client’s preferences for type, location, & intensity of services;

  • The capacity & experience of the provider to meet the client’s assessed needs;

  • The proximity of the provider to the client’s family & home community;

  • The availability & quality of services offered by the provider; and

  • Other factors deemed relevant by the client & clinical team

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ISP, cont’d

  • Within 20 days of completion of the assessment, the case manager must convene an ISP meeting

  • The ISP must contain long-term goals and identify particular services needed to meet those goals

  • ISP must state whether the client needs providers who are proficient in any language other than English

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ISP, cont’d

  • ISP must include the least restrictive services, consistent with the client’s needs and preferences without regard to the availability of services or resources

  • Services must maximize the client’s strengths, independence, and integration into the community

  • Generic services available to the general public may be used if they are accessible and adequate to meet a client’s needs

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ISP, cont’d

  • ISP must include target dates for beginning each service and the anticipated duration of each service

  • ISP must identify the persons or providers responsible for each long-term and short-term objective in the ISP

  • ISP must identify any need for alternative housing or residential setting and include a plan for support and monitoring of any housing change

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ISP, cont’d

  • ISP must describe the methods and persons responsible for ensuring that services are provided as described in the ISP, are adequately coordinated, and are regularly monitored for effectiveness

  • If the services identified in the ISP are not available, the team must develop an alternate plan

  • If appropriate services for unmet needs cannot be identified by the clinical team, DBHS retains duty to provide them

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ISP, cont’d

  • A client may accept some of the identified services and reject others;

  • a client’s refusal to accept a service, including case management services, or to refuse a particular mode or course of treatment, cannot bar a client from access to other services

  • If the client, guardian, or representative does not object to the ISP within 30 days after receiving a completed copy, it is deemed accepted

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ISP, cont’d

  • If a client, guardian, or representative of client rejects all or part of the ISP, the case manager must send a notice about the right to appeal or the client may opt to meet with the clinical team within 7 days of the rejection to discuss the plan and suggest modifications

  • interim and emergency services for persons with SMI may be provided while the ISP is being developed

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ISP, cont’d

  • If ISP includes residential, vocational or other primary services providers that are not currently providing services, the ISP is reviewed within 30 days of date services are provided; each service provider must bring a detailed description of the objectives and services being provided

  • If ISP only includes primary service providers, the first ISP review is held within 6 months of when the ISP was accepted or the appeal completed

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  • May be initiated at ISP review meeting or any other time as necessary to more adequately meet the client’s needs, goals, or objectives

  • May be requested by the client, his or her guardian or representative, or any member of the clinical team

  • Case manager must give written notice of any request for modification or termination of the ISP to the client, all providers, and team members

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  • ISP shall be modified:

  • where the client withdraws consent to all or part of the ISP or no longer needs a service;

  • where client consents to services that are more suitable but were previously refused;

  • where the needs of the client have changed due to progress or lack of progress in meeting goals and objectives;

  • where client wants to change the long-term view and focus of the ISP;

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  • ISP shall also be modified:

  • where the proposed change will permit the client to receive services that are more consistent with the client’s needs; less restrictive of the client’s freedom; more integrated in the community; or more likely to maximize the client’s ability to live independently

  • Denials of right to modify the ISP must be put in writing and can be appealed

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  • Every client of an inpatient facility must have an ITDP

  • ITDP must be developed by the inpatient treatment team, the case manager, and other members of the clinical team as appropriate with the fullest possible participation of the client and any representative or others the client wants at the meeting

  • ITDP must be written in easily understood language

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ITDP, cont’d

  • ITDP must include the most appropriate and least restrictive services available at the facility

  • ITDP must also include a plan for the client’s discharge to the community

  • ITDP must identify treatment interventions and services that maximize the client’s strengths, independence, and integration into the community

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ITDP, cont’d

  • ITDP must contain goals and objectives that are measurable and that facilitate meaningful evaluation of progress made toward reaching those goals and objectives

  • Delays in the assignment of a case manager or in the development or modification of an ISP or ITDP must not prevent the discharge of a client from an inpatient facility

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Client’s preferences, strengths, and needs

