Transcript Regional Center Eligibility - Disability Rights California

Regional Center
Eligibility
Who Is Eligible?
Who Is Eligible For Regional Center
Intake And Assessment?
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Any person believed to have a developmental
disability, and (2) any person believed to have a
high risk of parenting an infant with a
developmental disability, and (3) any infant having
a high risk of becoming developmentally disabled
may request an intake and assessment. A “high
risk infant” means a child who is less than 36
months of age whose history may predict
developmental disability.
http://www.dds.cahwnet.gov/statutes/LantermanA
ct_TOC.cfm#html
What Are Developmental Disabilities As
Defined By The Lanterman Act?
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Developmental disability means a disability that
originates before the age of 18, can be expected
to continue indefinitely, and constitutes a
“substantial disability” for the individual.
Developmental disability includes (1) mental
retardation, (2) cerebral palsy, (3) epilepsy, (4)
autism, and (5) disabling conditions that are
closely related to mental retardation or conditions
that require treatment similar to that required for
mental retardation.
http://www.dds.ca.gov/statutes/LantermanAct_TO
C.cfm
Old Standard:
“Substantial Disability”
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All decisions prior to August 11, 2003, were based
on the following regulatory requirements:
The “existence of a major impairment shall be
determined through an assessment which shall
address aspects of functioning, including, but not
limited to, communication skills, learning, selfcare, mobility, self-direction, capacity for
independent living, and economic self-sufficiency.
What Is “Cognitive” Impairment?
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The regulations further required the
following, for conditions resulting in
“cognitive” impairment:
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Inability to solve problems with insight
Inability to adapt to new situations
Inability to think abstractly or profit from
experience
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Less Restrictive Standard
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Prior to August 11, 2003, their was no statutory
definition of substantial disability and no
requirement that adaptive deficits exist in three or
more areas of functioning.
Your analysis of potential eligibility cases requires
a careful review to determine what standards will
apply.
We will first look at cases decided under the old
standards.
What Is Mental Retardation?
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A diagnosis of mental retardation requires deficits
in intellectual functioning and adaptive functioning
(American Psychiatric Association/DSM-IV-TR).
Substandard intellectual functioning is ordinarily
measured by standardized IQ tests. If the fullscale score is 70 or less, a diagnosis of mental
retardation may be made if there are
corresponding deficits in communication, selfcare, home living, social/interpersonal skills, use
of community resources, self-direction, functional
academic skills, work, leisure, health and safety.
What About Higher Scores?
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It is possible to diagnosis mental retardation in
individuals with full scale IQ scores between 71
and 75 if they have significant deficits in adaptive
behavior that meet the criteria for mental
retardation. It is often necessary to distinguish
between mild mental retardation and borderline
intellectual functioning. The opinion of an expert
may be required.
Website Credit: http://www.ddhealthinfo.org
What Is The 5th Category?
If an individual does not meet the specific
criteria for mental retardation, he/she may
still be found eligible if:
 (1) the disabling condition is closely
related to mental retardation or
 (2) the disabling condition requires
treatment similar to that required for
individuals with mental retardation
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Is The 5th Category Unconstitutionally
Vague?
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“The language defining the fifth category does not
allow such subjectivity and unbridled discretion as
to render section 4512 impermissibly vague. The
fifth category condition may be very similar to
mental retardation, with many of the same, or
close to the same, factors required in classifying a
person as mentally retarded.” “The term is not
unconstitutionally vague.”
Jon Morgan Mason, Plaintiff and Respondent, v. Office of Administrative Hearings, Defendants
and Respondents, and Inland Regional Center (IRC), Real Party in Interest and Appellant, 2001
DJDAR 5929 (Super.Ct.No.RIC 323966).
OAH Decisions (pre-August 11,2003):
Mental Retardation/5th Category Cases:
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M. vs. SCLARC OAH Case No. L2001050558
R.B. vs. ACRC OAH Case No. N2003070598
A.R. vs. SARC OAH Case No. N2001070003
http://www.oah.dgs.ca.gov/DDS+Hearings/default
htm
Executive Dysfunction As 5th Category
Condition
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The Office of Administrative Hearings has
determined that “executive dysfunction
syndromes” may qualify for regional center
eligibility under the 5th category. These cases
involve individuals with IQ scores much higher
than 70 or 75. Consultation or technical
assistance is recommended.
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M.A. vs. SARC OAH Case No. N2003040231
http://www.oah.dgs.ca.gov/DDS+Hearings/default
htm
What Is Cerebral Palsy?
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Cerebral palsy is a term used to describe a
condition that impairs the control of movement. It
usually appears in the first few years of life and
generally does not worsen over time. The
condition is caused by damage to motor areas in
the brain that disrupt the brain’s ability to control
movement and posture. Cerebral palsy may
cause difficulty with fine motor tasks (such as
writing or using scissors), difficulty maintaining
balance or walking, or involuntary movements.
More Considerations
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Some people with cerebral palsy are also affected by other
medical disorders, including seizures or mental impairment,
but cerebral palsy does not always cause substantial
disability. Early signs of cerebral palsy usually appear before
3 years of age. Infants with cerebral palsy are frequently
slow to reach developmental milestones such as learning to
roll over, sit, crawl, smile, or walk. Cerebral palsy may be
congenital or acquired after birth. Although symptoms may
change over time, cerebral palsy by definition is not
progressive, so if a person shows increased impairment, the
problem may be something other than cerebral palsy.
Website Credit:
http://www.nlm.nih.gov/medlineplus/cerebralpalsy.html
What Is Autism?
