Earlier this week, on July 21, 2020, the Arizona Court of Appeals issued a new opinion affecting children with autism in Arizona. In A.C. v. ADES/DDD, the Court reversed the Arizona Department of Economic Security’s decision that A.C., an eight-year-old child with an undisputed qualifying diagnosis of autism, was no longer eligible to receive ADES’ Department of Developmental Disabilities’ (DDD) services, despite the fact that A.C. had been receiving DDD services since he was four-years-old. Here are the highlights from the opinion:
- Relevant Regulations:
- A person with a developmental disability may seek DDD therapeutic services. See A.R.S. § 36-559(A). DDD regulations establish eligibility to qualify for those services. See A.A.C. R6-6-302. For children, DDD distinguishes eligibility based on age. Children less than six years of age must have a qualifying diagnosis (which includes autism) or be at risk of being diagnosed with a developmental disability. A.A.C. R6-6-302(G). Children six and older must (1) have a qualifying diagnosis (which includes autism) and (2) “[h]ave functional limitations in three or more [of seven] areas of major life activities as described in R6-6-303(C).” A.A.C. R6-6-302(H)(1)-(2). Opinion, ¶ 15.
- The seven substantial functional limitation (SFL) categories include: (1) self-care; (2) receptive and expressive language; (3) learning; (4) mobility; (5) self-direction; (6) capacity for independent living; and (7) economic self-sufficiency. A.A.C. R6-6-303(C)(1)-(7). Opinion, ¶ 17.
- Changing Standards Does Not Automatically Terminate Eligibility for Service:
- The Court reaffirmed that transitioning from the under six-year-old standards to the six-years-old and older standard does not automatically terminate a beneficiary’s DDD services. “Although a statute governing termination of DDD services discusses automatic termination when a beneficiary turns 18 years old, A.R.S. § 36-566(B)-(C), no comparable provisions exist that govern termination when a beneficiary turns six.” A.W. v. Ariz. Dep’t of Econ. Sec., 247 Ariz. 249, 253 ¶ 18 (App. 2019). Opinion, ¶ 20.
- Burden of Proof:
- The Court reasoned that no statute or regulation suggests a shifting burden of proof standard (such as ADES argued, attempting to shift the burden of proof onto A.C.); rather, the Court noted that DDD regulations suggest that DDD has the burden of proof: “[t]he Department has the initial burden of going forward with presentation of evidence.” A.A.C. R6-6-2212(C). Further, the Court determined that the fact that the DDD sought to change the status quo (taking away A.C.’s DDD services) was an important factor weighing in favor of allocating to DDD the burden of proof. Opinion, ¶¶20-22.
- The DDD Must Maintain Up-To-Date Records:
- The Court made clear that DDD’s statutory requirement to evaluate the services being provided to a client “at six-month intervals” necessarily means that the DDD must have, secure, and consider relevant documents in these periodic evaluations. Opinion, ¶ 23.
- The DDD Must Assist Clients and Provide a Case Manager:
- The Court also clarified that the DDD is obligated to “assign a case manager” for clients like A.C., who, in turn, is obligated to “assist the client and the client’s family in all aspects of the developmental disabilities service delivery system,” including “[t]he pursuit of evaluations and professional assessments necessary to substantiate the need for services,” and “[t]he collection and analysis of information regarding eligibility.” See A.A.C. R6-6-601(1)-(2); A.A.C. R6-6-604. Opinion, ¶24.
- Regulations Require That the DDD Must Compare a Potentially Eligible Child’s Abilities with Age and Developmentally Appropriate Abilities in Reaching Its Determination:
- The DDD’s own regulations require that when evaluating SFLs in self-direction, capacity for independent living, and economic self-sufficiency “[f]or children under the age of 18, [DDD] shall compare the child’s abilities in this area with age and developmentally appropriate abilities based on the current guidelines of Centers for Disease Control and Prevention and American Academy of Pediatrics.” A.A.C. R6-6-303(C)(5)(b), (6)(b) & (7)(b). The doctor testified in this case that the SFLs of self-direction, capacity for independent living, and economic self-sufficiency are “not attributable to a six-year-old.” But the Court found the doctor’s decision not to consider those SFLs in her analysis was contrary to law. This comparison is precisely required by the regulations. Opinion, ¶¶30-31.
To read the full decision in A.C. v. ADES/DDD, please click here.
About the Author:
Erica Erman is an Associate in Dickinson Wright’s Health Care Practice Group. Her practice areas include healthcare, behavioral healthcare, appellate, and general litigation law. Prior to joining Dickinson Wright, Erica graduated cum laude from the James E. Rogers College of Law at the University of Arizona, and served as a Judicial Law Clerk to the Honorable Robert M. Brutinel of the Arizona Supreme Court. Erica can be reached at 602-889-5342 or firstname.lastname@example.org and you can visit her bio here.
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