Amy Somerville and Lisa Barnett at the MPATS on piano

Our legal staff assists member families with guardianship and alternatives, wills, trusts, estate planning, and probate matters. We offer member families legal representation at hearings for Medicaid, Oakland County Community Mental Health, and MORC.


Guardianship

Historically, from Roman times through the English notion of “common law,” guardianship as a protective device was developed to preserve the property of an “incompetent person.” Relatively recent the concept of “guardianship of the person” was established as a separate format wholly distinct from matters relating to money.

The precept of least restrictive, which provides for minimal intrusion and the removal of fewer rights have guided even more recently, courts and legislatures by recognizing a partial or limited form of guardianship.

This and other developments reflect the profound changes in American jurisprudence during the past 20-25 years with respect to the rights of all persons with disabilities. Such changes clearly represent the progress of disability-related legislation and programmatic development using Wolf Wolfensberger’s principle of normalization, where everyday life and living for persons with disabilities should be as close as possible to the regular circumstances and ways of life of their society.

A further legal development has been the recognition and application of due process rights, as guaranteed by the 5th and 14th Amendments to the U.S. Constitution, relative to persons allegedly requiring the services of a guardian. In Michigan, this means that a person with a developmental disability who may require a guardian shall have: the right to an attorney; the right to a trial by jury; the right to present evidence; the right to cross-examine witnesses; and the and the right to have the hearing closed to the public. Such recognition of constitutionally-established due process rights confirms that, in fact, the appointment of a legal guardian represents the “taking” of corresponding rights away from a person when a guardian is given authority over certain aspects of another’s life.

Once a child reaches the age of majority the parents’ status as guardian terminates automatically by law. This is true for any child including those with mental retardation or other developmental disability. Only through appointment as guardian by a probate court, where a judge declares someone legally incompetent, can this formal legal relationship continue. Michigan’s Mental Health Code, for example, allows for the appointment of a guardian of the person who is developmentally disabled only when it is necessary and if the person lacks the capacity to perform some of the tasks usually required for self-care and/or the maintenance of personal finances, or if that person is totally without the capacity to care or such matters.

Parents do, however, have a number of other alternatives available, and can play many significant roles without removing rights from their adult child. A parent can act as “next of kin” in medical situations, as a “representative payee” when handling governmental financial benefits, a “trustee” of a private trust, as a readily recognized advocate, or even as the holder of a “power of attorney.”

In summary, the vast majority of parents desire to obtain some level of security for their children, but security lies far beyond the appointment of a guardian. Security really lies with appropriate quality education, vocational rehabilitation and training, financial assistance programs and other governmental benefits, appropriate quality residential living arrangements, laws protecting the rights of persons with disabilities, suitable recreation and social opportunities, and advocacy agencies that reach out to monitor and secure the necessary services in order to provide for a good quality of life that all people deserve in our society.

Click here to view the Guardianship & Alternatives PowerPoint Presentation


The Challenges of Hearings and Grievances

Anytime a government agency won’t let you have a something, or reduces the amount and scope of what you had, then you are entitled to appeal that decision. However, given the current budget woes of the public mental health service system in Oakland County and the State of Michigan, seeking legal redress for such perceived wrongful actions may sound better in theory than reality.

Pennies are being pinched, big time!

Extreme fiscal constraints imposed by the Oakland County Community Mental Health Authority (CMHA) over the last two years on its “core provider” agencies (e.g., MORC, Inc., Easter Seals, Training Treatment Innovations, Common Ground Sanctuary, and Community Network Services) have resulted in severe service cutbacks to children and adults with developmental disabilities. Specifically, the ongoing “utilization reviews” by the MORC, Inc. have created a groundswell of intake calls to The Arc over the past nine months asking for help in appealing these oftentimes devastating cuts. Make no mistake about it; public pennies are being pinched, big time! Traditional community-based services are being scrutinized for not only individual use, but also personal need. Administrators without the benefit of a truly appropriate Person-Centered Planning meeting are making arbitrary, and oftentimes head-scratching decisions.

Appeal Time Limits

The general rule for any appeal is that one must be filed within 90 days of the notification of a negative action by an administrative agency. However, if you do so in writing within 10 days after receiving such a notice from a mental health agency, then the status quo will be maintained until there is a formal decision. This is the point at which most consumers or families must decide upon an appropriate avenue of appeal, and there are several from which to choose.

Most parents and consumers think first of filing a Recipient Rights Complaint. Although not really an “appeal” in the truest sense of the word, this legal right would be invoked if there were an actual violation of some provision of the Michigan Mental Health Code (e.g., there was no Person-Centered Plan). Generally speaking, cutbacks in the level of services alone are usually not enough to prevail with this option.

Ability-to-Pay for Families of Minor Children

Many families, who because of a minor child with a disability in the home, are now being forced to pay for mental health services according to their level of income. In the past, this law was not routinely enforced by the CMHA when it operated direct services. The law (Chapter 8 of the Michigan Mental Health Code) has been pretty clear and straightforward about this issue for about thirty years. If you even have a few bucks in a §401(k) retirement fund, you will more than likely lose an “Ability-to-Pay” hearing. The best you can hope for is a reduction in the monthly liability amount.

Not Disabled Enough?

Other people are being denied admission to MORC, Inc. because they are simply “not disabled enough.” For example, if one has only a mild mental impairment, the application for admission will more than likely be denied, which will then necessitate a request for a “Second Opinion” appeal to the CMHA. Typically, the result will be a strict interpretation of the Michigan Mental Health Code that denies access to services since public policy directs assistance first to those with the most severe needs.

Local Grievance Appeals

A Local Grievance is probably the most common option for appeal and in most cases a quite useful procedure. The CMHA essentially takes another look at the negative action that has been taken by the core provider agency. Normally, this review will uphold the cuts, but sometimes you may get lucky and obtain some degree of service restoration, or on rare occasions perhaps even all of it.