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The newest criteria for autism are published in the
DSM –IV-TR. These criteria differ from previous
DSM versions in that the term "qualitative" has
been added to reflect the recent view that a range
of qualitative abnormalities exists. Autistic
disorder (AD) is currently listed as 1 of
5 pervasive developmental disorders (PDDs). The
remaining 4 PDDs are pervasive developmental
disorder-not otherwise specified (PDD-NOS),
Asperger syndrome, Rett syndrome, and
childhood disintegrative disorder.
Autism and Asperger’s:
What’s The Difference?
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Although clinical patterns vary depending on severity, all
children with autism demonstrate some degree of qualitative
impairment in reciprocal social interaction, qualitative
impairment of communication, and restricted, repetitive, and
stereotypic patterns of behaviors, interests, and activities.
The diagnostic criteria for autistic disorder and Asperger’s in
the Diagnostic and Statistical Manual (DSM-IV-TR) share
common features. They both include impairment in social
interaction and behavior. Asperger’s is different because it
does not require a significant language delay and age
appropriate self-help and adaptive skills may exist.
Website Credit: http://www.ddhealthinfo.org
http://pediatrics.aappublications.org/cgi/content/full/107/5/e85
DDS Guidelines
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DDS has developed a publication titled: Autistic
Spectrum Disorders: Best Practice Guidelines for
Screening, Diagnosis and Assessment
You may enjoy reviewing this publication and
others at:
http://www.dds.ca.gov/autism/autism_main.cfm
OAH Cases
The Office of Administrative Hearings has determined that autistic spectrum
disorders (other than “Autistic Disorder”) may qualify for regional center
eligibility under certain circumstances.
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Asperger’s (as autistic spectrum disorder)
A.C. v. SARC OAH No. N2002050377
Autism and Asperger’s (simultaneous diagnosis)
J.B. v. SARC OAH No. N2002040568
Pervasive Developmental Disorder (as autistic spectrum disorder)
A.M. v. ACRC OAH No. N2003010025
Autism
N.M. v. TCRC OAH No. L2001070653
http://www.oah.dgs.ca.gov/DDS+Hearings/default.htm
What Is Epilepsy?
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Epilepsy is a neurological condition that makes
people susceptible to seizures. A seizure is a
change in sensation, awareness, or behavior
brought about by a brief electrical disturbance in
the brain. Seizures vary from a momentary
disruption of the senses, to short periods of
unconsciousness or staring spells, to convulsions.
Some people have just one type of seizure.
Others have more than one type. Although they
look different, all seizures are caused by the same
thing: a sudden change in how the cells of the
brain send electrical signals to each other.
What About Treatment For Epilepsy?
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Epilepsy is not a mental disorder. It can be
caused by anything that affects the brain,
including tumors and strokes. Sometimes epilepsy
is inherited. Often, no cause can be found.
Doctors may treat epilepsy with seizurepreventing medicines, surgery, diet, or electrical
stimulation. If the treatment is successful and the
seizures are controlled, a person may not be
eligible for regional center services.
Website Credit: http://www.ddhealthinfo.org
http://www.epilepsyfoundation.org
New Standards:
August 11, 2003
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On August 11, 2003, the California legislature
made it a requirement that each of the qualifying
conditions cause impairment in at least three of
the following areas: self-care, receptive and
expressive language, learning, mobility, selfdirection, capacity for independent living, or
economic self-sufficiency. Any reassessment for
eligibility will apply the standards that were in
place prior to August 11, 2004, if the eligibility
determination was made at that time.
OAH Decisions
(post-August 11, 2003)
Mental Retardation/5th Category:
G.O. vs. IRC OAH Case No. L2003031088
Autism:
D.Q. vs. TCRC OAH No. L2004040512
How Does the Regional Center
Determine Eligibility ?
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Regional centers conduct assessments to
determine if a qualifying condition exists. The
assessment may include collection and review
of diagnostic information, evaluation and testing,
examination of developmental history, and
review of services received.
http://www.dds.cahwnet.gov/statutes/Lanterman
Act_TOC.cfm#html
Important Factors
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An assessment needs to follow a family-centered
frame of reference and should include cultural
sensitivity and regard for family and community
diversity. Cultural values, language, religion,
education, socio-economic and socio-emotional
factors may have an important influence on the
individual and the evaluation. Family involvement
is important in the diagnosis and assessment of
developmental disabilities.
http://www.dds.cahwnet.gov/statutes/LantermanA
ct_TOC.cfm#html
What If The Applicant Does Not Agree
With The Regional Center?
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If an applicant does not agree with the
conclusions of the regional center, the applicant
has a right to dispute the conclusions by
requesting a fair hearing.
The hearing request must be filed in a timely
manner as outlined in the session on fair
hearings.
What If The Regional Center
Terminates Existing Eligibility?
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Special standards apply if the regional center
terminates eligibility for an existing consumer.
Pursuant to statute: An individual who is
determined by any regional center to have a
developmental disability shall remain eligible for
services from regional centers unless a regional
center, following comprehensive reassessment,
concludes that the original determination is clearly
erroneous.
Significance of the Clearly Erroneous
Standard
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Application of the standard shifts the
burden of proof from the claimant to the
regional center.
Careful review of existing cases is required:
R.S. vs. IRC OAH Case No. L2003010182
J.B. vs. NBRC OAH Case No. 2001010154
Regional Center Defenses To
Eligibility
Once the regional center denies eligibility for a
new applicant or an existing consumer, the
regional center may assert any of the following
defenses:
--solely physical (statutory exclusion)
--solely psychiatric (regulatory exclusion)
--solely learning disability (regulatory exclusion)
Case review will be helpful in determining how to
prevent these challenges to your case.
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GOOD LUCK!
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Eligibility cases are both fun and exciting.
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We are all available to help and assist in
any way that we can.