By: Stacy Warden/Author of Noah’s Miracle
The legal process isn’t easy for an already struggling family who is overwhelmed with the care of a child or family member. It’s intimidating from the start. When a family is issued a denial they are provided with a notice of the denial and advised of their rights. However, there’s a tiny little clause that says should you lose your appeal that you very well may have to pay the State back in services and legal fees. Which, for most families is an automatic discouragement from pursuing their appellate rights before an Administrative Law Judge.
The process is made as discouraging as possible. Administrative Law Hearings can be scheduled as far out as 4-5 months, all the while services have been terminated, medications have been denied, and durable medical equipment and even life saving medical equipment are hanging in the balance, leaving many without the life-saving supports and quality of care they are entitled to. If a family asks for an expedited hearing forthwith before an Administrative Law Judge, that decision gets to be made by the offices of Colorado Department of Health Care, Policy and Financing and isn’t even determined by a Judge. The very agency that entered the denial in the first place, has the right to determine if your denial should be heard before a Judge on an emergency basis. Now if you’re scratching your heads wondering if that is legal, it is. Now if you’re questioning if the State can abuse that power, the answer is yes.
Should a family be fortunate enough to muddle through the Court process, in which they must instantly learn how to call their own witnesses, provide their own documentation and exhibits and evidence to prove the State entered a denial in error, the State can then come in and file an Exception to Initial Decision which renders the favorable ruling before an Administrative Law Judge useless. That’s right, you can go through the entire court process, get a denial reversal, only to have the State still say it’s still denied because… well they just think it should be and that they know better than a Judge.
The only recourse families have at that point is to file the matter in District Court and try to convince a District Court that the Administrative Law Order should stand and that the Exception to Initial Decision should be reversed. That takes time, and usually, money to hire an attorney as it’s not a process that very family-friendly, or easy to understand for most without any legal experience or background.
When you are talking about a member of the disabled community that is going without something they need for their daily living needs while this is all sorted out in a court of law, that could take anywhere from 4 months to 2 years from start to finish, is a travesty.
Moreover, the State has shown a pattern of abusing this power. They will deny emergency hearings in every case, and they also routinely file Exception to Initial Decisions in most favorable ruling cases as well.
So what can you do if you feel you have been victimized by the State over-exercising this authority? Seek out an advocate in your community. Share your story, look for help and guidance. It’s a very intimidating and discouraging process, but others who have been in this same position are behind you. Don’t let this flawed system discourage you from pursuing your rights and fighting for what is needed. And in the meantime, let’s hope that we can be the voices of productive change to make the future easier when it comes to the appellate process changes that need to occur.