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Appealing an HCBS Level of Care Determination

A Detailed Guide for Individuals and Families

Disclaimer: This guide is provided by The Arc of Indiana for general informational and educational purposes. It is not legal advice and does not create an attorney-client relationship. The information in this guide may not apply to every situation, and individuals should carefully review their own Level of Care determination, appeal notice, and applicable deadlines.  

The Arc of Indiana’s Advocacy Network may provide general information, guidance, and advocacy support to individuals and families navigating the Level of Care appeal process. Individuals have the right to consult with or retain an attorney to assist with an appeal. Free or reduced-cost legal assistance may also be available through organizations such as Indiana Disability Rights, Indiana Legal Services, Neighborhood Christian Legal Clinic, or other legal services organizations, depending on eligibility and capacity.

When an individual is denied Level of Care (LOC) eligibility for an Indiana Medicaid Home and Community-Based Services (HCBS) waiver, the individual has the right to appeal the decision.

An appeal provides an opportunity to show that the Level of Care determination was not correct and does not accurately reflect the individual’s actual functioning and support needs under the applicable eligibility criteria. The purpose of an appeal is not to establish the individual’s needs on their worst day or to exaggerate limitations in order to qualify for services. Information provided during an assessment or appeal should always be accurate and truthful.

At the same time, individuals and families should not minimize the assistance a person actually needs. A person may be able to perform a task only with prompting, supervision, physical assistance, adaptive equipment, significantly additional time, or other supports. Those circumstances may be important when determining Level of Care and should be accurately described.

This guide explains the Level of Care appeal process and provides practical information to help individuals and families identify the issues in dispute, gather relevant evidence, and clearly present their case.

 The following five steps explain how to request an appeal, prepare your case, and participate in the hearing process.

  1. Review the Decision

The first step is to understand what the state decided and, when possible, identify the specific Level of Care finding you disagree with.

Individuals applying for or receiving the Health and Wellness (H&W) or Traumatic Brain Injury (TBI) waivers will receive a Notice of Level of Care Determination, a Level of Care Outcome Explanation, and information about their Appeal Rights from Maximus. The Outcome Explanation will state whether the individual was approved or denied the Level of Care necessary to receive waiver services, but it may not provide enough detail to fully understand the reason for the denial.

For H&W and TBI Waivers, the Level of Care criteria differ from those used for the FSW and CIH Waivers. Because the Maximus Level of Care Outcome Explanation may not identify the specific findings or criterion that resulted in a denial, the individual may need to obtain and review the assessment and other records used in making the determination to understand and challenge the basis for the decision.

For Family Supports Waiver (FSW) and Community Integration and Habilitation (CIH) Waivers, the determination letter provides more information about the specific Level of Care findings. Individuals applying for or receiving the FSW or CIH Waiver will receive a letter from the Division of Disability, Aging, and Rehabilitative Services (DDARS) explaining whether the individual met the applicable Level of Care criteria. The letter identifies the functional areas considered and indicates whether the individual met the Level of Care requirement in each area.

The six functional areas that currently determine eligibility are:

  • mobility;
  • understanding and use of language;
  • self-care;
  • capacity for independent living;
  • learning; and
  • self-direction.

An individual must meet the criteria in at least three of the six functional areas to meet Level of Care. The determination letter may also identify economic self-sufficiency as an additional area; however, economic self-sufficiency is no longer used in determining Level of Care eligibility.

Review the determination carefully. Do not focus only on whether the final decision says “approved” or “denied.” Look at the individual findings and identify any that do not accurately reflect the individual’s actual functioning and support needs. For example, an individual may meet the criteria in two functional areas but not meet the criteria in a third area where the individual or family believes the assessment did not accurately capture the person’s functioning and support needs. That specific finding may become the focus of an appeal. The determination will also include information about the individual’s appeal rights and a form that may be used to request an appeal.

Pay close attention to the appeal deadline. If the individual is denied and disagrees with the determination, an appeal must generally be requested within 33 days of receiving the decision letter. Do not delay filing an appeal while gathering records or other evidence. The appeal can be requested first, and supporting evidence can be gathered afterward.