Administrative Tribunal Hearing for deciding Medicaid-related issues

Another in the possible realm of appeal options includes requesting a Michigan Department of Community Health Administrative Tribunal Hearing. Don’t even think of going to such a hearing if you are not Medicaid eligible! The Administrative Law Judge’s (ALJ’s) will tell you that they have no jurisdiction since they can only decide Medicaid-related issues. Unless you have a Habilitation Waiver (a.k.a., “Hab Waiver”) don’t even think of appealing a reduction of what are known as “Community Living Supports (CLS)” hours. The ALJ’s will tell you that they do not have jurisdiction to decide this matter because Chapter III of the state’s Medicaid rules no longer allows for coverage of an “alternative service.” And, finally, don’t even think that you can talk about the chores involved with Adult Home Help Services at a CMHA hearing. You must appeal those issues separately through the local Family Independence Agency (FIA) office!

Alternative Dispute Resolutions

Consumers without Medicaid eligibility who are denied mental health services or who have been reduced in the amount and scope of services, may seek an appeal through what is known as Alternative Dispute Resolution (ADR).” There is both a local ADR and one at the state level.

Circuit or Probate Court, and the Costs

Once you have exhausted your administrative remedies, there is always Circuit or Probate Court. This of course stops most folks dead in their tracks because of the enormous cost to retain an attorney to fight the case. Professional legal fees and costs can approach $20,000 or more for such an appeal — at just this initial stage!

The cutbacks in budgets and services will continue!

Pardon my sarcasm, but, there, wasn’t that simple and consumer friendly? I believe that our system for the delivery of public mental health services is in the midst of tremendous change. Further, it is becoming increasingly more difficult to access the necessary assistance promised by the past two generations of parent-based legislative advocacy. The cutbacks in budgets and services will continue. Asking for an appeal may become an exercise in futility.


Ability to Pay

Assessing your ability to pay is a requirement of the Michigan Mental Health Code.  The privatization of our local mental health system a couple of years ago caused an increasingly stricter enforcement of the Michigan Mental Health Code. Namely, the “ability-to-pay” rules of Chapter 8 of that Code, especially against families with minor children using respite care, in-home staffing, supports coordination, or other mental health related services. As the Michigan legislature must have intended back in 1974, “if you can pay, you will … according to your income.”

The former state mental health agencies routinely enforced the financial liability rules of Chapter 8. However, when the state transferred all the responsibility for mental health services to the counties, some, like Oakland, never bothered to follow the letter of the law. Let’s just say, well, services were authorized and provided to consumers without true financial determinations, if any at all!

I don’t need to remind folks again about how only a couple of years ago the Oakland County Community Mental Health Authority (CMHA) transferred a substantial financial debt onto the Macomb-Oakland Regional Center, Inc. (MORC). One could say that for several years, our Oakland CMHA essentially provided $10 of service for every $5 bill it received when it was running direct services. As we all know, that sort of budget practice comes back to haunt everyone involved, especially the taxpayers. The Oakland CMHA now insists that MORC repay this financial shortfall over the course of the next twelve months. This means cutting $12 million from MORC’s already beleaguered budget!

Lately, many families have been calling The Arc office seeking advocacy assistance with their financial re-determinations and ability-to-pay requirement. Sure there are due process hearing rights, but the Code is fairly cut-and-dried when it comes to matters of financial responsibility. Unless you can truly demonstrate an INABILITY-to-pay, there is virtually no case to be made.

Chapter 8 of the Code sets up a financial liability chart that essentially says the more income the family has, the more they are required to pay. The Code uses a family’s most recent Michigan 1040 to determine taxable income, and there are some relatively minor allowances for “protected” income and assets.

A few of the financial liability examples would be that a family (or an adult individual) with a state taxable income of $6,000 or less has zero ability-to-pay each month. A family with $20,000 of state taxable income has to pay $62 a month; $30,000 – $206; $40,000 – $405; and $50,000 – $615. State taxable incomes over $50,000 per year will pay 15% of that income (e.g., $100,000 – $1,250 per month).

Okay, so how can you “fight city hall?” Well, about the only thing you can do is total up all of your household and family income and expenses for a month. You have to hope that the income is the same or less than the expenses, that is, you do not have the funds to pay for mental health services. Then declare/plead to the hearing officer that having to pay that financial liability determination is an “undue financial burden.”

Don’t think that your 401(k) or IRA or personal retirement fund is safe. The hearing officers over the years have ruled that families need to use those funds first before the taxpayer is on the hook. Also, don’t think that past services received are easily forgotten. The Code directs all public mental health service providers (a.k.a., MORC, Easter Seals, T.T.I., etc.) to go back and bill for up to 2 years!

Oh, the Code does state that indeed no “undue financial burden” shall be imposed. Further, it says that families (i.e., responsible parties) don’t have to pay anything in excess of the cost of services received by the consumer. The Code even goes on to say that private insurance can cover a portion or all of one’s ability-to-pay, and, that “an individual shall not be denied services because of the inability of responsible parties to pay for the services” (… oh, great, services will continue, but the state will run up the tab on the parents anyway, and then send them either to a collection agency, garnishee wages and/or withhold state tax refunds).

A small silver lining in all this is that once a child in need of public mental health services turns 18 years old, the parents are no longer financially liable according to Michigan Parental Financial Responsibility Act. An adult consumer is defined by law as a “family of one” and in most cases will have a liability of zero, unless their Michigan taxable income is over $6,000.

I know all of this has been a bit technical in part, but it is a current, fact-of-life reality for many member families of The Arc who are bringing the issue to our attention. We will continue to inform our constituency, and attempt to help all who ask for our help.