By S. Paul Prior, Esq., Hinkle, Fingles & Prior, P.C., Attorneys at Law
The Division of Developmental Disabilities (DDD) has adopted new rules that fundamentally change the ways in which adults with developmental disabilities are found eligible for services.
Through new rules adopted earlier this year, DDD formalized two big changes:
- On January 1, DDD ceased serving children under the age of 21. The Department of Children and Families (DCF) will serve children, but it remains unclear what services DCF will actually provide.
- DDD is now requiring all individuals to be Medicaid eligible.
The Importance of DDD Eligibility
Most young people with developmental disabilities will need supports beyond their school years, whether day services, job supports, or residential support services. The state agency charged with providing and funding those services is the Department of Human Services’ Division of Developmental Disabilities (DDD). It is therefore important, as part of the transition planning process for a young person with a developmental disability, that DDD eligibility be secured BEFORE the student leaves high school.
These new rules mean that parents and transition coordinators at schools will need to plan ahead—and plan carefully—if there is to be a seamless shift from school to adult services when a student graduates.
Q: Who is eligible for DDD and at what age?
A: Under its new eligibility rules, DDD will accept eligibility applications only for individuals with disabilities who are at least 18 years old. Those who were found eligible for DDD services before to January 22, 2013 are “presumed eligible” to receive services from DDD when they reach 21 years old.
As part of the new rules, however, any individual born on or after January 1, 1997 must reapply for DDD services after the individual attains the age of 18. This is a potential problem for those born on or after January 1, 1997 and who are on the Community Care Waiver waiting list (formerly the “priority” category of the residential waiting list). It is unknown what will happen to these individuals, and it may be necessary to enforce possible rights to remain on the waiting list as of the date originally assigned.
DDD contends children with developmental disabilities may seek “transitional planning services” from the agency starting at age 16. DDD defines that term as “information and training to prepare for the transition from school to adult life with a focus on employment.”
Q: What are the eligibility criteria?
A: In order to be eligible for services through DDD, an individual must have a developmental disability. This is defined as:
- A severe, chronic disability of an individual, which:
- Is attributable to a mental or physical impairment or combination of mental or physical impairments:
- Is manifest before age 22;
- Is likely to continue indefinitely;
- Results in substantial functional limitations in three or more of the following areas of major life activity:
- Receptive and expressive language
- Capacity for independent living
- Economic self-sufficiency; and
- Reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment, or other services, which are of lifelong or extended duration and are individually planned and coordinated.
- Developmental disability includes, but is not limited to severe disabilities attributable to intellectual disability, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments, where the above criteria are met.
Q: What are the new Medicaid eligibility requirements?
A: One of the most significant and potentially problematic changes to the rules and to the DDD service delivery system in general is that services will be provided only to individuals who are eligible for Medicaid.
In addition, the new rules require the individual, parent, or legal guardian to apply for and maintain all current and future benefits for which the individual is eligible. These include, but not limited to, Medicare, Medicaid, any other State or Federal benefits, and third party support pursuant to statute, rule, court order, or contract.
Medicaid is a joint federal and state program (federally and state funded and state administered) that is based solely on need.
To be eligible a person cannot have more than $2,000 in assets, and cannot earn more than about $729 a month.
Q: What happens if the person is not eligible for Medicaid?
A: If an individual is not eligible for Medicaid, or Medicaid eligibility is lost, an interruption or termination of services by DDD may result. This is particularly troublesome because, in some limited circumstances, individuals cannot obtain Medicaid eligibility. Families need to ensure the individual with a disability does not have excess assets or income, and a properly written Special Needs Trust may be more vital than ever.
Q: Is it possible for an individual who is not eligible for Medicaid to receive DDD services?
A: A person with a developmental disability who is not eligible for Medicaid can receive DDD services for up to 30 days, if the services are necessary because of an emergency and the individual, parent or guardian, in the discretion of DDD, is cooperative.
Q: How do the new rules affect an individual currently receiving DDD services, but who is not Medicaid eligible or who loses Medicaid eligibility?
A: In either case, the individual can receive services for a period not to exceed 60 days from the date of ineligibility, as long as the individual, parent, or guardian, in the discretion of DDD, is cooperating and the Assistant Commissioner has given authorization. In some cases, there is a possibility of an additional 30-day extension.
If the individual becomes Medicaid eligible within the 60-day time period, then services will continue. If families find themselves in this situation, the problem will likely be due to earnings, or assets in the individual’s name. It may be necessary to create a Special Needs Trust to fix this problem. It is extremely important for families to act quickly, as court approval for the creation of trust is often required. Individuals can begin loosing DDD services as early as March 23, 2013 if action is not taken.
It is imperative that all individuals receiving services now, and those who will need DDD services in the future, apply for and are determined eligible for Medicaid. Advance planning is the key to success. All families should immediately confirm Medicaid status and work to ensure the individual is or will be Medicaid eligible.
During this time of transition, it is important for families to understand their rights and continue to advocate for the needs of their family member. A determination of ineligibility or denial of services by DDD can, and should be, appealed. However, timelines to file an appeal are very short. You may need to consult with one of our attorneys if DDD or Medicaid make a determination of ineligibility or fail to provide services.
S. Paul Prior, Esq., is a partner at the law firm Hinkle, Fingles and Prior, P.C. in Lawrenceville, New Jersey. He also has a brother with autism. He and the attorneys at the firm are available to speak to parent groups in New Jersey at no charge on this and other topics.