  1. Submit the Appeal Request

If the individual disagrees with the Level of Care determination and wants to challenge the decision, the next step is to request an appeal.

The decision letter will include information explaining how to appeal and an appeal form that can be completed and returned. An individual may also submit a written request for an appeal. Follow the instructions provided with the decision and submit the appeal within the required deadline. Generally, the appeal must be requested within 33 days of receiving the decision letter.

Briefly explain why you disagree with the determination in the appeal request. Identify the specific finding you believe is incorrect and briefly explain why. DDARS staff review Level of Care appeals after they are filed, so this may be an early opportunity to correct an inaccurate determination and resolve the issue without proceeding to a hearing.

An individual may designate an authorized representative to assist with the appeal. The authorized representative does not have to be an attorney and may be a family member, advocate, or other person the individual chooses. An authorized representative may assist the individual throughout the appeal process, including communicating about the appeal and participating in the hearing. An individual may designate an authorized representative in the appeal request by stating that they authorize the named person to represent them in the appeal and providing the authorized representative’s contact information. The individual may still participate in and speak for themselves during the appeal even when an authorized representative has been designated.

Do not wait until you have gathered all of your evidence before requesting the appeal. Filing the appeal preserves the individual’s appeal rights. Records, supporting documentation, and other evidence can be gathered afterward.

Include a copy of the Level of Care decision with the appeal request. Keep a copy of everything submitted and, whenever possible, use a method that provides confirmation of when the appeal was sent or received such as a mail confirmation receipt, fax receipt, or copies stamped “Received” if taken directly to a Bureau of Disability Services (BDS) office.

As part of preparing for the appeal, request a copy of the individual’s complete Level of Care assessment and, when available, other documents used in making the Level of Care determination. Reviewing these records can help identify how the state reached its decision, which findings may be disputed, and what evidence may be helpful in the appeal.

Continuing Services During an Appeal  

For an individual who is already receiving waiver services and is appealing a determination that would terminate those services, the individual has the right to continue receiving waiver services while a timely appeal is pending. Pay careful attention to the instructions and deadlines in the appeal notice for requesting continuation of benefits.

DDARS has advised that during an appeal of a Medicaid Waiver re-eligibility determination, the individual’s Medicaid Waiver services and associated Medicaid coverage will remain active while the appeal is pending, including through administrative and judicial appeals. Providers may continue to be reimbursed for services provided during this period, and the individual will not be required to repay the cost of those services if the denial is ultimately upheld.

This is different from an appeal involving Medicaid financial eligibility. In a financial eligibility appeal, Medicaid coverage is not necessarily guaranteed while the appeal is pending, and there may be a risk of repayment if the individual is ultimately found financially ineligible. If the individual is under age 18, this could mean that the family may be responsible for medical costs paid by Medicaid during this period. If the individual is an adult, this could mean that the individual, rather than the family, may be responsible for those costs.

Get Help When Needed

You do not have to navigate the appeal alone. An individual may use an authorized representative, seek assistance from an advocate, or consult an attorney. Consider seeking additional assistance if you do not understand why Level of Care was denied, are having difficulty obtaining or understanding the assessment, or are unsure how to present the disputed issues.

  1. Gather Supporting Evidence 

Once an appeal has been requested, review the Level of Care assessment and determination carefully to identify why the individual was found ineligible and which specific findings you disagree with. The goal is not simply to gather as many records as possible. Focus on evidence that helps demonstrate that a particular finding does not accurately reflect the individual’s actual functioning and support needs.

For the Health and Wellness (H&W) and Traumatic Brain Injury (TBI) waivers, an individual must have a skilled nursing need or be unable to perform at least three Activities of Daily Living (ADLs). Review the individual’s Level of Care assessment to determine whether a skilled nursing need was identified and which ADLs were found to meet or not meet the applicable criteria.

