WPAS successfully challenges another DDD Service Need Level determination

This article is excerpted from ENVOY, April 1994.

by Sandy Macdonald

Jennifer is 10 years old.  She is legally blind and has a substantial hearing impairment.  She bites her wrist and scrapes her head on the floor.  She has hit, kicked, scratched, bit, and head-butted her mother and brothers.  Jennifer’s diagnosis is CHARGE Syndrome, which describes an impairment of multiple congenital defects.

After her parents’ divorce Jennifer spent one-half of the month with each of her parents.  The Division of Developmental Disabilities (DDD) provided 40 hours of respite care to each parent, a total of 80 hours per month, and eight hours of behavioral management treatment.  This amount of family support services was authorized with Jennifer placed at Service Need Level 3.

During the summer of 1992, Jennifer’s mother, Kathy, noticed increasing difficult behavior and violent outbursts.  She decided that Jennifer should not continue to spend half the month at her father’s house, and took steps to change legal custody.

In September, 1992, Kathy asked that the hours of family support services for the whole month be transferred to her.  The Division requested written proof that she had full custody of Jennifer, but did not offer additional help, and did not explain what would be done with the unused balance of the services.  Kathy had started to change the prior custody order, but could not get a written order from the court.

Kathy got a letter from DDD in January, 1993, that told her that respite care would be reduced to 32 hours each month and the behavioral treatment would stop.  She asked for additional respite hours by requesting a hearing.  Kathy could not understand why Jennifer, whose condition required more care now, should have her hours of respite care reduced and needed behavioral therapy ignored.

WPAS represented Kathy and Jennifer at the administrative hearing, in August, 1993.  WPAS asked that all of the unused respite care from September, 1992, to January, 1993, be restored, arguing that proper notice of a reduction of benefits was not provided.  DDD created the reduction by refusing to let the respite care follow Jennifer to where she actually lived.  WPAS also asked that the full month of available respite care be granted beginning February, 1993, contending that Jennifer should be qualified for Service Need Level 2.

The Administrative Law Judge agreed with Kathy’s claims and granted the full amount of allowable respite care benefits beginning in February, 1993.  He also found that Jennifer was denied an estimated 240 hours of respite care for the six months before February, and that those hours should be restored, to be used by the family as needed.  The decision has been upheld despite an appeal by DDD.

This is the second hearing in which WPAS has challenged the lack of family input that DDD allows when making decisions regarding Service Need Levels.  It is a closed process of an internal committee, with no explanation given to families and no records requested to help the committee make its decision.  In both hearings DDD’s decisions in setting the Service Need Level have been favorably changed.

*Editor's Note: Disability Rights Washington was formerly known as Washington Protection and Advocacy System.


ENVOY Credits

ENVOY Editor:  Nicole Elger
ENVOY Staff Contributors:  Laura Allen,  Sandy Macdonald, Gillian Maguire, Betty Schwieterman , Elizabeth Stanhope, Mark Stroh, Thomaszine Weathersby
Special Thanks To:  Andrea Avni, Linda Adkins, Ken Adkins
ENVOY is the newsletter of Disability Rights Washington, a private, nonprofit agency that has been protecting the rights of people with disabilities since 1972. DRW is a member of the National Disability Rights Network. Eligibility for DRW services is determined by federal law. Contact DRW if you would like more information about current priorities and available services.

ENVOY is not intended, nor should it be used, as a substitute for specific legal advice since legal counsel may only be given in response to inquiries regarding particular factual situations.

ENVOY is available at no charge to interested persons in Washington and is available in alternative formats upon request. To add your name to the Envoy email or snail-mail list contact DRW.

For alternative formats of this newsletter, please email [email protected], or call 1-800-562-2702 voice | TTY 800-905-0209.