from the A.D.E.S. Appeals Board No.
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
Judge Samuel A. Thumma delivered the opinion of the Court, in
which Presiding Judge Lawrence F. Winthrop and Judge Maria
Elena Cruz joined.
Thumma, Chief Judge.
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.
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 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.
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."
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.
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 ...