For the Family Supports Waiver (FSW) and Community Integration and Habilitation (CIH) Waiver, review the determination to identify the functional areas in which the individual was found to meet or not meet the Level of Care criteria. An individual does not necessarily need to dispute every finding. Focus on the finding or findings that the individual believes do not accurately reflect their functioning and support needs.

For example, if an individual meets the criteria in two functional areas but does not meet the criteria for mobility, and the individual or family believes the mobility determination is inaccurate, the appeal should focus on the individual’s actual mobility needs. Relevant evidence might include:

  • a fall-risk or safety plan;
  • incident reports involving falls or mobility;
  • physical or occupational therapy evaluations and treatment notes;
  • documentation regarding the use of mobility devices or other adaptive equipment;
  • records describing the type and frequency of assistance the individual receives; or
  • statements or testimony from people with firsthand knowledge of the individual’s mobility and support needs.

The most useful evidence is evidence that connects directly to the disputed Level of Care finding. A diagnosis alone may not fully describe how an individual functions in everyday life. Records and testimony should, when possible, describe what the individual can and cannot do, what assistance is required, how often assistance is required, and how the assistance relates to the individual’s ability to complete the activity.

Describe Actual Functioning and Support Needs

Level of Care is based on the individual’s actual functioning and support needs. When describing those needs, be specific, accurate, and truthful.

Do not describe the individual’s needs based on the individual’s worst day. For example, the fact that a person could potentially fall, become lost, or experience another problem does not necessarily establish that the person requires assistance with a particular activity.

At the same time, do not describe only what you think the individual may be able to do or what the individual can accomplish under ideal circumstances or on their best day. If the individual ordinarily requires prompting, supervision, physical assistance, adaptive equipment, additional time, or another form of support to complete an activity, accurately describe that support and why it is needed.

It is also important to accurately describe how the individual performs an activity, including any prompting, supervision, physical assistance, adaptive equipment, or additional time ordinarily required. For example, an individual may be physically capable of dressing but ordinarily require extensive prompting, supervision, physical assistance, or significantly additional time to complete the task. Those circumstances should be accurately described and supported with evidence when available.

Whenever possible, provide specific examples from the individual’s everyday life rather than general statements about what the individual can or cannot do.

Identify the Best Evidence

Evidence should be as current as reasonably possible because Level of Care generally concerns the individual’s present functioning and support needs. Older records may still be useful when they document a continuing condition, establish a pattern, or provide important context, but they should not substitute for current evidence when more recent information is available.

Relevant evidence may include:

  • medical records;
  • hospital or urgent care records;
  • therapy evaluations and treatment notes;
  • psychological or other professional evaluations;
  • behavior or safety plans;
  • incident reports;
  • school or employment records;
  • documentation from direct support professionals or other service providers; and
  • letters or statements from physicians, therapists, teachers, employers, job coaches, family members, or others who have firsthand knowledge of the individual’s functioning.

When asking someone to provide a letter or statement, ask them to be specific. A statement that an individual “needs help” is generally less useful than a description of what assistance the person requires, how frequently it is provided, why it is necessary, and what the writer has personally observed.

Individuals may also ask people with relevant firsthand knowledge to testify at the hearing. Potential witnesses could include family members, direct support professionals, therapists, teachers, medical professionals, job coaches, or others who regularly observe the individual’s functioning and support needs.

Before submitting evidence, ask: What Level of Care finding does this evidence help explain or dispute?

If a document does not help answer that question, consider whether it needs to be included.

  1. Prepare Your Appeal Packet

After an appeal is requested, the individual will receive a Notice of Telephone Hearing from the Office of Administrative Law Proceedings (OALP). The notice will provide the date and time of the hearing and instructions for participating. It will also contain important information about preparing for the hearing, including deadlines and instructions for submitting evidence.

Read the Notice of Telephone Hearing carefully and follow its instructions. Pay particular attention to the deadline for submitting evidence and where the evidence must be sent. Evidence generally must be provided to both OALP and the state’s representative before the hearing.

An organized appeal packet can help the Administrative Law Judge (ALJ), the state’s representative, and the individual understand the issues and supporting evidence.

