The Department of Developmental Services (DDS) is an
agency under the Executive Office of Health and Human
Services. Its name is reflective of the expectations about the
persons with disabilities it serves in the community. However,
unlike its name suggests, DDS does not serve all persons in
the Commonwealth with developmental disabilities, rather it
serves only those persons residing in the Commonwealth with
intellectual disability.
M.G.L. c. 19B, covers the creation and powers of DDS and
under such law, DDS has the duty to “take cognizance of all
matters affecting the welfare of the persons with an intellectual
disability.” 115 CMR sets forth the regulations of DDS, which
applies to the operation of DDS and to the operation and
provisions of services and supports by public and private
programs and facilities that are subject to DDS jurisdiction.
This article will cover DDS basic adult eligibility, the services
offered by DDS and its policies regarding the grant of services
and supports.
I. GENERAL ELIGIBILITY:
Persons who are 18 years of age or older are eligible for DDS
services if they are domiciled in Massachusetts and a person
with intellectual disability, as defined by 115 CMR 2.01.
- Domicile:
A person is considered to be domiciled in Massachusetts
if he or she resides in Massachusetts with the intention to
remain in Massachusetts. DDS, unlike other Health and
Human Services agencies, does not have a straight forward
residency requirement. Rather, DDS’s requirement is
more stringent as it presumes that certain persons are not
domiciled in the state.
There is a presumption that the following persons are not
domiciled in Massachusetts:
a. Persons who reside in a home or setting subject to
licensure or regulation by the Commonwealth, which
residence was arranged or is being funded by another
State;
b. Persons who reside in a home or setting subject to
licensure or regulation by the Commonwealth, which
residence was arranged by a parent, guardian, or family
member who is not domiciled in Massachusetts and was
not so domiciled at the time of the placement; and
c. Persons not covered by a or b, ages 18 through 21,
who reside in a residential special education program
and whose parent or guardian is not domiciled in
Massachusetts.
In the event that DDS determines that an applicant for
services in not domiciled in Massachusetts, it denies the
application without determining whether the applicant is a
person with intellectual disability. - Intellectual Disability:
In 2006, DDS changed its regulations to include a definition
of intellectual disability that required an applicant have an
IQ of 70 or below as one of its criteria for eligibility. Such a
requirement is more restrictive than most other states in the
country and was contested by many as too restrictive.
In 2012, The Massachusetts Appeals Court in Tartarini
v. Department of Mental Retardation 82 Mass.App.Ct.
217 (2012), found DDS’s practice of imposing a strict IQ
requirement inconsistent with the state statute enabling DDS
and authorizing its regulations. As such, DDS regulations
regarding intellectual disability were struck down,
necessitating new regulations.
DDS now defines Intellectual Disability consistent with the
American Association of Intellectual and Developmental
Disabilities definition as follows:
Intellectual Disability means, consistent with the standard
contained in the 11th edition of the American Association of
Intellectual Disabilities: Definition, Classification, and Systems
of Supports (2010), significantly sub-average intellectual
functioning existing concurrently with and related to
significant limitations in adaptive functioning. Intellectual
disability originates before age 18. A person with intellectual
disability may be considered to be mentally ill as defined
in 104 CMR (Department of Mental Health), provided that
no person with intellectual disability shall be considered
to be mentally ill solely by reason of his or her intellectual
disability. The determination of the presence or absence
of intellectual disability requires that exercise of clinical
judgment.
Significant Limitations in Adaptive Functioning means
an overall composite adaptive functioning limitation that
is approximately two standard deviations below the mean
or approximately two standard deviations below the mean
in one of the three domains of the appropriate norming
sample determined from the findings of assessment using a
comprehensive, standardized measure of adaptive behavior,
interpreted by a qualified practitioner. The domains of
adaptive functioning that are assessed shall be:
- a. areas of independent living/practical skills;
- b. cognitive, communication, and academic/conceptual skills; and
- c. social competence/social skills.
Significantly Sub-average Intellectual Functioning means
an intelligence test score that is indicated by a score
of approximately 70 or below as determined from the
findings of assessment using valid and comprehensive,
individual measures of intelligence that are administered
in standardized formats and interpreted by qualified
practitioners.
II. SERVICES OFFERED
DDS offers a wide array of services and supports to
individuals, from community based supportive services in an
institutional setting. In addition to DDS services, individuals
who are eligible for Medicaid may receive services from a “plan
of care”. DDS currently administers Home and Community
Based Waivers, which are federal/state programs designed
for individuals of similar needs to receive community based
supports.
The following is a list of services from DDS:
Supportive Services
Family Supports- various services that support the individual
within the family home
Examples of family support services include respite care,
social/ recreational services, minor home modifications and
other goods or purchases.
Employment Supports- assistance for competitive employment
and ongoing job coaching / support.
Center-based Work- work training provided within a facility,
may include group enclave employment in community.
Home and Community Based Work- pre-vocational training
provided within a facility.
These services can include community integration, specific
skill training, group enclave employment, volunteer
experiences.
Individual Supports- support for individuals to live
independently. Includes 15 hours or less a week of supports
may include: medical care coordination, money management,
household skills, utilization of community resources, and
other supports.
Community Living Supports
Intensive Individual Supports- support to individuals living
independently, same as above but provision of over 15 hours
per week of supports.
Intensive Family Support- range of more intensive services
that support the individual who is living with his or her family.
Intensive Family Support is provided to individuals who have
increased medical, behavioral health or skill needs.
Comprehensive or Community 24-Hour Supports
Shared Living- supervision and skill building services provided
by a professional (s) who live (s) with the individual. The home
or apartment is obtained as a home for the individual and the
“mentor” or obtained for the individual who chooses his/her
“mentor” to live with him/her. There are a number of non-profit
agencies that provide variations on this model and serve
individuals with a wide variety of needs including specialized ones.
