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Appeals for ICF/DD Level of Care

Page posted: 01/01/06

Page reviewed: 2/24/11

Page updated: 01/01/06

Legal Authority

42 CFR 483.440, Minn. Stat. §256.045, Minn. Stat. §256B.092, Minn. R. 9525.0016, subd. 14


The Minnesota Department of Health reviews the compliance of ICFs/DD with the Code of Federal Regulation ICF/DD standards. MDH surveys each ICF/DD in Minnesota every year for federal certification and every other year for compliance with supervised living facility licensure standards. MDH issues correction orders for any violations of state rules and deficiencies for violations of federal requirements.

If during the review, surveyors make a judgment that the client is independent in self-care and other activities and thus is not eligible to receive ICF/DD level of care, they will issue a TAG #W198 finding, which, if not appealed, will likely result in disallowance of the federal match.

The information below regarding the deficiency notice and appeal process may be helpful to the ICF/DD provider and county in preparing the person to appeal the MDH citation.

Written Deficiency Notice

If an MDH survey finds a person not to meet the ICF/DD level of care, MDH issues a written deficiency notice to the ICF/DD provider. The provider has 10 calendar days to submit a plan of correction to MDH that addresses the written deficiency. Upon receipt of the deficiency notice, the ICF/DD provider should request assistance in responding to the notice from the person’s county case manager and Disability Services Division regional resource specialist for their area.

MDH reviews and responds to the deficiency correction plan. If, after a revisit, MDH determines the person still does not meet ICF/DD level of care, MDH notifies the ICF/DD provider of the continuing ineligibility.

The ICF/DD provider is responsible to give the person, legal guardian if applicable and county case manager written notice that the person will be discharged from the ICF/DD no sooner than 60 days from the date of the notice.

DHS will review the written deficiency notice and contact the county case manager and the ICF/DD program director to provide support regarding the citations, appeal process and other options available to the person and the ICF/DD.

Appeal Process

Only the person and/or his/her guardian on their behalf found not to meet the ICF/DD level of care can appeal the ineligibility/demission (TAG #198) citation. The person has 30 days from the receipt of the notice of action to file the appeal.

If the person is able to show “good cause” for not appealing within the 30-day limit, the person may appeal up to 90 days after receipt of the notice of action. For more information on how to appeal, click on Your Appeal Rights DHS-1941 (PDF).

The county case manager, legal counsel, an advocate and/or family member may assist the person to file and prepare for the appeal. When the Appeals and Regulations Division is notified directly by the person, they will ask the agency whose action is being appealed to complete and submit a State Agency Appeals Summary DHS-0035 (PDF). The purpose of the summary is to describe in more detail the action or decision being appealed. This form is used by the state/county to summarize facts for the decision being appealed.

During the appeal process, the person can remain at the ICF/DD and federal payments will continue if the person’s appeal request for continuation of benefits is made either on or before the effective date of the proposed action OR on or before the tenth day after they have received the notice, whichever is later.

Via the appeal process, if the person is found to be meet the ICF/DD level of care, the person is eligible to remain in the ICF/DD. MDH may request from DHS a reconsideration of the appeal decision or take the case decision to be heard at district court.

Via the appeal process, if the person is found not be meet the ICF/DD level of care, the person has up to 60 days to move out of the ICF/DD. If the person believes that the DHS referee incorrectly interpreted federal regulations, Minnesota Statutes and/or Rules when making the decision, the person may ask for reconsideration of the appeal by contacting the Appeals and Regulation Division. The person will also be able to the appeal to the district court.

The planning team should also consider other home and community-based services available to the person, such as CADI Waiver, TBI Waiver, home care and SILS. If more than 60 days are needed for the person to move, the planning team should request an extension.

Additional Resources

Appeal hearing, conciliation conference and reconsideration (DSD Web site)
Appeals (Disability Services Program Manual)

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© 2018 Minnesota Department of Human Services Updated: 2/24/11 10:30 AM | Accessibility | Terms/Policy | Contact DHS | Top of Page | Updated: 2/24/11 10:30 AM