Depending on the case and the instructions provided by OALP, an appeal packet may include:

  • the Notice of Telephone Hearing;
  • a Witness List, if witnesses will testify;
  • a List of Exhibits;
  • a brief Summary of Facts;
  • a Position Statement explaining the disputed Level of Care finding and the individual’s position; and
  • each supporting exhibit or document.

If you plan to have someone testify at the hearing, make sure that person is identified on the Witness List submitted before the hearing.

Organize the Case Around the Disputed Findings

The appeal packet should make it easy to understand what finding is disputed and what evidence supports the individual’s position. Avoid submitting a large volume of records without explaining how they relate to the Level of Care determination.

A Summary of Facts should briefly describe the relevant facts about the individual and the Level of Care determination. Focus on facts that relate to the disputed issue rather than providing the individual’s entire medical, educational, or service history.

A Position Statement can provide a roadmap for the appeal. A Position Statement does not need to be lengthy or written in legal language. It should identify:

  • the Level of Care determination being appealed;
  • the specific finding or findings the individual disputes;
  • why the individual believes those findings do not accurately reflect their functioning and support needs;
  • the evidence supporting the individual’s position; and
  • the outcome the individual is requesting.

For example, if the appeal concerns a finding that the individual did not meet the criteria in the area of mobility, the Position Statement should focus on the individual’s actual mobility needs and direct the ALJ to the exhibits and witnesses that support that position.

Organize and Label the Evidence

Follow the instructions from OALP for labeling and submitting exhibits. Each exhibit should be clearly identified, and the pages within each exhibit should be numbered. For example:

Appellant’s Exhibit 1 – Physical Therapy Evaluation
Page 1 of 5

Consider arranging the exhibits in the same order they are discussed in the Position Statement. This makes it easier to direct the ALJ and the state’s representative to the relevant evidence during the hearing.

Before submitting the packet, review it one final time. Ask whether each exhibit helps establish or explain a disputed Level of Care finding. More evidence is not necessarily better evidence. A smaller, well-organized packet of relevant records may be more useful than a large packet containing documents that do not relate to the issues being appealed.

Keep a complete copy of everything submitted and have it available during the hearing.

Requesting a Continuance

If additional time is needed before the hearing, an individual may request a continuance, such as when there is a scheduling conflict, additional time is reasonably needed to obtain important evidence, or the individual is attempting to obtain legal representation.

A request for a continuance should be made as soon as possible, in writing, and in accordance with the instructions from OALP. The request should explain why additional time is needed, an estimation of how much additional time will be needed, and should be provided to OALP and the state’s representative.

Do not assume that requesting a continuance means the hearing has been postponed. Unless and until the continuance is granted, individuals should continue preparing for the hearing on the date originally scheduled.

  1. Prepare for and Participate in the Hearing

Before the hearing, review the appeal packet and identify the most important points you want the ALJ to understand. Be prepared to explain:

  • what Level of Care finding or findings you disagree with;
  • why you believe the determination does not accurately reflect the individual’s functioning and support needs;
  • what evidence supports your position; and
  • what outcome you are asking for.

If the individual has designated an authorized representative, that person may participate in the hearing and assist the individual in presenting the appeal.

Have a complete copy of both your appeal packet and the state’s evidence available during the hearing. Mark or make notes of the pages you expect to discuss so you can easily direct the ALJ to important information.

Before the Hearing

Before the hearing begins, the individual and the state’s representative may participate in a Pre-Hearing Conference by phone. This gives the individual and the state’s representative an opportunity to discuss the case and determine whether the issues can be resolved without proceeding to the hearing. Be prepared to briefly explain the findings you disagree with and the evidence supporting your position. Listen carefully to any proposed resolution and ask questions if you do not understand what the state is offering or how it will affect the individual’s Level of Care determination or services.

The state may also suggest that the individual complete a new Level of Care assessment. An individual may agree to a new assessment. However, before withdrawing an existing appeal, make sure you understand what will happen after the new assessment and whether the issue that led to the appeal has actually been resolved. Do not withdraw an appeal based only on an expectation that a new assessment will produce a different result.