A description of appropriate services to meet client’s needs

For non-acute facilities, long-range goals to assist client to attain most self-fulfilling, age-appropriate, & independent life style

Long-term goals must be stated in terms that the client understands and accepts and that allow objective measuring of progress

Expected dates of completion for each stated objective

Identification of person responsible to ensure services are provided & monitored


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  • A preliminary ITDP must be developed within 3 days of admission to an inpatient facility

  • A full ITDP must be developed with 7 days of admission to an inpatient facility

  • If the client’s anticipated stay is less than 7 days, an acute inpatient facility must develop a preliminary ITDP within 1 day and a full ITDP within 3 days of admission

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  • Within 2 days of distribution of ITDP, case manager must ask client whether it is accepted; if client does not accept or reject ITDP within 10 days, it is deemed accepted

  • If a client, guardian, or representative of client rejects all or part of the ITDP, the case manager must send a notice about the right to appeal or the client may opt to meet with the treatment team within 5 days of the rejection to discuss the plan and suggest modifications

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  • If the client and the treatment team agree on modifications to the ITDP, the case manager must arrange for approval of the modifications by all members of the inpatient facility’s treatment team

  • If the matter remains unresolved, the client may appeal the findings or recommendations within 30 days

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ITDP, cont’d

  • A client may reject an ITDP but still accept some or all of the identified treatment interventions or services pending the outcome of the meeting with the treatment coordinator or an appeal

  • Once the ITDP is approved, it is incorporated into the ISP

  • the ITDP must be reviewed within the first 30 days and at least once every 60 days during the first year of the inpatient stay

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ITDP, cont’d

  • A facility may review the ITDP more often

  • The clinical team, with the assistance of the facility’s treatment team, remains responsible for implementing the discharge plan

  • 3 days prior to discharge, the case manager must provide notice to the providers identified in the ISP

  • Failure to provide the notice must not delay discharge

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ITDP, cont’d

  • Case manager must meet with the client within 5 days of discharge to make sure the ISP is being implemented

  • The case manager must review the ISP with the clinical team within 30 days of the discharge to determine whether any modifications are appropriate

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Medicaid Due Process As It Applies to Mental Health Services(AHCCCS/ALTCS)

  • Kids: This appeal/grievance process is the process for children enrolled in the public mental health system.

  • Adults: Adults in ALTCS. Also, adults in the RBHA system can file an AHCCCS appeal instead of a DBHS appeal if they are enrolled in AHCCCS.

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Title 19/Medicaid Due Process Requirements

  • Written Notice of denial, termination or change in service

  • Right to a fair hearing

  • Right to be represented at hearing

  • Right to continuation of existing services pending hearing; liable for costs if lose

  • Right to reimbursement for costs if services wrongly denied

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  • To satisfy due process requirements, the intent to take adverse action (denial, termination, suspension, or change in services) must be provided in an adequate and timely written notice and the consumer must be given an opportunity to be heard before an impartial decision maker

  • Consumer must be granted the right to be represented by person of choice (advocate, attorney, guardian, family member, friend, or other person so designated)

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  • REDUCTION: a decision to reduce the frequency or duration of an on-going service; does not include a planned change in service frequency or duration initially identified in the individual service plan (ISP) and agreed to in writing by the person receiving services or the legal guardian.

  • SUSPENSION: a decision to temporarily stop providing a service

  • TERMINATION: a decision to stop providing a service; does not include the end of a specific treatment program with an established end date initially identified in the ISP and agreed to in writing by the person receiving services or the legal guardian.

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  • U.S. Constitution, 14th Amendment

  • Goldberg v. Kelly, 397 U.S. 254 (1970)

  • AZ State Constitution, Article 2, Section 4

  • Medicaid Laws and Regulations - 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.200 et seq., 438.400, et seq., 438.210

  • State Laws and Regulations

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  • Written statement, in plain language, of intended action or action taken

  • Reasons for the action

  • Specific legal authority for the action

  • Explanation of right to appeal

  • Explanation of right to continued benefits pending appeal (if adverse action involves a suspension, termination, or reduction in benefits not previously agreed to by the recipient) and liability if appeal lost

  • Services available to assist consumer to pursue appeal

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  • Under SMI rules, notices must be delivered by hand or certified mail at least 30 days prior to the effective date of the decision to modify, reduce, suspend, or terminate a service.

