Regional Center Eligibility

Who Is Eligible?

Who Is Eligible For Regional Center Intake And Assessment?

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/LantermanAct_TOC.cfm#html

What Are Developmental Disabilities As Defined By The Lanterman Act?

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_TOC.cfm

Old Standard:“Substantial Disability”

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, self-care, mobility, self-direction, capacity for independent living, and economic self-sufficiency.

What Is “Cognitive” Impairment? The regulations further required the

following, for conditions resulting in “cognitive” impairment:

Inability to solve problems with insight Inability to adapt to new situations Inability to think abstractly or profit from

experience

Less Restrictive Standard 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? 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 full-scale score is 70 or less, a diagnosis of mental retardation may be made if there are corresponding deficits in communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.

What About Higher Scores? 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

Is The 5th Category Unconstitutionally Vague?

“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:

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/defaulthtm

Executive Dysfunction As 5th Category Condition

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.

M.A. vs. SARC OAH Case No. N2003040231

http://www.oah.dgs.ca.gov/DDS+Hearings/defaulthtm

What Is Cerebral Palsy? 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 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? 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?

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

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 CasesThe Office of Administrative Hearings has determined that autistic spectrum

disorders (other than “Autistic Disorder”) may qualify for regional center eligibility under certain circumstances.

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? 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? 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 seizure-preventing 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

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, self-direction, 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 ?

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/LantermanAct_TOC.cfm#html

Important Factors 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/LantermanAct_TOC.cfm#html

What If The Applicant Does Not Agree With The Regional Center?

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?

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

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.

GOOD LUCK! Eligibility cases are both fun and exciting.

We are all available to help and assist in any way that we can.