If an agreement fully resolves the issues being appealed, the individual may choose to withdraw the appeal. Do not withdraw the appeal unless you understand and agree with how the disputed issues will be resolved. The decision whether to withdraw the appeal belongs to the individual or, when authorized to do so, the individual’s authorized representative. The state cannot withdraw an appeal, even if both sides have come to an agreement.

What to Expect at the Hearing

Hearings are typically conducted by telephone, although an individual may be able to request an in-person hearing.

Before the hearing begins, the ALJ will ask if the individual and the state’s representative would like to have a pre-hearing conference to see if they can resolve the issues before the hearing. This may occur even if the individual and state have had a pre-hearing conference before. If the two sides do not come to agreement, the hearing will begin. At the beginning of the hearing, the ALJ will identify the people participating and their roles and will place witnesses under oath. Although an administrative hearing is less formal than a courtroom trial, it is an official proceeding: testimony is given under oath, evidence is considered, and the hearing creates the record on which the case will be decided. All testimony should be accurate and truthful.

The ALJ will also determine whether the parties received the evidence submitted for the hearing. If the individual did not receive the state’s evidence, or received it too late to reasonably review and prepare a response, the individual should tell the ALJ. The ALJ will determine how to proceed, which may include postponing the hearing to allow additional time to review the evidence.

Listen to the State’s Case

The state will generally present its case first and explain the basis for the Level of Care determination. Listen carefully and take notes.

When given the opportunity, the individual may ask questions of the state’s witnesses. Questions should focus on information that is relevant to the disputed Level of Care findings. For example, if testimony about the individual’s functioning differs from information contained in an assessment or another record, the individual may ask questions to clarify that difference. You do not need to ask questions simply because you have the opportunity to do so; ask questions when they will help clarify an important fact or disputed finding.

Remain respectful and focused on the issues being appealed. The purpose of asking questions is to help the ALJ understand the evidence, not to argue with or confront the witness.

Present Your Case

When it is the individual’s turn, explain the case in a clear and organized way. Focus on the specific Level of Care findings being disputed and use the exhibits and witnesses to explain why the determination does not accurately reflect the individual’s actual functioning and support needs.

Refer the ALJ to specific evidence when possible. Instead of simply stating that an individual needs assistance with an activity, identify the evidence that demonstrates the need and explain what it shows.

The individual may also call witnesses. Helpful testimony generally comes from people who have firsthand knowledge of the individual’s functioning and can describe specific observations. Witnesses should explain what they personally observe, what assistance the individual requires, how often the assistance is needed, and other facts relevant to the disputed Level of Care criteria. Any individual who may testify at the hearing should be identified on the Witness List submitted before the hearing.

Testimony should be accurate, specific, and focused. Do not exaggerate the individual’s limitations but also do not minimize the support the individual ordinarily requires. If you do not know the answer to a question, it is appropriate to say that you do not know rather than guess.

The state’s representative may ask questions of the individual and the individual’s witnesses. Listen to each question and answer it as directly and accurately as possible. 

Summarize the Case

At the conclusion of the hearing, each side may have an opportunity to summarize its position. Use this opportunity to briefly return to the central issue: What finding was incorrect, what evidence demonstrates the individual’s actual functioning and support needs, and why does that evidence support the requested Level of Care determination?

There is no need to repeat every piece of testimony or every document submitted. Focus on the strongest evidence related to the disputed findings.

After the Hearing

The ALJ will not announce a decision during the hearing. A written decision will be issued after the hearing.

Read the decision carefully. If the individual disagrees with the ALJ’s decision, additional review may be available. Pay close attention to any deadlines for requesting further review. The individual may request Agency Review, during which DDARS or its designee reviews the existing hearing record and decision. Because new evidence cannot be submitted during Agency Review, it is important to present all relevant evidence during the administrative hearing.

Additional judicial review may also be available after the administrative appeal process is complete. At this stage, individuals should strongly consider consulting an attorney about available legal options and applicable deadlines.

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