Group Residential Supports- 24/7 supervision and skill
building services provided with other individuals who need a
similar level of service. Homes can vary in size and in staffing
ratios depending on the needs of the individuals living in the
home. Homes are run both by non-profit service providers and
by the DDS. The service may also be tailored to specialized
needs such as behavioral health challenges and medical needs.
Self Directed Services
Individuals and/or their families may direct their own services.
An individual who is prioritized for a particular service and
has a funding allocation, can (with support) plan his or her
own services and manage his or her individual budget. In
addition to deciding how the funds are spent, an individual
may recruit, hire and supervise his or her staff. This option
offers more flexibility over services by shifting much of the
control and the responsibility to the individual and/or his or
her family.
Medicaid/State Plan Services
Day Habilitation Supports- center-based program that
includes allied health services such as nursing, physical
therapy, occupational therapy. The focus in these programs is
on pre-vocational skills, individual needs relating to medical
conditions and other skills training needs. Individuals need to
meet the Day Habilitation eligibility criteria set by MassHealth.
Personal Care Attendant Services- 1:1 assistance for personal
care needs, funded by MassHealth, need to meet PCA
eligibility criteria.
Adult Foster Care – supervision and skill building services
provided in the care provider’s home. The individual would
live with the provider of services. The provider could be an
individual, individuals or family who would provide ongoing
supervision and skill building services such as household
skills, money management, medical care coordination, and
community/ social integration. The individual must meet the
criteria for adult foster care.
III. PRIORITY FOR SERVICES
DDS divides the state into Regions and each Region into
Areas. Each Area is run by the Area Director. It is the Area
Director that determines priority for supports provided,
purchased or arranged by DDS based upon the severity of the
individual’s needs, in accordance with 115 CMR 6.07. DDS
presently serves over 30,000 individuals and all services are
subject to appropriation. Therefore, the grant of services should be based on a standardized process that considers need
and fairness to all individuals.
Once an individual is found eligible for supports, the appropriate
Area Office will determine the individual’s prioritization for
available supports. To do this, DDS utilizes the MASSCAP,
or Massachusetts Comprehensive Assessment Profile. The
MASSCAP was developed to assist DDS to evaluate an
individual’s needs/abilities and the strengths/challenges of
caretakers.
The MASSCAP consists of two assessments, the Inventory of
Client and Agency Planning (ICAP) and the Consumer and
Caregiver Assessment (CCA). The ICAP is the tool that assesses
an individual’s level of functioning and level of support and
supervision needed. The CCA is a tool that assess the resources
and supports currently in place and/or available to the individual,
including a review of the capabilities of caregivers.
The completed ICAP and CCA provide a service score. This
score is reviewed by DDS staff who will apply professional
judgment in making a final determination of priority. DDS will
determine whether an individual is First Priority, Second Priority
or No Priority. First Priority means that the support requested
is necessary to protect the health or safety of the individual or
others. Second Priority means that the support requested is
necessary to meet on or more of the individual’s needs or to
achieve one or more of the needs identified in the service plan.
No Priority means that the requested service is not needed.
IV. APPEALS
DDS regulations outline the standards and procedures for
appeals and redress of matters affecting applicants for services
and recipients of services. The following issues may be appealed:
Whether the support plan is being implemented.
- Decision by DDS to deny eligibility for services;
- Decision by DDS regarding assignment of priority for services;
- Decision by DDS regarding whether to perform assessments in the support planning process;
- Whether the goals identified in the support planning process are consistent with and promote outcomes for the individual as defined by regulation;
- Whether the type of supports identified in the support planning process are appropriate and available to meet the goals stated in the support plan;
- Whether the use of behavior modification plans are consistent with regulatory requirements;
- Whether the recommendations regarding an individual’s ability to make personal and financial decisions and the supports identified for the same are appropriate;
- Whether the development, review and modification of the support plan was consistent with regulatory requirements; and
- Whether the support plan is being implemented.
An appeal is initiated by notifying the Regional Director for
the DDS region in which the applicant or individual resides, in
writing, within thirty days after receipt of DDS’s decision. Once
the appeal is initiated, the DDS Regional Director will hold
an “informal conference” within 30 days. The purpose of an
informal conference is to conciliate the issues being appealed.
In the event that conciliation is not accomplished, the informal
conference should be used to clarify issues for further appeal and
determine what issues and/or facts the parties agree on.
Within 30 days from the conclusion of the informal conference,
an appellant must petition the Commissioner of DDS for a fair
hearing. DDS must hold the fair hearing within 60 days from the
filing of the appeal. The fair hearing is conducted by an impartial
hearing officer designated by the Commissioner, including an
employee of DDS. The appellant has the burden of proof, by
a preponderance of the evidence to show that the decision(s)
of DDS was incorrect. To meet this burden, the appellant has
the right to be represented, present any relevant evidence and
call and examine witnesses. The procedural rules governing all
hearings are administered pursuant to the Informal Rules of the
Standard Adjudicatory Rules of Practice and Procedure, 801
CMR 1.02.
Following the hearing, the hearing officer prepares and submits
to the Commissioner a recommended decision, including a
summary of the evidence presented, findings of fact, proposed
conclusions of law, the recommended decisions and the reasons
for the decision. The findings of fact in the recommended
decision are binding, but the Commissioner has limited authority
to modify the conclusions of law and decisions. Such authority
is limited to those conclusions or decisions that are in excess
of statutory authority or jurisdiction; based on an error of law;
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.
Within 45 days of the conclusion of the fair hearing, the
Commissioner must issue a decision with is a final decision of
the agency. If a party continues to be aggrieved by final decision
of DDS, judicial review of the decision is available under M.G.L.
c. 30A.
