Appellate Court Affirms DDD Denial of Payment to Guardian

M.L. is the co-guardian and mother of C.L., a disabled 25-year old man with autism and epilepsy. C.L. lives with his parents in their home. He receives support and funding from the New Jersey Department of Human Services, Division of Developmental Disabilities (“DDD”) under their Self-Directed Services (“SDS”) program. Under the SDS program, he receives an annual budget for self-directed day services. The program includes a support coordinator and a fiscal intermediary agency that contracts with DDD for services and acts as the employer of record for providing those services.

M.L. manages the self-directed daytime services her son receives from the DDD; a substantial portion of those services are used to pay Direct Support Professionals (“DSPs”), the people who supervise and assist her son several hours per day.

In 2013, M.L. suspected that the DSP who was assisting her son had accessed her credit card. When the DSP refused to submit to a background check, she terminated his services.

M.L. told the DDD support coordinator that it would take time to find a suitable replacement DSP, and she asked permission to serve as a paid emergency DSP in the meantime. DDD denied her request.

DDD advised M.L. that its policy prohibits the payment for services that are furnished by a “parent/stepparent, spouse, guardian, or relative residing in the service recipient’s residence.” Although the policy has an exception that allows for payment to a relative living in the residence to act as an emergency DSP, that exception does not apply to “legally responsible relatives.” Because M.L. is C.L.’s mother and guardian, DDD policy prohibited payment to her from the SDS budget.

M.L. filed a petition with the DDD. Following an informal conference, the DDD upheld its decision. She requested administrative review; a Final Agency Decision upheld the finding that DDD’s policy expressly prohibits the use of the SDS budget to pay M.L.

M.L. appealed to the New Jersey Superior Court, Appellate Division, and the Appellate Division affirmed the denial of her request.

The appellate court recited M.L.’s arguments, which challenged the wisdom of a policy barring payment to a guardian. She argued that the policy creates a hardship for the family, that it is impractical because of delays in finding qualified DSPs, and that it is illogical to bar payment to a guardian who actually provides services, when payment would otherwise be made to a DSP for providing those services. The Appellate Division acknowledged these policy arguments, but concluded that “we are convinced she has failed to establish that the [DDD’s] decision prohibiting the payment of funds from C.L.’s SDS budget to M.L. is arbitrary, capricious, or unreasonable.” It continued that,

The policy prohibiting M.L. from receiving payment … promotes appropriate oversight of the services provided and the payments rendered for the services [and] is founded upon the [DDD’s] judgment that the fiduciary who is provided the funding on behalf of the person with developmental disabilities … should not also be the individual to whom the funds are paid.

The court concluded that such an arrangement “could adversely affect the fiduciary’s ability to independently-and without any conflict of pecuniary interest-determine the timing and extent of the services provided….” It held that the DDD’s decision was properly designed “to advance the [DDD’s] legitimate interest in providing funding only to fiduciaries who have no personal financial interest in the funds due under the SDS program.”

A copy of In the Matter of C.L. can be found here – In the Matter of C.L.

For additional information concerning NJ elder law and special needs planning visit: http://vanarellilaw.com/legal-services/

The post Appellate Court Affirms DDD Denial of Payment to Guardian appeared first on Elder Law Attorney NJ | The Law Office of Donald D. Vanarelli.

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