Slovak Baron & Empey, LLP

By: Valerie A. Powers Smith, Esq.

In New Jersey, the primary funding source for services for adults with disabilities once special education services end - that is, once the child either is graduated between ages 18 and 21 years of age, or ages out at age 21 - is the New Jersey Division of Developmental Disabilities ("DDD"). That being said, DDD also provides some services to children under the age of 18.

Eligibility for DDD Services

Eligibility for DDD is governed by state statute (N.J.S.A. 30:6D-1 et seq.). To be eligible, one must have a mental or physical impairment that occurred before age 22, is life-long, and which substantially impairs at least three (3) of the following areas of major life activity: self-care; learning; mobility; receptive & expressive language; self-direction; capacity for independent living; and economic self-sufficiency. Some diagnoses that are considered a developmental disability include mental retardation, cerebral palsy, epilepsy, spina bifida, autism or a neurologic impairment. See N.J.A.C. 10:46.

Applying for DDD Services

To apply for services from DDD, families should contact DDD to request an application (800-832-9173; www.state.nj.us/humanservices/ddd/index.htlml). If DDD determines the applicant is eligible to receive services, DDD will send a letter indicating the same along with information on the services and how to access the same. Due to the extreme waiting list, it is critically important to ensure one's child is on the waiting list upon receiving an eligibility determination from DDD for residential services and day programming.

If the applicant is found not to be eligible, there is an appeals process available under N.J.A.C. 10:48. The first stage is called the "informal settlement conference" and is conducted internally within DDD. The second stage is before an Administrative Law Judge in the Office of Administrative Law.

Services

The nature of a person's rights to DDD services is more complicated than in the special education system, where a student is entitled to receive services immediately and regardless of the cost. Under the DDD system, clients frequently are assigned to wait list and must wait to receive necessary services. There are, however, exceptions where an emergency exists; in which case, DDD must provide immediate residential services.

Services from DDD for adults include case management services, adult day programs, residential placement, and employment services. Services are often provided at no cost to the family and can be provided over the lifespan of the individual. Fees for some services may apply to individuals who have an income or to families when a dependent child under the age of 18 receives residential services from DDD.

For children and youth under the age of 18, DDD provides family support services. These may include behaviorists, summer camp, cash subsidies, communication and interpreter services, counseling and crisis intervention, day care, equipment and supplies, home and vehicle modifications, homemaker assistance, medical and dental care, personal assistance services, therapeutic or nursing services, and respite. These services are limited to funds available.

Once DDD agrees to provide a service, DDD must provide services which meet stringent legal standards. Under the New Jersey Developmental Disabilities Rights Act (N.J.S.A. 30:6D-1, et seq.), services must "maximize developmental potential and be delivered in a manner and setting least restrictive of personal liberty." These legal standards apply to both day programs and residential services.

Service Planning

State law requires that guardians, family members, DDD staff, service providers, and, to the extent possible, the person being service by DDD, work together to develop an annual Individual Habilitation Plan (IHP), regardless of whether the individual is currently receiving specialized services from DDD. This document is also frequently referred to as the Essential Life Plan or ELP. The purpose of the IHP is to establish goals and objectives that will enable the person with a disability to maximize his or her developmental positional in the least restrictive environment. Federal law recognizes that families are the "primary decision makers regarding services."

Financial Contributions

DDD currently requires individuals who receive DDD residential services or supports to contribute 75% of their Social Security benefits and other unearned income, as well as 30% of their wages. Parental income is only subject to collection if the individual being service is under the age of 18 and in a residential program funded by DDD and the parents are under the age of 55. DDD allows individuals to retain more than 25% of unearned income to pay for guardianship and "extraordinary needs" such as excess shelter costs, "unavoidable" medical costs, replacement costs of personal items, an irrevocable funeral trust, and costs of moving into an independent living arrangement.

DDD will also seek reimbursement for residential services from an individual's assets. Individuals who have assets or stand to inherit assets are at risk of losing them unless careful special needs planning - that is, the establishment by the family of a special needs trust - is done.

About Slovak Baron & Empey, LLP

© 2011, Valerie A. Powers Smith, Esq.

Valerie A. Powers Smith, Esq., Of Counsel, Slovak Baron & Empey, LLP, is licensed to practice in New Jersey, New York, Pennsylvania, and California and specializes in the following special needs and disability law subject areas: health care insurance, Medicaid, Medicare, special needs trust, trust administration, estate planning & administration, guardianships, and accessing federal and state government disability-based benefits. Valerie can be contacted at powers@sbelawyers.com, 609.655.3393 or 760.322.2275.