Yesterday, a discussion took place on a New Jersey elder and disability law listserv between several attorneys who regularly handle cases involving Division Of Developmental Disabilities (DDD) clients concerning a recent and significant change to the availability of DDD day program services. I have recreated the listserv discussion below by combining statements made in emails by a number of the participating lawyers. I believe this discussion may aid parents of children with developmental disabilities in understanding the new situation.
Day program services provided by New Jersey’s DDD are critical for adult children with developmental disabilities who are completing their educational entitlement, and their families. These day services allow adult children to remain active outside their home and develop social relationships with others. They also provide families and caregivers with time to pursue their own interests and activities, including a job.
Recently, the DDD posted the following announcement on its website:
ALERT: Change to Day Services policy – February 2010
In response to recent developments in the state’s fiscal situation, DDD announces a change in policy regarding new requests for day services, including self-directed day services.
In addition to meeting the criteria listed above, individuals who are not currently, but would like to receive, day services also will need to show that they have an emergency need for those services. The criteria for emergency can be found in section 10:46C-1.15(d) of Division Circular #8, “Waiting List Procedures.” It reads:
The criteria for an emergency placement in a day program are:
- The individual has been placed in a Division funded residential placement and does not have a current day program;
- The individual would become homeless without a day placement; or
- The individual requires supervision which is not available during the day and is at risk of imminent peril.
Individuals who do not meet the emergency criteria, in addition to all other criteria for day services, will be placed on a day services Waiting List as it is defined in DC#8.
This change will significantly impact children with developmental disabilities who are completing their special education programs in June 2010. Special education eligibility ceases at the close of the school year during which the student attains age 21.
Parents who have children with developmental disabilities should make sure that their children are on the day program waiting list and ask for confirmation in writing. In addition, parents should immediately request day program services to begin in July, immediately after school ends. Parents should also start putting together documentation that shows that their child’s situation meets the emergency criteria, e.g., the child will regress (i.e. lose skills), maladaptive behaviors will worsen, there will be serious risk to the health and safety of the child or other family members in the home, etc.
Unfortunately, legal recourse appears to be limited. The only clients of DDD who are legally entitled to day program placement are individuals who reside in community residential programs. Under N.J.S.A. 30:6D-17 “The department shall ensure that every developmentally disabled person in a community residential facility receives . . . a full daily program of structured activities . . .” Therefore, children with developmental disabilities do not have a legal right to day program activities.
That being said, N.J.S.A. 30:4-25.6 does state that “The commissioner shall, upon proper application for admission, forthwith admit the eligible [intellectually disabled] person, and provide him with appropriate functional service to the extent available. In the event that the functional service which has been specified as most appropriate from time to time is not immediately available, the commissioner shall provide alternate service and, at the request of the applicant, shall also place the eligible [intellectually disabled] person on a waiting list for the preferred service pending its availability.”
DDD has been very careful in its regulations to qualify that all of its services including family support services, day program placements, and residential placements are provided subject to the availability of funding. See, Family Support Services, N.J.A.C. 10:46A-1.1(d), and Placements (day & residential), N.J.A.C. 10:46B-3.1(c).
However, N.J.S.A. 30:4-25.6 also states that the DDD “shall provide alternate service” when the appropriate service is not available. DDD’s waiting list regulation as set forth in N.J.A.C. 10:46C-1.7(b) states that: “If an eligible individual cannot be admitted to the most appropriate service, he or she shall be offered an alternate service,” but then goes on to say in section (c) that: “The availability of a service shall be subject to the limits of the Division’s funding resources for that Fiscal Year,” which seems to mean that the State doesn’t really have to provide an alternate service.
DDD has usually provided day program services as a part of alternate services provided to those awaiting residential placement. What alternate service the DDD can provide to clients who are waiting for day program services is anyone’s guess. I think that the failure to provide any services at all could make the DDD vulnerable in an appeal of the denial of day program services.
In any case, DDD fights denial of service appeals tooth and nail. Litigation is likely to be long and expensive. Unfortunately, there are not many parents of DDD clients who are able or willing to take on the state agency in protracted litigation of this kind.
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