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By Sandi Rosenbaum, Educational Advocate, Littman Krooks LLP

Special Needs Trusts WorkshopThe Office for People with Developmental Disabilities (OPWDD) enacted emergency regulations in June 2018, regarding its procedures and criteria for determining eligibility for OPWDD services, further proposing these regulations become permanent; the public comment period ends on August 27, 2018. OPWDD circulated the proposed permanent changes internally, to provider agencies, and to a limited number of committees, in a memo dated June 22, 2018.  However it did not directly notify groups representing family members within OPWDD, nor did it share the information with the Stakeholder List through which it communicates with families.

The proposed changes may be harmful both to individuals applying for eligibility and those already receiving services.

  • The emergency/proposed regulations stipulate that “OPWDD may review or re-review an individual’s eligibility at any time. Applicants determined ineligible may reapply for services upon receipt of new or differing information that supports eligibility at any time.”  Previously, OPWDD granted permanent eligibility to individuals aged 8 and older, on the understanding that the conditions causing developmental disability were lifelong.  This imposes a grave burden, particularly on older adults, to undergo evaluations for the purpose of confirming that their lifelong conditions continue to pose a substantial handicap.
  • Further, the emergency/proposed regulations describe OPWDD’s determination of eligibility based not solely on the presence of developmental disability as defined in MHL Section 1.03(22), but on that law and “associated guidelines”. OPWDD’s internal guidelines are narrower than MHL 1.03(22), and currently do not currently have the force of law. Individuals who are genuinely developmentally disabled, but whose situations fall outside the guidelines, for whatever reason, will have greater difficulty challenging their ineligibility determinations at hearing.
  • Finally, there is no set procedure or notice requirement for modifying guidelines, so that anyone, whether applying for eligibility or at risk of having their eligibility revoked, will be at risk of harm due to guidelines changing at any time and without notice.

For more information, please see the attached emergency regulations as well as the “What You Need to Know” from Disability Rights New York. We encourage you to share your concerns with OPWDD at:

Office for People with Developmental Disabilities.
Office of Counsel, Bureau of Policy and Regulatory Affairs
44 Holland Avenue
RAU.unit@opwdd.ny.gov
Albany, New York 12229
Fax: (518) 474-7382

A sample form letter follows:

Dear OPWDD,

I am writing regarding OPWDD’s Emergency/Proposed Regulation on Eligibility for Services. I am [choose one of the following: a person with a disability, a family member of a person with a disability, a service provider, an advocate].

I [agree/disagree] with the proposed regulation because [add reason(s); consider sharing how the proposal would impact you or your family member or client or constituent].

Thank you for your consideration.

Sincerely,

[Your Name]

 

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.


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