  • Notice of decisions regarding eligibility for SMI services and fees or waivers must be sent within 3 days of the determination.

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  • Language - notice and written documents related to the appeals process must be available in each prevalent, non-English language spoken within the RBHA’s GSA

  • Interpretation Services - providers must provide free oral interpreting services for all non-English languages (RBHA may opt to provide this service)

  • Alternative Formats - notice and written documents related to the appeals process must be available in alternative formats, such as Braille, large font, or enhanced audio, and take into consideration the special communication needs of the person

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  • APPEALS (AHCCCS/Title 19 & SMI)




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  • Appeal – a request for review of an action

  • Action – the denial or limited authorization of a requested service, including the type or level of a service; the reduction, suspension, or termination of a previously authorized service; the denial (in whole or part) of payment for service; the failure to provide services in a timely manner; the failure to act within established timeframes to resolve an appeal or complaint; the failure to provide notice to affected party; and the denial to provide services outside the network for Title XIX and Title XXI persons in a rural area.

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  • Grievance – under SMI code, a complaint filed by or on behalf of a person with a SMI regarding violation of civil rights by an act or failure to act

  • Grievance – under AHCCCS rules, an expression of dissatisfaction about any matter other than an action; includes the quality of care or services provided, failure to respect the rights of an enrollee, and rudeness of a provider or employee

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  • Complaint – under SMI rules, an expression of dissatisfaction about any matter other than an action

  • Request for Investigation – under SMI rules, an allegation that a condition or incident appears to be dangerous, illegal, or inhumane

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AHCCCS/ALTCS Appeals Process

Step 1: Request Service

Step 2: Notice of Action

Step 3: Notice of Appeal Decision

Step 4: Fair Hearing

Step 5: ALJ Decision

Step 6: AHCCCS Director’s Decision

Step 7: Appeal to Superior Court

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Right to File Appeal

An AHCCCS/ALTCS member has the right to file an appeal if the contractor/health plan takes any of the following actions:

  • denies or limits authorization for a requested service, including type or level of service

  • reduces, suspends or terminates a previously authorized service

  • denies, in whole or part, payment for a service

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Right to File Appeal (cont’d)

4. Fails to provide a service in a timely manner, as set forth in contract

5. Fails to act within the appeal timeframes

6. For enrollee living in a rural area with only one contractor, the denial of enrollee’s request to exercise right to obtain services outside of contractor’s network

A.A.C. R9-34-202

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Notice and Time for Filing

  • A.A.C. R9-34-205 governs content of the notice and must describe the action taken, reason for the action, appeal rights, appeal procedures, expedited appeal process, and the right to continued service

  • Appeals must be filed within 60 days of the date of the Notice of Action. A.A.C. R9-34-209

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Right to Expedited Appeal Resolution

  • Beneficiary or physician requests after Notice of Action

  • Standard: “taking the time for standard resolution could seriously jeopardize the enrollee’s life or health, or ability to attain, maintain, or regain maximum function”

  • Must resolve within 3 working days

  • A.A.C. R9-34-214 and 215

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Right to Expedited Hearing

  • Beneficiary or physician requests on Notice of Expedited Appeal Resolution

  • AHCCCS Director makes decision 3 working days after receiving ALJ recommended decision

  • A.A.C. R9-34-219 and 220

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Right to Continuation of Services

  • Must file within 10 days of Notice of Action

  • Must involve termination, suspension, or reduction of current services

  • Original authorization period has not expired

  • If beneficiary loses, liable for cost of services

  • A.A.C. R9-34-224

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Right to Reimbursement

  • AHCCCS wrongly denied services, beneficiary has right to reimbursement for services privately paid

  • AHCCCS regulation mandates payment to “provider” A.A.C. R9-34-225 HOWEVER

  • Medicaid regulations permit payment directly to beneficiary 42 C.F.R.431.246 and 42 C.F.R. 438.424

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  • a grievance is an expression of dissatisfaction about any matter other than an action, such as the quality of care or services provided or aspects of interpersonal relationships (rudeness of provider or employee or failure to respect an enrollee’s rights)

