Fair Hearing Decision on Community Classes - A Nice Win by a C4SD Member - April 2024
One of our C4SD Members had a nice win at a Fair Hearing last week. The names are redacted in the full decision PDF below, and below that is a synopsis.
Synopsis - Case 91778119H; FH 8701340R
Envelope postmarked 4/18/24. Receipt of decision 4/20/24. Decision date 4/17/24.
Decision rendered on behalf of Appellant: Local social service department is required to comply with the decision forthwith and is required to notify the appellant of its compliance. Appellant is to notify the OTDA if the agency fails to comply with the decision within 10 days of receipt of the decision.
Hearing before ALJ Mara Pandolfo, 2/21/24, 3/12/24
2 Grounds for FI’s denial of approval: “The Cooke School is for children with special needds. This does not appear to be open to the public - this class is not open to the public which is a required element for IDGS funding.”
3 Start of recitation of various Applicable Laws
8 Community Class Standards
9 Criteria for IDGS
10 IDGS Definitions Chart
11 14 NYCRR 633.12 - ALJ emphasized that objections may be initiated regarding a proposal to reduce, suspend or discontinue HCBS waiver services. 633.12(a)(2)(iv)
15 42 CFS §431.220 - when a hearing is required
16 18 NYCRR 360-2.9 - right to a fair hearing
17 DISCUSSION Appellant, age 23, lives with her parents and receives HCBS Appellant is authorized for IDGS
18 - In January 2024, FI approved Cooke Education Explorer classes for appellant
- On 8/24/24, appellant requested approval for other Explorers classes
- On 8/28/24, FI refused to approve class because it was “not open to the public” - Appellant submitted grievances, but denial was not overturned
- At FH, FI argued that appellant was not entitled to fair hearing:
- no issue for Commissioner to decide
- OPWDD did not undo approval for a service for which a Notice of Decision would have had to have been issued
- Rather, the FI declined to reimburse
- No appeal mechanism to OPWDD for an individual who disagrees with FI determination such that OPWDD would render a determination and afford FH rights
- FI did not determine that appellant could no longer receive IDGS, only that these classes do not qualify for reimbursement
- OPWDD does not exert influence over or override reimbursement decisions made by FI
- Due to existence of grievance and dispute process in 633.12, appellant is not entitled to a fair hearing
19 OPWDD witness Robert Johnson stated that agency has not reduced or terminated any of the appellant’s services and OPWDD did not render any determination that was able to be resolved by a fair hearing
18 NYCRR §358.3-1 - right to a fair hearing
18 NYCRR §358.5.9(a) - in fair hearings concerning the discontinuance, reduction or suspension of benefits, the agency must establish that its actions were correct
The state provides the opportunity to request a Fair Hearing under 42 CFR sec. 431, Subpart E, to individuals ... (b) who are denied the service(s) of their choice or the provider(s) of their choide; or (c) whose services are denied, suspended, reduced or terminated
20 Waiver Appendix F-2 - Individuals who use the process at 633.12 are told they may request a fair hearing at any time when the objection results from a determination made by OPWDD. The dispute resolution mechanism under 633.12 is not a pre-requisite or substitute for a Fair Hearing
If a service is fully or partially Medicaid-funded, and if the recipient is alleging their Medical Assistance is inadequate in some form, the regulations at 18 NYCRR §358- 3.1(b)(6) apply and, therefore, the recipient has a right to a Fair Hearing to decide that issue. In this case, IDGS services through the HCBS waiver may be fully or partially NYS Medicaid-funded. Therefore, the appellant has a right to a fair hearing to decide whether the Agency’s actions in this matter regarding her IDGS services (community classes) was correct.
At FH, Agency’s witness Hernandez stated that the school does not advertise to the public and classes are offered in the same building as the Cooke School so it does not appear that the classes are open to the public; further that the classes being offered at back-to-back times during the day resemble “day habilitation structure.”
CFS witness Schellenberg stated that FI was relying on OPWDD guidance from OPWDD from a November 2022 training; after reviewing the guidance she determined that the Explorers class did not meet the requirements and rejected the request to approve the later classes
Appellant’s mother stated that appellant was searching for community classes, that she signed appellant up for the Explorers classes, that the website was not limiting the registration process to Cooke School alumni, that appellant is on waiting lists for day hab programs
21 Michelle Lang, Director of Cooke Alumni Association, submitted a statement that the classes were intended to provide an inclusive environment, which is why the class is open to the public. The classes were designed to provide a diverse range of educational opportunities that cater to individuals of backgrounds. “After we developed and publicized the first classes, I was contacted by individuals who were not Cooke alumni who asked if they would be able to take the class. My response was an unequivocal yes ... the class is not restricted solely to people with IDD.” Her statements were accepted as credible evidence taken at face value.
The Commissioner noted that in a previous case in Suffolk County, FH7220725N, (issued March 16, 2016), the FI denied reimbursement because it determined that the class was not open to the public. The provider of the class, the Center, gave direct testimony that the class is open to the public and meets all enumerated criteria. The Agency could not provide any documentation to show that the Center did not meet the enumerated criteria. The Commissioner further noted that neither party in the Suffolk Cunty case disputed that OPWDD was responsible for the denial determination.
The Commissioner found FH7220725N persuasive and the issue very similar to the instant situation.
22 In the instant case, the Agency did not cite any precedent or other support for its position that since the determination to discontinue approval was made by the FI and not directly by OPWDD personnel, that there was no hearable issue. The Commissioner found that there is no support for the Agency’s position that the FI’s denial cannot be reviewed or that the Agency has no responsibility for the denial. Nothing precludes appellant from seeking Commissioner review of the FI’s determination through this Fair Hearing process.
23 The Commissioner found that appellant presented evidence that establishes that the Explorers series classes met OPWDD Self-Direction criteria. “The classes do not duplicate any other HCBS Waiver services as they are not explicitly offered instead of another waiver service, nor was there was evidence presented that the timing of the classes was somehow indicative of a “day habilitation structure” that meant that the appellant could not be approved for those classes due to the alleged similarity.” The classes are not restricted solely to people with IDD or in a setting only used by people with IDD, as Ms. Lang explicitly stated they are not restricted in any way.
“Based on the foregoing, the Agency’s determination was not correct and it is reversed.”
OPWDD was directed to immediately withdraw the denial, provide appropriate reimbursement, notify appellant in writing of its compliance with these directives.
24 Signed by Allyson Sackey, Commissioner’s Designee
