from the A.D.E.S. Appeals Board, No. P-1564947-001-B.
Roca Rothgerber Christie LLP, Phoenix, By Jared L. Sutton,
Counsel for Appellant
Arizona Attorney Generals Office, Phoenix, By JoAnn Falgout,
Counsel for Appellee Arizona Department of Economic Security
Judge Samuel A. Thumma delivered the opinion of the Court, in
which Presiding Judge Lawrence F. Winthrop and Judge Maria
Elena Cruz joined.
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
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.
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.
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"). The requirements for eligibility vary
according to the individuals 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.
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
[A.W. has] been given an approved DDD ...