  • Grievance must be filed with the contractor within 60 days of event

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  • Grievance may be filed orally or in writing

  • Contractor must complete disposition of the grievance and mail the written decision to the enrollee within 90 days after the day the contractor receives the grievance

  • The contractor’s decision is final

  • Enrollee is not entitled to a State Fair Hearing on a grievance

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SMI CODE Appeals Process

Step 1: Request Service/Action/Payment

Step 2: Notice of Decision

Step 3: File Request for Appeal of Decision

Step 4: Informal Conference with RBHA

Step 5: Second Level Conference with DBHS

Step 6: Fair Hearing Before ALJ

Step 7: ALJ’s Recommended Decision

Step 8: ADHS Director’s Decision

Step 9: Motion for Rehearing/Review

Step 10: Appeal to Superior Court

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eligibility for mental health services;

the sufficiency or appropriateness of assessments and further evaluations;

service and treatment plans, including the view, service goals, objectives, or timeliness, as stated in ISP or ITDP

the recommended or actual services in the ISP, interim plan, or ITDP;

denial of payment for services;

fee assessments or denial of a fee waiver;

service planning decisions; and

implementation of planning decisions


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Persons enrolled in both SMI system and AHCCCS have right to file appeal

  • under SMI rules and/or

  • AHCCCS rules

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SMI Appeal Procedures

  • applicants and consumers must be informed of the right to file an appeal at the time the application for services is made;

  • when an eligibility determination is made;

  • when a decision regarding fees or a waiver of fees is made;

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SMI Appeal Procedures (cont’d)

  • upon receipt of an assessment report;

  • during the ISP, ITDP, and review meetings;

  • when an ISP, ITDP, or any modification to an ISP or ITDP is distributed; and

  • when any service is suspended or terminated.

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Appeals may be initiated:

  • by the consumer, applicant, or the guardian of a consumer or applicant;

  • by the consumer’s or applicant’s designated representative; or

  • by a service provider, with permission of consumer, applicant, or guardian.

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  • appeal may be made orally or in writing

  • appeal directed to the director of the RBHA or director’s designee

  • should include a brief statement of the reasons for the appeal and the name, address, and telephone number of the applicant, consumer, or designated representative

  • appeal request should be filed within 60 days of receiving written notice of the decision, report, plan, or action being appealed; late appeals may be accepted for good cause

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  • at time appeal is initiated, consumer may request an expedited appeal; all time frames will be shortened A.A.C. R9-21-401 (H)

  • RBHA director shall accept expedited appeal on issues related to crisis or emergency services and others for good cause.

  • if accepted for expedited appeal, informal conference held within 2 days.

  • may appeal to division or go directly to a State administrative hearing.

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  • within 5 days of receipt of appeal, RBHA must notify consumer/representative of receipt

  • director of the RBHA or director’s designee may accept a late appeal for good cause; if not accepted for good cause, written notice with the reason(s) must be sent; within 10 days of that denial, may appeal to Deputy Director of DBHS who must act within 15 days; deputy director’s decision is final.

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Step 1: Informal conference with the RBHA

  • within 7 days of receipt of appeal request, RBHA director/designee holds an informal conference

  • consumer, designated representative and/or guardian, case manager, representatives of clinical team, and representative of provider, as appropriate, attend

  • date, time, & place arranged by RBHA director/designee

  • may attend by telephone

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Step 1: Informal conference with the RBHA, cont’d

  • RBHA director/designee chairs conference and acts as mediator

  • if resolution not reached, issues for further appeal are clarified, any material facts all can agree upon are determined

  • only statements of participants that are agreed upon and reduced to writing will be admissible in subsequent proceedings

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Step 2: Informal conference with the Division (DBHS)

  • if informal conference with the RBHA does not resolve the appeal, the matter may proceed to an informal conference with the division (DBHS)

  • this is sometimes called a “second level conference”

  • informal conference with the division may be waived in order to directly proceed to a state administrative hearing

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Step 2: Informal conference with DBHS, cont’d

  • within 3 days of the conclusion of the informal conference with the RBHA, all materials are forwarded to DBHS and the parties

