November 08, 2004

JUDICIAL REVIEW FOR LEVEL OF NEED CASES

In a recent article, Understanding the Anatomy of a Level of Need Appeal, I said that recourse beyond the administrative process was non-existent at worst and uncertain at best. We now have good news on that issue from the Texas Supreme Court.

In September, the Texas Supreme Court ruled on a case involving the question of whether or not a person who holds a child-care facility license may obtain judicial review of an administrative decision to revoke the license, Texas Department of Protective and Regulatory Services v. Mega Child Care, Inc. (Supreme Court of Texas, September 3, 2004) Although this is a different kind of case from the Level of Need case, I would argue that the holding applies to both.

TDMHMR long took that position that because the agency’s enabling statute did not specifically authorized judicial review in pursuant to the Administrative Procedures Act for level of need cases, no such right existed. The Texas Supreme Court ruled otherwise. The Court held that “Section 2001.171 provides an independent right to judicial review of a contested-case decision when the agency’s enabling statute neither specifically authorizes nor prohibits judicial review of the decision.”

It seems apparent that, because there is no statute prohibiting judicial review for LON cases, you have a right to appeal these cases to the District Court for judicial review. I consider this a major victory reaffirming and restoring due process rights for the beleaguered providers in the HCS and ICF-MR programs of Texas.