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A.W. v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division

June 20, 2019

A.W., Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency, and DES/DDD, Appellees.

          Appeal from the A.D.E.S. Appeals Board No. P-1564947-001-B.

         COUNSEL

          Lewis Roca Rothgerber Christie LLP, Phoenix By Jared L. Sutton Counsel for Appellant

          Arizona Attorney General's Office, Phoenix By JoAnn Falgout Counsel for Appellee Arizona Department of Economic Security

          Chief Judge Samuel A. Thumma delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

          OPINION

          Thumma, Chief Judge.

         ¶1 A.W. appeals from a decision of the Arizona Department of Economic Security (ADES) Appeals Board to terminate developmental disabilities services previously provided to her. Because ADES' notice of intent to terminate was deficient in a material way, the decision is affirmed in part and vacated in part as set forth below.

         FACTS AND PROCEDURAL HISTORY

         ¶2 A.W. was born in late 2009 with several chronic complications resulting in extensive medical needs. Throughout her life, she has had various surgeries (including open heart surgery and a tracheostomy), spent more than 100 days in the hospital and been on a ventilator for months. She has been diagnosed with failure to thrive; speech, visual and fine motor coordination delays or limitations and a neurodevelopmental chromosomal syndrome known as DUP 15Q.

         ¶3 At some point before A.W. turned six, her mother (who has acted for A.W. in these proceedings) applied for services from the ADES Division of Developmental Disabilities (DDD). ADES approved the application and provided A.W. with DDD services, including therapies and related treatments.

         ¶4 DDD services are available to eligible Arizonans with a "developmental disability." See Ariz. Rev. Stat. (A.R.S.) § 36-551(19) (2019) (defining "developmental disability"); Ariz. Admin. Code (A.A.C.) R6-6-302 (2019) ("Eligibility for Program").[1] The requirements for eligibility vary according to the individual's age. Individuals six years old or older must have a "severe, chronic disability" attributable to a qualifying diagnosis (here, Autism) that (1) manifested before age 18 and is likely to continue indefinitely and (2) results in substantial functional limitations in at least three of seven areas of major life activity. See A.R.S. § 36-551(19); A.A.C. R6-6-302(H). For individuals under six, there must be a "strongly demonstrated potential" that the child has or will be diagnosed with such a developmental disability. See A.R.S. § 36-551(19); A.A.C. R6-6-302(G). A.W. received DDD services before turning six, meaning ADES had determined she met this "strongly demonstrated potential" standard.

         ¶5 A.W. turned six on December 30, 2015. ADES was required to "conduct periodic reviews in six-month intervals, or more frequently" to evaluate her services, including to determine whether "services should be terminated." A.A.C. R6-6-604(A). Although two such reviews should have occurred in 2016, ADES did not seek to terminate DDD services for A.W. at that time. On May 1, 2017, nearly 18 months after A.W. turned six, ADES sent her a Notice of Intended Action stating it intended to terminate her eligibility for DDD services. The form Notice (DDD-1476A LTHFF (12-16)) stated ADES was "taking this action for the following reason(s): . . . For individuals six years or older, we reviewed the records provided to us, and they do not show that you have . . . [a] diagnosis that qualifies you for DDD [services] (Cognitive Disability/Intellectual Disability, Autism, Cerebral Palsy, or Epilepsy), which began before age 18 and is likely to continue." A "Detail(s)" field repeated: "[n]o documentation has been provided that states [A.W. has] been given an approved DDD diagnosis."

         ¶6 The Notice had a box ADES could have checked to indicate that its review failed to show "[substantial functional limitations in at least three . . . areas of major life activities resulting from a DDD qualifying diagnosis." ADES, however, did not check that box. Accordingly, the Notice did not inform A.W. that ADES' review failed to show substantial functional limitations. This May 1, 2017 Notice was the only official notice ever provided to A.W.

         ¶7 According to the Notice, unless A.W. sought administrative review, ADES would "[t]erminate eligibility" for DDD services effective June 19, 2017. On May 9, 2017, however, A.W. timely requested administrative review. On May 31, 2017, A.W. submitted to the DDD Office of Administrative Review (OAR) an August 19, 2015 cognitive evaluation from her school stating she had various cognitive-ability limitations. On June 2, 2017, OAR "forwarded the available records to the DDD Clinical Psychologist for review and recommendation." As later quoted by ADES, the DDD Clinical Psychologist, elsewhere identified as Dr. Jennifer Gray, at some point "responded to the ...


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