  • the Informal Conference Decision/Packet, must accurately reflect what happened at the conference; must clearly set out the issue(s); and include all necessary/relevant information

  • within 15 days of receipt of notification, the DBHS deputy director/designee holds an informal conference (second level)

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Step 2: Informal conference with DBHS, cont’d

  • consumer, designated representative and/or guardian, case manager, representatives of clinical team, and representative of provider, as appropriate attends

  • date, time, & place arranged by RBHA director/designee

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Step 2: Informal conference with DBHS, cont’d

  • may attend by telephone

  • if consumer does not have representation, the deputy director may designate a human rights advocate or other person to assist the consumer

  • DBHS deputy director/designee acts as mediator

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Step 3: State Administrative Hearing (fair hearing)

  • if resolution not reached, issues for further appeal are clarified, any material facts all can agree upon are determined, and the consumer is given written notice of appeal rights under A.R.S. §41.1092.03

  • consumer has 30 days from date of notice to file a request for a fair hearing. A.R.S. §41.1092.03 (B)

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Step 3: State Administrative Hearing, cont’d

  • if requested, division will file the request for an administrative hearing on consumer’s behalf within 3 days of completion of the conference

  • only statements of participants that are agreed upon and reduced to writing will be admissible in subsequent proceedings

  • ALJ may hold a prehearing conference to outline issues and determine whether any agreements can be reached between the parties

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Step 3: State Administrative Hearing, cont’d

  • parties may present oral testimony of witnesses, written documentary evidence, written or oral legal argument, and copies of rules and other documents that may govern issues at the administrative hearing

  • ALJ issues a recommended decision that may be accepted, rejected, or modified by the Director of ADHS

  • The decision from the ADHS Director is final

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Step 4: Appeal of ADHS Director’s Decision

  • Upon motion, a party may seek a rehearing or review of the final decision

  • Request must be filed within 30 days after service of the Director’s decision (A.R.S. 41-1092.09; A.A.C. R9-1-103)

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Step 4: Appeal of ADHS Director’s Decision, cont’d

  • AHCCCS Standard: motion may be granted where party can show:

  • Irregularity in the proceedings of the hearing that deprived an enrollee of a fair hearing;

  • Misconduct of a party or an agency;

  • Newly discovered material evidence that could not, with reasonable diligence, have been discovered and produced at the hearing;

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Step 4: Appeal of ADHS Director’s Decision, cont’d

  • The decision is the result of passion or prejudice;

  • The decision is not justified by the evidence or is contrary to law; or

  • Good cause is established for the nonappearance of the enrollee at the hearing.

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Step 4: Appeal of ADHS Director’s Decision, cont’d

  • SMI Code Standard: ADHS Director may grant a rehearing or review of a final agency decision for any of the following reasons materially affecting the requesting party’s rights (A.A.C. R9-1-103):

  • Irregularity in the proceedings of the hearing or an abuse of discretion that deprived a party of a fair hearing;

  • Misconduct by the ALJ or the prevailing party;

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Step 4: Appeal of ADHS Director’s Decision, cont’d

  • Accident or surprise that could not have been prevented by ordinary prudence;

  • Newly discovered evidence that could not with reasonable diligence have been discovered & produced at the hearing;

  • Excessive or insufficient penalties;

  • Error in the rejection or admission of evidence or other errors of law at hearing; or

  • Decision not supported by evidence or contrary to law.

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Step 5: Complaint for Judicial Review

  • A party who is dissatisfied with the ADHS Director’s decision or with the denial of a motion for rehearing or review, may file a complaint with Superior Court

  • Complaint must be filed within 35 days from the date of service of the decision being appealed, plus 5 days if the decision was mailed (A.R.S. § 12-904(A))

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  • A.A.C. R9-21-402 to R9-21-410 - governs grievances, complaints, & requests for investigations for persons with SMI

  • may be filed by consumer, guardian, human rights advocate, human rights committee, state protection & advocacy program, designated representative, or other concerned person

  • may be submitted orally or in writing to director or any employee of provider agency or with the RBHA

  • if requested orally, should follow up with written request, citing reason(s) for request (see PM Form 5.3.1)

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  • All grievance requests must be filed within one year from the act that forms the basis of the grievance

  • Grievance procedure is used to redress rights violations, including any allegations of physical or sexual abuse, sexual misconduct, physical neglect, discrimination, and mistreatment

  • NOTE: claims concerning the need for or appropriateness of behavioral health services or community services should generally be filed as appeals according to the ISP rules

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  • Persons responsible for resolving grievances:

  • Allegations regarding physical abuse, sexual abuse, or sexual misconduct in a mental health facility or agency or by an employee of such facilities or agencies must be addressed to and decided by the DBHS Deputy Director

  • All other allegations of rights violations are addressed to and initially decided by the RBHA director or, if the mental health agency is operated by a governmental agency, the director of that agency

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  • Persons responsible for resolving allegations involving conditions that require investigations:

  • Death of a consumer which occurred in a mental health facility or by an action of an employee of such facilities or agencies must be addressed to and decided by the DBHS Deputy Director

  • All other allegations are addressed to and initially decided by the RBHA director or, if the mental health agency is operated by a governmental agency, the director of that agency

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  • DBHS policy: to conduct investigations and resolve matters in 4 situations

    1. death of a client/consumer;

    2. allegation of rights violation;

    3. a dangerous, illegal, or inhumane condition exists; and

    4. where an investigation would be in the public interest, as determined by ADHS director or DBHS deputy director.

  • once the grievance or request for investigation has been filed, action must be taken to reasonably protect the health, safety, and security of any consumer, witness, or person filing the grievance or investigation request

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  • Disposition of grievances and requests for investigation:

  • Summary disposition made be made where alleged rights violation occurred more than one year prior to date when grievance or investigation request was made

  • If grievance or investigation request primarily concerns the level or type of mental health treatment provided and does not involve allegations of a rights violation, resolution may be referred through the ISP process or the appeals process

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  • Disposition without investigation:

  • Agency director or DBHS Deputy Director may, within 7 days of receiving the request, resolve a matter without investigation if the matter involves no factual disputes, is patently frivolous (i.e, issue not within scope of R9-21 SMI rules, could not possibly have occurred as alleged, is substantially similar to conduct alleged in 2 previous grievances or investigation requests within past 2 years that were determined to be unsubstantiated, or within 7 days person filing grievance or investigation request agrees that matter can be resolved without a formal investigation), or is resolved fairly and efficiently within 7 days without a formal investigation

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  • Written decision must explain the essential facts and describe why the matter can be resolved without the appointment of an investigator

  • Where investigation is required, must follow procedures in A.A.C. R9-21-405 (D) & (E) and R9-21-406

  • See ADHS/DBHS Policy GA 3.1 “Conduct of Investigations Concerning Persons with Serious Mental Illness”

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  • Remedies available:

  • ADHS/DBHS deputy director, RBHA director, or Chief Executive Officer of the Arizona State Hospital may:

  • Identify training or supervision for or disciplinary action against a person found to be responsible for a rights violation or condition requiring investigation;

  • Develop or modify a mental health agency’s practices or protocols;

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  • Remedies, continued:

  • Notify the regulatory entity that licensed or certified an individual of the findings of the investigation; or

  • Impose sanctions, which may include monetary penalties, according to the terms of a contract, if applicable.

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  • If dissatisfied with final decision of the grievance or investigation request, individual may, within 30 days of receipt of decision, file a notice of appeal with the DBHS deputy director

  • Must send copies of notice of appeal to all other parties and agency director

  • DBHS deputy director assembles case record and may discuss with any person involved or hold an informal conference

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  • Within 15 days of filing appeal, the DBHS deputy director prepares a written, dated decision that accepts the investigator’s report, in whole or part, at least with respect to the facts as found, and affirm, modify, or reject the decision with a statement of the reasons, or

  • Rejects the report for insufficiency of facts and return the matter with instructions for further investigation and decision

  • Further investigation and revised report completed within 10 days

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  • Designated representative must be given opportunity to be present at any meeting or conference convened by the DBHS deputy director regarding resolution of the grievance or investigation request

  • If dissatisfied with the final decision reached, may file a request for an administrative hearing before an ALJ within 30 days of the date of the decision

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